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Context of '(October 2002): CIA Station Chief in Jordan Refuses Order to Engage in Sabotage against Iraqi Vehicles'

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A B-29 bomber similar to the one that crashed in Georgia.A B-29 bomber similar to the one that crashed in Georgia. [Source: Global Security (.org)]A test flight for the Air Force’s Project Banshee, located at Robins Air Force Base in Georgia, is set for 8:30 a.m. Banshee is an attempt begun in 1946 to develop and deploy a long-range missile ahead of both the Soviet Union and rival US military branches. The airplane used in the test flight crashes less than an hour into its flight, killing 9 of the 13 aboard.
Maintenance Problems - The plane assigned for the flight is a B-29 Stratofortress, a bomber made famous by its delivery of the atomic bombs to Hiroshima and Nagasaki at the end of World War II. B-29s are notoriously difficult to fly and maintain: their four wing-mounted engines almost routinely overheat and catch fire, causing engine shutdowns, sudden drops in altitude, and, often, crashes. The engines’ eighteen cylinders lack sufficient airflow to keep them cool, and the overheating often causes the crankcases, made of light but highly flammable magnesium, to burst into flames. Like so many of its brethren, the plane has suffered its share of maintenance issues, and is flying without numerous recommended maintenance and repair tasks being performed. Just five days before, it had been designated “red cross”—grounded and unfit for service. It was allowed to fly through an “exceptional release” signed by the squadron commander.
Crew Difficulties - The flight is moved back to the afternoon after some crew members fail to show up on time, and to allow last-minute repairs to be made. By takeoff, the flight crew is assembled: Captain Ralph Erwin; co-pilot Herbert W. Moore; flight engineer Earl Murrhee; First Lieutenant Lawrence Pence, Jr, the navigator; Sergeant Walter Peny, the left scanner; Sergeant Jack York, the right scanner; Sergeant Melvin Walker, the radio operator; and Sergeant Derwood Irvin, manning the bombsight and autopilot. The crew is joined by civilian engineers assigned to Banshee: Al Palya and Robert Reynolds from RCA, William Brauner and Eugene Mechler from the Franklin Institute, and Richard Cox from the Air Force’s Air Materiel Command. In violation of standard procedure, none of the crew or the civilians are briefed on emergency procedures, though Murrhee will later say that the crew were all familiar with the procedures; he is not so sure about the civilians, though he knows Palya and Reynolds have flown numerous test flights before. In another violation of Air Force regulations, none of the flight crew have worked together before. As author Barry Siegel will note in 2008, “The pilot, copilot, and engineer had never shared the same cockpit before.”
Engine Fire and Crash - Less than an hour into the flight, one engine catches fire and two others lose power, due to a combination of maintenance failures and pilot errors. The civilians have some difficulty getting into their parachutes as Erwin and Moore attempt to regain control of the aircraft. Four of the crew and civilians manage to parachute from the plane, but most remain on board as the airplane spirals into the ground on the edge of the Okefenokee Swamp, near Waycross, Georgia. Crew members Moore, Murrhee, and Peny survive, as does a single civilian, Mechler. Four others either jump at too low an altitude or die when their chutes foul the airplane; the other five never manage to leave the plane and die on impact.
Widows File Suit - Several of the civilians’ widows will file suit against the US Air Force, asserting that their husbands died because of Air Force negligence (see June 21, 1949). Their lawsuit will eventually become US v. Reynolds, a landmark Supreme Court case and the underpinning for the government’s claims of state secrets privilege (see March 9, 1953). (Siegel 2008, pp. 3, 14-17, 33-49)

Initial Associated Press reports of a crash in Georgia of a B-29 that had been on a test flight for the Air Force’s secret Project Banshee (see October 6, 1948) acknowledge that “the plane had been on a mission testing secret electronic equipment which RCA developed and built under an Air Force contract… Full details of the plane’s mission were not disclosed.… The Air Force would say only that the bomber was engaged in ‘electronic research on different types of radar…’” Local papers have a bit more detail, with survivor accounts hinting at confusion and some contradictions between their versions of events and that being given out by official Air Force spokesmen. Later reports from the Air Force will downplay the B-29’s involvement in Project Banshee. (Siegel 2008, pp. 56-58)

The Army Air Force’s Air Materiel Command receives the initial report on an investigation of a B-29 crash in Georgia (see October 6, 1948). Perceptions of the crash are colored by the fact that the bomber was carrying equipment from Project Banshee, a secret Air Force missile development initiative. The initial report is meticulously factual, providing an almost minute-by-minute account of the events preceding the crash as told by the four survivors and intensive examination of the debris. The report concludes that it would benefit future B-29 pilots to have more training on flying the plane when it has lost both engines on one wing, and a general recommendation that the pilot and crew should give civilian passengers better instruction in emergency procedures. Though the report is circumspect in the extreme in finding fault with the pilot and military personnel for the crash, and gives only vague and generalized recommendations to help prevent future crashes, the Air Force will heatedly deny that the pilots or crew could have been in any way responsible for the crash. In 2008, reporter Barry Siegel will write, “Years later, this particular claim, in fact Air Materiel Command’s entire position, would cause various veteran aviators to hoot.” Pilot error causing the crash is obvious, they will conclude. (Siegel 2008, pp. 62-65)

Frank Folsom, the executive vice president of the Radio Corporation of America’s RCA Victor Division, writes a letter to General Hoyt Vandenberg, the commander of the US Air Force. Folsom is inquiring about the deaths of two RCA employees in a recent B-29 crash in Georgia (see October 6, 1948). The plane had been on a secret test mission for the Air Force’s Project Banshee, a missile development project in which RCA is heavily involved. Folsom believes that the Air Force is downplaying the likelihood that pilot error caused the crash (see October 18, 1948), and tells Vandenberg that “certain steps will [need to be taken] if we are to participate in the future in Air Force flight test programs.” Folsom wants more pay and compensation for RCA employees participating in Air Force test programs, as well as newer and safer airplanes to be used in the test flights and a higher caliber of test pilots and crew members. Perhaps the portion of the letter that causes the most consternation among Air Force officials is Folsom’s request to read over the official accident reports. “When a crash has occurred, a copy of the official report… must be made available promptly to us,” he writes. “Needless to say, the report will not be disclosed except to those who are directly concerned.” Folsom’s letter will spark a new round of Air Force investigations into the crash, in hopes of mollifying Folsom. However, the report from this investigation will be classified at the highest level of security and not provided to RCA. Additionally, though the second investigation will find a strong likelihood of pilot error causing the crash, the Air Force will not admit any such findings to RCA. (Siegel 2008, pp. 65-80) These accident reports will play a key role in the lawsuit filed against the US government by three widows of killed crew members (see June 21, 1949 and August 7-8, 1950).

Phyllis Brauner and Elizabeth Palya, who both lost their husbands in the “Project Banshee” B-29 crash (see October 6, 1948), file a civil action lawsuit against the US government in regards to the crash. The lawsuit claims that the US Air Force, in the person of the pilot and military crew members of the B-29, caused the deaths of their civilian husbands by “the negligence and wrongful acts and omissions of the officers and employees” of the US. The widows’ lawyer, Charles Biddle, asks the government for $300,000 per family. A third widow, Patricia Reynolds, will join the lawsuit in September 1949. One of the biggest issues surrounding the case is the lawsuit’s request that Biddle and his lawyers be given access to the official accident reports, which the government will claim cannot be revealed because they may contain classified information (see October 18, 1948 and August 7-8, 1950). Biddle’s promise that no one else will see the reports makes no impression on the government’s lawyers. (Siegel 2008, pp. 100-101)

A federal judge orders the Air Force to turn over copies of its classified accident reports about a B-29 crash (see October 6, 1948) as part of a lawsuit filed by three of the widows of crew members killed in the crash (see June 21, 1949). Claiming that the reports may contain classified information about a secret missile development project, Project Banshee, the Air Force not only refuses to turn over the accident reports to the widows’ lawyer, it refuses to allow even the attorney general to view the documents (see August 7-8, 1950). The lawyer for the widows, Charles Biddle, will continue to press for the release of the accident reports. (Siegel 2008, pp. 120-123)

The Air Force refuses to meet the court-imposed deadline to turn over accident reports of a 1948 B-29 crash in Georgia (see October 6, 1948) to the plaintiffs in a lawsuit against the government (see July 26, 1950). Instead, the Justice Department argues before the court that because the accident reports might contain “state secrets” that might imperil “national security” if made available to anyone outside the Air Force, the reports cannot be made available. “[T]he aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force,” the government lawyers argue. “The airplane likewise carried confidential equipment on board and any disclosure of its mission or information concerning its operation or performance would be prejudicial to this department and would not be in the public interest.” Such a claim—that the production of the reports would “seriously hamper national security”—renders the reports “beyond judicial authority,” the Justice Department lawyers claim. (Siegel 2008, pp. 124-126)

Weeks after the Justice Department refused to make accident reports of a 1948 B-29 crash (see October 6, 1948) available to the plaintiffs in an ongoing wrongful death lawsuit against the government (see July 26, 1950) because the reports are so highly classified that their disclosure might “seriously hamper national security” (see July 26, 1950 and August 7-8, 1950), the Air Force, in a routine review, drastically lowers the classification of the accident reports from top-level “Secret” to third-level “Restricted.” Whereas “Secret” documents supposedly contain information that “might endanger national security” if revealed, “Restricted” documents are “for official use only” and should not be disclosed “for reasons of administrative privacy.” The Air Force apparently no longer considers the documents a threat to national security. However, neither the plaintiffs’ lawyers, the judge hearing the lawsuit, or even the Justice Department lawyers are aware of the reports’ reduction in status. They continue to argue the merits of releasing the reports as if they are still highly classified. (Siegel 2008, pp. 133)

Federal judge William H. Kirkpatrick rules that the US government must turn over the disputed, and supposedly highly classified (see September 14, 1950), accident reports from a 1948 B-29 crash (see October 6, 1948)—not to the plaintiffs in the lawsuit over the crash (see July 26, 1950), but to Kirkpatrick himself. He wishes to review the reports to determine if they contain any information that might threaten national security, and, before turning the documents over to the plaintiffs’ lawyers, will personally remove that information. In mid-October, when the government again refuses to turn over the documents, Kirkpatrick will find in favor of the plaintiffs (see October 12, 1950). (Siegel 2008, pp. 133-134)

Federal judge William H. Kirkpatrick rules in favor of the plaintiffs in a wrongful death lawsuit against the US government (see October 6, 1948, June 21, 1949, and July 26, 1950), after the government refuses to turn over classified accident reports that have a direct bearing on the plaintiffs’ case (see September 21, 1950). Judge Kirkpatrick orders the government to pay the plaintiffs, three widows who lost their husbands in a 1948 plane crash, a total of $225,000. The plaintiffs’ lawyer, Charles Biddle, expects the government to balk at paying out the money, and to instead continue to challenge the court’s attempt to compel it to turn over the accident reports (see October 19, 1951). (Siegel 2008, pp. 134-139)

The government, represented by a team of Justice Department lawyers, appeals the recent ruling against it in the ‘Banshee’ B-29 plane crash lawsuit (see June 21, 1949). In the Third US Circuit Appeals Court, the government argues that the lower court had no business demanding that the Air Force turn over classified accident reports about the crash, because the reports may contain information that would potentially compromise national security (see October 12-18, 1948 and September 14, 1950). The government had twice defied court orders to produce the documents, and as a result had lost the lawsuit (see October 12, 1950). The Justice Department’s arguments come down to the assertion that the judiciary has no constitutional right to compel the executive branch to turn over documents it considers privileged. In 2008, author Barry Siegel will write, “For the first time in the B-29 litigation, the government directly argued that the judiciary could not review [the government’s] claim of privilege.” The lawyer for the plaintiffs, Charles Biddle, counters that the executive branch has no such sweeping claim of privilege, and that a judge should be allowed to review documents in dispute to determine both their bearing on a case and the possibility that releasing those documents could jeopardize national security (see September 21, 1950). Three weeks later, the appeals court will rule unanimously against the government (see December 11, 1951). (Siegel 2008, pp. 149-153)

A three-judge federal appeals court unanimously rejects the government’s claim of unfettered executive privilege and secrecy in regards to classified documents (see October 19, 1951). In an opinion written by Judge Albert Maris, the court finds that the government’s claim that the judiciary can never compel the executive branch to turn over classified documents to be without legal merit. The plaintiffs in the case, three widows who lost their husbands in the crash of a B-29 bomber carrying classified materials (see June 21, 1949), had a compelling need for the documents in question, the downed B-29 accident reports, to further their case, Maris writes (see October 12, 1950).
No Legal Basis for Claim of Privilege - Maris goes further than the parameters of the single lawsuit, writing: “[W]e regard the recognition of such a sweeping privilege… as contrary to a sound public policy. The present cases themselves indicate the breadth of the claim of immunity from disclosure which one government department head has already made. It is but a small step to assert a privilege against any disclosure of records merely because they might prove embarrassing to government officials. Indeed, it requires no great flight of imagination to realize that if the government’s contentions in these cases were affirmed, the privilege against disclosure might gradually be enlarged… until as is the case in some nations today, it embraced the whole range of government activities.… We need to recall in this connection the words of [Revolution-era jurist] Edward Livingston: ‘No nation ever yet found any inconvenience from too close an inspection into the conduct of its officers, but many have been brought to ruin, and reduced to slavery, by suffering gradual imposition and abuses, which were imperceptible, only because the means of publicity had not been secured.’” He also quotes Revolutionary War figure Patrick Henry, who said, “[T]o cover with the veil of secrecy the common routine of business is an abomination in the eyes of every intelligent man and every friend to his country.”
Rejecting Claim of 'State Secrets' - Maris is even less respectful of the government’s claim of a “state secrets” privilege. He notes that the government did not make that claim until well into the lawsuit proceedings (see October 19, 1951), indicating that it was a “fallback” argument used after the original government arguments had failed. Maris is also troubled, as author Barry Siegel later writes, in the government’s “assertion of unilateral executive power, free from judicial review, to decide what qualified as secret.” The lower court judge’s ruling that he alone should be given the documents for review adequately protected the government’s security interests, Maris writes: “[But] the government contends that it is within the sole province of the secretary of the Air Force to determine whether any privileged material is contained in the documents and that his determination of this question must be accepted by the district court without any independent consideration.… We cannot accede to this proposition. On the contrary, we are satisfied that a claim of privilege against disclosing evidence… involves a justiciable question, traditionally within the competence of the courts.… To hold that the head of an executive department of the government in a [law]suit to which the United States is a party may conclusively determine the government’s claim of privilege is to abdicate the judicial function to infringe the independent province of the judiciary as laid down by the Constitution.”
Fundamental Principle of Checks and Balances - Maris continues: “The government of the United States is one of checks and balances. One of the principal checks is furnished by the independent judiciary which the Constitution established. Neither the executive nor the legislative branch of the government may constitutionally encroach upon the field which the Constitution has reserved for the judiciary.… Nor is there any danger to the public interest in submitting the question of privilege to the decision of the courts. The judges of the United States are public officers whose responsibilities under the Constitution is just as great as that of the heads of the executive departments.”
Government Appeal - The Justice Department will appeal the ruling to the US Supreme Court (see March 1952 and March 9, 1953). (Siegel 2008, pp. 153-156)

The Justice Department appeals the ruling of the US Appeals Court in the B-29 “Banshee” case (see December 11, 1951). The appellate judges found that the executive branch of government could not unilaterally refuse to hand over classified documents requested during the course of a trial, and justify its decision merely by its own say-so (see October 12, 1950). Solicitor General Philip Perlman argues that the appellate ruling erroneously interprets the law “so as to permit encroachments by the judiciary on an area committed by the Constitution to executive discretion.” The claim of “state secrets,” “executive privilege,” and, ultimately, “national security” must trump judicial concerns, Perlman argues, and he goes on to say that the judiciary should not be allowed to “substitute its judgment for the judgment of the executive.” The case will be labeled United States of America v. Patricia Reynolds, Phyllis Brauner, and Elizabeth Palya, and will usually be shortened to the more colloquial US v. Reynolds.
The Vinson Court - In 2008, author Barry Siegel, in his book Claim of Privilege, will note that the recent ascension of Fred Vinson as the Supreme Court’s Chief Justice does not bode well for the plaintiffs in the case. President Truman placed Vinson, whom Siegel calls Truman’s “poker and drinking buddy,” as Chief Justice to try to achieve consensus between the two contentious blocs of justices on the Court. Siegel notes that Vinson is widely considered an intellectual and legal lightweight, with a tendency to take the side of the government on issues in which he lacks a full understanding. Siegel will write that in many instances, Vinson functions “as part of the executive branch.”
'Dennis' Case Preview of Court's Tendency to Favor Executive Branch - Vinson had written the opinion in a 1951 ruling, Dennis et al v. United States, where the Court had upheld a lower court ruling that twelve acknowledged American Communists were sent to jail under the Smith Act—not for breaking the law, but for “teaching and advocating,” in the words of the original indictment. Siegel will call that ruling “the nadir of the Vinson Court.” According to Siegel, the Dennis ruling showed the Court’s predisposition to give the government, and particularly the executive branch, plenty of leeway in its findings in subsequent cases such as Reynolds. (Siegel 2008, pp. 157-162)

Lawyers make their opening arguments before the Supreme Court in the case of US v Reynolds, the lawsuit that finds the government had no overarching right to unilaterally refuse to deliver classified documents in the course of a wrongful death lawsuit against the government (see December 11, 1951). The government has appealed the appellate court ruling to the Supreme Court (see March 1952). Because four of the nine justices had voted not to hear the case—in essence to let the appellate court ruling stand—the defense is cautiously optimistic about the Court’s decision.
Judiciary Has No Right to Interfere with Powers of the Executive, Government Argues - Acting Solicitor General Robert Stern tells the Court that the appellate judges’ decision, written by Judge Albert Maris, “is an unwarranted interference with the powers of the executive,” and that the decision forced the government to choose “whether to disclose public documents contrary to the public interest [or] to suffer the public treasury to be penalized” (a reference to the decision to award the plaintiffs monetary damages—see October 12, 1950). The judiciary “lack[s] power to compel disclosure by means of a direct demand [as well as] by the indirect method of an order against the United States, resulting in judgment when compliance is not forthcoming.”
Executive Has No Right to Unilaterally Withhold Information, Defense Counters - Stern’s arguments are countered by those of the plaintiffs’ lawyer, Charles Biddle, who writes, “We could rest our case with confidence on the clear opinion of Judge Maris,” but continues by arguing that if the government asserts a claim of executive privilege on the basis of national security, it must make the documents available to the Court for adjudication, or at least provide enough information for the Court to judge whether the documents present in fact a threat to national security if disclosed. This is particularly true, Biddle argues, “where there is no showing that the documents in question contain any military secret” (Biddle is unaware that the documents’ classification status had been reduced two years before—see September 14, 1950). “The basic question here is whether those in charge of the various departments of the government may refuse to produce documents properly demanded… in a case where the government is a party (see June 21, 1949), simply because the officials themselves think it would be better to keep them secret, and this without the Courts having any power to question the propriety of such decision.… In other words, say the officials, we will tell you only what we think it is in the public interest that you should know. And furthermore, we may withhold information not only about military or diplomatic secrets, but we may also suppress documents which concern merely the operation of the particular department if we believe it would be best, for purposes of efficiency or morale, that no one outside of the department, not even the Court, should see them.”
No Basis for Claims of Military Secrets - Biddle argues that because of responses he has received to his demands over the course of this lawsuit, he is relatively sure there are no military secrets contained within them. “[T]he proof is to the contrary,” he says, and goes on to say that had the Air Force disclosed from the outset that the plane crash, the fatal accident that sparked the original lawsuit (see October 6, 1948), was probably caused by pilot error and not by random chance, the plaintiffs may have never needed to ask for the disclosure of the documents in question, the accident reports on the crash (see October 18, 1948). “The secretary [of the Air Force]‘s formal claim of privilege said that the plane at the time was engaged in a secret mission and that it carried confidential equipment,” Biddle says, “but nowhere was it asserted that either had anything to do with the accident. The whole purpose of the demand by the respondents was for the purpose of finding out what caused the accident.… They were not in the least interested in the secret mission or equipment.” (Siegel 2008, pp. 165-170)

