THE WASHINGTON POST -- 2004

post_digest_2004.txt

http://www.washingtonpost.com/

================================================================================


December 1, 2004; Page A01

US GENERALS IN IRAQ WERE TOLD OF ABUSE EARLY, INQUIRY FINDS

By Josh White, Washington Post Staff Writer

http://www.washingtonpost.com/ac2/wp-dyn/A23372-2004Nov30

A confidential report to Army generals in Iraq in December 2003 warned that
members of an elite military and CIA task force were abusing detainees, a
finding delivered more than a month before Army investigators received the
photographs from Abu Ghraib prison that touched off investigations into prisoner
mistreatment.

The report, which was not released publicly and was recently obtained by The
Washington Post, concluded that some U.S. arrest and detention practices at the
time could "technically" be illegal. It also said coalition fighters could be
feeding the Iraqi insurgency by "making gratuitous enemies" as they conducted
sweeps netting hundreds of detainees who probably did not belong in prison and
holding them for months at a time.

The investigation, by retired Col. Stuart A. Herrington, also found that members
of Task Force 121 -- a joint Special Operations and CIA mission searching for
weapons of mass destruction and high-value targets including Saddam Hussein --
had been abusing detainees throughout Iraq and had been using a secret
interrogation facility to hide their activities.

Herrington's findings are the latest in a series of confidential reports to come
to light about detainee abuse in Iraq. Until now, U.S. military officials have
characterized the problem as one largely confined to the military prison at Abu
Ghraib -- a situation they first learned about in January 2004. But Herrington's
report shows that U.S. military leaders in Iraq were told of such allegations
even before then, and that problems were not restricted to Abu Ghraib.
Herrington, a veteran of the U.S. counterinsurgency effort in Vietnam, warned
that such harsh tactics could imperil U.S. efforts to quell the Iraqi insurgency
-- a prediction echoed months later by a military report and other reviews of
the war effort.

U.S. treatment of detainees remains under challenge. Representatives of the
International Committee of the Red Cross recently told U.S. military officials
that the treatment of inmates held at Guantanamo Bay, Cuba, was "cruel, inhumane
and degrading" (story, Page A10). Herrington's report, which was commissioned by
Maj. Gen. Barbara Fast, the top intelligence officer in Iraq, said some
detainees dropped off at central U.S. detention facilities other than Abu Ghraib
had clearly been beaten by their captors.

"Detainees captured by TF 121 have shown injuries that caused examining medical
personnel to note that 'detainee shows signs of having been beaten,' " according
to the report, which later concluded: "It seems clear that TF 121 needs to be
reined in with respect to its treatment of detainees."

A group of Navy SEALs who worked as part of the task force has been charged with
abuse in connection with the deaths of two detainees they arrested in the field.
One died in a shower room at Abu Ghraib on Nov. 4, 2003, a month before
Herrington arrived for his review.

A military source who participated in Task Force 20, the predecessor to TF 121,
said the task forces comprised several 12-man units that had targeted missions,
such as searching for Hussein loyalists and terrorists. TF 20, which had about
1,000 soldiers, incorporated Army Rangers, members of Delta Force and Special
Forces units working with CIA agents. They planned their missions nearly
autonomously and answered either directly to the theater commander or to
officials in Washington, the source said, speaking on the condition of anonymity
because the missions were classified.

Task Force 121 added Navy SEAL units but was slightly smaller overall.
Herrington wrote that an officer in charge of interrogations at a high-value
target detention facility in Baghdad told him that prisoners taken by TF 121
showed signs of having been beaten.

Herrington asked the officer whether he had alerted his superiors to the
problem, and the officer replied: "Everyone knows about it."

While several investigations have been completed into the Abu Ghraib scandal and
U.S. interrogation practices in Iraq, an official military inquiry into the
detention activities of Special Operations forces has not been released. That
probe, headed by Brig. Gen. Richard P. Formica, was expected to be presented to
Congress earlier this year, but a Pentagon spokesman said it is ongoing.

Of the Herrington report, a Pentagon official said top generals in Iraq,
including Lt. Gen. Ricardo S. Sanchez, who at the time directed U.S. forces
there, reported the alleged abuses to officials at U.S. Central Command, which
oversees military activities in the Middle East. The official said TF 121 was
investigated, but he could not provide results.

"The Herrington report was taken very seriously," said the official, who spoke
on the condition of anonymity because the report has not been released.

The report also provided an early account of the practice of holding some
detainees -- sometimes called "ghost detainees" -- in secret and keeping them
from international humanitarian organizations. Herrington also wrote that agents
from other government agencies, which commonly refers to the CIA, regularly kept
ghost detainees by not logging their arrests.

Nearly six months later, Defense Department officials were forced to acknowledge
the practice because of the Abu Ghraib scandal. Soldiers who worked at the
prison said several detainees were hidden, and a prison logbook showed a
consistent stream of them from October 2003 to January 2004.

Herrington, who is considered an expert in human intelligence operations, ran
programs during Operation Desert Storm and in Panama and was part of the
controversial Phoenix Program, which targeted the roots of the Viet Cong
insurgency in Vietnam. He compiled his report after a week-long trip to Iraq
beginning Dec. 2, 2003, joined by a military intelligence officer and an Army
intelligence official from the Pentagon.

His ultimate conclusion was that much needed to be done to increase intelligence
capabilities, which he called below average, though he praised Fast's
determination.

"Given the fact that the United States and its coalition partners paid and
continue to pay a steep price in losses and national treasure to lay our hands
on these detainees, it is disappointing that the opportunity to thoroughly and
professionally exploit this source pool has not been maximized, in spite of your
best efforts and those of several hundred MI [military intelligence] soldiers,"
Herrington wrote to Fast in the Dec. 12 report. "Even one year ago, we would
have salivated at the prospect of being able to talk to people like the hundreds
who are now in our custody. Now that we have them, we have failed to devote the
planning and resources to optimize this mission."

Herrington, contacted by telephone, declined to discuss the report. A Pentagon
official said Fast personally requested Herrington's visit, and the report
indicates Fast was interested in improving U.S. intelligence and detention
operations, saying that "in spite of efforts to upgrade this effort, [she]
remained concerned about its state of health."

In the 13-page report, Herrington wrote that overcrowding and a lack of
resources caused the Army to use "primitive prison accommodations" for even the
most important targets. He said that led to the loss of considerable significant
intelligence and might have fueled the Iraqi insurgency.

He added that some detainees were arrested because targets were not at home when
homes were raided. A family member was instead captured and then released when
the target turned himself in -- a practice that, Herrington wrote, "has a
'hostage' feel to it."

A separate report by the Center for Army Lessons Learned, issued this past May
and intended for internal use, gave the sense that some Army tactics served to
"alienate common Iraqis who initially supported the coalition."

The 134-page CALL report singled out the practice of detaining female family
members to force wanted Iraqi males to turn themselves in, similar to
Herrington's findings.

"It is a practice in some U.S. units to detain family members of anti-coalition
suspects in an effort to induce the suspects to turn themselves in, in exchange
for the release of their family members," the report stated. The CALL report
also was critical of the delays in notifying family members about the status of
detainees held in U.S. custody, reminding family members of Hussein's tactics.

Herrington's report also noted that sweeps pulled in hundreds and even thousands
of detainees who had no connection to the war. Abu Ghraib, for example, swelled
to several thousand more detainees than it could handle. Herrington wrote that
aggressive and indiscriminate tactics by the 4th Infantry Division, rounding up
random scores of detainees and "dumping them at the door," was a glaring
example.

As the United States recently has picked up its counterinsurgency efforts, the
number of new detainees has again surged.

"Between the losers and dead end elements from the former regime and foreign
fighters, there are enough people in Iraq who already don't like us," Herrington
wrote. "Adding to these numbers by conducting sweep operations . . . is
counterproductive to the Coalition's efforts to win the cooperation of the Iraqi
citizenry. Similarly, mistreatment of captives as has been reported to me and
our team is unacceptable, and bound to be known by the population."

[ Staff writer Thomas E. Ricks contributed to this report. ]

* * *


November 11, 2004

BUSH PICKS A LOYALIST TO REPLACE A POLITICIAN
Counsel Gonzales Often Clashed With Ashcroft

By Dana Milbank, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A41007-2004Nov10.html

In background and temperament, Alberto R. Gonzales, President Bush's choice to
be attorney general, could hardly be more different from John D. Ashcroft.

The current officeholder, from Missouri, is the son and grandson of Assemblies
of God ministers; Gonzales, 49, was reared in a Roman Catholic Mexican American
family in Texas by parents who had been migrant farmworkers.

Ashcroft is hard-charging and the ideological darling of religious
conservatives; Gonzales, called "mi abogado" ("my lawyer") by Bush, is soft-
spoken, nondogmatic and viewed with suspicion by conservatives.

Ashcroft was a Missouri governor and senator and even attempted a run for the
presidency in his three decades in politics; Gonzales was a Houston business
lawyer with no political career before he was recruited in 1994 by Bush's
gubernatorial campaign.

As White House counsel in Bush's first term, Gonzales was known less for
ideology than for loyalty to Bush. Indeed, he could be politically tone-deaf in
his zeal to protect the authority of his boss in squabbles with Congress. "The
Judge," as colleagues called him because of his brief tenure on the Texas
Supreme Court, often sparred with Ashcroft and the other movement conservatives
at the Justice Department and played the role of arbiter during the first term,
listening to arguments of more dogmatic lawyers in the White House and the
Justice Department and seeking consensus.

Gonzales was born in San Antonio and grew up in Houston. He lived with seven
siblings in a home without running water and other modern amenities for much of
his youth. After his parents met as migrant workers, his father, who was an
alcoholic, worked in construction while his mother stayed home with the
children.

Gonzales was a football and baseball player and honor student in high school but
enlisted in the Air Force. He eventually attended the Air Force Academy in
Colorado Springs, then transferred to Rice University and later went to Harvard
Law School. He was the only one in his family to go to college, and the only one
to leave Houston.

He told The Washington Post in 2001 that his success, contrasted with that of
his siblings, "makes you painfully aware of the inequities in life" and "makes
you wonder why a person who has grown up in exactly the same environment is able
to succeed."

Conservatives have long been wary of Gonzales. The journal Human Events accused
him of sounding "like Mario Cuomo." The National Review said a joke among GOP
aides in the Senate was "Gonzales is Spanish for Souter," a reference to David
H. Souter, the Supreme Court justice nominated by President George H.W. Bush who
joined the court's liberal wing.

The distrust dates from Gonzales's days on the Texas Supreme Court in 2000, when
he joined a majority of the judges in upholding a pregnant teenager's right to
seek an abortion without notifying her parents. Taking aim at two conservative
dissenters in the case, Gonzales wrote that they were engaged in "unconscionable
judicial activism."

Those words came back to haunt Bush when he appointed one of the two dissenters,
Priscilla R. Owen, to a federal appeals court -- and Senate Democrats threw
Gonzales's words back in the White House's face. The Owen nomination failed.

Gonzales also has squabbled with conservatives in the administration over
affirmative action. When the use of race in admissions at the University of
Michigan came before the Supreme Court in 2003, Gonzales argued fiercely that
the administration should not take a hard-line position in favor of the white
students who were claiming that the school had made them victims of "reverse
discrimination."

This put him at odds with administration conservatives led by Ashcroft and then-
Solicitor General Theodore B. Olson, but Gonzales ultimately prevailed in the
sense that the administration ended up pressing a narrow argument that objected
only to the way in which Michigan had pursued diversity, not to the diversity
rationale for affirmative action itself. The court sided with the Michigan law
school in a 5 to 4 ruling.

Behind the scenes, Gonzales clashed frequently with Ashcroft's Justice
Department. He felt blindsided when Ashcroft, early in the administration,
announced that the department would embrace, for the first time ever, a view of
the Second Amendment that regards gun possession as an individual right on a par
with freedom of speech or religion.

Gonzales and Ashcroft were in an ongoing wrangle over control of the pivotal
Office of Legal Counsel, the Justice Department's in-house adviser on
constitutional matters. The OLC became particularly important after Sept. 11,
2001, when the administration was pushing for new legal authority to pursue the
war on terrorism. Gonzales's most public controversy was his role in
administration memos regarding the treatment of prisoners taken in the war on
terrorism.

But many of the controversies on his watch were less his doing than those of
underlings and other young conservative lawyers in the administration.

"I don't think he's ever really had a chance to express his views on major
policy issues," said Edwin Meese III, the Reagan administration attorney general
now with the Heritage Foundation. "The job of the White House counsel is to be
an attorney." If he goes from being the president's abogado to the country's,
all signs are that Gonzales would remain faithful -- not necessarily to
conservative ideology, but to Bush.

[ Staff writer Charles Lane contributed to this report. ]

* * *


November 9, 2004; Page A01

JUDGE SAYS DETAINEES' TRIALS ARE UNLAWFUL

By Carol D. Leonnig and John Mintz, Washington Post Staff Writers

http://www.washingtonpost.com/wp-dyn/articles/A34519-2004Nov8.html

The special trials established to determine the guilt or innocence of prisoners
at the U.S. military prison in Cuba are unlawful and cannot continue in their
current form, a federal judge ruled yesterday.

In a setback for the Bush administration, U.S. District Judge James Robertson
found that detainees at the Navy base at Guantanamo Bay, Cuba, may be prisoners
of war under the Geneva Conventions and therefore entitled to the protections of
international and military law -- which the government has declined to grant
them.

The decision came in a lawsuit filed by the first alleged al Qaeda member facing
trial before what the government calls "military commissions." The decision
upends -- for now -- the administration's strategy for prosecuting hundreds of
alleged al Qaeda and Taliban detainees accused of terrorist crimes.

Human rights advocates, foreign governments and the detainees' attorneys have
contended that the rules governing military commissions are unfairly stacked
against the defendants. But Robertson's ruling is the first by a federal judge
to assert that the commissions, which took nearly two years to get underway, are
invalid.

The Bush administration denounced the ruling as wrongly giving special rights to
terrorists and announced that it will ask a higher court for an emergency stay
and reversal of Robertson's decision. Military officers at Guantanamo
immediately halted commission proceedings in light of the ruling.

"We vigorously disagree. . . . The judge has put terrorism on the same legal
footing as legitimate methods of waging war," said Justice Department spokesman
Mark Corallo. "The Constitution entrusts to the president the responsibility to
safeguard the nation's security. The Department of Justice will continue to
defend the president's ability and authority under the Constitution to fulfill
that duty."

Robertson ruled that the military commissions, which Bush authorized the
Pentagon to revive after the Sept. 11, 2001, attacks, are neither lawful nor
proper. Under commission rules, the government could, for example, exclude
people accused of terrorist acts from some commission sessions and deny them
access to evidence, which the judge said would violate basic military law.

Robertson said the government should have held special hearings for detainees to
determine whether they qualified for prisoner-of-war protections when they were
captured, as required by the Geneva Conventions. Instead, the administration
declared the captives "enemy combatants" and decided to afford them some of the
protections spelled out by the Geneva accords.

Robertson ordered that until the government provides the hearing, it can
prosecute the detainees only in courts-martial, under long-established military
law.

Robertson issued his decision in the case of Salim Ahmed Hamdan, a detainee
captured in Afghanistan in late 2001 and accused of being a member of al Qaeda.
Robertson's opinion is expected to set the standard for treatment of other
detainees before military commissions. So far, four Guantanamo Bay detainees
have been ordered to stand trial.

The unusual coalition of defense lawyers and conservative military law experts
who banded together to challenge the commissions hailed the decision as a major
victory in efforts to level the playing field for the detainees, some of whom
have been held for nearly three years.

"We are thrilled by this ruling," said Michael Ratner, president of the Center
for Constitutional Rights, a New York-based group that represents the families
of some Guantanamo Bay prisoners. "Military commissions were a bad idea and an
embarrassment. The refusal of the Bush administration to apply the Geneva
Conventions was a legal and moral outrage."

Kevin Barry, a retired Coast Guard judge who is critical of the Pentagon's legal
justifications for the Guantanamo Bay detentions, called Robertson's ruling a
"remarkable" decision that "will give heart to all who think the rule of law
should apply in the Afghanistan conflict." Barry said the war on terrorism is
the first U.S. war since the Geneva Conventions' adoption in 1949 in which the
government has not accorded POW status to enemy fighters.

"Even the Viet Cong, who were farmers by day and fighters at night, were
accorded that status," he said. "The judge got these issues right."

The government has been under pressure since June to revise other facets of its
strategy for handling the cases of the more than 500 Guantanamo Bay detainees.
In a landmark ruling that month, the Supreme Court rejected the government's
argument that the president may indefinitely hold and interrogate alleged al
Qaeda and Taliban members captured on the battlefield without filing charges or
providing them lawyers.

The court ruled that the detainees were entitled to hear the charges against
them and challenge their imprisonment in U.S. federal courts. Nearly 70 have
filed such challenges, called habeas corpus petitions, in federal courts here.

Since the Supreme Court ruling, the government has begun holding "combatant
status review tribunals" at Guantanamo Bay for each detainee to determine
whether he should continue to be held. The detainees do not have legal
representation at those hearings. So far 317 hearings have been held and 131
cases have been adjudicated, all but one in favor of continued detention.

Douglass Cassel, director of the Center for International Human Rights at the
Northwestern University School of Law, said he hopes the Bush administration
reconsiders its overall strategy in light of the Supreme Court's June decision
and Robertson's ruling yesterday.

"I hope the government sits back and says, 'This is a chance to regain the high
ground in the court of public opinion,' " he said. "This decision is of enormous
importance to the perceived commitment of the United States to the rule of law."

But Douglas W. Kmiec, a Pepperdine University law professor, called Robertson
"sadly mistaken" for intervening in the case at this point. He said the judge
should have postponed any ruling until the military commissions had completed
their work.

Eugene R. Fidell, a Washington lawyer specializing in military justice, said it
will be difficult for military commissions and status review panels to decide
fairly whether a detainee is a prisoner of war, after top executive branch and
military leaders have declared all of them enemy combatants, not POWs.

"That's where they got into trouble," Fidell said. "The people driving the train
were not people familiar with the military justice system."

* * *


October 22, 2004; Page A24

A VOLUNTARY DEAL
Letter to the Editor

http://www.washingtonpost.com/wp-dyn/articles/A53007-2004Oct21.html

Contrary to what Maura Dundon asserted [letters, Oct. 18], Yaser Esam Hamdi's
renunciation of his U.S. citizenship in exchange for his release from indefinite
detention as an illegal combatant was both knowing and voluntary by
constitutional standards.

The Supreme Court explained in North Carolina v. Alford (1970) that a plea
bargain that "would not have been entered except for the defendant's desire to
[avoid a possible punishment is] not for that reason compelled within the
meaning of the Fifth Amendment." Moreover, as Mr. Hamdi himself amplified in a
New York Times interview, he believed he was a Saudi citizen at age 18 and
himself first broached the idea of renouncing any claim to U.S. citizenship to
avoid imprisonment.

BRUCE FEIN
Washington, D.C.

[ The writer was an associate deputy attorney general during the Reagan
administration ]

* * *


October 20, 2004; Page A26

MR. KERRY ON PRISONERS
Editorial

http://www.washingtonpost.com/wp-dyn/articles/A34176-2004Oct14.html

LAST WEEK we questioned whether there was a difference between President Bush
and Sen. John F. Kerry on the crucial question of U.S. policy for handling
prisoners captured abroad. Mr. Bush continues to take the position that the
Geneva Conventions should not be applied to many detainees, including anyone
captured in Afghanistan, and that harsh interrogation techniques foresworn by
the U.S. military for decades should be used on some of these prisoners. Mr.
Kerry critiqued the shocking abuses that have resulted from that decision, at
Abu Ghraib prison and elsewhere, but not the policy itself. Now Mr. Kerry has
taken a stand. In a statement drawn up in response to our questions, the
Democratic nominee declares that "a Kerry administration will apply the Geneva
Conventions to all battlefield combatants captured in the war on terror."

The result is an important new distinction between the presidential candidates.
In our view, Mr. Bush's decision in February 2002 to set aside the Geneva
Conventions was one of the most damaging mistakes of his presidency. It led
directly to the imprisonment of hundreds of foreigners at Guantanamo Bay without
any legal process, until the Supreme Court intervened earlier this year. Mr.
Bush's decision also led to the sanction by senior administration officials,
including Defense Secretary Donald H. Rumsfeld, of harsh interrogation
techniques that are illegal under the Geneva Conventions. As several official
investigations have found, these techniques soon "migrated" from Guantanamo to
U.S. field units in Iraq and Afghanistan, leading to hundreds of cases of
torture, homicide and other abuse, and a shameful stain on the international
reputation of the United States.

Mr. Bush and Mr. Rumsfeld still refuse to acknowledge the terrible consequences
of the decisions they made, much less correct their mistakes. In a letter
published on this page today, Mr. Rumsfeld's spokesman, Lawrence Di Rita, once
again claims that no policy or decision made by a senior official had anything
to do with the abuses at Abu Ghraib. To bolster his case, he selectively cites
official investigations that have, in fact, proven the opposite. For example,
Gen. Paul J. Kern, whom Mr. Di Rita quotes, testified to Congress last month
that techniques approved by Mr. Rumsfeld in December 2002 -- including nudity,
painful stress positions and the use of dogs to incite fear -- "found their way
into documentation that we found in Abu Ghraib." The Schlesinger commission,
also cited by Mr. Di Rita, determined that Iraq commander Lt. Gen. Ricardo S.
Sanchez approved similar practices, "using reasoning from the President's
memorandum" of 2002. It also concluded, "There is both institutional and
personal responsibility at higher levels" for the crimes at Abu Ghraib.

Without any change in policy, there is every reason to expect that a second Bush
term would produce more scandals like Abu Ghraib. As the history of the past
three years demonstrates, such abuses result when the rule of law is set aside.
That's why we welcome Mr. Kerry's pledge to resume full U.S. compliance with the
Geneva Conventions. Such compliance does not prevent a U.S. president from
holding enemy combatants indefinitely or from denying them prisoner-of-war
status. It does not prevent American forces from conducting interrogations. But
it does ensure that the United States will operate according to the same
international standards that it wishes to see applied to its own service members
and citizens. "We will abide by a principle long enshrined in our military
manuals," says the Kerry statement: "That America does not treat prisoners in
ways we would consider immoral and illegal if perpetrated by the enemy on
Americans." That strikes us as a policy that is both more in keeping with
American standards, and more likely to be successful in practice, than that
pursued with such disastrous results by Mr. Bush.

* * *


October 20, 2004; Page A26

WHERE ABU GHRAIB ABUSES BEGAN

Letter to the Editor

http://www.washingtonpost.com/wp-dyn/articles/A46569-2004Oct19.html

The Oct. 15 editorial "Remember Abu Ghraib?" repeated an incorrect assertion
that "policy decisions about interrogations . . . led directly to the abuse of
prisoners in Afghanistan and Iraq." Several investigations into the situation at
Abu Ghraib found that this was not the case.

Former defense secretary James R. Schlesinger led an independent investigation
and stated on Aug. 24 that "there was no policy of abuse" that led to the
activities at Abu Ghraib.

Another panel member, former defense secretary Harold Brown, noted that same day
that Defense Secretary Donald H. Rumsfeld "was extremely careful about the issue
of treatment of prisoners during interrogation."

A third panelist, retired Air Force Gen. Charles A. Horner, added, "If there's
something to be commended on this whole operation, it's the way the secretary of
defense has approached the investigations."

Additionally, the Army's investigation into the role of intelligence activities
at Abu Ghraib, led by Gen. Paul J. Kern, concluded: "No policy, directive or
doctrine directly or indirectly caused violent or sexual abuse. . . . Soldiers
knew they were violating the approved techniques and procedures."

The record shows that the Defense Department acted promptly and appropriately in
investigating allegations of abuses at Abu Ghraib and elsewhere. The U.S.
military -- not journalists -- first publicized the facts of the abuses at Abu
Ghraib in January. It was the military's subsequent investigations that
unearthed almost all of the disturbing details and photographs used by critics
to castigate this department.

Investigations continue, and more information will be disclosed, but thus far
these investigations have determined that no responsible official of the Defense
Department approved any program that could conceivably have been intended to
result in such abuses as seen at Abu Ghraib.

Lawrence Di Rita
Pentagon Spokesman
Washington D.C.

* * *


October 15, 2004; Page A22

REMEMBER ABU GHRAIB?
Editorial

http://www.washingtonpost.com/wp-dyn/articles/A34176-2004Oct14.html

IN THE PAST few weeks the presidential candidates have debated almost every
aspect of the war on terrorism save one: the handling of detainees in Iraq and
Afghanistan. That is a remarkable omission, if only because the shocking
photographs of abuses at Abu Ghraib prison in Iraq, and reports of hundreds of
other cases of torture and homicide in Iraq and Afghanistan, have done grave
damage to the United States' ability to combat extremism in the Muslim world.
There is, too, something important to debate: whether the United States will
return to adhering to the Geneva Conventions and other international rules
governing the treatment of foreign prisoners, or whether the war on terrorism
justifies the violation of international law in certain cases. President Bush
clearly intends to preserve the current, exceptional policies he adopted after
Sept. 11, 2001, despite the abuses to which they led. Sen. John F. Kerry has
criticized the abuses but hasn't made clear whether he would change the
policies.

Mr. Bush is obviously eager to avoid the subject of prisoner detentions. Maybe
that's because his public stance on what happened at Abu Ghraib, and what caused
it, is entirely at odds with the facts brought out by official investigations.
When he last spoke of the matter, months ago, the president maintained that the
abuse was the responsibility of a few low-ranking soldiers working the night
shift. He has not acknowledged that scores of soldiers have now been implicated
for crimes including homicide, or that a Pentagon-appointed panel has found
responsibility at senior levels of the Pentagon, the Justice Department and the
White House. Nor has he held anyone in his administration accountable. Defense
Secretary Donald H. Rumsfeld, who made policy decisions about interrogations
that led directly to the abuse of prisoners in Afghanistan and Iraq, said he's
not aware that any abuses occurred during questionings -- even though an
official report by his own department confirmed that very point.

The administration's guilty silence has been abetted in the past month by
Pentagon and congressional investigators. Several Republican senators have said
that there are major outstanding issues of both fact and accountability: for
example, the role of the CIA in introducing abusive interrogation techniques
into Iraq and illegally hiding prisoners from the International Red Cross. But
no congressional hearings have been held on the issue in more than a month. At
the last hearings, on Sept. 9, officials said a major Pentagon investigation
covering a crucial subject -- how abusive and illegal interrogation policies
spread through Afghanistan and Iraq -- was mostly completed and would be
released by the end of September. Conveniently for the president's reelection
campaign, it has yet to appear.

The record of prisoner abuse stands as a principal count in any indictment of
the Bush administration's handling of Iraq and the war on terrorism. Yet Mr.
Kerry, who has devoted much of his campaign in the past month to criticizing how
Mr. Bush has handled the war, has barely mentioned Abu Ghraib. A couple of
months ago the Democrat said he felt "revulsion" over the prisoner abuses (Mr.
Bush has said the same) and called for Mr. Rumsfeld's resignation. What he
hasn't said is whether he accepts or rejects the policy decisions that led to it
-- most importantly, Mr. Bush's contention that some detainees captured abroad
should not be treated according to the standards of the Geneva Conventions but
instead can and should be subjected to harsh treatments long rejected by the
U.S. military. Whether that policy is to be perpetuated in spite of the harm it
has caused ought to be something about which both Mr. Kerry and Mr. Bush speak
clearly; their answers ought to help inform voters' decisions.

* * *


October 13, 2004; Page A04

FATHER DENOUNCES HAMDI'S IMPRISONMENT
Son Posed No Threat to U.S., He Says

By Jerry Markon, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A28108-2004Oct12.html

The father of Yaser Esam Hamdi yesterday criticized the U.S. government for
holding his son in solitary confinement as an "enemy combatant" for nearly three
years but praised the Supreme Court decision that led to Hamdi's release Monday.

"It was totally unfair that he was there for so long and in a prison cell by
himself," Esam Hamdi said in a telephone interview from the family home in Saudi
Arabia, which was crowded with friends and well-wishers. He said his son never
posed a threat to the United States and went to Afghanistan, where he was
captured in 2001 with a Taliban military unit, only to do relief work.

But Esam Hamdi thanked the Supreme Court for the June ruling that allowed his
son to challenge his detention. "That tells me the American justice system is a
fair system, and I really appreciate the Supreme Court's fairness in Yaser's
case," said the elder Hamdi, who also thanked his son's attorneys and "the
American people, because we know that many people thought Yaser was treated
unfairly."

The U.S. government freed Yaser Esam Hamdi, 24, and flew him home to his family
Monday, ending a three-year case that became one of the prime legal
battlegrounds in the war on terrorism. The release followed intensive
negotiations between Hamdi's attorneys and the government and a two-week delay
caused by concerns the Saudi government raised about the deal.

A federal judge in Norfolk officially dismissed the case against Hamdi on
Monday, a decision that appeared on the court docket yesterday. U.S. District
Judge Robert G. Doumar had ordered the government to produce Hamdi at a hearing
yesterday if he had not been released.

Hamdi initially was held at Guantanamo Bay along with other detainees until
authorities learned that he was born in Louisiana, where his father had been
working as a petroleum engineer, and was a U.S. citizen. After that, he was held
in military brigs.

Government attorneys justified Hamdi's detention with a Defense Department
declaration that he had joined a Taliban military unit, received training and
acknowledged loyalty to the Taliban. Yesterday, in response to the comments by
Hamdi's father, a Pentagon spokesman said Hamdi was detained "because of the
threat he posed to the United States and the intelligence value he possessed due
to his involvement with a Taliban military unit."

The spokesman, who would not give his name, said Hamdi was released because he
no longer was a threat.

But Esam Hamdi said his son "has nothing at all against America and absolutely
was never a threat to America." He said Yaser Esam Hamdi was in Afghanistan for
less than two months before being captured and was merely "in the wrong place at
the wrong time." He would not elaborate.

The elder Hamdi declined to make his son available for an interview but said he
is "doing fine and feeling great that he is home. We were praying to Allah to
get him home, and we always knew this day would come."

While Esam Hamdi said the family is looking forward, he criticized the federal
appeals court that sided with the government in the Hamdi case. The Richmond-
based U.S. Court of Appeals for the 4th Circuit had ruled that the military --
not the courts -- had sole authority to wage war and that courts should defer to
battlefield judgments.

But in June, the Supreme Court ruled that although the government had the
authority to detain U.S. citizens as enemy combatants, Hamdi had the right to
contest his detention in court.

"I don't think the 4th Circuit did a fair job," Hamdi's father said. "They were
not listening to the case."

* * *


October 12, 2004; Page A02

HAMDI RETURNED TO SAUDI ARABIA
U.S. Citizen's Detention as Enemy Combatant Sparked Fierce Debate

By Jerry Markon, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A23958-2004Oct11.html

Yaser Esam Hamdi arrived home in Saudi Arabia yesterday, bringing an end to a
philosophical and legal battle over his confinement that helped clarify the
government's power to fight the war on terrorism.

Hamdi, a U.S. citizen who was held by the military as an "enemy combatant" for
almost three years, landed in Saudi Arabia aboard a U.S. military aircraft early
yesterday morning, the government and Hamdi's lawyer said. He was met by U.S.
officials before being released to his family.

"He was happy, exuberant, like a 5-year-old kid who had just come down and
looked at the presents on Christmas Day," said Federal Public Defender Frank W.
Dunham Jr., who represented Hamdi and spoke to him by cell phone on the tarmac
at an airport in Dammam, Saudi Arabia. Dunham said Hamdi took off from
Charleston, S.C., at 1 p.m. Sunday and landed at 6 a.m. yesterday.

Hamdi was in seclusion yesterday, his attorney said, and nobody answered the
phone at his family's home despite repeated calls. The State Department said in
a statement that the U.S. government "appreciates the cooperation of the Kingdom
of Saudi Arabia in facilitating this transfer."

The U.S. military captured Hamdi, 24, with pro-Taliban forces in Afghanistan in
2001. He was sent to Guantanamo Bay along with other detainees until authorities
learned that he was born in Louisiana. He had been held in military brigs ever
since.

Hamdi's detention in solitary confinement triggered a fierce battle that came to
symbolize the larger debate over the government's anti-terror efforts, but
lawyers were left yesterday to debate the legacy of his case. Prosecutors
initially convinced a federal appeals court in Richmond that the military -- and
not the courts -- had the sole authority to wage war and that courts should
defer to battlefield judgments.

In June, the Supreme Court ruled that while the government had the authority to
detain U.S. citizens as enemy combatants, Hamdi had the right to contest his
detention in court. But the decision never spelled out how that challenge would
work in practice -- whether Hamdi would have the same rights as other
defendants, for example.

"It's clear there is authority to detain people, but otherwise the legal legacy
of this case is incomplete," said Carl Tobias, a law professor at the University
of Richmond.

Hamdi's release also means that the government never had to explain why he was
detained in the first place.

A Pentagon statement said Hamdi was released because "considerations of United
States national security did not require his continued detention." The statement
added that no further details were available "because of operational and
security considerations."

Government attorneys justified Hamdi's detention with a Defense Department
declaration that he had joined a Taliban military unit, received training and
acknowledged loyalty to the Taliban. Recently, the government said Hamdi would
be freed because he no longer poses a threat.

Now, Hamdi intends to finish a degree in marketing he started at a university in
Saudi Arabia and enjoy his time with his family. "He just wants to move on with
his life," Dunham said.

The release came after a two-week delay that Dunham said was caused by questions
the Saudis had raised about the agreement to free him. The agreement subjects
Hamdi to a number of conditions, including travel restrictions and requirements
that he renounce terrorism and his U.S. citizenship.

"The Saudis were wondering why there were all these restrictions on someone who
was never charged with anything," said Dunham, who added that the government's
abrupt decision to free Hamdi showed that prosecutors "didn't have a case" that
would justify his status as an enemy combatant.

It was unclear yesterday what was done to break the impasse. The Saudi Embassy
in Washington was closed, and a Justice Department spokesman did not return
telephone calls.

But sources familiar with the negotiations said a federal judge helped speed the
process by secretly ordering the government to bring Hamdi to a hearing today in
Norfolk. U.S. District Judge Robert G. Doumar, who had ordered previous court
hearings for Hamdi, canceled today's proceedings when he learned that Hamdi had
arrived in Saudi Arabia, the sources said.

Dunham said he expects the judge to issue an order shortly that dismisses the
case.

* * *


October 11, 2004; Page A21

Players: David Addington
IN CHENEY'S SHADOWS, COUNSEL PUSHES THE CONSERVATIVE CAUSE

By Dana Milbank, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A22665-2004Oct10.html

Since he took office, Vice President Cheney has led the Bush administration's
effort to increase the power of the presidency. "I have repeatedly seen an
erosion of the powers and the ability of the president of the United States to
do his job," he said after a year in office, calling it "wrong" for past
presidents to yield to congressional demands. "We are weaker today as an
institution because of the unwise compromises that have been made over the last
30 to 35 years."

Cheney has tried to increase executive power with a series of bold actions --
some so audacious that even conservatives on the Supreme Court sympathetic to
Cheney's view have rejected them as overreaching. The vice president's point man
in this is longtime aide David Addington, who serves as Cheney's top lawyer.

Where there has been controversy over the past four years, there has often been
Addington. He was a principal author of the White House memo justifying torture
of terrorism suspects. He was a prime advocate of arguments supporting the
holding of terrorism suspects without access to courts.

Addington also led the fight with Congress and environmentalists over access to
information about corporations that advised the White House on energy policy. He
was instrumental in the series of fights with the Sept. 11 commission and its
requests for information. And he was a main backer of the nomination of Pentagon
lawyer William J. Haynes II for a seat on the U.S. Court of Appeals for the 4th
Circuit. Haynes's confirmation has been a source of huge friction on Capitol
Hill.

Colleagues say Addington stands out for his devotion to secrecy in an
administration noted for its confidentiality. He declined to be interviewed or
photographed for this article, and he did not respond to a list of specific
points made in the article.

Addington, 47, was a lawyer and GOP staffer on congressional committees on
intelligence and the Iran-contra matter, before Cheney chose him to serve as
general counsel at the Pentagon when Cheney was defense secretary.

Even in a White House known for its dedication to conservative philosophy,
Addington is known as an ideologue, an adherent of an obscure philosophy called
the unitary executive theory that favors an extraordinarily powerful president.

The unitary executive notion can be found in the torture memo. "In light of the
president's complete authority over the conduct of war, without a clear
statement otherwise, criminal statutes are not read as infringing on the
president's ultimate authority in these areas," the memo said. Prohibitions on
torture "must be construed as inapplicable to interrogations undertaken pursuant
to his commander-in-chief authority. . . . Congress may no more regulate the
president's ability to detain and interrogate enemy combatants than it may
regulate his ability to direct troop movements on the battlefield." The same
would go for "federal officials acting pursuant to the president's
constitutional authority."

"The Framers understood the [commander in chief] clause as investing the
president with the fullest range of power," the memo said, including "the
conduct of warfare and the defense of the nation unless expressly assigned in
the constitution to Congress." That "sweeping grant" of power, it continued, is
given because "national security decisions require the unity in purpose and
energy in action that characterize the presidency rather than Congress."

On the job, colleagues describe Addington as hard-edged and a bureaucratic
infighter who frequently clashes with others, particularly the National Security
Council's top lawyer, John Bellinger. Officials say disputes between Addington
and Jack Goldsmith, head of the Justice Department's Office of Legal Counsel,
led Goldsmith to resign after eight months in the job; Addington had sought to
persuade OLC to take a more permissive line on torture.

Still, even foes admire Addington's work ethic and frugality; he takes Metro
from his home in Alexandria instead of using his White House parking space.

Addington's influence -- like Cheney's overall -- extends throughout the
government in his bid to expand executive power. He goes through every page of
the federal budget in search of riders that could restrict executive authority.
He meets daily with White House counsel Alberto R. Gonzales and often raises
objections to requests for information from Congress or the public, officials
say. He also routinely works to defeat proposals from the State Department,
where the pervasive internationalist philosophy is at odds with Cheney's
neoconservatism.

Occasionally, others in the administration have sought to keep Addington out of
the loop to avoid his inevitable objections. When the White House agreed, under
pressure from Congress, to appoint a commission to investigate the absence of
weapons of mass destruction in Iraq, Cheney's office did not know about it until
a reporter from The Washington Post called to inquire.

There has been something of a backlash against Addington's philosophy within the
administration, where some others believe his aggressive legal arguments have
caused the courts to become more suspicious of executive authority. That was a
common complaint when the Supreme Court in June dealt the administration major
defeats in the Hamdi and Rasul cases regarding terrorism detainees.

The court ruled that U.S. citizens held as "enemy combatants" are entitled to
contest the government's case in court. It also ruled that al Qaeda and Taliban
prisoners at the U.S. naval base in Guantanamo Bay, Cuba, could ask to be set
free by a U.S. judge. Justice Sandra Day O'Connor wrote: "A state of war is not
a blank check for the President when it comes to the rights of the nation's
citizens."

"Addington adds to the problems the president has with the courts," said Bruce
Fein, who was an official in the Reagan Justice Department and worked with
Addington during the Iran-contra probe. Fein said Addington is the "intellectual
brainchild" of overreaching legal assertions that "have resulted in actually
weakening the presidency because of intransigence."

Fein said Cheney and Addington, while arguing that they are reclaiming executive
authority, are actually seeking to push it to new levels. Many of the restraints
on executive authority -- the War Powers act, anti-impoundment legislation, the
legislative veto and the independent counsel statute -- have already disappeared
or become insignificant.

"They're in a time warp," Fein said. "If you look at the facts, presidential
powers have never been higher."

In part, Cheney and Addington may be reflecting the reality from when they
served in Congress, Cheney as a Republican leader and Addington as a staff
member. During the Iran-contra hearings, Addington was heavily involved in
arguing that Congress was improperly tying the hands of the president by
preventing him from helping Nicaragua's contras.

Cheney and Addington became close in 1984, when Addington was a lawyer on the
House intelligence committee, one of Cheney's panels. After their time together
at the Pentagon, where Addington was known as Cheney's "gatekeeper," Addington
became president of a Cheney political action committee, Alliance for American
Leadership, that helped fund a 1996 presidential exploration bid for Cheney.

* Sidebar:

  In Profile

  DAVID ADDINGTON

  Title: Counsel to Vice President Cheney.

  Education:

    Bachelor's degree, Georgetown University School of Foreign Service;
    law degree, Duke University School of Law.

  Age: 47.

  Family: Wife; three children.

  Career highlights:

    Senior vice president and general counsel, American Trucking Associations;
    partner, Holland & Knight; counsel, Baker, Donelson, Bearman & Caldwell;
    president, Alliance for American Leadership;
    general counsel, Defense Department, 1992-93;
    special assistant to the secretary of defense;
    special assistant and then deputy assistant to President Ronald Reagan for
    legislative affairs;
    counsel, House committees on intelligence and foreign affairs, 1984-87;
    assistant general counsel, CIA, 1981-84.

* * *


September 16, 2004; Page A03

PRESIDING OFFICER AT GUANTANAMO FACES QUESTIONS

By John Mintz, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A24538-2004Sep15.html

The chief Pentagon prosecutor in the military trials of alleged al Qaeda
fighters at Guantanamo Bay has requested that the presiding officer in the cases
"closely evaluate" his impartiality and consider resigning, according to a
document filed in the tribunal proceeding.

The prosecutor, Army Col. Robert L. Swann, suggested in the document filed Sept.
7 that in effect he accepted some arguments put forward by military defense
lawyers last month that the presiding officer in the four cases, Army Col. Peter
E. Brownback III, should consider stepping down.

In hearings last month at the U.S. Navy base at Guantanamo Bay, attorneys for
the detainees argued that Brownback should quit because he is close friends with
retired Army Maj. Gen. John D. Altenburg Jr., who oversees the military trials
as the tribunals' "appointing authority."

The lawyers pointed out that Brownback and Altenburg have known each other since
1977, that Brownback's wife worked for Altenburg, and that Altenburg hosted
Brownback's retirement party in 1999.

At preliminary hearings for detainees last month, defense attorneys asserted
that the proceedings were stacked against the defendants and suggested that four
others on the panel that will decide their guilt or innocence were also
unqualified to serve. The lawyers' legal strategy, in part, is to get the
prosecutions moved to U.S. criminal courts.

Swann's filing shows that the prosecutors are joining the defense in expressing
unease about how the cases are proceeding, experts in military law said
yesterday.

"This is quite a remarkable development," said Eugene R. Fidell, president of
the nonprofit National Institute of Military Justice.

Attempts to reach Brownback through the Pentagon yesterday evening were
unsuccessful.

Swann's filing asks that Brownback "closely evaluate his own suitability to
serve as the presiding officer . . . with particular attention focused on
whether his impartiality might reasonably be questioned." The prosecutor also
asked Brownback to tell Altenburg "whether good cause exists for [Brownback's]
removal."

Swann also wrote that he does not "object to the defense challenges for good
cause" of three other military officers who are members of the military
commission. In last month's hearings, defense attorneys had asked that four
panelists be disqualified. One served in intelligence operations in the Middle
East, another sent detainees from Afghanistan to Guantanamo Bay, a third
commanded a Marine who perished in the World Trade Center attack, and a fourth
said he could not with certainty detail the Geneva Conventions

Navy Lt. Cmdr. Charles Swift, who represents Yemeni detainee Salim Ahmed Hamdan,
an alleged chauffeur for Osama bin Laden, said yesterday that "from the
beginning, the [Pentagon] prosecutors have said, wait till we get there [to the
tribunals] and you'll see how fair it all is. . . . In retrospect, they've
realized it wasn't fair."

At the hearings last month, prosecutors said they had no objections to Brownback
remaining in place.

Swift said the current arrangement is "incestuous" because Swann's supervisor is
retired Air Force Brig. Gen. Thomas L. Hemingway, who is also counsel to
Altenburg's office.

* * *


September 7, 2004; Page A23

BEYOND THE ROOTS OF ABU GHRAIB

By Steve Andreasen

http://www.washingtonpost.com/wp-dyn/articles/A1331-2004Sep6.html

This year, when details were disclosed on the Bush administration's legal review
of how the Geneva Conventions might apply to enemy combatants, White House
counsel Alberto R. Gonzales dismissed as "irrelevant" one of the most troubling
documents to come to light. It was an August 2002 memo prepared by the Justice
Department's Office of Legal Counsel (OLC) that sought to explain what
constituted illegal torture with regard to such prisoners under the Convention
Against Torture. The memo asserted that only acts of "an extreme nature" (i.e.,
"equivalent in intensity to the pain accompanying serious physical injury, such
as organ failure, impairment of bodily function, or even death") would
constitute criminal violations under domestic and international law, and that
acts that were merely cruel, inhuman or degrading might escape prosecution.

Late last month the Independent Panel to Review Department of Defense Detention
Operations, chaired by former defense secretary James Schlesinger, released its
report on allegations of prisoner abuse. The report states that an internal
Defense Department working group set up in January 2003 "relied heavily on the
OLC" in developing a list of 24 interrogation techniques that were subsequently
approved by Defense Secretary Donald Rumsfeld on April 16, 2003, for use against
al Qaeda and Taliban detainees at Guantanamo Bay, Cuba. According to the
Schlesinger report, these interrogation techniques later "migrated" to Iraq.

So, contrary to the assertions of the White House counsel, it would appear that
the Justice Department's memo, as well as the president's February 2002 memo
declaring that fighters detained in Afghanistan were not entitled as a matter of
law to the protections of the Geneva Conventions, were quite relevant to both
Guantanamo and Abu Ghraib (where Iraqi detainees were covered by Geneva
Conventions). At a minimum, they provided a legal backdrop for a series of
contradictory and confusing policy memos signed by Rumsfeld and the commander of
U.S. forces in Iraq that contributed to some of the abuse of detainees.

The Schlesinger report concludes that responsibility for that abuse goes beyond
a handful of individual soldiers on the "late shift" at Abu Ghraib, or the
failure of a few leaders to enforce proper discipline. "There is both
institutional and personal responsibility at higher levels," it says. But the
report stops short of asserting that the White House, Justice Department or CIA
(which interrogated detainees in Afghanistan, Guantanamo and Iraq) shared this
responsibility with the Pentagon's civilian and military leadership.

Perhaps the Senate Armed Services Committee can further resolve the issue of
responsibility when it holds its hearing this week to receive testimony on the
Schlesinger report, as well as on a report released in August by the Army
investigating detainee abuses at Abu Ghraib. Specifically:

* Did either the Schlesinger or Army investigations interview officials in the
White House or at the Justice Department regarding the February or August 2002
memos relating to the Geneva Conventions and the Convention Against Torture?

* What role did White House or Justice Department officials play in development
of the memos on interrogation techniques signed by Rumsfeld in December 2002,
January 2003 and April 2003?

* Were other agencies -- specifically the State Department, which usually takes
the lead in interpreting treaties such as the Geneva Conventions and the
Convention Against Torture, or the National Security Council -- included in the
process of developing approved interrogation techniques, and if not, why not?

* Did guidance from the White House and the Justice Department with respect to
the Geneva Conventions and the definition of torture in 2002 contribute to the
chain of events in the Department of Defense and military command in Iraq
leading to the abuses at Abu Ghraib?

Beyond the issue of responsibility for Abu Ghraib, the Senate should explore
with the Schlesinger panel whether the administration's policy -- that the war
on terrorism excuses the United States from some of the limitations stipulated
by the Geneva Conventions -- creates a dangerous double standard. Many believe
the administration's position undercuts a number of international accords
(beyond Geneva) reached under presidents Reagan and George H.W. Bush making
clear that certain acts -- torture, hostage-taking, attacks on domestic airlines
-- are so reprehensible that they are unjustified for any reason.

Senators have an opportunity to begin laying the foundation for a new policy,
one that reaffirms America's commitment to international agreements that remain
relevant in a dangerous world.

The writer was director of defense policy and arms control on the National
Security Council from 1993 to 2001. He teaches at the Hubert H. Humphrey
Institute of Public Affairs at the University of Minnesota.

* * *


September 1, 2004; Page A07

KERRY WOULD DROP DETAINEE COMMISSIONS
Edwards Calls Court-Martial a Model

By Glenn Kessler, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A50491-2004Aug31.html

Democratic vice presidential nominee John Edwards said yesterday that a John F.
Kerry administration would scrap the military commissions created by President
Bush to try suspected al Qaeda and Taliban fighters detained at Guantanamo Bay,
Cuba, and would instead establish a new system modeled on military courts-
martial.

"The Bush administration has ignored the model of the military courts-martial.
We will use that model as a basis for future trials of detainees," Edwards said
in a statement e-mailed in response to a question posed to him over the weekend.
"We will ensure that this process, from the quality of translators to the
treatment of evidence to the selection of judges, is handled with the
seriousness and competence that is essential for such sensitive national
security cases."

Although the Pentagon would still run the system, the Kerry campaign said that
using the template of a long-established process would put it on firmer legal
ground.

Kerry's approach would mark a break with procedures established by Bush nearly
three years ago to prosecute some of the hundreds of men seized after the U.S.
invasion of Afghanistan and held in the U.S. military prison at Guantanamo Bay.
The administration said the commissions, last used to try Nazi saboteurs nearly
60 years ago, would allow the government to use a blend of secret and public
hearings.

Critics have charged that the commission rules favor the government, and that,
among other things, they allow hearsay evidence and permit exculpatory evidence
to remain secret from defendants. Last week, when the commissions formally began
for four defendants, defense lawyers -- many of whom are military officers --
repeatedly challenged the legitimacy of the commissions, their rules and
procedures, and the fitness of the judges.

The lengthy detentions of suspects have also riled U.S. allies. The
administration denied suspects access to lawyers or U.S. courts, but the Supreme
Court ruled in June that Guantanamo Bay prisoners have the right to challenge
their detentions in U.S. courts.

"In dealing with detainees, our first question should always be a simple one:
'What should we do to keep America safe?' " Edwards said. "The Bush
administration unfortunately has asked a different question, 'How much power can
we possibly exercise?' They tried to set up Guantanamo Bay as a legal black
hole, subject to neither courts nor laws."

Under Bush's system, appeals will go to a panel selected by the same government
official who helped establish the commissions -- Defense Secretary Donald H.
Rumsfeld. By shifting to a court-martial approach, Kerry would have appeals
handled by a court of appeals for the armed forces, which is independent of
prosecutors and the Defense Department. The appeals process, like most other
procedures in a military trial, is almost identical to that of a civilian trial.

"After nearly three years of unnecessary and harmful controversy, the Bush
administration is scrambling to provide hearings for detainees, and in a few
instances, trials by military commission," Edwards said. "But the military's own
lawyers have harshly criticized these ad hoc commissions for violating the
principles that our great system of military justice has long honored."

Terry Holt, a Bush campaign spokesman, responded that "politics won't dictate
what happens at Guantanamo. John Kerry should not play politics with the system
of justice in place to deal with terrorist suspects."

Edwards, calling the Bush approach "self-defeating and self-destructive,"
pledged that Kerry would hold a "comprehensive review" of the Guantanamo
detentions upon taking office. "We will establish these clear rules quickly," he
said, adding that Kerry would also "engage Congress as much as possible."

* * *


August 29, 2004; Page A12

HEARINGS OPEN WITH CHALLENGE TO TRIBUNALS
Defense Attorneys Say Military Commissions Deny Due Process to Detainees

By Scott Higham, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A42635-2004Aug28.html

GUANTANAMO BAY, Cuba -- The historic opening last week of U.S. military
commissions that have not been used since World War II was marked by twists and
turns and a carefully crafted defense strategy designed to bring the cases
against suspected terrorists into the American court system.

While it is too early to tell whether they will be successful, the military and
civilian defense lawyers spent much of the week lambasting the commissions as
legal relics and creating a record of what took place at the Navy base here for
possible U.S. court review.

In the end, the attorneys are hoping that federal judges will agree with their
central argument: that the suspected al Qaeda terrorists and Taliban fighters
being tried in a makeshift military courtroom here cannot receive due process
and fair trials under the commission process.

"These cases are headed straight to federal court," said Navy Lt. Cmdr. Charles
Swift, appointed by the military to represent a man who served as Osama bin
Laden's personal chauffeur. "They are making this up as they go along."

Commission officials and prosecutors dismissed the challenges. They say the
commissions, created by President Bush two months after the attacks of Sept. 11,
2001, are designed to provide fair trials while protecting national security.
Suspects receive key protections, they note, including the rights to be
considered innocent until proven guilty and to not be convicted unless
prosecutors establish guilt beyond a reasonable doubt.

"More than anyone in the courtroom, I want a full and fair process," said Army
Col. Robert L. Swann, the chief prosecutor of the commissions. "If there is a
case on appeal, I want it sustained on appeal."

Last week, the military held the first hearings in what is expected to be a
series of trials of suspected terrorists and Taliban fighters to be held before
the commissions. The defense lawyers, most of them military officers appointed
by the government, dominated the proceedings by questioning the legitimacy of
the commissions, their rules and procedures, and the fitness of the men assigned
to sit in judgment of their clients. They argued that Bush overstepped his
authority by creating the commissions, that their clients' rights to speedy
trials have been denied, and that the commissions violate the equal protection
clause of the Constitution because only non-U.S. citizens can be tried before
them.