In their regular Saturday conference, the nine Supreme Court justices discuss the issues and arguments surrounding US v Reynolds (see October 21, 1952). According to the notes from the discussion, Chief Justice Fred Vinson, a strong advocate for expansive executive powers (see March 1952), says the case “boils down to Executive Branch determine privilege.” Other notes by Justice William O. Douglas suggest that Vinson isn’t convinced that the US must “be forced to pay for exercising its privilege” (see October 12, 1950). A straw vote taken at the end of the discussion shows five justices in favor of the government’s position to unilaterally withhold classified documents—overturning the appellate court decision (see December 11, 1951), and four in favor of allowing the decision to stand. (Siegel 2008, pp. 171)

Chief Justice Fred Vinson.Chief Justice Fred Vinson. [Source: Kansas State Historical Society]The US Supreme Court upholds the power of the federal government’s executive branch to withhold documents from a civil suit on the basis of executive privilege and national security (see October 25, 1952). The case, US v Reynolds, overturns an appellate court decision that found against the government (see December 11, 1951). Originally split 5-4 on the decision, the Court goes to 6-3 when Justice William O. Douglas joins the majority. The three dissenters, Justices Hugo Black, Felix Frankfurter, and Robert Jackson, refuse to write a dissenting opinion, instead adopting the decision of the appellate court as their dissent.
'State Secrets' a Valid Reason for Keeping Documents out of Judicial, Public Eye - Chief Justice Fred Vinson writes the majority opinion. Vinson refuses to grant the executive branch the near-unlimited power to withhold documents from judicial review, as the government’s arguments before the court implied (see October 21, 1952), but instead finds what he calls a “narrower ground for defense” in the Tort Claims Act, which compels the production of documents before a court only if they are designated “not privileged.” The government’s claim of privilege in the Reynolds case was valid, Vinson writes. But the ruling goes farther; Vinson upholds the claim of “state secrets” as a reason for withholding documents from judicial review or public scrutiny. In 2008, author Barry Siegel will write: “In truth, only now was the Supreme Court formally recognizing the privilege, giving the government the precedent it sought, a precedent binding on all courts throughout the nation. Most important, the Court was also—for the first time—spelling out how the privilege should be applied.” Siegel will call the Reynolds ruling “an effort to weigh competing legitimate interests,” but the ruling does not allow judges to see the documents in order to make a decision about their applicability in a court case: “By instructing judges not to insist upon examining documents if the government can satisfy that ‘a reasonable danger’ to national security exists, Vinson was asking jurists to fly blind.” Siegel will mark the decision as “an act of faith. We must believe the government,” he will write, “when it claims [the accident] would reveal state secrets. We must trust that the government is telling the truth.”
Time of Heightened Tensions Drives Need for Secrecy - Vinson goes on to note, “[W]e cannot escape judicial notice that this is a time of vigorous preparation for the national defense.” Locked in the Cold War with the Soviet Union, and fighting a war in Korea, the US is, Vinson writes, in a time of crisis, and one where military secrets must be kept and even encouraged. (U. S. v. Reynolds 3/9/1953; Siegel 2008, pp. 171-176)
Future Ramifications - Reflecting on the decision in 2008, Siegel will write that while the case will not become as well known as many other Court decisions, it will wield significant influence. The ruling “formally recognized and established the framework for the government’s ‘state secrets’ privilege—a privilege that for decades had enabled federal agencies to conceal conduct, withhold documents, and block civil litigation, all in the name of national secrecy.… By encouraging judicial deference when the government claimed national security secrets, Reynolds had empowered the Executive Branch in myriad ways. Among other things, it had provided a fundamental legal argument for much of the Bush administration’s response to the 9/11 terrorist attacks. Enemy combatants such as Yaser Esam Hamdi (see December 2001) and Jose Padilla (see June 10, 2002), for many months confined without access to lawyers, had felt the breath of Reynolds. So had the accused terrorist Zacarias Moussaoui when federal prosecutors defied a court order allowing him access to other accused terrorists (see March 22, 2005). So had the Syrian-Canadian Maher Arar (see September 26, 2002), like dozens of others the subject of a CIA extraordinary rendition to a secret foreign prison (see After September 11, 2001). So had hundreds of detainees at the US Navy Base at Guantanamo Bay, held without charges or judicial review (see September 27, 2001). So had millions of American citizens, when President Bush, without judicial knowledge or approval, authorized domestic eavesdropping by the National Security Agency (see Early 2002). US v. Reynolds made all this possible. The bedrock of national security law, it had provided a way for the Executive Branch to formalize an unprecedented power and immunity, to pull a veil of secrecy over its actions.” (Siegel 2008, pp. ix-x)

Following the revelations of the Church Committee’s investigation into the excesses of the CIA (see April, 1976), and the equally revealing New York Times article documenting the CIA’s history of domestic surveillance against US citizens for political purposes (see December 21, 1974), Congress passes the Foreign Intelligence Surveillance Act (FISA). In essence, FISA prohibits physical and electronic surveillance against US citizens except in certain circumstances affecting national security, under certain guidelines and restrictions, with court warrants issued by the Foreign Intelligence Surveillance Court (FISC), operating within the Department of Justice as well as with criminal warrants. FISA restricts any surveillance of US citizens (including US corporations and permanent foreign residents) to those suspected of having contact with “foreign powers” and terrorist organizations. FISA gives a certain amount of leeway for such surveillance operations, requiring that the administration submit its evidence for warrantless surveillance to FISC within 24 hours of its onset and keeping the procedures and decisions of FISC secret from the public. (Tien 9/27/2001; Legal Information Institute 11/30/2004) On September 14, 2001, Congress will pass a revision of FISA that extends the time period for warrantless surveillance to 72 hours. The revision, part of the Intelligence Authorization Act of 2002, will also lower the standard for the issuance of wiretap warrants and make legal “John Doe,” or generic, warrants that can be used without naming a particular target. FISA revisions will also expand the bounds of the technologies available to the government for electronic and physical surveillance, and broaden the definitions of who can legally be monitored. (US Senate 9/14/2001; Senator Jane Harman 2/1/2006)

A federal court rules that because of the government’s “state secrets” privilege (see March 9, 1953), a civilian plaintiff suing the US Navy over a contractual agreement cannot even access “non-privileged,” or unclassified, information from the Navy because to do so might “threaten disclosure” of material that goes against “the overriding interest of the United States… preservation of its state secrets privilege precludes any further attempt to pursue litigation.” (Siegel 2008, pp. 196-197)

State Department intern Richard Barlow.State Department intern Richard Barlow. [Source: Richard Barlow]Richard Barlow, an intern at the State Department’s Arms Control and Disarmament Agency (ACDA), finds that Pakistan has been attempting to build a nuclear bomb since the early 1970s, but his superiors do not follow up and he loses his job in a reorganization. Barlow, who has recently graduated from university after writing a thesis on counter-proliferation intelligence, is concerned about the burgeoning black markets in nuclear weapons technology. He will later comment, “Everywhere I looked I kept coming up against intelligence about Pakistan’s WMD program. I thought I was telling them what they needed to hear, but the White House seemed oblivious.” One reason the White House appears deaf is that Pakistan is now an important US ally, as it is a major supply point for the CIA-backed anti-Soviet Afghan mujaheddin. In addition, a group of “Republican hawks,” including Paul Wolfowitz, has convinced President Ronald Reagan that America needs a new strategy against potential nuclear threats, since long-term policies such as d├ętente and containment are supposedly not working. When Reagan starts to build up US arms, the staff at ACDA is cut by a third and Barlow is one of the employees who loses his job. (Levy and Scott-Clark 10/13/2007)

In the second of two rulings in the case of Halkin v Helms, the judiciary comes down squarely on the side of the US government against charges of illegal surveillance and wiretapping leveled against American anti-war protesters. The district and appellate courts uphold the federal government’s “state secrets” claim as codified in US v Reynolds (see March 9, 1953), thereby denying the plaintiffs the right to see government information that they claim would prove their case. The DC Court of Appeals writes that the federal courts do not have any constitutional role as “continuing monitors of the wisdom and soundness of Executive action,” and instead the courts “should accord utmost deference to executive assertions of privilege on grounds of military or diplomatic secrets… courts need only be satisfied that there is a reasonable danger” that military secrets might be exposed. (Siegel 2008, pp. 196-196)

The DC Court of Appeals rejects a claim by civilian plaintiffs to force the government to disclose classified information as part of a lawsuit, citing the “state secrets” privilege (see March 9, 1953). Furthermore, the court broadens the definition of “state secrets” to include “disclosure of intelligence-gathering methods or capabilities and disruption of diplomatic relations.” (Siegel 2008, pp. 197)

USS ‘Stark’ after being struck by Iraqi missile.USS ‘Stark’ after being struck by Iraqi missile. [Source: US Department of Defense]Two missiles from an Iraqi F-1 Mirage warplane strike the USS Stark, killing 37 of the sailors aboard. The frigate is a member of a US naval task force sent to the Persian Gulf to keep the Gulf open for shipping during the Iran-Iraq War. The Iraqi fighter locks weapons on the Stark three minutes before firing; the commander of the ship refuses to issue the standard “back off” warning to the Iraqi pilot. The first missile bores deep into the ship but fails to explode; the second missile explodes, incinerating the crew’s quarters, the radar room, and the combat information center. The ship burns for two days. (PBS 2000; Peniston 2006, pp. 61-63)
Diverting Blame onto Iran - The Pentagon later claims that the Stark indeed warned the fighter pilot not to approach. Iraq quickly apologizes for the attack. The US continues to patrol the Gulf, and continues its program of re-registering Kuwaiti oil tankers under the American flag in order to protect them from Iranian attacks. A diplomat says that given the scale of casualties in the incident, the American public is going to start asking “what the hell is the US doing in the Gulf?” Iran calls the attack on the Stark a “divine blessing.” US officials quickly divert blame for the attack on Iran, accepting an Iraqi explanation that the fighter pilot must have mistaken the US warship for an Iranian vessel. (Brummer and Hirst 5/19/1987)
Excusing Iraq, Punishing 'Stark' Commander - “We’ve never considered them hostile at all,” says President Reagan in regards to Iraq’s military. “They’ve never been in any way hostile.… And the villain in the piece is Iran.” Senator John Warner (R-VA), a former secretary of the Navy, denounces Iran as “a belligerent that knows no rules, no morals.” Fellow senator John Glenn (D-OH) calls Iran “the sponsor of terrorism and the hijacker of airliners.” Iraq later determines that the Stark was in its so-called “forbidden zone,” and refuses to produce the pilot for any disciplinary action. The only punishment for the attack is suffered by the captain of the Stark, Glenn Brindel, who is relieved of his command, and his executive officer, who is punished for “dereliction of duty.” (Constantino 5/3/2007)
Lawsuits Dismissed - Two wrongful death lawsuits arising from the attacks will later be dismissed due to the “state secrets” privilege (see June 13, 1991 and September 16, 1992).

Following a stormy Congressional subcommittee hearing where he contradicted CIA manager David Einsel about Pakistan’s nuclear program (see July 1987 or Shortly After), analyst Richard Barlow is forced out of the CIA. Barlow will later say that he leaves because Einsel makes his job impossible: “Einsel went crazy. I was told that my personal behavior at the hearing had been unprofessional. I was accused of being unpatriotic and almost scuttling the Afghanistan program. I was viewed as being disloyal.” (Levy and Scott-Clark 10/13/2007) He will also say: “These people were determined that nothing like this was ever going to happen ever again—no more arrests, no more truth to the Congress.… I was targeted by some in the Directorate of Operations; they made my life miserable.” (Ryland 4/30/2007) Commenting on his position during the Cold War, he will add: “We had to buddy-up to regimes we didn’t see eye-to-eye with, but I could not believe we would actually give Pakistan the bomb. How could any US administration set such short-term gains against the long-term safety of the world?” Barlow’s job description is re-written six weeks after the hearing, removing him from work on Pakistan’s nuclear weapons, and he leaves the CIA for the Customs Service a year later. (Levy and Scott-Clark 10/13/2007)

Richard Barlow, an analyst who has repeatedly insisted that Pakistan has a nuclear weapons program (see July 1987 or Shortly After and Mid-1989), is fired from his position at the Pentagon. Barlow will later say, “They told me they had received credible information that I was a security risk.” When he asks why he is thought to be a security risk, “They said they could not tell me as the information was classified,” but “senior Defense Department officials” are said to have “plenty of evidence.” His superiors think he might leak information about Pakistan’s nuclear program to congressmen in favor of the non-proliferation of nuclear weapons. He spends the next eighteen months in the Pentagon personnel pool, under surveillance by security officers. Apparently, I. Lewis “Scooter” Libby and two officials who work for Undersecretary of Defense for Policy Paul Wolfowitz are involved in the sacking. It is also rumored that Barlow is a Soviet spy. Barlow’s conclusions about Pakistan’s nuclear program are unpopular with some, because if the US admitted the nuclear program existed, this would lead to a break between the US and Pakistan and endanger US aid to the anti-Soviet mujaheddin and US arms sales (see August 1985-October 1990 and August-September 1989). After he is fired, rumors are started saying that Barlow is a tax evader, alcoholic, adulterer, and in psychiatric care. As his marriage guidance counseling is alleged to be cover for the psychiatric care, the Pentagon insists that investigators be allowed to interview his marriage guidance counselor. Due to this and other problems, his wife leaves him and files for divorce. (Hersh 3/29/1993; Levy and Scott-Clark 10/13/2007) Barlow will later be exonerated by various investigations (see May 1990 and Before September 1993).

A lawsuit against the FBI’s investigation of a sixth-grade boy and his school project to create an “encyclopedia of the world” is stopped when an appeals court rules that the agency is shielded by the “state secrets” privilege (see March 9, 1953). Unable to secure information from the FBI as to why it investigated him, the child had therefore “failed to sustain his burden of proof [and] the cause of action was properly dismissed.” (Siegel 2008, pp. 197)

A US appellate court refuses to find a number of military contractors liable in the death of Earl Patton Ryals, who died with 36 of his fellow crewmen in the Iraqi attack on the USS Stark (see May 17, 1987 and After). Ryals’s estate claims that he and his fellows died in part because of negligence on the part of the contractors who designed, manufactured, tested, and marketed the weapons system on board the Stark, including the Phalanx anti-missile system. In turning down the estate’s claim, the court cites the government’s “state secrets” privilege (see March 9, 1953), saying that the facts of the issue could not be resolved without examining classified Navy documents. And even without this reason, the court rules, Ryals’s estate cannot see the documents because the case presents “a political question” about military decision-making that is not subject to judicial review. (Zuckerbraun v. General Dynamics Corp. 6/13/1991; Siegel 2008, pp. 197-198) A year later, a similar case will be dismissed on the grounds that a trial might conceivably reveal “state secrets” (see September 16, 1992).

Khalid Shaikh Mohammed (KSM) lives in Qatar during these years. He is invited there by Abdallah bin Khalid al-Thani, Qatar’s Minister of Religious Affairs at the time. He works on a farm owned by al-Thani and lives in the open, not even bothering to use an alias. He works as a project engineer for the government. One US official will later recall that al-Thani “has this farm and he always had a lot of people around, the house was always overstaffed, a lot of unemployed Afghan Arabs…. There were always these guys hanging around and maybe a couple of Kalashnikovs [machine guns] in the corner.” (McDermott, Meyer, and McDonnell 12/22/2002) KSM continues to plot and travel extensively, including a 1995 trip to fight in Bosnia with the trip’s expenses paid for by al-Thani. Apparently the CIA becomes aware that KSM is living there in 1995 and is also already aware of his role in the 1993 WTC bombing and the Bojinka plot (see October 1995). KSM will finally have to leave his Qatar base after his presence becomes too well known in early 1996 (see January-May 1996). (McDermott, Meyer, and McDonnell 12/22/2002; 9/11 Commission 7/24/2004, pp. 147, 488) KSM will return to Qatar occasionally, even staying there with the knowledge of some Qatari royals for two weeks after 9/11 (see Late 2001).