Many of the points the defense lawyers tried to make may find their way before
U.S. judges because they involve constitutional questions. So far, two of the
four defendants formally charged have portions of their challenges already
pending in federal court. A third challenge in the case of an accused paymaster
for al Qaeda is about to be filed in U.S. court, according to his defense
lawyer, Air Force Lt. Col. Sharon Shaffer. The case of a fourth man, who
admitted in court on Thursday that he is a member of al Qaeda, is on hold while
lawyers try to figure out whether he can represent himself or hire an attorney
from his home country of Yemen.

Government lawyers dispute defense claims that the commissions are illegitimate.
They say the president had the authority to create the commissions, that they
borrow procedures from other international tribunals and that the rules do not
violate the rights of the accused to receive fair trials.

Defense lawyers for two of the suspects this week questioned the qualifications
of the presiding officer of the commissions, Army Col. Peter E. Brownback III,
and the other officers appointed to the panel. Together, six commissioners,
including Brownback and an alternate, will serve as judges and jurors during the
trials. The defense lawyers were permitted to challenge the commissioners under
voir dire as they tried to establish that the composition of the commission was
fraught with potential conflicts that undermined fairness.

For instance, the defense attorneys said Brownback, who served as a military
lawyer and judge for 27 years before he came out of retirement to preside over
the commissions, would exercise "undue influence" over the other commission
members, who are military officers but not lawyers. When they gather to
deliberate the cases, the defense attorneys argued, Brownback will have more
influence over the proceedings because of his legal background.

The attorneys asked that he be removed from the case. Brownback said his
departure still would not satisfy the attorneys.

"The secretary of defense said there's going to be a lawyer on this thing,"
Brownback responded Wednesday during hearings in the case against David Hicks,
an Australian accused of fighting alongside the Taliban. "You're objecting to
the structure of the panel. It doesn't matter what I think. It's the structure.
You can bounce me off, and they'll put on another lawyer."

Brownback said he will forward the challenge to John D. Altenburg Jr., a retired
Army major general who serves as the appointing authority of the commissions.
But the defense lawyers said that poses a conflict, too, because Brownback and
Altenburg are "close personal friends." They said the two have known each other
since 1977, that Brownback's wife worked for Altenburg, and Altenburg hosted
Brownback's retirement ceremony in 1999.

The civilian attorney for Hicks, Joshua Dratel, asked Brownback whether he might
be influenced by his relationship with Altenburg.

"A reasonable person who took the time to examine my record would say no,"
Brownback said. The defense lawyers also challenged the backgrounds and
qualifications of four other commission members selected to serve on the panel.
Air Force Lt. Col. Timothy Toomey served as an intelligence officer who worked
in Afghanistan and Iraq. Marine Col. R. Thomas Bright supervised an operation
that sent suspected terrorists and Taliban fighters to Guantanamo Bay. Marine
Col. Jack Sparks Jr. lost one of his Marine reservists, a firefighter, in the
attack on the World Trade Center. Army Lt. Col. Curt Cooper said he did not know
precisely what the Geneva Conventions were and noted in a commission
questionnaire that he was deeply affected by a visit to Ground Zero at the World
Trade Center.

"How are you supposed to separate that experience?" Dratel asked.

"They are separate things," Cooper said.

"How do you go about doing that?"

"I make no connection in my mind between these charges and my visit to the World
Trade Center," Cooper said.

The lead prosecutor in the Hicks case said the commissioners could be fair and
they should not be removed from the panel.

"We believe that none of these challenges should be granted," Marine Lt. Col.
Kurt J. Brubaker said.

Brownback told the defense attorneys that he would forward to Altenburg the
request to dismiss the commissioners. But the defense lawyers said that, too,
poses a potential conflict. Altenburg was the officer who selected the
commissioners in the first place.

On Friday, Altenburg said in a telephone interview that he could not discuss the
challenges because he would have to rule on them. He said he has tried to
distance himself from the proceedings -- he will not travel to Guantanamo -- so
he can remain neutral when he rules on challenges and motions.

"We'll have to look at each one of these cases and make a decision: Do they in
fact have too much involvement?" Altenburg said, referring the defense claims of
conflicts on the commission.

The defense attorneys also are trying to establish that the rules of the
commission are unclear, undermining the integrity of the trials. On Thursday, an
accused propagandist for al Qaeda, Ali Hamza Ahmed Sulayman al Bahlul, blurted
out in the courtroom through an interpreter that he was a member of the
terrorist organization. He was about to describe his relationship to the Sept.
11 attacks when Brownback cut him off.

The presiding officer then turned to the commissioners and told them to
disregard al Bahlul's remark. It could not be considered evidence under the
rules of the commission, he said. But prosecutors objected, saying such remarks
could be admitted because there is no requirement to warn suspects against self-
incrimination in commission rules.

"We note our objection to that statement," one prosecutor said.

After the hearing, Navy Lt. Susan McGarvey, a lawyer and spokeswoman for the
commissions, said prosecutors were correct and that the evidence could be
admitted.

The defense attorneys issued a range of other objections, including that the
translations provided to their clients were uneven at best.

Those claims were included in an hour-long special aired Thursday throughout the
Arab world on the television network al-Jazeera. A reporter for the network
here, Mohammed Alami, asked Swann on Friday whether he was troubled that
international observers and foreign governments were criticizing the commissions
as unfair.

Swann defended the fairness of the commissions: "They're entitled to their
opinion. I'm entitled to mine."

* * *


August 27, 2004; Page A03

RELEASE OF PRISONER 'IMMINENT,' U.S. SAYS

By Jerry Markon, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A36712-2004Aug26.html

The Justice Department said yesterday that "enemy combatant" Yaser Esam Hamdi's
release is imminent and asked a federal judge for an additional week to work out
final details of a settlement with Hamdi's attorneys.

Hamdi, who has been held incommunicado in Navy brigs for two years after being
captured with Taliban soldiers in Afghanistan in 2001, probably will be sent to
Saudi Arabia, prosecutors said in a filing in U.S. District Court in Norfolk.
Hamdi is a U.S. citizen, but he spent most of his life in Saudi Arabia, where
his family lives.

U.S. District Judge Robert G. Doumar has yet to rule on the request for a seven-
day stay of the proceedings against Hamdi, which would put off a federal court
hearing scheduled for Monday. Doumar last week granted a separate request for a
delay but ordered the government to produce Hamdi at Monday's hearing.

Neither Hamdi nor a second U.S. citizen held as an enemy combatant -- Jose
Padilla, who is accused of plotting to set off a radiological bomb in the United
States -- has been seen publicly since being detained. The Hamdi case has been a
major test in the war on terrorism, with the Bush administration refusing to
allow Hamdi to challenge his detention and holding him for much of the past two
years without access to a lawyer. But the U.S. Supreme Court ruled in June that,
as a U.S. citizen, Hamdi must have access to the U.S. legal system.

Prosecutors and Hamdi's attorneys revealed this month that they were nearing a
deal to release Hamdi. People familiar with the negotiations have said that the
terms of release are likely to include Hamdi renouncing his U.S. citizenship and
accepting travel restrictions and some monitoring by Saudi officials. In
addition, he may have to agree not to sue the U.S. government over his
detention.

In yesterday's filing, the government said those negotiations "have continued
steadily, and considerable progress has been made.'' The filing said that a
draft agreement is being circulated and that "only the details" remain to be
negotiated.

"In short, [the government] believes that an agreement in principle that will
result in Hamdi's release is imminent, and can be reached within the seven-day
period for which a stay is sought,'' said the document, which was signed by
Justice Department officials including Paul J. McNulty, the U.S. attorney in
Alexandria.

The filing cited the "extraordinary nature" of Hamdi's case, which is "fraught
with complex and thorny issues" that would require the court to balance national
security needs with Hamdi's constitutional rights. Bringing Hamdi to a court
hearing "would serve no useful purpose given the likelihood of his imminent
release and repatriation to Saudi Arabia,'' the papers said.

In their response, Hamdi's attorneys said they do not object to a seven-day
delay, but they chided the government for continuing to hold Hamdi in solitary
confinement after the Supreme Court decision. Federal public defender Frank W.
Dunham Jr. wrote that the conditions of Hamdi's confinement are "inhumane.''

Earlier in the day, Hamdi's attorneys filed papers challenging the government to
explain its detention of Hamdi, who was captured with pro-Taliban forces on the
battlefield in northern Afghanistan in November 2001. He was brought to the Navy
brig in Norfolk and then the Navy jail at Charleston, S.C., after it was learned
that he was born in Baton Rouge, La.

The military designated Hamdi an enemy combatant and held him incommunicado, but
his case entered the legal system after Dunham read about his confinement in
news accounts. A series of lower-court decisions led to the Supreme Court
ruling, in which all the justices except Clarence Thomas rejected the Bush
administration's contention that the federal courts could exercise no
supervision over such a case.

* * *


August 24, 2004; Page A05

NO WELCOME IN GUANTANAMO AS RIGHTS GROUPS LAND
ACLU, Amnesty International Finally Arrive to Witness Terrorism Trials,
but Military Forgets to Greet Them

By Scott Higham, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A26930-2004Aug23.html

GUANTANAMO BAY, Cuba, Aug. 23 -- For more than two years, Anthony Romero, the
executive director of the American Civil Liberties Union, had been trying to
persuade the Pentagon to provide access to Guantanamo Bay, where suspected
terrorists are held amid extraordinarily tight security measures that span the
naval station here. A few weeks back the Pentagon granted the request, inviting
the ACLU and several other groups to witness the historic military trials
scheduled to begin Tuesday morning with initial hearings.

But Romero and a representative of Amnesty International said they were
surprised when they touched down here Saturday on a charter flight to find no
one from the military to meet them. Or check their passports. Or dispatch bomb-
sniffing dogs to screen their luggage. Or take their photographs for security
badges. Instead, Romero and Jumana Musa, an advocacy director for Amnesty, said
they roamed around a portion of the base for nearly an hour, hoping to find
someone -- anyone -- who could take them where they were supposed to go.
Wherever that might be.

"I thought to myself, 'Finally, we had gotten to Guantanamo,' " Romero said. "I
sure wasn't expecting this."

It would be 40 more hours before Romero and Musa received their security badges.
In the meantime, they were detained Monday morning because they did not have
security badges.

Red-faced military officials on Monday said the pair was not picked up because
of a "communication breakdown." Although security was breached, the officials
noted, the 585 detainees at Guantanamo Bay were confined in cage-like cells
across a deep channel of water several miles away from Romero and Musa.

"We are doing our best to accommodate the international organizations while on
Guantanamo," said Army Chief Warrant Officer 2 Jennifer D. Young. "However, our
resources are limited and we ask for flexibility while we work out the kinks. .
. . The international organizations are welcome guests."

Ever since the U.S. military began detaining suspected terrorists and Taliban
fighters at Guantanamo Bay in January 2002, human rights and civil liberties
groups have been petitioning the Pentagon for permission to visit the base. From
the start, the military took members of the media on closely guided tours of the
facilities here and permitted the International Committee of the Red Cross to
inspect the prison camps and interview the detainees. The advocacy groups wanted
to see firsthand what they had been condemning as a "legal black hole."

Earlier this year, after the Bush administration announced that military trials
would begin in the cases of four suspected terrorists at Guantanamo, the
advocacy groups asked the Pentagon if they could monitor the proceedings.
Several weeks ago, they began receiving letters asking them to watch the first
military commissions since World War II. In addition to the ACLU and Amnesty
International, Human Rights Watch, Human Rights First and a representative of
the American Bar Association were invited.

Normally, security at the Guantanamo Bay airport is intense. When nearly 50
reporters and photographers landed here Saturday, their luggage was screened by
bomb-sniffing dogs. Some bags were pulled for hand searches. Military personnel
carrying pump-action shotguns stood guard. The journalists were escorted into a
room, where their passports were checked and photos taken. Before they were led
away, they were ordered to wear at all times badges that read "ESCORT REQUIRED."

But when Romero and Jumana landed about 5:45 p.m. Saturday, they stood at the
terminal for about 15 minutes, waiting for base personnel to introduce
themselves. When no one did and a bus pulled up, they climbed aboard. They
headed to the island's ferry terminal, where boats take military personnel,
contractors, intelligence officers, journalists and others to the other side of
Guantanamo Bay, where the detainees are housed.

At the ferry terminal, Romero and Jumana said, a contractor they met on the
plane called his supervisor and tried to help. He had no luck, and the pair
decided to call the base operator. "I said, 'I'm Anthony Romero and I'm the
executive director of the ACLU. I'm here to observe the military commissions.'
The operator didn't know anything," Romero said.

Romero and Jumana then looked through the materials they had received from the
military and spotted phone numbers for the barracks where they were supposed to
stay. They called. Romero repeated who he was and why he was there. "They said,
'I'm sorry. We don't have any reservations for you,' " he recounted. The pair
then decided to call security. A woman in a small pickup truck drove into the
ferry terminal parking lot.

"She said, 'We've been looking for you,' " Jumana recalled. "I said, 'We've been
waiting for you.' " But the woman said she was there to pick up only Jumana. She
did not know anything about Romero and summoned another vehicle to take them
back to the airport for screening and processing.

By Monday morning -- 40 hours after they arrived -- Romero and Jumana still had
not received security badges. When they tried to board a boat with the press
corps for an 8 a.m. trip across the channel, they were stopped, along with Sam
Zia-Zarifi of Human Rights Watch, who also had not received a badge. The three
were detained for about 45 minutes, until they retrieved their passports from
their hotel rooms.

Once they were on the other side of the island, a military officer greeted them
and handed them security badges.

"At long last," Romero said, taking his badge.

"Sorry about that," the officer said.

Military officers then escorted Romero, Jumana and Zia-Zarifi away, informing
them that they could not attend briefings, visit the prison camps with the press
corps, or interview members of the military commission and prosecutors. Romero
and the others would be permitted only to observe the military commissions.

"At first I thought this was funny," Romero said as he was led away. "I've lost
my sense of humor."

* * *


August 24, 2004; Page A01

IRAQI TEENS ABUSED AT ABU GHRAIB, REPORT FINDS
Officials Say Inquiry Also Confirms Prisoners Were Hidden From Aid Groups

By Josh White and Thomas E. Ricks, Washington Post Staff Writers

http://www.washingtonpost.com/wp-dyn/articles/A27048-2004Aug23.html

An Army investigation into the Abu Ghraib prison scandal has found that military
police dogs were used to frighten detained Iraqi teenagers as part of a sadistic
game, one of many details in the forthcoming report that were provoking
expressions of concern and disgust among Army officers briefed on the findings.

Earlier reports and photographs from the prison have indicated that unmuzzled
military police dogs were used to intimidate detainees at Abu Ghraib, something
the dog handlers have told investigators was sanctioned by top military
intelligence officers there. But the new report, according to Pentagon sources,
will show that MPs were using their animals to make juveniles -- as young as 15
years old -- urinate on themselves as part of a competition.

"There were two MP dog handlers who did use dogs to threaten kids detained at
Abu Ghraib," said an Army officer familiar with the report, one of two
investigations on detainee abuse scheduled for release this week. "It has
nothing to do with interrogation. It was just them on their own being weird."

Speaking on the condition of anonymity because the report has not been released,
other officials at the Pentagon said the investigation also acknowledges that
military intelligence soldiers kept multiple detainees off the record books and
hid them from international humanitarian organizations. The report also mentions
substantiated claims that at least one male detainee was sodomized by one of his
captors at Abu Ghraib, sources said.

"The report will show that these actions were bad, illegal, unauthorized, and
some of it was sadistic," said one Defense Department official. "But it will
show that they were the actions of a few, actions that went unnoticed because of
leadership failures."

The investigative report by Maj. Gen. George R. Fay focuses on the role of
military intelligence soldiers in the prison abuse. It will expand the circle of
soldiers considered responsible for abuse beyond the seven military police
soldiers already facing charges, officials said, to include more than a dozen
others -- low-ranking soldiers, civilian contractors and medics. Sources have
said that the report also criticizes military leadership, from the prison and up
through the highest levels of the U.S. chain of command in Iraq at the time.

One Pentagon official said yesterday that Lt. Gen. Ricardo S. Sanchez, then the
top U.S. commander in Iraq, is named in the report for leadership deficiencies
and failing to deal with rising problems at the prison as he tried to manage
150,000 troops countering an unexpected insurgency. Sanchez, however, will not
be recommended for any punitive action or even a letter of reprimand, the source
said. About 300 pages of the 9,000-page report will be released publicly,
according to Army officials.

Another report regarding the prison abuse, commissioned by Defense Secretary
Donald H. Rumsfeld, is expected to be released this afternoon. That independent
commission, chaired by James R. Schlesinger, a former defense secretary, will be
critical of the guidance and policies set by top Pentagon and military officials
as they worked to get more useful intelligence from detainees in Iraq, said a
source familiar with the commission's work.

The Schlesinger report is not expected to implicate high-level officials by
name, but it would be the first report to link the abuse at Abu Ghraib to
policies set by top officials in Washington. The Fay report, by contrast, does
not point a finger at the Pentagon and instead assigns most of the blame to
military intelligence and military police who worked on the chaotic grounds of
the overcrowded and austere Abu Ghraib.

Rumsfeld had not been briefed on the commission's findings as of yesterday, a
Defense Department source said, and the commission likewise has not briefed
members of Congress, who have been anticipating the reports for months.
Initially, the Schlesinger commission was slated to take 45 days, and Rumsfeld
suggested that it consider limiting itself to reviewing the work of other
investigations. But the commission hired a staff of more than 20 people and
conducted dozens of interviews, taking more than two months to complete its
work.

The reports are part of several investigations into U.S. detainee operations
around the world, and so far they have expanded the scope of culpability beyond
the seven MPs charged in connection with the most notorious incidents of abuse,
such as stacking naked detainees in a pyramid, posing them in mock sexual
positions and beating them. Pentagon officials said yesterday that the abuse
came not as the result of direct orders but rather as "off-the-clock mischief"
that arose from vague instructions and a general lack of oversight.

The core conclusion of the Fay report, said one general who is familiar with it,
is that there was a leadership failure in the Army in Iraq that extended well
beyond a handful of MPs. "There's a vacuum there," he said. "Either people knew
it and turned a blind eye, or they weren't paying attention."

In particular, top leaders failed to give proper attention to reports from the
International Committee of the Red Cross that decried conditions at Abu Ghraib,
reported allegations of abuse and raised warning flags about detainees being
hidden from them. Top Pentagon officials have denied keeping detainees from the
ICRC, but the Fay report will concur with an earlier Army investigation that
cited the prison for keeping "ghost detainees."

"This report will address the ghost-detainee problem, and it was an outright
policy violation," said one Pentagon official familiar with the report. "It did
happen, and accordingly it is still being investigated."

Another officer at the Pentagon said he felt that the latest revelations,
including the use of dogs to frighten juveniles, were some of the most worrisome
of the scandal. He said one particular worry at the Pentagon is how the use of
dogs against Arab juveniles will be viewed in the Middle East.

"People know that in war, you know, you have to break eggs," he said. "But this
crosses the line."

Staff writer Bradley Graham contributed to this report.

* * *


August 23, 2004; Page A01

TRIALS SET TO BEGIN FOR FOUR AT GUANTANAMO
Process Differs From U.S. Justice System

By Scott Higham, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A24823-2004Aug22.html

Four suspected al Qaeda terrorists will face military trials this week at the
Navy base in Guantanamo Bay, Cuba, in historic legal proceedings that have not
been conducted by the U.S. government since World War II and are unlike anything
most Americans face in the criminal justice system.

Hearsay evidence will be allowed. Conversations between defendants and lawyers
can be monitored in some circumstances. Exculpatory evidence can be kept secret
from suspects. And appeals will go to a panel selected by the same government
official who helped establish the commissions: Defense Secretary Donald H.
Rumsfeld.

Military defense lawyers and human rights activists have condemned the
proceedings as "fundamentally unfair."

But Bush administration officials say they are doing the best they can to
balance the nation's security interests against due process rights. They say
they have incorporated key elements of the U.S. justice system in the military
commissions: Suspects are presumed innocent until proven guilty. They do not
have to testify. Guilt must be established beyond a reasonable doubt. The
suspects have been afforded free counsel.

"We want to get this right," said John D. Altenburg Jr., a retired Army major
general who is supervising the commissions.

Initial hearings are scheduled to begin tomorrow in a tall, T-shaped yellow
building that overlooks the waters encircling Guantanamo and its sprawling
prison, which has become the epicenter of the administration's war on global
terror. Military officials said prosecutors and the commissioners will not
discuss the cases and are requesting that their names be kept secret for
security reasons. Legal analysts say few new details about the four suspects are
likely to emerge, but military lawyers for the alleged terrorists are expected
to attack the legitimacy of the commissions and the impartiality of the officers
selected to hear the cases. They are also expected to question the rules and
procedures of the commissions as well as the charges brought against their
clients, according to motions filed last week.

The courtroom, framed by blue velvet curtains and flags from the armed forces,
has been secured and swept by teams of bomb-sniffing dogs amid heightened
security operations at Guantanamo Bay. Reporters and human rights activists
permitted to attend the proceedings are not allowed to move between buildings on
the base without military escorts. A courtroom sketch artist will not be
permitted to portray the faces of the commission participants, including the
defendants. Television cameras are not permitted in the courtroom, and
videographers must clear videos of exterior shots with security officers.

Despite criticism that the commissions do not follow internationally accepted
rules of law or procedures commonly used in military courts, U.S. officials
pledged yesterday that the Guantanamo Bay trials will be fair. Prosecutors said
they are ready as early as Sept. 28 to begin the main part of the case against
one of the suspects, an Australian citizen named David Hicks.

"Each of the accused will be given full and fair trial in a manner that protects
our national security," Navy Lt. Susan M. McGarvey, a spokeswoman for the
commissions, told reporters at the Navy base yesterday.

Defense attorneys assigned to the cases say the composition of the commissions
and their rules and procedures will make it difficult, if not impossible, for
their clients to get fair trials. They also say the president, the secretary of
defense and the attorney general have all proclaimed publicly that the
defendants are terrorists and the "worst of the worst,'' statements possibly
prejudicing the military officers who will serve as jurors.

"Most people are extremely hostile toward terrorists and I understand that, but
people should worry about this," said Navy Lt. Cmdr. Philip Sundel, a military
attorney assigned to defend one of the suspects. "These commissions are a lie
behind the claim that all men are created equal, that we are innocent until
proven guilty, that we as a society believe in the rule of law above all else."

President Bush issued an executive order Nov. 13, 2001, reviving a military
justice system that has not been used in nearly 60 years. Bush said the
commissions, which have been used to try the Lincoln assassination conspirators,
Nazi saboteurs and Japanese war criminals, would permit the government to use a
blend of secret and public hearings to try foreigners charged with committing,
threatening or aiding terrorist acts.

What has emerged during the past 33 months is a military justice system that
borrows heavily from commissions of the past with a few modifications, but is
also a work in progress. Critics of the commissions say they are fraught with
potential conflicts, such as permitting the presiding officer, who will serve as
a judge of sorts, to take part in the deliberations over guilt or innocence.

"Structurally, I think there are serious questions," said Eugene R. Fidell, a
Washington lawyer who specializes in military legal issues. "This is not the
military justice system. . . . It's an antique that's being rolled out of a
museum case."

The administration relied on legal experts to help craft rules and procedures,
including former FBI director William S. Sessions and former White House counsel
Lloyd Cutler, who served Presidents Jimmy Carter and Bill Clinton. Still, the
evolution of the commission process has been marked by fits and starts. With the
first hearings days away, rules, procedures and the roles of the key players are
still being refined, military law experts say.

"Everyone is struggling to figure out what the rules are," said Kevin Barry, a
retired Coast Guard captain who now heads the National Institute of Military
Justice. "These rules have been kind of made up as they go along."

Military defense lawyers assigned to the case called the commission process
"confusing" and "ad hoc."

Navy Lt. Cmdr. Charles Swift, a career officer, was serving as the chief of the
Navy's legal service office near Jacksonville, Fla., in spring 2003 when he
received a call requesting that he represent a suspected terrorist held at
Guantanamo Bay. Swift accepted and moved to Washington. The first sign of
confusion came the day he arrived for work. He said he was told to go home
because "some wires got crossed" and the selection of defense attorneys was
"premature." Swift said his supervisor asked him to remain in Washington while
he tried to clear up the confusion.

Swift said he stayed, but instead of working as a defense lawyer, he was
assigned to be a "staff attorney" for the military. Swift, Sundel and the other
defense attorneys objected, saying they should not be put in the position of
working for an office that would be coordinating the cases against their
eventual clients. "It was an ethical conflict," Swift said.

The Pentagon eventually assigned Swift a client: Salim Ahmed Hamdan, a taxicab
driver from Yemen who worked as a chauffeur for Osama bin Laden. Prosecutors
allege that Hamdan ferried weapons for bin Laden's terror network and helped the
al Qaeda leader escape after several terror operations, including the Sept. 11,
2001, attacks. Swift said his client was a low-level driver who cooperated fully
with interrogators and had nothing to do with the planning or execution of any
terrorist acts.

Swift said he and his colleagues were troubled by the commission rules that were
being drafted and the indefinite detentions of their clients at Guantanamo Bay.
Swift, Sundel and three other active-duty military lawyers filed a friend-of-
the-court brief with the U.S. Supreme Court last January, challenging their
commander in chief's orders that suspected al Qaeda terrorists and Taliban
fighters could be held without review from the federal court system. This summer
the Supreme Court ruled that detainees at Guantanamo could have access to
federal courts, and legal analysts say that ruling extends to those who have
been designated to stand trial before the commissions.

So far, Bush has designated 15 detainees as eligible for trial before the
commissions. The four who have been formally charged will have their initial
hearings this week. In addition to Hamdan, they are: Ali Hamza Ahmed Sulayman al
Bahlul of Yemen; Hicks of Australia; and Ibrahim Ahmed Mahmoud al Qosi of Sudan.
Hamdan, al Bahlul and al Qosi are charged with conspiracy to commit war crimes.
Hicks faces additional charges of attempted murder by an unprivileged
belligerent and aiding the enemy.

In some cases, detainees at Guantanamo Bay have been held for more than two
years. Swift hired a psychiatrist to evaluate Hamdan's mental condition because
he was being held in isolation at Camp Echo, a collection of secluded
cinderblock huts off limits to most visitors on the Navy base. "The conditions
of his confinement make Mr. Hamdan particularly susceptible to mental coercion
and false confession," the psychiatrist wrote in a court filing.

Human rights groups argue that those conditions, in addition to interrogation
techniques used to extract information from detainees, could result in coerced
confessions and false statements that could be introduced during the military
commissions. They also say some suspects may not be competent to understand the
charges against them.

"Military commissions do not require that someone be competent to stand trial,"
said Avi Cover, a senior associate for Human Rights First, a New York-based
advocacy group. A representative from Cover's group will be among the advocates
attending this week's proceedings and, along with the journalists, had to agree
to strict military ground rules, which include prohibitions on disclosing
classified material and information that "may endanger the physical safety of
participants in commission proceedings."

In June, the military lawyers complained to two U.S. Senate committees about
possible coercion. "It is likely that evidence obtained from prisoners abused
while in U.S. custody will be introduced as evidence in these military
commissions at Guantanamo Bay, and that neither defense counsel nor the members
of the commissions would ever be told about the circumstances under which such
evidence was obtained," the lawyers wrote the Senate Armed Services and
Judiciary committees.

Altenburg, who is supervising the commissions, said he expects that issues of
coerced testimony will surface during the trials and will be addressed by the
presiding officer, retired Army Col. Peter E. Brownback III, who will decide
whether such statements should be admitted as evidence.

"I think that that will be an important issue in at least some of the trials,"
Altenburg said. "I say that because to the extent that evidence presented by the
prosecution is statements made by accused persons, you know, the issue of the
nature of the interrogation will be critical."

Critics of the military commissions say the combination of perceived
shortcomings in the process will be seen around the world as another sign that
the U.S. government believes it can operate under different legal standards.
They warn that the indefinite detentions at Guantanamo Bay, coupled with the
decision not to apply the Geneva Conventions to certain detainees and the abuses
at the Abu Ghraib prison in Iraq, could have consequences for the men and women
in the U.S. armed forces.

"This process is compromising our credibility," said David P. Sheldon, a former
Navy appellate defense attorney who specializes in military law in Washington.
"The individuals who will suffer and pay the price are not just the people being
accused of these crimes. It's the citizens and the soldiers who will undoubtedly
feel the wrath of people who will likely impose a similar type of grave judgment
without regard to due process. If we don't play by the rules of the
international community and respect human rights, then why should the rights of
our soldiers be respected?"

Altenburg, the supervisor of the military commissions, has heard those arguments
before, but he said the defense lawyers and other critics are judging a legal
process that has not yet begun. He said the public will see that fair people
have been put into positions of authority in the military commissions, and fair
outcomes will be the result.

"I don't agree that we are setting a low bar," the retired general said. "I
think that much of the criticism is the result of not being there yet. Once
people see the professionalism of all the parties involved, I think the
criticism will subside. We really do have a fair system."

* * *


August 4, 2004; Page A19

BUSH'S GOOD DAY IN COURT

By David B. Rivkin Jr. and Lee A. Casey

http://www.washingtonpost.com/wp-dyn/articles/A38134-2004Aug3.html

The three "war-on-terrorism cases" decided by the Supreme Court at the close of
its term in June have been portrayed -- especially overseas -- as significant
defeats for the Bush administration. This is largely because the court ruled,
over the administration's strong objections, that the men, now held as al Qaeda
and Taliban members at the Guantanamo Bay naval station in Cuba, may challenge
their detention through the federal courts.

But in fact, when all these cases are read together -- the Guantanamo Bay case,
along with the court's decisions in Hamdi v. Rumsfeld and Rumsfeld v. Padilla
(both involving American citizens held in the United States as captured enemy
combatants) -- they mark a significant reaffirmation of the president's
constitutional authority as commander in chief in time of war.

In the context of these cases, the court accepted the following critical
propositions: that the United States is engaged in a legally cognizable armed
conflict with al Qaeda and the Taliban, to which the laws of war apply; that
"enemy combatants" captured in the context of that conflict can be held
"indefinitely" without criminal trial while that conflict continues; that
American citizens (at least those captured overseas) can be classified and
detained as enemy combatants, confirming the authority of the court's 1942
decision in Ex Parte Quirin (the "Nazi saboteur" case); and that the role of the
courts in reviewing such designations is limited. All these points had been
disputed by one or more of the detainees' lawyers, and all are now settled in
the government's favor.

Of course, in upholding the executive's actions on these fundamental points, the
justices also made clear that from here on out, the courts will have a role,
however circumscribed it might be, in individual cases. In this, the recent war-
on-terrorism decisions are not unlike the court's groundbreaking case of Marbury
v. Madison (1803), in which Chief Justice John Marshall avoided an open clash
with President Thomas Jefferson (by refusing to order the delivery of a judicial
commission signed at the last minute by a departing John Adams), but in doing so
established the principle of judicial review. For good or ill, the camel now
does not just have its nose under the tent, it is comfortably seated at the
table. Whether it will dominate the conversation, however, remains to be seen.
Much will depend on the president's future actions.

In a plurality opinion delivered in Hamdi v. Rumsfeld, the most important of the
many opinions and dissents issued in these cases, Justice Sandra Day O'Connor
made clear that although the principles of due process may require that captured
al Qaeda and Taliban operatives be given the opportunity to challenge the
factual basis of their classification as enemy combatants, this process need not
involve the civilian courts. It can take place before a military panel,
patterned on the "Article V" procedure established pursuant to the Third Geneva
Convention, dealing with the rights of "prisoners of war." Significantly,
O'Connor did not suggest that the Geneva Conventions could or should apply in
these circumstances but found the U.S. Army regulations implementing this
provision to be a useful model.

The Pentagon was quick to accept O'Connor's invitation and has already
established a process whereby the Guantanamo detainees can be heard. In this
connection, however, it is important to note the burden of proof that the
government will have to meet in any further judicial review. This point has
received almost no comment, but it is probably the most important practical
aspect of the rulings. To "prove" a captive is an enemy combatant, the
government need only present "credible evidence." Once this is accomplished, the
burden shifts to the detainee -- who must then prove that he was not affiliated
with either al Qaeda or the Taliban. As all trial lawyers know, cases are won
and lost on the burden of proof, and the court has (properly, we believe) given
the United States a very considerable advantage here.

There are, of course, many issues that the court did not answer in these cases,
including how soon after capture the right to challenge one's enemy combatant
classification becomes effective; whether an American citizen captured in the
United States, such as the alleged "dirty bomber" Jose Padilla, can be detained
as an enemy combatant; and whether enemy combatants can be tried and criminally
punished (rather than simply held until the conflict ends) by military
commission. The reaffirmation of Ex Parte Quirin in Justice O'Connor's opinion,
which appears to command at least a five-member majority on this point, suggests
that they can be so tried. Nevertheless, because of the shifting nature of the
court's majority on many of these issues, there is little doubt there will be
more terrorism-related cases in the Supreme Court's next term. Overall, though,
the executive branch has done very well so far and, assuming a fair and
transparent processing of the detainees by the military justice system, should
continue to do so in the future.

[ The writers are Washington lawyers who served in the Justice Department during
the administrations of Ronald Reagan and George H.W. Bush. ]

* * *


August 3, 2004; Page A02

ACCUSED ARMY CHAPLAIN RESIGNING
Muslim's Case Had Been Dropped

By Thomas E. Ricks, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A35329-2004Aug2.html

The Muslim chaplain who once was accused of mishandling classified material and
other charges, only to have the case against him fall apart, said yesterday that
he is resigning from the Army.

Capt. James J. Yee, who was arrested while posted to the military prison at
Guantanamo Bay, Cuba, to minister to suspected al Qaeda and Taliban fighters
held there, said the Army's handling of its case against him "irreparably
injured my personal and professional reputation and destroyed my prospects for a
career" in the Army.

Yee, a 1990 graduate of West Point, said in a statement released by his lawyer
that he had asked to be discharged next January.

Yee was arrested after several hours of interrogation on Sept. 10, 2003, at the
Naval Air Station in Jacksonville, Fla., after flying from the Guantanamo Bay
Navy base, where he had been assigned for the previous 10 months. The next month
he was charged with mishandling classified information after authorities found
maps of the Guantanamo prison and information about detainees in his possession.
FBI and Defense Department officials indicated that they were investigating
whether Yee also had committed more serious offenses, and court documents
included a variety of serious accusations of espionage. Yee was held in solitary
confinement at the Navy brig in Charleston, S.C., for more than two months.

But the case against Yee soon began to fall apart. Eventually the military
dropped all criminal charges against him, but it still pursued accusations
growing out of the investigation that he had committed adultery and stored
pornographic images on a government computer. He was reprimanded for those
lesser offenses, but that ruling was thrown out on appeal.

"I have waited for months for an apology for the treatment to which I have been
subjected, but none has been forthcoming," Yee said in the statement released by
his attorney, Eugene R. Fidell. The Army has given no indication that it will
apologize to Yee, Fidell said.

The Army had no comment on Yee's case. A spokesman for the U.S. Southern
Command, which oversees the base at Guantanamo Bay, referred questions to the
Army base at Fort Lewis, Wash., where Yee is now posted. An Army spokesman there
said he could not comment because he had not received confirmation that Yee had
submitted a letter of resignation.

Yee grew up a Lutheran in New Jersey and after graduating from West Point
commanded a Patriot missile battery. He converted to Islam after serving in
Saudi Arabia after the 1991 Persian Gulf War. He then left active duty and
studied Islam in Syria. In the late 1990s, he rejoined the Army as a Muslim
cleric.

Yee intends to finish a master's degree in international relations at Troy State
University and may then pursue a doctorate, Fidell said.

"I think his case is going to resonate with people for a long time, because the
basis for his 76 days of solitary confinement remains unexplained," Fidell said
when asked about the impact of the case. "This case leaves you scratching your
head. How could an officer be put in solitary confinement for 76 days, and then
the case crumbles?"

Scott Silliman, a specialist in national security law at Duke University,
essentially agreed with that summary, saying the Yee case will be remembered as
an instance of the military bringing charges without adequately investigating
the matter. He said he worries that such premature action may be characteristic
of some military lawyers during wartime.

* * *


July 25, 2004

U.S. HELPED SWEDEN IN DEPORTATION OF SUSPECTS
2 Men Reportedly Tortured in Egypt

By Craig Whitlock, Washington Post Foreign Service

http://www.washingtonpost.com/wp-dyn/articles/A11976-2004Jul24.html

STOCKHOLM -- The airport police officer was about to close his small precinct
station for the night, when two men wearing suits walked in. The visitors said
the special Swedish security police had just arrested two suspected terrorists
-- very dangerous men -- and needed a place to hold them until a plane could
take them away.

The airport policeman recounted in an interview that he agreed to let them
borrow his cramped office that night, Dec. 18, 2001, and stepped out of the way.
But there was something strange about this operation. The two men in suits, who
were soon joined by two uniformed Swedish police officers, did not speak
Swedish, he said, and their English sounded distinctly American.

Another oddity: When the suspects arrived a few minutes later, they were
escorted by a half-dozen security agents wearing hoods.

The hooded agents took the suspected terrorists into the precinct's dressing
room. Inside, the agents cut off the prisoners' clothes with scissors, changed
the men into red overalls and bound them with handcuffs and leg irons. Then they
were hustled out the door and onto the tarmac, where a U.S.-registered
Gulfstream V jet was waiting.

The men with covered faces "were very quiet," recalled Paul Forell, the police
officer on duty at Stockholm's Bromma Airport that night. "When they gave orders
to each other, they kept their voices down. It seemed like they had done this
before. They were very professional." Forell said he could not hear them well
enough to get a feel for their nationality.

The plane's destination was Cairo. Its two unwilling passengers were Egyptian
nationals who had applied for asylum in Sweden more than a year earlier, hoping
to take advantage of its extensive programs for refugees facing political arrest
or persecution in their home countries. After welcoming the men at first, the
Swedish government reversed its position after the Sept. 11, 2001 attacks on the
United States.

The deportation was carried out swiftly and outside Sweden's normal legal
channels. Officials gave final approval to the expulsion order at 4 p.m. on the
Dec. 18, according to accounts issued later by the government. The men had been
grabbed on the street without warning by 5 p.m. and were in the air by 9:47 p.m.
Their lawyers were not officially notified of the expulsion until after the
plane had departed, to prevent them from filing appeals.

Playing a central and secret role in the operation: the U.S. government, which
provided the plane, some agents and other logistical support, according to
classified documents recently released by the Swedish government, as well as
interviews in Stockholm and Cairo.

The CIA refers to such cases as "extraordinary renditions," the fast and
forcible transfer of foreign terrorism suspects to other countries, often their
places of origin, where they can be detained or interrogated more freely, often
without all the legal protections available in the country they left.

Details of such operations are almost always secret, and the United States has
not acknowledged its role in the deportation of the two Egyptian men. But CIA
officials have testified in Congress about engaging in about 70 renditions
before 2001. Security analysts said the number has increased substantially since
then, as the U.S. government has become more aggressive in its global hunt for
people considered a threat to national security.

Critics have charged that the practice is vulnerable to abuse, noting that
suspects are usually deported to countries that are friendly to U.S.
intelligence agencies but also have records of permitting torture or other human
rights violations. In organizing such transfers, the U.S. government is engaging
in practices abroad that would be illegal and unconstitutional at home, those
critics have said.

The fate of the two Egyptian men offers a rare glimpse into such a case, as well
as an example of what can go wrong.

The Swedish government, for instance, agreed to deport the suspects only after
receiving assurances from Egypt that they would be given fair trials and "not be
subjected to inhuman treatment or punishment of any kind," according to a
confidential memo prepared by Swedish diplomats six days before the expulsion.

Records and interviews show, however, that the agreement was broken almost as
soon as the two men arrived in Cairo. Their lawyers, relatives and human rights
groups said there is credible evidence that they were regularly subjected to
electric shocks and other forms of torture. One suspect was sentenced to 25
years in prison by a military tribunal after a trial that lasted less than six
hours. The other spent almost two years behind bars without being charged.

Swedish government officials now say the deportation was an embarrassing
mistake. The government has called for an international investigation, possibly
under the authority of the United Nations, into how the two men were treated.
Separately, the Swedish parliament has opened an internal probe to determine the
exact role played by U.S. intelligence agents.

"We have taken the allegations seriously, very seriously," Deputy Foreign
Minister Hans Dahlgren said in an interview in Stockholm. "We have asked for an
independent, international investigation. . . . It would be in the best
interests of the government of Egypt to do this" if the allegations are false.
Ties to al Qaeda



The better known of the two repatriated men is Ahmed Agiza, a 42-year-old
physician whose wife and five children remain in Sweden.

His attorneys have acknowledged that he once worked closely in Egypt with Ayman
Zawahiri, the leader of Egyptian Islamic Jihad and who later merged the group
with al Qaeda, becoming Osama bin Laden's second in command. Agiza was a member
of Egyptian Islamic Jihad, which the State Department has designated a terrorist
group.

Agiza said he had once met bin Laden, according to a jailhouse interview he gave
to a Swedish radio reporter in 2002 shortly after he returned to Egypt. His
attorneys said he cut ties with Zawahiri a decade ago and has denounced violent
tactics of Islamic radicals, including al Qaeda.

Agiza left his homeland in 1991, saying he had been repeatedly harassed by
Egyptian security forces.

In 1999, while living in Iran, he was convicted in absentia by an Egyptian
military court -- along with 106 other defendants -- of belonging to a banned
Islamic organization. One year later, he and his family arrived in Sweden on
false passports and applied for political asylum.

It is not clear whether Agiza knew Muhammad Zery, 35, the man with whom he would
later be deported to Cairo. Zery also left Egypt in 1991, after he was harassed
and physically abused there, according to his lawyer. He traveled to Saudi
Arabia and Syria before arriving in Sweden in 1999 and requesting asylum.

Swedish officials have said that Zery, too, was convicted in absentia in Egypt
and that he was a suspect in the assassination of Egyptian President Anwar Sadat
in 1981, when he would have been 13 years old. But his attorneys and human
rights groups that have worked on his behalf said there is no record that Zery
was charged with any offenses in Egypt and they can't understand why he was
expelled.

The allegations against him are all clearly erroneous, said his Swedish
attorney, Kjell Jonsson. "The representatives of the [Swedish] government have
been lying or not telling the full truth on this since the beginning."

Bo Johansson, a Stockholm lawyer who has represented Agiza, said Swedish
diplomats in Cairo later told the Egyptian man's parents that he was deported
because Sweden was under "international pressure" to do so.

"I think the American influence is a very important factor in all of this,"
Johansson said. "It is becoming clearer as more information comes out. Something
happened very quickly after Sept. 11. . . . We had always thought there was an X
factor at work here. Now we know that it must have been an American factor."
Secret U.S. Role



The U.S. involvement remained a secret until two months ago, when a Swedish
television program -- Kalla Fakta, or "Cold Facts" -- broadcast a documentary
reporting that U.S. agents assisted in the apprehension of Agiza and Zery, and
that the plane chartered to Cairo had been used in a previous rendition case in
Pakistan.

A CIA spokesman declined to comment for this article, and State Department
officials declined to comment on the record. But the Swedish government has
released previously classified documents that confirm the American role.

In a Feb. 7, 2002 memo, a partial reconstruction of the case by the Swedish
security police noted that "the American side" had offered to help in the
deportation "by lending a plane for the transport."

In addition, lawyers from the Swedish Justice Ministry wrote in a separate memo
on April 12, 2002 that "the transport from Sweden to Egypt was carried out with
the help of American authorities." Both documents were heavily redacted before
their release.

A flight plan filed with Swedish aviation authorities shows that the Gulfstream
jet was registered to a Massachusetts company, Premier Executive Transport
Services. U.S. aviation records show that the firm has only two registered
aircraft and that they have permits to land at U.S. military bases around the
world.

Advocacy groups such as Human Rights Watch and Amnesty International have called
on the U.N. High Commissioner for Human Rights to open an inquiry into the case.

"The only way to discover what the U.S. role was is through an international
inquiry under the auspices of the U.N.," said Julia Hall, a lawyer for New York-
based Human Rights Watch. "There's no transparency otherwise. We just don't know
what buttons were being pressed by whom."

While Sweden has said it would welcome such an investigation, the United Nations
is unlikely to act unless Egypt agrees to cooperate, human rights groups said.
Egyptian authorities declined to comment on that possibility. But Hossan Salama,
an official with the Egyptian state security service, denied that the United
States was directly involved in the deportation.

"The Americans had absolutely nothing to do with this capture," he said in a
brief interview. "It was something completely done with the Swedes."
Prison Visits



As part of their agreement with the Egyptian government, Swedish diplomats
insisted that they be allowed to visit Agiza and Zery in prison regularly to
ensure that they were not mistreated.

Swedish officials did not schedule the first visit until more than a month after
the men arrived in Egypt. They were not allowed to see them except in the
presence of prison guards, and were forced to rely on an interpreter provided by
the Egyptian security services.

In a report made public shortly afterward, Sven Linder, the Swedish ambassador
to Cairo, wrote that Agiza and Zery told him they had been treated "excellently"
in prison and that to him "they seemed well-nourished and showed no external
signs of physical abuse or such things."

Another section of the ambassador's report that remained classified until
recently, however, offered a different appraisal. It noted that Agiza had
complained that he was subjected to "excessive brutality" by the Swedish
security police when he was seized and that he was repeatedly beaten in Egyptian
prisons. Swedish diplomats in Cairo declined to comment on the case.

Agiza's parents and lawyers said in interviews that he was severely punished by
his Egyptian captors after he complained to the Swedish officials and was warned
to keep quiet during future visits.

"Torture is a systematic thing in these prisons," said Mohammed Zarai , director
of the Human Rights Center for the Assistance of Prisoners in Cairo. "Every time
when these people visited him, as soon as they left, he was beaten and tortured.
They would ask him:. . . . Are they telling the Swedes to come visit?"

Agiza's mother, Hamida Shalaby, said he told her during separate visits that he
was given electric shocks and that prison doctors tried to cover up scars on his
body by applying a special cream. "He couldn't even pick up his arms to hug me,"
she said in an interview. "He was very slow and very tired and very weak."

Agiza's attorney in Stockholm has filed a complaint about the handling of his
asylum case with the U.N. Committee Against Torture. Although the committee has
no power to free him, it could rebuke Sweden for violating international
conventions prohibiting torture if it determines that the Swedish government was
liable for his alleged mistreatment by expelling him to Egypt.

"The Swedish government is facing a very hard situation now," said Hafez Abu-
Seada a Cairo lawyer who represented Agiza at his trial and serves as general
secretary for the Egyptian Organization for Human Rights. "Their reputation as a
leading human rights nation is at stake."

Zery's attorney in Stockholm has filed a similar complaint on his client's
behalf with the European Court of Human Rights.

Zery was released from a Cairo prison in October but is not permitted to leave
the country and remains under strict surveillance by Egyptian security forces.

In a brief telephone conversation last week, he said he was willing to grant an
interview and invited a reporter to visit. He cancelled the appointment an hour
later, however, saying that an Egyptian security official had ordered him not to
talk.

[ Staff researcher Margot Williams in Washington contributed to this report. ]

* * *


July 23, 2004; Page A01

ARMY CALLS ABUSES 'ABERRATIONS'
Report Cites 94 Detainee-Mistreatment Cases in Iraq and Afghanistan

By Josh White and Scott Higham, Washington Post Staff Writers

http://www.washingtonpost.com/wp-dyn/articles/A7124-2004Jul22.html

The Army's inspector general reported yesterday that 94 incidents of confirmed
or possible detainee abuse occurred in U.S. prison facilities throughout Iraq
and Afghanistan, but he added that the incidents were not due to "systemic"
problems, even though a months-long inspection found that soldiers were
inadequately trained and lacked proper supervision and clear orders.

The report by Lt. Gen. Paul T. Mikolashek -- presented to the Senate Armed
Services Committee at a hastily scheduled hearing yesterday morning -- concluded
that cases of abuse such as those at Abu Ghraib prison were "aberrations" that
did not result from flawed Army doctrine.

Some senators and human rights advocates criticized the report. They said it
ignored many of the most important questions, such as the hiding of "ghost
detainees" and the use of unmuzzled dogs during interrogations. They also said
the report's findings are contradicted by the International Committee of the Red
Cross.

Mikolashek and his team blamed 20 detainee deaths and 74 other reported
instances of abuse -- including beatings, sexual assaults and thefts -- on "the
failure of individuals to follow known standards of discipline and Army values
and, in some cases, the failure of a few leaders to enforce those standards of
discipline."

Mikolashek's 300-page report was released on the same day as the eagerly
anticipated report of the national commission investigating the Sept. 11, 2001,
terrorist attacks. Mikolashek's inspection team detailed failures at 16 prison
facilities. His report said the abuse cases were not part of a pattern and
involved a tiny percentage of the more than 50,000 detainees who have been held
by U.S. forces in Iraq and Afghanistan. The Pentagon and the Bush administration
have blamed a band of rogue soldiers for the abuse at Abu Ghraib.

"These abuses should be viewed as what they are -- unauthorized actions taken by
a few individuals," the report said, which went on to praise the majority of
soldiers. "We found numerous examples of military professionalism, ingrained
Army values and moral courage in both leaders and soldiers."

Mikolashek said that he looked at broad Army doctrine and training, interviewed
650 soldiers and officers, and visited more than two dozen military
installations in Iraq, Afghanistan and the United States.

He did not investigate individual cases of abuse, relying instead on the
findings of previous Army investigations. His team looked at the records of 125
reported cases of detainee abuse and found that no abuse occurred in 31 cases.
Of the rest, 54 cases remain "open or undetermined."

Of the 20 deaths considered confirmed or possible abuse, 10 occurred at prisons
or other permanent holding facilities, five at forward collection points and
five at the point of capture. Nearly half of the alleged cases of abuse occurred
at the point of capture, while 22 percent were reported at the holding
facilities, which included Abu Ghraib. The remainder came from collection points
and other locations.

Though the Army inspectors did not discover systemic detainee abuse, they did
document widespread problems throughout the U.S. military's detention operations
in Iraq and Afghanistan. They said that there were not enough translators and
interrogators in the field and that valuable intelligence may have been lost. To
make up for the shortage, the military hired private contractors to conduct
interrogations, but more than a third of those workers were not properly trained
in military interrogation techniques, the report said.

The inspectors found that nearly two thirds of the detainees were held at
makeshift prison camps called collection points for as long as 30 days. Army
doctrine restricts the lengths of stay to 12 hours at the camps, some of them
little more than concertina wire and a feeding station set up in the middle of
the desert.

The inspectors also said that there were widespread problems with preventive
medical services for those captured, and that none of the U.S.-run facilities
the team inspected was in compliance with the Army's medical screening
requirements.

In addition, only four of the 16 facilities the team visited had copies of the
Geneva Conventions in the detainees' native languages, as required under
international laws of war. None of the facilities in Afghanistan complied with
the requirement, according to the report.

Extremely poor conditions were documented at U.S.-run facilities in Iraq and
Afghanistan. At Abu Ghraib, the inspectors discovered serious overcrowding,
garbage and sewage covering the grounds of the outdoor camps, and only 12 shower
heads for 600 to 700 detainees. Fresh water was in short supply. So were
detainee meals, which were frequently contaminated with dirt and rodent
droppings.

The location of Abu Ghraib, 20 miles from Baghdad and near an urban and hostile
area, "lends itself to poor and dangerous living and working conditions," the
report said. The inspectors recommended that Abu Ghraib be closed and its
detainees transferred to Camp Bucca, in a more isolated area of the country.

In Afghanistan, inspectors documented numerous problems at the Bagram air base,
a former Soviet airfield, portions of which the United States turned into a
detention and interrogation center. The inspection team said the facility was
plagued with safety hazards. The roof leaked. Toxic chemicals from previous
airport operations contaminated sections of the facility. There was no sanitary
system. "Human waste spills were frequent on the main floor," the inspectors
said.

The report stands in sharp contrast to findings issued by the Red Cross. The
agency has called the abuse it found part of a pattern.

In February, the Red Cross prepared a confidential report concluding that
detainees under the supervision of military intelligence soldiers and officers
"were at high risk of being subjected to a variety of harsh treatments ranging
from insults, threats and humiliation to both physical and psychological
coercion, which in some cases was tantamount to torture."

The agency said the widespread "use of ill-treatment" could be considered a
"practice tolerated" by the coalition forces because it continued even after Red
Cross warnings to U.S. military and government officials.

A Red Cross spokeswoman declined to discuss the Army report yesterday.

Mikolashek said his team found no widespread evidence that unmuzzled dogs were
used in interrogations or that ghost detainees were shuttled through the system,
practices that were mentioned in an earlier and widely publicized report by Army
Maj. Gen. Antonio M. Taguba.

Sen. John McCain (R-Ariz.) said he was not satisfied with Mikolashek's report or
its findings. "If you didn't look at the gross and egregious violations, what
else didn't you investigate?" McCain asked.

Sen. James M. Talent (R-Mo.) praised the report as "vindicating our leaders and
our soldiers."

The Army's inspection report was one of several ordered this spring after the
revelation -- in vivid and shocking digital photographs -- of abuse at the Abu
Ghraib prison.

Though the report detailed many problems at Abu Ghraib, it blamed a few soldiers
and failed leadership at the prison.