A federal appeals court upholds the dismissal of a lawsuit filed on behalf of 23 Navy sailors killed in the attack on the USS Stark (see May 17, 1987 and After) against a number of defense contractors. A similar lawsuit on behalf of one of the sailors killed in the attack was dismissed a year before (see June 13, 1991). This time the plaintiffs file over 2,500 pages of unclassified documentary evidence supporting their claims that the contractors were negligent in their design and implementation of the weapons systems aboard the Stark. The appeals court finds that regardless of the amount of evidence entered, to allow the trial would be to potentially infringe on the US government’s “state secrets” privilege (see March 9, 1953). “[N]o amount of effort could safeguard the privileged information,” the court rules. The court adds that “classified and unclassified information cannot always be separated, and therefore courts must restrict access not only to classified material, but to “those pieces of evidence” that “press so closely upon highly sensitive material that they create a hgh risk of inadvertent or indirect disclosures.” (Siegel 2008, pp. 198)

The United States begins a practice known as “rendition,” the official purpose of which is to bring suspected foreign criminals to justice. Suspects detained abroad are “rendered” to courts in the United States or other countries. In some cases they are transferred to countries with poor human rights records and tortured. Some are convicted, even put to death, without a fair trial. (Priest 1/2/2005, pp. A01) The frequency of renditions will increase dramatically after the September 11 attacks (see After September 11, 2001). (Chandrasekaran and Finn 3/11/2002, pp. A01; van Natta 3/9/2003; Priest and Stephens 5/11/2004, pp. A01)
Gore: "Go Grab His Ass" - The policy is proposed by Richard Clarke, head of the Counterterrorism Security Group, who is aware of a suspect he wants to have rendered. However, White House Counsel Lloyd Cutler opposes the policy, saying it violates international law, and demands a meeting with President Clinton to explain the issue to him. Clinton appears favorable to Cutler’s arguments, until Vice President Al Gore returns from a foreign trip. Gore listens to a recap of the arguments and comments: “That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.” However, the first operation fails.
Comment by Clarke - Clarke will later write: “We learned that often things change by the time you can get a snatch team in place. Sometimes intelligence is wrong. Some governments cooperate with the terrorists. It was worth trying, however, because often enough we succeeded.” (Clarke 2004, pp. 144)

Bomb damage in underground levels of the WTC in 1993.Bomb damage in underground levels of the WTC in 1993. [Source: Najlah Feanny/ Corbis]An attempt to topple the World Trade Center in New York City fails, but six people are killed and over 1,000 injured in the misfired blast. The explosion is caused by the detonation of a truck bomb in the underground parking garage. An FBI explosives expert will later state, “If they had found the exact architectural Achilles’ heel or if the bomb had been a little bit bigger, not much more, 500 pounds more, I think it would have brought her down.” Ramzi Yousef, who has close ties to Osama bin Laden, organizes the attempt. (Friedman 3/30/1993; US Congress 2/24/1998) The New York Times will report on Emad Salem, an undercover agent who will be the key government witness in the trial against Yousef. Salem will testify that the FBI knew about the attack beforehand and told him it would thwart the attack by substituting a harmless powder for the explosives. However, an FBI supervisor called off this plan and the bombing was not stopped. (Blumenthal 10/28/1993) Other suspects were ineptly investigated before the bombing as early as 1990. Several of the bombers were trained by the CIA to fight in the Afghan war and the CIA will conclude, in internal documents, that it was “partly culpable” for this bombing (see January 24, 1994). (Marshall 11/1/1998) 9/11 mastermind Khalid Shaikh Mohammed is an uncle of Yousef and also has a role in the bombing (see March 20, 1993). (Gumbel 6/6/2002; McDermott 9/1/2002) One of the bombers even leaves a message, which will be found by investigators, stating, “Next time, it will be very precise.” (Neumeister 9/30/2001)

The US Senate ratifies the international Convention Against Torture, originally proposed by the United Nations in 1985. The treaty bans any officials from signatory nations from inflicting “torture and other cruel, inhuman, or degrading treatment or punishment” on prisoners in order to gain information. It also establishes the UN Committee against Torture (UNCAT). The ban is absolute and cannot be waived: “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 of torture.” (United Nations High Commissioner for Human Rights 12/10/1984; Savage 2007, pp. 155) The treaty also forbids signatory nations from sending detainees to other countries if there is a reasonable expectation that they may be tortured. (United Nations High Commissioner for Human Rights 12/10/1984; Human Rights Web 1/25/1997)

One of Ramzi Yousef’s timers seized by Philippines police in January 1995.One of Ramzi Yousef’s timers seized by Philippines police in January 1995. [Source: Peter Lance]Responding to an apartment fire, Philippine investigators uncover an al-Qaeda plot to assassinate the Pope that is scheduled to take place when he visits the Philippines one week later. While investigating that scheme, they also uncover Operation Bojinka, planned by the same people: 1993 WTC bomber Ramzi Yousef and 9/11 mastermind Khalid Shaikh Mohammed (KSM). (Gumbel 6/6/2002; McDermott 6/24/2002; McDermott 9/1/2002) Many initial reports after 9/11 will claim the fire was accidental and the police discovery of it was a lucky break, but in 2002 the Los Angeles Times will report that the police started the fire on purpose as an excuse to look around the apartment. In the course of investigating the fire, one of the main plotters, Abdul Hakim Murad, is arrested. (McDermott 9/1/2002) The plot has two main components. On January 12, Pope John Paul II is scheduled to visit Manila and stay for five days. A series of bombs along his parade route would be detonated by remote control, killing thousands, including the Pope. Yousef’s apartment is only 500 feet from the residence where the Pope will be staying. (Reeve 1999, pp. 78; Lance 2006, pp. 138) Then, starting January 21, a series of bombs would be placed on airplanes. (Insight 5/27/2002) Five men, Yousef, Wali Khan Amin Shah, Abdul Hakim Murad, Abd al-Karim Yousef (a.k.a., Adel Anon, Yousef’s twin brother), and Khalid Al-Shaikh (thought to be an alias for KSM) would depart to different Asian cities and place a timed bomb on board during the first leg of passenger planes traveling to Los Angeles, San Francisco, Honolulu, and New York. They would then transfer to another flight and place a second bomb on board that flight. In all, 11 to 12 planes would blow up in a two day period over the Pacific. If successful, some 4,000 people would have been killed. (Agence France-Presse 12/8/2001; Insight 5/27/2002; Abuza 12/1/2002) According to another account, some of the bombs would be timed to go off weeks or even months later. Presumably worldwide air travel could be interrupted for months. (Lance 2003, pp. 260-61) A second wave of attacks involving crashing airplanes into buildings in the US would go forward later, once the pilots are trained for it (see February-Early May 1995).

Shortly after bomber Ramzi Yousef is arrested (see February 7, 1995), investigators discover a computer file of a letter on his laptop that is signed by “Khalid Sheikh, and Bojinka.” An eyewitness account of the arrest is given to Time magazine by a “Khalid Sheikh,” who is also staying in the same building. (McDermott 2005, pp. 154, 162) Investigators also discover that Khalid Shaikh Mohammed (KSM) had frequently visited Yousef’s apartment in Manila, Philippines, where the bombs for the Bojinka plot were being made. (PBS Frontline 10/3/2002) They also find Yousef has multiple fax and phone numbers for a “Khalid Doha.” Doha is the capital of Qatar. KSM has been living there openly since 1992 (see 1992-1995). Shortly after being apprehended, US authorities notice that Yousef calls one of these numbers in Qatar and asks to speak to a “Khalid.” The US already connected KSM to the 1993 WTC bombing just weeks after that attack and knew that he was living in Doha, Qatar (see March 20, 1993). (US Congress 7/24/2003) There is an entry in Yousef’s seized telephone directory for a Zahid Shaikh Mohammed, Yousef’s uncle and KSM’s brother. Not long after this discovery is made, Pakistani investigators raid Zahid’s offices in Peshawar, Pakistan, but Zahid has already fled (see 1988-Spring 1995). In 1993, US investigators already discovered the connections between Yousef, Zahid, and KSM, after raiding Zahid’s house in Pakistan and finding pictures of them (see Spring 1993). (McDermott 2005, pp. 154, 162) The FBI successfully arranges for a photograph to be taken of KSM. He is positively identified from the photo in December 1995. This results in his indictment in January 1996 for his role in the 1993 WTC bombing. US intelligence labels him a “top priority,” according the 9/11 Congressional Inquiry. (McDermott, Meyer, and McDonnell 12/22/2002; US Congress 7/24/2003)

The Alfred P. Murrah Building after being bombed.The Alfred P. Murrah Building after being bombed. [Source: CBS News]A truck bomb destroys the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people in America’s worst domestic terrorist attack. Timothy McVeigh, later convicted in the bombing, has ideological roots both in the Patriot world and among neo-Nazis like William Pierce, whose novel, The Turner Diaries (see 1978), served as a blueprint for the attack. (Pressley 4/20/1995; Southern Poverty Law Center 6/2001; Clarke 2004, pp. 127) Initially, many believe that no American set off the bomb, and suspect Islamist terrorists of actually carrying out the bombing (see 10:00 a.m. April 19, 1995 and After). Their suspicions prove groundless. Investigators will find that the bomb is constructed of some 5,000 pounds of ammonium nitrate and fuel oil, carried in 20 or so blue plastic 55-gallon barrels arranged inside a rented Ryder truck (see April 15, 1995). The bomb is detonated by a slow-burning safety fuse, most likely lit by hand. The fuse is attached to a much faster-burning detonation cord (“det cord”) which ignites the fertilizer and fuel-oil mixture. (Bernstein 4/27/1995) The Murrah Federal Building houses a number of federal agencies, including offices for the Bureau of Alcohol, Tobacco and Firearms (BATF); the Social Security Administration; the Housing and Urban Development (HUD), Veterans Affairs, and Agriculture departments; and the Secret Service. (Pressley 4/20/1995) It encompasses an entire city block, between 5th and 4th Streets and Harvey and Robinson Streets, and features a U-shaped, indented drive on 5th that allows for quick pickup and delivery parking. The entire building’s facade on this side is made of glass, allowing passersby to see into the offices in the building, as well as into the America’s Kids day care center on the second floor, which by this time is filling with children. It is in this driveway that McVeigh parks his truck. (Serrano 1998, pp. 99-102)
Entering the City - McVeigh drives into Oklahoma City, entering around 8:30 a.m. from his overnight stop in Ponca City, Oklahoma; the details reported of his entrance into the city vary (see 7:00 a.m. - 8:35 a.m., April 19, 1995). At 8:55 a.m., a security camera captures the Ryder truck as it heads towards downtown Oklahoma City (Douglas O. Linder 2006) , a sighting bolstered by three people leaving the building who later say they saw the truck parked in front of the Murrah Building around this time. At 8:57, a security camera captures an image of McVeigh’s Ryder truck being parked outside the Murrah Building in a handicapped zone. One survivor of the blast, Marine recruiter Michael Norfleet, later recalls seeing the Ryder truck parked just outside the building next to the little circle drive on 5th Street leading up to the main entrance of the building. Norfleet had parked his black Ford Ranger in front of the Ryder.
McVeigh Lights Fuses - McVeigh drives the Ryder truck west past the Murrah Building on NW Fourth Street, turns north on a one-way street, and turns right on Fifth Street. He pulls the truck over and parks near the Firestone store, next to a chain-link fence. He then lights the five-minute fuses from inside the cab (see 8:15 a.m. and After, April 18, 1995), sets the parking brake, drops the key behind the seat, opens the door, locks the truck, exits, and shuts the door behind him. A man later claims to have hit his brakes to avoid someone matching McVeigh’s description as he crossed Fifth Street around 9:00 a.m. McVeigh walks quickly toward a nearby YMCA building where he has hidden his getaway car, a battered yellow Mercury Marquis (see April 13, 1995), in the adjoining alleyway, crossing Robinson Street and crossing another street to get to the alleyway. He begins to jog as he approaches his car. He later says he remembers a woman looking at him as she is walking down the steps to enter the building; he will describe her as white, in her mid-30s, with dirty blonde hair. According to McVeigh’s own recollection, he is about 20 feet into the alley when the bomb goes off. (Stickney 1996, pp. 184-185; PBS Frontline 1/22/1996; Serrano 1998, pp. 158; Douglas O. Linder 2006; The Oklahoman 4/2009)
Truck Explodes - At 9:02 a.m., the truck explodes, destroying most of the Murrah Building and seriously damaging many nearby buildings. Eventually, it will be determined that 168 people die in the blast, including 19 children. Over 500 are injured. The children are in the second-story day care center just above the parking space where McVeigh leaves the Ryder truck. McVeigh will later tell his biographers that he is lifted off his feet by the power of the blast.
Devastation and Death - When the bomb detonates, the day care center and the children plummet into the basement. The building, constructed with large glass windows, collapses, sending a wave of flying glass shards and debris into the building and the surrounding area. The oldest victim is 73-year-old Charles Hurlbert, who has come to the Social Security office on the first floor. Hurlbert’s wife Jean, 67, also dies in the blast. The youngest victim is four-month-old Gabeon Bruce, whose mother is also in the Social Security office. One victim, Rebecca Anderson, is a nurse who runs towards the building to render assistance. She never makes it to the building; she is struck in the head by a piece of falling debris and will die in a hospital four days after the blast. Her heart and kidneys will be transplanted into survivors of the bombing. (Eddy et al. 6/3/1997; Thomas 6/3/1997; Serrano 1998, pp. 153-154; Oklahoma City Journal Record 3/29/2001) Sherri Sparks, who has friends still unaccounted for in the building, tells a reporter in the hours after the blast, “Oh, I can’t stand the thought of… those innocent children, sitting there playing, thinking they’re safe, and then this happens.” The explosion leaves a 30-foot-wide, 8-foot-deep crater in the street that is covered by the wreckage of the building’s upper floors. The north face of the nine-story building collapses entirely. (Pressley 4/20/1995; Walsh 4/22/1995) Mary Heath, a psychologist who works about 20 blocks from the Murrah Building, says the blast “shook the daylights out of things—it scared us to death. We felt the windows shake before we heard the noise.” In a neighboring building, a Water Resources Board meeting is just commencing; the audiotape of the meeting captures the sound of the blast (see 9:02 a.m. and After, April 19, 1995). (Pressley 4/20/1995; The Oklahoman 4/2009) Norfleet, trapped in the Marine Corps office, is thrown into a wall by the explosion. His skull is fractured, and a shard of glass punctures his right eye. Three separate arteries are pierced, and Norfleet begins bleeding heavily. Two supply sergeants in the office are far less injured; Norfleet asks one, “How bad am I hurt?” and one replies, “Sir, you look really bad.” One of the two begins giving Norfleet first aid; Norfleet later recalls: “He immediately went into combat mode and started taking care of me. He laid me on a table and he started looking for bandages to administer first aid. And while I was laying on that table, I just knew that I was losing strength and that if I stayed in the building, I would die.” Norfleet wraps a shirt around his head and face to slow the bleeding, and the two sergeants help him to the stairs, through the fallen rubble, and eventually out. Norfleet will later say that he follows “a blood trail of somebody that had gone down the steps before me” to get outside, where he is quickly put into an ambulance. He loses almost half his body’s blood supply and his right eye. He will never fly again, and will soon be discharged for medical incapacity. (Serrano 1998, pp. 161-162) Eighteen-month-old Phillip Allen, called “P.J.” by his parents, miraculously survives the blast. The floor gives way beneath him and he plunges 18 feet to land on the stomach of an adult worker on the floor below, Calvin Johnson. Landing on Johnson’s stomach saves P.J.‘s life. Johnson is knocked unconscious by the blast and by the impact of the little boy falling on him, but when he awakes, he carries the toddler to safety. P.J.‘s grandfather calls the child “Oklahoma’s miracle kid,” and media reports use the label when retelling the story of the miraculous rescue. P.J. is one of six children in the day care center to survive the blast. (Stickney 1996, pp. 275-277) Some people later report their belief that the Murrah Building was rocked by a second explosion just moments after the first one, the second coming from a secure area managed by the Bureau of Alcohol, Tobacco and Firearms (BATF) that illegally stored explosives. Law professor Douglas O. Linder will later write, “Both seismic evidence and witness testimony supports the ‘two blast theory.’” (Douglas O. Linder 2006) That theory is later disputed (see After 9:02 a.m. April 19, 1995).
Explosion's Effects Felt Miles Away - Buildings near the Murrah are also damaged, seven severely, including the Journal Record newspaper building, the offices of Southwestern Bell, the Water Resources Board, an Athenian restaurant, the YMCA, a post office building, and the Regency Tower Hotel. Two Water Resources Board employees and a restaurant worker are killed in the blast. The Journal Record building loses its roof. Assistant Fire Chief Jon Hansen later recalls, “The entire block looked like something out of war-torn Bosnia.” Every building within four blocks of the Murrah suffers some effects. A United Parcel Service truck 10 miles away has its windows shattered by the blast. Cars in parking lots around the area catch fire and burn. Millions of sheets of paper, and an innumerable number of glass shards, shower down for hundreds of feet around the building. (Stickney 1996, pp. 28-30)
Truck Axle Crushes Nearby Car - Richard Nichols (no relation to bomber Timothy McVeigh’s co-conspirator Terry Nichols), a maintenance worker standing with his wife a block and a half away from the Murrah Building, is spun around by the force of the blast. They throw open the back door of their car and begin taking their young nephew Chad Nichols out of the back seat, when Richard sees a large shaft of metal hurtling towards them. The “humongous object… spinning like a boomerang,” as Richard later describes it, hits the front of their Ford Festiva, smashing the windshield, crushing the front end, driving the rear end high into the air, and sending the entire car spinning backwards about 10 feet. Chad is not seriously injured. The metal shaft is the rear axle of the Ryder truck. Later, investigators determine that it weighs 250 pounds and was blown 575 feet from where the truck was parked. Governor Frank Keating (R-OK) points out the axle to reporters when he walks the scene a day or so later, causing some media outlets to incorrectly report that Keating “discovered” the axle. The scene will take investigators days to process for evidence. (Stickney 1996, pp. 32; Thomas 6/3/1997; Serrano 1998, pp. 187-189)
First Responders Begin Arriving - Within minutes, survivors begin evacuating the building, and first responders appear on the scene (see 9:02 a.m. - 10:35 a.m. April 19, 1995).
McVeigh's Getaway - McVeigh flees the bomb site in his Mercury getaway car (see 9:02 a.m. and After, April 19, 1995), but is captured less than 90 minutes later (see 9:03 a.m. -- 10:17 a.m. April 19, 1995).

The CIA begins a program to track Islamist militants in Europe. The program is operated by local stations in Europe and CIA manager Michael Scheuer, who will go on to found the agency’s bin Laden unit in early 1996 (see February 1996). The program is primarily focused on militants who oppose the Egyptian government. It traces the support network that supplies money and recruits to them and that organizes their propaganda. US Ambassador to Egypt Edward Walker will later say that the operation involves intercepting telephone calls and opening mail. Suspects are identified in Egypt and in European cities such as Milan (see 1993 and After), Oslo, and London (see (Late 1995)). (Grey 2007, pp. 125) The intelligence gathered as a part of this operation will be used for the CIA’s nascent rendition program (see Summer 1995).

The CIA proposes a policy of abducting Islamic Jihad militants and sending them to Egypt which will soon be approved by President Bill Clinton (see June 21, 1995). The Clinton administration began a policy of allowing abductions, known as “renditions,” in 1993 (see 1993). At first, renditions were rarely used because few countries wanted the suspects. Michael Scheuer, head of the CIA’s bin Laden unit, is one of the architects of a 1995 agreement with Egypt to send rendered militants there. He will later recall: “It was begun in desperation.… We were turning into voyeurs. We knew where these people were, but we couldn’t capture them because we had nowhere to take them,” due to legal and diplomatic complications. The CIA realized that “we had to come up with a third party.” Egypt was the obvious choice because the Islamic Jihad is the prime political enemy of the Egyptian government, and many Islamic Jihad militants also work for al-Qaeda, an enemy of the US.
Turning a Blind Eye - However, the Egyptian secret police force, the Mukhabarat, is notorious for its torture of prisoners. As part of the program, the US helps track, capture, and transport suspects to Egypt (see Before Summer 1995) and then turns a blind eye while the Egyptians torture them. Scheuer claims the US could give the Egyptian interrogators questions they wanted put to the detainees in the morning and get answers by the evening. Because torture is illegal in the US, US officials are never present when the torture is done. Further, the CIA only abducts suspects who have already been convicted in absentia. Talaat Fouad Qassem is the first known person the CIA renders to Egypt (see September 13, 1995). But the number of renditions greatly increases in 1998, when the CIA gets a list of Islamic Jihad operatives around the world (see Late August 1998). These renditions result in a big trial in Egypt in 1999 that effectively destroys Islamic Jihad as a major force in that country (see 1999). (Mayer 2/8/2005)
CIA, NSC, Justice Department Lawyers Consulted - Scheuer will say that lawyers inside and outside the CIA are intensively consulted about the program: “There is a large legal department within the Central Intelligence Agency, and there is a section of the Department of Justice that is involved in legal interpretations for intelligence work, and there is a team of lawyers at the National Security Council, and on all of these things those lawyers are involved in one way or another and have signed off on the procedure. The idea that somehow this is a rogue operation that someone has dreamed up is just absurd.” (Grey 2007, pp. 140-141)
Leadership of Program - The rendition program does not focus solely on al-Qaeda-linked extremists, and other suspected terrorists are also abducted. Scheuer will later tell Congress, “I authored it and then ran and managed it against al-Qaeda leaders and other Sunni Islamists from August 1995, until June 1999.” (US Congress 4/17/2007 pdf file) A dedicated Renditions Branch will be established at CIA headquarters in 1997 (see 1997), but the relationship between Scheuer and its manager is not known—it is unclear whether this manager is a subordinate, superior, or equal of Scheuer, or whether Scheuer takes on this responsibility as well. After Scheuer is fired as unit chief in May 1999 (see June 1999), his role in the rendition program will presumably be passed on to his successor, Richard Blee, who will go on to be involved in rendition after 9/11 (see Shortly After December 19, 2001). In a piece apparently about Blee, journalist Ken Silverstein will say that he “oversaw… the [Counterterrorist Center] branch that directed renditions.” (Silverstein 1/28/2007)