Mikolashek assigned no blame to high-ranking officers in Iraq, but he criticized
some policies as confusing. He reported that military intelligence and military
police had conflicting instructions about their relative roles at the prison
that could "create settings in which unsanctioned behavior, including detainee
abuse, could occur."

The report attacked the interrogation policies as being vague: "While the
language of the approved policies could be viewed as a careful attempt to draw
the line between lawful and unlawful conduct, the published instructions left
considerable room for misapplication."

A lawyer for one of the seven soldiers implicated in the Abu Ghraib case labeled
as a "whitewash" the finding of no systemic abuse.

"That would be tantamount to hiding one's head in the sand," said Guy Womack,
who represents Spec. Charles A. Graner Jr., a reservist with the 372nd Military
Police Company in Cresaptown, Md.

After the hearing, McCain said he does not believe the report was a whitewash,
but he added "there are certainly questions."

Sen. Jack Reed (D-R.I.) faulted the report in an interview yesterday for not
examining chain-of-command issues. "It has not answered with finality what went
wrong," he said. "We don't know in a definitive and factual way what were the
policies coming out of higher headquarters. It's pretty murky."

Research editor Margot Williams contributed to this report.

* * *


July 16, 2004; Page A21

DANGEROUS EXECUTIVE POWER

By Abner Mikva

http://www.washingtonpost.com/wp-dyn/articles/A53586-2004Jul15.html

In 1971, along with the late Rep. Spark Matsunaga and others in the House of
Representatives, I sponsored the Non-Detention Act, which states: "No citizen
shall be imprisoned or otherwise detained by the United States except pursuant
to an Act of Congress."

This simple provision of law has served as a bulwark against the United States'
ever again establishing internment camps for citizens -- as it did during World
War II -- without the acquiescence of Congress. It also stilled the concern
occasioned by a McCarthy-era statute that authorized some camps (which were
never opened) to hold those engaging in riot or insurrection. The purpose of the
Non-Detention Act was clear: to prevent the executive from detaining U.S.
citizens without explicit statutory authority.

Recently the Supreme Court considered the Non-Detention Act in the case of Yaser
Esam Hamdi, a U.S. citizen taken prisoner in Afghanistan while allegedly
fighting for the Taliban. Justice Sandra Day O'Connor wrote that "a state of war
is not a blank check for the President when it comes to the rights of the
Nation's citizens."

But did an act passed by Congress shortly after Sept. 11, 2001, provide the
president with the statutory authorization to detain U.S. citizens that was
required under the Non-Detention Act?

Justice David Souter stated that the post-Sept. 11 law -- the Authorization for
Use of Military Force -- is "fairly read to authorize the use of armies and
weapons, whether against other armies or individual terrorists." But this act
never uses the word "detention," and, Souter wrote, there is "no reason to think
Congress might have perceived any need to augment Executive power to deal with
dangerous citizens within the United States, given the well-stocked statutory
arsenal of defined criminal offenses covering the gamut of actions that a
citizen sympathetic to terrorists might commit."

Although Congress gave the president the power to use military measures to fight
terrorism, it did not strip U.S. citizens accused of terrorist activities of the
protections of citizenship. U.S. citizens accused of involvement in terrorist
activities should be charged with a specific crime or released -- not held
indefinitely.

The lesson of history is that if Congress is going to authorize the detention of
American citizens for indefinite periods, it needs to do so directly and
intentionally, so that it can be held accountable. Why? Because executive
detention is a dangerous power that otherwise can too easily be abused, as the
Japanese American detention camps showed in World War II.

Our more recent history shows that many are being detained based on suspicion of
involvement in a terrorist conspiracy. Some were released after a period of
detention, without any charges being filed. Others, such as Hamdi or a Chicago
suspect named Jose Padilla, accused of plotting to detonate a "dirty bomb," are
still being held. Today, after the Hamdi decision, such persons have limited
right to access to counsel and some ability to challenge in court the factual
determination of whether they can be deemed "enemy combatants." But they lack
the basic right to know the charges against them or to receive a host of
assurances of due process available even to a U.S. citizen charged with treason.

The principle at the heart of the Non-Detention Act was affirmed by Justice
Antonin Scalia, who wrote (with Justice John Paul Stevens's support): "The very
core of liberty secured by our Anglo-Saxon system of separated powers has been
freedom from indefinite imprisonment at the will of the Executive." As O'Connor
observed, "It is during our most challenging and uncertain moments that our
Nation's commitment to due process is most severely tested; and it is in those
times that we must preserve our commitment at home to the principles for which
we fight abroad."

Thirty-three years ago Congress expressed the same vision with the plain words
of the Non-Detention Act. The Supreme Court has left it to the lower courts to
decide on a case-by-case basis whether the Authorization for Use of Military
Force or future congressional enactments satisfy the requirements of the Non-
Detention Act and give the executive branch the right to detain American
citizens. I hope the courts will set the bar high and prohibit the detention of
U.S. citizens by the executive unless Congress specifically authorizes such
detention. And I hope Congress will take care in the future to avoid the kind of
ambiguity the Supreme Court found to exist in the military force act. Finally, I
hope this president will return to the traditions that have made our democracy
strong and realize that if he believes he needs additional powers to fight
terrorism, he should make that case to Congress and the people.

[ The writer was a Democratic representative from Illinois and later served as
chief judge of the U.S. Court of Appeals for the D.C. Circuit and as White House
counsel. He is a visiting professor at the University of Chicago Law School. ]

* * *


July 11, 2004; Page B06

UNANSWERED QUESTIONS

Editorial

http://www.washingtonpost.com/wp-dyn/articles/A41550-2004Jul10.html

BACK IN MAY Sen. John W. Warner (R-Va.), chairman of the Senate Armed Services
Committee, vowed to continue probing the abuse of detainees in Iraq despite
pressure from leading congressional Republicans to stop. Since then he hasn't
held a single public hearing, partly because of a prolonged Senate debate over
the annual defense authorization bill but also because of the Bush
administration's resistance to supplying key witnesses and documents. Mr.
Warner's staff says the committee will have a closed meeting with the Pentagon
this week to discuss the status of official investigations and hopes to hold at
least one public hearing before the congressional recess begins at the end of
this month. This is welcome news: There remain many unanswered questions about
the criminal mistreatment of prisoners in Iraq, Afghanistan and elsewhere -- and
the Bush administration's continued stonewalling makes congressional action
essential.

***

The White House took a step toward openness last month by repudiating parts of a
legal opinion that justified torture and by releasing the current interrogation
procedures at the Guantanamo Bay prison. But the administration clings to the
myth that prisoner abuse was limited to a handful of low-ranking military
personnel, and it shamefully seeks to shield senior military and civilian
officials from accountability. Mr. Warner has asked for the testimony of seven
high-ranking officers or Pentagon political appointees, only to be rebuffed on
the pretext that their appearance might compromise ongoing investigations.

Meanwhile, a key report promised to Congress on the actions of Army intelligence
personnel has been delayed, and key documents requested by Armed Services have
not been delivered -- though senators may finally be able to review previously
undisclosed Red Cross reports on Iraq at this week's meeting.

Pentagon officials point to numerous continuing criminal and administrative
investigations, including one review led by two former defense secretaries and a
former member of Congress. Yet none of these may answer crucial questions
surrounding two senior Army officers: Lt. Gen. Ricardo S. Sanchez, the former
Iraq theater commander, and Maj. Gen. Geoffrey D. Miller, the former commander
at Guantanamo who now supervises Iraqi prisons. Both testified under oath to the
Armed Services Committee in May that they had nothing to do with a set of "rules
of engagement" posted at the Abu Ghraib prison last year. But other testimony
and documents show that most or all of those interrogation techniques were
listed in a policy issued by Gen. Sanchez's office, following the
recommendations of Gen. Miller. Gen. Miller's testimony is contradicted by sworn
statements given to an Army investigative team in Iraq. The accountability of
these two generals for the illegal procedures adopted at Abu Ghraib must be
fully investigated and publicly clarified -- particularly as Gen. Miller
continues to oversee sensitive prison operations.

Congress also has a duty to probe more deeply into the actions of Secretary of
Defense Donald H. Rumsfeld and former CIA director George J. Tenet. Mr. Rumsfeld
stated publicly last month that at Mr. Tenet's request he ordered that several
prisoners in Iraq not be registered with the International Red Cross, as
required by the Geneva Conventions. As an official Army report put it, this was
"contrary to Army doctrine and in violation of international law." If, in fact,
Mr. Tenet and Mr. Rumsfeld conspired to violate the Geneva Conventions in Iraq,
they should be held accountable -- just like the lowly reservists whom the
Pentagon now prosecutes.

* * *


July 10, 2004; Page A07

US TO TELL DETAINEES OF RIGHTS
Pentagon Outlines New Procedures

By Josh White, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A39879-2004Jul9.html

Detainees held in U.S. custody at the naval base in Guantanamo Bay, Cuba, will
learn of their legal rights for the first time beginning Monday as part of a
Pentagon plan to determine how many of the prisoners are enemy combatants and
who should be set free, officials said yesterday.

The Pentagon yesterday offered a preliminary outline of a new tribunal process
developed in the wake of a June 28 Supreme Court decision that allows detainees
to challenge their imprisonment in federal courts. But the new process doesn't
immediately grant the nearly 600 detainees at Guantanamo access to lawyers, and
it is unclear how detainees will assert their rights while imprisoned at a
remote base in another country.

Gordon England, secretary of the Navy, said a military tribunal process to
evaluate the status of detainees held as enemy combatants in the wake of the
Sept. 11, 2001, attacks could begin within a few weeks. Detainees will first be
told of their rights to contest their detention, to seek a writ of habeas corpus
and to meet with a personal representative who will be their advocate throughout
the military process.

England said the tribunals' underlying principle will be to see if each detainee
should be released to his home country, and he said detainees will have the
opportunity to present witnesses or affidavits to support their claims for
freedom. It is unclear what access detainees will have to witnesses in their
home countries, and England said it is likely that most witnesses will testify
via affidavits.

Detainees should learn of their rights -- there will be an effort to present
written notifications in as many as 17 languages -- by the end of next week.
They will then be assigned a military officer with a rank of at least major to
represent them in navigating the tribunals, and England said efforts will be
made to ensure that the representatives remain "neutral."

England said the military will move quickly to examine all detainees, hoping the
process will be completed within 120 days.

"Speed is of the essence," England said at a Pentagon briefing. "But the first
principle is to do this correctly. That is, do it fairly, make sure we have the
right standards, make sure it's well documented, but also do it as quickly as we
can."

The plan met with quick criticism, with defense attorneys calling the internal
process a way for the military to delay habeas corpus claims from reaching
federal courts and public scrutiny. The tribunals also will be entirely
controlled by the Pentagon, which has been asserting for years that each
detainee is an enemy combatant and can be held indefinitely without charges or
access to lawyers.

"For a detainee to be released under this process, this would require the
military to determine that they've been wrong for years," said Rachel Meerapol,
an attorney with the New York-based Center for Constitutional Rights, which
represents dozens of Guantanamo detainees. "They feel rigged toward a certain
outcome. I find it impossible to believe that a branch of government that has
been saying for 2 1/2 years that we've been able to hold these people can fairly
decide whether they are enemy combatants."

Meerapol also said the Supreme Court decision in Rasul v. Bush requires the
government to allow detainees to be represented by legal counsel. To date, none
of the detainees has been allowed to meet with lawyers, and England said he
expects that something will have to be worked out to allow groups of detainees
to meet with groups of lawyers, although no details have been devised.

* * *

July 9, 2004; Page A19

LOST CHANCES IN IRAN

By David Ignatius

http://www.washingtonpost.com/wp-dyn/articles/A37953-2004Jul8.html

Whoever wins this November's presidential election, the United States faces an
urgent question that the Bush administration has not resolved: What is America's
strategy for coping with the rising power of Iran?

Washington and Tehran have had extensive secret contacts since Sept. 11 --
premised on their shared goal of destroying al Qaeda and the Taliban in
Afghanistan and Saddam Hussein in Iraq. Despite many meetings, nothing has come
of the contacts -- partly because the Bush administration, not for the first
time, was internally divided over the right strategic course.

What's poignant about these wary U.S.-Iranian feelers is that just over a year
ago, they yielded a plan for an "anti-terrorist" deal that both countries should
have loved: Iran would hand over some senior al Qaeda operatives in its custody
and the United States would transfer to Iran some prisoners it was holding from
the Iraqi-backed Mujaheddin-e Khalq organization, a group America has officially
branded as terrorist.

The State Department is said to have favored such a deal, but the Pentagon
balked -- arguing that the Mujaheddin-e Khalq might be useful in fomenting
regime change in Tehran. Sadly, this internal dispute between administration
pragmatists and ideologues over Iran is similar to the feuds that have
obstructed policy on North Korea and Iraq.

To understand why Iran is such an interesting case study of lost opportunities,
a little background is necessary. The following account is drawn from current
Iranian officials, former U.S. officials and other sources.

The U.S.-Iranian dialogue began in earnest after Sept. 11. The initial
intermediary was U.N. official Lakhdar Brahimi, the same man who recently served
as special envoy in Iraq. The U.S. representative was often Ryan Crocker, one of
the State Department's top Middle East experts.

During and immediately after the Afghanistan war, meetings were held at least
once a month. One former U.S. official says flatly that without Iranian help, it
would have been impossible to establish the new government in Afghanistan under
President Hamid Karzai.

A new issue arose as al Qaeda operatives fled from Afghanistan into Iran after
the war. The Iranians arrested more than 500 of them in late 2001 and early
2002, according to one senior Iranian official. He said Tehran transferred many
to be interrogated in their countries of origin, including Saudi Arabia,
Pakistan, Italy and the Netherlands. A number of al Qaeda operatives charged
with mounting terrorist attacks in Iran remained there, and they will be tried
in Iranian courts later this year.

A second group of high-level al Qaeda leaders crossed into Iran's remote
Baluchistan province in the spring of 2002. U.S. intelligence officials believed
this group included Osama bin Laden's security chief, Saif Adel, and one of his
sons, Saad bin Laden. The administration badly wanted to interrogate them
outside Iran.

But the Iranians had a demand of their own, which ripened after the United
States toppled Saddam Hussein's regime in April 2003. About 4,000 members of the
Mujaheddin-e Khalq had been captured at their bases in Iraq, which they had used
for years to conduct attacks against Iran. Though the group's members were
officially terrorists, the administration was wary about turning them over to
Tehran. (Bush's own initial reaction is said to have been "Why not? They're
terrorists.")

In a secret meeting in May in Geneva, the two sides explored an exchange of the
"terrorist" captives. To assuage U.S. human rights worries, Iranians pledged to
grant amnesty to most of the 4,000 Mujaheddin-e Khalq captives, to forgo the
death penalty for about 65 leaders who would be tried in Iranian courts and to
allow the International Committee of the Red Cross to supervise the transfer.

The Bush administration ultimately rejected this exchange, bowing to
neoconservatives at the Pentagon who hoped to use the Mujaheddin-e Khalq against
Tehran. Some administration officials were disappointed: "Why we didn't cut this
deal is beyond me," says Flynt Leverett, who was in charge of Middle East policy
for the National Security Council until last spring.

The secret contacts were broken off in late May 2003, when U.S. intelligence
reports suggested that some of the senior al Qaeda operatives in Iran had helped
plan a bombing that month in Riyadh, Saudi Arabia. In the year since, Iranian
hard-liners have crushed reformers there and pushed ahead with their program to
acquire nuclear weapons.

Finding the right strategy for dealing with an Iran that has nuclear ambitions
and terrorist capabilities won't be easy. But Iranians and Americans who were
involved in the secret dialogue of the past few years remain convinced that the
only answer is a "grand bargain" that builds on the two countries' shared
interests -- and seeks to satisfy each country's security concerns. That's one
item to put in the White House "in-box" for January.

davidignatius@washpost.com

* * *


July 8, 2004; Page A01

PENTAGON SETS HEARINGS FOR 595 DETAINEES

By John Mintz, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A35423-2004Jul7.html

The Pentagon announced last night it will quickly hold hearings for all 595
detainees at the Guantanamo Bay prison as it scrambles to respond to the Supreme
Court ruling last week that the government was jailing terrorism suspects
without due process.

The new hearings are designed to determine whether the 595 detainees at
Guantanamo Bay, Cuba, meet the definition of "enemy combatants," as President
Bush and the U.S. military have said for more than two years. The administration
has used the enemy combatant designation to argue that the detainees do not
warrant some protections afforded by the Geneva Conventions.

Since the prison for alleged terrorists opened in early 2002, some human rights
activists have said that the government was obligated under international law to
hold these hearings. But the government refused, saying the detainees did not
deserve such rights because they are terrorists who wore no soldier's uniform
and violated the laws of war by killing civilians.

The new hearings -- to be called Combatant Status Review Tribunals -- are
separate from the hearings in federal court that the Supreme Court ruled the
government must offer to all the inmates to contest their detentions. But
administration officials and experts on military law said the new tribunals are
designed to buttress the government's case -- that it has been deliberative in
its detention decisions and afforded due process -- when it confronts defense
attorneys in the federal court hearings.

"The administration is trying to make the best of a bad situation," said Eugene
R. Fidell, president of the National Institute of Military Justice. "It's an
effort to play catch-up ball, and to blunt the possible impact of the habeas
corpus review."

The new tribunals were mandated by Deputy Secretary of Defense Paul D. Wolfowitz
in an order signed yesterday. It establishes that by July 17, every detainee
will be notified that his status as an enemy combatant will be reviewed in the
new hearings, and that he has a right to a habeas corpus hearing in federal
court. Each one will receive the help of a non-lawyer military officer acting as
a "personal representative," who will assist him in preparing for the combatant
status hearing.

Three neutral commissioned military officers -- none involved in the detainee's
capture, detention or interrogation -- will hear each case, Wolfowitz ordered.
The detainees will be allowed to attend all proceedings except for
deliberations, and sessions in which national security could be compromised, the
rules said. Detainees are to be given interpreters, and will be allowed to
testify, present evidence, call witnesses "if readily available," and to
question witnesses.

The three-officer tribunal will decide each detainee's case with "a
preponderance of the evidence" required to uphold the military's stance that he
is an enemy combatant. "There will be a rebuttable presumption in favor of the
government's evidence," meaning that greater deference should be given to the
military's claims but the detainee can try to argue against it.

If a prisoner is found not to be an enemy combatant, then he would be handed
over to the State Department for transfer to his home country, officials said.

Wendy Patten, a representative of Human Rights Watch, said the rules are biased
against detainees. "While the Geneva Conventions start with the presumption of
greatest protection for the combatant . . . here it is the reverse -- they
presume a detainee is an enemy combatant and expect him to disprove it."

The essential function of the new hearings, officials said, is to help
government lawyers argue their cases for continued detention in the habeas
corpus hearings that eventually will be held for all detainees. U.S. lawyers
would be able to argue that there is no reason for a judge to inquire too deeply
into a detainee's case because the government has already deliberated on it,
legal experts said.

"When and if there are habeas petitions filed challenging their detention, the
government will be in a position to say that we fully satisfied our legal
obligations," a senior Justice Department official told reporters yesterday at a
hastily convened news conference held on the condition that the speakers not be
identified by name.

"The government here is reacting very quickly to the Supreme Court's decisions,"
the Justice Department official added.

The new combatant status tribunals also are not supposed to replace yet another
type of hearing being planned for every detainee: an annual review of whether he
remains a danger to the United States. These hearings, first planned after the
Supreme Court announced it was going to hear the Guantanamo Bay case, are being
overseen by Navy Secretary Gordon R. England and are expected to begin in coming
months. Inmates found not to be a danger would be sent home.

In addition, six of the detainees at Guantanamo Bay are slated to be tried for
crimes in front of a military court also called a tribunal. The Pentagon
yesterday said nine additional prisoners are eligible for these trials.

* * *


July 4, 2004; Page A12

SLIM LEGAL GROUNDS FOR TORTURE MEMOS
Most Scholars Reject Broad View of Executive's Power

By R. Jeffrey Smith, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A26431-2004Jul3.html

Academic seminars including University of California law professor John Yoo are
no longer apt to be dry discourses on the primacy of executive branch power. At
an American Enterprise Institute session here last week, a heckler shouted that
Yoo should apologize for drafting Bush administration memos that, in the
critic's words, condoned torture.

The questioner was ruled out of order, so Yoo had no opportunity to say again
that he feels the claim is a distortion of his legal views. But there is little
question that Yoo and his former colleagues in the government -- a group of
conservative legal scholars who maintain that President Bush has broad power to
pursue the war on terrorism -- are caught in a discomforting spotlight.

The latest in a series of setbacks was the Supreme Court's rejection on Monday
of the claim that Bush can detain enemy combatants without independent review.
The court spurned the administration's request that it defer to the president's
discretion and insisted on what it depicted as a more careful balancing of
national security needs and individual rights, a test it said is relevant even
in wartime.

Some legal scholars argue that the courts' decisions -- in combination with the
administration's repudiation last week of an internal memo arguing that the
president has the power to sanction torture -- amount to a permanent rebuke of
the expansive view of presidential power that has underpinned numerous Bush
administration policies, including an executive order establishing military
tribunals that are not subject to judicial review.

Georgetown University law professor David Cole, a longtime critic of the
administration, called the court opinions in particular a rejection of "this
claim of unchecked presidential authority which has been advocated in so many
areas since September 11" and said, "This is really quite remarkable." Neal K.
Katyal, a counsel to some of the military lawyers defending detainees at
Guantanamo Bay, Cuba, said he believes recent events mean "the administration's
legal war on terror is utterly repudiated."

But Viet Dinh, a colleague at Georgetown and former assistant attorney general
who played a key role in drafting the administration's USA Patriot Act, said a
more narrow legal shift was possible.

"I would not say [the Supreme Court decisions were] . . . a victory for the
executive branch," Dinh said to laughter at a Georgetown symposium last week.
But he and Yoo have expressed optimism that some powers asserted by the
administration -- such as the right of the president to decide which individuals
are enemy combatants based on evidence that might not be admissible in court --
may be preserved in new hearings on individual detainees.

Their legal philosophy about presidential powers, however, is supported at
present by only a minority of legal scholars, a circumstance that became clear
from the storm of criticism that erupted after the disclosure this month of two
memos produced by Yoo and others in the Justice Department's Office of Legal
Counsel.

An August 2002 memo, provoked by a CIA request for interrogation guidance,
suggested that the president's commander-in-chief authorities meant that those
acting at his direction would be immune from prosecution for torture. That memo
drew on a January 2002 memo that suggested, over the opposition of the State
Department's legal adviser, that the president could suspend the application of
international protections for detainees.

Taken together, the memos presented a legal groundwork for aggressive
questioning of foreign detainees. On June 22, White House counsel Alberto R.
Gonzales publicly discredited the memo, an extremely rare event for such
opinions.

Gonzales called it "irrelevant and unnecessary to support any action taken by
the president." At the same time, however, he said the legal analysis
"underpinning the president's decisions" on detainees is not being reevaluated,
making it clear that the White House is sticking with its expansive views of
Bush's authority.

Yoo, a former law clerk to Supreme Court Justice Clarence Thomas and principal
author of the August memo, is a well-known advocate of strong presidential
powers. He was deputy head of the Office of Legal Counsel from 2001 to 2003. But
others who worked on the memos, including Jay S. Bybee, who headed the office
during roughly the same period and who is now a federal appellate judge, shared
Yoo's views on presidential authority, as did Gonzales.

Yoo, who declined to comment on how the memos were drafted, said they do not
represent "majority views among international law academics." He said their
depiction of presidential authority instead was "squarely within the practices
of the government" and past decisions by the Supreme Court -- a view his critics
contest.

The legal ideas supporting the August memo are part of a broad philosophy
holding that international laws such as the Geneva Conventions and the
Convention Against Torture are rules that states need not apply in absolute
terms. Advocates claim that treaties are more like contracts subject to
"situational" adherence than norms of conduct binding on every state, said David
B. Rivkin Jr., a White House lawyer in the Reagan administration who now works
at Baker and Hostetler in Washington.

"It's a minority viewpoint," said Rivkin, who shares it. "If you line up 1,000
law professors, only six or seven would sign up to it." He said some of its
adherents are associated with the Federalist Society, a conservative legal group
formed to combat what its Web site calls "orthodox liberal ideology" and
judicial interpretations that fail to safeguard individual prerogatives. Both
Yoo and Bybee, as well as Attorney General John D. Ashcroft, are close to the
society and frequently speak at its meetings, as are other lawyers appointed to
senior Bush administration posts at the Defense Department, Justice Department
and White House.

But criticism of the memos' claims of presidential powers has come from a wide
range of legal scholars, including past heads of the Justice Department Office
of Legal Counsel and chief legal advisers to the State Department under
Republican and Democratic presidents.

Douglas W. Kmiec, a Pepperdine University law professor who directed the legal
counsel's office under presidents Ronald Reagan and George H.W. Bush from 1985
to 1989, termed the August 2002 memo "unrefined" and said its depiction of
presidential authorities ran "the risk of being misunderstood." He said it
failed in particular to state clearly that anti-torture laws could be superseded
only "in grave or unforeseen or imminent" crises that do not exist at present.

Abraham D. Sofaer, a State Department legal adviser from 1985 to 1990, said he
also considers the August 2002 memo flawed. "We in the Reagan and Bush
administrations intended that deliberate violations of the Convention [Against
Torture] should lead to the criminal prosecution," said Sofaer, who testified
for the executive branch during Senate hearings on the convention's
ratification.

Sofaer said he believes the notion of "inherent" presidential authority to
ignore the treaty is vague and has little basis.

Walter Dellinger, who directed the Office of Legal Counsel in the Clinton
administration, said the memo's assertion of presidential authority "goes beyond
anything OLC has ever stated" and omitted any reference to a key Supreme Court
decision that acknowledges congressional power to enact laws that limit
presidential authority. That decision, barring President Harry S. Truman from
seizing steel mills to stop a strike during the Korean War, was specifically
cited by the Supreme Court last week in its rulings on foreign detainees.

Congress has mostly been silent on these issues. But five Republican senators
bolted from their party June 24 to pass a measure limiting U.S. interrogation
techniques to those that the United States would consider legal for other
nations to use. It urged the prompt prosecution or release of detainees to avoid
their "indefinite detention . . . which is contrary to the legal principles and
security interests of the United States."

The Defense Department had opposed the measure sponsored by Sen. Patrick J.
Leahy (D-VT), saying it would insert Congress "inappropriately into the
executive function of conducting the war on terrorism" and potentially diffuse
the "national focus on protecting Americans." But this view was rejected by
Republicans who have been highly critical of detainee abuses -- Sens. John
McCain (R-AZ), Lindsey O. Graham (R-SC), Mike DeWine (R-OH), Chuck Hagel (R-NE),
and Arlen Specter (R-PA), who voted for the measure.

* * *


July 4, 2004; Page A12

FINALITY SEEMS TO ELUDE HIGH COURT'S GRASP
In Ruling on Constitutional Controversies,
the Justices Are Leaving Them Unsettled

By Charles Lane, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A26432-2004Jul3.html

The day before the Supreme Court ended its term last week, Justice John Paul
Stevens, the court's 85-year-old liberal lion, mounted his seat at the mahogany
bench and took aim at his conservative colleagues for "avoidance of our duty."

The same five-member majority that had ruled for George W. Bush in the disputed
2000 election had just invoked procedural reasons to dismiss the case of a U.S.
citizen, Jose Padilla, who was challenging his indefinite incommunicado military
detention by the Bush administration.

The five -- Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor,
Antonin Scalia, Anthony M. Kennedy and Clarence Thomas -- had concluded, over
Stevens's objections, that the court could not responsibly stay out of the
election dispute. Now, Stevens expressed dismay that they would show judicial
restraint in a case where, he said, "nothing less than the essence of a free
society" was at stake.

"Even more important than the method of selecting the people's rulers and their
successors is the character of the constraints imposed on the Executive by the
rule of law," Stevens said, his voice seeming to tremble with emotion. "[I]f
this Nation is to remain true to the ideals symbolized by its flag, it must not
wield the tools of tyranny even to resist an assault by the forces of tyranny."

Yet, in calling for decisive action, Stevens was voicing a minority sentiment --
not only in the Padilla case but also in the term as a whole.

To a surprising degree, given its confident recent strokes such as upholding
affirmative action in higher education and invalidating federal laws that
intrude on state sovereignty, the court proceeded incrementally, even
hesitantly. In case after case, it addressed big issues without really settling
them.

Though the court did subject the Bush administration to federal court oversight
of its imprisonment of citizens and noncitizens as terrorism suspects, there was
no majority of the court for an overall legal theory on the president's
authority to detain citizens as "enemy combatants."

In a plurality opinion by O'Connor, the most moderate of the conservatives, the
court basically announced that judges must balance the competing interests of
security and liberty, outlined some suggestions for how to do that -- then left
it to lower courts to figure out the details.

The court permitted the phrase "under God" to remain in the Pledge of Allegiance
as recited by schoolchildren, but did so without deciding the core question of
whether it violated the constitutional ban on official religion.

The court declined to decide whether Vice President Cheney must turn over the
records of his 2001 energy policy task force. Instead, the justices prolonged
the case by sending it to a lower court for reconsideration.

Even when a five-member majority clearly felt that a 1998 federal law designed
to shield children from Internet pornography violated free speech, they did not
strike it down outright, but ordered a lower-court trial on some narrow factual
issues.

It was as if the justices, at a time when the country is involved not only in
war but also a closely fought election campaign, had lost confidence in their
ability to forecast the likely practical or political impact of their actions,
and reined themselves in accordingly.

"In a divided nation and an election year, the court is test-driving a number of
different principles without actually forking over a down payment," said Mathew
S. Nosanchuk, a Washington lawyer who practices before the court.

Certainly this performance minimized the chances that any of their decisions
would turn the court itself -- or future judicial appointments -- into a bigger
election issue.

"They are acutely aware that it is a presidential election year, and they're not
going out on a limb," said Goodwin Liu, a professor of law at the University of
California at Berkeley.

The court's internal left-right divisions were very much in evidence, mirroring
the extent to which the country's broader split between a conservative "Red
America" and liberal "Blue America" has resurfaced despite a flush of national
unity after Sept. 11, 2001.

Again, Stevens's actions last week illustrate the point. A few weeks after the
terrorist attacks on the World Trade Center and the Pentagon, Stevens went out
of his way to put the rancor of Bush v. Gore behind him, offering a wartime
toast to the chief executive, whom he called "my president," at a Chicago
lawyers' gathering.

But in his dissent in the Padilla case, the World War II veteran showed just how
much he has come to disagree with President Bush's conduct of the fight against
terrorism. He likened Padilla's detention to the Star Chamber and called it a
"form of torture."

Stevens's opinion in the Padilla case was joined by David H. Souter, Ruth Bader
Ginsburg and Stephen G. Breyer.

The court decided 19 cases by 5 to 4. In 10 of them, the majority was formed by
the conservatives: Rehnquist, O'Connor, Scalia, Kennedy and Thomas, according to
figures compiled by Supreme Court litigation specialist Tom Goldstein.

O'Connor and Kennedy were the swing voters again, with O'Connor joining the
court's four liberals, Stevens, Souter, Ginsburg and Breyer, to create a
majority in four cases, and Kennedy doing so twice.

But also striking this term were a number of important cases in which, even when
there was a majority for a particular outcome, that majority could not agree on
the legal reasoning.

"The court's incrementalism probably masked the deep fissures underneath the
court," Goldstein said.

For example, the court ruled, 5 to 4, that police officers may not deliberately
question suspects without warning them of their right to remain silent and then
use the resulting confessions to set up a second, warned, interrogation.

But Kennedy, in a separate concurring opinion, said that while he agreed with
that rule as it applied to the case before the court, he would not necessarily
apply it to all future cases.

This mixed result, which left the full impact of the ruling still to be
litigated, emerged after what appeared to be prolonged internal wrangling at the
court; the case, Missouri v. Seibert, No. 02-1371, was argued on Dec. 9, 2003,
and not decided until June 28.

In a companion case, U.S. v. Patane, No. 02-1183, all five conservatives voted
to permit the admission of physical evidence the police found as a result of a
suspect's unwarned statement. But Kennedy, joined this time by O'Connor, wrote
separately to explain that he would not have gone as far as Rehnquist, Scalia
and Thomas in excusing what the three called "mere failures to warn" suspects.

And the court puzzled many analysts with an opinion in Sosa v. Alvarez-Machain,
No. 03-339, that permitted suits against foreign human rights abusers in U.S.
courts, but warned federal judges not to endanger the executive's foreign policy
prerogatives by letting too many such cases proceed.

That opinion, by Souter for a six-justice majority, prompted Scalia to write
scornfully of the court's "Never Say Never Jurisprudence."

There were exceptions to the general pattern.

By 5 to 4, the court upheld the Bipartisan Campaign Finance Reform Act, clearing
the way for a ban on "soft money" donations and new regulations on "issue ads"
on radio and television.

The court ruled unanimously that consumers may not sue their managed-care
companies for medical malpractice under state law when a denial of coverage
allegedly leads to death or injury. That put a stop to state "patients' rights"
legislation and shifted all future political struggle over the issue to
Congress.

Also, the court ruled that jurors, not judges, must find any facts that would
result in a sentence higher than that called for in state guidelines, a ruling
that invalidated state sentencing reform and threatened to invalidate federal
sentencing rules as well.

But in the terrorism cases, some of the most eagerly anticipated wartime
confrontations between the judiciary and the executive in modern times, the
court struggled to speak with one voice.

In the pivotal case, Hamdi v. Rumsfeld, No. 03-6696, the court was asked to
decide whether Bush could designate a U.S. citizen, Yaser Esam Hamdi, who was
captured in Afghanistan while allegedly fighting for the Taliban, an enemy
combatant and hold him in military custody indefinitely, without an opportunity
to protest his innocence before an impartial arbiter.

Eight justices -- all but Thomas -- rejected the administration's contention
that the federal courts could exercise no supervision over such a case.

But after that, they went their separate ways.

A four-justice plurality -- Rehnquist, O'Connor, Kennedy and Breyer -- gave the
administration the mildest rebuke, agreeing that it had the authority to hold
citizens as combatants -- at least in circumstances such as Hamdi's, where the
citizen was detained in a combat zone abroad -- but that it would have to give
him an opportunity to seek redress before "a neutral decisionmaker."

Scalia, joined by Stevens, dissented, arguing that the president has no right to
hold a citizen as an enemy combatant unless Congress expressly authorizes it by
suspending the writ of habeas corpus.

The unusual Scalia-Stevens alliance did show that, on the court as in Congress
and the wider public, civil liberties is an issue that can unite some elements
of the right and left.

But it was an alliance of only two. Souter, joined by Ginsburg, dissented, too,
but on different grounds. They wanted no part of the plurality's decision to
recognize even a limited presidential power to hold Hamdi as an enemy combatant.

But Souter and Ginsburg agreed to cast their votes for the part of the
plurality's opinion that granted Hamdi a hearing.

Souter's opinion candidly acknowledged that, otherwise, there would be no
majority holding in the case, and Hamdi would not actually get a hearing.

So much was left undecided, in fact, that some administration supporters claimed
at least partial victory.

"If I were a detainee, I wouldn't be breaking out the champagne," said David B.
Rivkin Jr., a lawyer here who advises the administration on terrorism issues.

* * *


July 4, 2004; Page W10

COURTING O'CONNOR: WHY THE CHIEF JUSTICE ISN'T THE CHIEF JUSTICE

By Charles Lane

http://www.washingtonpost.com/wp-dyn/articles/A16332-2004Jun29.html

Sandra Day O'Connor's voice betrayed just a trace of exasperation as she
addressed the atheist pleading his case before the Supreme Court of the United
States.

His name is Michael Newdow, and he believes that the phrase "under God" does not
belong in the Pledge of Allegiance, which his daughter and other children are
asked to recite in public school each morning. The Supreme Court decided more
than 60 years ago that no child can be forced to recite the pledge. But, to
Newdow, the fact that his child must choose between listening to a state-drafted
affirmation of God's existence or risking ostracism by excusing herself is a
violation of the Constitution's ban on officially established religion.

Newdow, an intense, wiry man with close-cropped gray hair who holds both medical
and law degrees, was allowed to argue his case personally -- and, on that March
day, he was doing a surprisingly nimble job. When Justice Stephen G. Breyer
suggested that the God of the pledge is, perhaps, "a very comprehensive supreme
being," too generic to justify Newdow's objection, the atheist shot back, "I
don't think I can include 'under God' to mean no God."

O'Connor seemed uncomfortable with that.

"And you have no problem with 'In God We Trust' on the coins, and that sort of
thing?" she inquired.

"If my child was asked to stand up and say, 'In God We Trust,' every morning in
the public schools led by her teachers . . . " Newdow began.

"It's all right for her to have the coins and use them and read them, but it's
the problem of being asked to say the pledge, which she doesn't have to say?"
O'Connor countered.

"Well, first of all, under Lee v. Weisman, she is coerced," Newdow said, citing
a 1992 case in which a five-vote majority of the court ruled that an officially
sponsored invocation at a public high school graduation was unconstitutional
because it would make nonreligious students feel coerced to join in.

O'Connor cut him off. She knew all about Lee v. Weisman because she was in the
majority. "Now, wait a minute," she said, "we have other authorities saying that
no child is required to say the pledge."

"And no child was required to be at the graduation [in] Lee v. Weisman," Newdow
replied.

"That was a prayer," O'Connor pointed out.

Hers is a familiar and authoritative voice in the courtroom, with its 44-foot-
high ceiling, two dozen massive columns of Italian marble and 280-square-foot
friezes depicting lawgivers from Hammurabi to Moses to Solon. The grandiose
space sends a silent message to every member of the audience: The law soars
above us all. Only the nine justices occupy a position of exaltation. They enter
theatrically -- cued by a high-pitched whistle, followed by a single rap of the
marshal's gavel -- through slits in a gigantic red velvet curtain, then climb
into high-backed leather chairs behind an imposing mahogany bench.

O'Connor sat just to the left of Chief Justice William H. Rehnquist as the
justices sized up Newdow. She is not, and never has been, very much like Newdow.
They represent antithetical approaches to the law and to life. When people say,
as they often do, that O'Connor is the most powerful woman in America, they are
not referring to the power that comes from planting the banner of some fixed
principle and rallying people around it, as Newdow was trying to do. Rather,
O'Connor's is the power of the persuadable mind -- of a pragmatic sensibility in
possession of a strategic asset: her vote.

As the key centrist on a Supreme Court polarized between liberals and
conservatives, the silver-haired Republican moves the court according to the
credo she articulated in a speech three years ago to members of the Nebraska Bar
Association: "The rule of law must . . . be flexible enough to adapt to
different circumstances."

Newdow had little chance of winning his case without O'Connor's vote. And,
indeed, he lost. When the court voted 8 to 0 last month to let the pledge stand
as it is, O'Connor's opinion showed that, for her, the case was simple: No
reasonable person, aware of the country's history and tradition, would agree
with Newdow that "under God" is government endorsement of religion.

In another sense, though, Newdow fought O'Connor to a draw during oral
arguments. His contention that a public-school-sponsored pledge recitation runs
afoul of Lee v. Weisman was hardly far-fetched. Indeed, it would appear that the
clear, unequivocal line Newdow wanted the court to draw is quite consistent with
the one that it traced in Lee. It is O'Connor's view that requires some legal
hair-splitting -- even though it is certainly more in line with what the public
thinks. That may be why, in this case, five of the eight justices who rejected
Newdow did so on procedural grounds, ducking the constitutional issue.

By the end of the pointed exchange between O'Connor and Newdow, we had a better
idea of who might win the case. But we came no closer to answering the key
question raised by O'Connor's career as a justice: Can the rule of law, as
practiced by the Supreme Court, become so "flexible" that it doesn't mean much
more than the rule of Sandra Day O'Connor?

IN THEORY, EVERY SUPREME COURT JUSTICE'S VOTE IS UP FOR GRABS IN EVERY CASE. In
reality, the court's members follow clear ideological patterns. Justices John
Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Breyer are liberals.
Justices Antonin Scalia, Clarence Thomas and Rehnquist are the court's reliable
conservatives. Not only is the court polarized with respect to abortion,
affirmative action, states' rights and the death penalty, it is deeply divided
on questions of judicial philosophy, with the liberals favoring a wider role for
the courts in defining and protecting constitutional rights, and the
conservatives espousing judicial restraint.

These voting blocs -- and the power that O'Connor wields by straddling them --
emerged more by accident than by design. She joined the court in 1981, as an
appointee of President Ronald Reagan. The court's liberal-conservative split is
largely the consequence of events that happened after that, including the
unforeseen but steady leftward movement of two other Republican appointees,
Stevens and Souter.

Both O'Connor and the other justice sometimes described as a swing voter,
Anthony M. Kennedy, are generally conservative. He, too, was appointed by
Reagan, joining the court in 1988. Yet of the two, O'Connor is the more pivotal.
She provides a fifth vote to make a liberal majority more often than Kennedy
does. During the court's 2002-2003 term, she sided with the liberal bloc in four
of the 15 cases that resulted in a 5 to 4 vote; Kennedy did not do so once.

Those who argue cases before the Supreme Court ignore these statistics at their
peril. Many concede privately that they write their court briefs with O'Connor
in mind and pitch their oral arguments to her as well. Richard Lazarus, a
professor of law at Georgetown University who organizes moot courts for lawyers
preparing to argue before the court, says that the advocates often ask him to
use O'Connor's former law clerks as practice "justices" -- on the theory that
this is the next best thing to facing her.

"What I do, and what I advise people arguing cases, is to treat all the justices
with great respect," says Lazarus, who also practices before the court. "But . .
. when Justice O'Connor asks a question at oral argument, every advocate would
be well advised to answer in full, and pause and look at her, because nothing is
more important to you than making sure you've addressed her concerns. With the
others, it may not make a difference."

Second, there is a crucial difference in the way O'Connor and Kennedy make
decisions. To oversimply a bit: When Kennedy switches sides, he really switches
sides. Take his historic opinion striking down Texas's sodomy law last year. One
possible resolution to the case was to rule it a violation of the constitutional
guarantee of equal treatment under state law because it criminalized sodomy
between gays but not between straights. Instead, Kennedy wrote a ringing
denunciation of prejudice against homosexuals, striking down the law as a
violation of sexual privacy rights -- an approach that not only overruled a 17-
year-old precedent but also invalidated all remaining sodomy laws and gave a
huge symbolic boost to the gay marriage movement.

O'Connor voted with Kennedy but drafted a separate concurring opinion that
relied on the more limited equal-treatment argument. This is characteristic of
her approach to constitutional issues -- particularly contentious social
questions such as abortion, religion and affirmative action. Cass Sunstein, a
professor of law at the University of Chicago, calls O'Connor's method "judicial
minimalism." It amounts to a reluctance to make any more law than absolutely
necessary to decide the case in front of her. She decides big cases without
necessarily settling big issues.

The result: It matters not only how O'Connor votes but also what she writes.
Even her opinion in the pledge case refined her theory of government
"endorsement" of religion in ways that could help decide future church-state
cases.

Her opinions on abortion have proved crucial over the years. In 2000, for
example, the court ruled 5 to 4 that a Nebraska law banning late-term abortions
violated the constitutional right of a woman to terminate her pregnancy
established in Roe v. Wade. Writing for the majority, Breyer struck down the
Nebraska statute, which was similar to laws in 30 other states, because it could
be read to ban some second-trimester abortions and because it lacked a
sufficient exception to protect the health of a woman. Thus, Breyer concluded,
it imposed an "undue burden" on the right to choose -- violating a standard that
O'Connor had set forth in a 1992 case affirming Roe.

O'Connor joined Breyer but, crucially, added a separate concurring opinion.
While disapproving of Nebraska's particular law for the same reasons Breyer did,
she would not forbid all efforts to legislate against so-called partial-birth
abortion; rather, she suggested criteria that would make such laws
constitutional. Because O'Connor's was the fifth vote against the Nebraska
statute, her opinion represented, de facto, the controlling rule of law. And it
contained, at least in theory, some wiggle room for legislators. That has
profound implications for the future of the federal law banning the procedure,
which was signed into law by President Bush last year and which is being
challenged in lawsuits that will inevitably reach the Supreme Court. "We were
certainly cognizant of Justice O'Connor's opinions," particularly in the
Nebraska case, says Rep. Steve Chabot (R-Ohio), the law's chief sponsor in the
House. "We really carefully crafted the bill, trying to do all we could to
withstand a constitutional challenge."

The law defined the banned procedure in line with O'Connor's opinion, so that it
would not include second-trimester procedures. Its drafters brought in
specialists to testify that a very late-term abortion could never be necessary
to protect a woman's health -- then endorsed this testimony as legislative
"findings" that the courts must heed. But the law, for all its popular support
-- the blessing of large majorities in both the House and Senate and the
president's signature -- still depends on the approval of a 74-year-old
grandmother from Arizona.

O'CONNOR'S PERFORMANCE ON THE COURT REFLECTS NOT ONLY A CONSCIOUS APPROACH TO
LAW but also a long-established approach to life. "She is who she is, and that
is the way she acts," says Michael Deaver, the former Reagan White House adviser
who helped O'Connor through the confirmation process when she arrived in
Washington and has remained a friend ever since. "She doesn't think of it as
being powerful. Just being Sandra is how she's gotten power."

Any discussion of what it means "to be Sandra" must start with her childhood on
the Lazy B Ranch, a 250-square-mile expanse of desert cattle range on the
Arizona-New Mexico border. The Lazy B, O'Connor told me in a May 2003 interview,
was so huge and so isolated that growing up there "was like living in your own
country almost." As O'Connor recalled it in her 2002 book, Lazy B, a memoir co-
written with her brother, businessman Alan Day, the ranch was hot, quiet and,
above all, dry. "We would watch the skies constantly, hoping for rain," she
wrote.

The property, most of it leased from the U.S. government, was on high, sloping
terrain that ran from 6,200 feet above sea level in the Peloncillo Mountains to
3,400 feet at the banks of the Gila River. For playmates, O'Connor had lizards,
a bobcat, horses with names such as Chico and Hemorrhoid, and a handful of
leathery cowboys, who taught her how to ride and cope with cactus thorns.

The Lazy B started off without electricity and running water, but Sandra, Alan
and sister Ann, who, like Sandra, later became a politician in Arizona, did not
grow up poor. By the time Sandra turned 7 in 1937, the family was able to expand
its modest ranch house to include two new bedrooms, a bathroom, running water, a
gas stove and electricity. By 1950, the place appeared in photographs as a trim,
modern adobe structure that would not have looked out of place in a Phoenix
suburb.

In that isolated domain, everyone had to conform to the benevolent dictates of
Harry Day, Sandra's father -- an opinionated rancher who was grudging with
compliments and expected his workers and his children to do things his way.
Whether competing with him at pinochle or painting a screen door to his
specifications, young Sandra was expected to obey the rules and do her best.

In dinner table conversations with her father, affectionately known by the
initials "D.A.," and her mother, Ada Mae, or "M.O.," O'Connor heard about the
excesses of the New Deal and absorbed her lifelong allegiance to the Republican
Party. The arid, self-sufficient ranch was probably the crucible in which
O'Connor's later support of decentralized government and states' rights was
formed. And in long days accompanying her father and his cowboys on their
arduous jobs, she became comfortable working and even competing with men, to a
degree that was highly unusual in her generation.

"She spent a whole childhood learning to operate in a man's world. Women who
don't have to learn those skills later on," says Hattie Babbitt, a former
Clinton administration official who met O'Connor in the 1970s, when O'Connor was
the only female judge in Phoenix's trial court and Babbitt was one of the few
women arguing cases.

At the same time, the Lazy B was not the sort of place where it necessarily paid
to dig in your heels over points of pride or principle. Life was a series of
exercises in problem-solving: how to cure a sick animal without a veterinarian
or use the sun's rays to heat water in the days before electricity. "The value
system we learned was simple and unsophisticated and the product of necessity,"
O'Connor wrote. "What counted was competence and the ability to do whatever was
required to maintain the ranch operation in good working order . . . Personal
qualities of honesty, dependability, competence and good humor were valued
most."

Even D.A. occasionally had to bend. O'Connor wrote that her father once accused
Rastus, one of the ranch's best cowboys, of selecting the wrong calf to send to
market. Furious at the slight, Rastus quit. After three weeks, D.A. finally went
to nearby Duncan, Ariz., where he found Rastus, apologized, and pleaded with him
to come back. Rastus returned, and, O'Connor wrote, "none of us questioned
Rastus's judgment about the identification of a particular cow and calf ever
again." And, if economic survival depended on it, D.A. took government aid --
when a drought collapsed the cattle market in 1934, he reluctantly agreed to
destroy many of his 800 weakest animals in exchange for a federal payment of $12
a head.

Nor was religious doctrine a major element of the Day family's life. "It
certainly was not as big a feature as it was in many other families," Alan Day
recalled in an interview. Nominal Episcopalians, the Days would sometimes attend
the closer Methodist church on the rare occasions when they had time to make the
three-hour round trip. In her book, O'Connor described asking D.A. why they did
not attend church, and whether he believed in God. D.A.'s answer: "It is an
amazing, complex, but orderly universe. And we are only specks in it. There is
surely something -- a God if you will -- who created all of this. And we don't
have to go to church to appreciate it. It is all around us. This is our church."

O'Connor's parents were determined that neither their intellectual horizons nor
those of their children should be fixed by the boundaries of their ranch. The
family subscribed to the New Yorker and the Los Angeles Times; the Days traveled
to Alaska and pre-Castro Cuba. Out-of-town visitors came frequently, and each
time was an occasion for small-scale celebration. Yet D.A.'s and M.O.'s
educational ambitions had a painful consequence for their elder daughter. From
first grade through high school, she spent each school year except one with her
grandmother in El Paso, so she could attend classes at a private girls' school.
"I was always homesick when away from the ranch," O'Connor wrote in Lazy B.

In the fall of 1946, M.O. and D.A. drove her to Palo Alto, Calif., and dropped
her off at Stanford University, the school her father had wanted to attend but
had to forgo to take on management of the Lazy B. In the early postwar years,
Stanford must have seemed a metropolis compared with the Lazy B, or even El
Paso. Enrollment reached all-time highs, as World War II vets flocked to the
campus. Trailer camps sprang up to house the extra students.Of the 826 first-
year students who enrolled with O'Connor, one-third were women; Stanford imposed
a strict quota on the number of female students in those days.

O'Connor, a tall 16-year-old with short, dark hair, an angular face and a gap-
toothed smile, wrote that she felt "poorly prepared compared to other freshmen I
met." She would walk the hallways of her dormitory, singing the sad chorus of
"Beautiful, Beautiful Brown Eyes," a folk tune about a woman who regrets her
marriage to a hard-drinking man.

It was at Stanford that O'Connor met the key intellectual and spiritual
influence of her young life: an eclectic law professor named Harry J. Rathbun.
In the 1960s, Rathbun would found Creative Initiative, a nonprofit group
dedicated to "exporing life's meaning." But at that time at Stanford, Rathbun
taught business law during the week and led discussion groups on psychology,
religion and ethics at his home on Sunday evenings. O'Connor first attended one
of Rathbun's home seminars with classmate Mary Beth Growdon, who was Rathbun's
niece.

"I don't think I had a cohesive philosophy of life at that point," O'Connor told
C-Span's Brian Lamb in 2002. But the professor's enthusiasm for the broad
metaphysical questions that tend to preoccupy undergraduates intrigued the
rancher's daughter. "She was mesmerized," Growdon recalls.

O'Connor signed up for Rathbun's undergraduate course, and she has often said
that it was because of his influence that she went on to Stanford's law school
and became a lawyer. The philosophy O'Connor absorbed from Rathbun offered not
ideological answers to life's questions, but an ostensibly practical method of
asking them. It was an unconventional, almost New Age, approach, derived from
the writings of Henry Burton Sharman, a University of Chicago scientist and
theologian who developed a philosophy of spiritual development based on the
detailed study of Jesus's biography. Sharman believed in applying the techniques
of scientific inquiry to the Gospels, selecting those aspects of a story most
likely to have actually occurred and then modifying one's life based on their
lessons. Once derived, these ethical norms could supersede legal obligations.

"I remember at the dinner table [my father] would talk about his love and
respect for the law," Rathbun's son, Richard, recalls. "But law would follow
social ethics. People personally should work out of a sense of personal ethics."

In conveying that strong but flexible sense of responsibility, Rathbun made
O'Connor realize that she didn't necessarily have to think of herself as a
"speck" in the cosmos.

"He was just terrific," O'Connor told me last year. "And [he] was the first
person ever to speak in my presence of how an individual could make a
difference, even in our huge world. How a single caring person can effectively
help determine the course of events. I had not heard that before, really, and he
put it forward in such a persuasive way that I think most of us came to believe
it might be true, and to take seriously the notion that we could make a
difference."

In the late 1940s, Rathbun was unusual in another respect: He felt that his
empowering message should be directed to women as well as men. "If the world's
crisis is to be met successfully," he once wrote, "the need is that woman shall
be given, and shall take, her proper place. That place male domination has
heretofore denied her . . . In achieving this equality, not only must woman
claim her place, but the male must make sure this is accorded her. Together,
they can make a new world."

IN 1980, REPUBLICAN PRESIDENTIAL CANDIDATE RONALD REAGAN PROMISED that he would
name a woman "to one of the first Supreme Court vacancies in my administration."
It was, says Richard Wirthlin, Reagan's pollster, an attempt to chip away at the
"gender gap" -- Reagan's weakness among female voters, which, Wirthlin recalls,
"haunted us all through this period."

The gap remained, though Reagan kept his promise. When Justice Potter Stewart
informed the White House in early 1981 that he was planning to retire, Reagan
told Attorney General William French Smith that he wanted to see a list of
possible replacements that included women. At the time, there were only a
handful of women in the country with significant experience on the bench, and
not many of them were Republicans. One was a 51-year-old appellate judge from
Arizona who had once applied to Smith's firm in California and had been offered
a job -- as a secretary.

Indeed, for O'Connor, the years after Stanford had been shaped by the fact that
few men in the legal profession shared Harry Rathbun's views about gender. After
graduating from law school in 1952 -- in a class whose top student was Rehnquist
-- she settled in California with her new husband, John O'Connor, who was
finishing up at Stanford law. She eventually landed a job as a lawyer in the San
Mateo County attorney's office by offering to work for free until a paid
position opened up.

When her husband was drafted, O'Connor moved with him to a military base in West
Germany, where she worked as a civilian lawyer for the Army. Upon the couple's
return to Phoenix in 1957, she set up a small firm with one partner at a strip
mall, taking "walk-in business, whatever we could get . . . And it wasn't the
kind of problem that usually finds its way to the United States Supreme Court,"
she recalled in a 2002 interview broadcast by Arizona public television.

O'Connor took five years off from the practice of law from 1960 to 1965 to
concentrate on raising her three sons. She and her husband were active in local
Republican politics and the Paradise Valley Country Club, as well as generally
throwing themselves into a busy social schedule among friends in the upscale
Phoenix suburbs. O'Connor was involved in so many charities and government
advisory boards that it was not entirely clear that she was taking time off.

The '60s were not as turbulent in Arizona as in other parts of the country, but
when Sen. Barry Goldwater swept to the 1964 Republican presidential nomination
proclaiming that "extremism in the defense of liberty is no vice," the state
became a focal point of sorts for the conservative movement. One leading light
of the Arizona right was Rehnquist, who wrote speeches for Goldwater, helping
him develop constitutional arguments against federal civil rights legislation.
Rehnquist testified before the Phoenix City Council against an ordinance that
would have required hotels and restaurants to serve African Americans. Witnesses
at Rehnquist's Supreme Court confirmation hearings would later accuse him of
harassing minority voters at the polls in the years from 1958 to 1964 -- charges
he denied.

While O'Connor was a precinct captain for Goldwater, and the two were friends
until he died at age 89 in 1998, she was not cut from the same ideological cloth
as Rehnquist. Her first job upon returning to the workforce was as an assistant
state attorney general, focused in large part on improving conditions at the
state's mental hospital. After being appointed to the state Senate in 1969 and
elected in her own right a year later, she was chosen by the Republican caucus
as the first woman in U.S. history to be majority leader of a state Senate.
Republicans enjoyed only a one-seat majority, and O'Connor is generally
remembered as a consensus-builder. Her signature issue was merit selection of
judges.

In 1974, with crime on the rise in Phoenix, she ran for state trial judge --
notwithstanding her own qualms about judicial elections. She campaigned as a
"citizen, a wife, and a mother," who would "help replace fear in our streets
with strength in our courtrooms." Once elected, she sentenced a mother of two
small children to five years in prison for passing thousands of dollars worth of
bad checks -- then went back to her chambers and wept, according to a 1990
biography by her former law clerk Peter Huber. She also threw out the conviction
and death sentence of a murderer because of prosecutorial misconduct, and
suppressed crucial prosecution evidence in another murder case because police
had gathered it unconstitutionally.

It is a measure of her reputation as a middle-of-the-roader that she was
elevated to the state's intermediate court of appeals in 1979 by a Democratic
governor, Bruce Babbitt. Many people also see the appointment as a measure of
her potential political appeal in Arizona. At the time, Republicans, including
Goldwater, were urging O'Connor to run for governor against Babbitt. Babbitt,
now a Washington lawyer and still a friend of O'Connor's , denies the widely
held view that he was co-opting a potential rival when he put her on the appeals
court. "She wasn't on a political track," he says.

When the Reagan team delved into O'Connor's record, she shaped up as a
traditional country-club Republican rather than a New Right conservative. As a
member of the state legislature, she had voted against busing for school
integration and opposed gun control. After the Supreme Court overturned state
death penalty laws in 1972, O'Connor was one of the leaders of an effort to
write a new one for Arizona, telling Rudy Gerber, then a young staff lawyer,
"Give us a death penalty we can live with." But she had also supported bilingual
education, opposed state aid to private religious schools and strongly advocated
the proposed federal Equal Rights Amendment.

Most troubling for the right was her record on abortion. In 1970, the Phoenix
Gazette reported that O'Connor voted in a Senate committee to repeal the state's
prohibition on abortion. But the votes were not officially recorded, and she
later said she had no recollection of how she voted on the bill, which died in
another committee. In 1974, as majority leader, she voted against a ban on state
funds for abortions for poor women, and opposed a bill prohibiting abortions at
the University of Arizona hospital. At the same time, she voted to give hospital
personnel the right to refuse to participate in abortions.

Conservatives warned the Reagan White House that O'Connor was soft on abortion,
but with Smith's strong support and back-channel endorsements from then-Chief
Justice Warren E. Burger and Rehnquist, O'Connor was able to finesse the issue.
She insisted, according to a memorandum written by then-Justice Department
official Kenneth W. Starr, that "she had never been a leader or outspoken
advocate on behalf of either pro-life or abortion rights organizations,"
according to David Alistair Yalof's book on Supreme Court nominees, Pursuit of
Justices. That statement, together with her personal assurance to Reagan that
she found abortion "personally abhorrent," sealed the deal. In fact, much of her
face-to-face meeting with Reagan was taken up by a discussion of horseback
riding and mending fences on the Lazy B, according to former Reagan adviser and
attorney general Edwin Meese.

"Reagan was satisfied she was conservative in the judicial sense," Meese
recalls. "He didn't ask about abortion . . . Some say it was a mistake not to
press her about abortion, but that was just not Ronald Reagan's style." To this
day, though, some Reaganites consider her appointment a gamble gone wrong. "She
has not exactly lived up to what we would have wanted her to be," says former
Reagan political aide Lyn Nofziger.

O'CONNOR'S SWEARING-IN MADE HISTORY and was treated accordingly by the media.
Yet, for all the attention that was lavished upon her at the time, it was by no
means foreseeable that she would rise to the controlling position she occupies
now. Her experience as an appellate judge was limited to 18 months on an
intermediate court in a sparsely populated state, and she had never set foot in
the Supreme Court, much less argued a case there herself. As at Stanford,
O'Connor felt unready. "I didn't think that my experience on Arizona's courts,
as nice as it had been, had prepared me" for the Supreme Court," she told an
Arizona public television station.

Initially, O'Connor floundered. That first week, she and a hastily assembled
group of law clerks sat on the floor of her new chambers, surrounded by a
mountain of legal petitions, trying to figure out in what order to address them.
Their first guess, to sort the cases by the docket number indicating when they
were filed, turned out to be wrong.

O'Connor survived by throwing herself into the work and finding mentors,
particularly Justice Lewis F. Powell Jr. He helped the O'Connors find an
apartment and agreed to let his own secretary, who did know the paper flow, go
to work for O'Connor. Powell, a courtly Virginian and Nixon appointee, also
offered O'Connor a model of centrism. It was Powell who, three years before
O'Connor's arrival, had split the difference in the bitterly disputed Bakke
affirmative action case, suggesting that racial quotas in university admissions
were unconstitutional but that using race as a "plus factor" to help qualified
minorities was not.

Once settled, O'Connor developed a style of working on cases that sounds like a
judicial version of Harry Rathbun's Sunday evening seminar. Every other Saturday
morning, she assembles her four law clerks in her chambers to discuss the cases
coming up for argument. The clerk assigned to a particular case makes a
presentation, and the justice raises questions, joined sometimes by the other
clerks. O'Connor usually makes lunch, often drawing on her repertoire of
Southwestern recipes. "She likes to hear people's points of view," says Stuart
Banner, a professor of law at UCLA who clerked for O'Connor in the 1991-1992
court term. "I never felt I had to agree with her to conform to her view."

Optimistic and energetic are two of the most common words friends use to
describe O'Connor, who survived a bout with breast cancer in 1988 without
missing a day on the court. She exercises in the court's gym with female law
clerks at 7:15 a.m. O'Connor can be lighthearted about her rustic origins,
accepting induction into the National Cowgirl Hall of Fame in 2002, and alluding
to that honor by posting a mock traffic sign in her chambers that reads "Cowgirl
Parking Only."

Still, she does not suffer fools gladly. Reflecting both a lawyer's exactitude
and, perhaps, Harry Day's high standards, she can be withering to those who, in
her opinion, are not doing their best. An O'Connor pet peeve is the sloppy
wording of both state and federal statutes; once, as a state legislator,
O'Connor actually introduced an amendment to remove a comma from a bill.

The rancher's daughter who watched her father's cowboys rope steers despite
broken ribs has repeatedly voted to interpret narrowly the sometimes ambiguous
terms of the Americans With Disabilities Act, limiting workers' rights to claim
its protections against job discrimination. During oral arguments in Bush v.
Gore, in which she voted with Justices Kennedy, Rehnquist, Scalia and Thomas to
stop the Florida election recounts, O'Connor evinced little sympathy for Florida
voters who couldn't follow directions on how to punch the chads out of their
ballot cards. In her view, their votes shouldn't count if they didn't punch the
ballot correctly. "Why isn't the standard the one that voters are instructed to
follow, for goodness sakes?" she demanded. "I mean, it couldn't be clearer."

As those remarks and her willingness to tackle the core issue in the pledge case
demonstrate, O'Connor's willingness to split the difference on some issues is
not to be confused with indecision. Another token of her Western origins in her
chambers is a Papago Indian weaving, "The Man in the Maze." "It's my favorite,"
she told a Washington audience in March, "because that's what life is after all.
We're like the man walking in the maze . . . You have to go this path or that,
and you don't know what it's going to lead to, but you don't worry about it. You
make the best choice you can and do the best job you can."

O'CONNOR HAS GENERALLY SUPPORTED CONSERVATIVE POSITIONS on crime, economic
regulation and, especially, the sovereignty of states in relationship to
Washington. Among the laws O'Connor has voted to strike down as impinging upon
the authority of the states: a statute that would have made it a federal crime
to carry a firearm within 1,000 yards of a school; a provision of the Americans
With Disabilities Act permitting disabled state government employees to sue
their bosses for discrimination; and a provision of the Violence Against Women
Act that gave victims the right to sue their attackers in federal court.

Even on states' rights, however, O'Connor has her limits. Last year, she voted
to uphold the right to sue state employers for violating the Family and Medical
Leave Act. This year, she joined the court's liberals in a 5 to 4 ruling that
allows states to be sued under the disabilities act if they fail to make their
courthouses accessible to the handicapped.

And on two of the social issues the conservative movement probably cares about
most -- abortion and race -- O'Connor first raised, then dashed, the right's
hopes.

In 1983, the court considered an Akron, Ohio, ordinance that limited abortion,
including a required 24-hour waiting period. The court struck it down, but
O'Connor dissented. "The Roe framework," she warned, "is clearly on a collision
course with itself," because technology was hastening the day when a fetus could
survive outside the uterus in the first trimester of pregnancy. She heartened
conservatives again in 1986 and 1989, when she also voted to uphold abortion
regulations in Pennsylvania and Missouri. By 1992, with Souter and Thomas on the
court, it seemed that there might be five votes to overturn Roe as the justices
considered a challenge to a new Pennsylvania antiabortion law.

But O'Connor refused to overturn Roe. Yes, her past opinions had spoken
disparagingly of Roe, but she had never actually advocated overturning it.
Rather, she had proposed what she regarded as the proper constitutional
balancing test: The right to abortion could be limited only as long as the state
did not impose an "undue burden" on the right to choose. She hadn't defined what
an "undue burden" might be. She invoked that language in the '92 Pennsylvania
case, joining Souter and Kennedy in a jointly written opinion that reaffirmed
Roe and struck down the law's requirement that wives notify their husbands
before having an abortion.

The Sandra Day O'Connor who built a moderate record on abortion in Arizona had
prevailed. It could not be an accident, Justice Harry A. Blackmun later remarked
in an oral history contained in his papers, that the Supreme Court's first woman
had voted the way she had. "She is a believer in states' rights in the sense
that she feels an issue of this general nature should be left to the state
legislatures and not be federally constitutionalized," said Blackmun, who also
noted that "she is a woman and may fear somewhat any accusation of being a
traitor to her sex. Some women's organizations would so conclude."

On race, O'Connor also offered affirmative action foes reason to believe that
she would eventually vote to abolish all programs that gave minorities
preference in hiring, contracts or school admissions. During the 1980s and
1990s, she helped establish the rule that affirmative action should be subjected
to the same "strict scrutiny" as discrimination against minorities. As she saw
it, only "compelling" governmental goals could justify affirmative action, and,
even then, programs would have to be "narrowly tailored." In cases during this
period, she said that neither a school district's desire to provide minority
teachers as role models nor the Federal Communications Commission's desire to
distribute broadcast licenses to minorities met that standard.

Encouraged by O'Connor's opinions and votes, conservative legal activists
launched lawsuits on behalf of white students who claimed that they had been
denied places in universities or professional schools because of racial
preferences for minorities. The goal was to generate a Supreme Court case that
would reverse the shaky compromise Powell had crafted in Bakke, eliminating
"diversity" as a rationale for racial preferences. By last year, the court was
ready to hear challenges to affirmative action at the University of Michigan's
undergraduate campus and law school.

Yet for all her past reservations about affirmative action, O'Connor never
slammed the door on it. "The unhappy persistence of both the practice and the
lingering effects of racial discrimination against minority groups in this
country is an unfortunate reality, and government is not disqualified from
acting in response to it," she wrote in her 1995 opinion enshrining "strict
scrutiny" of affirmative action. In the Michigan cases, O'Connor darted through
this loophole, joining with the four liberals to uphold the Michigan law
school's race-conscious admissions policy. Diversity in higher education could,
indeed, qualify as a compelling state interest, she wrote for the majority.
Unlike Michigan's undergraduate college, the law school did not assign bonus
points to racial minorities, but gave all would-be students individualized
consideration, and that, O'Connor wrote, made its approach constitutional under
Powell's opinion in Bakke.

The Michigan cases erased much of the animosity liberals harbored against
O'Connor for Bush v. Gore -- and enraged the right. Critics said that it was
impossible to square her embrace of the diversity rationale with her past
opinions. Long years in Washington, rubbing elbows with the Georgetown
establishment, had swayed O'Connor, many conservatives grumbled. And her opinion
did show great deference to the views of large corporations, university deans
and retired military officers, whose friend-of-the-court briefs called
affirmative action necessary to educate a racially integrated elite. "Sandra Day
O'Connor was sold a bill of goods," Jennifer C. Braceras, a conservative member
of the U.S. Commission on Civil Rights, wrote in Legal Times.

Yet O'Connor has been a racial moderate since her Arizona days. George Benjamin
Brooks Sr., president of the Phoenix area chapter of the NAACP from 1963 to
1972, remembers demanding an administrative hearing on behalf of a group of
black women who had passed a state civil service test but had nevertheless been
denied jobs back in the 1960s. O'Connor, then an assistant state attorney
general, drew the assignment of representing the state agency in the case. But,
according to Brooks, she worked out a compromise rather than litigate her
client's questionable behavior. "She soon concluded very readily that [her
side's] case had no merit and that the commissioner was abitrary and capricious"
toward the women, Brooks says.

Whereas Rehnquist remains deeply unpopular among Arizona's African Americans,
blacks of O'Connor's generation in Phoenix hold her in high esteem. "My first
trial was before her as a public defender. It was a very demanding experience,
but a very fair experience," says Cecil B. Patterson Jr., who went on to serve
with O'Connor on the Arizona Court of Appeals. When Justice Thurgood Marshall
died in 1992, it was O'Connor whom the leaders of Phoenix's black community
invited to speak at a memorial service at First Institutional Baptist Church.

THIS IS THE CONSTITUTION THE O'CONNOR COURT HAS GIVEN AMERICA: It protects the
states against overweening federal power, except when Congress is acting in
defense of gender equality. It guarantees the right to choose an abortion, but
perhaps not whenever you feel like it. It bans discrimination against whites as
strictly as it bans discrimination against blacks, except when university
administrators say racial preference will foster the success of a diverse
society. It is, in short, a document interpreted for that well-intentioned mass
of contradictions known as 21st-century suburban America.

To O'Connor's critics, "judicial minimalism" is anything but an exercise in
restraint. Instead, they say, by so often leaving key questions to be litigated
another day, O'Connor has channeled more and more of society's important
decisions into the federal courts, where they must await the ruling of nine
unelected justices -- of whom the pivotal one is O'Connor herself. This not only
aggrandizes the Supreme Court, it aggrandizes her.

"There is no predictability, no certainty in the law," says John C. Yoo, a
professor of law at the University of California at Berkeley who served as a
Justice Department constitutional law specialist in the George W. Bush
administration. "Every time there is some small change in the law, you have to
go back to the Supreme Court. That increases the power of the court, and it
increases the power of people who are in the middle of the court -- and who
don't like clear rules."

To O'Connor's admirers, "judicial minimalism" is common-sense jurisprudence. In
this view, O'Connor has played a crucial role in dampening any extreme
tendencies of the court's liberal and conservative wings, preventing either from
imposing its worldview much beyond the particular facts of a particular lawsuit.
Legal tests such as "undue burden" may create more work for the lower courts,
and for legislators, but in an America split between Red and Blue, her approach
beats letting ideologues make or break fundamental individual rights. Says
Sunstein, "I think it's good as a presumption, especially in the controversial
areas where the country is divided."

O'Connor enjoys the advantage of operating in a culture that has come to assume
the Supreme Court will handle difficult national issues that, in another era,
might have been hashed out in the legislative and executive branches. Thus, when
the court takes tough issues -- abortion, race, hanging chads -- out of the
political sphere, much of the public seems grateful. Bush v. Gore may have been
reviled by the legal commentariat as an overtly political exercise, but public
opinion data collected by the Pew Research Center for the People and the Press
shows that it barely dented the court's reputation.

Though O'Connor is now 74, all previous rumors that she might step down from the
court have proved false, and friends see no indication that she is preparing to
do so soon. "This is very heady, very exciting," says Mary Beth Growdon. "If she
were to retire, then what would she do?"

EVERY JUSTICE IS IN DEMAND AS A PUBLIC SPEAKER, but none more than O'Connor. In
December, O'Connor was the honoree of a group called Jobs for America's
Graduates, a national nonprofit organization established by corporate donors in
1980 to help at- risk youth finish high school and find jobs. It is the sort of
benign, nonpartisan charity O'Connor herself had devoted time to back in her
Phoenix days, and she seemed very much in her element as she nibbled lunch at a
Washington hotel, besieged by a steady stream of well-wishers. There were about
200 JAG kids in the room, but most of the people hovering around her table were
men. They were corporate types and politicos, yet as they approached the elderly
lady in magenta couture, their body language was all about deference.

Finally, it was her turn to accept an engraved plaque -- JAG's first Role Model
of the Year award. O'Connor told the audience about growing up on the Lazy B.
She talked about her early frustrations in the job market, and working for free
at the San Mateo County attorney's office. She'd never heard of a role model
until she got on the Supreme Court. And it wasn't until she was an undergraduate
that anyone ever told her "the individual can make a difference in this world."

"You can start at the bottom and make something of it," she concluded. And then,
hoisting the immense plaque, she exclaimed, "Look at this marvelous thing!"

Charles Lane has been covering the U.S. Supreme Court for The Post for four
years.

* * *


July 3, 2004; Page A20

LAWYERS SEEK RELIEF FOR 5 DETAINEES

By Carol D. Leonnig, Washington Post Staff Writer

Lawyers filed petitions in federal court in Washington yesterday on behalf of
five men detained for the last two years at the U.S. military prison in
Guantanamo Bay, Cuba, demanding that the government release them or prove that
it has reason to continue their captivity.

The Center for Constitutional Rights called the filings only the first round of
habeas corpus petitions it would file on behalf of as many as 53 Guantanamo
detainees, some of whom have been held for more than two years without
attorneys.

The move came after a Supreme Court ruling that granted detainees the right to
contest their incarcerations in U.S. courts. "This is just the beginning," said
Barbara Orlansky, the organization's deputy legal counsel.

Also yesterday, government attorneys agreed during a telephone conference with
lawyers for 12 detained Kuwaitis that the Pentagon would "move as expeditiously
as possible" to allow them access to their clients at Guantanamo Bay, said Tom
Wilner, one of the attorneys who took part.

U.S. District Judge Colleen Kollar-Kotelly urged the government to move quickly
in granting the defense lawyers access.

"I'm happy the government is finally acting reasonably, and we're grateful for
that," said Wilner, who sued on behalf of the Kuwaitis two years ago.

Maj. Michael Shavers, a Defense Department spokesman, said yesterday the
petitions do not alter the government's effort to determine how to comply with
the ruling.

"The Department of Defense, the Justice Department and the administration are
still working together to determine how we're going to comply with the Supreme
Court direction," Shavers said. "No decision has been made at this point."

In Rasul v. Bush, the Supreme Court ruled that the 595 alleged al Qaeda and
Taliban fighters held at the U.S. Navy base at Guantanamo Bay have the right to
ask a U.S. judge to set them free or justify why they are being detained.

Orlansky said her group scurried to file "as many petitions as were humanly
possible" after the Supreme Court ruling. She contended that the government
cannot make a case against these five detainees or many others. Some were
arrested in Bosnia and Gambia, yet were accused of armed conflict in
Afghanistan.

Staff writer John Mintz contributed to this report.

* * *


July 2, 2004

LAWYERS SEEK ACCESS TO 53 AT GUANTANAMO
Letter to Rumsfeld Faxed Yesterday

By Josh White, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A21841-2004Jul1.html

A group of lawyers who represent 53 detainees at the U.S. military prison in
Guantanamo Bay, Cuba, demanded yesterday that the Pentagon grant them unfettered
access to their clients, saying that a U.S. Supreme Court decision this week
leaves no doubt that the detainees have that right.

Lawyers with the Center for Constitutional Rights, which represents two of the
detainees involved in the Supreme Court case, made the demand in a letter faxed
to Defense Secretary Donald H. Rumsfeld yesterday afternoon.

They asked for access "as expeditiously as possible," contending that under the
Supreme Court's ruling in Rasul v. Bush "there is no question of the right of
each of them to file petitions for habeas corpus and to have access to counsel
in order to do so."

The center's legal director, Jeffrey E. Fogel, said yesterday that its lawyers
have never been allowed contact with the more than four dozen captives they
represent at Guantanamo Bay and that such contact is vital to representing their
rights in court.

In the letter, Fogel also asked Rumsfeld to allow a delegation of lawyers into
Guantanamo Bay to inform the detainees about the Supreme Court decisions, which
granted the alleged al Qaeda and Taliban fighters held there access to U.S.
courts to contest their detentions.

Pentagon officials said yesterday that they have made no decisions on the impact
of the Supreme Court rulings and that there is no plan for informing the nearly
600 detainees about their new rights. Lawrence DiRita, the top Pentagon
spokesman, also said that there has been no decision to grant lawyers access to
the detainees.

DiRita told reporters yesterday that lawyers with the Defense and Justice
departments are still analyzing the decisions to "see what the intent of the
rulings was."

He said that Pentagon officials hope to release some detainees through a
previously established military review process that is in its beginning phases.

"There's a range of things that are under examination to determine what is the
best way to ensure that we're operating consistent with the ruling in the case
of Guantanamo. But . . . everybody has a desire not to hold people that need not
be held," DiRita said.

Fogel said he believes it is obvious, based on the Supreme Court decisions, that
each detainee has the right to an attorney. He accused the Pentagon of trying to
delay access, likening the decision-making process to the series of legal memos
the government produced in trying to define how far interrogation tactics for
enemy combatants could go.

"I think they're doing the same kind of thing they were doing in all those
memos," Fogel said. "They're doing the best thing they can to circumvent the
law."

* * *

June 24, 2004
DOCUMENT TRAIL
A look at how interrogation policy evolved within the Bush administration.

http://www.washingtonpost.com/wp-srv/nation/documents/documenttrail_062404.html

GENEVA CONVENTIONS

Dec. 28, 2001: Deputy Assistant Attorneys General John C. Yoo and Patrick F.
Philbin write to the Pentagon general counsel, arguing that federal courts have
no jurisdiction over detainees at Guantanamo Bay, Cuba, because it is outside
U.S. territory. The benefit, they say, is that the legality of prisoner's
detention, their prisoner "status" and the applicability of treaty provisions
will not be subject to review.

Jan. 4, 2002: Defense Secretary Donald H. Rumsfeld approves detention of al
Qaeda and Taliban suspects at Guantanamo Bay.

Jan. 9: A deputy assistant attorney general sends a memo to the Defense
Department saying that Geneva Conventions and laws against torture do not apply
to detention of members of al Qaeda and Taliban militia.

* Jan. 22: Justice Department Memo to the White House and Pentagon Counsels (3.3
MB)

Jan. 11: William H. Taft IV, the State Department's legal adviser, objects
strongly, saying the Justice Department's position on the Geneva Conventions is
based on faulty assumptions and a "seriously flawed" legal analysis.

Jan. 18: White House counsel Alberto R. Gonzales tells President Bush that the
Justice Department supports the view that Geneva Conventions do not apply to al
Qaeda members, and that "reasonable grounds" exist for concluding that these
protections also do not apply to Taliban militia. Bush expresses preliminary
agreement.

Jan. 25: Gonzales drafts a decision memo for Bush that would officially declare
the U.S. belief that Geneva Conventions do not apply to Taliban and al Qaeda
members.

Jan. 26: Secretary of State Colin L. Powell lodges a strong dissent in a memo to
Gonzales, objecting to his legal analysis and complaining that Gonzales's memo
to Bush unfairly summarizes the State Department's views and omits relevant
information.

Excerpt: "I am concerned that the draft does not squarely present to the
President the options that are available to him. Nor does it identify the
significant pros and cons of each option." Declaring that Geneva Conventions do
not apply at Guantanamo "will reverse over a century of U.S. policy and practice
in supporting the Geneva conventions and undermine the protections of the law of
war for our troops, both in this specific conflict and in general. It has a high
cost in terms of negative international reaction, with immediate adverse
consequences for our conduct of foreign policy."

Jan. 30: Rumsfeld approves the creation of an interrogation facility at
Guantanamo Bay.

Feb. 1: Attorney General John D. Ashcroft writes Bush to summarize the Justice
Department's position on the Geneva Conventions. The memo was Ashcroft's
personal response to the State Department. Ashcroft warned that if the president
sided with the State Department, U.S. officials might go to prison for violating
U.S. and international laws.

* Letter to President Bush From the Attorney General (49KB; from FindLaw)


Feb. 7: Bush settles the dispute with a directive to his national security team
saying he believed he had "the authority under the Constitution" to deny
protections of the Geneva Conventions to combatants picked up during the war in
Afghanistan. He would "decline to exercise that authority at this time," which
meant detainees would be granted protections of the Geneva Conventions, but the
administration would not be legally bound to continue doing so.

* Feb. 7, 2002: Memo Signed by President Bush (130KB)

Excerpt: "By its terms, Geneva applies to conflicts involving 'High Contracting
Parties,' which can only be states. Moreover, it assumes the existence of
'regular' armed forces fighting on behalf of states. However, the war against
terrorism ushers in a new paradigm, one in which groups with broad,
international reach commit horrific acts against innocent civilians, sometimes
with the direct support of states. Our Nation recognizes that this new paradigm
-- ushered in not by us, but by terrorists -- requires new thinking in the law
of war, but thinking that should nevertheless be consistent with the principles
of Geneva."


*

INTERROGATION METHODS

Aug. 1, 2002: Jay S. Bybee, head of the Justice Department's Office of Legal
Counsel, writes to White House counsel Alberto R. Gonzales arguing that
torturing terrorism suspects might be legally defensible in some circumstances.
Administration officials later said that the memo, written to advise the CIA on
the limits for treating its detainees, was only an effort to analyze laws and
treaties, and that torture was never used against prisoners.

* Justice Department Memo to the White House Counsel


Excerpt: "We further conclude that certain acts may be cruel, inhuman, or
degrading, but still not produce pain and suffering of the requisite intensity
to fall within [U.S. law's] proscription against torture. ... We conclude that
for an act to constitute torture ... it must inflict pain that is difficult to
endure. Physical pain amounting to torture must be equivalent in intensity to
the pain accompanying serious physical injury, such as organ failure, impairment
of bodily function, or even death."

Oct. 11: The commanding general at the detention center in Guantanamo Bay, Cuba,
Maj. Gen. Michael Dunlavey, asked his commander to approve the use of death
threats against detainees and their families; wrapping a detainee in wet towels
to "induce the misperception of suffocation"; stress positions; exposing them to
cold weather and water; and using dogs.

Oct. 25: Dunlavey's commander, Gen. James T. Hill, chief of U.S. Southern
Command, expressed unease with such tactics and asked superiors for guidance. "I
am uncertain whether all the techniques ... are legal under US law, given the
absence of judicial interpretation of the US torture statute," Hill wrote. "I am
particularly troubled by the use of implied or express threats of death of the
detainee and his family." Weeks later, any use of death threats and some other
severe tactics were expressly disallowed.

Dec. 2: Defense Secretary Donald H. Rumsfeld approves a memo by Pentagon general
counsel William J. Haynes II authorizing specific interrogation techniques that
could be used at the U.S. detention facility at Guantanamo Bay. The approved
tactics included stripping prisoners to humiliate them, using dogs to frighten
them, and forcing them to maintain stress positions to wear them down. The
tactics also included using light and sound assaults, shaving facial and head
hair, and taking away religious items.

* Defense Department Memo Regarding "Counter-Resistance Techniques"


Jan. 15, 2003: A Rumsfeld memo rescinds his approval for some of the most severe
interrogation techniques, and he orders the creation of a Pentagon Working Group
to review interrogation tactics.

* Rumsfeld Memo to the Pentagon Counsel


March: The Working Group's 85-page report recounts some legal arguments used in
the Justice Department's August 2002 memo, and urges Rumsfeld to roll back
previously authorized interrogation methods.

Excerpt: "Choice of interrogation techniques involves a risk benefit analysis in
each case, bounded by the limits of DOD policy and U.S. law. When assessing
whether to use exceptional interrogations techniques, considerations should be
given to the possible adverse effects on U.S. Armed Forces culture and self-
image, which at times in the past may have suffered due to perceived law of war
violations. ... In addition, consideration should be given to whether
implementation of such exceptional techniques is likely to result in adverse
effects on DOD personnel who become POWs, including possible perceptions by
other nations that the United States is lowering standards related to the
treatment of prisoners, generally."

April 16: Rumsfeld, acting on the Working Group's recommendation, outlines which
interrogation tactics are authorized for Guantanamo Bay and which require his
direct approval for use. Those include "Fear Up Harsh: Significantly increasing
the fear level in a detainee" and "Playing on the Hatred a detainee has for an
individual or group." Other measures could be used only after notifying
Rumsfeld, including "attacking or insulting the ego of a detainee, not beyond
the limits that would apply to a POW," and isoating detainees.

* Rumsfeld Memo to the Head of U.S. Southern Command

* * *


June 24, 2004; Page A01

U.S. STRUGGLED OVER HOW FAR TO PUSH TACTICS
Documents Show Back-and-Forth on Interrogation Policy

By Dana Priest and Bradley Graham, Washington Post Staff Writers

http://www.washingtonpost.com/ac2/wp-dyn/A756-2004Jun23?language=printer

Newly released documents and interviews portray the civilian leadership at the
Pentagon as urgently concerned that al Qaeda and Taliban detainees might have
information that could prevent terrorist attacks and as searching intently for
effective and "exceptional" interrogation techniques that would pass legal
muster.

Defense Secretary Donald H. Rumsfeld and his senior aides emerge as central
players in the government's struggle over nearly three years to decide how far
it could go to extract information from those captured in Afghanistan and Iraq
and others imprisoned at Guantanamo Bay, Cuba.

The result, seen in the documents and in the officials' statements, is a trail
of fitful ad hoc policymaking in which interrogation tactics were authorized for
a time, then rescinded or modified after the Pentagon's lawyers or others raised
legal, ethical or practical objections. Some practices authorized in the field
were pulled back at the Pentagon level, and decisions on how to treat detainees
were sometimes made case by case.

Rumsfeld, for example, approved in December 2002 a range of severe methods
including the stripping of prisoners at Guantanamo, and using dogs to frighten
them. He later rescinded those tactics and signed off on a shorter list of
"exceptional techniques" suggested by a Pentagon working group in 2003, even
though the panel pointed out that, historically, the U.S. military had rejected
the use of force in interrogations. "Army interrogation experts view the use of
force as an inferior technique that yields information of questionable quality,"
and distorts the behavior of those being questioned, the group report noted.

Although the White House this week repudiated a Justice Department opinion that
torture might be legally defensible, Pentagon general counsel William J. Haynes
II in 2003 forced the Pentagon working group to use it as its legal guidepost.
He did so over objections from the top lawyers of every military service, who
found the legal judgments to be extreme and wrong-headed, according to several
military lawyers and memos outlining the debate that were summarized for The
Washington Post.

In Iraq, where White House and Pentagon lawyers say all prisoners are protected
by the Geneva Conventions, Rumsfeld agreed to hide an Iraqi captive from the
International Committee of the Red Cross because, he said, CIA Director George
J. Tenet asked him to. Legal experts call it a clear violation of the
conventions. "A request was made to do that, and we did," Rumsfeld said this
week, even as his deputy general counsel Daniel J. Dell'Orto acknowledged from
the same podium that "we should have registered him much sooner than we did."

Rumsfeld played a direct role in setting policies for detainee treatment in
Afghanistan and Guantanamo, according to a list of Defense Department memos
related to Guantanamo Bay obtained by The Post. He signed seven orders from
January 2002 to January 2003 establishing the interrogation center, placing the
Army in charge, allowing access by the Red Cross and foreign intelligence
officials, and even deciding how detainee mail would be handled.

Unlike the CIA, which vetted and won approval from the Justice Department and
National Security Council for its aggressive interrogation tactics after Sept.
11, 2001, the Pentagon has worked largely on its own in promulgating new
questioning methods.

The White House and Justice Department were "completely uninvolved with"
reviewing the interrogation rules in Afghanistan and Iraq, said a senior
administration official involved in the process.

The Pentagon's chief spokesman, Lawrence T. DiRita, portrayed Rumsfeld as
largely responding to requests from commanders and interrogators in the field
rather than pushing a certain interrogation policy. "These things tended to come
up through legal channels," he said in an interview.

Part of the Pentagon leadership's drive for more leeway in interrogations can be
traced to a historic change during Rumsfeld's tenure: the military's
dramatically enhanced role in collecting and analyzing intelligence that can be
used to thwart terrorist networks worldwide. To accomplish this, Rumsfeld has
begun an unprecedented drive to build a Pentagon-based human intelligence
apparatus that could one day rival the CIA's clandestine case officer program.

This intelligence-gathering mission trumps most other priorities, including the
desire to bring alleged wrongdoers to trial for their role in terrorist plots.

As Rumsfeld explained it in February to the Greater Miami Chamber of Commerce:
"What we think about is keeping them off the battlefield so they can't go out
and kill more people, immediately interrogating them so we can find out what
they know that can prevent future acts of terror against our country . . . and
only last is the issue of a crime and some sort of a process that would make a
judgment about that crime."

The debate over tactics at Guantanamo appears to have begun in December 2002
when two Navy interrogators heard young military intelligence personnel talking
about using techniques that they described to their superiors as "repulsive and
potentially illegal."

Navy general counsel Alberto J. Mora brought the issue to the attention of
Haynes. Mora's appeals were ignored, however, until he threatened to put his
concerns in writing for Haynes, several senior Pentagon officials said. Mora's
questions led to the discovery that among the list of "counter-resistance
strategies" at Guantanamo were such tactics as using scenarios "designed to
convince the detainee that death or severely painful consequences are imminent
for him and/or his family," according to an October 2002 memo, and wrapping
detainees in wet towels or dripping water on them to make them believe they
would suffocate.

Lt. Col. Diane E. Beaver, the legal counsel at Guantanamo then, ruled that those
and other techniques -- including 20-hour interrogations, light and sound
assaults, stress positions, exposure to cold weather and water -- were legal.
She said they could be used with proper oversight and training of interrogators,
as long as "there is an important governmental objective, and it is not done for
the purpose of causing harm or with the intent to cause prolonged mental
suffering."

Interrogators at the detention facilities were particularly interested in using
the techniques against two prisoners -- one of them Mohamed al Qahtani, a Saudi
detainee who some officials believed may have been the planned 20th hijacker on
Sept. 11. Both detainees were considered to have important information about
potential future terrorist operations, defense officials have said.

Maj. Gen. Michael Dunlavey, the commander of Guantanamo, agreed, and sent the
list of tactics to Gen. James T. Hill, head of the U.S. Southern Command, for
approval.

Hill was not as convinced, and wondered in a memo about the legality of some of
the techniques. He asked Gen. Richard B. Myers, chairman of the Joint Chiefs of
Staff, for guidance. In December, Rumsfeld approved the use of dogs and
stripping, but threw out other controversial items.

Rumsfeld also set up a working group of military lawyers and others to
deliberate over the range of techniques that might be useful and appropriate.
The group came up with 35 techniques. Among the most severe were 20-hour
interrogations, face slapping, stripping detainees to create "a feeling of
helplessness and dependence," and using dogs to increase anxiety.

The president's directive in February 2002 that ordered U.S. forces to treat al
Qaeda and Taliban detainees humanely and consistent with the Geneva Conventions
does contain a loophole phrase: "to the extent appropriate and consistent with
military necessity."

The working group's report discussed when the "military necessity" exception
might be invoked, citing two factors. One was when government officials felt
certain that a particular detainee had information needed to prevent an attack.
The other factor was a likelihood that a terrorist attack was about to occur and
the attack's potential scale.

But the report also noted that "military courts have treated the necessity
defense with disfavor and in fact, some have refused to accept necessity as a
permissible defense." The rejections have come from judges who objected to the
notion of weighing one evil against another, or who feared that acceptance of
the necessity argument would open the door to "private moral codes" substituting
for the rule of law, the report said.

Other cautionary flags were raised as well. The report warned that use of
exceptional techniques could have "adverse effects" on the "culture and self-
image" of the armed forces, recalling the damage done in the past by "perceived
law of war violations."

It argued that use of such tactics in some cases but not others could create
uncertainty among interrogators about the appropriate limits for interrogators.
It also noted that, if the tactics became public, the disclosure could undermine
confidence in the war on terrorism and in the military tribunal process that was
developed for putting detainees on trial.

Rumsfeld eventually pared the list of 35 methods to 24. Most were part of
standard military doctrine. Seven, however, went beyond that, including:
removing a detainee from the standard interrogation setting and putting him in a
less comfortable room; replacing hot rations with cold food or military Meals
Ready to Eat; adjusting the temperature to uncomfortable levels or introducing
an unpleasant smell; reversing sleep cycles from night to day; deceiving
detainees into thinking they were being questioned by people from a country
other than the United States.

"The secretary has placed great stock in the legal reviews that have taken place
at every level, and has been persuaded each time that he has had to make
decisions, that there were sufficient legal reviews along the way," DiRita said.

A suspected Iraqi member of the terrorist group Al Ansar did not receive such a
thorough legal review, defense officials said. The man -- identified by U.S.
News & World Report as Hiwa AbdulRahman Rashul -- was picked up by Kurdish
soldiers in June or July of 2003 and taken outside Iraq by the CIA for
interrogation. In October, the CIA's general counsel told the CIA's directorate
of operations that it had to bring the man back to Iraq, since all Iraqi
detainees were to be accorded treatment under the Geneva Conventions.

Tenet asked Rumsfeld not to give the prisoner a number and to hide him from
international Red Cross officials. He became lost in the system for seven months
and was not interrogated by CIA or military officials during that time.

In his investigation into the abuse of detainees at Iraq's Abu Ghraib prison,
Army Maj. Gen. Antonio M. Taguba had criticized the CIA practice of maintaining
such "ghost detainees" and called the practice "deceptive, contrary to Army
doctrine and in violation of international law."

Rumsfeld was asked at a news conference this week, "How is this case different
from what Taguba was talking about, the ghost detainees?"

"It is just different, that's all," Rumsfeld replied.

"But can you explain how and why?"

"I can't."

Staff writers Mike Allen and R. Jeffrey Smith contributed to this report.

* * *


Thursday, June 24, 2004; Page A07

Lawyer for State Dept. Disputed Detainee Memo
Military Legal Advisers Also Questioned Tactics

By R. Jeffrey Smith, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A759-2004Jun23.html

A letter about the handling of detainees sent in 2002 from the State
Department's legal adviser to the Justice Department's deputy assistant attorney
general made no attempt at bureaucratic pleasantries.

William H. Taft IV said that Justice's legal advice to President Bush about how
to handle detainees in the war on terrorism was "seriously flawed" and its
reasoning was "incorrect as well as incomplete." Justice's arguments were
"contrary to the official position of the United States, the United Nations and
all other states that have considered the issue," Taft said.

Taft's Jan. 11 letter, obtained by The Washington Post, was omitted from the
hundreds of pages of documents released Tuesday by the Bush administration. The
release was part of an effort to present the administration's policies on
detainees since Sept. 11, 2001, as fully compliant with domestic and
international law.

A fuller picture -- of senior administration officials who sought to reinterpret
the law and sanction tougher treatment of detainees in the face of strongly
expressed internal dissents at the State Department and the military services --
emerges from the State Department letter and other previously undisclosed memos.

The dissents include three classified memos written in the spring of 2003 by
senior military lawyers in the Air Force, Marine Corps and Army, and a
classified memo written by the Navy's top civilian lawyer, Alberto J. Mora, say
government officials who have read them. Those officials, and others interviewed
for this story, spoke on the condition that they not be named.

Two officials said the memos were written by Air Force Maj. Gen. Jack L. Rives,
Marine Brig. Gen. Kevin M. Sandkuhler and Army Maj. Gen. Thomas J. Romig.

Their common theme, the official said, was that tough interrogation techniques
being advocated by senior civilians at the Defense Department and by the
commander of the military detention center at Guantanamo Bay, Cuba, would not
only contravene longstanding military practice but also provoke a storm of
public criticism if the tactics became known.

The military lawyers, the official said, argued that coercive interrogation
techniques rarely produce data as reliable as the intelligence gleaned by
rewarding prisoners who cooperate -- a view also expressed in the Army's field
manual, as redrafted after the Vietnam War.

They also said that tough procedures being advocated were subject to abuse that
could haunt U.S. policymakers and endanger U.S. military personnel detained by
other countries.

Lawyers for the Joint Chiefs of Staff raised similar concerns -- about the
specific interrogation tactics being proposed and the administration's decision
that protections afforded by the Geneva Conventions were unavailable as a matter
of law to suspected members of the Taliban militia in Afghanistan, according to
a former military official familiar with the dispute.

"It was clearly the position of the senior leaders of the military that the
Geneva Conventions should apply" to Taliban militia, the official said. Air
Force Gen. Richard B. Myers, the Joint Chiefs chairman, "was very strong with
the Secretary of Defense on a number of occasions" in expressing this viewpoint.

The official added that military lawyers attached to Central Command, which has
jurisdiction over the Middle East, and to the Southern Command, which has
jurisdiction over Guantanamo Bay, also favored holding military tribunals to
determine the status of individual Taliban detainees and the Geneva Convention
protections to which they were entitled.

The dissidents' complaints had limited impact, according to the documents and
accounts of the administration's internal deliberations.

Taft, whose role made him the government's principal interpreter of treaties,
accused John Yoo, the deputy assistant attorney general, in the Jan. 11 letter
of preparing advice for Bush based on a series of "wrong" premises. He also said
Yoo's idea that Bush could "suspend" U.S. obligations to respect the Geneva
Conventions was "legally flawed and procedurally impossible."

"In previous conflicts, the United States has dealt with tens of thousands of
detainees without repudiating its obligations under the Conventions," wrote
Taft, who was the Defense Department's general counsel from 1981 to 1984. "I
have no doubt we can do so here."

Bush nonetheless embraced the Justice Department's viewpoint and decided that
the Geneva Conventions did not apply to combatants in Afghanistan. Secretary of
State Colin L. Powell protested the decision and persuaded Bush to reconsider;
Powell and Myers presented their views at a meeting with Bush, also attended by
senior Justice and defense officials.

Alberto R. Gonzales, the White House counsel, advised Bush in a memo, however,
that Powell was wrong and the Justice Department's analysis was "definitive."
Gonzales said terrorist attacks "require a new approach in our actions toward
captured terrorists," and noted that terrorists had never respected the Geneva
Conventions' human rights protections.

On Feb. 7, 2002, Bush signed an order asserting his right to suspend the Geneva
Conventions protections for Taliban suspects -- contrary to Taft's advice -- but
saying he had decided not to do so at that time. Bush also declared that all
Taliban militia were "unlawful combatants," and ineligible for tribunals.

One result of the rancorous debate, according to participants, was that Yoo,
Attorney General John D. Ashcroft and senior civilians at the Pentagon no longer
sought to include the State Department or the Joint Staff in deliberations about
the precise protections afforded to detainees by the Geneva Conventions.

For example, the officials said, a 50-page Justice Department memo in August
2002 about the meaning of various anti-torture laws and treaties was not
discussed or shared with the Joint Chiefs or the State Department. It was
drafted by Justice for the CIA and sent directly to the White House.

The memo contended that only physically punishing acts of "an extreme nature"
would constitute criminal violations, and that acts that were merely cruel,
inhuman or degrading might not qualify. It asserted that those committing
torture without the intent to cause lasting harm might be immune from
prosecution.

"I'm confident that people would have raised questions" had they known about the
memo, a knowledgeable official said. Senior officials repudiated portions of the
memo on Tuesday, saying it contained "unnecessary" and "overbroad" arguments
that were being re-evaluated.

Major dissent about the administration's interrogation practices next arose in
late 2002 and early 2003, when military interrogators at Guantanamo Bay
complained to superior officers that techniques they were asked to use were
abusive. That provoked an extended Defense Department review, during which
military lawyers for each of the services forcefully expressed their concerns,
officials said.

"We had raised them verbally. We've raised them at the action officer level.
Ultimately, some memos were, in fact, signed laying out some considerations that
we believe were very important in the process," said a senior military lawyer
who briefed reporters last month with the Pentagon's approval.

The lawyer chose his words carefully: "By the time the final draft . . . [on
interrogation methods] was completed, those considerations had all been
carefully evaluated."

He said the military lawyers were comfortable with the outcome "from a legal
standpoint," but did not mention the policy concerns the memos had raised.

* * *


June 23, 2004; Page A14

SPIRITED DEBATE PRECEDED POLICIES
Pentagon Lawyers Urged Restraint

By Dana Priest, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A61942-2004Jun22.html

The Pentagon documents released yesterday reveal a gripping internal debate over
interrogation tactics for prisoners at Guantanamo Bay, with Pentagon lawyers
warning that the military's reputation could suffer as a result of tools
approved by Defense Secretary Donald H. Rumsfeld.



In December 2002, as Pentagon officials were trying to get detainees to offer
more useful information about al Qaeda, Rumsfeld approved a variety of
techniques, such as stripping prisoners to humiliate them, using dogs to scare
them and employing stress positions to wear them down, the documents show. The
tactics also included using light and sound assaults, shaving facial and head
hair and taking away religious items.

Pentagon officials say most of the techniques were never used, and a Pentagon
working group recommended that Rumsfeld roll back these methods. In a memo to
the defense secretary in March 2003, the group wrote: "When assessing
exceptional interrogation techniques, consideration should be given to the
possible adverse affects on U.S. Armed Forces culture and self-image, which at
times in the past may have suffered due to perceived law of war violations."

As has been previously reported, Rumsfeld did subsequently rescind approval for
the most aggressive tactics, including the use of dogs and stripping prisoners.
But the documents released yesterday reveal many new details of the behind-the-
scenes deliberations over what would be permitted at the Guantanamo Bay prison
in Cuba, the holding facility for about 600 detainees picked up in the U.S.
campaign against terrorists over the past three years.

For instance, during an initial Pentagon review of the tactics being used at
Guantanamo, completed Nov. 27, 2002, Rumsfeld added a handwritten note to the
bottom of a document in which he approved new interrogation techniques that
included forcing prisoners to stand for four hours at a time. "However, I stand
for 8-10 hours a day. Why is standing limited to 4 hours?"

The documents also show commanders and lawyers debating the legality of certain
techniques and being torn between what they considered vague guidance offered by
past legal cases and the desire to provide useful intelligence to thwart future
terrorist attacks.

On Oct. 11, 2002, for example, the commanding general at the Guantanamo Bay
detention center, Maj. Gen. Michael Dunlavey, asked his commander to approve the
use of death threats against detainees and their families, wrapping a detainee
in wet towels to "induce the misperception of suffocation," stress positions,
exposing them to cold weather and water, and using dogs.

These techniques had been reviewed and deemed legal under the Geneva Conventions
by Dunlavey's legal adviser, Lt. Col. Diane Beaver, who wrote that they would be
permissible "so long as there is an important governmental objective" and the
tactics are not used "for the purpose of causing harm or with the intent to
cause prolonged" mental or physical suffering.

But Dunlavey's commander, Gen. James T. Hill, chief of U.S. Southern Command,
expressed unease with this interpretation and asked the chairman of the Joint
Chiefs of Staff, Gen. Richard B. Myers, for guidance. "I am uncertain whether
all the techniques . . . are legal under US law, given the absence of judicial
interpretation of the US torture statute," Hill wrote on Oct. 25, 2002. "I am
particularly troubled by the use of implied or express threats of death of the
detainee and his family."

A month later, the Pentagon's general counsel, William J. Haynes II, approved
the use of dogs and stripping, but threw out the other more controversial
methods. He also approved "grabbing, poking in the chest with the finger, and
light pushing" among a list of two dozen other tactics.

In a memo dated Nov. 27, 2002, Haynes said that while the tougher techniques
"may be legally available . . . we believe our armed forces are trained to a
standard of interrogation that reflects a tradition of restraint."

* * *


June 23, 2004

BUSH ADMINISTRATION DOCUMENTS ON INTERROGATION

http://www.washingtonpost.com/wp-dyn/articles/A62516-2004Jun22.html

The following is a summary of White House, Pentagon and Justice Department
documents about interrogation policies. The documents were released by the Bush
administration on June 22. Some files are presented as PDF files, which require
the Adobe Acrobat Reader, and may require high-speed Internet connections to
download.