President Bill Clinton signs Presidential Decision Directive 39 (PDD-39) approving a rendition program recently proposed by the CIA (see Summer 1995). This program is the development of an earlier idea also approved by Clinton (see 1993) and comes two months after the bombing of a government building in Oklahoma City (see 8:35 a.m. - 9:02 a.m. April 19, 1995). The rendition program as approved by Clinton explicitly covers renditions of fugitives to the US to face trial: “When terrorists wanted for violation of US law are at large overseas, their return for prosecution shall be a matter of the highest priority and shall be a continuing central issue in bilateral relations with any state that harbors or assists them.” The directive does not require the foreign government’s consent: “Return of suspects by force may be effected without the cooperation of the host government.”
Third Countries - The 9/11 Commission will later point out that this directive also expressly approves transferring suspects to other countries: “If extradition procedures were unavailable or put aside, the United States could seek the local country’s assistance in a rendition, secretly putting the fugitive in a plane back to America or some third country for trial.”
Implications - In 2007, journalist Stephen Grey will comment on the policy’s implications: “In essence, the US government chose to outsource its handling of terrorists because neither Clinton nor his Republican opponents were prepared to establish a proper legal framework for the US to capture, interrogate, and imprison terrorists itself; nor to take the more direct military or diplomatic action required to eliminate the leadership of al-Qaeda in Afghanistan; nor to confront countries like Saudi Arabia or Pakistan whose policies helped encourage the growth of terrorism; nor to strengthen adequately the CIA’s own key capabilities.” (Grey 2007, pp. 121, 123)

Diplomats at the US embassy in Egypt are not informed of the CIA’s rendition program. At this time the program is primarily aimed at locating enemies of the Egyptian regime and bringing them back to Egypt, where they are tortured (see Summer 1995 and Before Summer 1995). The only exception to this is US ambassador to Egypt Edward Walker, who is read into the CIA program although he is actually a State Department employee. One of the diplomats’ jobs is to report on Egypt’s extremely poor human rights record, including its torture methods. Walker will later comment, “It wasn’t a question of mincing words… I think the human rights reports were correct.” He will add that there are Chinese walls at the embassy to keep the CIA program secret from the diplomats: “The walls were huge and they only come together at the ambassador level… [The diplomats working on human rights] might have been a little upset if they knew what was going on.” (Grey 2007, pp. 126)

Talaat Fouad Qassem, 38, a known leader of the Al-Gama’a al-Islamiyya (the Islamic Group), an Egyptian extremist organization, is arrested and detained in Croatia as he travels to Bosnia from Denmark, where he has been been living after being granted political asylum. He is suspected of clandestine support of terrorist operations, including the 1993 World Trade Center bombing (see February 26, 1993). He also allegedly led mujaheddin efforts in Bosnia since 1990 (see 1990). In a joint operation, he is arrested by Croatian intelligence agents and handed over to the CIA. Qassem is then interrogated by US officials aboard a US ship off the Croatian coast in the Adriatic Sea and sent to Egypt, which has a rendition agreement with the US (see Summer 1995). An Egyptian military tribunal has already sentenced him to death in absentia, and he is executed soon after he arrives. (Olsen 10/31/1995; Chandrasekaran and Finn 3/11/2002, pp. A01; Mahle 2005, pp. 204-205; Mayer 2/8/2005) According to the 1999 book Dollars for Terror, two weeks before his abduction, Qassem was in Switzerland negotiating against Muslim Brotherhood leaders. Some Muslim Brotherhood exiles were negotiating with the Egyptian government to be allowed to return to Egypt if they agreed not to use Muslim Brotherhood Swiss bank accounts to fund Egyptian militant groups like Al-Gama’a al-Islamiyya, but Qassem and other radicals oppose this deal. So the removal of Qassem helps the Muslim Brotherhood in their conflict with more militant groups. (Labeviere 1999, pp. 70-71)

Melissa Boyle Mahle.Melissa Boyle Mahle. [Source: Publicity photo]According to a later account by CIA agent Melissa Boyle Mahle, “a tidbit received late in the year revealed the location” Khalid Shaikh Mohammed (KSM) in Qatar (see 1992-1996). (Mahle 2005, pp. 247-248) This presumably is information the FBI learned in Sudan that KSM was traveling to Qatar (see Shortly Before October 1995). However, US intelligence should also have been aware that KSM’s nephew Ramzi Yousef attempted to call him in Qatar in February 1995 while Yousef was in US custody (see After February 7, 1995-January 1996). Mahle is assigned to verify KSM’s identity. She claims that at the time the CIA is aware of KSM’s involvement in the Bojinka plot in the Philippines (see January 6, 1995) and in the 1993 WTC bombing (see February 26, 1993) She is able to match his fingerprints with a set of fingerprints the CIA already has in their files. (Mahle 3/31/2005) By October 1995, the FBI tracks KSM to a certain apartment building in Qatar. Then, using high-technology surveillance, his presence in the building is confirmed. (Miniter 2003, pp. 85-86) Mahle argues that KSM should be rendered out of the country in secret. The US began rendering terrorist suspects in 1993 (see 1993), and a prominent Egyptian extremist is rendered by the CIA in September 1995 (see September 13, 1995). She argues her case to CIA headquarters and to the highest reaches of the NSA, but is overruled. (Mahle 3/31/2005) Instead, the decision is made to wait until KSM can be indicted in a US court and ask Qatar to extradite him to the US. Despite the surveillance on KSM, he apparently is able to leave Qatar and travel to Brazil with bin Laden and then back to Qatar at the end of 1995 (see December 1995). KSM will be indicted in early 1996, but he will escape from Qatar a few months later (see January-May 1996).

Bin Laden and Khalid Shaikh Mohammed (KSM) apparently travel to Brazil together. After KSM will be captured in 2003, documents in his possession will show he had a twenty-day visa to Brazil during December 1995. Brazilian intelligence sources will later claim that bin Laden travels with KSM, and is caught on video at a meeting in a mosque in the Brazilian town of Foz do Iguacu. This town is in the tri-border area of Brazil, Paraguay, and Argentina, which has the largest Muslim population in South America and has long been known to be a haven for criminal activity. Bin Laden is said to appear in the video with a goatee instead of his usual full beard. (Orrego 5/4/2003) In 1996, US intelligence will learn that KSM and bin Laden traveled together to a foreign country in 1995 (see 1996). It is not known if that is a reference to this trip or if they made other trips together. The Brazilian government will later claim that it told the US about this trip in late 1998. (Reuters 3/18/2003)

Sheila E. Witnall, the secretary of the Air Force, declassifies all Air Force accident reports prior to January 25, 1956. The declassification includes the 1948 crash of the B-29 bomber that killed nine of 13 crew members during a secret “Project Banshee” mission (see October 6, 1948). The formerly classified reports had been at the heart of the case of US v Reynolds (see March 9, 1953) that sparked the so-called “state secrets” privilege. Four years after the declassification, the daughter of one of the slain civilians on board, Judy Palya Loether, finds the accident report on the Internet; the discovery spurs her to begin looking into the circumstances of her father’s death, and ultimately will result in a second lawsuit being filed on behalf of the families of the slain crewmen (see February 26, 2003). (Siegel 2008, pp. 205-208)

Law professor John Yoo writes a lengthy essay for the California Law Review entitled “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” in which he argues that the Founding Fathers intended to empower presidents to launch wars without Congressional permission. Yoo has clerked for conservative judge Laurence Silberman and equally conservative Supreme Court Justice Clarence Thomas, and served for a year as counsel to then-Senate Judiciary Committee Chairman Orrin Hatch (R-UT). He has become a regular speaker at Federalist Society events, the informal but influential group of conservative lawyers, judges, and legal scholars who will come to have so much influence in the Bush administration. You argues that for generations, Constitutional scholars have misread the Constitution: the Founders actually supported, not repudiated, the British model of executive power that gave the king the sole power of declaring war and committing forces to battle. The Constitution’s granting of the legislature—Congress—the power to “declare war” is merely, Yoo writes, a reference to the ceremonial role of deciding whether to proclaim the existence of a conflict as a diplomatic detail. The Founders always intended the executive branch to actually declare and commence war, he writes. Most other Constitutional scholars will dismiss Yoo’s arguments, citing notes from the Constitutional Convention that show the Founders clearly intended Congress, not the president, to decide whether to commit the country to war. One of those Founders, James Madison, wrote in 1795 that giving a president the unilateral ability to declare war “would have struck, not only at the fabric of the Constitution, but at the foundation of all well organized and well checked governments. The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.” (Savage 2007, pp. 80-81) Yoo will go on to join the Bush administration’s Office of Legal Counsel, and write numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002).

A Renditions Branch is established at the CIA’s Counterterrorist Center. Its job is to find militant leaders and then assist their abduction. The US government has been rendering suspects for four years (see 1993), and the CIA has had a dedicated program for this since the summer of 1995 (see Summer 1995). (9/11 Commission 7/24/2004, pp. 276) Although some specific rendition operations are known (see Summer 1998, July 1998-February 2000, and Late August 1998), the total before 9/11 is not. Estimates vary, but generally fall into a similar range:
bullet Citing a public statement by CIA Director George Tenet, 9/11 commission deputy executive director Chris Kojm will say “70 terrorists were rendered and brought to justice before 9/11;”
bullet Shortly after this, Tenet himself will confirm there were “over 70” renditions; (9/11 Commission 3/24/2004)
bullet Tenet will also say “many dozen” suspects were rendered before 9/11; (Central Intelligence Agency 3/24/2004)
bullet The 9/11 Congressional Inquiry will say that the Branch is involved in “several dozen” renditions before 9/11; (US Congress 7/24/2003, pp. 728 pdf file)
bullet Michael Scheuer, a CIA manager responsible for operations against Osama bin Laden, will say that between 1995 and May 1999 “[t]he operations that I was in charge of concerned approximately 40 people…” (Scheuer 7/1/2006)

A joint surveillance operation conducted by the CIA and Albanian intelligence identifies an Islamic Jihad cell that is allegedly planning to bomb the US Embassy in Tirana, Albania’s capital. The cell was created in the early 1990s by Mohammed al-Zawahiri, brother of Islamic Jihad and al-Qaeda leader Ayman al-Zawahiri. The operation intercepts lengthy discussions between the cell and Ayman. (Mayer 2/8/2005; Wright 2006, pp. 269) At the behest of the US government, Egypt, which is co-operating with the US over renditions (see Summer 1995), issues an arrest warrant for Shawki Salama Attiya, one of the militants in the cell. Albanian forces then arrest Attiya and four of the other suspected militants. A sixth suspect is killed, but two more escape. The men are taken to an abandoned airbase, where they are interrogated by the CIA, and then flown by a CIA-chartered plane to Cairo, Egypt, for further interrogation. The men are tortured after arriving in Egypt:
bullet Ahmed Saleh is suspended from the ceiling and given electric shocks; he is later hanged for a conviction resulting from a trial held in his absence;
bullet Mohamed Hassan Tita is hung from his wrists and given electric shocks to his feet and back;
bullet Attiya is given electric shocks to his genitals, suspended by his limbs and made to stand for hours in filthy water up to his knees;
bullet Ahmed al-Naggar is kept in a room for 35 days with water up to his knees, and has electric shocks to his nipples and penis; he is later hanged for an offence for which he was convicted in absentia;
bullet Essam Abdel-Tawwab will also describe more torture for which prosecutors later find “recovered wounds.”
On August 5, 1998, a letter by Ayman al-Zawahiri will be published that threatens retaliation for the Albanian abductions (see August 5, 1998). Two US embassies in Africa will be bombed two days later (see 10:35-10:39 a.m., August 7, 1998). (Chandrasekaran and Finn 3/11/2002, pp. A01; Mayer 2/8/2005; Grey 2007, pp. 128) The US State Department will later speculate that the timing of the embassy bombings was in fact in retaliation for these arrests. (Taylor 12/15/2001)

In February 2000, CIA Director George Tenet testifies to Congress, “Since July 1998, working with foreign governments worldwide, we have helped to render more than two dozen terrorists to justice. More than half were associates of Osama bin Laden’s al-Qaeda organization.” Renditions are a policy of grabbing a suspect off the street of one country and taken the person to another where he was wanted for a crime or questioning without going through the normal legal and diplomatic procedures. (Associated Press 12/27/2005) The CIA had a policy of rendering Islamic Jihad suspects to Egypt since 1995 (see Summer 1995). In July 1998, the CIA discovered a laptop containing organizational charts and locations of al-Qaeda and Islamic Jihad operatives, so presumably these renditions are a direct result of that intelligence find (see Late August 1998).

CIA operatives kidnap Ahmad Salama Mabruk and two other members of Islamic Jihad outside a restaurant in Baku, Azerbaijan (see Late August 1998). This is part of a covert CIA program to arrest Islamic Jihad operatives around the world and send them to Egypt (see Summer 1995). (Higgins and Cullison 7/2/2002) Mabruk is the closest ally of Ayman al-Zawahiri, al-Qaeda’s number two leader. Mabruk’s laptop computer turns out to contain al-Qaeda organizational charts and vital information about Islamic Jihad members in Europe. FBI agent Dan Coleman later calls this “the Rosetta Stone of al-Qaeda.” However, the CIA will not turn this information over to the FBI. John O’Neill, head of the FBI’s New York office, tries to get around this by sending an agent to Azerbaijan to get copies of the computer files from the Azerbaijani government. When that fails, he persuades President Clinton to personally appeal to the president of Azerbaijan for the files. The FBI eventually gets the files, but the incident deepens the tensions between the CIA and FBI. (Wright 2006, pp. 268-269) The US monitored 67 phone calls between bin Laden and Azerbaijan from 1996 to 1998 (see November 1996-Late August 1998). Presumably, many of these would have been to Mabruk. Mabruk is sent to Egypt and given a long prison sentence. (Higgins and Cullison 7/2/2002)

Intelligence agents learn Mahfouz Walad Al-Walid (a.k.a. Abu Hafs the Mauritanian), an important al-Qaeda leader, is staying in a particular hotel room in Khartoum, Sudan. White House officials ask that he be killed or captured and interrogated. International capture operations of wanted militants, a practice known as “rendition,” have become routine by the mid-1990s (see 1993). In fact, over a dozen al-Qaeda operatives are rendered between July 1998 and February 2000 (see July 1998-February 2000). But in this case, both the Defense Department and the CIA are against it, although Al-Walid does not even have bodyguards. The CIA puts the operation in the “too hard to do box,” according to one former official. The CIA says it is incapable of conducting such an operation in Sudan, but in the same year, it conducts another spy mission in the same city. (Miller, Gerth, and van Natta 12/30/2001; Clarke 2004, pp. 143-46) A plan is eventually made to seize Al-Walid, but by then he has left the country. (Miller, Gerth, and van Natta 12/30/2001)

Richard Barlow, a former intelligence analyst who was repeatedly fired for correctly claiming that Pakistan had a nuclear weapons program (see 1981-1982, August 1987-1988 and August 4, 1989), is awarded a total of $1 million by President Bill Clinton in compensation for the treatment he received. However, Barlow does not receive the money, as the settlement has to be ratified by Congress. When it runs into procedural problems, it is moved to the Court of Federal Claims to be reviewed. After Clinton is replaced by George W. Bush, CIA Director George Tenet and NSA Director Michael Hayden assert the government’s “state secrets privilege” (see March 9, 1953) over Barlow’s entire legal claim, causing it to collapse due to lack of evidence. (Levy and Scott-Clark 10/13/2007)

Michael Scheuer.
Michael Scheuer. [Source: Publicity photo]CIA Director George Tenet removes Michael Scheuer as head of Alec Station, the CIA’s bin Laden unit. Scheuer had headed the unit since its inception in 1996 (see February 1996), and was known as a strong advocate for more government action against bin Laden. The full name of the new head of the unit has not been released and little is known about his performance. (Zeman et al. 11/2004) Deputy Director of Operations Jack Downing tells Scheuer he is being fired because he is “mentally burned out” and because of a recent disagreement with the FBI over whether the deputy chief of Alex Station, who was detailed to the CIA from the FBI, could release information to the FBI without Scheuer’s approval. Downing tells Scheuer he was in the right, but that the criticism of his subordinate “should not have been put on paper”, and the FBI’s management is angry with him. Downing says he will get a medal and a monetary award, but should tell his subordinates he has resigned. Scheuer refuses to lie to his officers, signs a memo saying he will not accept a monetary award, and tells Downing “where he should store the medal.” (Scheuer 2005, pp. 263-4; Wright 2006, pp. 313) According to author Steve Coll, Scheuer’s CIA colleagues “could not be sure exactly [why Scheuer left] but among at least a few of them a believe settled in that [he] had been exiled, in effect, for becoming too passionate about the bin Laden threat…” In particular, he was angry about two recent missed opportunities (see 1997-May 29, 1998 and February 11, 1999) to assassinate bin Laden. (Coll 2004, pp. 449-450) Scheuer will write in 2004 that, “On moving to a new position, I forwarded a long memorandum to the Agency’s senior-most officers—some are still serving—describing an array of fixable problems that were plaguing America’s attack on bin Laden, ones that the bin Laden unit had encountered but failed to remedy between and among [US intelligence agencies]… The problems outlined in the memorandum stood in the way of attacking bin Laden to the most effective extent possible; many remain today.” Problems include poor cooperation between agencies and a lack of experienced staff working on the bin Laden issue. Scheuer never receives a response to his memo. (Atlantic Monthly 12/2004)

A large group of Islamic Jihad operatives are sentenced in Cairo in what becomes known as the “Trial of the Albanian Returnees.” Various disclosures are made at the trial about the way Islamic Jihad operated and how it provided support to al-Qaeda by forging travel documents, transferring money, and arranging communications. One of the revelations is that al-Qaeda has a key communication hub in Yemen. Despite this revelation (see Late 1998-Early 2002), al-Qaeda will continue to use it through 2001 (see Early 2000-Summer 2001). The defendants were arrested not only in Egypt, but also in Albania, Bulgaria, Azerbaijan, and the United Arab Emirates. In 1995, the CIA arranged a deal with Egypt to capture Islamic Jihad operatives around the world and send them to Egypt to be tortured and prosecuted (see Summer 1995). Eighty-seven of the defendants are convicted and ten are sentenced to death, including al-Zawahiri, who is tried in absentia. (Sachs 11/21/2001) One of the convicted is Khaled Abu el-Dahab, who was operating a sleeper cell in California with double agent Ali Mohamed throughout the 1990’s (see 1987-1998). El-Dahab is sentenced to fifteen years in prison (see September 10, 1998). There are credible reports that many of the defendants confessed after being tortured in Egypt and Albania. (Sachs 11/21/2001; Wright 2006, pp. 269) The trial nearly eradicates the remnants of Islamic Jihad in Egypt and, according to some of the defendants, leaves only about forty members outside of Egypt. Al-Zawahiri and the other remaining members end up allying even closer to al-Qaeda. The two organizations will formally merge in early 2001 (see June 2001). (Wright 2006, pp. 336)

The CIA drafts a new plan to combat al-Qaeda. The document, entitled “The Plan,” has several elements:
bullet Continue with the CIA’s rendition program, which had begun some time previously (see Summer 1995);
bullet Continue with disruption operations against al-Qaeda;
bullet Hire and train better officers with counterterrorism skills;
bullet Recruit more assets and try to penetrate al-Qaeda’s ranks;
bullet Close gaps in the collection of signals and imagery intelligence;
bullet Increase contacts with the Northern Alliance (see Summer 1999). (9/11 Commission 7/24/2004, pp. 142)

The US and Germany miss an opportunity to uncover the 9/11 plot through the arrest of Mohamedou Ould Slahi, an al-Qaeda operative tied to millennium attacks and the Hamburg al-Qaeda cell. Slahi lived in Duisburg, Germany for most of the 1990s and apparently US and German intelligence began monitoring him there around the start of 1999 due to his communications with his cousin, al-Qaeda leader Mahfouz Walad Al-Walid. In 1999 he had repeated contact with members of the Hamburg al-Qaeda cell and helped some of the 9/11 hijackers travel to Afghanistan. US investigators will later allege he also advised one militant to “travel to the United States to take part in the planned [9/11] attacks” (see 1999). In November 1999, Slahi moves to Canada and is seen with associates of Ahmed Ressam, who is planning to bomb the Los Angeles airport. US officials will later believe that Slahi went to Canada to activate Ressam’s cell. (Meyer 4/24/2006) After Ressam is arrested in mid-December 1999 (see December 14, 1999), Slahi is monitored closely. He is arrested in Senegal after flying there in mid-January 2000. Transfered to his home country of Mauritania, he is interrogated by FBI officials. (Johnston 1/29/2000; Agence France-Presse 2/20/2000; Meyer 4/24/2006) In early February 2000, Newsweek will report, “The key link in the chain connecting bin Laden to Ahmed Ressam—and an alleged New Year’s bomb plot in the United States—may be Mohamedou Ould Slahi.” (Newsweek 2/7/2000) However, despite these suspicions, he is released later in February. He moves back to Germany, and is arrested and held there in April 2000 for three weeks, and then released again. He quickly returns to Mauritania. He will be arrested again shortly after 9/11. (Agence France-Presse 2/20/2000; US Department of Defense 4/20/2006, pp. 184-216) Despite all this interest in Slahi, his connections to the 9/11 plot and some of the 9/11 hijackers in Hamburg are apparently not made until after 9/11. He will later be sent to Guantanamo where he is reportedly subjected to harsh interrogation (see September 27, 2001).

Judy Palya Loether.Judy Palya Loether. [Source: SecrecyFilm (.com)]Judy Palya Loether, the daughter of a civilian engineer killed in a 1948 plane crash while on a secret government mission (see October 6, 1948), reads over the voluminous reports of the accident that claimed her father’s life. The reports, now declassified (see January 1996), had been at the heart of a landmark lawsuit that gave judicial recognition to the government’s “state secrets” privilege (see March 9, 1953). Loether is shocked to find that the reports contain nothing that could be construed as military or tactical secrets of any kind, though for decades the government has insisted that they could not be revealed, even to a judge (see October 18, 1948, July 26, 1950, August 7-8, 1950, September 21, 1950, and October 19, 1951). What they do contain is a compendium of witness statements and expert findings that indicate a number of mistakes and errors led to the crash. Loether begins contacting the families of the widows who had filed the original lawsuit against the government (seeJune 21, 1949) to share her findings. (Siegel 2008, pp. 210-211) Loether is confused and angered over the contents of the reports, and the government’s response to the lawsuit. She cannot understand why the government pressed so hard to keep the reports classified, knowing that they contained no sensitive information about the secret missile program, and is particularly troubled by the fact that at least two senior government officials signed affidavits affirming the reports’ inclusion of such information while knowing that the reports contained nothing of the sort. She wonders if government officials had perhaps decided to lie about the reports in order to establish some sort of state secrets privilege. In September 2002, lawyers Wilson Brown and Jeff Almeida, retained by Loether and others who lost family members in the crash, come to the same conclusion. As Almeida will say to Brown: “I’ve read this report. There’s nothing in there.” (Siegel 2008, pp. 219) As time goes on, Loether and her colleagues files a second lawsuit seeking to overturn the first Supreme Court verdict (see February 26, 2003).

Mohammed al-Zawahiri, brother of al-Qaeda second-in-command Ayman al-Zawahiri, is arrested at Dubai airport in the United Arab Emirates (UAE). While much less known than his brother, Mohammed quietly served an important role as Ayman’s deputy in Islamic Jihad, and as the group’s military commander (see 1993). He apparently disagreed with the increasing unification between Islamic Jihad and al-Qaeda, and quit in 1998 over that issue. (Jacquard 2002, pp. 108) He is arrested in the UAE and then flown to Egypt as a part of the CIA’s rendition program (see Summer 1995). A senior former CIA officer will later confirm US involvement in the operation. (Grey 2007, pp. 246, 299) Mohammed had been sentenced to death in absentia in Egypt the year before. (Wright 9/9/2002) But his execution is not carried out, and he is said to reveal what he knows about Islamic Jihad. In 2007 it will be reported that his sentence is likely to be lessened in return for agreeing to renounce violence. (Jacquard 2002, pp. 108; Associated Press 4/20/2007) Note: there is a dispute about when he was arrested. Some sources indicate it was in the spring of 1999. (Grey 2007, pp. 246; Associated Press 4/20/2007) Others indicate it was a year later. (Jacquard 2002, pp. 108; Wright 9/9/2002)

Binyam Mohamed, a 23-year old Muslim of Ethiopian descent residing in London, flies to Pakistan to experience Islam in its “purest form” as practiced by the Taliban. Mohamed, who was abandoned by his family in London when he was 15, is a former heroin addict and desultory college student who turned to the local mosque as a way to avoid his drug-using friends. He will later claim, “I really had no idea what it was” that the Taliban espoused; he goes to Afghanistan on the advice of some in the mosque. After arriving in Pakistan, he sneaks into Afghanistan in the back of a truck. He will later say that he learns about the Muslim rebels in Chechnya from sympathizers in Jalalabad, and determines to aid the Muslim cause, but, he claims, as an aid worker, not a terrorist or Taliban fighter. Yet he agrees to undergo basic training in Afghanistan for fighters. He will later say: “I was told that the Russians don’t separate between aid workers and those doing the fighting, and that if I wanted to go to Chechnya, I needed basic training. I was so young, I didn’t question it. I didn’t expect to fire a gun except in training, let alone kill someone.… I would never have taken up arms against British or American soldiers, let alone attacked civilians. I wanted to protect civilians, not kill them.” He completes a 45-day “boot camp” course, where, he will later say, he learned nothing to do with terrorism, such as bomb-making techniques. But instead of traveling to Chechnya, he goes to Kabul, where he contracts malaria. He is in the hospital when he learns of the 9/11 attacks. He thinks Afghanistan will soon be under attack from Western forces, and, he will later say, decides to leave for London before the fighting can start (see September 2001 - April 9, 2002). “All I wanted to do was to get back to London, to the country that I thought of as home, to continue my education and find a job; to get back to my life, minus the drugs,” he will say. (Rose 3/8/2009)

After the September 11 attacks, there is a dramatic increase in the frequency of US-requested “renditions.” (Chandrasekaran and Finn 3/11/2002, pp. A01; Priest and Gellman 12/26/2002; Rotella 2/1/2003; Priest and Stephens 5/11/2004, pp. A01) Officially, the original purpose of renditions was to bring suspected foreign criminals, such as drug kingpins, to justice (see 1993). But after September 11, it is used predominantly to arrest and detain foreign nationals designated as suspected terrorists and bring them to foreign countries that are willing to hold them indefinitely for further questioning and without public proceedings. (Chandrasekaran and Finn 3/11/2002, pp. A01; van Natta 3/9/2003; Priest and Stephens 5/11/2004, pp. A01; Priest 1/2/2005, pp. A01) According to one CIA officer interviewed by the Washington Post, after September 11, “The whole idea [becomes] a corruption of renditions—It’s not rendering to justice, it’s kidnapping.” (Priest 1/2/2005, pp. A01) “There was a debate after 9/11 about how to make people disappear,” a former intelligence official will tell the New York Times in May 2004. (Risen, Johnston, and Lewis 5/13/2004) By the end of 2002, the number of terrorism suspects sent to foreign countries is in the thousands. Many of the renditions involve captives from the US operation in Afghanistan. (Chandrasekaran and Finn 3/11/2002, pp. A01; Priest and Gellman 12/26/2002; Rotella 2/1/2003; Priest and Stephens 5/11/2004, pp. A01) The countries receiving the rendered suspects are often known human rights violators like Egypt, Syria, Jordan, Saudi Arabia, and Morocco, all of which have histories of using torture and other methods of interrogation that are not legal in the US. The rendition program often ignores local and international extradition laws. (Chandrasekaran and Finn 3/11/2002, pp. A01) In fact, US officials have admitted that the justification for rendition is sometimes fabricated—the US requests that a suspect be rendered, and then the allied foreign government charges the person “with a crime of some sort.” (Priest and Gellman 12/26/2002; Rotella 2/1/2003) After a suspect is relocated to another country, US intelligence agents may “remain closely involved” in the interrogations, sometimes even “doing [them] together” with the foreign government’s intelligence service. (Chandrasekaran and Finn 3/11/2002, pp. A01; van Natta 3/9/2003; Priest and Stephens 5/11/2004, pp. A01) The level of cooperation with Saudi interrogators is allegedly high. “In some cases,” according to one official, “we’re able to observe through one-way mirrors the live investigations. In others, we usually get summaries. We will feed questions to their investigators.” He adds, however, “They’re still very much in control.” (Priest and Gellman 12/26/2002) Joint intelligence task forces, which consist of members from the CIA, FBI, and some other US law enforcement agencies, allegedly control to a large extent the approximately 800 terrorism suspects detained in Saudi Arabia. (Priest and Stephens 5/11/2004, pp. A01)
Countries involved in the practice of rendition -
Egypt - Amnesty International’s 2003 annual report says that in Egypt, “Torture and ill-treatment of detainees continued to be systematic” during 2002. (Chandrasekaran and Finn 3/11/2002, pp. A01; Priest and Gellman 12/26/2002; Amnesty International 2003)
Jordan - The State Department’s 2001 annual human rights report states, “The most frequently alleged methods of torture include sleep deprivation, beatings on the soles of the feet, prolonged suspension with ropes in contorted positions, and extended solitary confinement.” US officials are quoted in the Washington Post in 2002 calling Jordan’s interrogators “highly professional.” (Chandrasekaran and Finn 3/11/2002, pp. A01; Priest and Gellman 12/26/2002)
Morocco - Morocco “has a documented history of torture, as well as longstanding ties to the CIA.” (Chandrasekaran and Finn 3/11/2002, pp. A01; Priest and Gellman 12/26/2002)
Syria - Amnesty International’s 2003 annual report notes: “Hundreds of political prisoners remained in prolonged detention without trial or following sentences imposed after unfair trials. Some were ill but were still held in harsh conditions. Ten prisoners of conscience were sentenced to up to 10 years’ imprisonment after unfair trials before the Supreme State Security Court (SSSC) or the Criminal Court. There were fewer reports of torture and ill-treatment, but cases from previous years were not investigated. At least two people died in custody.” (Priest and Gellman 12/26/2002; Amnesty International 2003)

Lt. Col. Stuart Couch.Lt. Col. Stuart Couch. [Source: Wall Street Journal]Mohamedou Ould Slahi, a Mauritanian businessman and alleged liaison between Islamic radicals in Hamburg and Osama bin Laden with foreknowledge of the 9/11 plot (see 1999 and January-April 2000), is arrested in Mauritania by secret police, his family says. By December, he will be in US custody. He will later be housed at a secret CIA facility within Camp Echo at the Guantanamo Bay Naval Station. (Priest and Higham 12/17/2004) In 2007, it will be reported that one of Slahi’s prosecutors, Lt. Col. Stuart Couch, has refused to continue to prosecute Slahi after learning details of Slahi’s tortures at Guantanamo. (Bravin 3/31/2007) The Nation will later report, “Aside from the beatings, waterboarding, stress positions, and sexual degradation that have been the norm at Guantanamo, Slahi was taunted with details of his mother’s incarceration and rape in an elaborate hoax by an officer who claimed to be representing the White House.” While Couch believes Slahi is a high-level al-Qaeda operative, he also believes the much of the evidence against him is not credible because of the methods used to obtain it. (Scheer 4/4/2007)

According to several press reports, the CIA has set up a secret detention and interrogation center (see October 2001-2004) at Bagram Air Base in Afghanistan where US intelligence officers are using aggressive techniques on detainees. The captives—imprisoned in metal shipping containers—are reportedly subjected to a variety of “stress and duress” interrogation tactics. (Priest and Gellman 12/26/2002; van Natta 3/9/2003) The detention facility at Bagram is a rusting hulk originally built by the Soviet Army as an aircraft machine shop around 1979, and later described by the New York Times as “a long, squat, concrete block with rusted metal sheets where the windows had once been.” It is retrofitted with five large wire pens and a half-dozen plywood isolation cells, and is dubbed the Bagram Collection Point, or BCP, a processing center for prisoners captured in Afghanistan and elsewhere. The facility typically holds between 40 to 80 prisoners before they are interrogated and screened for possible transfer to Guantanamo. (Golden 5/20/2005) Detainees are often forced to stand or kneel for hours, wear black hoods or spray-painted goggles for long periods of time, and stand or sit in awkward and painful positions. They are also reportedly thrown into walls, kicked, punched, deprived of sleep, and subjected to flashing lights and loud noises. (Priest and Gellman 12/26/2002; van Natta 3/9/2003; Amnesty International 8/19/2003) Some detainees tell of being “chained to the ceiling, their feet shackled, [and being] unable to move for hours at a time, day and night” (see December 5-9, 2002). (Gall 3/4/2003; Gall and Rohde 9/17/2004) Psychological interrogation methods such as “feigned friendship, respect, [and] cultural sensitivity” are reported to be in use as well. For instance, female officers are said to sometimes conduct the interrogations, a technique described as being “a psychologically jarring experience for men reared in a conservative Muslim culture where women are never in control.” (Priest and Gellman 12/26/2002) Human rights monitors are not permitted to visit the facility. (Priest and Gellman 12/26/2002; Agence France-Presse 12/29/2002) The US claims that the interrogation techniques used at Bagram do not violate international laws. “Our interrogation techniques are adapted,” Gen. Daniel McNeil claims in early March 2003. “They are in accordance with what is generally accepted as interrogation techniques, and if incidental to the due course of this investigation, we find things that need to be changed, we will certainly change them.” (Borger 3/7/2003)

John Yoo, the Justice Department’s (DOJ) Office of Legal Counsel (OLC) deputy assistant attorney general, sends a classified memo to Attorney General John Ashcroft justifying warrantless surveillance of US persons. The National Security Agency (NSA)‘s domestic surveillance authorized by President Bush (see October 4, 2001, Early 2002, and December 15, 2005) will come to be publicly referred to as the President’s Surveillance Program (PSP). This is not the first Yoo memo supporting warrantless surveillance (see September 25, 2001), but a 2009 report on the PSP jointly issued by the inspectors general (IGs) of the Department of Defense (DOD), DOJ, CIA, National Security Agency (NSA), and Office of the Director of National Intelligence (ODNI) will refer to it as “[t]he first OLC opinion directly supporting the legality of the PSP.” The IGs’ report will quote from and comment on the memo, noting that “deficiencies in Yoo’s memorandum identified by his successors in the Office of Legal Counsel and the Office of the Deputy Attorney General later became critical to DOJ’s decision to reassess the legality of the program in 2003.” According to the IGs’ report, Yoo asserts that warrantless surveillance is constitutional as long as it is “reasonable” under the Fourth Amendment, which only protects against “unreasonable searches and siezures.” On this point, the IGs’ report will note that Yoo’s successors were troubled by his failure to discuss the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), which found the president’s wartime authority to be limited. His memo does acknowledge that the Foreign Intelligence Surveillance Act (FISA) “purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence,” but asserts that it is only a “safe harbor for electronic surveillance” because it cannot “restrict the president’s ability to engage in warrantless searches that protect the national security.” Yoo also writes that Congress has not “made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area.” The IGs’ report will state that Yoo’s successors considered this problematic because Yoo has omitted discussion of the fact that FISA explicitly authorizes the president to conduct warrantless surveillance during the first 15 days following a declaration of war by Congress, which they considered an expression of Congress’s intent to restrict warrantless surveillance to a limited period of time and specific circumstances. The IGs’ report will also state that Yoo’s memo discusses “the legal rationale for Other Intelligence Activities authorized as part of the PSP,” and that Yoo concludes, “[W]e do not believe that Congress may restrict the president’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.” The IGs’ report will say that “Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities,” and that Yoo’s successors considered his discussion of these other activities to be “insufficient and presenting a serious impediment to recertification of the program as to form and legality.” (Inspectors General 7/10/2009, pp. pp. 11-13)
Memo's Existence Revealed by ACLU Lawsuit - On December 15, 2005, the New York Times will report that Bush authorized an NSA warrantless domestic surveillance program after the 9/11 attacks (see December 15, 2005). The American Civil Liberties Union (ACLU) will request records pertaining to the program under the Freedom of Information Act (FOIA) and then sue the Justice Department for the release of records. The existence of Yoo’s November 2 memo will first be revealed in an October 19, 2007 deposition filed by then head of the OLC Steven Bradbury in response to the ACLU lawsuit, which says that it “[concerns] the legality of certain communications intelligence activities.” After the 2009 release of the IGs’ report the ACLU will notify the court and the government will agree to reprocess four OLC memos, including Yoo’s November 2 memo. This memo and a May 6, 2004 memo by Yoo’s OLC successor Jack Goldsmith that disputes many of Yoo’s conclusions will be released in heavily redacted form on March 18, 2011. (ACLU.org 2/7/2006; United States District Court of DC 10/19/2007; American Civil Liberties Union 3/19/2011)
Constitutional Experts Dispute Yoo's Legal Rationale - Numerous authorities on the law will question or reject the legal bases for warrantless domestic surveillance. In 2003, Yoo will leave the OLC. Goldsmith will begin a review of the PSP, after which he will conclude it is probably illegal in some respects and protest, within the executive branch, its continuation (see Late 2003-Early 2004 and December 2003-June 2004). Following the public disclosure of its existence, a January 5, 2006 report by the Congressional Research Service will find it to be of dubious legality (see January 5, 2006). On January 19, 2006, the DOJ will issue a 42-page white paper laying out the legal bases for the program (see January 19, 2006). These bases will be reviewed and rejected by 14 constitutional scholars and former government officials in a joint letter to Congress on February 2, 2006. (al [PDF] 2/2/2006 pdf file) The American Bar Association will adopt a resolution on February 13, 2006 that rejects DOJ’s arguments and calls on Congress to investigate the program. (Delegates 2/13/2006 pdf file) On August 17, 2006, in the case ACLU v. NSA, US district judge Anna Diggs Taylor will reject the government’s invocation of the “state secrets privilege” and its argument that plaintiffs’ lack standing due to their being unable to prove they were surveilled, and will rule that warrantless surveillance is in violation of “the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA, and Title III” (see August 17, 2006). Taylor’s ruling will be overturned on appeal, on the grounds that the plaintiffs lack standing as they cannot prove that surveillance has occurred. In another case, Al Haramain v. Barack Obama, the government will make the same arguments, but US district judge Vaughn Walker will reject these and conclude in 2010 that illegal surveillance occurred (see March 31, 2010). (Al-Haramain v. Obama 3/31/2010)

Pakistani forces capture Ibn al-Shaykh al-Libi, a Libyan national, apparently as he is trying to flee Afghanistan. Al-Libi is considered an al-Qaeda leader and head of the Khaldan training camp in Afghanistan for many years. (Priest 6/27/2004) He is the first al-Qaeda figure captured after 9/11 of any importance. He will be transferred to US custody one month later (see December 19, 2001).