Jan. 22, 2002: Justice Department Memo to the White House and Pentagon Counsels
(3.3MB)

A 37-page memo written by Assistant Attorney General Jay S. Bybee and addressed
to White House counsel Alberto R. Gonzales and the Pentagon's general counsel,
William J. Haynes II. Bybee argued that that the War Crimes Act and the Geneva
Convention did not apply to al Qaeda prisoners and that President Bush had
constitutional authority to "suspend our treaty obligations toward Afghanistan"
because it was a "failed state." Bybee, then head of the Justice Department's
Office of Legal Counsel, has since become a federal judge.

http://www.washingtonpost.com/wp-srv/nation/documents/012202bybee.pdf


Feb. 1, 2002: Letter to President Bush From the Attorney General (49KB; from
FindLaw)

The memo by Attorney General John D. Ashcroft summarized the Justice
Department's position on why the Geneva Convention did not apply to al Qaeda and
Taliban detainees. The memo was Ashcroft's personal response to the State
Department position that, as a matter of law, the Geneva Conventions protected
Taliban soldiers. Ashcroft warned that if the president sided with the State
Department, American officials might wind up going to jail for violating U.S.
and international laws.

http://news.findlaw.com/wp/docs/torture/jash20102ltr.html


Feb. 7, 2002: Justice Department Memo to the White House Counsel (49KB; from
FindLaw)

A memo written by Jay S. Bybee, then head of the Justice Department's Office of
Legal Counsel, advised White House counsel Alberto R. Gonzales that the
president had "reasonable factual grounds" to determine that Taliban fighters
captured in Afghanistan were not entitled to prisoner of war status.

http://news.findlaw.com/wp/docs/torture/bybee20702mem.html


Feb. 7, 2002: Memo Signed by President Bush (130KB)

Bush's presidential memorandum to members of his national security team said he
believed he had "the authority under the Constitution" to deny protections of
the Geneva Conventions to combatants picked up during the war in Afghanistan,
but that he would "decline to exercise that authority at this time." The memo
settled the dispute between the State and Justice departments over the issue.

http://www.washingtonpost.com/wp-srv/nation/documents/020702bush.pdf


Feb. 26, 2002: Justice Department Memo to the Pentagon's General Counsel (2.5MB)

A memo to the Pentagon's general counsel, William J. Haynes II, written by
Assistant Attorney General Jay S. Bybee examined constitutional questions
related to detainees captured in Afghanistan, including the admissibility of
statements made in interrogations.

http://www.washingtonpost.com/wp-srv/nation/documents/022602bybee.pdf


Aug. 1, 2002: Justice Department Memo to the White House Counsel (864KB; from
FindLaw)

A memo to White House counsel Alberto R. Gonzales from Jay S. Bybee of the
Justice Department's Office of Legal Counsel concluded that techniques used to
interrogate al Qaeda operatives would not violate a 1984 international treaty
prohibiting torture. Bybee also concluded that the interrogation of al Qaeda
members was outside the jurisdiction of the International Criminal Court, but
warned that a "rogue prosecutor" could choose to investigate U.S. interrogation
techniques because the international court "is not checked by any other
international body, not to mention any democratically-elected or accountable
one."

http://news.findlaw.com/wp/docs/doj/bybee80102ltr.html

Aug. 1, 2002: Justice Department Memo to the White House Counsel (27.5MB; from
FindLaw)

The memo from Jay S. Bybee, head of the Justice Department's Office of Legal
Counsel, to White House counsel Alberto R. Gonzales found that torturing
terrorism suspects might be legally defensible. Bush administration officials
said on June 22, 2004 -- when the document was publicly released -- that the
memo's conclusions were overbroad and would be rewritten.

http://news.findlaw.com/wp/docs/doj/bybee80102mem.pdf

Dec. 2, 2002: Defense Department Memo Regarding "Counter-Resistance Techniques"
(780KB)

A memo written by the Pentagon's general counsel, William J. Haynes II, on Nov.
27 and approved by Defense Secretary Donald H. Rumsfeld on Dec. 2 summarized
specific interrogation techniques that could be used at the U.S. detention
facility at Guantanamo Bay, Cuba; this document also includes a series of
related memos on interrogation techniques.

http://www.washingtonpost.com/wp-srv/nation/documents/dodmemos.pdf

A related one-page summary document (56KB) issued to reporters by Bush aides on
June 22, 2004, reviewed which specific techniques were approved and used.

http://www.washingtonpost.com/wp-srv/nation/documents/062204GTMOslide.pdf

Jan. 15, 2003: Rumsfeld Memo to the Head of U.S. Southern Command (47KB)
Defense Secretary Donald H. Rumsfeld's memo rescinded his approval for some
interrogation techniques for Guantanamo Bay. The memo allowed commanders to seek
Rumsfeld's direct approval to use the tougher techniques if they are "warranted
in an individual case" but would require a "thorough justification."

http://www.washingtonpost.com/wp-srv/nation/documents/011503rumsfeld.pdf

Jan. 15, 2003: Rumsfeld Memo to the Pentagon Counsel (53KB)
The defense secretary's memo to William J. Haynes II, the Pentagon's general
counsel, asked Haynes to convene a working group to examine all aspects of
interrogation policies. The memo also was referenced in Rumsfeld's memo to the
head of U.S. Southern Command dated the same day.

http://www.washingtonpost.com/wp-srv/nation/documents/011503rumsfelda.pdf

Jan. 17, 2003: Memo From the Pentagon Counsel to the General Counsel for the Air
Force (56KB)

Pentagon general counsel William J. Haynes II designated Mary L. Walker, the
general counsel for the Air Force, to head the working group Rumsfeld requested
in his Jan. 15 memo.

http://www.washingtonpost.com/wp-srv/nation/documents/011703haynes.pdf

April 4, 2003: Report of the Pentagon Working Group (6.7MB)
The 85-page report requested by Defense Secretary Donald H. Rumsfeld in January
reviewed "legal, historical, police and operational considerations" and made
recommendations to the Pentagon on what techniques should be approved.

http://www.washingtonpost.com/wp-srv/nation/documents/040403dod.pdf

April 16, 2003: Rumsfeld Memo to the Head of U.S. Southern Command (1.6MB)
The defense secretary, acting on the working groups' recommendation, restates
which specific interrogation techniques are approved for Guantanamo Bay and
which require his direct approval. The document also includes excerpts from the
Army Field Manual.

http://www.washingtonpost.com/wp-srv/nation/documents/041603rumsfeld.pdf


[ Compiled by Mark Stencel, The Washington Post, and Ryan Thornburg,
washingtonpost.com ]

* * *


June 20, 2004; Page B03

TORTURING THE LAW
The Justice Department's Legal Contortions on Interrogation

By Kathleen Clark and Julie Mertus

http://www.washingtonpost.com/wp-dyn/articles/A54025-2004Jun19.html

Two years ago, while government interrogators were attempting to wring
information from alleged al Qaeda members imprisoned at Guantanamo Bay, Cuba,
and elsewhere, the Justice Department prepared a legal memorandum on the use of
torture during interrogation. The CIA had sought guidance from the White House
because it wanted to conduct more aggressive interrogations than those allowed
before Sept. 11, 2001. As we now know, the White House in turn requested the
legal opinion from the Justice Department. In August 2002, Justice's Office Of
Legal Counsel, led by Jay S. Bybee, produced a 50-page memo that essentially
said the president could authorize torture even though our laws and treaties
prohibit it. Bybee reached this conclusion, quite simply, by distorting the law.

We often think of lawyers as advocates, such as courtroom lawyers who make
zealous arguments that may or may not convince a judge. But the Department of
Justice lawyers who wrote the memo on interrogation and torture were acting as
advisers. As such, their responsibility was to advise their "client," the
executive branch, as to what the law requires. Lawyers routinely provide clients
with such "opinion letters" to help sort out whether proposed conduct is legal,
illegal or somewhere in between.

The Justice Department memo assured the Bush administration of three things:
First, that interrogators could cause a lot of pain without crossing the line to
torture. Second, that even though the United States criminalizes torture and has
signed a treaty outlawing it, interrogators could torture prisoners as long as
the president authorized it. Third, that even if those interrogators were later
prosecuted for engaging in torture, there were legal defenses they could use to
avoid accountability.

Bybee's conclusions rest upon three stunning legal contortions, requiring no
less than an entirely new definition of torture, a distortion of fundamental
constitutional law and a new approach to the application of international law.

The first contortion redefines torture in a manner wholly divorced from U.S. and
international practice. Bybee came up with what he called an "aggressive
interpretation as to what amounts to torture," asserting that for an act to
constitute torture, it must be of an "extreme nature" in that it "must inflict
pain that is difficult to endure." His memo explains that "physical pain
amounting to torture must be equivalent in intensity to the pain accompanying
serious physical injury, such as organ failure, impairment of bodily function,
or even death." The memo would, if applied, severely limit the possibility that
mental pain or suffering can amount to torture, stating that "it must result in
significant psychological harm of significant duration, e.g., lasting for months
or even years." This extreme definition departs radically from both U.S. and
international understandings of the prohibition against torture.

The Justice Department construction of torture also creates a truly remarkable
"self-defense" exception for torture. It reasons that if a U.S. interrogator
"were to harm an enemy combatant during an interrogation . . . he would be doing
so in order to prevent further attacks on the United States by the al Qaeda
terrorist network." An interrogator's actions, it says, would be "justified by
the executive branch's constitutional authority to protect the nation from
attack." This is utter nonsense. An individual cannot invoke the executive
branch's authority to torture because the executive itself lacks that authority.
There is no self-defense exception to torture, either by an individual or by the
state. While there may be some debate around the edges concerning what
constitutes torture, there is consensus on its basic elements, which distinguish
torture from other forms of abuse. These elements are defined by the
international Convention Against Torture, to which the United States is a party.
They include: the infliction of "severe" pain and suffering with the intention
of doing harm for a specific purpose (such as obtaining information during
interrogations), carried out by "a public official or other person acting in an
official capacity," such as in a prison.

By ratifying the Convention Against Torture in 1994, the United States committed
itself to criminalizing torture, in addition to providing civil remedies for
torture victims. The Bybee memo subverts that commitment by adopting an
unsupported, narrow definition of torture. Under the convention, this country
also undertook to prevent "cruel, inhuman or degrading treatment" that falls
short of torture. There are no exceptions. And yet the Justice Department memo
reads like an invitation to engage in exactly that kind of conduct.

The second contortion would take U.S. constitutional law back 800 years, to a
time before the Magna Carta, and create an executive office that can act
arbitrarily, beyond the control of Congress. The memo asserts that the president
can act however he sees fit during war, even if U.S. law and international
treaties prohibit such conduct. It zeroes in on a single constitutional phrase
-- "The President shall be Commander in Chief of the Army and Navy" -- and
boldly asserts that the president is all-powerful in things military. "The
president enjoys complete discretion in the exercise of his commander in chief
authority," it says, and "Congress may no more regulate the president's ability
to detain and interrogate enemy combatants than it may regulate his ability to
direct troop movements on the battlefield."

But Bybee could have reached these conclusions only by ignoring the rest of the
Constitution, including the numerous military-related roles that it assigns to
Congress, such as making rules "concerning captures on land and water" and "for
the government and regulation of the land and naval forces."

This way of thinking, which we have come to think of as the "absolute commander-
in-chief argument" also flies in the face of years of Supreme Court precedent in
which the court has repeatedly rejected expansive claims of unilateral control
by the executive branch. In Youngstown Sheet and Tube Co. v. Sawyer, for
example, the Supreme Court rejected President Harry S. Truman's unilateral
attempt to take over steel mills during the Korean War. While the president has
significant latitude in the conduct of foreign affairs, such latitude has been
constrained by congressional legislation and judicial decisions. The Justice
Department memo ignores this history.

The final contortion concerns the memo's overall assertion that the president is
above international law. Nothing could be further from the truth. Under the
Constitution, the president and members of the executive branch are bound to
faithfully execute the law, including international law to which it has agreed.
This is not optional.

The Convention Against Torture provides that "no exceptional circumstances
whatsoever, whether a state of war or a threat of war, internal political
instability or any other public emergency, may be invoked as a justification for
torture." And Common Article 3 of the Geneva Conventions provides that the
rights and duties concerning fundamental humane treatment apply whether a person
detained is a prisoner of war, unprivileged belligerent, terrorist or ordinary
civilian.

It's hard to believe that the memo was poorly researched, so it makes one wonder
whether the Justice Department was being disingenuous. A lawyer who is arguing
to a court is allowed to be disingenuous because it is up to the judge to
evaluate that argument against the adversary's and decide what the law is. But a
lawyer who is writing an opinion letter is ethically bound to be frank.

How could Bybee have written such a scandalous opinion? Lawyers who tell their
clients what they want to hear -- rather than the advice they need -- are
sometimes rewarded with career advancement. Last year, Jay Bybee was appointed
to the U.S. Court of Appeals for the 9th Circuit.

There is a proud tradition of lawyers bravely telling clients not what they want
to hear, but what the law requires. Judge Bybee's actions stand in stark
contrast to the best traditions of the bar.

[ Authors' e-mails:

kathleen@wustl.edu

mertus@american.edu

Kathleen Clark is a professor of legal ethics at Washington University in St.
Louis. Julie Mertus is an associate professor and co-director of the ethics,
peace and global affairs program at American University and the author of "Bait
and Switch: Human Rights and U.S. Foreign Policy" (Routledge). ]

* * *

June 17, 2004; Page A19
TOP GENERAL TO LEAD INQUIRY OF ABU GHRAIB
Change Expands Levels of Investigation

By Josh White and Dana Priest, Washington Post Staff Writers

http://www.washingtonpost.com/wp-dyn/articles/A47806-2004Jun16.html

A four-star general in charge of the Army Materiel Command at Fort Belvoir has
been appointed to take control of the investigation into prisoner abuse at the
Abu Ghraib prison in Iraq, which allows the probe to question high-ranking
officials about the scandal.

A Pentagon spokesman said yesterday that Gen. Paul J. Kern will now head the
investigation that has focused on the role of military intelligence personnel in
abuse of detainees at Abu Ghraib, where military police and intelligence
soldiers were photographed humiliating and assaulting prisoners.

Seven MPs have been charged with the abuse, which allegedly included placing
detainees in mock sexual positions, chaining naked detainees together and
physically assaulting them.

While the investigation was spurred by a series of shocking photographs
allegedly taken by low-ranking soldiers, the inquiry has since been climbing the
military chain of command. Documents obtained by The Washington Post show that
higher-ranking officers approved a range of severe interrogation tactics used at
the prison, including using military dogs to threaten detainees.

Maj. Gen. George R. Fay -- a two-star general -- has been investigating the
abuses over recent weeks, but his team was limited to questioning officials only
at his rank and below. Documents show that Lt. Gen. Ricardo S. Sanchez,
commander of U.S. troops in Iraq and initial overseer of the abuse
investigation, had to give approval for some interrogation techniques to be
used. As a three-star general, Sanchez had been out of the investigation's
reach.

Last week, Sanchez removed himself from the investigation and asked the Pentagon
to appoint a higher-ranking officer to take responsibility. That cleared the way
for investigators to question Sanchez, who has said he did not sanction
maltreatment and did not know about abuse of prisoners until January, when a
soldier turned in photographs documenting it.

Kern has been in charge of the Army Materiel Command since late 2001, which
provides technology, acquisition support and logistics to the Army worldwide.
Kern has also commanded the 4th Infantry Division.

Gen. Peter J. Schoomaker told reporters earlier this week that he expected a
four-star would be named to head the abuse investigation and that Fay would stay
with the inquiry as it continues to question soldiers and officers. The Pentagon
announced Tuesday that President Bush nominated another four-star general, Gen.
George W. Casey Jr., to replace Sanchez as commander of U.S. and allied troops
in Iraq.

Members of the House Armed Services Committee pressed Pentagon and State
Department officials yesterday about the role to be played by U.S. troops in
Iraq after the scheduled June 30 transfer of limited power to an Iraqi interim
government. They expressed concern that a planned military "partnership" with
new Iraqi forces could jeopardize the safety of U.S. troops.

Peter W. Rodman, assistant secretary of defense for international security
affairs, testified that U.S. forces will remain under the control of U.S.
commanders, but that joint missions will be engineered with the developing Iraqi
military as part of a "security partnership." He said the Iraqi forces will work
as part of a 32-country coalition, with the goal of giving total power to Iraqi
forces as soon as they have the ability to provide security.

"We will behave differently," Rodman said after the hearing, explaining that
military decisions will have to merge with political ones. "But we've already
started heading that way. There is a presumption of a common intent."

Officials said that they could not say precisely how long U.S. forces will
remain but that plans call for keeping about 140,000 troops there at least until
the end of 2005. Army Lt. Gen. Walter L. Sharp, director for strategic plans and
policy for the Joint Chiefs of Staff, testified that he hopes to have all Iraqi
police, border patrol and civil defense trained by next June. He said more than
225,000 Iraqis have already taken positions in Iraqi security forces.

Some members of the committee expressed concerns about the duration of the U.S.
military presence in Iraq, saying it would be prudent to set a definitive end
date. Rep. Neil Abercrombie (D-Hawaii) called the plan of an indefinite
partnership "lunacy" and "fantasy" because of eroding support of the Iraqi
people.

* * *


June 14, 2004; Page A01

CONTRACTOR IMMUNITY A DIVISIVE ISSUE
Interim Government Resists U.S. Proposal to Exempt Foreigners From Iraqi Law

By Edward Cody, Washington Post Foreign Service

http://www.washingtonpost.com/wp-dyn/articles/A39159-2004Jun13.html

BAGHDAD, June 13 -- In an early test of its imminent sovereignty, Iraq's new
government has been resisting a U.S. demand that thousands of foreign
contractors here be granted immunity from Iraqi law, in the same way as U.S.
military forces are now immune, according to Iraqi sources.

The U.S. proposal, although not widely known, has touched a nerve with some
nationalist-minded Iraqis already chafing under the 14-month-old U.S.-led
occupation. If accepted by Prime Minister Ayad Allawi, it would put the highly
visible U.S. foreign contractors into a special legal category, not subject to
military justice and beyond the reach of Iraq's justice system.

The U.S. request, confirmed Sunday by Allawi's office, is one of a number of
delicate issues revolving around government authority that will confront the
incoming U.S. ambassador, John D. Negroponte, when Allawi's interim government
assumes formal sovereignty June 30.

Although the Bush administration repeatedly has promised that Iraqis will
receive authentic sovereignty, the U.S. military has made it clear that U.S.
officers will remain in charge of security, the country's top concern. People
here widely assume that U.S. influence will remain decisive for a long time in
almost every domain.

The in-control status of U.S. troops and officials -- from Humvee drivers who
demand priority in traffic to civilian administrators intervening in the choice
of Iraqi leaders -- often has been cited by Iraqis who oppose the occupation on
nationalist grounds. The civilian contractors, particularly armed security
personnel, have generated similar resentment from Iraqis, many of whom long ago
tired of having foreigners tell them where they can and cannot go.

The question of the contractors' status also has arisen because of two U.S.
contract employees at Abu Ghraib prison who were accused in a Pentagon report of
participating in illegal abuse of Iraqi prisoners. The two -- Steven
Stephanowicz of CACI International, an Arlington-based defense firm, and John B.
Israel of the Titan Corp. of San Diego -- have not been charged with any crimes
in Iraq or the United States, although some of their Army colleagues face
military tribunals.

As an occupying army, the 138,000 U.S. military personnel stationed in Iraq have
been outside Iraqi law since U.S.-led forces took over the country in April of
last year. The troops will remain exempt in the future on the basis of a June 8
U.N. Security Council resolution and an accompanying exchange of letters between
Allawi and the U.S. government in which Iraq requests their continued presence,
according to a senior U.S. military official.

As a result, there will be no need for an immediate status of forces agreement
-- the kind that usually governs U.S. military presence in foreign countries,
the official said. U.S. soldiers will continue to be subject to U.S. military
justice only.

"We will continue to operate more or less as before," the official added.

But the status of civilian contractors has become a special question because the
contractors are not covered by the Security Council resolution or the letter
from Allawi requesting that U.S. forces remain in Iraq for an undetermined time.
Moreover, they do not come under U.S. military jurisdiction because they are not
part of the military, although some are hired by the Pentagon.

In that light, the U.S.-run Coalition Provisional Authority has asked Allawi to
grant the contractors immunity from prosecution in Iraq similar to that granted
soldiers, said George Sada, Allawi's spokesman. "They have made that demand,"
Sada said. "We think it is a bit too much. It is under discussion."

The Coalition Provisional Authority did not respond to questions for comment on
the proposal.

The number of foreign contractors in Iraq has fluctuated greatly over the
months. Many civilians working in the reconstruction effort have left in the
last few months because of rising violence and the taking of foreign hostages.
But many have remained, particularly security guards, who are highly visible
around Baghdad and other cities with their armored four-wheel-drive vehicles,
automatic rifles and flak jackets.

Because no central authority registers foreign contractors, their presence has
not been tallied with precision, according to security consultants. Estimates of
the total number of foreigners working here -- from Americans to South Africans
to Chileans -- have ranged from 20,000 to 30,000. "But no one really knows,"
said a civilian security executive.

The U.S. proposal was believed to cover only U.S. citizens. The senior military
official said that after June 30 it would be up to the embassies of each country
to work out arrangements for their own nationals. "Every foreign citizen will
have a certain status in Iraq," he said.

A civilian official in the U.S. occupation authority said some security
contractors have begun to ask about their status after June 30, particularly
since the campaign of violence by insurgents that, over the last two months, has
made life here more dangerous for foreigners. But it is unlikely that the
interim Iraqi government would seek to arrest civilian security personnel or
interfere with their work, the official said.

"Are some Iraqi security people going to move in and arrest our cooks and bottle
washers?" he said. "I don't think so."

Sada, Allawi's spokesman, said the U.S. proposal was put forth, along with other
issues, in regular meetings Allawi had with L. Paul Bremer, head of the
Coalition Provisional Authority; David Gompert, a senior Bremer aide for
national security issues who is about to leave; and Lt. Gen. Ricardo Sanchez,
the U.S. military commander in Iraq.

Allawi, a secular Shiite who headed a CIA-funded exile group that opposed former
president Saddam Hussein, has said repeatedly since assuming office June 1 that
he wants to cooperate with the United States and believes U.S. troops should
remain in the country to help restore security. In line with U.S. thinking, he
has qualified Iraqis who fight U.S. occupation troops as terrorists and
dismissed their claims to be Iraqi nationalists.

At the same time, he and other members of the 36-member interim government have
Iraqi constituencies to think about as well as the United States. Any move
likely to bruise Iraqi sensibilities -- or stoke the bloody rebellion against
U.S. occupation troops -- carries a political price they would be reluctant to
pay.

Moqtada Sadr, a militant young Shiite Muslim cleric who has opposed the U.S.
occupation with his Mahdi Army militia, said Friday, for instance, that he would
lay down his arms and support Allawi's government only if it sets a timetable
for ending the occupation.

* * *


June 13, 2004; Page A01

IN GUANTANAMO, DETAINEE FEARS RECORDED
Defense Memos Raised Questions About Treatment as Red Cross Called for Changes

By Scott Higham, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A37364-2004Jun12.html

On the U.S. Navy base at Guantanamo Bay, Cuba, the newly arriving detainees
thought they were walking into certain death. Dressed in reddish jumpsuits, a
hue reserved for condemned men in the Arab world, the captives believed they
were about to be executed.

U.S. military officers wondered whether the fears could work in their favor.

"The detainees think they are being taken to be shot," the military officers
noted in one of a series of Defense Department memos written at the base and
obtained by The Washington Post. "Should we continue not to tell them what is
going on and keep them scared."

The previously undisclosed memos provide one of the most complete pictures to
date of life behind the "wire" at Guantanamo. The detainees wanted an extra pair
of shorts to wear in the shower, for privacy. They asked that the call to prayer
be broadcast in camp, but a CD player could not be found. They asked for tea
with "lots of sugar." The response: "Not now. However, we will reconsider in the
future." Of the 600 detainees, 200 cooperated with their keepers.

The memos also document for the first time the precise nature of a number of
long-standing concerns issued by the International Committee of the Red Cross
over the treatment of suspected al Qaeda terrorists and Taliban fighters held at
the base.

Among them: U.S. interrogators were placing detainees in isolation holds for as
long as a month at a time for refusing to furnish information. Extraordinarily
long interrogation sessions were having a "cumulative effect" on the mental
health of the captives. And the reliance upon open-air cages instead of enclosed
cells constituted inhumane treatment under the international laws of war.

Nearly two years after the camp opened, Red Cross officials sharply criticized
the U.S. government for continuing to use the cages and keeping detainees in
"excessive isolation," and for failing to establish due process or a stepped-up
release schedule, according to the memos.

"There was no improvement in any of the four major areas of concern," an Oct. 9,
2003, memo states.

The memos also contain tantalizing clues about several high-value detainees who
were off-limits to Red Cross inspectors during their periodic visits to
Guantanamo, which typically lasted four to six weeks. A source familiar with
captives at the base said one of the detainees, No. 760, is a close associate of
Osama bin Laden, Abdallah Tabarak. The Moroccan citizen was bin Laden's personal
bodyguard, took part in the Tora Bora battles in Afghanistan at the end of 2001
and sacrificed himself to secure bin Laden's escape by making calls on the al
Qaeda leader's personal satellite telephone.

Red Cross officials were not permitted to interview Tabarak as recently as Feb.
2, according to a memo documenting a meeting at the base that day.

"Is there a possibility we can see him?" asked Vincent Cassard, the head of the
Red Cross inspection team.

"Because of military necessity, the ICRC may not have private talks with him,"
said Maj. Gen. Geoffrey D. Miller, then commander of detention operations at
Guantanamo and now in charge of U.S. prison facilities in Iraq. ". . . He is the
only one here at the Camp who has restricted access."

A Defense Department spokeswoman declined to say last week who is being held at
Guantanamo as part of a broader policy barring the disclosure of the identities
of detainees at the base. Red Cross officials also declined to identify
detainees or discuss the memos. Red Cross officials rarely issue public comments
and criticisms, fearing they could lose access to detention facilities and
prisoners.

"Confidentiality prevents us from being able to confirm or deny what we have
seen, what we have heard from detainees and what we have discussed with the
authorities," Red Cross spokeswoman Amanda Williamson said.

Defense Department officials declined to discuss the memos, stressing the
importance of maintaining confidentiality in their conversations with the Red
Cross. "There's been a good working relationship," said Navy Lt. Cmdr. Barbara
Burfeind, a Defense Department spokeswoman. "A lot of the concerns that they
have brought up have been addressed."

She said there have been "significant improvements" in the quality of life for
detainees and the Pentagon is planning hearings to review the status of each of
the 595 detainees.

"Basically, a lot of things have changed and improved down there since it first
opened," Burfeind said. "There's been an ongoing dialogue with the Red Cross,
and that has been very helpful."

Since Guantanamo received its first detainees in January 2002, U.S. officials
have closely guarded what takes place on the cellblocks, who is held there and
when the captives might be released. The open-ended nature of the detentions has
been condemned by foreign governments and human rights groups. The
constitutionality of the detentions is being weighed by the U.S. Supreme Court,
which is expected to rule within the next few weeks whether detainees can be
held without access to lawyers or courtrooms.

Record of Visits

While the Defense Department memos are not a complete record of the half-dozen
Red Cross visits to the base, they do provide a rare account of detainee life
and the conversations between members of the international humanitarian group
and top detention commanders.

On Jan. 11, 2002, the Defense Department opened Camp X-Ray at Guantanamo, a
primitive collection of hastily erected chain-link cages on slabs of concrete in
a remote area of the Navy base. Six days later, Red Cross officials visited the
base. They met with the prison commanders on Jan. 21.

The conversation was cordial.

"The meeting was very informal, but well structured," a military officer wrote
in one of the memos. "The ICRC delegates were very appreciative of support and
access provided."

Red Cross officials said they were "very pleased" with the treatment of the
detainees and appreciate that the situation is "fluid" and commanders must be
flexible, the memo said. "They accept that the U.S. must factor protection as a
paramount consideration."

After the meeting, military officers prepared a document titled "General
Observation and Meeting Notes." The document shows that military officers were
forced to confront numerous questions and concerns raised by the Red Cross.

The military officers noted that the detainees, the vast majority of them
Muslim, believed the reddish jumpsuits were a sign that they were going to be
put to death. The officers wondered whether they should explain that was not the
case, change the color of the jumpsuits or do nothing.

In a section of the document subtitled "Issues for Commander," the military
officers wrote:

* Should we continue not to tell them what is going on and keep them scared.
ICRC says that they are very scared.

* What are the benefits of keeping them scared vs. telling them what is
happening?

* What additional problems are caused when they are this scared?

The military officers said the commander of Guantanamo might want to consider
that the detainees were not "thinking logically" and "the detainees think they
are being taken to be shot." The officers also noted that the varied religious
and ethnic backgrounds of the detainees were causing confusion and generating a
series of issues that had to be resolved.

The detainees felt humiliated by being forced to shower naked in front of other
captives and military police soldiers. The prisoners were not permitted to grow
beards, a key religious practice. They did not have cloth to keep their Korans
clean and off the floor. Pakistanis said they could not sleep unless their faces
were covered. Detainees said they needed prayer beads and caps, and wanted calls
to prayer to be broadcast five times a day.

"We need to get an expert in their culture to help us," the officers wrote in
the memo.

Concerns Outlined

A few days later, on Jan. 24, 2002, military officers prepared a five-page memo
documenting 29 concerns the Red Cross delegation had raised on behalf of the
detainees. The detention commanders decided to provide detainees with cloth for
their Korans, daily prayer calls once they found a CD player and shorts for the
shower. The commanders also decided to tell the detainees that the color of the
jumpsuits did not portend a death sentence.

"Detainees are informed that the purpose of the fluorescent jump is to identify
them as 'detainees' and that it is worn for security purposes," the memo said.

The military commanders also denied or delayed decisions on some of the Red
Cross requests made on behalf of the detainees. The detainees would not
initially be told where they were. They would not be permitted to be arranged in
cells near those of similar nationalities who speak the same language.

"Not until the initial round of interrogations is completed," the memo said.

Within a few months, the military would close Camp X-Ray and replace it with a
more modern facility called Camp Delta. Although detainees were still kept in
metal cages, military officers made improvements to the camp. They also started
an incentive-based system in an effort to improve the flow of intelligence
during interrogations.

In October 2003, the Red Cross team was back at Guantanamo. On this trip, the
team conducted more than 500 interviews on the cellblocks before meeting with
Miller and his top aides. The Defense Department memo recounting that meeting
suggested that the once-cordial relationship had cooled.

Cassard, the Red Cross team leader, said the humanitarian group was deeply
troubled that little progress had been made in four key areas: the lack of a
legal system for the detainees, the continued use of steel cages, the "excessive
use of isolation" and the lack of "repatriation" for the detainees.

"The ICRC feels that interrogators have too much control over the basic needs of
detainees. That the interrogators attempted to control the detainees through use
of isolation," the memo said. "Mr. Cassard stated that the interrogators have
total control of the level of isolation in which detainees were kept; the level
of comfort items detainees can receive; and also the access of basic needs to
the detainees."

Miller bristled at the comments, telling the Red Cross representatives that
interrogation techniques were not their concern. "There is no issue with the
interrogation methods. The focus of the ICRC should be the level of humane
detention being upheld, not the interrogation methods," the memo said.

Cassard replied that those methods and the lengths of interrogations were
coercive and having a "cumulative effect" on the mental health of the detainees.
Cassard also said that the steel cages, coupled with the maximum-security nature
of the facility and the isolation techniques, constituted harsh treatment. He
said interrogators were putting detainees into isolation holds for 30 days at a
time for refusing to cooperate, an apparent violation of international law.

Miller denied the assertion. He said detainees were never put into isolation
cells for failing to cooperate. He said those cells were used to punish those
who failed to follow prison rules or had assaulted guards. He said only he had
the authority to order isolation, and he "is careful not to exceed 30 [days]
unless a detainee has committed a serious breach of the disciplinary rules."

Cassard then said he had been told that interrogators at the facility were
gaining access to the medical files of the detainees and using the information
to develop their interrogation plans. "This is a breach of confidentiality
between a physician and a patient," Cassard said, according to the memo.

Miller denied the allegation, demanding that Cassard provide proof.

"Miller asked the ICRC to confirm their facts with regard to the medical records
issue," the memo said.

Cassard shot back.

"Mr. Cassard raised a concern that MG Miller was not taking the discussion
seriously," the memo said. "Miller explained that he was taking the discussion
seriously, that he respected the work and opinions of the ICRC. He also asked
the ICRC team to respect his opinions."

Cassard also criticized Miller for expanding a section of the prison called Camp
Echo, a collection of isolation huts. Cassard said he was "shocked" to see more
of the huts going up and called conditions at the camp "extremely harsh" with
"very strict interrogations."

Miller called Camp Echo an "appropriate facility" and said it was designed to
hold disciplinary cases and detainees scheduled to be tried before military
commissions. He said the secluded nature of the camp permitted "detainees to
have private conversations with their attorneys," the memo said. Miller added:
"There are currently very few detainees in Camp Echo and they are there for
serious assaults against MPs."

The chief of the Red Cross in North America, Christophe Girod, concluded the
meeting by saying that the detainees should have visitation rights and that the
open-ended detentions were "very hard" on the captives. "Mr. Girod stated that
after two years it is time for ICRC and the U.S. to put everything on the table
and make some real policy changes."

Miller said changes were underway.

"Miller asked that the ICRC respect the fact that some detainees here are very
high risk, very dangerous and must be treated as such," the memo said.

On Oct. 10, the day after the meeting, Girod issued a rare public criticism of
the Guantanamo operation, noting "a worrying deterioration in the psychological
health of a large number" of the detainees because of the uncertainty about
their fate. "One cannot keep these detainees in this pattern, this situation,
indefinitely."

He said he spoke out because negotiations with the Bush administration failed to
produce results.

This February, the team members returned to Guantanamo and met with Miller for
an update. The general told them they could have access to several detainees who
were previously off-limits but not Tabarak, No. 760. "We are in the process of
getting a medical summary of his record for you to see how he's doing," Miller
told the delegation, according to a Feb. 2 memo. He also said that an Australian
held in Guantanamo, David Hicks, who was charged last week with conspiracy to
commit war crimes, was cleared to make phone calls.

"So far, he's made two, one to his father and the other to his mother," Miller
said in February.

Miller also said that several juveniles being held at the base had been freed,
and more than 200 detainees -- close to a third of those held at the base --
were cooperating with U.S. interrogators. Because of their cooperation, the
general said, he was "opening up new recreations" as a reward.

Today, a Red Cross team is on the ground in Cuba, inspecting the base again and
interviewing detainees. Williamson, the Red Cross spokeswoman, said the U.S.
government has made numerous changes since the detention camp opened 29 months
ago. Still, she said, concerns remain.

"Some of our concerns have been addressed, and others have not," Williamson
said. "A key problem that hasn't changed at all is the lack of a legal framework
to regulate and govern the detentions."

[ Research editor Margot Williams contributed to this report. ]

* * *


June 13, 2004

TRIAL BY NEWS CONFERENCE? NO JUSTICE IN THAT

By Scott Turow

http://www.washingtonpost.com/wp-dyn/articles/A35986-2004Jun11.html

CHICAGO -- On June 1, Deputy Attorney General James Comey called a press
conference to discuss the evidence the government says it has amassed against
the alleged "dirty bomber" Jose Padilla. While Comey's revelations were widely
reported, the impropriety of his actions seems to have passed largely
unremarked. Acknowledging that he was playing to "the court of public opinion,"
Comey claimed to tell "the full story of Jose Padilla," disclosing informants'
claims about the prisoner and several statements Padilla allegedly made while in
custody. Comey suggested that the statements showed Padilla to be a dangerous al
Qaeda associate intent on taking untold American lives.

At the same time, Comey acknowledged that the government did not expect to offer
Padilla any forum in which to refute or question its alleged evidence, and
dodged questions about the questionable timing of releasing such incendiary
information while the Supreme Court is nearing a decision on Padilla's case,
which raises the legality of his detention by the president. To me, as a former
federal prosecutor and a criminal defense lawyer, Comey's performance
constituted one more legally and ethically dubious maneuver by our government in
a case that I already regarded as one of the most troubling in memory.

Padilla's case raises probably the starkest civil liberties questions that have
come with the war on terrorism: Do the law and the Constitution permit the
government to imprison a U.S. citizen indefinitely, without the benefit of a
lawyer or a court hearing, merely on the president's word that this American is
a potential terrorist?

A quick review of the facts: In May 2002, Padilla, an American citizen who had
converted to Islam, returned to the United States after four years in the Middle
East. He was arrested at Chicago's O'Hare Airport on a material witness warrant
issued by the federal prosecutor's office in Manhattan, where Comey was then the
U.S. attorney. On June 9, before a federal judge could rule on Padilla's
challenge to his arrest, President Bush declared Padilla an enemy combatant. For
two years now, he has been held in isolation by the Defense Department in a
naval brig in South Carolina while the government has interrogated him. He has
not been allowed to communicate with his family or, until very recently, his
court-appointed lawyer.

Although Attorney General John Ashcroft claimed, the day after Bush's
declaration, that Padilla was at the center of "an unfolding terrorist plot to
attack the United States by exploding a radioactive 'dirty bomb' " -- that is,
an explosive device that would spread radioactive waste -- the government has
never filed any charges, criminal or even civil, against Padilla. The sole
justification the government has placed before the court for Padilla's
imprisonment is a brief "declaration" from a Defense Department official who had
no direct knowledge of the case. That declaration contained a sanitized summary
of the intelligence that President Bush relied on. Yet, the government has
fiercely resisted giving Padilla any kind of hearing where even this minimal
evidence could be challenged. It maintains that it can continue to hold Padilla
as an enemy combatant as long as the war on terrorism lasts.

Last December, in a 2 to 1 decision, the U.S. Court of Appeals for the 2nd
Circuit in New York ruled that there was no legal basis to detain Padilla and
ordered him released. The government appealed that order to the Supreme Court,
which is expected to announce its ruling later this summer.

For argument's sake, let's assume that Padilla might well be the lethal spawn of
Osama bin Laden. But even if that's true, the fundamental legal question is
whether , as an American citizen , he is entitled to a real day in court before
being locked away. While the Bush administration claims that Padilla's status as
someone who was allegedly fighting on behalf of our enemies deprives him of
normal due process rights, I have a hard time believing that the framers of the
Constitution, after fighting the abuses of the English monarch, had any
intention of ever allowing a president to imprison citizens simply on his say-so
.

To my mind, all of this was disturbing enough even before Comey stepped in front
of the microphones two weeks ago for what struck me as a startling and ugly
performance. Comey said that the Justice Department had answered a letter from
Republican Sen. Orrin Hatch of Utah, chairman of the Senate Judiciary Committee,
about Padilla's case, and in doing so had de-classified much intelligence
information, including some of the statements Padilla had allegedly made while
in U.S. captivity, in order to "allow the American people to understand the
threat [Padilla] posed." The public was then treated to frightening details
about Padilla's meetings with senior al Qaeda figures and his proposal to
detonate a radiological bomb in the United States. We now learn, Attorney
General Ashcroft's comments notwithstanding, that al Qaeda had discouraged this.
Comey said that the operative plan was for Padilla to blow up U.S. apartment
buildings using natural gas.

Despite the Justice Department's wholesale damning of Padilla as the would-be
killer of perhaps thousands of Americans, the government has no intention of
presenting any of this evidence to a grand jury in order to bring criminal
charges, Comey said. Thus, if the government gets its way, Padilla will have no
chance to answer Comey, to learn anything about the sources of Justice's
information, or even to offer his own version of events. Padilla is functionally
a convicted terrorist, first imprisoned and now thoroughly stigmatized, without
benefit of any of the constitutional safeguards embodied in the Bill of Rights.
He has not had the right to remain silent; he has not had access to his lawyer;
he has not been allowed to cross-examine witnesses or even to know who they are.

Completely absent from Comey's presentation was any discussion of the legal
authority that allowed him to smear an American citizen in this way. Comey was
not doing his duty in a courtroom, or giving a classified report to Congress,
but making a purely voluntary disclosure of information that the government has
only now found it opportune to reveal. He was frank in admitting that his
mission was public relations. Yet the ethical rules of the American Bar
Association (ABA) caution prosecutors to "refrain from making extrajudicial
comments that have a substantial likelihood of heightening public condemnation
of the accused." Similarly, the Constitution prohibits Congress from passing
bills of attainder -- that is, legislative acts that single out an individual
for punishment without trial. But the executive branch, already Padilla's
jailer, now claims the right to declare him guilty before the world, without
giving him the opportunity for any meaningful response.

Imagine that the Supreme Court concludes that there is no legal basis for
detaining Padilla and orders him released. How will Padilla unring this bell?
Indeed, is there anywhere in this country where he could live without grave
fears for his physical safety?

I cannot look at what Comey released with confidence that it presents a full or
balanced picture of what Padilla did. Squeezed into a single footnote in the
Hatch letter were these facts, which were glossed over by Comey: Padilla denies
having sworn allegiance to al Qaeda or being a part of it; he denies that his
trip to the United States was for the purpose of carrying out a bombing plot;
and he says in fact that he only discussed these things as a way to avoid being
pressed into fighting in Afghanistan.

Even more significantly, Comey revealed nothing about how the damning statements
were wrung from Padilla. Comey claimed that Padilla had not been mistreated,
but, when asked, declined to say that his confinement and questioning had met
the terms of the Geneva Conventions. In March 2003, the government said Padilla
could not see his lawyers because that would break "the proverbial pane of
glass" behind which the government was keeping him. His lawyers have suggested,
and no one has denied, that he was being subjected to sensory deprivation.

Probably the most galling moment of Comey's press conference came when he calmly
conceded, "I don't believe that we could use this information in a criminal
case, because we deprived him of access to his counsel and questioned him in the
absence of counsel." Comey seemed to have forgotten why our courts do not admit
such evidence or statements produced by coercion. It's because human experience
has shown again and again that this kind of proof is unreliable. Consider the
many people released from prisons in recent years after DNA proved that their
confessions were false.

Finally, the potential effect of Comey's statements on the Supreme Court's
decision raises serious ethical issues. Comey said there was nothing strategic
about the timing of the release of this information. I am skeptical. The horrors
at Baghdad's Abu Ghraib prison, which came to light after the Padilla case had
been submitted to the court, chillingly demonstrate the hazards of denying
prisoners access to lawyers and courts. With the news seeming to argue Padilla's
case for him, the Justice Department was happy to push back with a news event of
its own, designed to show that Padilla, by his own word, was a very bad guy.

So what's the problem? For starters, the ABA's Model Rules of Professional
Conduct prohibit lawyers involved in a case -- as Comey, the second-ranking
official in Justice, surely is -- from making statements "that the lawyer knows
. . . will be disseminated by means of public communication and will have a
substantial likelihood of materially prejudicing an adjudicative proceeding. . .
."

Swaying Supreme Court justices with an unverified account of unreliable evidence
obviously poses that risk. When asked about this, Comey defended himself by
saying that he "assumed" the court had already decided the case. That's nothing
more than a guess. Justices read newspapers and often reframe their opinions
right up until an opinion is announced. Certainly, in my 25 years of practicing
law, I cannot remember the government ever making such an inflammatory
presentation about a pending case before the Supreme Court. The proper course
was to wait for the court to issue its opinion. The fact that Justice officials
chose not to do so reinforces the suspicions about their motives.

I do not know what Jose Padilla did, and it's quite possible that Padilla, a
former Chicago gang member, is not just a two-bit thug in a kaffiyeh, but a
major menace. Yet the problem all along has been that the government does not
have admissible evidence to prove that.

Thus we arrive at the perverse logic that has characterized the Padilla case.
Because the government cannot convict him after affording him the due process of
a trial, it will skip all of it -- due process, trial, the Bill of Rights -- and
imprison him indefinitely anyway. Now the government's lawyers have gone one
step further, "proving" Padilla a terrorist via a news conference, without
waiting to see if the Supreme Court decides that his rights were abused.

In law school, I was taught that our constitutional rights represent a view of
the minimum value of a human being. They are a way of saying that even a
dirtball is worth this much, because he is a person, not to mention the fact
that said dirtball may turn out to be my brother, my daughter or even me. In the
case of Jose Padilla, Comey and the Bush administration have set that value far
too close to zero.

Author's e-mail:

scott@scottTurow.com

[ Scott Turow is an attorney and the author of several novels, including
"Reversible Errors," and an essay about the death penalty, "Ultimate
Punishment," all published by Farrar, Straus and Giroux. ]

* * *


June 11, 2004; Page A06

BUSH: U.S. EXPECTED TO FOLLOW LAW ON PRISONERS
President Is Pressed On Interrogations Memo

By Dana Milbank and Dana Priest, Washington Post Staff Writers

http://www.washingtonpost.com/wp-dyn/articles/A32707-2004Jun10.html

SAVANNAH, Ga., June 10 -- President Bush said Thursday that he expects U.S.
authorities to follow the law when interrogating prisoners abroad, but he
declined to say whether he believes torture is permitted under the law.

Pressed repeatedly during a news conference here about a Justice Department memo
saying torture could be justified in the war on terrorism, Bush said only that
U.S. interrogators had to follow the law.

Asked whether he agrees with the Justice Department view, Bush said he could not
remember whether he had seen the memorandum. "The authorization I issued was
that anything we did would conform to U.S. law and would be consistent with
international treaty obligations," he said.

A second questioner asked Bush whether he would authorize "any means necessary"
to elicit information from a prisoner who had information about an imminent
terrorist attack. The president replied: "What I've authorized is that we stay
within U.S. law."

Pointing out that the administration lawyers who wrote the memo believe
terrorist suspects could be tortured without violating the law, a third
questioner asked whether torture is ever morally justified. "Look, I'm going to
say it one more time," Bush replied. "Maybe I can be more clear. The
instructions went out to our people to adhere to law. That ought to comfort
you."

An Aug. 1, 2002, Justice Department memo from the Office of Legal Counsel to
White House counsel Alberto R. Gonzales, says torturing suspected al Qaeda
members abroad "may be justified" and that international laws against torture
"may be unconstitutional." The Defense Department used the Justice memo in
crafting a similar March 2003 memo.

The administration is redefining the law as it has been commonly understood,
according to senior civilian and military lawyers aware of the Justice
Department's interpretation of torture and who asked to remain unnamed.

"They have reinterpreted it to the point that they are meaningless terms," said
Kenneth Roth, executive director of Human Rights Watch.

In particular, the Justice Department defined torture in a much narrower way
than has been the general standard to date, making "within U.S. law" a
definition that might not be accepted elsewhere. For example, torture must be
equivalent to such serious injury to cause "organ failure, impairment of bodily
function, or even death."

But the Justice Department also concludes that the torture convention, an
international law prohibiting torture, does not expressly prohibit cruel and
inhumane treatment, which would include a wide range of painful acts that fall
short of "serious physical injury such as organ failure, impairment of bodily
function, or even death."

"We conclude that the treaty's text prohibits only the most extreme acts by
reserving criminal penalties solely for torture and declining to require such
penalties for 'cruel, inhuman, or degrading treatment or punishment,' " the
department memo said.

The Justice Department said this conclusion was based on the examination of
cases brought against individuals under the Torture Victims Protection Act and
international legal decisions regarding the use of sensory deprivation
techniques.

"These cases make clear," the Justice Department said, "that while many of these
techniques may amount to cruel, inhuman or degrading treatment, they do not
produce pain or suffering of the necessary intensity to meet the definition of
torture. From these decisions, we conclude that there is a wide range of such
techniques that will not rise to the level of torture."

The memo concludes that if U.S. personnel were to be accused or charged with
violating the torture convention, "under the circumstances of the current war
against Al Qaeda and its allies, application of Section 2340A (the Convention on
Torture) interrogations undertaken pursuant to the President's Commander-in-
Chief powers may be unconstitutional."

Finally, "even if an interrogation method might violate Section 2340A, necessity
or self-defense could provide justifications that would eliminate criminal
liability," the 50-page memo concludes. Therefore, an individual accused of
torture could still be acting within U.S. law.

The memo was written to give the CIA guidance and legal protection from civil
and criminal prosecution, and to help the agency push the limit on what would be
acceptable, harsh techniques that the U.S. government would not consider
torture.

Minutes after Bush spoke, the administration's view on prisoner interrogation
was criticized by French President Jacques Chirac, who has been a constant
irritant to Bush. "Yes, we should fight terrorism, but we should not forget the
principles on which our civilization rests, such as human rights," Chirac said
at a news conference.

Priest reported from Washington. Staff writer Glenn Kessler in Georgia
contributed to this report.

* * *


June 11, 2004; Page A01

USE OF DOGS TO SCARE PRISONERS WAS AUTHORIZED
Military Intelligence Personnel Were Involved, Handlers Say

By Josh White and Scott Higham, Washington Post Staff Writers

http://www.washingtonpost.com/wp-dyn/articles/A32776-2004Jun10.html

U.S. intelligence personnel ordered military dog handlers at the Abu Ghraib
prison in Iraq to use unmuzzled dogs to frighten and intimidate detainees during
interrogations late last year, a plan approved by the highest-ranking military
intelligence officer at the facility, according to sworn statements the handlers
provided to military investigators.

A military intelligence interrogator also told investigators that two dog
handlers at Abu Ghraib were "having a contest" to see how many detainees they
could make involuntarily urinate out of fear of the dogs, according to the
previously undisclosed statements obtained by The Washington Post.

The statements by the dog handlers provide the clearest indication yet that
military intelligence personnel were deeply involved in tactics later deemed by
a U.S. Army general to be "sadistic, blatant and wanton criminal abuses."

President Bush and top Pentagon officials have said the criminal abuse at Abu
Ghraib was confined to a small group of rogue military police soldiers who
stripped detainees naked, beat them and photographed them in humiliating sexual
poses. An Army investigation into the abuse condemned the MPs for those
practices, but also included the use of unmuzzled dogs to frighten detainees
among the "intentional abuse."

So far, the only charges to emerge have been against seven MPs and do not
include any dog incidents, even though such use of dogs is an apparent violation
of the Geneva Conventions and the Army's field manual. The military intelligence
officer in charge of Abu Ghraib later told investigators that the use of
unmuzzled dogs in interrogation sessions was recommended by a two-star general
and that it was "okay."

The newly obtained documents reinforce the picture that the abuse falls into two
categories: sexual humiliation and beatings at the hands of MPs, and
intimidation using dogs that is clearly tied to military intelligence. The
sexual abuse happened weeks and even months before the dog incidents, some of
which appear to be part of an organized strategy by military intelligence to
scare detainees into talking, according to the statements.

Sgts. Michael J. Smith and Santos A. Cardona, Army dog handlers assigned to Abu
Ghraib, told investigators that military intelligence personnel requested that
they bring their dogs to prison interrogation sites multiple times to assist in
questioning detainees in December and January. Col. Thomas M. Pappas, who was in
charge of military intelligence at the prison, told both soldiers that the use
of dogs in interrogations had been approved, according to the statements.

"I have talked to Col. Papus [sic] and he said it was good to go," Smith told an
investigator on Jan. 23.

Neither Smith nor Cardona has been charged in connection with the abuse at Abu
Ghraib. "It's all under investigation," said Lt. Col. Pamela Hart, an Army
spokeswoman.

The men could not be reached yesterday to comment. Two officers at the U.S. Army
Trial Defense Service said that a military lawyer has been assigned to Cardona
and that a message seeking a comment would be relayed to the attorney. The
officers said they did not know whether a lawyer from the Army's defense service
had been assigned to represent Smith.

In Army memos regarding interrogation techniques at the prison, the use of
military working dogs was specifically allowed -- as long as higher-ranking
officers approved the measures. According to one military intelligence memo
obtained by The Post, the officer in charge of the military intelligence-run
interrogation center at the prison had to approve the use of dogs in
interrogations. There is no explanation in the memo of what parameters would
have to be in place -- for example, whether the dogs would be muzzled or
unmuzzled -- or what the dogs would be allowed to do. The Army previously has
said that the commanding general of U.S. troops in Iraq -- Lt. Gen. Ricardo S.
Sanchez -- would have had to approve the use of dogs.

Human rights experts said the use of dogs at Abu Ghraib violates longstanding
tenets regulating the treatment of prisoners and civilians under the control of
an occupying force, including the Army's field manual, which prohibits "acts of
violence or intimidation" by American soldiers.

"Using dogs to frighten and intimidate prisoners is a violation of the Geneva
Convention," said Elisa Massimino, Washington director of Human Rights First, an
international organization based in New York. "It's a violation of U.S. policy
as stated in the Army field manual, and it's a violation of the prohibition
against cruel treatment."

The dog teams at Abu Ghraib were part of a security detail that also searched
for weapons, explosives and contraband. The general in charge of military
prisons in Iraq, including Abu Ghraib, said the dog teams were under the control
of military intelligence but had no training or experience in helping with
interrogations.

Cardona's dog, a tan Belgian Malinois named Duco, was trained to be part of a
narcotics and patrol team. Cardona told investigators he also helped military
intelligence with two interrogations and later was summoned by military police
to draw information out of a detainee on Tier 1 of the prison, site of the worst
documented abuse.

Smith said military intelligence personnel asked him to instill fear in
detainees. He said that he would bring his dog, a black Belgian shepherd named
Marco, to the tier specifically to scare prisoners after they were pulled out of
their cells. At the behest of interrogators, he said, in some cases he would
bring the barking dog to within six inches of the prisoners.

"Is using the dog in this manner an allowable tool by the MI interrogators?" an
investigator asked Smith.

"Yes," he replied.

The dog handlers arrived at Abu Ghraib in late November, sometime after the
abuse of detainees had been captured in photographs, including the images of the
naked human pyramid and forced masturbation.

Master-at-Arms 1st Class William J. Kimbro, a Navy dog handler, said he was
summoned to Tier 1 one night in November to help search a cell for explosives
using his dog, Nicky, a black and tan Belgian Malinois. Earlier that night --
records indicate it was Nov. 24 -- a prisoner had allegedly been found with a
weapon. When Kimbro and Nicky concluded the search, they were called to the
second floor of the cellblock to search another cell.

"There was a bunch of yelling going on in the cell and my dog started going
ape," Kimbro told investigators, adding that interrogators were yelling at a
detainee in the corner. "I remember one of the males saying to the detainee, if
the detainee did not provide the information the guy was asking about, then he
would have me let . . . my dog go on him."

Kimbro said he was surprised by the comment and tried to calm Nicky down. He
soon left, he said, upset that interrogators had tried to use his dog as an
interrogation tool.

"I was leaving because this is not what my dog is trained for," Kimbro said in
one of three statements he provided to investigators. "We do not use our dogs
for interrogation purposes."

Kimbro was singled out for praise in Maj. Gen. Antonio M. Taguba's report about
abuse at the prison for refusing "to participate in improper interrogations
despite significant pressure from the MI personnel at Abu Ghraib."

Smith and Cardona said they complied with the MI requests because they believed
the tactics had been approved by Pappas, the military intelligence officer in
charge of the prison. They told investigators that they spent time on the
cellblocks, allowing their dogs to bark at the detainees.

They said a non-commissioned officer from military intelligence approached them
in mid-December.

"He asked us if we could use our dogs for interrogation purposes," Cardona said
in a statement. "They were trying to get it cleared. We went outside and saw
Col. Pappas. He told us MI wanted to use the dogs for interrogations and he told
us that they had received permission to use dogs in an interview."

Smith recalled the same conversation, saying he spoke with Pappas in the parking
lot the night after Saddam Hussein was captured -- Dec. 14. He said he was told
that the use of the dogs was permitted.

Later that night, the two dog handlers took their dogs to an interrogation booth
holding a detainee. Interrogators told them the dogs did not need to be muzzled,
they said.