At the request of CIA director George Tenet, veteran CIA agents Luis (his full name has not been disclosed) and John Maguire devise a covert plan to overthrow the government of Saddam Hussein. Under the plan, code-named Anabasis, the CIA would send a team of paramilitary CIA officers to recruit disloyal Iraqi officers by offering them large chunks of cash. The CIA would conduct a disinformation campaign aimed at making Hussein believe that there was growing internal dissent. Hussein would become increasingly paranoid and eventually implement a repressive internal security policy, mostly likely involving the executions of suspected disloyal officers. In addition, the plan calls for “direct action operations” (understood to be a euphemism for the assassinations of key regime officials); disrupting the government’s finances and supply networks; and conducting sabotage operations, such as the blowing up of railroads and communications towers. Finally, the plan includes creating a casus belli for an open military confrontation between the US and Iraq. The US would transport a group of exiles to Iraq, where they would take over an Iraqi base close to the Saudi border. When Hussein flies his troops south to handle the insurrection, the US would shoot his aircraft down under the guise of enforcing the US-imposed “no-fly” zone. The confrontation would then be used as a pretext for full-scale war. “The idea was to create an incident in which Saddam lashes out,” Maguire later recalls. If the plan worked the US “would have a premise for war: we’ve been invited in.” Implementing the plan would cost an estimated $400 million. (Isikoff and Corn 2006, pp. 6-9, 154; Borger 9/7/2006) The plan will be canceled at the last minute by Gen. Tommy Franks (see After January 2003).

Yaser Esam Hamdi in Afghanistan shortly after being captured there.Yaser Esam Hamdi in Afghanistan shortly after being captured there. [Source: Virginian Pilot]Yaser Esam Hamdi, who holds dual Saudi and US citizenship, is captured in Afghanistan by the Northern Alliance and handed over to US forces. According to the US government, at the time of his arrest, Hamdi carries a Kalashnikov assault rifle and is traveling with a Taliban military unit. The following month he will be transferred to Guantanamo. In April 2002, it will be discovered he is a US citizen. He will be officially be declared an “enemy combatant” and transferred to a Navy brig in Norfolk, Virginia (see April 2002). (CNN 10/14/2004)

The Observer publishes an article entitled, “Secret US Plan for Iraq War.” It states that the US is planning to remove Saddam Hussein from power by giving armed support to Iraqi opposition forces. It also says that President Bush has ordered the CIA and US military to prepare plans for a military operation that could start “within months.” The plan calls for “a combined operation with US bombers targeting key military installations while US forces assist opposition groups in the north and south of the country in a stage-managed uprising,” and one version of the plan would have US forces fighting on the ground. The trigger for the attack would be Iraq refusing to allow UN inspectors back in. The article notes that justification for a war based on alleged Iraqi links to the 9/11 attacks is fading, but US officials believe they can make a case based on Iraqi possession of WMDs instead. One European military source who recently returned from General Tommy Franks’s headquarters in Florida says: “The Americans are walking on water. They think they can do anything at the moment.” (Beaumont, Vulliamy, and Beaver 12/2/2001) The claim that the US is planning a “stage-managed uprising” will later be borne out. Right around this time, some CIA planners come up with a plan code-named Anabasis to create an uprising in Iraq (see Late November 2001 or December 2001).

CIA officer Richard Blee, who is now chief of the CIA’s station in Kabul, Afghanistan, objects to the FBI interviewing high-ranking al-Qaeda detainee Ibn al-Shaykh al-Libi. The FBI obtained access to al-Libi after he was handed over to the US, and is obtaining some information from him about Zacarias Moussaoui and Richard Reid, who will be prosecuted in the US (see December 19, 2001). However, according to FBI agent Jack Cloonan, “for some reason, the CIA chief of station in Kabul is taking issue with our approach.” (Vest 6/19/2005) CIA Director George Tenet learns of Blee’s complaints and insists that al-Libi be turned over to the CIA (see January-April 2002), which promptly puts him on a plane to Egypt (see January 2002 and After), where he is tortured and makes false statements (see February 2002). Blee was in charge of the CIA’s bin Laden unit on 9/11 and has only recently become chief of its Kabul station. (Berntsen and Pezzullo 2005, pp. 59-60, 297) The FBI, which has long experience interviewing suspects, will continue in its attempts to use rapport-building techniques (see Late March through Early June, 2002), whereas the CIA will employ harsher techniques, despite not having much experience with interviews (see Mid-April 2002).

The CIA leadership informs the two veteran CIA agents working on Anabasis (see Late November 2001 or December 2001), CIA agents Luis (his full name has not been disclosed) and John Maguire, that the plan needs to be ready for implementation by January 2003. Maguire will later recall the message being: “Be ready to turn this thing on by January 2003. Be ready to go in a year. You got a year.” Maguire understands this to mean that the decision to invade Iraq has been made. (Isikoff and Corn 2006, pp. 12)

Siding with the Pentagon and Justice Department against the State Department, President Bush declares the Geneva Conventions invalid with regard to conflicts with al-Qaeda and the Taliban. Secretary of State Colin Powell urges Bush to reconsider, saying that while Geneva does not apply to al-Qaeda terrorists, making such a decision for the Taliban—the putative government of Afghanistan—is a different matter. Such a decision could put US troops at risk. Both Defense Secretary Donald Rumsfeld and Joint Chiefs chairman General Richard B. Myers support Powell’s position. Yet another voice carries more weight with Bush: John Yoo, a deputy in the Justice Department’s Office of Legal Counsel (OLC—see October 23, 2001). Yoo says that Afghanistan is a “failed state” without a functional government, and Taliban fighters are not members of an army as such, but members of a “militant, terrorist-like group” (see January 9, 2002). White House counsel Alberto Gonzales agrees with Yoo in a January 25 memo, calling Yoo’s opinion “definitive.” The Gonzales memo concludes that the “new kind of war” Bush wants to fight should not be equated with Geneva’s “quaint” privileges granted to prisoners of war, or the “strict limitations” they impose on interrogations (see January 25, 2002). Military lawyers dispute the idea that Geneva limits interrogations to recitals of name, rank, and serial number, but their objections are ignored. For an OLC lawyer to override the judgment of senior Cabinet officials is unprecedented. OLC lawyers usually render opinions on questions that have already been deliberated by the legal staffs of the agencies involved. But, perhaps because OLC lawyers like Yoo give Bush the legal opinions he wants, Bush grants that agency the first and last say in matters such as these. “OLC was definitely running the show legally, and John Yoo in particular,” a former Pentagon lawyer will recall. “Even though he was quite young, he exercised disproportionate authority because of his personality and his strong opinions.” Yoo is also very close to senior officials in the office of the vice president and in the Pentagon’s legal office. (Golden 10/24/2004)
Undermining, Cutting out Top Advisers - Cheney deliberately cuts out the president’s national security counsel, John Bellinger, because, as the Washington Post will later report, Cheney’s top adviser, David Addington, holds Bellinger in “open contempt” and does not trust him to adequately push for expanded presidential authority (see January 18-25, 2002). Cheney and his office will also move to exclude Secretary of State Colin Powell from the decision-making process, and, when the media learns of the decision, will manage to shift some of the blame onto Powell (see January 25, 2002). (Gellman and Becker 6/24/2007)
Final Decision - Bush will make his formal final declaration three weeks later (see February 7, 2002).

David Addington, the chief counsel for Vice President Cheney, writes that the Geneva Conventions’ “strict limits on questioning of enemy prisoners” cripple US efforts “to quickly obtain information from captured terrorists” (see January 18-25, 2002). Cheney is now grappling with the fundamental concept of how much pain and suffering US personnel can inflict on an enemy to make him divulge information. Addington worries that US personnel, including perhaps even Cheney, might someday face criminal charges of torture and abuse of prisoners. Geneva forbids not only torture but the use of “violence,” “cruel treatment” or “humiliating and degrading treatment” against a detainee “at any time and in any place whatsoever.” Such actions constitute felonies under the 1996 War Crimes Act. Addington decides that the best defense for any such charge will combine a broad presidential directive mandating general humane treatment for detainees, and an assertion of unrestricted authority to make exceptions. Bush will issue such a directive, which uses Addington’s words verbatim, two weeks later (see February 7, 2002). (Gellman and Becker 6/25/2007)

The White House declares that the United States will apply the Geneva Conventions to the conflict in Afghanistan, but will not grant prisoner-of-war status to captured Taliban and al-Qaeda fighters. Though Afghanistan was party to the 1949 treaty, Taliban fighters are not protected by the Conventions, the directive states, because the Taliban is not recognized by the US as Afghanistan’s legitimate government. Likewise, al-Qaeda fighters are not eligible to be protected under the treaty’s provisions because they do not represent a state that is party to the Conventions either.
Administration Will Treat Detainees Humanely 'Consistent' with Geneva - In the memo, President Bush writes that even though al-Qaeda detainees do not qualify as prisoners of war under Geneva, “as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The presidential directive is apparently based on Alberto Gonzales’s January 25 memo (see January 25, 2002) and a memo from Vice President Cheney’s chief of staff, David Addington (see January 25, 2002).
Bush Chooses Not to Suspend Geneva between US and Afghanistan - The directive also concludes that Bush, as commander in chief of the United States, has the authority to suspend the Geneva Conventions regarding the conflict in Afghanistan, should he feel necessary: Bush writes, “I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.” Though not scheduled for declassification until 2012, the directive will be released by the White House in June 2004 to demonstrate that the president never authorized torture against detainees from the wars in Afghanistan and Iraq. (George W. Bush 2/7/2002 pdf file; CNN 2/7/2002; Barry, Hirsh, and Isikoff 5/24/2004; Cohn 1/19/2005; Dubose and Bernstein 2006, pp. 191)
Overriding State Department Objections - Bush apparently ignores or overrides objections from the State Department, including Secretary of State Colin Powell (see January 25, 2002) and the department’s chief legal counsel, William Howard Taft IV (see January 25, 2002). Both Powell and Taft strenuously objected to the new policy. (Savage 2007, pp. 147)
Ignoring Promises of Humane Treatment - The reality will be somewhat different. Gonzales laid out the arguments for and against complying with Geneva in an earlier memo (see January 18-25, 2002), and argued that if the administration dispensed with Geneva, no one could later be charged with war crimes. Yet, according to Colin Powell’s chief of staff, Lawrence Wilkerson, sometime after the Bush memo is issued, Vice President Cheney and Defense Secretary Rumsfeld decide to ignore the portions promising humane treatment for prisoners. “In going back and looking at the deliberations,” Wilkerson later recalls, “it was clear to me that what the president had decided was one thing and what was implemented was quite another thing.” (Dubose and Bernstein 2006, pp. 190-191)

FBI translator Sibel Edmonds submits a confidential memo (see Between February 1, 2002 and February 11, 2002) alleging that co-translator Melek Can Dickerson shielded Turkish officials from an FBI investigation by failing to translate important wiretapped conversations. Edmonds’ supervisor, Stephanie Bryan, passes the memo onto supervisory special agent Tom Frields. But Frields says he will not look at the memo until after Dickerson and supervisor Mike Feghali have reviewed and commented on it. Shortly after submitting the memo, Edmonds is informed that she is being investigated by the bureau’s security department because she wrote the memo on a home computer, even though she had received explicit permission to do so (see Between February 1, 2002 and February 11, 2002). Before leaving the office, Dickerson allegedly comes over to her and says, “Why are you doing this, Sibel? Why don’t you just drop it? You know there could be serious consequences. Why put your family in Turkey in danger over this?” (Sheehy 1/22/2004; Rose 9/2005) The following day, three FBI agents come to the home of Sibel and Matthew Edmonds and seize their computer. (Bridis 1/14/2005; Rose 9/2005)

Bush signs an intelligence finding directing the CIA to conduct some of the operations that have been proposed in the Anabasis plan devised by veteran CIA agents Luis (full-name not disclosed) and John Maguire (see Late November 2001 or December 2001). The plan called for conducting covert operations within Iraq as part of a larger effort to overthrow Hussein’s government. (Hamilton 4/17/2004; Isikoff and Corn 2006, pp. 9 Sources: Top officials interviewed by Washington Post editor Bob Woodward)

The Washington Post reveals that the US government has secretly transported “dozens of people” suspected of links to terrorists to foreign countries with poor human rights records “where they can be subjected to interrogation tactics—including torture and threats to families—that are illegal in the United States.” The program is known as “rendition” (see 1993) (see After September 11, 2001). (Chandrasekaran and Finn 3/11/2002)

The house in Faisalabad, Pakistan, where Abu Zubaida is arrested.The house in Faisalabad, Pakistan, where Abu Zubaida is arrested. [Source: New York Times]Al-Qaeda leader Abu Zubaida is captured in Faisalabad, Pakistan. He is the first al-Qaeda leader considered highly important to be captured or killed after 9/11.
Zubaida Injured during Raid - A joint team from the FBI, the CIA, and the ISI, Pakistan’s intelligence agency, raids the house where Zubaida is staying. Around 3 a.m., the team breaks into the house. Zubaida and three others wake up and rush to the rooftop. Zubaida and the others jump to a neighbor’s roof where they are grabbed by local police who are providing back-up for the capture operation. One of Zubaida’s associates manages to grab a gun from one of the police and starts firing it. A shoot-out ensues. The associate is killed, several police are wounded, and Zubaida is shot three times, in the leg, stomach, and groin. He survives. About a dozen other suspected al-Qaeda operatives are captured in the house, and more are captured in other raids that take place nearby at the same time. (Burns 4/14/2002; Suskind 2006, pp. 84-89) US intelligence had slowly been closing in on Zubaida’s location for weeks, but accounts differ as to exactly how he was found (see February-March 28, 2002). He had surgically altered his appearance and was using an alias, so it takes a few days to completely confirm his identity. (Johnston 9/10/2006)
Link to Pakistani Militant Group - A later US State Department report will mention that the building Zubaida is captured in is actually a Lashkar-e-Toiba safehouse. Lashkar-e-Toiba is a Pakistani militant group with many links to al-Qaeda, and it appears to have played a key role in helping al-Qaeda operatives escape US forces in Afghanistan and find refuge in Pakistan (see Late 2001-Early 2002). (US Department of State 4/30/2008)
Rendition - Not long after his arrest, Zubaida is interrogated by a CIA agent while he is recovering in a local hospital (see Shortly After March 28, 2002). He then is rendered to a secret CIA prison, where he is interrogated and tortured (see Mid-May 2002 and After). Throughout his detention, members of the National Security Council and other senior Bush administration officials are briefed about Zubaida’s captivity and treatment. (Senate Intelligence Committee 4/22/2009 pdf file)
Is Zubaida a High-Ranking Al-Qaeda Leader? - Shortly after the arrest, the New York Times reports that “Zubaida is believed by American intelligence to be the operations director for al-Qaeda and the highest-ranking figure of that group to be captured since the Sept. 11 attacks.” (Burns 4/14/2002) But it will later come out that while Zubaida was an important radical Islamist, his importance was probably overstated (see Shortly After March 28, 2002).
Tortured While in US Custody - Once Zubaida has sufficiently recovered from his injuries, he is taken to a secret CIA prison in Thailand for more interrogation. (Burke 6/13/2004; Danner 3/15/2009) One unnamed CIA official will later say: “He received the finest medical attention on the planet. We got him in very good health, so we could start to torture him.” (Suskind 2006, pp. 94-96, 100) Defense Secretary Donald Rumsfeld publicly vows that Zubaida will not be tortured, but it will later come out that he was (see Mid-May 2002 and After and April - June 2002). (Burns 4/14/2002)

FBI senior interrogator and al-Qaeda expert Ali Soufan, in conjunction with FBI agent Steve Gaudin, interrogate suspected al-Qaeda operative Abu Zubaida (see March 28, 2002) using traditional non-coercive interrogation methods, while Zubaida is under guard in a secret CIA prison in Thailand. A CIA interrogation team is expected but has not yet arrived, so Soufan and Gaudin who have been nursing his wounds are initially leading his questioning using its typical rapport-building techniques. “We kept him alive,” Soufan will later recall. “It wasn’t easy, he couldn’t drink, he had a fever. I was holding ice to his lips.” At the beginning, Zubaida denies even his identity, calling himself “Daoud;” Soufan, who has pored over the FBI’s files on Zubaida, stuns him by calling him “Hani,” the nickname his mother called him. Soufan and Gaudin, with CIA officials present, elicit what he will later call “important actionable intelligence” from Zubaida. To help get him to talk, the agents bring in a box of audiotapes and claim they contain recordings of his phone conversations. He begins to confess.
Zubaida Reveals KSM Is 9/11 Mastermind - Zubaida tells Soufan that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks, and confirms that Mohammed’s alias is “Mukhtar,” a vital fact US intelligence discovered shortly before 9/11 (see August 28, 2001). Soufan shows Zubaida a sheaf of pictures of terror suspects; Zubaida points at Mohammed’s photo and says, “That’s Mukhtar… the one behind 9/11” (see April 2002). Zubaida also tells Soufan about American al-Qaeda operative Jose Padilla (see March 2002 and Mid-April 2002). In 2009, Soufan will write of his interrogations of Zubaida (see April 22, 2009): “This experience fit what I had found throughout my counterterrorism career: traditional interrogation techniques are successful in identifying operatives, uncovering plots and saving lives.” When the CIA begins subjecting Zubaida to “enhanced interrogation tactics” (see Mid-April 2002), Soufan will note that they learn nothing from using those tactics “that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions… The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process.” (Eban 7/17/2007; Mayer 2008, pp. 155; Soufan 4/22/2009; Isikoff 4/25/2009)
Standing Up to the CIA - The CIA interrogation team members, which includes several private contractors, want to begin using “harsh interrogation tactics” on Zubaida almost as soon as they arrive. The techniques they have in mind include nakedness, exposure to freezing temperatures, and loud music. Soufan objects. He yells at one contractor (whom other sources will later identify as psychologist James Mitchell—see Late 2001-Mid-March 2002, January 2002 and After and Between Mid-April and Mid-May 2002), telling him that what he is doing is wrong, ineffective, and an offense to American values. “I asked [the contractor] if he’d ever interrogated anyone, and he said no,” Soufan will later say. But, Mitchell retorts that his inexperience does not matter. “Science is science,” he says. “This is a behavioral issue.” Instead, Mitchell says, Soufan is the inexperienced one. As Soufan will later recall, “He told me he’s a psychologist and he knows how the human mind works.” During the interrogation process, Soufan finds a dark wooden “confinement box” that the contractor has built for Zubaida. Soufan will later recall that it looked “like a coffin.” (Other sources later say that Mitchell had the box constructed for a “mock burial.”) An enraged Soufan calls Pasquale D’Amuro, the FBI assistant director for counterterrorism. “I swear to God,” he shouts, “I’m going to arrest these guys!” Soufan challenges one CIA official over the agency’s legal authority to torture Zubaida, saying, “We’re the United States of America, and we don’t do that kind of thing.” But the official counters with the assertion that the agency has received approval from the “highest levels” in Washington to use such techniques. The official even shows Soufan a document that the official claims was approved by White House counsel Alberto Gonzales. It is unclear what document the official is referring to.
Ordered Home - In Washington, D’Amuro is disturbed by Soufan’s reports, and tells FBI director Robert Mueller, “Someday, people are going to be sitting in front of green felt tables having to testify about all of this.” Mueller orders Soufan and then Gaudin to return to the US, and later forbids the FBI from taking part in CIA interrogations (see May 13, 2004). (Johnston 9/10/2006; Isikoff 4/25/2009)
Disputed Claims of Effectiveness - The New York Times will later note that officials aligned with the FBI tend to think the FBI’s techniques were effective while officials aligned with the CIA tend to think the CIA’s techniques were more effective. (Johnston 9/10/2006) In 2007, former CIA officer John Kiriakou will make the opposite claim, that FBI techniques were slow and ineffective and CIA techniques were immediately effective. However, Kiriakou led the team that captured Zubaida in Pakistan and does not appear to have traveled with him to Thailand (see December 10, 2007). (Esposito and Ross 12/10/2007; Kiriakou 12/10/2007 pdf file)
Press Investigation Finds that FBI Interrogations Effective - In 2007, Vanity Fair will conclude a 10 month investigation comprising 70 interviews, and conclude that the FBI techniques were effective. The writers will later note, “America learned the truth of how 9/11 was organized because a detainee had come to trust his captors after they treated him humanely.” CIA Director George Tenet reportedly is infuriated that the FBI and not the CIA obtained the information and he demands that the CIA team get there immediately. But once the CIA team arrives, they immediately put a stop to the rapport building techniques and instead begin implementing a controversial “psychic demolition” using legally questionable interrogation techniques. Zubaida immediately stops cooperating (see Mid-April 2002). (Eban 7/17/2007)

In the days following the capture of al-Qaeda operative Abu Zubaida (see March 28, 2002), a group of top White House officials, the National Security Council’s Principals Committee, begins a series of meetings that result in the authorization of specific torture methods against Zubaida and other detainees. The top secret talks and meetings eventually approve such methods to be used by CIA agents against high-value terrorism suspects. The US media will not learn of this until six years later (see April 9, 2008). The Principals Committee meetings are chaired by National Security Adviser Condoleezza Rice, and attendees include Vice President Dick Cheney, CIA Director George Tenet, Secretary of Defense Donald Rumsfeld, Secretary of State Colin Powell, and Attorney General John Ashcroft. Tenet’s successor, Porter Goss, will also participate in the meetings. Sometimes deputies attend in place of their superiors. Rice’s group not only discusses and approves specific “harsh” methods of interrogation, but also approves the use of “combined” interrogation techniques on suspects who prove recalcitrant. The approved techniques include slapping and shoving prisoners, sleep deprivation, and waterboarding, or simulated drowning, a technique banned for decades by the US military. Some of the discussions of the interrogation sessions are so detailed that the Principals Committee virtually choreographs the sessions down to the number of times CIA agents can use specific tactics. (Greenburg, Rosenberg, and de Vogue 4/9/2008; Jordan and Hess 4/10/2008; Greenburg, Rosenberg, and de Vogue 4/11/2008) The Principals Committee also ensures that President Bush is not involved in the meetings, thereby granting him “deniability” over the decisions, though Bush will eventually admit to being aware of the decisions (see April 11, 2008). The Principals Committee, particularly Cheney, is described by a senior intelligence official as “deeply immersed” in the specifics of the decisions, often viewing demonstrations of how specific tactics work. (Jordan and Hess 4/10/2008)
Imminent Threat Calls for Extreme Measures - The move towards using harsh and likely illegal interrogation tactics begins shortly after the capture of Zubaida in late March 2002 (see Late March through Early June, 2002 and March 28, 2002). Zubaida is seen as a potentially critical source of information about potential attacks similar to 9/11. He is kept in a secret CIA prison where he recovers from the wounds suffered during his capture, and where he is repeatedly questioned. However, he is allegedly uncooperative with his inquisitors, and CIA officials want to use more physical and aggressive techniques to force him to talk (see March 28, 2002-Mid-2004 and April - June 2002). The CIA briefs the Principals Committee, chaired by Rice, and the committee signs off on the agency’s plan to use more extreme interrogation methods on Zubaida. After Zubaida is waterboarded (see April - June 2002), CIA officials tell the White House that he provided information leading to the capture of two other high-level al-Qaeda operatives, Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003) and Ramzi bin al-Shibh (see Late 2002 and May 2002-2003). The committee approves of waterboarding as well as a number of “combined” interrogation methods, basically a combination of harsh techniques to use against recalcitrant prisoners.
The 'Golden Shield' - The committee asks the Justice Department to determine whether using such methods would violate domestic or international laws. “No one at the agency wanted to operate under a notion of winks and nods and assumptions that everyone understood what was being talked about,” a second senior intelligence official will recall in 2008. “People wanted to be assured that everything that was conducted was understood and approved by the folks in the chain of command.” In August 2002, Justice Department lawyers in the Office of Legal Counsel will write a memo that gives formal legal authority to government interrogators to use harsh, abusive methods on detainees (see August 1, 2002). The memo is called the “Golden Shield” for CIA agents who worry that they could be held criminally liable if the harsh, perhaps tortuous interrogations ever become public knowledge. CIA veterans remember how everything from the Vietnam-era “Phoenix Program” of assassinations to the Iran-Contra arms sales of the 1980s were portrayed as actions of a “rogue,” “out-of-control” CIA; this time, they intend to ensure that the White House and not the agency is given ultimate responsibility for authorizing extreme techniques against terror suspects. Tenet demands White House approval for the use of the methods, even after the Justice Department issues its so-called “Golden Shield” memo explicitly authorizing government interrogators to torture suspected terrorists (see August 1, 2002). Press sources will reveal that Tenet, and later Goss, convey requests for specific techniques to be used against detainees to the committee (see Summer 2003). One high-ranking official will recall: “It kept coming up. CIA wanted us to sign off on each one every time. They’d say: ‘We’ve got so and so. This is the plan.’” The committee approves every request. One source will say of the discussions: “These discussions weren’t adding value. Once you make a policy decision to go beyond what you used to do and conclude it’s legal, [you should] just tell them to implement it.” (Greenburg, Rosenberg, and de Vogue 4/9/2008; Jordan and Hess 4/10/2008; Greenburg, Rosenberg, and de Vogue 4/11/2008) In April 2008, law professor Jonathan Turley will say: “[H]ere you have the CIA, which is basically saying, ‘We’re not going to have a repeat of the 1970s, where you guys have us go exploding cigars and trying to take out leaders and then you say you didn’t know about it.’ So the CIA has learned a lot. So these meetings certainly cover them in that respect.” (MSNBC 4/10/2008) A former senior intelligence official will say, “If you looked at the timing of the meetings and the memos you’d see a correlation.” Those who attended the dozens of meetings decided “there’d need to be a legal opinion on the legality of these tactics” before using them on detainees. (Jordan and Hess 4/10/2008)
Ashcroft Uneasy at White House Involvement - Ashcroft in particular is uncomfortable with the discussions of harsh interrogation methods that sometimes cross the line into torture, though his objections seem more focused on White House involvement than on any moral, ethical, or legal problems. After one meeting, Ashcroft reportedly asks: “Why are we talking about this in the White House? History will not judge this kindly.” However, others in the discussions, particularly Rice, continue to support the torture program. Even after Jack Goldsmith, the chief of the Justice Department’s Office of Legal Counsel (OLC), withdraws the “Golden Shield” memo and after Powell begins arguing that the torture program is harming the image of the US abroad, when CIA officials ask to continue using particular torture techniques, Rice responds: “This is your baby. Go do it.”
Reaction after Press Learns of Meetings - After the press learns of the meetings (see April 9, 2008), the only person involved who will comment will be Powell, who will say through an assistant that there were “hundreds of [Principals Committee] meetings” on a wide variety of topics and that he is “not at liberty to discuss private meetings.” (Greenburg, Rosenberg, and de Vogue 4/9/2008; Jordan and Hess 4/10/2008; Greenburg, Rosenberg, and de Vogue 4/11/2008)

Binyam Mohamed, a young British Muslim detained by Pakistani authorities while attempting to fly to London (see September 2001 - April 9, 2002), remains in Pakistani custody for two weeks before he is interrogated by an American FBI agent calling himself “Chuck.”
Denied Lawyer - Mohamed asks for a lawyer and Chuck replies, according to Mohamed: “The law’s changed. There are no lawyers. Either you’re going to answer me the easy way or I get the information I need another way.” Like other American intelligence and law enforcement agents, Chuck wants information about possible radioactive bombs or weapons in the hands of Islamist militants. “Every interrogator would ask questions about it,” a former CIA officer will later say.
Spoof Website - Mohamed unwittingly sets off alarms when he mentions having seen a spoof website with instructions on how to build a nuclear device—the instructions say that one can refine bomb-grade uranium by whirling a bucket around one’s head. In 2009, Mohamed will recall: “I mentioned the website to Chuck. It was obviously a joke: it never crossed my mind that anyone would take it seriously. But that’s when he started getting all excited.” Chuck begins accusing Mohamed of being in league with Osama bin Laden to construct a nuclear weapon: “Towards the end of April he began telling me about this A-bomb I was supposed to be building, and he started on about Osama bin Laden and his top lieutenants, showing me pictures and making out I must have known them.”
Harsh Methods - “He started asking me about operations and what type I had been trained for,” Mohamed will add. It is during this time that Mohamed is subjected to harsh, abusive interrogation methods: “For at least 10 days I was deprived of sleep. Sometimes the Pakistanis chained me from the top of the gate to the cell by my wrists from the end of one interrogation to the start of the next for about 22 hours. If I shouted, sometimes I would be allowed to use a toilet. Other times, they wouldn’t let me go and I would p_ss myself. They had a thick wooden stick, like a kind of paddle, which they used to beat me while I was chained. They’d beat me for a few minutes, then stop, then start again. They also carried out a mock execution. A guard put a gun to my head and said he was going to pull the trigger. They were saying, ‘This is what the Americans want us to do.’” (Rose 3/8/2009)

Not long after being captured, al-Qaeda leader Abu Zubaida identifies Jose Padilla as an al-Qaeda operative to his FBI interrogators (see Late March through Early June, 2002). Padilla is a US citizen, and US intelligence has been monitoring him and some of his associates in Florida for nearly a decade already (see (October 1993-November 2001)). However, the New York Times will allege in 2006: “But Mr. Zubaida dismissed Mr. Padilla as a maladroit extremist whose hope to construct a dirty bomb, using conventional explosives to disperse radioactive materials, was far-fetched. He told his questioners that Mr. Padilla was ignorant on the subject of nuclear physics and believed he could separate plutonium from nuclear material by rapidly swinging over his head a bucket filled with fissionable material” (see Early 2002). (Johnston 9/10/2006) The US arrests Padilla a short time later, when he returns to the US from an overseas trip on May 8 (see May 8, 2002). One month later, Attorney General John Ashcroft will reveal Padilla’s arrest in a widely publicized announcement, and will further allege that Padilla was actively plotting to detonate a radioactive “dirty bomb” inside the US (see June 10, 2002). However, it appears Zubaida may have been correct that Padilla was wildly overhyped. The US will later drop charges that Padilla was making a “dirty bomb,” planning any attack in the US, and was a member of al-Qaeda. (McCaffrey 11/23/2005) Journalist Ron Suskind will comment in 2006, “Padilla turned out to not be nearly as valuable as advertised at the start, though, and I think that’s been shown in the ensuing years.” (Suskind 9/7/2006)

This picture of US soldiers supervising the waterboarding of North Vietnamese prisoners was published in a US newspaper in 1968, resulting in an investigation and convictions.This picture of US soldiers supervising the waterboarding of North Vietnamese prisoners was published in a US newspaper in 1968, resulting in an investigation and convictions. [Source: Bettmann / Corbis]In 2007, it will be reported that the CIA used the controversial interrogation technique of waterboarding on at least three detainees. The Associated Press will claim the detainees are:
bullet Abu Zubaida, who is captured in March 2002 and tortured around May 2002 (see March 28, 2002 and Mid-May 2002 and After).
bullet Abd al-Rahim al-Nashiri, who is captured in November 2002 (see Early October 2002 and (November 2002)).
bullet Khalid Shaikh Mohammed (KSM), who is allegedly captured in early 2003 (see February 29 or March 1, 2003 and Shortly After February 29 or March 1, 2003). (Hess 12/11/2007)
bullet NBC News will report a list of three that includes Hambali, who is captured in August 2003 (see August 12, 2003 and Shortly After August 12, 2003). NBC’s list also mentions KSM and Zubaida, but does not mention al-Nashiri. (Windrem 9/13/2007) In a 2007 book, former CIA Director George Tenet will hint that slightly more than three may have been waterboarded, writing, “The most aggressive interrogation techniques conducted by CIA personnel were applied to only a handful of the worst terrorists on the planet, including people who had planned the 9/11 attacks…” (Tenet 2007, pp. 242) ABC News will claim in September 2007, “It is believed that waterboarding was used on fewer than five ‘high-value’ terrorist subjects…” (Ross, Esposito, and Raddatz 9/14/2007) Prior to 2002, waterboarding was classified by the US government as a form of torture, and treated as a serious criminal offense. US soldiers were court-martialled for waterboarding captives as recently as the Vietnam War. The technique is said to simulate death by drowning. (Mayer 8/6/2007) In the 1600s, King James I of England wrote about the torture his government was using and stated that waterboarding was the most extreme form of torture used, worse than the rack and thumbscrews. (Horton 12/15/2007) In 2007, it will be revealed that at least some of the interrogations of Zubaida and al-Nashiri were videotaped, and it is suspected by some that their waterboarding may have been taped (see Spring-Late 2002). These tapes will later be destroyed under controversial circumstances (see November 2005). A government official will later claim that waterboarding is no longer used after 2003. The CIA and US military will prohibit the use of waterboarding in 2006. (Hess 12/11/2007)

A British MI5 officer calling himself “John” visits Muslim terror suspect Binyam Mohamed while Mohamed is in Pakistani custody (see April 10-May, 2002). Mohamed has already been extensively interrogated by Americans and tortured by his Pakistani captors. John, whom later court documents show is fully aware of what has been done to Mohamed, is accompanied by another man, whom Mohamed believes is either British or American. The American interrogators have already threatened to “rendition” Mohamed “somewhere where I would be tortured far worse, like Jordan or Egypt,” he will later recall. “I was given a cup of tea and asked for one sugar. The other guy told me, ‘You’ll need more than one sugar where you’re going.’” The interrogation centers on Mohamed’s knowledge of nuclear devices that Islamist militants might have, and he is asked for more details about the “spoof” Web site he had earlier mentioned. “They asked me about the A-bomb website and I told them it was a joke,” he says. “They wanted to know everything about my life in the UK and I gave them all the information I had. Later I realized that was part of my undoing: I told them the area I lived in had 10,000 Moroccans and was known as Little Morocco. The feedback I got later from the Americans was that because the Brits told them I had lived in a Moroccan area, they thought Moroccans would be more likely to make me talk. At the same time, they thought I must know something about what Moroccans were up to in London.” It is at this time that his American and British interrogators begin threatening to send him to Morocco to be interrogated and tortured. MI5 concludes, according to its own documents later revealed in court, that Mohamed and another prisoner are both “lying to protect themselves” and “evidently holding back.” It is during this period that MI5 begins supplying the Americans with questions and information to use during interrogation (see February 24, 2009). “John told me that if I cooperated he’d tell the Americans to be more lenient with my treatment,” Mohamed will later recall. In a confidential memo written by John to his superiors, the British agent writes: “I told Mohammed [sic] that he had an opportunity to help us and help himself. The US authorities will be deciding what to do with him and this would depend to a very large degree on his cooperation—I said that I could not and would not negotiate up front, but if he persuaded me he was cooperating fully then (and only then) I would explore what could be done for him with my US colleagues.… While he appeared happy to answer any questions, he was holding back a great deal of information on who and what he knew in the UK and in Afghanistan.” In July, Mohamed will be flown to Rabat, Morocco (see July 21, 2002 -- January 2004). (Rose 3/8/2009)

The CIA begins bringing exiled Iraqi fighters into the US to begin training for the Anabasis project (see Late November 2001 or December 2001). Some of the Iraqis are flown in on secret flights using the same planes that are involved in the CIA’s extraordinary renditions (see After September 11, 2001) Other exiles enter the US with CIA-provided passports. (Isikoff and Corn 2006, pp. 155)

In a successful attempt to “steal” some media coverage from FBI agent Coleen Rowley’s testimony and concurrent media blitz (see June 6, 2002), the Bush administration counters with a public relations event of its own. The same day that Rowley testifies, President Bush announces the proposed creation of the new, Cabinet-level Department of Homeland Security (DHS)—an agency proposed by Democrats and, up till now, one that Bush has vehemently opposed, preferring instead to make any such agency a subsidiary office within the White House. It will be the largest reorganization of the government since the implementation of the 1947 National Security Act, when the Defense Department, National Security Council (NSC), and CIA were created. To ensure that Rowley’s testimony does not dominate the headlines, Bush also gives an evening speech on prime-time television, again announcing the new department. In that speech, Bush calls the DHS the latest effort in the US’s “titanic struggle against terror.” In 2006, author and media critic Frank Rich will write that the announcement and speech “assur[e] that Rowley’s whistle-blowing would be knocked out of the lead position on the next day’s morning shows and newspapers.” DHS will not be officially activated for almost six months (see November 25, 2002), but the announcement and subsequent speech succeeds in driving Rowley’s testimony off the front pages and the television broadcasts. Rich will write that the announcement of the capture of alleged “dirty bomber” Jose Padilla (see June 10, 2002) four days later, even though Padilla had been in custody since May 8 (see May 8, 2002), further drives any mention or analysis of Rowley’s testimony out of the news. (Bush 6/6/2002; CNN 6/7/2002; Rich 2006, pp. 49-50)

Jose Padilla.
Jose Padilla. [Source: Florida Department of Motor Vehicles]Attorney General John Ashcroft announces the arrest of Abdullah al-Mujahir, a.k.a. Jose Padilla. He claims that Padilla was part of an al-Qaeda plot to detonate a radioactive “dirty bomb” in a US city, and supposedly Padilla was scouting bomb targets when arrested. Padilla, a US citizen, is being held as an “enemy combatant,” allowing him to be held indefinitely. (Borger 6/11/2002; PBS 6/11/2002) But almost immediately, doubts grow about this story. The London Times says that it is “beyond dispute” that the timing of the announcement of his arrest was “politically inspired.” Padilla was actually arrested a month earlier, on May 8. (Maddox 6/13/2002) It is widely believed that Ashcroft made the arrest announcement “only to divert attention from Intelligence Committee inquiries into the FBI and CIA handling of 9/11.” (Ridgeway 6/12/2002; Sengupta and Buncombe 6/12/2002; van Wel 6/13/2002; Pincus 6/13/2003) Four days earlier, Coleen Rowley testified before Congress. The FBI whistleblower stated her belief that the attacks of Sept. 11 could have been prevented had the FBI flight-school warnings been made available to the agents investigating Zacharias Moussaoui. (Dreyfuss 9/21/2006 pdf file) Bush soon privately chastises Ashcroft for overstating claims about Padilla. (Burkeman 8/15/2002) The government attorneys apparently could not get an indictment out of a New York grand jury and, rather than let him go, made Padilla an enemy combatant. (Ridgeway 6/12/2002) It later comes out that the FBI found no evidence that he was preparing a dirty bomb attack and little evidence to suggest he had any support from al-Qaeda, or any ties to al-Qaeda cells in the US. Yet the Justice Department maintains that its view of Padilla “remains unchanged,” and that he is a “serious and continuing threat.” (Burkeman 8/15/2002) Because Padilla is a US citizen, he cannot be tried in a military court. So apparently he will simply be held indefinitely. It is pointed out that any American could be declared an enemy combatant and never tried or have that status questioned. (Epstein 6/11/2002; Washington Post 6/11/2002) The Washington Post says, “If that’s the case, nobody’s constitutional rights are safe.” (Washington Post 6/11/2002) Despite the evidence that Padilla’s case is grossly overstated, the government won’t allow him access to a lawyer (see December 4, 2002; March 11, 2003).