"When we got to the room the detainee was sitting in the doorway, with his feet
in the doorway and the door was open," Smith said. "My dog and Sgt. Cardona's
dog were both barking at the detainee and we never got closer than 18 inches.
Neither dog had a muzzle on."

Also in mid-December, the dog handlers said they were asked by one of the MPs,
Staff Sgt. Ivan L. "Chip" Frederick II, for help in dealing with an
uncooperative detainee. Part of what followed was captured in photographs that
have come to define the abuse at Abu Ghraib: A naked prisoner was up against a
wall, two dogs squaring off against him.

The detainee, identified in the documents as Ballendia Sadawi Mohammed, said he
was suddenly snatched from his bed in cell No. 5 one night and sent into the
hallway handcuffed.

"They sent the dogs toward me. I was scared," Mohammed told investigators. "The
first dog bit my leg and injured me there and this was bad luck. The bite from
the first dog caused me to have 12 stitches from the doctor of my left leg as a
result I lost a lot of blood."

Spec. Sabrina D. Harman, a member of the 372nd Military Police Company, said she
saw the incident and said the detainee was bitten after he tried to run from the
dog and was cornered. Cardona, whose dog apparently bit the detainee twice, once
on each leg, justified letting his dog go to the end of its leash because he
believed the detainee was fighting with Spec. Charles A. Graner Jr.

Military investigative records show that Frederick and Graner were key
participants in the abuse. Harman, who said she saw two other inmates with dog
bites around late December, also has been charged.

In early January, Cardona said, he used his dog during an interrogation at the
"Wood" facility at Abu Ghraib, a collection of wooden interrogation booths set
up behind the prison. Cardona said a non-commissioned military intelligence
officer asked him to bring his dog into a booth and make it bark to scare the
prisoner.

"I asked him if he wanted Duco to be in a muzzle and he said no," Cardona told
investigators. "We went into the booth and there was a detainee in the booth
with a bag over his head. Duco barked at him for about two or three minutes and
they were asking the detainee questions."

On Jan. 13, Spec. John Harold Ketzer, a military intelligence interrogator, saw
a dog team corner two male prisoners against a wall, one prisoner hiding behind
the other and screaming, he later told investigators.

"When I asked what was going on in the cell, the handler stated that he was just
scaring them, and that he and another of the handlers was having a contest to
see how many detainees they could get to urinate on themselves," Ketzer said.

Research editor Margot Williams contributed to this report.

© 2004 The Washington Post Company

* * *


June 10, 2004; Page A01

DETAINEES' MEDICAL FILES SHARED
Guantanamo Interrogators' Access Criticized

By Peter Slevin and Joe Stephens, Washington Post Staff Writers

http://www.washingtonpost.com/wp-dyn/articles/A29649-2004Jun9.html

Military interrogators at the U.S. detention facility at Guantanamo Bay, Cuba,
have been given access to the medical records of individual prisoners, a breach
of patient confidentiality that ethicists describe as a violation of
international medical standards designed to protect captives from inhumane
treatment.

The files, which contain individual medical histories and other personal
information about prisoners, have been made available to interrogators despite
continued objections from the International Committee of the Red Cross,
according to interviews and documents obtained by The Washington Post. After
discovering the practice in mid-2003, the Red Cross refused to send medical
monitoring teams to the facility for more than six months, sources said.

There is no universally established international law governing medical
confidentiality. But ethics experts said international medical standards bar
sharing such information with interrogators to ensure it is not used to pressure
prisoners to talk by withholding medicine or by using personal information to
torment a detainee.

"I don't think any American medical worker, doctor, nurse should go along with
this," said Arthur L. Caplan, director of the Center for Bioethics at the
University of Pennsylvania. "The role of health care workers in any facility
should be solely looking after the health of patients; anybody who is not
involved in that should not have access to medical records."

How military interrogators used the information is unknown. But a previously
undisclosed Defense Department memo dated Oct. 9 cites Red Cross complaints that
the medical files "are being used by interrogators to gain information in
developing an interrogation plan." Maj. Gen. Geoffrey Miller, the commander of
the facility at the time, denied the allegations, according to the memo.

Military officers have reported a continuous search for defensible ways to
pressure Guantanamo's 600 prisoners to reveal details about terrorist operations
and organizations. Early last year, the Defense Department formally authorized
interrogators to use "stress and duress" techniques designed to disorient
detainees and weaken resistance. With proper permission, the guidelines allow
some prisoners to be subjected to techniques designed to "invoke feelings of
futility."

A Defense Department spokesman declined to comment on the use of medical files
that are generated by medical personnel at Guantanamo Bay or other detention
facilities around the world. A Pentagon official, who refused to be named, said
public discussion about the files could violate a Defense Department policy of
not commenting on interrogation techniques.

But specialists in international humanitarian law said that by making the files
available to nonmedical personnel, U.S. authorities crossed a line that
separates the medical needs of prisoners from the government's interest in
interrogating them.

"That is a violation of ethical standards that are quite old and accepted," said
Leonard S. Rubenstein, executive director of Physicians for Human Rights, a
Boston-based advocacy organization. "I don't think you would find any medical
person who would say this is okay."

Steven H. Miles, a professor of bioethics at the University of Minnesota, said
that using the information in interrogations of detainees would be a "clear-cut
violation" of the Geneva Conventions.

"This is an enormously serious breach," said Miles, past president of the
American Association of Bioethics. "You just can't do that."

Miles said use of information in the prisoners' medical records also would
violate the ethics code of the World Medical Association, which prohibits
doctors from providing information that could aid "cruel, inhuman or degrading
treatment" or "diminish the ability of the victim to resist such treatment."

A separate code developed by the International Council of Prison Medical
Services requires that medical personnel who work in prisons "respect the
confidentiality of any information obtained in the course of our professional
relationship with incarcerated patients."

The previously unreported use of the medical records comes as Congress is
questioning the Bush administration's treatment of foreign prisoners in Iraq,
Afghanistan and Cuba. Criminal investigations are underway into unexplained
deaths of detainees in Iraq and Afghanistan, and into practices condemned by
human rights groups. The harassment and sexual humiliation of prisoners inside
Iraq's Abu Ghraib prison was described last fall in a Red Cross report as
"tantamount to torture."

Extraordinary secrecy surrounds the Guantanamo Bay detention center, which
primarily houses prisoners captured in Afghanistan. Except for the six captives
facing military tribunals, detainees -- some of whom have been there two years
or more -- are not allowed to meet with lawyers or relatives. Red Cross monitors
are the only outsiders many are permitted to see.

Red Cross officials would not comment on the issue of medical records. But last
October, the head of the organization's Washington office, Christophe Girod,
made a rare public complaint that the Guantanamo Bay facility was "an
investigation center, not a detention center." Girod said he was frustrated by
the indefinite confinement of prisoners at the facility.

Brig. Gen. Rick Baccus, who commanded the Guantanamo Bay facility from March
2002 to October 2002, said that after new detainees were processed and given a
medical review, their records were routinely shared with military intelligence
personnel. Military doctors and medics were available to advise interrogators
about the new detainees' health, Baccus said, in an effort to determine whether
the prisoners were strong enough to withstand questioning.

Baccus said he knew of no prohibition on interrogators reviewing the files over
time, but he added that he was unsure how often that occurred or how the
information might have been used. He said no one, including the Red Cross,
raised concerns about use of the records during his time at the facility. If he
had determined the practice violated rules or international codes, Baccus said,
"I would have stopped the process."

Baccus was succeeded by Miller, who worked to improve intelligence gathering.
U.S. authorities considered Miller's work such a success that in late August
they dispatched him to Iraq with orders to improve interrogation efforts at Abu
Ghraib.

An account pieced together from confidential documents and sources familiar with
the matter shows that a Red Cross team discovered the sharing of the medical
records in a visit to the Guantanamo Bay medical facility in mid-2003, during
Miller's tenure there.

The Red Cross team's task, repeated at prisons throughout the world, was to
assess how the complex's medical facility functioned. The medical team studied
equipment and treatment options, speaking with detainees and U.S. military
medical staff. Other Red Cross experts monitored other aspects of prison life.

The team's mission was not to treat detainees, but to ensure that they received
adequate care. If a prisoner had persistent headaches, was he able to see a
doctor? If he suffered from psychological problems -- 21 captives have tried to
kill themselves at Guantanamo Bay -- was he receiving treatment?

U.S. military doctors told Red Cross medics that interrogators had access to
prisoners' medical records, according to two people knowledgeable about the
issue who demanded anonymity because details of the interrogations and Red Cross
monitoring are kept secret. As one source said, the doctors "were very honest
about that" and "some people expressed concern."

Daryl Matthews, a civilian psychiatrist who visited Guantanamo Bay in May 2003
at the invitation of the Pentagon as part of a medical review team, described
the prisoners' records generated by military physicians as similar to those kept
by civilian physicians. Matthews said they contain names, nationalities, and
histories of physical and psychological problems, as well as notes about current
complaints and prescriptions.

Matthews said an individual's records would routinely list psychologists'
comments about conditions such as phobias, as well as family details, including
the names and ages of a spouse or children.

Such information, he said, would give interrogators "tremendous power" over
prisoners. Matthews said he was disturbed that his team, which issued a
generally favorable report on the base's medical facility, was not told patient
records were shared with interrogators.

Asked what use nonmedical personnel could make of the files, he replied:
"Nothing good."

The practice made some military medical workers at Guantanamo Bay uncomfortable.
"Not everyone was unified on this," said one person aware of the situation. "It
creates a tension. You have people with many different opinions."

The Red Cross team considered the breach of patient confidentiality a grave
problem and protested. "Doctors in the ICRC did not want to play this game,"
said the source. When U.S. authorities made clear that the policy would
continue, the Red Cross responded with a decision that no medical team would
return to Guantanamo Bay.

The Oct. 9 Defense Department memo recounts a meeting between Red Cross monitors
and military officials. It quotes Vincent Cassard, a Red Cross team leader, as
saying that "there is a link between the [military] interrogation team and the
medical team. This is a breach of confidentiality between a physician and a
patient. Only medical personnel are supposed to have access to these files."

The memo says Miller, the commander, disputed the claim and asked the Red Cross
to recheck its facts. In response, Cassard complained that Miller "was not
taking the discussion seriously."

After the dispute, the Red Cross continued to monitor other activities at the
prison. But with the issue still unresolved, the organization has only recently
agreed to send a medical specialist to the detention facility. The medical visit
is the first since last summer, and officials intend to keep confidential any
prisoner information they learn to prevent further personal details from being
recorded in military files.

Red Cross officials, bound by confidentiality rules that call for findings to be
delivered only to host governments, would not discuss when or where they lodged
complaints about the issue of medical records. When the Red Cross has discovered
problems at Guantanamo Bay in the past, it has reported them to the prison
commander and, if necessary, to a Pentagon committee that oversees detainee
policy.

[ Staff writer Scott Higham contributed to this report. ]

* * *


June 10, 2004; Page A13

GUANTANAMO LIST DETAILS APPROVED INTERROGATION METHODS

By Dana Priest and Bradley Graham, Washington Post Staff Writers

http://www.washingtonpost.com/wp-dyn/articles/A29742-2004Jun9.html

A still-classified list of 24 interrogation methods approved for use on
Guantanamo Bay detainees includes placing prisoners in uncomfortable
interrogation cells and deceiving them into thinking they are in the hands of
Middle East interrogators who knew all about their culture, a U.S. government
official said.

The list, approved April 16, 2003, after debate between Pentagon lawyers and
political appointees, also allows interrogators to give uncooperative prisoners
food that is cold or less palatable and to isolate them from their peers, the
official said.

The existence of the Guantanamo list was previously known, and a few of its
methods have been cited in The Washington Post, including allowing interrogators
to subject detainees to irritatingly hot or cold temperatures and to reverse
their normal sleep patterns. But the Pentagon has refused to release the list,
citing its classified status, and most of the methods have been unknown until
now.

The Guantanamo techniques -- including seven that go beyond standard U.S.
military doctrine -- appeared on an unofficial list drawn up by an Army captain
and posted on a wall of the Abu Ghraib prison outside Baghdad for use by
interrogators there.

But the Guantanamo list does not include some of the more severe methods
available to interrogators in Iraq if they got proper approval, including
forcing detainees to sit or stand in stressful positions, using sleep or sensory
deprivation, and using military dogs to intimidate. Nor do the Guantanamo
methods approach the definitions of torture contained in recently revealed
Justice Department and Pentagon legal reviews that argued such measures might be
justified in certain circumstances.

Unlike in Iraq, where prisoners were accorded unambiguous prisoner-of-war
status, prisoners in Guantanamo were given a newly designated "unlawful enemy
combatants." They were suspected al Qaeda and Taliban fighters, captured on the
Afghanistan battlefield. President Bush said they did not deserve prisoner of
war status, but he ordered the military to treat them in accordance with the
Geneva Conventions.

Pentagon spokesman Bryan Whitman declined to comment on specific interrogation
techniques. Given that the detainees were believed to have intelligence about
ongoing threats to the United States, Whitman said, "It was appropriate to ask
the question: Should there be something else we should be doing to learn about
potential attacks in the making?"

In fact, on Dec. 2, 2002, Defense Secretary Donald H. Rumsfeld approved a set of
more aggressive interrogation methods to be used on Mohamed al Qahtani, a Saudi
detainee who some officials believed may have been the planned 20th hijacker in
the Sept. 11, 2001, attacks. A naval psychologist at the base protested the use
of some techniques meant to humiliate prisoners and sought help from the Navy's
top civilian lawyer, Alberto J. Mora, to stop them, according to three defense
officials knowledgeable about the debate.

Mora is the Navy's general counsel. Although previous reports have highlighted
the concerns of senior military lawyers about employing more severe
interrogation measures, the disclosure of Mora's role reveals that the worries
extended to some high-ranking civilians in the Defense Department as well. Mora
declined a request to be interviewed.

"The Navy's general counsel was the real hero," said one senior military lawyer
who participated in the discussions.

The techniques approved by Rumsfeld were suspended Jan. 15, 2003, "out of
concern for their effectiveness or appropriateness," Whitman said.

Rumsfeld then asked a working group of lawyers, intelligence officials and
representatives of the Office of Special Operations and Low-Intensity Conflict
to come up with permanent interrogation guidelines for Guantanamo. They looked
at 35 techniques, including covering a suspect with wet towels to simulate
drowning, and stripping detainees. Only 24 techniques survived, the result of a
rancorous debate.

Seven of those approved techniques are not included in U.S. military doctrine,
and are listed as: "change of scenery up; change of scenery down; dietary
manipulation; environmental manipulation; sleep adjustment (reversal) ;
isolation for 30 days"; and a technique known as "false flag," or deceiving a
detainee into believing he is being interrogated by someone from another
country.

The other 17 techniques are approved in standard military doctrine and carry
these names: direct questioning; incentive/removal of incentive; emotional
love/hate; fear up/harsh; fear up/mild; reduced fear; pride and ego up and down;
futility; "we know all"; establish your identity; repetition; file and dossier;
good cop/bad cop; rapid fire; and silence.

Four of the tactics required interrogators to notify commanders in advance of
their use. They are: isolating a detainee from peers; pride and ego up or down,
which means attacking someone's personal worth and sense of pride; and "fear
up/harsh," in which interrogators could yell at prisoners, throw things around
the interrogation room and convince a detainee that he has something to fear.

Rumsfeld's working group also considered a legal analysis by Pentagon and other
government lawyers that said torture of detainees may be legally justifiable in
some circumstances. But the 24 techniques approved by Rumsfeld were far less
aggressive and severe than the types of methods contemplated in the legal
review.

* * *


June 9, 2004; Page A02

INTERROGATIONS ARE CRITICIZED
Lawyers Fault Tactics Used on Witnesses Against Detainees

By John Mintz, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A26240-2004Jun8.html

Military lawyers representing Guantanamo Bay prisoners designated to face
military tribunals have complained to the Senate that witnesses against their
clients may have faced coercive tactics during interrogations, according to
letters the attorneys released yesterday.

The five military defense lawyers said in the letters that under Pentagon rules
for the tribunals, they probably would not have the right to ask in court about
the circumstances under which prosecution witnesses offered evidence against
their clients. This, they said, would violate the rights of their six clients,
the first detainees scheduled to face the special military trials.

"It is likely that evidence obtained from prisoners abused while in U.S. custody
will be introduced as evidence in these military commissions [or tribunals] at
Guantanamo Bay, and that neither defense counsel nor the members of the
commissions would ever be told about the circumstances under which such evidence
was obtained," the lawyers wrote the Senate Armed Services and Judiciary
committees.

The five attorneys -- Lt. Col. Sharon A. Shaffer, Lt. Cmdr. Charles Swift, Lt.
Cmdr. Philip Sundel, Maj. Mark A. Bridge and Maj. Michael D. Mori -- indirectly
referred to the scandals involving abusive treatment of Iraqi prisoners.

The defense lawyers have not alleged that their clients were abused in
interrogation, but they harbor suspicions that some prosecution witnesses have
been mistreated or manipulated into helping the government, said sources close
to the attorneys who demanded anonymity because of military rules governing the
tribunals.

There have been occasional allegations of coercion in interrogations at the
Guantanamo Bay prison in Cuba. Recent revelations of U.S. officials' decisions
to authorize some types of aggressive interrogation techniques under certain
circumstances have heightened concerns that abusive methods were employed.

Defense officials said that in April 2003, the Pentagon approved interrogation
methods at Guantanamo Bay permitting the reversal of detainees' normal sleep
patterns, as well as exposing them to heat, cold and loud music.

The defense attorneys asked the two Senate committees to investigate the
interrogation techniques used on detainees who will testify against their
clients.

The Pentagon's rules for conducting tribunals are silent on whether the defense
is allowed to inquire into the circumstances of prosecution witnesses'
interrogation, unlike standard military legal procedure, which grants the
defense that right. The rules leave the decision up to tribunal judges.

Six of the 595 detainees at the prison for alleged al Qaeda and Taliban fighters
have been deemed eligible for trial before a tribunal. But only two of the six
have been formally charged: Ibrahim Ahmed Mahmoud al Qosi of Sudan and Ali Hamza
Ahmed Sulayman al Bahlul of Yemen, both alleged bodyguards for Osama bin Laden.
They are charged with conspiracy to commit war crimes, charges their lawyers
deny.

* * *


June 9, 2004; Page A03

MEMO ON TORTURE DRAWS FOCUS TO BUSH
Aide Says President Set Guidelines for Interrogations, Not Specific Techniques

By Mike Allen and Dana Priest, Washington Post Staff Writers

http://www.washingtonpost.com/wp-dyn/articles/A26401-2004Jun8.html

The disclosure that the Justice Department advised the White House in 2002 that
the torture of al Qaeda terrorist suspects might be legally defensible has
focused new attention on the role President Bush played in setting the rules for
interrogations in the war on terrorism.

White House press secretary Scott McClellan said yesterday that Bush set broad
guidelines, rather than dealing with specific techniques. "While we will seek to
gather intelligence from al Qaeda terrorists who seek to inflict mass harm on
the American people, the president expects that we do so in a way that is
consistent with our laws," McClellan said.

White House Counsel Alberto R. Gonzales said in a May 21 interview with The
Washington Post: "Anytime a discussion came up about interrogations with the
president, . . . the directive was, 'Make sure it is lawful. Make sure it meets
all of our obligations under the Constitution, U.S. federal statutes and
applicable treaties.' "

An Aug. 1, 2002, memo from the Justice Department's Office of Legal Counsel,
addressed to Gonzales, said that torturing suspected al Qaeda members abroad
"may be justified" and that international laws against torture "may be
unconstitutional if applied to interrogation" conducted against suspected
terrorists.

The document provided legal guidance for the CIA, which crafted new, more
aggressive techniques for its operatives in the field. McClellan called the memo
a historic or scholarly review of laws and conventions concerning torture. "The
memo was not prepared to provide advice on specific methods or techniques," he
said. "It was analytical."

Attorney General John D. Ashcroft yesterday refused senators' requests to make
public the memo, which is not classified, and would not discuss any possible
involvement of the president.

In the view expressed by the Justice Department memo, which differs from the
view of the Army, physical torture "must be equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment of
bodily function, or even death." For a cruel or inhuman psychological technique
to rise to the level of mental torture, the Justice Department argued, the
psychological harm must last "months or even years."

A former senior administration official involved in discussions about CIA
interrogation techniques said Bush's aides knew he wanted them to take an
aggressive approach.

"He felt very keenly that his primary responsibility was to do everything within
his power to keep the country safe, and he was not concerned with appearances or
politics or hiding behind lower-level officials," the official said. "That is
not to say he was ready to authorize stuff that would be contrary to law. The
whole reason for having the careful legal reviews that went on was to ensure he
was not doing that."

The August memo was written in response to a CIA request for legal guidance in
the months after Sept. 11, 2001, as agency operatives began to detain and
interrogate key al Qaeda leaders. The fact that the memo was signed by Jay S.
Bybee, head of the Office Legal Counsel, who has since become a federal judge,
and is 50 pages long indicates that the issue was treated as a significant
matter.

"Given the topic and length of opinion, it had to get pretty high-level
attention," said Beth Nolan, commenting on the process that was in place when
she was President Bill Clinton's White House counsel, from 1999 to 2001, and,
previously, when she was a lawyer in the Office of Legal Counsel.

Unlike documents signed by deputies in the Office of Legal Counsel, which are
generally considered by federal agencies as advice, a memorandum written by the
head of the office is considered akin to a legally binding document, said
another former Office of Legal Counsel lawyer.

The former administration official said the CIA "was prepared to get more
aggressive and re-learn old skills, but only with explicit assurances from the
top that they were doing so with the full legal authority the president could
confer on them."

Critics familiar with the August 2002 memo and another, similar legal opinion
given by the Defense Department's office of general counsel in March 2003 assert
that government lawyers were trying to find a legal justification for actions --
torture or cruel and inhumane acts -- that are clearly illegal under U.S. and
international law.

"This is painful, incorrect analysis," said Scott Norton, chairman of the
international law committee of the New York City Bar Association, which has
produced an extensive report on Pentagon detentions and interrogations. "A
lawyer is permitted to craft all sorts of wily arguments about why a statute
doesn't apply" to a defendant, he said. "But a lawyer cannot advocate committing
a criminal act prospectively."

The August 2002 memo from the Justice Department concluded that laws outlawing
torture do not bind Bush because of his constitutional authority to conduct a
military campaign. "As Commander in Chief, the President has the constitutional
authority to order interrogations of enemy combatants to gain intelligence
information concerning the military plans of the enemy," said the memo, obtained
by The Washington Post.

Critics say that this misstates the law, and that it ignores key legal
decisions, such as the landmark 1952 Supreme Court ruling in Youngstown Steel
and Tube Co v. Sawyer, which said that the president, even in wartime, must
abide by established U.S. laws.

* * *


June 5, 2004; Page A03

PADILLA CASE PUTS LAWYERS IN LIMBO, TOO
Defense Attorneys Unable to Rebut Justice's Claims

By Michael Powell, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A16691-2004Jun4.html

Donna R. Newman listened this week as a senior Justice Department prosecutor
fired an impressive barrage of charges at her high-profile client. Jose Padilla,
the government asserted at a news conference, trained at al Qaeda terror camps
in Afghanistan and came here to blow up apartment buildings in New York and
elsewhere, and perhaps set off a radioactive "dirty bomb."

Under ordinary circumstances, prosecutors would be legally required to file an
indictment detailing these accusations. But Padilla's is no ordinary case.
Newman pondered her legal options for responding -- and concluded they hovered
between few and none.

"I listened to [the prosecutor] and thought: 'Okay, that's his opening
statement,' " Newman said. "Now when do I get to speak up? Everything my client
says to me is classified. I can't offer any defense.

"All I know is we've come a long way since the Magna Carta."

Newman first met with Padilla, a former gang member and Muslim convert, shortly
after he was arrested in May 2002 at Chicago's O'Hare International Airport. A
few weeks later, President Bush designated Padilla an enemy combatant and
ordered him held indefinitely -- without charges or access to a lawyer -- at a
naval brig in Charleston, S.C. This spring the Pentagon finally allowed Newman
to meet again with Padilla, but only if two government officials monitored and
videotaped their conversation.

Newman cannot publicly discuss her conversation with Padilla.

Until the Supreme Court rules on the constitutionality of Padilla's arrest and
detention -- a decision expected later this month -- legal scholars and civil
libertarians are left to debate the Bush administration's assertion of
presidential war and legal powers. And Newman must scramble to figure how,
exactly, she can defend this most unusual client.

"The limbo that surrounds Padilla surrounds his lawyers as well," said Stephen
Gillers, a professor of legal ethics at New York University. "Newman's working
in wholly uncharted territory."

From the beginning, the Justice Department prosecutors have argued that this is
not a criminal investigation but an interrogation in a war on terror. The legal
tactics required are different, and far less constrained by civil liberties. "We
could care less about a criminal case when right before us is the need to
protect American citizens and to save lives," Deputy Attorney General James B.
Comey Jr. said of the Padilla case this week. "This was not undertaken to try to
make a criminal case."

Several prominent legal critics of the administration agree that there is a
legal precedent for holding U.S. citizens as prisoners in wartime -- not least a
war on terror. But they said the executive branch must concede a brake on its
powers.

"My view is that the government ought to be able to hold someone as an enemy
combatant for the course of the conflict with al Qaeda," said David Cole, a law
professor at Georgetown University Law Center and author of "Enemy Aliens,"
about the detention of foreign nationals during the war on terror. "But some
process has to be put in place so that those who are not fighting for al Qaeda
have a chance to prove it."

He noted that the Geneva Conventions allow for holding enemy combatants,
providing the prisoners can obtain a hearing. During the 1991 Persian Gulf War,
he said, the American military held 1,200 such hearings and ended up releasing
800 of the prisoners. Michael Ratner of the Center for Constitutional Rights,
which represents defendants held at Guantanamo Bay in Cuba, said that the Bush
administration has arbitrarily chosen when to assert such war powers.

"Too many defendants get the worst of all possible worlds -- they are getting
war without the rules of war," Ratner said.

Other legal scholars take a more sympathetic view of the administration's task,
arguing that it is too early to give Padilla unfettered access to the American
legal system. "The government's release of information this week was alarming,"
said Ruth Wedgewood, a former federal prosecutor and a law professor at the
Johns Hopkins School of Advanced International Studies. "The real nub in this
case is over how and when do you inject the adversarial element into the
process."

Should the Supreme Court rule in favor of Padilla, Wedgewood speculated that the
Bush administration would ask Congress to allow it to imprison him indefinitely.
"The moral conundrum," she said, "is what to do about a man who has alarming
intelligence."

The Justice Department's Comey raised another prospect: that Padilla, a
"soldier" trained in the arts of terror, would have refused to cooperate if he
had an attorney. "He would very likely have followed his lawyer's advice and
said nothing," Comey said.

That argument strikes Newman as far-fetched. Without conceding anything in this
case, she noted that the government has considerable powers of persuasion when
dealing with defendants accused of terrorism. "It's a lie that we wouldn't
cooperate," she said. "Every day of the week defense attorneys advise their
clients to cooperate to avoid draconian sentences."

Comey, however, insisted that it could prove difficult to convict Padilla in a
civilian court. The tactics needed to extract a confession from Padilla -- which
include secret testimony from captured terrorists held and interrogated overseas
-- would not be likely to pass muster in a civilian court.

"We deprived him of access to his counsel and questioned him in the absence of
counsel," Comey said. He added later: "Criminal charges might not be an option
someday."

This raises the possibility that Padilla might find himself in a legal Catch-22,
too difficult to prosecute and too dangerous to release. Newman fears this
future. "The indictment is missing, the trial is missing, the lawyer is
missing," she said. "I just find it very hard to believe that the Supreme Court
will say it's okay to throw this man into a black hole forever."

* * *

May 24, 2004; Page E01

THE ULTIMATE INSIDER

Richard N. Perle's Many Business Ventures Followed His Years as a Defense
Official

By David S. Hilzenrath, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A50388-2004May23.html

For longtime Pentagon adviser and boardroom insider Richard N. Perle, the bonus
plan at newspaper publisher Hollinger International Inc. was a can't-lose
proposition.

While Perle was overseeing Hollinger as a member of the board for the past
several years, he also was co-chairman of a subsidiary that invested in dot-
coms. He participated in a bonus plan that paid executives a share of the
profits from successful Internet investments without taking into account losses
on failures, the company said in a complaint against its former chief executive,
Conrad M. Black, and others filed in federal court in Chicago this month.

Perle received $3.1 million in such bonuses from May 2000 to January 2001, the
complaint said.

During that time, as a member of Hollinger's executive committee, Perle signed
forms giving officers of the company license to negotiate deals that Hollinger
now alleges improperly enriched the other two members of the executive
committee, Black and F. David Radler, who was chief operating officer.

Hollinger said in court papers that one such executive committee authorization
in September 2000 was "bogus" partly because Perle received the bonuses, "knew
nothing about" the transaction and answered to Black and Radler, thus lacking
independence.

Black and Radler have vigorously denied the company's charges. Perle was not
named as a defendant in the recent Hollinger complaint. He was named as a
defendant in an earlier suit filed in Delaware by a Hollinger institutional
investor, which accused him of "standing idle" and failing to provide "any
meaningful oversight" while Black and other executives looted the company.
Proceedings in the Delaware suit have been held up, awaiting the results of an
investigation by a Hollinger committee.

In an interview Saturday, Perle said the investor's lawsuit "is in many respects
just out and out wrong and in other respects very misleading," and any
suggestion "that actions or decisions taken by me involved a quid pro quo for
compensation I received . . . is absolutely false."

"Did I take actions, inappropriate actions, because of actual or promised or
anticipated rewards or compensation? The answer is flatly no," he said.

The Hollinger story opens a window on a less visible side of Perle's career
since he left the Reagan administration, in which he was assistant secretary of
defense. He has been a director on more than a dozen corporate boards, and has
served with some of the same people on multiple boards.

On one level, Perle's business career is like those of many former Washington
officials who used the expertise and contacts gained in government to carve
niches in the corporate world. But more than most, Perle also has maintained an
active public policy role. Perle, 62, is best known in recent years for his
advocacy of war with Iraq and tough measures to fight terrorism. Over the
weekend, Perle was trying to rally support for Ahmed Chalabi, the embattled head
of the Iraqi National Congress, who for years Perle has backed.

Perle also is an author and lecturer, a resident fellow at the American
Enterprise Institute and was a foreign policy adviser to George W. Bush's 2000
presidential campaign.

"There is no 'main gig,' " Perle said of his many roles. "It's all of these and
it changes from one day to the next," he said.

"There are days when I am on the way to the airport and I say to myself, 'How am
I managing to do this?' Sure there are days when I'm spread too thin and there
are times when I've thought this isn't fair to my family."

Unlike many who pass through Washington's revolving door, Perle for 17 years
managed to keep one foot in the government as a member of the Defense Policy
Board, which offers advice on key issues to the secretary of defense.

That role created controversy last year after the New York Times and the New
Yorker magazine reported on Perle's activities as a consultant to Loral Space
and Communications Ltd. and Global Crossing Ltd., which had matters pending with
the government, and as a partner in a venture capital firm pursuing investments
in homeland security technology.

An investigation by the Pentagon's inspector general concluded last fall that
Perle had not violated ethics rules, in part because certain restrictions did
not apply to him as chairman of the Defense Policy Board and in part because he
"did not mention or invoke" his unpaid position when he contacted the State
Department on behalf of a company.

He gave up the chairmanship in March 2003, saying he did not want the
controversy surrounding him to become a distraction for Defense Secretary Donald
H. Rumsfeld. In February, he resigned from the board itself, saying that he did
not want his strong views on key issue such as terrorism to become a factor in
this year's presidential campaign.

"I think I've made a successful transition from public policy to the private
sector, and the evidence of that is the readiness of a number of companies to
invite me to join their board or assist them in other ways, and in many cases
companies that have nothing to do with the government," Perle said. "I'm
interested in interesting businesses, not in mundane ones, and of course in my
business activity I'm driven by the necessity to provide for my family."
Tour at Defense

"It's well known that you can peddle your influence after you leave the
government for a certain number of years," William Happer, a Princeton
University physicist and former Energy Department official, who serves with
Perle on the strategic advisory council of USEC Inc., a uranium-enrichment
company, said in an interview. "It's an old American tradition, and Richard
Perle I think is doing it in an honest way. He's one of hundreds and hundreds
who do it."

Perle said he did not like Happer's characterization. "I don't believe that
anybody has hired me for connections," he said. "Nothing is about connections,"
he said. "I do not ask the people I know to do things for me."

Later in the interview, however, he confirmed that he had contacted ambassadors
from Saudi Arabia and Kuwait in the 1990s on behalf of a company for which he
was both a director and a sales consultant, seeking to sell security systems in
the Middle East. "Was that a result of my influence? Yeah, it was. It was a
result of the fact that they, the people I went to, knew me so they took my
phone call," Perle said.

Perle, who started his career in Washington as an aide to Sen. Henry M. "Scoop"
Jackson (D-Wash.), began applying his government experience to business soon
after he left full-time employment at the Pentagon in 1987.

As assistant secretary of Defense for international security policy, Perle
advocated increased U.S. assistance to Turkey. He chaired a U.S.-Turkey high-
level defense group.

FMC Corp., a U.S. defense contractor, was working on a deal to sell armored
personnel carriers to the Turkish government and enlisted Perle's help, former
executives said. Perle's "main asset to us was his relationship with the Turkish
government," Robert H. Malott, former chairman and chief executive of FMC, said
in an interview. He said a U.S. ambassador to Turkey told him that the Turks
regarded Perle "as a demigod."

A $1.1 billion deal, finalized in 1989, called for FMC and a Turkish partner to
sell Turkey about 1,700 armored vehicles. Perle became a member of the board of
directors of FNSS Defense Systems Inc. , the joint venture FMC set up to
manufacture the vehicles in Turkey.

Perle said FMC's contract to sell Turkey the armored vehicles "was essentially
done" when he got involved. He said he thought there were "occasions" when he
talked about the venture with Turkish Prime Minister Turgut Ozal, whom he
described as a "good friend."

Around the same time, Perle urged Turkish officials to establish a lobbying shop
to advance the country's interests in Washington, he told the Wall Street
Journal in a letter in 1989. Though he did not personally register as a lobbyist
for Turkey, he became a paid consultant to the lobbying firm, International
Advisers Inc., which was led by Douglas J. Feith, who worked under Perle in the
Reagan administration and is now an undersecretary of defense. Perle received
$255,000 from the firm from early 1989 through early 1994, according to lobbying
records.

It was during that early period in the private world that Perle began a longtime
relationship with Morgan Crucible Co. PLC, an English maker of industrial
ceramics. He met company officials after speaking at a London conference hosted
by an investment bank , he recalled, and they asked him to join the board. He
served for 15 years before leaving last June, a period in which the company
found itself in legal trouble.

In 2002, Morganite Inc., a U.S. subsidiary of the company, admitted to price
fixing and agreed to pay a $10 million criminal fine. Morgan Crucible pleaded
guilty to witness tampering and paid $1 million. Its former chief executive, Ian
Norris, was indicted last year for allegedly conspiring to fix prices for more
than a decade and then obstructing the criminal investigation. The government
charged that he prepared a false script for employees to follow in the
investigation and instructed employees to hide or destroy records.

Perle said the Morgan Crucible board cooperated with the authorities, appointed
a special committee, retained legal counsel to advise it on how to proceed, "and
I believe conducted itself in an exemplary fashion." Regarding the alleged
crimes at the company, he said, "I don't believe they reflect on me or any of
the other non-executive directors at all, and I don't know of any suggestion to
the contrary by anyone."

He joined another board in 1990, that of Vikonics Inc., a New Jersey company
that marketed security systems to the armed forces. He also had a consulting
arrangement that entitled him to receive a 7 percent commission on contracts
that he helped the company obtain, according to a regulatory filing.

John L. Kaufman, who was Vikonics' president at the time, recalled in an
interview that "what he really had done was help us with introductions to people
who he knew," including "high-ranking people in the areas of government there
and in the military." He recalled traveling with Perle to Kuwait, where the
former Defense Department official received a grateful and enthusiastic welcome
shortly after the Persian Gulf War.

"The minister of this or the secretary of that -- no matter who it was, everyone
wanted to meet him," Kaufman said. "I do believe that he did help us to gain
contracts just by being there to help us."

In 1994, the company announced a contract to install a security system at
Kuwait's Ministry of Information, and the kingdom was soon one of Vikonics'
largest customers.

Perle recalled phoning the Saudi Arabian ambassador to the United States, Prince
Bandar bin Sultan, about Vikonics. "I talked to Bandar and said I'm on the board
of this company, and we make some very high quality security devices, and if
there's a market for thesein Saudi Arabia, we'd like to go talk to people who
make those decisions. Same thing in Kuwait."

In 1995, Perle resigned from the Vikonics board. The company reported that he
had been awarded no commissions and the company was de-emphasizing its efforts
in the Middle East in part "due to the limited success to date."

In the early 1990s, Raytheon Co. retained the American Enterprise Institute to
advise it on business opportunities in Turkey, and Perle "was one of the
associates involved in that process," Raytheon said in a statement.

At times, Perle joined longtime associates in the boardroom. Former Army Chief
of Staff Edward C. Meyer, for example, was a director with Perle in FMC's
venture in Turkey, and has served with him on three other boards. An investment
firm Meyer helped manage granted Perle stock options to run for a board seat.
The options produced a profit of about $250,000 for Perle. At Perle's
recommendation, Meyer was appointed to join him on another board.

The retired general praised Perle's performance. "I would say he's always been
in the top one-third of all of the directors I've seen because he always goes
out of his way to understand all the details of what the company is doing and
how he can contribute to its success, and a lot of directors do not do that --
they just sit there and nod sagely," Meyer said.

"His contacts are particularly useful to companies that have businesses
overseas," Meyer said. The contacts he's seen Perle use "did not have as much to
do with the U.S. government as they did . . . foreign governments and foreign
personages," he said.

Perle joined Hollinger's board in 1994, having met Black at an annual Bilderberg
Conference, where members of the international business and foreign policy elite
meet to network and discuss issues.
Friends Helping Friends

Through serving together at Hollinger, Perle became friends with Leonard P.
Shaykinwho recruited Perle to serve on the board of a biotech company he headed,
NaPro BioTherapeutics Inc., now known as Tapestry Pharmaceuticals Inc. As
chairman of that firm's compensation committee, Perle now oversees Shaykin's
pay. "Personally, I consider him a friend," Shaykin said in an interview. "I
gained a great respect for both his judgment and his negotiating capabilities,
which are legendary," he said. "I can tell you Richard hasn't rubber-stamped
anything on my board."

Perle has served on the boards of two Washington area technology companies
headed by Ken Bajaj, including a stint on an audit committee that did not meet
one year. Bajaj has served on an advisory board of a venture capital firm that
Perle co-founded.

Familiarity is the norm when boards recruit directors, and it can be a good
thing if "you have learned that this director was an aggressive, careful,
monitoring director who asked probing questions on some other board and you want
him to do the same on your board," said John C. Coffee Jr., a professor at
Columbia Law School. But familiarity can be bad if it involves mutual back-
scratching or if the director in question "is simply never going to find fault
with someone who is one of his close friends," Coffee said.

"It is an all too common practice to find the same directors popping up on
boards with each other over and over again," said Gregory P. Taxin, chief
executive of Glass, Lewis & Co., which advises institutional shareholders on how
to vote in board elections. "The world of directors is a very incestuous one."

"If you are good friends with other people on the board and you all go to board
meetings together, it's far less likely that you will start an acrimonious and
strong debate in the boardroom about issues large or small," Taxin said.

Perle said Taxin's concerns do not apply to the boards on which he has served.
"I have never hesitated to debate" when it was warranted, he said. "I don't
think that people would say I am a wallflower."
Famous Company



On the board of Hollinger, which publishes the Chicago Sun-Times and London's
Daily Telegraph, among other newspapers, Perle joined a gathering of luminaries.
Directors have included former secretary of state Henry A. Kissinger, former
U.S. ambassador to Russia Robert S. Strauss, former Illinois governor James R.
Thompson and former Sotheby's chairman A. Alfred Taubman, who remained on the
board after he was convicted of antitrust violations.

For Black, Hollinger supported a lifestyle that included the use of corporate
jets to fly to the Tahitian island Bora Bora and shuttle between houses around
the world, the Hollinger lawsuit said. Black billed Hollinger for household
staff such as chefs, butlers, chauffeurs, footmen and security personnel, the
lawsuit said. Through an unusual system of annual management fees to a company
owned by Black and Radler, Hollinger paid its top executives five to six times
what competing companies paid for similar services, the suit said.

Black resigned as Hollinger chief executive in November and was removed as
chairman in January. His holding company said in a recent statement that
Hollinger's board members "were all extremely sophisticated professionals" and
that the "vast majority" of matters the firm is challenging "were reviewed and
approved by its independent directors." Black has sued several directors,
alleging defamation.

During several hours of interviews for this article, Perle declined to answer
most questions about Hollinger, citing pending litigation and the advice of
counsel. Perle would not describe his relationship with Black, but confirmed
that he once flew with Black on a company jet to the Middle East to attend a
meeting with the crown prince of Jordan and to visit Perle's friend, Israeli
Prime Minister Binyamin Netanyahu, in the mid-1990s.

By 1998 Perle was listed as chairman and chief executive of Hollinger Digital.
He was one of three members of Hollinger International's executive committee,
with Black and Radler.

As a member of the executive committee, Perle signed "unanimous written consent"
forms authorizing management to negotiate terms of certain Hollinger newspaper
sales, the documents show. For example, the Sept. 15, 2000, document authorized
"the proper officers" of the company -- without naming them -- to "take all such
actions" and negotiate "all terms . . . which in their sole judgment are
necessary, proper or advisable" to carry out a $90 million transaction. The form
expressly authorized the officers to negotiate a "noncompete agreement" without
specifying all the details.

That noncompete agreement and others like it became devices for Black and Radler
to divert millions of dollars to themselves, Hollinger alleged. Meanwhile, Black
and Radler used such deals to acquire Hollinger newspapers at cut-rate prices,
Hollinger alleged.

Perle was paid about $300,000 a year as head of Hollinger Digital, according to
a Delaware suit by Hollinger shareholder Cardinal Value Equity Partners LP. That
pay was in addition to his $3.1 million in bonuses, said a Hollinger source who
would not agree to be identified because lawyers told company insiders not to
speak to the press.

Hollinger Digital's "upside only" bonus arrangement was "virtually unheard of,"
the complaint said. The company paid $15.5 million in such bonuses, though the
subsidiary's investments lost more than $65 million overall, it said. Perle said
that, on balance, the investments for which he was responsible for were
profitable. He said he urged the board to create Hollinger Digital because he
envisioned the Internet transforming the newspaper business.

The Hollinger executive committee also approved the company's January 2001 $8
million purchase of papers of Franklin Delano Roosevelt so Black would have
"exclusive and private access" to them while writing a book about FDR, the
Cardinal lawsuit alleged. The Hollinger lawsuit put the price closer to $9
million and said most of the documents were stored in Black's homes. A spokesman
for Black, James Badenhausen, said Black believed the papers were an attractive
investment, and added that the contents of the papers were widely available to
the public.

After Hollinger Digital invested money with New York financier Gerald Paul
Hillman, Perle pursued a more entrepreneurial opportunity. He joined Hillman in
setting up their own venture capital investment fund. Soon after the Sept. 11,
2001, terrorist attacks , they formed Trireme Partners L.P., which stated that
its focus was investing in technologies for homeland security. And the way they
solicited capital for the fund would draw scrutiny.

Hillman also joined the Defense Policy Board after Perle recommended him to
Rumsfeld, Perle said. The board's charter said its membership "will consist
primarily of private sector individuals with distinguished backgrounds in
national security affairs." Perle said he recommended Hillman because he was a
brilliant analyst with a business background and "a lot of experience dealing
with complex situations."

Trireme solicited Boeing Corp., with Hillman noting in a letter in early 2002
that he and Perle were members of the Defense Policy Board, according to a
Boeing spokesman. Boeing committed to invest $20 million with Trireme. Ethics
rules prohibit invoking government titles for private gain.

Perle said, "If we had not related that information we would have been
withholding information." He added that the status as Pentagon adviser can be a
drawback in business because "it means there are . . . things you can't say and
can't do."

Last year Hollinger invested $2.5 million in a Trireme entity, the company said
in an SEC filing. That was part of a $25 million commitment by Black, Bloomberg
News reported in January. "I think that's right," Perle said when asked about
the amount.

Black made the commitment to invest Hollinger money in Trireme without the
board's approval, the Hollinger source said. When the audit committee learned
about those actions last year, it canceled the commitment for the balance, the
source said.

And when other directors discovered that Hollinger was paying for Perle's
secretary, the company ended the arrangement, the Hollinger source said. Perle
said the woman, based at a long-time Hollinger office at his Chevy Chase home,
was not his personal secretary, but the sole secretary for Hollinger Digital. He
declined to say if she handled all of his professional activities, saying the
matter could become a subject of litigation.

Hollinger's complaint "is without merit and will be defended vigorously," said
Josh Pekarsky, a spokesman for Radler. The company suit "repeatedly acknowledges
that many of the things Mr. Radler is being accused of were presented to the
Board, considered by the Board, and approved by the Board, yet it somehow fails
to implicate the board in any of the alleged misconduct," he said in a
statement.

A special committee at Hollinger is still examining the performance of the board
of directors. Perle, who remains a Hollinger director, is no longer at Hollinger
Digital or on the executive committee.

The perpetually busy Perle knows there may be more demands on his time.

"I've said to myself more than once and my wife has said even more often than
that 'you've really got to scale back.' And then something really interesting
comes along and I say yes and sometimes regret having said yes, like anyone
else. I've got a piece due on June 1st that I'd forgotten I'd agreed to write.
It's a chapter in a book."

He said he will squeeze it in .

Staff researcher Richard Drezen contributed to this report.

* * *


Washington Post

May 23, 2004

Editorial
REVEAL THE RULES

http://www.washingtonpost.com/wp-dyn/articles/A48571-2004May22.html

THE BUSH administration is doing its best to keep secret the policies it has
developed for handling foreign prisoners and to stifle congressional examination
of the issue. Rules for the interrogation of detainees used to be published in
widely available Army manuals. But the Bush administration has classified the
procedures it has approved for the Guantanamo Bay prison, Afghanistan and Iraq
-- even though it claims that all are in compliance with the Geneva Conventions.
It has been slow to release the procedures even to the Senate Armed Services
Committee, which is leading the way in investigating the Abu Ghraib prison
scandal. The Pentagon still has not met the committee's request for the legal
memos that supposedly justify such techniques as hooding, putting prisoners in
stress positions, sleep and dietary deprivation and intimidation by dogs.

Intelligence interrogators and the chain of commanders above them have been
shielded by the administration from serious sanction or scrutiny. None have been
criminally charged, despite evidence that some may be complicit in torture and
murder. Investigation of the intelligence operation has been entrusted to the
deputy commander of the same organization, Maj. Gen. George R. Fay. One of the
witnesses he interviewed told The Post last week that Gen. Fay appeared
interested mainly in covering up the role of military intelligence while
concentrating blame on prison guards.

Both Republican and Democratic senators on the Armed Services Committee have
insisted on greater accountability. Administration surrogates in the House have
responded by pressuring Sen. John W. Warner (R-Va.), the committee chairman, to
stop investigating the prison abuses. To his credit, Mr. Warner -- whose support
for the U.S. mission in Iraq and for U.S. armed forces is beyond question -- has
refused to back down. Much more public disclosure is essential; without it there
will be no way to undo the damage to U.S. standing in the world or to restore
trust in American behavior.

President Bush compounds the damage by refusing to make public the practices
that U.S. interrogators are allowed to use with foreign detainees. The
administration's claims that these all conform to the Geneva Conventions have
little credibility -- not only because the International Red Cross and other
outside experts strongly disagree but because sworn statements by senior
Pentagon and Army officials at Armed Services hearings have been riddled with
contradictions. On Wednesday, for example, Maj. Gen. Geoffrey D. Miller, once
the commander at Guantanamo and now in charge at Abu Ghraib, testified that "no
program" at Guantanamo "has any of those techniques that are prohibited by the
Geneva Convention." But the general sitting next to him, Iraq commander Lt. Gen.
Ricardo S. Sanchez, said that the procedures Gen. Miller brought from Guantanamo
to Iraq "have to be modified" because "the Geneva Convention was fully
applicable" in Iraq, in contrast to Guantanamo.

A list of harsh interrogation techniques that was posted at Abu Ghraib was
described by Lt. Gen. Keith B. Alexander, the head of Army intelligence, as
approved policy for Iraq; but Gen. Sanchez said he had never seen or approved
the list. His chief legal adviser, Col. Marc Warren, testified that the list
"had items on it that could never be approved; that, frankly, could never
reasonably be requested." Minutes later he echoed earlier assertions by Gen.
Alexander that all the practices were considered legal under the Geneva
Conventions.

As a practical matter, no outside authority or foreign government, including
U.S. allies with troops deployed in Iraq, can now be expected to accept Mr.
Bush's assurances that he is observing international law unless the
administration fully discloses its policies and procedures -- and eliminates
those of questionable legality. That the president does not do so suggests only
that he does not expect the practices to be judged lawful or acceptable by the
American public or the outside world. Gen. Miller claimed last week that all
interrogations at Guantanamo were done "to the standards of America: humane
detention and interrogation that reflected America's values." If that's the
case, then the United States can only benefit if those procedures are made
public.

© 2004 The Washington Post Company

* * *


May 22, 2004; 7:05 PM

Post Exclusive
LAWYER: TOP U.S. OFFICER KNEW OF PRISON ABUSE

By Scott Higham, Joe Stephens and Josh White, Washington Post Staff Writers

http://www.washingtonpost.com/wp-dyn/articles/A48229-2004May22.html

A military lawyer for a soldier charged in the Abu Ghraib abuse case testified
that a captain at the Baghdad prison said the highest-ranking U.S. military
officer in Iraq was present during some "interrogations and/or allegations of
the prisoner abuse," according to a recording of a military hearing obtained by
The Washington Post.

The lawyer said he was told that Lt. Gen. Ricardo S. Sanchez and other senior
military officers were aware of what was taking place on Tier 1A of Abu Ghraib.
The lawyer, Capt. Robert Shuck, also said a sergeant at the prison was prepared
to testify that intelligence officers told him the abuse of detainees on the
cellblock was "the right thing to do."

Shuck is assigned to defend Staff Sgt. Ivan L. "Chip" Frederick II of the 372nd
Military Police Company. During an April 2 hearing that was open to the public,
Shuck said the company commander, Capt. Donald J. Reese, was prepared to testify
in exchange for immunity. The military prosecutor questioned Shuck about what
Reese would say under oath.

"Are you saying that Captain Reese is going to testify that General Sanchez was
there and saw this going on?" asked Capt. John McCabe, the military prosecutor.

"That's what he told me," Shuck said. "I am an officer of the court, sir, and I
would not lie. I have got two children at home. I'm not going to risk my
career."

So far, clear evidence has yet to emerge that high-level officers condoned or
promoted the abusive practices. Officers at the prison have blamed the abuse on
a handful of rogue, low-level military police officers from the 372nd, a company
of U.S. Army reservists based in Cresaptown, Md. The general in charge of
prisons in Iraq at the time has said that military intelligence officers took
control of Abu Ghraib and gave the MPs "ideas."

A Defense Department spokesman today referred questions about Sanchez to U.S.
military officials in the Middle East, cautioning that statements by defense
lawyers or their clients should be treated with "appropriate caution." Brig.
Gen. Mark Kimmitt, the senior military spokesman in Iraq, said Sanchez was
unavailable for comment last night but would "enjoy the opportunity" to respond
later.

At the April hearing, Shuck also said Reese would testify that Capt. Carolyn A.
Wood, who supervised the military intelligence operation at Abu Ghraib, was
"involved in intensive interrogations of detainees, condoned some of the
activities and stressed that that was standard procedure, what the accused was
doing," Shuck said in the hearing, which was held at Camp Victory in Baghdad.
The Post obtained a transcript of the hearing today.

In the transcript, Shuck said Reese was disturbed by the military intelligence
techniques.

"They said that there were some strange (inaudible) by the MI [military
intelligence]," Shuck said. "They said, 'What's all this nudity about, this
posturing, positioning, withholding food and water? Where's the Geneva
Conventions being followed."

Shuck noted that the abusive tactics deployed on Tier 1A of Abu Ghraib were not
a secret.

"All of that was being questioned by the chain of command and denied, general
officer level on down," Shuck said. "Present during some of these happenings, it
has come to my knowledge that that Lt. Gen. Sanchez was even present at the
prison during some of these interrogations and/or allegations of the prisoner
abuse by those duty [non-commissioned officers]."

Reese did not testify that day because he had invoked the military version of
his Fifth Amendment right against self-incrimination.

The civilian attorney for Frederick, Gary Myers, said that he is asking the
military to add investigators to his legal team so he can track down Reese and
other witnesses, who have been scattered in military jobs throughout Iraq. He
said he will also ask that immunity be granted to a number of military personnel
who he said had first-hand knowledge of what took place on Tier 1A.

"We intend to seek immunity for a myriad of officers who are unwilling to
participate in the search for the truth without protecting themselves," Myers
said today.

A more detailed version of this story will be available at washingtonpost.com
later tonight.

* * *


May 18, 2004; Page A15

US RELEASES HUMAN RIGHTS REPORT DELAYED AFTER ABUSE SCANDAL

By Glenn Kessler, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A34611-2004May17.html

The Bush administration yesterday released a delayed report on U.S. efforts to
promote human rights, one day after a memo by White House counsel Alberto R.
Gonzales emerged that had dismissed some of the provisions of the Geneva
Conventions as "quaint."

In the report, released by the State Department, the United States pledged to
continue to push for improved human rights, including halting torture and
promoting freedom of the press and religion. The report had been scheduled for
release on May 5, but was delayed after images of U.S. soldiers abusing Iraqi
prisoners were broadcast around the world.

The Gonzales memo, first reported in Newsweek, created new problems for the
administration because it suggested a cavalier attitude toward the core treaty
governing treatment of prisoners of war. But White House officials said
yesterday the views contained in the memo did not help create an atmosphere for
the mistreatment at Abu Ghraib prison.

Human rights officials said the damage caused by the revelations of abuse --
along with revelations such as the Gonzales memo -- will make it much more
difficult for the United States to speak with moral authority to nations that
trample on their citizens' rights.

"The biggest victims of this prison abuse scandal are the people in countries
like China, Egypt and Zimbabwe who depend on the United States for their
rights," said Tom Malinowski, Washington advocacy director for Human Rights
Watch. "These governments will exploit this and have a ready-made argument to
demoralize democracy advocates: Even the United States, your biggest champion,
abuses people."

Questions about U.S. interrogation tactics continued to reverberate on Capitol
Hill, where Sen. John W. Warner (R-Va.) announced the Senate Armed Services
Committee would hold a hearing tomorrow on the prisoner abuse in Iraq -- the
panel's third in two weeks.

State Department officials denied that the abuse scandal had hurt their
effectiveness abroad, though they conceded the U.S. image had been marred. "What
we're hearing from people overseas is, we think Abu Ghraib is an awful thing and
we think it shows that the United States is imperfect, but we still want you to
help us," said Assistant Secretary Lorne W. Craner.

But one U.S. official, speaking on condition of anonymity, said representatives
of Saudi Arabia have noted to U.S. officials that fighting terrorism required
tough measures in the Middle East, and that more democracy can be
counterproductive. "The Saudis have been pretty smug," the official said. "The
message is: 'Now you understand. You have to stop beating us up on this.' "

Secretary of State Colin L. Powell, who yesterday delivered the commencement
address at Wake Forest University in Winston-Salem, N.C., said Arab leaders
questioned him about the abuse scandal at an economic conference in Jordan over
the weekend.

"In their disappointment about America right now, I told them, 'Watch America,
watch how we deal with this, watch how America will do the right thing,' "
Powell said. The outrage is not limited to the Arab world. Yesterday, European
Union foreign ministers strongly condemned the abuse as "contrary to
international law."

Disclosure of the Gonzales memo provided new details of the debate within the
administration in early 2002 over whether international treaties and laws should
apply to foes in the war against terrorism.

"In my judgment, this new paradigm renders obsolete Geneva's strict limitations
on questioning of enemy prisoners and renders quaint some of its provisions,"
Gonzales wrote President Bush on Jan. 25, 2002, according to Newsweek.

Bush initially adopted Gonzales's recommendation but pulled back after Powell
registered strong objections in what at the time was a rare public display of
administration infighting. In response, Bush said captured combatants who fought
for Afghanistan's Taliban government would be formally covered by the Geneva
Conventions, but he did not confer that status on detainees who were members of
al Qaeda.

White House spokesman Scott McClellan told reporters the memo did not pertain to
Iraq and thus had no role in the prison abuse scandal. It "related specifically
to al Qaeda and the Taliban. It did not reference Iraq at all. We have made it
clear that we are bound by the Geneva Conventions in Iraq," he said.

McClellan said the provisions Gonzales had called quaint were giving the
captured enemy "such things as commissary privileges, scrip (i.e. advances of
monthly pay), athletic uniforms, and scientific instruments." He added that the
administration decided to treat al Qaeda and Taliban detainees "humanely and
consistent with the Geneva Conventions." The White House has not released the
memo, though lawmakers have requested a copy.

Powell said Sunday that he did not recall the memo. State Department spokesman
J. Adam Ereli said yesterday: "The State Department, as in all interagency
discussions, presented a full consideration of its views in the interagency
process. We think that's our obligation to promoting good policy; that all
ramifications of decisions are considered." A CIA spokesman, meanwhile, joined
Pentagon officials in assailing an article by Seymour Hersh in the current
edition of the New Yorker magazine.

Hersh wrote that after the 2001 terrorist attacks, Defense Secretary Donald H.
Rumsfeld created a "special access program" to use elite commandos and
operatives to carry out interrogations of terrorists worldwide. He wrote that
the group "encouraged physical coercion and sexual humiliation of Iraqi
prisoners to generate more intelligence about the growing insurgency in Iraq."
Hersh said "a senior CIA official" confirmed details.

CIA spokesman Bill Harlow called the Hersh story "fundamentally wrong" in its
assertion that there was a "DOD/CIA program to abuse and humiliate Iraqi
prisoners." Harlow added, "Despite what is alleged in the article, I am aware of
no CIA official who would have or possibly could have confirmed the details of
the New Yorker's inaccurate account."

[ Staff writers Helen Dewar and Walter Pincus contributed to this report. ]

* * *


May 17, 2004; Page A16

PENTAGON: NO SPECIAL PRISON POLICY
Defense Dept. Denies Report That Top Officials Authorized Detainee Abuse

By Josh White and Mike Allen, Washington Post Staff Writers

http://www.washingtonpost.com/wp-dyn/articles/A31805-2004May16.html

Defense Department and other government officials yesterday denied that high-
ranking Pentagon officials approved a special classified interrogation unit in
Iraq or authorized the use of physical coercion and sexual humiliation of
prisoners, as asserted by the New Yorker magazine.

In the report, which was posted on the Internet over the weekend, author Seymour
M. Hersh alleges that Defense Secretary Donald H. Rumsfeld and other top
Pentagon officials specifically called for tougher and possibly illegal tactics
in Iraqi prisons to get detainees to talk about the insurgency. The report also
describes a covert group of operatives who would arrest, detain and interrogate
Iraqis out of the bounds of the normal prison system.

In a statement released yesterday, Pentagon officials harshly criticized the
report, calling it "outlandish, conspiratorial, and filled with error and
anonymous conjecture." The Pentagon would not, however, say flatly whether or
not the program exists.

"It is our position, and has been from the very beginning, that we don't address
these things because the one time you don't say something, that's the one time
you're essentially confirming it," said Lawrence DiRita, a Defense Department
spokesman.

Hersh quotes unnamed former intelligence officials describing an under-the-radar
"special-access program" that called for harsher interrogation tactics. He
alleges that the members of the 372nd Military Police Company now charged with
prison abuses became scapegoats for the program.

"The cover story was that some kids got out of control," Hersh wrote, quoting an
unnamed official.

DiRita said yesterday in a statement that the soldiers accused of abuse were not
taking part in a coordinated intelligence gathering effort. Echoing what top
military officials have been saying in the weeks since the scandal broke, DiRita
said the abuse was not ordered by the Pentagon.

"The abuse evidenced in the videos and photos, and any similar abuse that may
come to light in any of the ongoing half dozen investigations into this matter,
has no basis in any sanctioned program, training manual, instruction, or order
in the Department of Defense," DiRita said. "No responsible official of the
Department of Defense approved any program that could conceivably have been
intended to result in such abuses as witnessed in the recent photos and videos."

In interviews, soldiers who worked at Abu Ghraib prison and their attorneys have
said the alleged abuses grew out of direction from military intelligence
officials and CIA operatives who were working to interrogate prisoners. One of
the MPs who has been charged said military intelligence officers, civilian
contractors and CIA officials would bring prisoners -- already hooded and cuffed
-- to a wing at Abu Ghraib, with instructions to the MPs "to make it hell so
they would talk."

Officials also gathered intelligence at the U.S. military's high-value detention
center in Baghdad, where top former officials in Saddam Hussein's government and
those deemed to have potentially important information about weapons, the
insurgency and other matters were questioned. Intelligence operations there took
place in a series of trailers in a secure compound, and some of those prisoners
were taken to Abu Ghraib after initial questioning, officers who worked there
said.

Secretary of State Colin L. Powell told ABC's "This Week" that he has seen no
evidence that low-level prison guards who abused prisoners were acting on orders
from superiors, but internal investigations should answer that question.

"But, even so, young soldiers know that they have a responsibility to take care
of people who are entrusted to them, such as prisoners," he said. "And there is
no excuse for this kind of action."

Sen. John McCain (R-Ariz.), appearing on NBC's "Meet the Press," said it was not
plausible that soldiers would abuse prisoners without being instructed to do so.

"There's really questions about this 'shift in responsibility,' where military
intelligence people were given authority over the guards," McCain said. "There
are so many questions that need to be answered."

Meanwhile, Brig. Gen. Mark Kimmitt, a spokesman in Iraq for Lt. Gen. Ricardo
Sanchez, said yesterday that Sanchez never received or approved an interrogation
plan described in an article in The Washington Post. The article described a
plan for interrogating a Syrian jihadist using a method called "fear up harsh,"
which required instilling fear and provoking disorientation. It said the plan
was sent to Sanchez and originated with the senior intelligence officer at Abu
Ghraib, Col. Thomas Pappas.

Kimmitt's brief statement did not explain his remark that Sanchez did not
receive the Nov. 30 memo about the interrogation plan. According to government
sources, it was addressed to him, and also transmitted to Col. Marc Warren, a
lawyer advising Sanchez, and Maj. Gen. Barbara Fast, Sanchez's senior
intelligence adviser.

[ Correspondent Sewell Chan in Baghdad and staff writers Christopher Lee, Dana
Priest and R. Jeffrey Smith in Washington contributed to this report. ]

* * *


May 16, 2004; Page A01

KNOWLEDGE OF ABUSIVE TACTICS MAY GO HIGHER

By R. Jeffrey Smith, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A29988-2004May15.html

Army intelligence officers suspected that a Syrian and admitted jihadist who was
detained at Abu Ghraib prison outside Baghdad knew about the illegal flow of
money, arms and foreign fighters into Iraq. But he was smug, the officers said,
and refused to talk. So last November, they devised a special plan for his
interrogation, going beyond what Army rules normally allowed.

An Army colonel in charge of intelligence-gathering at the prison, spelling out
the plan in a classified cable to the top U.S. military officer in Iraq, said
interrogators would use a method known as "fear up harsh," which military
documents said meant "significantly increasing the fear level in a security
detainee." The aim was to make the 31-year-old Syrian think his only hope in
life was to talk, undermining his confidence in what they termed "the Allah
factor."

According to the plan, interrogators needed the assistance of military police
supervising his detention at the prison, who ordinarily play no role in
interrogations under Army regulations. First, the interrogators were to throw
chairs and tables in the man's presence at the prison and "invade his personal
space."

Then the police were to put a hood on his head and take him to an isolated cell
through a gantlet of barking guard dogs; there, the police were to strip-search
him and interrupt his sleep for three days with interrogations, barking and loud
music, according to Army documents. The plan was sent to Lt. Gen. Ricardo
Sanchez.

A spokesman for Sanchez declined to comment yesterday, and so it remains
uncertain whether the plan was one of 25 requests for unusually tough
interrogations that Army officials in Washington have said he approved between
October and the present. All involved prolonged isolation of detainees, the
officials said on Friday, adding that Sanchez last week issued an order barring
requests for approval of particularly severe questioning tactics.

But the fact that a plan for such intense and highly organized pressure was
proposed by Col. Thomas M. Pappas -- a senior military intelligence officer in
Iraq who took his job at the insistence of a general dispatched from the
Pentagon -- suggests a wider circle of involvement in aggressive and potentially
abusive interrogations of Iraqi detainees, encompassing officers higher up the
chain of command, than the Army has previously detailed.

While the Army has blamed the physical abuses documented in soldiers'
photographs on a handful of night-shift soldiers at Abu Ghraib who ignored rules
on humane treatment, government officials and humanitarian experts say the order
indicates the abuses could instead have been an outgrowth of harsh treatment
that had been approved.

They suggest in particular that military intelligence officials may not only
have improperly tolerated physical abuses, as stated in the Army's official
internal report, but also that they may have deliberately set the stage for
them. According to a hypothesis now being explored by members of Congress, this
stage was set through a directed collaboration between two units of military
police and intelligence officers, virtually unprecedented in recent Army
practice.

The interrogation plan for the Syrian "clearly allows for a crossing of the line
into abusive behavior," said James Ross, a senior legal adviser to Human Rights
Watch who reviewed it for The Washington Post.

What makes its wording so troubling, Ross added, is that it allows "wide
authority for soldiers conducting interrogations. . . . Were the superior
officer to agree to these techniques, it would be opening the door for any
soldier or officer to be committing abusive acts and believe they were doing so"
with official sanction.

Congressional testimony by Defense Department and Army officials over the past
two weeks has highlighted the fact that the abuses in Iraq -- which mostly
occurred in the last quarter of 2003 -- came at a time of heightened pressures
in Washington for more robust intelligence-gathering, because of proliferating
attacks on U.S. forces and the dwindling intelligence on Saddam Hussein's
suspected weapons of mass destruction.

Although no direct links have been found between the documented abuses and
orders from Washington, Pentagon officials who spoke on the condition that they
not be named say that the hunt for data on these two topics was coordinated
during this period by Defense Undersecretary Stephen A. Cambone, the top U.S.
military intelligence official and long one of the closest aides to Secretary of
Defense Donald H. Rumsfeld.

The coincidence in timing has in turn prompted several lawmakers to say they
intend to probe more deeply in coming weeks to determine whether the specialists
and sergeants handling the prison guard dogs and pulling hoods over prisoners'
heads were in fact implementing policy directives instigated by Washington that
may have set the stage for abuses.

"We've got no proof that a person in authority told them to do this activity,"
Lt. Gen. Keith Alexander, the Army's deputy chief of staff, said on May 11.

But three directives in particular have already begun to attract congressional
scrutiny: The first is a classified report by Army Maj. Gen. Geoffrey D. Miller
on Sept. 9, 2003, demanding that the military police at Abu Ghraib be dedicated
and trained to set "the conditions for the successful interrogation and
exploitation of internees/detainees." The report, which Cambone has testified
was presented to his deputy William Boykin, contained five recommendations
spelling out how this was to occur and reported it had already begun.

The second is an Oct. 12 classified memo signed by Sanchez that demanded a
"harmonization" of military policing and intelligence work at Abu Ghraib for the
purpose of ensuring "consistency with the interrogation policies . . . and
maximiz[ing] the efficiency of the interrogation."

The memo, obtained by The Washington Post, also states "it is imperative that
interrogators be provided reasonable latitude to vary their approach," depending
on a detainee's background, strengths, resistance and other factors. It also
explicitly demands humane treatment and requires that any dogs present during
the interrogations be muzzled.

The third is a Nov. 19 memo from Sanchez's office that formally placed the two
key Abu Ghraib cellblocks where the abuses occurred under the control of Pappas
and his 205th Military Intelligence Brigade. It was 11 days later, after this
memo placed the military police responsible for "security of detainees and base
protection" in Pappas's hands, that he sought, in his memo to Sanchez, to draw
military police explicitly into applying pressure on the Syrian.

The fact that prison interrogations were so directly controlled by these
military directives, as well as the apparent cultural sophistication of some of
the abuses, has already led some lawmakers to conclude that much more
experienced and senior officers were involved than the seven military police now
charged by the Army with wrongdoing.

Sen. Susan Collins (R-Maine) expressed skepticism during a Senate Armed Services
Committee hearing last Tuesday, for example, that a group of military police
from rural Maryland and West Virginia "would have chosen bizarre sexual
humiliations that were specifically designed to be offensive to Muslim men [as
the photos depicted]. . . . It implies too much knowledge. . . . And that is
why, even though I do not yet have the evidence, I cannot help but suspect that
others were involved."

Alexander did nothing to steer her away from that idea. "Well, ma'am, your logic
is correct. I think that the difficult part is to find out who told whom what to
do."

Sen. Saxby Chambliss (R-Ga.) expressed similar concerns on May 7. "On the
surface, you could portray the 800th MP Brigade as a Reserve unit with poor
leadership and poor training," he told top Pentagon officials at the hearing
that day. "However, the abuse of prisoners is not merely the failure of an MP
brigade; it's a failure of the chain of command."
Military Police



At the heart of the unfolding congressional probe into what happened at Abu
Ghraib is the conduct there of two units: the 800th Military Police Brigade, an
Army reserve unit based in Uniondale, N.Y., and the 205th Military Intelligence
Brigade, a regular Army unit principally based in Germany and Italy.

Two months after the end of the war, when members of the 800th brigade were
preparing to go home, they were abruptly told they were being assigned to take
over the Iraqi prison system. Looting in the weeks after the war ended had
reduced Abu Ghraib and virtually every other prison to a shambles, producing
acute shortages of supplies and eliminating such amenities as water and
electricity.

"It's difficult for people who are not on the ground in Iraq to understand how
nonexistent the detention infrastructure was when we arrived," said a senior
official with the U.S.-led occupation. "There was no reliable labor force to
work in the prisons. . . . It was in total disarray."

Almost immediately, the brigade's chain of command was tangled, as was the case
with many military units in Iraq. Its work was directly supervised by the U.S.
military's deputy commander in Iraq, Army Maj. Gen. Walter Wojdakowski, but
Brig. Gen. Janis L. Karpinski said she also "answered to" L. Paul Bremer and to
a regional commander in Kuwait.

The brigade, like its specific components assigned to Abu Ghraib, was trained
not to oversee the detention of prisoners in jails, but to resettle prisoners of
war. "They were assigned there because there was a shortage of specialty units,"
Lt. Gen. James R. Helmly, chief of the Army Reserve, testified last week before
a House Government Reform subcommittee.

All of the Iraqi prisons were understaffed because promised civilian contractors
never appeared, Karpinski said. Unlike the U.S. detention center at Guantanamo
Bay, which has 800 police guarding 640 detainees, Karpinski had one soldier
available to guard every 10 detainees in a prison population that included men
and women of varying ages, criminals, terrorists and mentally ill persons.

"It's like being in Dodge City in the 1870's without speaking the same
language," said a newsletter home last summer from the 372nd Military Police
Company, the Cresaptown, Md., unit assigned in October to guard Abu Ghraib. "The
prison 'detainee' climate is becoming more strained as the months drag on," the
December newsletter said. "We take each day as it comes, do our jobs, and wait
for the day when we all get to go home."

Discipline among the soldiers slumped over time, according to internal Army
reports. Military police were permitted to wear civilian clothes to boost
morale, but it contributed to sloppiness about other rules, investigators
concluded; platoon leaders encouraged some of their soldiers to carry concealed
weapons while walking among the detainees, a violation of regulations.
Punishments for minor offenses were rare; a climate of leniency developed.

Army investigators have concluded that the brigade's low familiarity with
Islamic culture provided a breeding ground for racism and a widespread
conviction that Muslims were terrorists. One of its dog handlers insisted that
the animals simply disliked Iraqis because of their appearance and smell.

One of the most notorious photos to emerge from the prison -- of naked and
cuffed Iraqi men pushed together on the prison floor in a simulation of sex --
originated in a decision by guards to punish two Iraqis for raping a 14-year-old
male detainee, the participants said. On another occasion, a guard attacked,
beat and hung a handcuffed Iraqi by his wrists -- dislocating his shoulders --
in a fit of anger over the Iraqi's role in smuggling a pistol into the prison.

When Karpinski brought up a Red Cross complaint that intelligence officers had
demanded recalcitrant prisoners be escorted back to their cells wearing women's
underwear, a deputy to the chief intelligence officer joked about it.

"I told the commander to stop giving them Victoria's Secret catalogs," the
deputy said in a roomful of officers, Karpinski recalled. She said she replied
that the Red Cross would not appreciate that response.
Military Intelligence



The decision to place the prison's key cellblocks -- 1A and 1B, which held
"security detainees" suspected of threatening U.S. forces or knowing about such
threats -- under the direct control of the 205th MI Brigade came shortly after
Miller visited Iraq in late August and early September at the request of
Cambone, according to Cambone's congressional testimony last week.

Miller, a combat officer with no training in prisons or intelligence-gathering,
had won accolades inside the Pentagon and attracted controversy outside it
earlier in the year, when he oversaw a transformation of the military's long-
term detention center at Guantanamo Bay from a disorganized bundle of tents into
an efficient prison that routinely produced what officials have called
"moderately valuable" intelligence for the war on terrorism.

Miller's signature achievement at the Cuban center was to implement a system of
rewards and punishments in detainee housing, food, clothing and other treatment
that provided incentives for use as leverage during interrogations. Cambone
testified last week that he sent Miller to Iraq to help ensure "there was a flow
of intelligence [from the jail] back to the commands and [that it was] done in
an efficient and effective way."

Shortly after Miller's return, new rules were written for interrogation sessions
involving detainees in cellblocks 1A and 1B, which stressed a collaboration
between military police and intelligence officials while also providing
safeguards such as legal reviews of the interrogation plans and scrutiny of how
they were carried out. The rules were signed by Sanchez, but it remains unclear
who -- if anyone -- in Washington may have seen them in draft or final form.

The reality in the field, Army investigators quickly learned, was an absence of
any supervision or monitoring. Pappas, for example, told them that no procedures
were in place for the independent monitoring of the interrogations and no
personnel were available to do it, officials familiar with his testimony said.
Moreover, most of the Army soldiers accused of abuse have said they were
encouraged to undertake it by military intelligence officials in the prison, who
sometimes merely observed and sometimes took part in it themselves.

"MI has . . . instructed us to place prisoners in an isolation cell with little
or no clothes, no toilet or running water, no ventilation or window, for as much
as three days," Army Staff Sgt. Ivan L. "Chip" Frederick II said in a diary he
wrote after being accused of wrongdoing.

One of the soldiers "was known to bang on the table, yell, scream, and maybe
assaulted detainees during interrogations in the booth," said Sgt. Samuel
Jefferson Provance III, a military intelligence officer who testified during a
military court proceeding against one of the military policemen on May 1. "This
was not to be discussed. It was kept 'hush-hush.' "

Although at least four Army lawyers were assigned to the military intelligence
brigade and its offices at Abu Ghraib, it remains unclear whether they played a
meaningful role in trying to block abuses. Maj. Gen. Thomas Romig, the service's
judge advocate general, testified last week that the Army is reviewing their
"resourcing and training" in the wake of the scandal.

Karpinski said in an interview last week that if the interrogation plan put
forward by Pappas had been presented to her, "I would have said, 'Absolutely
not. Not on my watch. Take your procedures somewhere else.' " If such a plan can
be made, she said, "this whole thing is more offensive than I thought. That does
sound like abuse and torture."

Robert K. Goldman, an American University law professor who teaches a course on
the law of war, commented about the interrogation plan that, "in my view, a good
deal of it crosses the line. . . . They are talking about breaking the detainee,
and exercising extreme moral and possibly physical coercion."

Why is the dog there? he asked. "This is very coercive. It cannot be justified
by any lawful interrogation technique." The strip searching of someone already
being held in detention is clearly "to humiliate him. There is no question. . .
. This is violative of the spirit if not the letter of the Geneva Conventions.
It's like a B-grade movie."

[ Foreign correspondents Rajiv Chandrasekaran and Sewell Chan in Baghdad
contributed to this report.]

* * *


May 9, 2004; Page A01

A PRISON ON THE BRINK
Usual Military Checks and Balances Went Missing

By Scott Higham, Josh White and Christian Davenport,
Washington Post Staff Writers

First of three articles

For U.S. military police officers in Baghdad, the Abu Ghraib prison was
particularly hellish. Insurgents were firing mortar shells and rocket-propelled
grenades over the walls. The prisoners were prone to riot. There was no PX, no
mess hall, no recreation facilities to escape the heat and dust. About 450 MPs
were supervising close to 7,000 inmates, many of them crowded into cells, many
more kept in tents hastily arranged on dirt fields within the razor-wired walls
of the compound. Around the perimeter, GIs kept wary eyes on Iraqi guards of
questionable loyalty.

Precisely how many prisoners were being held at Abu Ghraib was anyone's guess.
Roll calls were spotty. Escapes were commonplace. Prison logs were replete with
flippant and unprofessional remarks. MPs were occasionally out of uniform, and
some were out of control. Discipline was breaking down. So was the chain of
command.

Abu Ghraib was on the brink.

"Most of the time, I felt like my life was in danger," said Sgt. William Savage
Jr., a Florida corrections officer sent to Abu Ghraib as a reservist with a
military police company. "I always thought something was going to happen."

Few could imagine what was about to happen at Abu Ghraib. The photographs
featuring piles of naked Iraqis seem as though they were taken from a
pornographic magazine, not from the digital cameras carried by American
servicemen and women. But an examination of military investigative reports and
interviews with soldiers and officers in Iraq at the time reveal that there were
early warnings, and that a combination of conditions inside Abu Ghraib produced
a culture of licentious behavior and abuse. Confusion was high. Morale was low.
The checks and balances established to hold soldiers accountable during the
vagaries of war were virtually non-existent.

By the fall of 2003, rumors of abuse began to circulate. Sgt. Blas Hidalgo heard
them while working the guard towers of Abu Ghraib. He dismissed the talk as
made-up military gossip.

"It sounded too crazy," he told The Washington Post in a recent interview.

'Unnerving as Hell'

The problems at Abu Ghraib, which have unleashed an international scandal and
shaken the Bush administration, were foreshadowed by experiences at two earlier
prison camps set up by U.S. forces after the invasion in March 2003.

As U.S. troops marched north, Camp Bucca in southern Iraq, near Basra, quickly
became the largest facility for Iraqi prisoners. For two months, military
commanders sent thousands of prisoners to the makeshift camp. Soon the camp held
more than 7,000 prisoners.

At Bucca, there were troubling signs in a military police unit that would later
be at the center of what took place at Abu Ghraib.

On May 12, four soldiers from the 320th Military Police Battalion, based in
Ashley, Pa., were charged with beating prisoners after transporting them to Camp
Bucca. MPs from a different unit reported the incident, saying the legs of
prisoners were held apart while soldiers kicked them in the groin.

Around that time, President Bush had announced the end of major combat
operations, and spirits in many military police units were high. It appeared
that many MP units would be headed home. By the end of May, the several thousand
members of the 800th Military Police Brigade, which included the 320th
Battalion, were told that they would instead be managing the Iraqi prison
system.

For many of the MPs, it was a crushing blow.

"Morale suffered, and over the next few months there did not appear to have been
any attempt by the Command to mitigate this morale problem," Maj. Gen. Antonio
M. Taguba would later conclude in his 53-page report examining the abuses at Abu
Ghraib.

Located on the outskirts of Baghdad, Abu Ghraib, a symbol of torture and
repression under Saddam Hussein, had been looted. It was decrepit and falling
apart. While renovations were underway, the military came up with a temporary
alternative: Camp Cropper, a collection of tents and small buildings at the
Baghdad airport.

Cropper was originally designed to hold 200 captives. But with street crime on
the rise and the insurgency in Baghdad becoming bolder, Cropper was teeming with
prisoners by the summer of 2003. On some days, more than 1,000 prisoners were in
the camp.

It became a dangerous place that smelled of sewage and sweat. Flies infested the
camp. Those who have been there describe it as an outdoor cesspool where
detainees stockpiled their feces to throw at MPs. The prisoners also turned the
dust beneath their feet into weapons by pouring their water rations and
fashioning hardened dirt clods.

"It was worse than you can imagine on days when there was no breeze," said one
MP assigned to the camp who requested anonymity because he signed a
"nondisclosure" agreement before leaving Iraq. "If there was a hell, I can
imagine that's what it smelled like."

The poor conditions had consequences.

"Abu wasn't running, none of the satellite prisons were running, so we had
nowhere to send these guys," said one military officer assigned to the camp who
has been ordered not to discuss Cropper. ". . . Anytime it got real hot, there
were riots."

The uprisings rattled even the most seasoned of soldiers. Detainees would cut
themselves on the concertina wire that surrounded the camp and try to smear
their blood on MPs. They rushed the wire and threw rocks they had stored up.

"It was unnerving as hell," the officer said.

On June 9, the detainees rioted after one of the prisoners hit an MP. The
prisoner was subdued, and one of the MPs took off his camouflage shirt and
"flexed his muscles to the detainees, which further escalated the riot,"
according to the military report.

Rocks started to fly. One soldier was hit in the head. Another was struck by a
tent pole. A prisoner pulled an MP through the concertina wire.

"This thing was out of control," the officer said.

The MPs were overwhelmed, and guards opened fire. Five prisoners were wounded.
An investigation into the incident concluded that the shooting was justified,
and no soldiers were punished. Still, the incident symbolized a severe lack of
training, said another officer familiar with the incident.

Officers said they complained about the conditions at Camp Cropper, but no one
seemed to listen. They said they were told that the military was preparing to
open Abu Ghraib as quickly as possible.

"The challenge was trying to find a place to take them," one officer said.

Setting the Conditions

For 18 months, Maj. Gen. Geoffrey D. Miller had run the detainee operation at
the U.S. Navy base in Guantanamo Bay, Cuba. On Aug. 31, he and a team of
inspectors arrived in Baghdad to examine prison operations in Iraq. They visited
Camp Cropper and the refurbished Abu Ghraib prison, which had opened Aug. 4.

Miller recommended that Cropper be closed. He made another recommendation: that
MPs and military intelligence officers work closely to gather information from
the prisoners at Abu Ghraib.

At Guantanamo, where suspected al Qaeda terrorists and Taliban fighters are kept
and interrogated, Miller said, he found that separating MPs, who serve as
jailers, from intelligence officers, who conduct interrogations, was
counterproductive. He viewed MPs as key players in the process because they
could serve as the ears and eyes of military intelligence officers on the
cellblocks. Miller recommended that the new commander in charge of the 800th MP
Brigade, Brig. Gen. Janis L. Karpinski, consolidate the two functions,
permitting MPs to set "conditions for the successful interrogation and
exploitation" of the prisoners.

One month after Miller's team left Iraq on Sept. 9, another inspection team
arrived in Iraq. This one was headed by Maj. Gen. Donald J. Ryder, the provost
marshal in charge of Army military police. Ryder arrived in Baghdad on Oct. 13,
two weeks after Camp Cropper was closed.

Ryder conducted a "comprehensive review of the entire detainee and corrections
system in Iraq." He found flawed operating procedures, improper restraint
techniques, a lack of training, an inadequate prisoner classification system,
understrength units and a ratio of guards to prisoners designed for "compliant"
prisoners of war and not criminals or high-risk-security detainees.

But Ryder also found "there were no military police units purposely applying
inappropriate confinement practices."

At Abu Ghraib, the guard-to-prisoner ratio was about one to 15, with one
battalion guarding 7,000. Army doctrine calls for one battalion per 4,000 enemy
soldiers. In civilian prisons, one guard per three inmates is considered ideal.

In his report submitted on Nov. 6, Ryder recommended that military police not
"participate in military intelligence supervised interrogation sessions." He
concluded that allowing MPs to "actively set favorable conditions for subsequent
interviews runs counter to the smooth operation of a detention facility."

But even as Ryder was writing his report, Abu Ghraib was descending into chaos
and worse.

Taguba's report detailed numerous lapses:

Standard operating procedures and copies of the Geneva Conventions were not
distributed to the guards handling the prisoners. No one knew for sure how many
prisoners were being kept at Abu Ghraib. It took MPs four days to document
transfers of detainees within the prison, making it nearly impossible to
determine who was where at any given time. Roll calls were supposed to be
conducted twice a day. Instead, they were conducted twice a week.

When MPs did count prisoners, there was no standard method. Sometimes MPs lined
up detainees in rows of 10 and counted them in bulk. Other times, the soldiers
moved prisoners to one end of a cellblock, ordered them to walk and counted them
as they passed by.

Sometimes, "Other Government Agencies," a common expression for the CIA, would
bring prisoners to Abu Ghraib. MPs were kept in the dark about the prisoners'
identities and the reasons behind their captures. On at least one occasion, MPs
moved these captives around the Abu Ghraib complex to keep them away from
inspectors with the International Committee of the Red Cross. MPs called the
prisoners "ghost detainees." Military investigators called that practice an
apparent "violation of international law."

Prisoners learned to exploit the chaos. Military investigators said they
discovered one report that documented at least 27 escapes from the facility.
Karpinski said 32 had escaped. No one knew for sure because oversight was so
poor.

"It is highly likely that there were several more unreported cases of escape
that were probably 'written off' as administrative errors or otherwise
undocumented," military investigators later wrote.

After escapes, follow-up and accountability were lacking. Investigations into
escapes were "rubber-stamped" and approved by Karpinski, but there was no
evidence that any of the general's orders for changes were followed, Taguba
found.

If the recommendations had been followed, investigators concluded, "many of the
subsequent escapes, accountability lapses and cases of abuse may have been
prevented."

Not Trained to Be Guards

The real trouble started after Oct. 15, when the 372nd Military Police Company,
a segment of the 320th Battalion based in Cresaptown, Md., took over Abu Ghraib
from a military police company based in Henderson, Nev. The 372nd soldiers,
reservists from small-town America, were not trained to be prison guards. An MP
officer from another unit at Abu Ghraib said he was struck by their
unprofessionalism.

"It was lots of things, from the way they wore the uniforms to the way they
interacted with each other," said the officer, who spoke on the condition of
anonymity. ". . . They didn't carry themselves like soldiers."

And their ranks were thinly stretched. Savage, the Florida corrections officer,
said soldiers were far outnumbered by the prisoners, most of whom were common
criminals. For the guards, the sense of a siege was ongoing. At night, the
soldiers on the towers squeezed off hundreds of rounds into the darkness in
response to the incoming mortar and small-arms fire.

The 372nd company commander was Donald J. Reese, 39, a salesman from New
Stanton, Pa. His unit was given perhaps the most sensitive mission: control of
Tier 1A, where "high priority" detainees were held for interrogation by civilian
and military intelligence officers. The 203 cells of Tiers 1A and 1B were in a
two-story cinderblock building known as the "hard site" at Abu Ghraib, so called
to distinguish it from the many tent compounds on the prison grounds. 1B held
"high risk" or trouble-making detainees.

With little experience in corrections to fall back on, the unit deferred to MPs
who had civilian prison backgrounds.

"Detainee care appears to have been made up as the operations developed with
reliance on, and guidance from, junior members of the unit who had civilian
corrections experience," Taguba later found.

Those members included Staff Sgt. Ivan L. "Chip" Frederick II, 37, who had
worked as a correctional officer at Buckingham Correctional Center in Virginia,
and Spec. Charles A. Graner Jr., 35, a divorced father of two who worked as a
prison guard in Greene County, Pa. Frederick was the top enlisted man in charge
of 1A, where he and Graner worked closely with intelligence officers, their
colleagues said.

The officer in charge of the prison was Lt. Col. Jerry L. Phillabaum, a
reservist who commanded the 320th Military Police Battalion. Taguba found that
Phillabaum was "an extremely ineffective commander and leader" who did little
after the Camp Bucca beating incident five months earlier to put his soldiers on
notice about proper detainee treatment.

Phillabaum's boss was Karpinski, the reservist general in charge of the 800th
Military Police Brigade. She rarely visited Abu Ghraib, Taguba's report found.
Karpinski was based at the Baghdad airport.

Karpinski, a corporate management consultant from Hilton Head, S.C., was called
to active duty in June. She said she tried to regularly visit each of the
detention facilities under her command. But she scaled back as the insurgency
stepped up attacks. She was responsible for 3,400 soldiers at 16 facilities,
including Abu Ghraib.

Soon after the 372nd arrived at Abu Ghraib, it became clear that there was a
problem at the top of the prison's chain of command: Karpinski sent Phillabaum,
a 1976 West Point graduate, to Kuwait for two weeks to "give him some relief
from the pressure he was experiencing," the report states. Phillabaum later told
The Post he was gone from Oct. 18 to Oct. 31.

Also during this period, military intelligence made a focused push on
interrogations in Tiers 1A and 1B, Karpinski would later say.

"The MI said -- they specifically came to me in the September-October time
frame, and said, 'Man, could you talk to those prison guys and ask if we could
have those cells?' " she later told The Post. "They explained why. I said, 'I
will go down and campaign for you because I understand.' "

Taguba's report and interview with MPs and their attorneys reveal what happened
next.

Spec. Sabrina D. Harman, 26, of Alexandria told Taguba's investigators that
Graner and Frederick were responsible for getting "these people to talk." She
told The Post that military intelligence officers "made the rules as they went."

Sgt. Javal S. Davis, 26, also with the 372nd, supported that account.

"In Wing 1A we were told that they had different rules," Davis, a college
dropout from New Jersey, told investigators. He said intelligence officers
frequently said things such as "loosen this guy up" and "make sure he has a bad
night." Davis said he was told: "Good job. They're breaking down real fast."

Davis said Graner told him agents and military intelligence personnel "would ask
him to do things, but nothing was ever in writing," the report states.

The methods moved from the unorthodox to the perverse.

They "handcuffed their hands together and their legs with shackles and started
to stack them on top of each other by insuring that the bottom guys penis will
touch the guy on tops butt," Adel L. Nakhla, a U.S. civilian contract
translator, told military investigators.

The Post obtained a series of digital photographs that were taken by MPs.
Scattered among the hundreds of travelogue images of Iraq were some depicting
prisoner abuse, most of them stamped with dates. The earliest of the abuse
pictures, stamped Oct. 17, shows a naked man handcuffed to a cell door. A
photograph of a naked man handcuffed to a cot with women's underwear stretched
over his head was stamped Oct. 18. A photograph of Pfc. Lynndie R. England
holding a chain or strap that is wrapped around the neck of a naked man outside
a cell was stamped Oct. 24. A picture of a pile of naked men was stamped Oct.
25.

England, 21, who grew up in a West Virginia coal town, worked as a processing
clerk in the cellblock and is reportedly engaged to Graner.

Military investigators said prisoners endured many other forms of abuse at Abu
Ghraib. Soldiers kept some detainees naked for days and forced others to
masturbate in front of female soldiers. They attached wires to the fingers and
genitals of a man and threatened him with electrocution. One male MP had sex
with female detainees. In one case, a detainee was severely injured during a dog
attack. MPs broke chemical lights and poured the phosphoric liquid on detainees.
One prisoner was sodomized with a chemical light.

Karpinski later said she was unaware of the abuse and blamed much of it on
military intelligence personnel, who she said gave the MPs "ideas" that led to
the abuse.

The Taguba report found that command of the prison was placed under military
intelligence on Nov. 19, well after the abuses began. But Karpinski says that
order formalized changes made earlier. The report also says that although there
was not a clear order that the MPs were to "set conditions" for military
intelligence interrogations, "it is obvious . . . that this was done at lower
levels."

Phillabaum also said he did not know what was going on and blamed it on a few
rogue soldiers, particularly Frederick.

"I have been made the scapegoat in this event," Phillabaum wrote in an e-mail to
The Post. "Frederick was the NCO [noncommissioned officer] in charge of that
wing of the prison. No one higher in his chain of command, starting with his
platoon sergeant, knew what was occurring. If he thought that his actions were
condoned, then why were they only conducted between 0200-0400 hours for a few
days in late October and early November?"

Phillabaum added, "The acts of a couple of demented Reserve MP guards who are
prison corrections officers at home were their own idea."

The soldiers' attorneys and relatives have said the MPs were following orders.

"It is clear that the intelligence community dictated that these photographs be
taken," said Guy L. Womack, a Houston lawyer representing Graner, who has since
been charged in the case.

The father of another charged soldier, Spec. Jeremy C. Sivits, 24, a mechanic
from Hyndman, Pa., also said his son did the bidding of others. "He did what he
was told," Daniel Sivits told The Post.

It is unclear when the abuses ended, though Taguba said in his report, it "is
important to point out that almost every witness testified that the serious
criminal abuse of detainees at Abu Ghraib . . . occurred in late October and
early November 2003."

On Jan. 13, a soldier in the battalion, identified by the New Yorker magazine as
Spec. Joseph M. Darby, placed an anonymous note describing the photographs under
the door of an Army criminal investigator.

The next day, an Army Criminal Investigation Division team set to work.

"On 14 Jan 2004 at approximately 0230 hours there was a knock at the door to my
room," Frederick wrote in a statement sent to his family. "Cpt. Reese opened the
door and said, 'Freddy, CID is here and they want to talk to you.' "

Frederick was told to dress and surrender his weapons. He wrote in his statement
that he "questioned some of the things that I saw." But "the answer I got was
this is how Military Intelligence (MI) wants it done."

Over the next three weeks, investigators would interview 50 people, including
several 372nd MPs and 13 detainees.

Harman and Davis gave statements to investigators. They, along with five other
MPs -- Frederick, Graner, Sivits, England and Spec. Megan M. Ambuhl, 29 -- were
eventually charged in the abuse incidents and face courts-martial.

The military told the media that about the investigation in a one-paragraph news
release on Jan. 16. But no details were provided -- and the release attracted
little attention.

On Jan. 31, Taguba was assigned to investigate the officers involved. In March,
he recommended that Karpinski and Phillabaum be relieved of their commands and
given reprimands for various command failures. He recommended the same for Col.
Thomas M. Pappas, commander of the 205th Military Intelligence Brigade and his
liaison officer, Lt. Col. Steven L. Jordan.

Taguba said Reese, the commander of the 372nd soldiers, should also be relieved
and reprimanded. In all, administrative actions were recommended against seven
officers, three sergeants and two employees of a private contractor, CACI
International. Steven Stephanowicz, an interrogator, and translator John Israel
both worked with military intelligence officers. The contractors are receiving
intense scrutiny on Capitol Hill, where lawmakers learned last week that 37
civilian interrogators worked with the military in Iraq.

Six of the seven criminally charged soldiers are now stationed in Camp Victory,
a U.S. base near the Baghdad airport, where they are awaiting their fate.

Back in Washington, top officials are trying to minimize the damage to their
careers. On Thursday, President Bush issued an apology from the Rose Garden. The
next day, Defense Secretary Donald H. Rumsfeld appeared before legislators and
apologized.

He told the lawmakers to brace themselves for more photographs, videos and
disclosures of abuse.

"It's not a pretty picture," Rumsfeld said.

[ Staff writer Jackie Spinner, correspondent Sewell Chan in Baghdad and research
editor Margot Williams contributed to this report. ]

-*-

Monday, May 10, 2004; Page A01

AS INSURGENCY GREW, SO DID PRISON ABUSE
Needing Intelligence, U.S. Pressed Detainees

By Scott Wilson and Sewell Chan, Washington Post Foreign Service

Second of three articles

BAGHDAD, May 9 -- In the fall of 2003, U.S. officials watched anxiously as a
potent guerrilla resistance rose across broad swaths of northern and central
Iraq. Insurgents assassinated diplomats, detonated car bombs and mounted daily
hit-and-run strikes on U.S. soldiers. Fearful of reprisals, Iraqis shrank from
collaborating with an occupation authority that appeared powerless to reverse
the tide of violence and lawlessness.

Less than two weeks after 1,000 pounds of explosives demolished U.N.
headquarters here on Aug. 19, driving the organization from Iraq, Maj. Gen.
Geoffrey D. Miller arrived in Baghdad from Guantanamo Bay, Cuba, where he was
warden of the U.S. detention facility for suspected terrorists. Miller's mission
in Iraq signaled new zeal to organize an intelligence network that could hit
back at the insurgents, but through unorthodox means.

"He came up there and told me he was going to 'Gitmoize' the detention
operation," turning it into a hub of interrogation, said Brig. Gen. Janis L.
Karpinski, then commander of the military prison system in Iraq. "But the
difference is, in Guantanamo Bay there isn't a war going on outside the wall."

The worsening war outside the walls of the U.S. prison system in Iraq had a
direct bearing on the abuses that occurred inside the facilities, according to
Iraqi and American sources. Through the summer and fall of 2003, when detainees
at Abu Ghraib prison suffered mistreatment now notorious throughout the world,
the security situation in Iraq and the treatment of Iraqi prisoners ran parallel
courses, both downward.

U.S. officials were under mounting pressure to collect wartime intelligence but
were hobbled by a shortage of troops, the failure to build an effective
informant network and a surprisingly skilled insurgency. In response, they
turned to the prison system. Today, as outrage spreads over images of abused
prisoners, the practices inside the prisons have the potential of strengthening
the insurgency that they were designed to defeat.

Interviews with U.S. officials, former prisoners and Iraqis who have supported
the occupation, along with findings outlined in the Army's internal
investigation of prison abuses, make clear that there was a connection between
changes in conditions inside the prisons and the struggle to control an
increasingly hostile country.

Last fall, U.S. military leaders cast about for ways to generate more
information on the insurgency after focusing their early intelligence efforts on
the hunt for Saddam Hussein, his top lieutenants and the weapons of mass
destruction that were the Bush administration's rationale for going to war.

The urgency of the problem prompted U.S. officials to accept a new intelligence
service they once opposed because of its similarity to Hussein's. It also led to
more widespread detentions of Iraqis. The strategy was reflected in the rising
number of Iraqis arrested for questioning across the country in the late fall.
At Abu Ghraib alone, the number of prisoners rose from 5,800 in September to
8,000 five months later, when Karpinski received an official admonishment.

The harsh treatment of prisoners was seen by some of the perpetrators as
consistent with Miller's recommendation for "setting conditions" for
interrogations by military intelligence officers. Although abuses of prisoners
have been denounced as aberrations, former detainees describe humiliation, pain
and discomfort as commonplace.

The treatment could also be traced to other outside pressures on the American
jailers. Pre-interrogation punishment at Abu Ghraib was dispensed by reservists
embittered by their prolonged stay in Iraq and plagued by frequent attacks from
outside the prison walls, according to the Army investigation conducted by Maj.
Gen. Antonio M. Taguba.

"Psychological factors, such as the difference in culture, the soldiers' quality
of life, the real presence of mortal danger over an extended time period, and
the failure of commanders to recognize these pressures contributed to the
perversive atmosphere that existed at Abu Ghraib," Taguba wrote.

Purge Damages Occupation

Some American and Iraqi commentators attribute the growth of the insurgency to
the decision in May of last year by L. Paul Bremer, the U.S. civilian
administrator of Iraq, to dissolve the Iraqi military.

The decision was another step in the dismantling of Hussein's government, once
dominated by members of the Baath Party. But it had a practical effect of
leaving an estimated 400,000 men with military training without jobs. U.S.
commanders worried about the consequences, which Iraqis sympathetic to the U.S.
project now say have turned out worse than any of the Americans expected.

Many former Baathist officials fled Iraq for their safety, according to former
military officers, taking with them their intelligence training and unrivaled
knowledge of Iraq's pre-war political landscape. Many who stayed were too angry
or too frightened to help the Americans, these officers said.

One result, the former officers said, was that violence against U.S. troops
began to increase almost at once. Twice as many U.S. troops were killed in
hostilities in June than in May, when President Bush had declared an end to
major combat operations.

"The way to get information was very easy for the Americans, if they had
chosen," said Abdul Jalil Mohsen Muhie, a retired Iraqi brigadier general with
the Iraqi National Accord, a party that opposed Hussein from exile and has a
long-standing relationship with the CIA. "The intelligence and security services
were intact, they were experienced and would have been highly useful after
purged of pro-Saddam elements."

The continuing strife had an impact on troops deployed in Iraq and looking
forward to a prompt return home. In early June, the 800th Military Police
Brigade, which would play a central role in the future U.S. intelligence
strategy, received disheartening news. Instead of returning to the United
States, the soldiers would be staying on in Iraq.

Their job would now be to administer the new prison system and supervise several
specific detention centers, including Camp Bucca, Abu Ghraib and the special
ward for "high-value detainees" at Camp Cropper on the grounds of Baghdad
International Airport. The brigade had been in charge of the Army's Camp Bucca,
a prison in the southern city of Umm Qasr that in the war's aftermath held 7,000
to 8,000 prisoners.

The 320th MP Battalion was assigned to Abu Ghraib, a prison on the western
outskirts of Baghdad synonymous with Hussein's oppression. The unit was severely
understaffed, with 450 soldiers responsible for as many as 7,000 prisoners at a
time, according to the Taguba report. The jail was built to hold 4,800
prisoners.

"Morale suffered," Taguba wrote, "and over the next few months there did not
appear to be any attempt to mitigate this morale problem."

Karpinski, a business consultant from South Carolina who was a member of the
reserves, took command of the brigade at the end of June. Although she had
participated in the 1991 Persian Gulf War and later helped oversee a women's
military training program in the United Arab Emirates, she had no experience
running a large prison.

As Karpinski took charge, American troops were in the midst of Operation
Sidewinder, the largest offensive since the invasion. The air and ground assault
swept through the heart of the resistance in the crescent of Sunni territory
north of Baghdad. There and in the capital, U.S. forces seized hundreds of
suspected insurgents.

Amnesty International, the London-based human-rights organization, criticized
the U.S. military for subjecting Iraqi prisoners to "cruel, inhuman, or
degrading" conditions in a July 1 report. At the time, a U.S. official said, "We
are more than complying with our obligations under the Geneva Convention."

Then, on July 3, more than 50 militants ambushed an Army patrol near the town of
Balad. Another attack rained mortars on a base, wounding 17 soldiers.. Suddenly,
the insurgency seemed capable of taking the initiative.

"At first, there wasn't so much fear and there was a little cooperation" by
Iraqis with the Americans, said Saher Dabbagh, a former Iraqi lieutenant colonel
who has worked with U.S. officials here and supports the occupation. "But the
curve declined very quickly after that."

The Balad attack surprised U.S. military commanders for what it revealed of the
size and skill of the insurgency, several said at the time. On the next day, an
audiotape believed to be from Hussein was broadcast on Arab television. In his
first public comments since the fall of Baghdad, he called on Iraqis to resist
the occupation and claimed that guerrilla cells were being formed to do so.

In the following days, U.S. military officials began to worry publicly whether
the 150,000 U.S. troops then in Iraq were sufficient to maintain order. U.S.
officials reached out to Iraqi political allies for help, turning to the Iraqi
National Accord among others for advice on how to build an Iraqi intelligence
service and for assistance looking for two soldiers who were missing following
the attack in Balad. The two soldiers were later found dead.

"We told them you cannot play the role of the intelligence and security forces
in Iraq because you are not Iraqis," Dabbagh said. "They were trying to find
Iraqis, but they were going about it the wrong way. None of the ones they found
were professionals, and all of the information they received was false."

Escalation Spurs Change

After receiving reports that large military operations in the north had angered
the local population, Lt. Gen. Ricardo Sanchez, commander of U.S. forces in
Iraq, decided in early August to use more small-unit raids that rely for success
on precise intelligence.

But the next weeks were among the most damaging to the U.S. occupation to date.
A car bomb exploded Aug. 7 in front of the Jordanian Embassy, killing 11 people
in the first appearance of such tactics. Twelve days later, another car bomb
detonated at the U.N. offices, killing more than 20 people, including Sergio
Vieira de Mello, the U.N. envoy to Iraq.

Within days, U.S. officials disclosed that they were recruiting a new domestic
intelligence service from former agents of Hussein's intelligence organization,
the Mukhabarat, despite deep misgivings from some of the 25 members of the U.S.-
appointed Governing Council.

"The only way you are going to combat terrorism is through intelligence," a
senior U.S. official here said at the time. "Without Iraqi input, that's not
going to work."

Miller, a former paratrooper with a mild Texas drawl, arrived in Baghdad from
Cuba on Aug. 31 at the head of a team "experienced in strategic interrogation,"
according to the Taguba report. Their aim was "to review current Iraqi theater
ability to rapidly exploit internees for actionable intelligence," Taguba wrote.

"We're enormously proud of what we have done at Guantanamo to be able to set
that kind of environment where we were focused on getting the maximum amount of
intelligence," Miller said last week in Baghdad, after he returned to Iraq
having been named to supervise the country's military prison system. "We were
bringing expertise into the theater. We made a number of recommendations, the
vast majority of which were implemented following the visit."

The Taguba report cites one of those recommendations as saying that the
detention centers had to act as "an enabler for interrogation." Miller
recommended giving military intelligence officers a greater role in how
prisoners were detained, not only how they were questioned. He also recommended
training a guard force that "sets the conditions for the successful
interrogation and exploitation on internees/detainees."

These new procedures came into force as increasing numbers of Iraqis were being
detained and interrogated. According to interviews with former prisoners, many
arrests were made in predawn raids on houses. Others were swept up if weapons --
even licensed ones -- or suspicious items were found during roadside vehicle
searches.

Ahmad Naje Dulaimi, a waiter at a restaurant in Baghdad's Adhamiya neighborhood,
was arrested in the middle of the night of July 18. He had once worked for the
Iraqi Olympic Committee, which was run by Hussein's son, Uday, and used as a
cover for political persecution.

Dulaima was a long-distance freestyle swimmer on the Iraqi national team. A
neighbor had informed U.S. soldiers of his affiliation, he said, and suggested
to U.S. troops that he was a member of Hussein's militia, Saddam's Fedayeen.

"I had an Olympic Committee card in my wallet, but I told them I was a swimmer,"
said Dulaimi, a lanky 23-year old with floppy hair and acne. "I guess the
Americans believed their spy."

Within days, the informant, a well-known religious figure in the neighborhood,
was killed for working with U.S. troops, Dulaimi said.

Dualimi's 11-month imprisonment began in the interrogation rooms of the Adhamiya
Palace, a former Hussein villa now being used by U.S. troops. He spent the first
night in the T-shirt and shorts he was sleeping in at the time of his arrest,
but he was also hooded, with his hands and feet bound by plastic cuffs.

For two days, he consumed only a cracker and several sips of water, he said. On
the third night, he was interrogated by two U.S. soldiers, a man and a woman,
who were assisted by a Kuwaiti interpreter. The male soldier strode into the
interrogation room, Dulaimi said, and immediately urinated on his head.

"They asked me about Baathists in the neighborhood, if there were officers, who
sold weapons, and who were Fedayeen. I told them I knew nothing," said Dulaimi,
who also spent time in Camp Bucca and Abu Ghraib before he was freed on
Thursday, according to his release papers and prison identification bracelet.
"They said, 'We know you are innocent, but we want information from you. You
know these people.' "

As the prisons filled up and the frequency of rioting and escapes increased,
U.S. troops turned to force to keep order, particularly at Abu Ghraib and Camp
Cropper. Sanchez, the commanding general, dispatched Maj. Gen. Donald J. Ryder
to study the situation.

In a Nov. 5 report, Ryder recommended that military police and military
intelligence should operate independently, as Army regulations require. He also
said "security detainees," the term for those alleged to pose a threat to U.S.
forces, should be put under the watch of one brigade.

But two weeks later, Abu Ghraib's military police units were placed under the
military intelligence command. Taguba suggested in the report that Miller
favored the move by recommending that "the guard force be actively engaged in
setting the conditions for successful exploitation of the detainees."

In a news conference here Saturday, Miller said, "There was no recommendation
ever by this team -- the team that I had here in August and September -- that
recommended that the MPs become actively involved in interrogation, in the
interrogation booth."

The prison system's new "Interrogation and Counter-Resistance Policy," issued
Oct. 12, came in the wake of Miller's recommendations. According to the Taguba
report, the "numerous photos and videos portraying detainee abuse by Military
Police personnel" were dated soon after the policy was adopted, sometime between
October and December.

As the new policies took hold, the Abu Ghraib compound was suffering the effects
of the war outside its walls.

"We were being fired on at Abu Ghraib every single night, with mortars, RPGs and
small-arms fire," Karpinski said. "

U.S. military commanders changed tactics again in an attempt to corral the
widening insurgency. In late November, U.S. forces began using 2,000-pound bombs
and precision-guided missiles for the first time since the war ended.

U.S. officers described the effort as an attempt to intimidate the guerrillas,
and it marked a shift back to large-scale tactics Sanchez had suspended two
months earlier. U.S. generals said the large strikes were made possible by a
major improvement in their ability to wage war: better intelligence.

Since then, uprisings in the Shiite south and the area north and west of Baghdad
known as the Sunni Triangle have inflamed much of the country. The evidence of
abuse inside Abu Ghraib has shaken public opinion in Iraq to the point where it
may be more difficult than ever to secure cooperation against the insurgency.
Brig. Gen. Mark Kimmitt, the chief spokesman for the U.S. military in Iraq,
acknowledged last week that winning over Iraqis before the planned handover of
some sovereign powers next month had been made considerably harder by the
photos.

Last week, denunciations and threats rang out from mosques across Iraq during
Friday prayers. Powerful clerics ridiculed the U.S. occupation authority's
central justification for the war -- that it would bring justice to a country
suffering under dictatorship -- and warned or reprisals if those who carried out
the torture were not tried by an independent court.

"Saddam didn't claim that he was for freedom and equality," Moqtada Sadr, the
rebellious Shiite cleric now commanding a thousands-strong anti-U.S. militia,
told hundreds of worshippers in the southern city of Kufa. "I call for
humanitarian organizations to change this prison into a humanitarian
establishment, and to try the criminals in honest courts as soon as possible.
Otherwise, we'll do the necessary actions in ways that you don't expect."

-*-


May 11, 2004; Page A01

SECRET WORLD OF U.S. INTERROGATION
Long History of Tactics in Overseas Prisons Is Coming to Light

By Dana Priest and Joe Stephens, Washington Post Staff Writers

Last of three articles

http://www.washingtonpost.com/wp-dyn/articles/A15981-2004May10.html

In Afghanistan, the CIA's secret U.S. interrogation center in Kabul is known as
"The Pit," named for its despairing conditions. In Iraq, the most important
prisoners are kept in a huge hangar near the runway at Baghdad International
Airport, say U.S. government officials, counterterrorism experts and others. In
Qatar, U.S. forces have been ferrying some Iraqi prisoners to a remote jail on
the gigantic U.S. air base in the desert.

The Abu Ghraib prison in Iraq, where a unit of U.S. soldiers abused prisoners,
is just the largest and suddenly most notorious in a worldwide constellation of
detention centers -- many of them secret and all off-limits to public scrutiny
-- that the U.S. military and CIA have operated in the name of counterterrorism
or counterinsurgency operations since the Sept. 11, 2001, attacks.

These prisons and jails are sometimes as small as shipping containers and as
large as the sprawling Guantanamo Bay complex in Cuba. They are part of an
elaborate CIA and military infrastructure whose purpose is to hold suspected
terrorists or insurgents for interrogation and safekeeping while avoiding U.S.
or international court systems, where proceedings and evidence against the
accused would be aired in public. Some are even held by foreign governments at
the informal request of the United States.

"The number of people who have been detained in the Arab world for the sake of
America is much more than in Guantanamo Bay. Really, thousands," said Najeeb
Nuaimi, a former justice minister of Qatar who is representing the families of
dozens of prisoners.

The largely hidden array includes three systems that only rarely overlap: the
Pentagon-run network of prisons, jails and holding facilities in Iraq,
Afghanistan, Guantanamo and elsewhere; small and secret CIA-run facilities where
top al Qaeda and other figures are kept; and interrogation rooms of foreign
intelligence services -- some with documented records of torture -- to which the
U.S. government delivers or "renders" mid- or low-level terrorism suspects for
questioning.

All told, more than 9,000 people are held by U.S. authorities overseas,
according to Pentagon figures and estimates by intelligence experts, the vast
majority under military control. The detainees have no conventional legal
rights: no access to a lawyer; no chance for an impartial hearing; and, at least
in the case of prisoners held in cellblock 1A at Abu Ghraib, no apparent
guarantee of humane treatment accorded prisoners of war under the Geneva
Conventions or civilians in U.S. jails.

Although some of those held by the military in Iraq, Afghanistan and Guantanamo
have had visits by the International Committee of the Red Cross, some of the
CIA's detainees have, in effect, disappeared, according to interviews with
former and current national security officials and to the Army's report of
abuses at Abu Ghraib.

The CIA's "ghost detainees," as they were called by members of the 800th MP
Brigade, were routinely held by the soldier-guards at Abu Ghraib "without
accounting for them, knowing their identities, or even the reason for their
detention," the report says. These phantom captives were "moved around within
the facility to hide them" from Red Cross teams, a tactic that was "deceptive,
contrary to Army doctrine, and in violation of international law."

CIA employees are under investigation by the Justice Department and the CIA
inspector general's office in connection with the death of three captives in the
past six months, two who died while under interrogation in Iraq, and a third who
was being questioned by a CIA contract interrogator in Afghanistan. A CIA
spokesman said the hiding of detainees was inappropriate. He declined to comment
further.

None of the arrangements that permit U.S. personnel to kidnap, transport,
interrogate and hold foreigners are ad hoc or unauthorized, including the so-
called renditions. "People tend to regard it as an extra-judicial kidnapping;
it's not," former CIA officer Peter Probst said. "There is a long history of
this. It has been done for decades. It's absolutely legal."

In fact, every aspect of this new universe -- including maintenance of covert
airlines to fly prisoners from place to place, interrogation rules and the legal
justification for holding foreigners without due process afforded most U.S.
citizens -- has been developed by military or CIA lawyers, vetted by Justice
Department's office of legal counsel and, depending on the particular issue,
approved by White House general counsel's office or the president himself.

In some cases, such as determining whether a U.S. citizen should be designated
an enemy combatant who can be held without charges, the president makes the
final decision, said Alberto R. Gonzales, counsel to the president, in a Feb. 24
speech to the American Bar Association's Standing Committee on Law and National
Security.

Critics of this kind of detention and treatment, Gonzales said, "assumed that
there was little or no analysis -- legal or otherwise -- behind the decision to
detain a particular person as enemy combatant."

On the contrary, the administration has applied the law of war, he said. "Under
these rules, captured enemy combatants, whether soldiers or saboteurs, may be
detained for the duration of hostilities."

Because most of the directives and guidelines on these issues are classified,
former and current military and intelligence officials who described them to The
Washington Post would do so only on the condition that they not be identified.

Along with other CIA and military efforts to disrupt terrorist plots and break
up al Qaeda's financial networks, administration officials argue that the
interrogations are a key component of their global counterterrorism strategy and
counterinsurgency operations in Iraq. As the CIA's deputy director, John
McLaughlin, recently told the commission investigating the Sept. 11 attacks:
"The country, with all its capabilities, is now much more orchestrated into an
offensive mix that is relentless."

Military Jails and Prisons

Abu Ghraib -- where photographs were taken that have enraged the Arab world and
rocked U.S. political and military leadership -- held 6,000 to 7,000 detainees
at the time of the documented abuse. Today, it and other sites in Iraq hold more
than 8,000 prisoners, U.S. and coalition officials said. They range from those
believed to have played key roles in the insurgency to some who are held on
suspicion of petty crimes.

Until the current scandal cast some hazy light, little has been publicly known
about the Iraq detention sites, their locations and who was being held there.
That has been a source of continuing frustration for international monitoring
groups such as New York-based Human Rights Watch, which has repeatedly sought to
visit the facilities. Even the military's investigative report on abuses at Abu
Ghraib remains classified, despite having become public through leaks.

Far better known has been the Defense Department's facility at Guantanamo Bay.
The open-air camps there house about 600 detainees, flown in from around the
world over the past two years. Secrecy there remains tight, with detainees and
most of the facilities off-limits to visitors.

The U.S. Supreme Court is deciding whether detainees held there, whom the
Pentagon has declared "enemy combatants" in the war against terrorism, should
have access to U.S. courts.

Last week, the U.S. military acknowledged that two Guantanamo Bay guards had
been disciplined in connection with use of excessive force against detainees.
And U.S. defense officials confirmed the existence of a list of approved
interrogation techniques, dating to April 2003, that included reversing sleep
patterns, exposing prisoners to hot and cold, and "sensory assault," including
use of bright lights and loud music.

The treatment of prisoners in Afghanistan has received less public attention.

The U.S. military holds 300 or so people at Bagram, north of the capital of
Kabul, and in Kandahar, Jalalabad and Asadabad. Human Rights Watch estimates
that at least 700 people had been released from those sites, most of them held a
few weeks or less. Special Forces units also have holding centers at their
firebases, including at Gardez and Khost.

In December 2002, two Afghans died in U.S. custody in Afghanistan. The U.S.
military classified both as homicides. Another Afghan died in June 2003 at a
detention site near Asadabad.

"Afghans detained at Bagram airbase in 2002 have described being held in
detention for weeks, continuously shackled, intentionally kept awake for
extended periods of time, and forced to kneel or stand in painful positions for
extended periods," said a report in March by Human Rights Watch. "Some say they
were kicked and beaten when arrested, or later as part of efforts to keep them
awake. Some say they were doused with freezing water in the winter."

CIA Detention

Before the U.S. military was imprisoning and interrogating people in Afghanistan
and Iraq, the CIA was scooping up suspected al Qaeda leaders in such far-off
places as Pakistan, Yemen and Sudan. Today, the CIA probably holds two to three
dozen captives around the world, according to knowledgeable current and former
officials. Among them are al Qaeda leaders Khalid Sheik Mohammed and Ramzi
Binalshibh in Pakistan and Abu Zubaida. The CIA is also in charge of
interrogating Saddam Hussein, who is believed to be in Baghdad.

The location of CIA interrogation centers is so sensitive that even the four
leaders of the House and Senate intelligence committees, who are briefed on all
covert operations, do not know them, congressional sources said. These members
are given periodic reports about the captives, but several members said they do
not receive information about conditions under which prisoners are held, and
members have not insisted on this information. The CIA has told Congress that it
does not engage in torture as a tactic of interrogation.

"There's a black hole on certain information such as location, condition under
which they are held," said one congressional official who asked not to be
identified. "They are told it's too sensitive."

In Afghanistan, the CIA used to conduct some interrogations in a cluster of
metal shipping containers at Bagram air base protected by three layers of
concertina wire. It is unclear whether that center is still open, but the CIA's
main interrogation center now appears to be in Kabul, at a location nicknamed
"The Pit" by agency and Special Forces operators.

"Prisoner abuse is nothing new," said one military officer who has been working
closely with CIA interrogators in Afghanistan. A dozen former and current
national security officials interviewed by The Washington Post in 2002,
including several who had witnessed interrogations, defended the use of
stressful interrogation tactics and the use of violence against detainees as
just and necessary.

The CIA general counsel's office developed a new set of interrogation rules of
engagement after the Sept. 11 attacks. It was vetted by the Justice Department
and approved by the National Security Council's general counsel, according to
U.S. intelligence officials and other U.S. officials familiar with the process.
"There are very specific guidelines that are thoroughly vetted," said one U.S.
official who helps oversee the process. "Everyone is on board. It's legal."

The rules call for field operators to seek approval from Washington to use
"enhanced measures," methods that could cause temporary physical or mental pain.

U.S. intelligence officials say the CIA, contrary to the glamorized view from
movies and novels, had no real interrogation specialists on hand to deal with
the number of valuable suspects it captured after Sept. 11. The agency relied on
analysts, psychologists and profilers. "Two and a half years later," one CIA
veteran said, "we have put together a very professional, controlled, deliberate
and legally rationalized approach to dealing with the Abu Zubaidas of the
world."

U.S. intelligence officials say their strongest suit is not harsh interrogation
techniques, but time and patience.

'Renditions'

Much larger than the group of prisoners held by the CIA are those who have been
captured and transported around the world by the CIA and other agencies of the
U.S. government for interrogation by foreign intelligence services. This
transnational transfer of people is a key tactic in U.S. counterterrorism
operations on five continents, one that often raises the ire of foreign publics
when individual cases come to light.

For example, on Jan. 17, 2000, a few hours before Bosnia's Human Rights Chamber
was to order the release of five Algerians and a Yemeni for lack of evidence,
Bosnian police handed them over to U.S. authorities who flew them to Guantanamo
Bay.

The Bosnian government, faced with public outcry, said it would compensate the
families of the men, who were suspected of making threats to the U.S. and
British embassies in Bosnia.

The same month, in Indonesia, Muhammad Saad Iqbal Madni, suspected of helping
Richard C. Reid, the Briton charged with trying to detonate explosives in his
shoe on an American Airlines flight, was detained by Indonesian intelligence
agents based on information the CIA provided them. On Jan. 11, without a court
hearing or a lawyer, he was hustled aboard an unmarked U.S.-registered
Gulfstream V jet parked at a military airport in Jakarta and flown to Egypt.

It was no coincidence Madni ended up in Egypt. Egypt, Morocco, Jordan and Saudi
Arabia are well-known destinations for suspected terrorists.

"A lot of people they [the U.S.] are taking to Jordan, third-country nationals,"
a senior Saudi official said. "They can do anything they want with them, and the
U.S. can say, 'We don't have them.' "

In the past year, an unusual country joined that list of destinations: Syria.

Last year U.S. immigration authorities, with the approval of then-acting
Attorney General Larry Thompson, authorized the expedited removal of Maher Arar
to Syria, a country the U.S. government has long condemned as a chronic human
rights abuser. Maher, a Syrian-born Canadian citizen, was detained at JFK
International Airport in New York as he was transferring to the final leg of his
flight home to Canada.

U.S. authorities say Arar has links to al Qaeda. Not wanting to return him to
Canada for fear he would not be adequately followed, immigration officials took
him, in chains and shackles, to a New Jersey airfield, where he was "placed on a
small private jet, and flown to Washington D.C.," according to a lawsuit filed
recently against the U.S. government. He was flown to Jordan, interrogated and
beaten by Jordanian authorities who then turned him over to Syria, according to
the lawsuit.

Arar said that for the 10 months he was in prison, he was beaten, tortured and
kept in a shallow grave. After much pressure from the Canadian government and
human rights activists, he was freed and has returned to Canada.

CIA Director George J. Tenet, testifying earlier this year before the commission
investigating the Sept. 11 attacks, said the agency participated in more than 70
renditions in the years before the attacks. In 1999 and 2000 alone,
congressional testimony shows, the CIA and FBI participated in two dozen
renditions.

Christopher Kojm, a former State Department intelligence official and a staff
member of the commission, explained the rendition procedure at a recent hearing:
"If a terrorist suspect is outside of the United States, the CIA helps to catch
and send him to the United States or a third country," he testified. "Though the
FBI is often part of the process, the CIA is usually the main player, building
and defining the relationships with the foreign government intelligence agencies
and internal security services."

The Saudis currently are detaining and interrogating about 800 terrorism
suspects, said a senior Saudi official. Their fate is largely controlled by
Saudi-based joint intelligence task forces, whose members include officers from
the CIA, FBI and other U.S. law enforcement agencies.

The Saudi official said his country does not participate in renditions and today
holds no more than one or two people at the request of the United States. Yet
much can hinge on terminology.

In some interrogations, for example, specialists from the United States and
Saudi Arabia develop questions and an interrogation strategy before questioning
begins, according to one person knowledgeable about the process. During
interrogation, U.S. task force members watch through a two-way mirror, he said.

"Technically, the questioning is done by a Saudi citizen. But, for all practical
purposes, it is done live," he said. The United States and Saudis "are not
'cooperating' anymore; we're doing it together."

He said the CIA sometimes prefers Saudi interrogation sites and other places in
the Arab world because their interrogators speak a detainee's language and can
exploit his religion and customs.

"As hard as it is to believe, you can't physically abuse prisoners in Saudi
Arabia," the Saudi official said. "You can't beat them; you can't electrocute
them."

Instead, he said, the Saudis bring radical imams to the sessions to build a
rapport with detainees, who are later passed on to more moderate imams. Working
in tandem with relatives of the detainees, the clerics try to convince the
subjects over days or weeks that terrorism violates tenets of the Koran and
could bar them from heaven.

"According to our guys, almost all of them turn," the Saudi official said. "It's
like deprogramming them. There is absolutely no need to put them through stress.
It's more of a therapy."

The Saudis don't want or need to be directed by American intelligence
specialists, who have difficulty understanding Arab culture and tribal
relations, he said. "We know where they grew up," he said of the detainees. "We
know their families. We know the furniture in their home."

[ Research editor Margot Williams contributed to this report. ]

* * *


May 10, 2004; Page A24

Letter to the Editor

POWs BY ANY NAME

In an otherwise excellent article on the detainees at Guantanamo Bay, Cuba, The
Post egregiously illustrates the media's willingness to allow the Bush
administration to set the terms of debate on its detention policies ["Guantanamo
-- A Holding Cell In War on Terror," front page, May 2].

The Post consistently applies the administration's distinction between
"prisoners of war" and "enemy combatants," which has no basis in U.S. case law.
An "enemy combatant" is a member of an organized military force fielded by an
organized state -- recognized or not -- with which the United States is engaged
in hostilities. "Prisoners of war" are by definition "enemy combatants."

The proper distinction is between "prisoners of war" and "unlawful combatants,"
as was carefully explained by the U.S. Supreme Court in the World War II Quirin
case. Administration lawyers apply the term "enemy combatant" to the Guantanamo
detainees and also so designate Jose Padilla, in an attempt to obfuscate the
issue and avoid the inescapable conclusion that Mr. Padilla's detention is in
complete violation of the Constitution. We are about to find out if the Supreme
Court will uphold the law, or, as it did in Bush v. Gore, simply give President
Bush whatever he wants.

ROBERT MOSS

Bloomfield, N.J.

[ The writer has done research for Donna Newman, an attorney for Jose Padilla. ]

* * *


May 7, 2004

TWO GUARDS DISCIPLINED AT GUANTANAMO
Four Others Cleared, Officials Say in Detailing Allegations of Excessive Force

By John Mintz, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A6873-2004May6.html

Two guards at the U.S. military prison in Guantanamo Bay have been disciplined
for using excessive force against detainees since the facility opened in early
2002 and four others have been investigated but cleared, officials said
yesterday.

The announcement of wrongdoing, which occurred in 2002 and 2003, and the
punishment of two guards in the Army Reserve come amid growing international
outrage about the abuse of Iraqi prisoners by U.S. military personnel at Abu
Ghraib prison in Baghdad.

In one of the substantiated cases of excessive force at Guantanamo Bay, a guard
sprayed a prisoner with a hose after the detainee threw food out his cell window
and splashed the guard with toilet water from his cell in September 2002, said
Raul Duany, a spokesman for the U.S. Southern Command, which oversees the
Guantanamo Bay prison in Cuba.

In the other case, which occurred in April 2003, an Army Reserve specialist
observed a prisoner assaulting a fellow guard and hit the detainee twice on the
head with his radio. After the detainee was subdued, the specialist hit him
again at least once and possibly more times with the radio, Duany said,
apparently because the detainee had bitten the first guard.

In each case, the specialist's rank was reduced to private first class, which
substantially lowers their pay, Duany said. The specialist who wielded the hose
also had his movements on the base restricted for seven days and was reassigned
to other duties. The guard who struck the detainee with the radio received 45
days of extra duty and was transferred to a new job.

In a third case, which stemmed from a "disturbance" by at least one detainee in
April 2003, an Army Reserve staff sergeant, "feeling the lives of his troops
were in danger," used pepper spray to subdue a prisoner, Duany said.

Officials believed use of the spray was "outside the rules of engagement" in
that case, and the guard was offered an administrative finding of wrongdoing,
Duany said. The sergeant refused, and his case went to a court-martial, where he
was acquitted, Duany said.

Three other allegations of wrongdoing involving detainees "were looked at and
found not to be substantiated," he said.

"We look at all these cases as examples of our zero-tolerance policy" for
impropriety by guards, Duany said. "If any allegation comes up, we deal with it
expeditiously." Guards at Guantanamo Bay are continually drilled on military law
and procedures, he said.

Detention operations are being reviewed at Guantanamo Bay and at the naval brig
in Charleston, S.C., where the United States is holding three men it has labeled
"enemy combatants." They are Yaser Esam Hamdi, a Saudi student who was born in
this country and captured on an Afghan battlefield; Jose Padilla, an American
citizen arrested in Chicago for allegedly plotting to detonate a radioactive
"dirty bomb;" and Ali Saleh Kahlah Marri, a Bradley University graduate student
accused of being an al Qaeda sleeper agent.

Upon their release from Guantanamo Bay in March, four British detainees alleged
they had been severely abused by prison guards, and one said he was forced to
look at naked prostitutes. U.S. officials strenuously denied it. A number of
other released prisoners have said they had few or no complaints about their
treatment at the jail.

* * *


May 6, 2004; Page A01

NEW PRISON IMAGES EMERGE
Graphic Photos May Be More Evidence of Abuse

By Christian Davenport, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A5623-2004May5.html

The collection of photographs begins like a travelogue from Iraq. Here are U.S.
soldiers posing in front of a mosque. Here is a soldier riding a camel in the
desert. And then: a soldier holding a leash tied around a man's neck in an Iraqi
prison. He is naked, grimacing and lying on the floor.

Mixed in with more than 1,000 digital pictures obtained by The Washington Post
are photographs of naked men, apparently prisoners, sprawled on top of one
another while soldiers stand around them. There is another photograph of a naked
man with a dark hood over his head, handcuffed to a cell door. And another of a
naked man handcuffed to a bunk bed, his arms splayed so wide that his back is
arched. A pair of women's underwear covers his head and face.

The graphic images, passed around among military police who served at the Abu
Ghraib prison in Baghdad, are a new batch of photographs similar to those
broadcast a week ago on CBS's "60 Minutes II" and published by the New Yorker
magazine. They appear to provide further visual evidence of the chaos and
unprofessionalism at the prison detailed in a report by Army Maj. Gen. Antonio
M. Taguba. His report, which relied in part on the photographs, found "numerous
incidents of sadistic, blatant, and wanton criminal abuses" that were inflicted
on detainees.

This group of photographs, taken from the summer of 2003 through the winter,
ranges widely, from mundane images of everyday military life to pictures showing
crude simulations of sex among soldiers. The new pictures appear to show
American soldiers abusing prisoners, many of whom wear ID bands, but The Post
could not eliminate the possibility that some of them were staged.

The photographs were taken by several digital cameras and loaded onto compact
discs, which circulated among soldiers in the 372nd Military Police Company, an
Army Reserve unit based in Cresaptown, Md. The pictures were among those seized
by military investigators probing conditions at the prison, a source close to
the unit said.

The investigation has led to charges being filed against six soldiers from the
372nd. "The allegations of abuse were substantiated by detailed witness
statements and the discovery of extremely graphic photographic evidence,"
Taguba's report states.

For many units serving in Iraq, digital cameras are pervasive and yet another
example of how technology has transformed the way troops communicate with
relatives back home. From Basra to Baghdad, they e-mail pictures home. Some
soldiers, including those in the 372nd, even packed video cameras along with
their rifles and Kevlar helmets.

Bill Lawson, whose nephew, Staff Sgt. Ivan L. "Chip" Frederick, is one of the
soldiers charged in the incident, said that Frederick sent home pictures from
Iraq on a few occasions. They were "just ordinary photos, like a tourist would
take" and nothing showing prisoner abuse, he said.

"I would say that's something that's very common that's going on in Iraq because
it's so convenient and easy to do," Lawson said of troops sending pictures home.
He added that his nephew also mailed videocassettes "of him talking into a
camcorder to [his wife] when he was going on his rounds."

But in the case of prisoner abuse, the ubiquity of digital cameras has created a
far more combustible international scandal that would have been sparked only by
the release of Taguba's searing written report. Since the "60 Minutes II"
broadcast, pictures of abuse have been posted on the Internet and shown on
television stations worldwide.

The photographs have been condemned by U.S. military commanders, President Bush
and leaders around the world. They have sparked particularly strong indignation
in the Middle East, where many people see them as reinforcing the notion "that
the situation in Iraq is one of occupation," said Shibley Telhami, who holds the
Anwar Sadat Chair for Peace and Development at the University of Maryland.

The impact is heightened by religion and culture. Arabs "are even more offended
when the issue has to do with nudity and sexuality," he said. "The bottom line
here is these are pictures of utter humiliation."

It is unclear who took the photographs, or why.

Lawyers representing two of the accused soldiers, and some soldiers' relatives,
have said the pictures were ordered up by military intelligence officials who
were trying to humiliate the detainees and coerce other prisoners into
cooperating.

"It is clear that the intelligence community dictated that these photographs be
taken," said Guy L. Womack, a Houston lawyer representing Spec. Charles A.
Graner Jr., 35, one of the soldiers charged.

The father of another soldier facing charges, Spec. Jeremy C. Sivits of Hyndman,
Pa., also said his son was following orders. "He was asked to take pictures, and
he did what he was told," Daniel Sivits said in a telephone interview last week.

Military spokesmen at the U.S. Central Command in Qatar and at the Combined
Joint Task Force 7 headquarters in Baghdad referred requests for comment about
those claims to Col. Jill Morgenthaler, a U.S. military spokeswoman.
Morgenthaler could not be reached by telephone yesterday and did not return
requests to comment by e-mail. Requests to speak with Col. Thomas M. Pappas --
who commands the 205th Military Intelligence Brigade, based in Germany, and
whose troops were stationed at Abu Ghraib -- were declined by a U.S. military
spokesman for the Army's V Corps in Heidelberg, Germany.

Yesterday, in Fort Ashby, W.Va., two siblings and a friend identified Pfc.
Lynndie England, 21, as the soldier appearing in a picture holding a leash tied
to the neck of a man on the floor. England, a member of the 372nd, has also been
identified in published reports as one of the soldiers in the earlier set of
pictures that were made public, which her relatives also confirmed yesterday.
England has been reassigned to Fort Bragg, N.C., her family said. Attempts to
reach her were unsuccessful. The military has not charged her in the case.

England's friends and relatives said the photographs must have been staged. "It
just makes me laugh, because that's not Lynn," said Destiny Goin, 21, a friend.
"She wouldn't pull a dog by its neck, let alone drag a human across a floor."

England worked as a clerk in the unit, processing prisoners before they were put
in cells, taking their names, fingerprinting them and giving them identification
numbers, her family said. Other soldiers would ask her to pose for photographs,
said her father, Kenneth England. "That's how it happened," he said.

Soon after CBS aired its photographs, Terrie England said she received a call
from her daughter.

" 'Mom,' she told me, 'I was in the wrong place at the wrong time,' " Terrie
England said.

The pictures obtained by The Post include shots of soldiers simulating sexually
explicit acts with one another and shots of a cow being skinned and gutted and
soldiers posing with its severed head. There are also dozens of pictures of a
cat's severed head.

Other photographs show wounded men and corpses. In one, a dead man is lying in
the back of a truck, his shirt, face and left arm covered in blood. His right
arm is missing. Another photograph shows a body, gray and decomposing. A young
soldier is leaning over the corpse, smiling broadly and giving the "thumbs-up"
sign.

And in another picture a young woman lifts her shirt, exposing her breasts. She
is wearing a white band with numbers on her wrist, but it is unclear whether she
is a prisoner.

Staff writers Michael Amon, Scott Higham and Josh White contributed to this
report.

* * *


May 4, 2004; 2:00 PM

U.S. TO STOP CERTAIN INTERROGATION PRACTICES
Commander Promises to Reduce Abu Ghraib Prison Population

By Sewell Chan, Washington Post Foreign Service

http://www.washingtonpost.com/wp-dyn/articles/A707-2004May4.html

BAGHDAD, May 4--The new U.S. commander overseeing Army-run prisons in Iraq has
ordered military intelligence operatives to stop using sleep deprivation as an
interrogation tactic and placing hoods over the heads of detainees.

As part of a broad reassessment of the military's detention programs in Iraq,
the commander also promised Tuesday to cut the population at the Abu Ghraib
prison by more than half.

Maj. Gen. Geoffrey D. Miller, who previously commanded the military prison at
Guantanamo Bay, Cuba, disclosed the policy changes during an interview with a
small group of reporters. Miller, 54, was transferred to Iraq last month to take
over the 14 military-run prisons here, weeks before images of detainees being
physically and sexually degraded at Abu Ghraib were leaked and broadcast around
the world.

Miller was unapologetic about the use of tough tactics to induce anxiety and
draw out information from detainees, but said that he had directed interrogation
supervisors to strictly follow new rules detailing what techniques can be used.

"We're here to enable the armed forces to win this fight that's ongoing," Miller
said. He added that he told his subordinates: "At the end of the day you'd
better make sure that what we've done will make America proud."

The U.S. military has launched five separate investigations since January into
the abuse allegations at Abu Ghraib. An ongoing criminal investigation has
resulted in charges filed against six soldiers. An administrative review
resulted in notices of reprimand filed against seven officers and non-
commissioned officers this week.

An inquiry into interrogation practices also has begun and could lead to
additional criminal and administrative actions. The inspector general of the
Army and the commander of the Army Reserve are conducting their own
investigations as well.

In the 50-minute interview at the Baghdad Convention Center, Miller offered
details of the rarely discussed interrogation procedures used to rattle,
persuade or intimidate detainees to divulge information about their methods and
organizations.

Each interrogation at Abu Ghraib is conducted by a "tiger team," consisting of
one or two interrogators, a translator and a linguist, he said. The analyst --
typically an older or more experienced interrogator -- observes the questioning
from a separate viewing room.

"Every interrogation must have an interrogation plan that lays out the
techniques that will be used to be able to garner the information that is laid
out in that interrogation plan," he said. "And so the interrogation team submits
this up to their interrogation supervisor who lays that out. That's one of the
safeguards and checks that we use to ensure that our interrogation teams are
following our guidance."

Miller said that use of "physical contact" and threats against detainees is
prohibited. Last week, he banned the use of hoods to cover the heads of
detainees in transport. Instead, military officers have been directed to use
"pressure bandages" or goggles to cover the eyes of detainees when transporting
them.

The use of hoods in other situations has been banned for at least the past
month, Miller said, adding that he did not know the specific date. Several of
the Abu Ghraib photographs, which were first broadcast by CBS last week, show
prisoners forced to wear dark-colored cloth hoods.

"We just made the decision we did not want to use that technique," Miller said.
"I believe it sends a message we do not want to send to the civilian
population."

Miller said that interrogators cannot generally deprive prisoners of sleep or
force them to sit or stand in uncomfortable positions, but he did not say there
was an outright ban on those techniques. "We do not use stress positions, we do
not use sleep deprivation, unless that is approved at the general-officer
level," he said. "We follow the tenets of the Geneva Convention, and so the
basics of the Geneva Convention -- shelter, medical care, food -- are never used
as a manipulation tool."

Military guards who worked at Abu Ghraib last fall said it was common to limit
sleep to four hours in a 24-hour period. Miller said that interrogations at Abu
Ghraib now last from one to six hours, but did not specify a definition of how
much sleep is adequate.

Miller also addressed his own indirect role in helping to set policies at Abu
Ghraib last year, while he was still the commander at Guantanamo Bay. In August
and September, he and about 30 aides paid a two-week visit to Iraq to make
suggestions on how to make interrogations more efficient and effective.

A key outcome of that visit was a recommendation to consolidate the supervision
of military intelligence operatives, who supervise interrogations, and military
police guards, who oversee the detainees. In November, a military intelligence
brigade was put in overall control of Abu Ghraib, while a separate military
brigade continued to run the detention operations.

In a March report, the leader of the administrative review, Maj. Gen. Antonio M.
Taguba concluded that the November decision led to a lack of communication and
fragmentation of authority and created the conditions for the abuses to occur.

On Tuesday, Miller defended the command structure, which he has left intact. He
said his recommendations had been only "partially implemented" during the months
between his visit and his return as commander.

Miller did not dispute the findings about poor communication and lack of clear
authority, but he said that effective leadership could solve the problem. "Since
I am the overall authority, I am the integrator," he said.

He added: "I am absolutely confident that every recommendation was not only
appropriate but did [make] and would have made this operation more effective and
more efficient."

"Guantanamo and this theater are enormously different," he said. "In Guantanamo
we had no more than 800 detainees at a time."

There are about 8,000 detainees in Iraq, about half of them at Abu Ghraib. The
two other main prisons are at the southern port city of Umm Qasr and at Baghdad
International Airport, where "high-value" detainees are held. Interrogations can
only be conducted at Abu Ghraib.

Miller said the U.S. military currently runs 11 other detention facilities in
Iraq, where prisoners can be held for up to 14 days before a decision must be
made as to whether to release them or transfer them to one of the three main
prisons.

Iraqi analysts have continued to lambaste the violations at Abu Ghraib as a
shameful abuse of U.S. military power. Abdul-Basit Turki, who was the Iraqi
human rights minister until he submitted his resignation last month, told the
Azzaman newspaper on Monday that U.S. soldiers responsible for the crimes should
be prosecuted as war criminals before an international tribunal. He also called
for turning over the detention facilities to Iraqi authorities.

Turki also predicted that the abuses -- which involved forcing prisoners to
strip -- also would lead to hatred of the Americans. "Such practices, which
contradict human rights principles and are humiliating in Arab culture, will
lead the suspects to nurture adverse reactions and will translate into
resistance to the occupation."

An Azzaman columnist, Saad Abbas, wrote Tuesday that the abuses at Abu Ghraib
did not come to light for months because of the secrecy with which the prisoners
are held, with few visits by family members and very little access by human
rights groups.

"It is not enough to hold the perpetrators to account, but also those who
purposefully eliminated transparency and accountability," Abbas wrote.

[ Special correspondent Khalid Saffar contributed to this report. ]

* * *

May 4, 2004; 3:10 PM

RUMSFELD CALLS PRISONER ABUSE 'DEEPLY DISTURBING'
Senators Express Concern

By Fred Barbash and Lexie Verdon, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A452-2004May4.html

Secretary of Defense Donald H. Rumsfeld today called the reports of abuse of
Iraqi prisoners "deeply disturbing," but he defended the military's
investigation of the incidents and promised to "hold accountable those who may
have violated the code of military conduct and betrayed the trust placed in them
by the American people."

His remarks at a news conference at the Pentagon came shortly after key members
of the Senate, who were briefed this morning on the military investigation,
complained to reporters about the Department of Defense's handling of the
allegations, saying they would summon officials to explain what happened and why
Congress was not informed of it sooner.

Sen. John Warner (R-Va.), chairman of the Senate Armed Services Committee,
called the situation "as serious a problem of breakdown in discipline as I've
ever observed" in the armed forces.

Sen. John McCain (R-Ariz.) said it was "really egregious" for the Pentagon to
have let the story come out on television before describing the problem to
congressional oversight committees. "It's a neglect of the responsibilities that
Secretary Rumsfeld and the civilian leaders of the Pentagon have to keep the
Congress informed of an issue of this magnitude," said McCain.

For his part, Rumsfeld listed the various military investigations of the alleged
prison abuse and argued that the public was apprised of the incidents, including
a brief press release issued by Central Command on Jan. 16th announcing the
investigation and comments that day by Army Brig. Gen. Mark Kimmitt, the U.S.
military's deputy director of operations in Baghdad, to reporters. He said that
although it takes time, the investigations must be handled properly so that
justice can be served.

"I recognize the appetite of people for instant information and instant
conclusions," Rumsfeld said. "These things are complicated. They take some time.
. . . And they're proceeding -- everything I can see -- in a very systematic,
appropriate way."

When asked specifically about the criticisms leveled by senators today, the
defense secretary said, "Well, we informed the world on January 16th that these
investigations were under way. It seems to me that that is a perfectly proper
thing to do. The investigations were announced. The world knew it. It was
briefed to the press and the world."

Rumsfeld told reporters that he dismisses comparisons between the alleged abuse
by the U.S. military and the abuses of former Iraqi leader Saddam Hussein.

The current controversy "is an exception," he said. "The pattern and practice of
the Saddam Hussein regime was . . . to murder and torture, and the killing
fields are filled with mass graves. And equating the two, I think, is a
fundamental misunderstanding of what took place."

But he acknowledged that the reports could affect U.S. efforts in Iraq. "We wish
it would not," he said, "because it is an exceptional, isolated -- we hope
isolated case. . . . Are there things like this that happen? Yes. But over time,
people tend to find their way to fair, reasonable conclusions."

The comments on Capitol Hill earlier followed a briefing before the Senate Armed
Services Committee by Army Gen. George Casey, Army vice-chief of staff, which
members said left them still in the dark as to the extent and severity of the
abuse and the adequacy of the military's response to it.

His testimony, some members said, also raised questions about possible abuses
that may have taken place elsewhere, including Afghanistan.

Warner chastised the Pentagon for not being "forthcoming," saying it should have
"informed the Congress of this earlier on, perhaps as early as the first
knowledge came to the department. . . . "

"We will hold that hearing, a public hearing, at the first opportunity we can .
. . ."

"The actions of these individuals have jeopardized members of the armed services
in the conduct of their mission and have jeopardized the security of this
country," said the committee's ranking Democrat, Sen. Carl Levin (Mich.) "It's a
few individuals that have apparently conducted these despicable actions. We hope
it's a few. We don't know how systemic it is."

It particularly troubled committee members that they first heard about the
severity of the allegations on CBS's "60 Minutes," which first displayed photos
of the abuse of Iraqi prisoners that have now been broadcast across the globe.

"It is a severe problem," said McCain. "It is a pattern on the part of the
Defense Department of not keeping the Congress informed on a variety of issues.
But this is really egregious."

"The dissatisfaction in the committee is that we were not informed as to the
investigation nor the results of the investigation," said McCain. "And the way
that we were informed, of course, was through media reports. The Congress should
have been notified of this situation a long time ago.

Other senators, in other forums, said they were shocked by a statement earlier
this week from Gen. Richard B. Meyers, chairman of the Joint Chiefs of Staff,
saying that he had yet to read the official report on prisoner abuse in Iraq.

"It was totally unacceptable for the head of the Joint Chiefs of Staff to be
saying, on the second of May, that a report that came out on this subject in
February was working its way up through the chain of command and he hadn't
gotten it yet, but at some point in the future he expected to," said Sen. Jeff
Bingaman, (D-N.M.) speaking on NBC's "Today" show.

"I think Sen. Bingaman has it just about right," said Republican Sen. Chuck
Hagel (Neb.), a decorated Vietnam veteran, also speaking on "Today."

"Obviously we must allow the military to conclude its investigations. And my
understanding is that those investigations are going forward on many tracks.
They need to be done very quickly. But there's no question the American people
need to understand this . . .

"Was there an environment, a culture, that not only condoned this but encouraged
this kind of behavior?

"Yes, we need to look well beyond just the soldier," said Hagel. "Who was in
charge? Was there a breakdown in command here? There's no question we have a
chain-of-command breakdown, and we need to understand all the dynamics of this.
So the Congress is going to have to take a very hard look at this."

Sen. Edward M. Kennedy (D-Mass.) said after Casey's briefing that "the important
point that I took from this hearing is that this does not appear to be an
isolated incident and that there are additional reports in Iraq, and also
Afghanistan. And I think we also have to find out if there -- the conduct of
personnel down in Guantanamo as well. I think it's important we get the full
range of this kind of despicable activity, not only in terms of the American
military personnel, but also civilian contractors."

* * *


May 4, 2004; Page A01

IRAQ PRISON SUPERVISORS FACE ARMY REPRIMAND
Probe of Interrogations May Bring More Charges

By Sewell Chan and Thomas E. Ricks, Washington Post Foreign Service

http://www.washingtonpost.com/wp-dyn/articles/A64176-2004May3.html

BAGHDAD, May 3 -- The top U.S. commander in Iraq has moved to issue the highest
form of administrative rebuke against six commissioned and noncommissioned
officers who supervised an Army-run prison where Iraqi prisoners allegedly
suffered physical and sexual abuse, officials announced Monday.

Lt. Gen. Ricardo Sanchez notified the six on Saturday of his intent to give each
a general officer memorandum of reprimand, a document that can effectively end
an officer's career by making promotion impossible. A seventh officer is to
receive a letter of admonishment, a lesser penalty.

Military officials would not disclose the names or ranks of any of the seven.

The punishments would be the most serious actions against officers in a wide-
reaching controversy over mistreatment of detainees at the Abu Ghraib prison
west of Baghdad. They were disclosed as Iraqi newspapers, which had not
published for the past three days to honor the birthday of the prophet Muhammad,
condemned the abuses as symbols of American hypocrisy.

Sanchez's move to reprimand the supervisors stemmed from an administrative
investigation, begun in January, into allegations that military and civilian
guards at Abu Ghraib had subjected Iraqi prisoners to beatings and sexually
degrading acts. A separate criminal probe resulted in charges being filed
against six soldiers from the 372nd Military Police Company. Four other members
of the unit are under investigation.

The top U.S. military spokesman in Iraq said in Baghdad that a third
investigation into interrogation practices could result in additional criminal
charges and administrative penalties. The spokesman, Army Brig. Gen. Mark
Kimmitt, said the military is determined to uncover the root of the abuses,
which are alleged to have occurred in October and November.

In Washington, Pentagon spokesman Lawrence Di Rita said two other probes had
arisen from the Abu Ghraib allegations. The Army inspector general's office
opened a review in February of other U.S. detention operations in Iraq and
Afghanistan, and the head of the Army Reserve is reviewing training of
reservists assigned to detention facilities.

As the repercussions of the abuse controversy widened, there were new
disclosures Monday regarding the influence that military intelligence, or MI,
operatives wielded inside the prison, which houses 5,000 of the 8,000 detainees
held by the United States in Iraq.

Military interrogators routinely used sleep deprivation and other forms of
psychological intimidation to elicit information from prisoners in the cellblock
where the alleged abuses occurred, according to the former top military police
commander in Abu Ghraib.

"The purpose of that wing of the prison was to isolate prisoners with
intelligence, so that they would provide it during MI interrogations," the
commander, Lt. Col. Jerry L. Phillabaum, wrote in a statement to The Washington
Post.

"The cooperative efforts to obtain actionable information that I was aware of,
as directed by MI, included withholding of clothing for some prisoners,
rationing of cigarettes and limiting sleep to four hours in a 24-hour period,"
he wrote.

Phillabaum, the commander of the 320th Military Police Battalion, based in
Ashley, Pa., confirmed that he received a notice of reprimand. He said that
despite the prevalent use of psychological tactics against prisoners, he was
never aware of illegal abuses at Abu Ghraib.

Army Reserve Brig. Gen. Janis L. Karpinski, who oversaw all 16 Army-run prisons
in Iraq as commander of the 800th Military Police Brigade when the alleged
abuses occurred, also faulted military intelligence officers on Monday.

"The prison was actually under the control of the military intelligence command
at that time," she said in an interview on ABC's "Good Morning America."

She added, "This was an interrogation -- an isolation-procedure -- issue, and
that was run and orchestrated by a separate command from the Military Police
Brigade."

Karpinski said she was not a target of Sanchez's reprimands. On Saturday, she
told The Post that she had received a letter of admonishment from her superior,
Lt. Gen. David D. McKiernan.

In a 53-page report, portions of which were made available to The Post, Maj.
Gen. Antonio M. Taguba concluded that there was no clear line of authority at
the prison.

Overall, the report portrays the prison as being run by a poorly led,
undermanned and demoralized group of U.S. soldiers. Because of Army personnel
policies, it notes, the 800th MP Brigade did not receive replacements as members
left for medical reasons or because their terms of service were finished. Also,
the report found, the troops' quality of life was "extremely poor." They lacked
many of the facilities provided to soldiers at other U.S. bases in Iraq, such as
mess halls, barbershops and post exchanges, which offer magazines, toiletries
and other personal items for sale.

The report repeatedly criticizes commanders' decisions, but especially focuses
on Phillabaum, calling him "an extremely ineffective commander and leader."

Taguba found "clear friction and lack of communication" between Karpinski, who
oversaw detainee operations inside the prison, and Col. Thomas M. Pappas,
commander of the 205th Military Intelligence Brigade, who had control of the
overall detention facility.

"There was no clear delineation of responsibility between commands, little
coordination at the command level, and no integration of the two functions,"
Taguba wrote. "Coordination occurred at the lowest possible levels, with little
oversight by commanders."

Taguba faulted a Nov. 19 order that explicitly turned over control of the
facility to the military intelligence brigade. As a result, Taguba concluded,
military guards, who are not trained in interrogation procedures, were given
responsibility for "setting conditions" to elicit the maximum information from
detainees.

While Taguba did not excuse the actions of the guards, he saved his harshest
criticism for four individuals: Pappas; Lt. Col. Steven L. Jordan, who directed
the Joint Interrogation and Debriefing Center inside the prison; and Stephen
Stephanowicz and John Israel, two employees of CACI International Inc., an
Arlington-based security firm that hired interrogators to work at the prison.

These four men, Taguba wrote, "were either directly or indirectly responsible
for the abuses at Abu Ghraib." He added that he strongly recommended "immediate
disciplinary action" against the four men. Efforts to reach the four on Monday
were not successful.

Di Rita, the Pentagon spokesman, said Defense Secretary Donald H. Rumsfeld had
not yet read Taguba's report, which was completed in March and approved in
April. Details of the report have been published by the New Yorker magazine, the
Los Angeles Times and the New York Times.

[ Ricks reported from Washington. ]

* * *


May 4, 2004; Page A18

IN U.S., SEEKING TO LIMIT DAMAGE

By Robin Wright, Washington Post Staff Writer

http://www.washingtonpost.com/wp-dyn/articles/A64194-2004May3.html

The Bush administration is struggling to develop a damage-control strategy to
counter the mounting global backlash against the United States after revelations
that U.S. military and intelligence personnel abused Iraqi prisoners, according
to U.S. officials.

The search for a strong response follows a review of international reaction by
the State Department's Intelligence and Research Department that revealed
devastating fallout and criticism well beyond the Islamic world, from Brazil and
Britain to Hong Kong, U.S. officials said.

"It's very, very sobering," said a State Department official briefed on the INR
review. He requested anonymity because of the sensitivity of the subject. "It's
like the song by the Who, 'Meet the new boss, same as the old boss.' That's the
widespread perception we have to deal with."

U.S. diplomats around the world have sent troubling cables back to Washington
including angry commentary in editorials and government condemnation of the
abuse, with warnings that the graphic photographs of naked Iraqi prisoners with
their gloating jailers could seriously affect U.S. standing and broader foreign
policy, U.S. officials said. Many U.S. embassies have asked for guidance on how
to respond, they added.

"There are certainly a lot of people who are very disturbed by the pictures and
the reports that are coming out," State Department spokesman Richard Boucher
told reporters.

The administration has rushed to get top foreign policy officials to condemn the
abuses. The chairman of the Joint Chiefs of Staff, Gen. Richard B. Myers, was
hastily added to the Sunday talk show lineup, and Brig. Gen. Mark Kimmitt, the
chief U.S. military spokesman in Baghdad, appeared on morning programs
yesterday. Secretary of State Colin L. Powell, who will assume responsibility
for Iraq after the handover of power on June 30, is to appear on CNN's "Larry
King Live" tonight.

The effort to produce a convincing explanation of what happened at Iraq's
notorious Abu Ghraib prison comes as the State Department prepares to release
its annual report accounting for how the United States supports human rights and
democracy around the world. The report is due out Wednesday.

The administration's position is that the acts were by a handful of offenders
violating U.S. policy and that they will be dealt with harshly. After talking
with Guatemalan President Oscar Berger Perdomo, Powell called the abuse
"despicable acts" and stressed that the United States is in Iraq "to help, not
to hurt."

"And so the acts of a few, I trust, will not overwhelm the goodness coming from
so many of our soldiers, and I'm sure that the investigations will get to the
bottom of this and make sure that any problems that exist in the prison system
will be fixed, and fixed promptly," Powell said.

But U.S. officials are concerned because the fallout extends well beyond the
Middle East to public opinion among European allies, including countries in the
U.S.-led coalition.

The INR survey cited a British commentary calling the treatment at Abu Ghraib
"barbaric idiocy" and an Italian commentator warning that the abuse reflected a
failure of leadership that will produce hundreds of new recruits for al Qaeda,
said the State Department official familiar with the review. Britain and Italy
are two of the key European contributors to the U.S.-led coalition.

In Brazil, the INR review noted, a commentary called for global condemnation of
the U.S. abuses and describing treatment at Abu Ghraib as "the bastard daughter"
of the open-ended detention of suspected al Qaeda detainees at Guantanamo Bay,
Cuba.

The international outrage has been so fierce that the current approach of
blaming a few individuals is inadequate, U.S. officials say. "We're now
realizing that we can't expect the Pentagon to handle all of these criticisms
and requests to focus on the public affairs disaster this has caused," said the
State Department official, who is involved in the strategy discussions.

"We're frantically working this issue and trying to come up with a strategy," he
added. "We need to beat this back. People want not just words but action . . .
to deal with this international firestorm."

* * *


May 2, 2004; Page A01

PRISONER ABUSE PROBE WIDENED
Military Intelligence at Center of Investigation

By Sewell Chan and Michael Amon, Washington Post Foreign Service

http://www.washingtonpost.com/wp-dyn/articles/A59750-2004May1.html

BAGHDAD, May 1 -- A top Pentagon intelligence officer is leading an
investigation into interrogation practices at an Army-run prison where Iraqi
detainees were allegedly beaten and sexually abused, officials announced
Saturday. The move came amid allegations that military guards abused prisoners
at the behest of military intelligence operatives.

A soldier accused of abusing prisoners at the Abu Ghraib facility wrote to his
family last December that military intelligence officers encouraged the
mistreatment, according to correspondence provided by the soldier's family.

"We have had a very high rate with our style of getting them to break," the
soldier, Staff Sgt. Ivan L. "Chip" Frederick II, wrote in a Dec. 18 e-mail
released by Frederick's uncle. "They usually end up breaking within hours."

Frederick also wrote that he questioned some of the abuses. "I questioned this
and the answer I got was: This is how military intelligence wants it done," he
wrote.

The Army Reserve commander who oversaw the prison said that military
intelligence, rather than the military police, dictated the treatment of
prisoners at Abu Ghraib. "The prison, and that particular cellblock where the
events took place, were under the control of the MI command," Brig. Gen. Janis
L. Karpinski said in a telephone interview Saturday night from her home in
Hilton Head, S.C.

Karpinski, who commanded the 800th Military Police Brigade, also described a
high-pressure atmosphere that prized successful interrogations. A month before
the alleged abuses occurred, she said, a team of military intelligence officers
from the detention facility at Guantanamo Bay, Cuba, came to Abu Ghraib last
year. "Their main and specific mission was to get the interrogators -- give them
new techniques to get more information from detainees," she said.

The naming of Maj. Gen. George R. Fay, the former deputy commander of the Army
Intelligence and Security Command, to review the methods and procedures used in
questioning Iraqi prisoners represents a widening of the probe into conditions
at Abu Ghraib, a prison about 20 miles west of Baghdad that was notorious for
torture and executions under the government of former president Saddam Hussein.

A spokesman for the Central Intelligence Agency said Saturday that its inspector
general is working with t