Donna R. Newman, attorney for “enemy combatant” Jose Padilla (see June 10, 2002), files a habeas corpus petition in the District Court for the Southern District of New York. Newman informs the court that she has been told by the government that she is not permitted to visit Padilla or to speak with him. She may write, but he might not receive the correspondence, she says. (Jose Padilla v. George W. Bush et al. 12/4/2002 pdf file)

In a court brief in the detention case of Yaser Esam Hamdi (see December 2001), the Bush Justice Department argues against a judge’s decision that Hamdi, a US citizen, must be allowed representation by a lawyer (see June 11, 2002). Though that right is a fundamental precept of American jurisprudence, the Justice Department argues that to allow Hamdi to have access to a lawyer—indeed, to have any contact with the outside world—would interfere with his interrogation. Moreover, only the president and his officials can decide who is and who is not a terrorist, so the courts have no right to demand access to evidence and Hamdi has no need for a lawyer. “The courts may not second-guess the military’s enemy combatant determination,” the Bush lawyers argue. “Going beyond that determination would require the courts to enter an area in which they have no competence, much less institutional expertise, [and] intrude upon the constitutional prerogative of the commander in chief (and military authorities acting under his control).” The appeals court will rule in favor of the Bush administration’s argument, deny Hamdi access to a lawyer, and instruct the lower courts to be far more deferential to the president’s power as commander in chief in future cases (see July 12, 2002). (UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 6/12/2002 pdf file; Savage 2007, pp. 152-153)

In a lengthy unclassified hearing held by the Senate Judiciary Committee, FBI officials confirm translator Sibel Edmond’s allegations that co-worker Melek Can Dickerson had either mistranslated or incorrectly marked “not pertinent” hundreds of wiretapped telephone conversations involving certain surveillance targets with whom she had become friends (see (November 2001)). They also acknowledge that she had attempted to take control over all translation assignments involving those targets (see November 2001 or December 2001). The targets worked at the American-Turkish Council (ATC), where Dickerson was an intern before taking her job at the FBI. The FBI confirms also that Dickerson had failed to disclose this information on her application (see also (Late October 2001)), but nonetheless attributes her failure to translate these wiretaps to lack of training. (Leahy and Grassley 6/19/2002; Grimaldi 6/19/2002; Waterman 1/24/2005; Rose 9/2005) One of the participants of the hearing will later tell the New York Observer that the session was tense. “None of the FBI officials’ answers washed, and they could tell we didn’t believe them.” He remembers that one of the Congressional investigators told the officials, “You basically admitted almost all that Sibel alleged, yet you say there’s no problem here. What’s wrong with this picture?” (Sheehy 1/22/2004)

Jose Padilla (see June 10, 2002)‘s public prosecutors file a document with the District Court for the Southern District in Lower Manhattan, which says Padilla had been declared an “enemy combatant” on grounds that “Citizens who associate themselves with the enemy and with its aid, guidance, and direction, enter this country bent on hostile acts, are enemy belligerents.” (CNN 6/27/2002)

Terror suspect Binyam Mohamed (see May-September, 2001) is flown from Pakistan to Morocco as part of a joint British-American attempt to force him to divulge information about possible nuclear devices owned by Islamist militants (see May 17 - July 21, 2002). He is flown—trussed, gagged, blindfolded, and diapered (see October 4, 2001)—to Rabat, Morocco, a flight later confirmed by the CIA’s own flight logs. He remains in Moroccan custody for 15 months.
Beaten, Slashed with Scalpels - As he will later recall, he is introduced to Moroccan detention practices by an interrogator named Marwan, who gives him thorough and repeated beatings. When Mohamed has been softened up: “[T]hey cut off my clothes with some kind of doctor’s scalpel. I was totally naked.… They took the scalpel to my right chest. It was only a small cut. Maybe an inch. Then they cut my left chest. One of them took my penis in his hand and began to make cuts. He did it once, and they stood still for maybe a minute, watching my reaction. I was in agony, crying, trying desperately to suppress myself, but I was screaming. I remember Marwan seemed to smoke half a cigarette, throw it down, and start another. They must have done this 20 to 30 times in maybe two hours. There was blood all over. They cut all over my private parts. One of them said it would be better just to cut it off, as I would only breed terrorists.” This happens time and again over the next 15 months.
British Complicity in CIA, Moroccan Interrogations - Documents disclosed for Mohamed’s later lawsuit against the US (see February 4, 2009) show that British MI5 agents are aware of the entirety of Mohamed’s treatment, and are in collusion with the Moroccans and the US in Mohamed’s treatment; on September 30, MI5 and CIA officials hold a conference where Mohamed’s treatment and interrogation are discussed. During much of Mohamed’s detention in Morocco, MI5 passes questions and photographs to the CIA for use in Mohamed’s interrogations (see February 24, 2009). Mohamed will later recall: “They started bringing British files to the interrogations—thick binders, some of them containing sheaves of photos of people who lived in London and places there like mosques. It was obvious the British were feeding them questions about people in London. When I realized that the British were co-operating with the people torturing me, I felt completely naked. It was when they started asking the questions supplied by the British that my situation worsened. They sold me out.”
Elaborate Confessions - By this time, as Mohamed will recall, he is willing to confess to anything to make the torture stop. “They had fed me enough through their questions for me to make up what they wanted to hear,” he will recall. “I confessed to it all. There was the plot to build a dirty nuclear bomb, and another to blow up apartments in New York with their gas pipes.” The “gas pipe” plot connects Mohamed to 9/11 plotter Khalid Shaikh Mohammed, who supposedly conceived of the idea. “I said Khalid Shaikh Mohammed had given me a false passport after I was stopped the first time in Karachi and that I had met Osama bin Laden 30 times,” Mohamed will recall. “None of it was true. The British could have stopped the torture because they knew I had tried to use the same passport at Karachi both times (see September 2001 - April 9, 2002). That should have told them that what I was saying under torture wasn’t true. But so far as I know, they did nothing.”
'Rendered' to Afghanistan - Fifteen months after being “rendered” to Morocco, Mohamed is “rendered” to Afghanistan by the CIA (see January-September 2004). (Rose 3/8/2009)

John Yoo, a lawyer with the Office of Legal Counsel (OLC), sends a classified memo to White House counsel Alberto Gonzales. The memo’s contents will remain secret, but the American Civil Liberties Union (ACLU) will learn that the memo regards the 1984 Convention Against Torture. According to the memo, the first fifteen articles of the Convention, ratified by the United States almost a decade before, “are non-self executing and place no affirmative obligations on the executive branch.” Furthermore, international law in general “lacks domestic legal effect, and in any event can be overridden by the president,” the memo states. In essence, Yoo concludes that the Convention can be ignored by the president. Yoo will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). (United Nations High Commissioner for Human Rights 12/10/1984; American Civil Liberties Union [PDF] 1/28/2009 pdf file; Nguyen and Weaver 4/16/2009)

The government files a response in the District Court for the Eastern District of Virginia to the petition for a writ of habeas corpus for “enemy combatant” Yaser Hamdi (see July 18, 2002) and motions for the petition to be dismissed. The response, a two-page declaration of facts written by Special Adviser to the Under Secretary of Defense for Policy Michael H. Mobbs and known as the “Mobbs Declaration,” asserts that because Hamdi was “affiliated” with the Taliban and was carrying a rifle at the time of his surrender, the US military has designated him as an “enemy combatant.” It does not say that Hamdi actually fought with the Taliban against US forces. (Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al. 1/8/2003 pdf file; Jackman 1/9/2003)

Justice Department lawyer John Yoo, of the Office of Legal Counsel (OLC), signs off on a secret opinion that approves a long, disturbing list of harsh interrogation techniques proposed by the CIA. The list includes waterboarding, a form of near-drowning that some consider mock execution, and which has been prosecuted as a war crime in the US since at least 1901. The list only forbids one proposed technique: burying a prisoner alive (see February 4-5, 2004). Yoo concludes that such harsh tactics do not fall under the 1984 Convention Against Torture (see October 21, 1994 and July 22, 2002) because they will not be employed with “specific intent” to torture. Also, the methods do not fall under the jurisdiction of the International Criminal Court because “a state cannot be bound by treaties to which it has not consented”; also, since the interrogations do not constitute a “widespread and systematic” attack on civilian populations, and since neither Taliban nor al-Qaeda detainees are considered prisoners of war (see February 7, 2002), the ICC has no purview. The same day that Yoo sends his memo, Yoo’s boss, OLC chief Jay Bybee, sends a classified memo to the CIA regarding the interrogation of al-Qaeda members and including information detailing “potential interrogation methods and the context in which their use was contemplated” (see August 1, 2002). (US Department of Justice 8/1/2002; Gellman and Becker 6/25/2007; American Civil Liberties Union [PDF] 1/28/2009 pdf file) Yoo will later claim that he warns White House lawyers, as well as Vice President Cheney and Defense Secretary Donald Rumsfeld, that it would be dangerous to allow military interrogators to use the harshest interrogation techniques, because the military might overuse the techniques or exceed the limitations. “I always thought that only the CIA should do this, but people at the White House and at [the Defense Department] felt differently,” Yoo will later say. Yoo’s words are prophetic: such excessively harsh techniques will be used by military interrogators at Guantanamo, Abu Ghraib, and elsewhere. (Gellman and Becker 6/25/2007)

Judge Robert Doumar of the US District Court in Norfolk, Virginia, which is handling the habeas petition for “enemy combatant” Yaser Esam Hamdi, holds a hearing in compliance with an order (see August 8, 2002) by the court of appeals to consider the government’s argument for treating Hamdi as an enemy combatant as outlined in the Mobbs declaration (see July 25, 2002). (Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al. 8/16/2002 pdf file; Jackman 1/9/2003)

The district court at Norfolk finds that the Mobbs declaration (see July 25, 2002) “falls far short” of providing a basis for the continuing detention of “enemy combatant” Yaser Esam Hamdi without due process of law. “If the Court were to accept the Mobbs Declaration as sufficient justification for detaining Hamdi…, this Court would be acting as little more than a rubber stamp,” judge Robert Doumar writes in his ruling. He again orders the government to produce additional evidence, including copies of Hamdi’s statements, notes by his interrogators, statements by members of the Northern Alliance and relevant names, dates, and locations. (Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al. 8/16/2002 pdf file; Jackman 1/9/2003) Doumar says the government’s arguments lead “to more questions than answers.” For example:
bullet The Mobbs Declaration does not say what authority Mobbs has, as “Special Advisor” to the Undersecretary of Defense for Policy, to determine the classification of a detainee. He says that during the August 13 hearing (see August 13, 2002), the government’s attorney was unable to do so. (Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al. 8/16/2002 pdf file)
bullet The government has provided no reason “for Hamdi to be in solitary confinement, incommunicado for over four months and being held some eight-to-ten months without any charges of any kind.” (Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al. 8/16/2002 pdf file)
bullet Though it is claimed that Hamdi was “affiliated with a Taliban military unit and received weapons training,” the declaration makes no attempt to explain the nature of this “affiliation” or why the “affiliation” warrants the classification of Hamdi as an enemy combatant. Furthermore, the declaration “never claims that Hamdi was fighting for the Taliban, nor that he was a member of the Taliban.” (Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al. 8/16/2002 pdf file)
bullet Assertions in the document concerning statements made by Hamdi appear to be paraphrased. Hamdi’s actual statements are not provided. “Due to the ease with which such statements may be taken out of context, the Court is understandably suspicious of the Respondent’s assertions regarding statements that Hamdi is alleged to have made,” the court ruling says. (Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al. 8/16/2002 pdf file)

As Bush administration lawyers warn that Vice President Cheney and his Pentagon allies are setting the government up for defeat in the courts with their hardline advice on interrogation techniques (see Late 2001-Early 2002, January 25, 2002, April 2002 and After, and August 1, 2002) and indefinite detentions (see After September 11, 2001 and December 2001-January 2002), one of the uneasiest of Justice Department lawyers is Solicitor General Theodore Olson. Cheney and Olson have similar views on the expansion of presidential powers, but his job in the administration is to win court cases. Olson is not sure that Cheney’s legal arguments are tenable. Olson is particularly worried about two pending cases, those of US citizens Jose Padilla (see June 10, 2002) and Yaser Esam Hamdi (see December 2001 and August 16, 2002). Both have been declared enemy combatants and denied access to lawyers. Olson warns that federal courts will not go along with that provision, but he finds himself opposed by CIA and Pentagon officials. When Olson and other lawyers propose that Padilla and Hamdi be granted lawyers, Cheney’s chief lawyer, David Addington, beats back their proposal because, says deputy White House counsel Timothy Flanigan, “that was the position of his client, the vice president.” The issue comes to a head in the West Wing office of Alberto Gonzales, the White House’s chief legal counsel. Four officials with direct knowledge of the meeting later recall the chain of events. Olson has the support of associate White House counsel Bradford Berenson, a former law clerk to Supreme Court Justice Anthony Kennedy. Berenson says that Kennedy, the Court’s swing vote, will never accept absolute presidential authority to declare a US citizen an enemy and lock him away without benefit of counsel. Another former Kennedy law clerk, White House lawyer Brett Kavanaugh, had made the same argument earlier. Addington, representing Cheney in the meeting, accuses Berenson of surrendering presidential authority on what he calls a fool’s prophecy about the Court; Berenson retorts by accusing Addington of “know-nothingness.” Gonzales listens quietly as the Justice Department and his own staff line up against Addington. He finally makes a decision: in favor of Cheney and Addington. (Gellman and Becker 6/25/2007)

Maher Arar.Maher Arar. [Source: Chris Wattie / Reuters]On his way home to Montreal, Maher Arar, a 34-year old IT specialist, makes a stopover at JFK International Airport in New York. He is returning alone from a family holiday with his wife and daughter in Tunisia. At the airport, Arar, who was born in Syria and has dual Syrian and Canadian citizenship, is arrested by officers wearing badges from the FBI and the New York Police Department. Arar happens to be on a terrorist watch list. A US official later says Arar has the names of “a large number of known al-Qaeda operatives, affiliates or associates” on him. (Priest 11/19/2003) Canadian Solicitor General Wayne Easter later admits that Canada contributed information that led to Arar’s arrest. (Priest 11/20/2003) In an interrogation room Arar asks for an attorney, but, as he later publishes on his website, is told he has no right to a lawyer because he is not an American citizen. Subsequent requests for a lawyer are ignored and the interrogation continues until midnight. His interrogators are particularly interested in another Canadian by the name of Abdullah Almalki. Arar says he has worked together with his brother, Nazih Almalki, but knows Abdullah only casually. Then, with his hands and feet in shackles, he is taken to a nearby building and put in a cell around 1 a.m. “I could not sleep,” Arar later writes. “I was very, very scared and disoriented.” (Amnesty International 8/19/2003; Arar 11/6/2003; CBS News 1/22/2004; Priest and Stephens 5/11/2004; CBC News 11/26/2004; Maher Arar 1/15/2005)

The CIA flies the leader of Iraq’s Sufi movement (Sufism is a mystic tradition of Islam) to Washington to discuss his possible involvement in the Anabasis project. One night at Marrakesh, a popular Moroccan restaurant, the Sufi asks Luis and John Maguire, the two CIA operatives who are heading the project, if the US is certain that it will remove Saddam Hussein. “You’re not just going to come to Iraq, poke Saddam in the eye, and leave, are you?” Maguire assures him that the US is serious this time. The CIA agrees to pay him $1 million a month in exchange for information from high-level Iraqi officials. Soon after the agreement, CIA officers in Kurdish-controlled northern Iraq begin receiving high-quality intelligence from Iraqi insiders, including information on the movements of Saddam Hussein. The sources include Iraqi military officials who are more loyal to the Sufi leader than to Hussein. (Isikoff and Corn 2006, pp. 157)

The Iraqi Operations Group, headed by Luis (his full name has not been disclosed) and John Maguire, orders the CIA station chief in Annan Jordan to conduct a sabotage operation against a fleet of cars used by Iraqi officials in Jordan. They want the CIA in Annan to pour contaminants into the fuel tanks of the vehicles so as to destroy their the engines. But the station chief refuses, telling agency headquarters in a cable that he won’t participate in “juvenile college pranks.” Maguire is livid with anger. “We have a directive from the president of the United States to do this,” Maquire says. “So shut the f_ck up and do this! We’re not interested in your grousing as to whether or not this is a wise move or not. The president has made a decision!” The operation never takes place. (Isikoff and Corn 2006, pp. 160-161)

FBI agent Robert Fuller interrogates Canadian citizen Omar Khadr at Bagram Air Base in Afghanistan. Fuller is an FBI agent who failed to locate the 9/11 hijackers in the US before 9/11 (see September 4, 2001, September 4-5, 2001, and September 4-5, 2001), while Khadr is a minor accused of throwing a hand grenade that killed a US soldier in Afghanistan. The interrogation lasts from October 7 to October 22. On the first day, Fuller shows Khadr a black-and-white photograph provided by the FBI in Massachusetts of Maher Arar, a Canadian terror suspect the US has been holding in New York (see September 26, 2002). Fuller will later say that Khadr identifies Arar as someone he has seen in a safe house run by al-Qaeda in Afghanistan and that he also “may have” seen Arar at a terror training camp near Kabul. However, at the time Khadr says he saw Arar in Afghanistan—September and October 2001—Arar was first in the US and then in Canada under surveillance by the local authorities, according to Walter Ruiz, a lawyer who will later represent Khadr. Ruiz will also point out that it takes Khadr several minutes to identify Arar. Another of Khadr’s lawyers, Lieutenant Commander Bill Kuebler, will say that Khadr repeatedly lies to his interrogators to avoid being abused. Deputy Attorney General Larry Thompson decides that Arar will be deported to Syria on this day (see October 7, 2002), and the deportation is soon carried out (see October 8, 2002). However, it is unclear whether Thompson’s decision is motivated by Fuller’s interrogation of Khadr or other factors. (CBC News 1/20/2009; Edwards 1/20/2009) Fuller will testify about the identification at a Guantanamo hearing (see January 19, 2009), but facts calling it into question will emerge under cross-examination (see January 20, 2009).

At the request of FBI Director Robert Mueller, Attorney General John Ashcroft files a declaration invoking the “state secrets” privilege (see March 9, 1953) to block FBI translator Sibel Edmonds’ lawsuit against the government from being heard in court. (Sheehy 1/22/2004) The Justice Department insists that disclosing her evidence, even at a closed hearing in court, “could reasonably be expected to cause serious damage to the foreign policy and national security of the United States.” The “state secrets privilege,” derived from English common law, has never been the subject of any congressional vote or statute. Normally, the privilege is used to block the discovery of a specific piece of evidence that could put the nation’s security at risk. But Ashcroft’s declaration asserts that the very subject of her lawsuit constitutes a state secret, thus barring her from even presenting her case in court. The text of Ashcroft’s declaration is classified. (Rose 9/2005) The Justice Department’s Director of Public Affairs, Barbara Comstock, says in a press release: “To prevent disclosure of certain classified and sensitive national security information, Attorney General Ashcroft today asserted the state secrets privilege.… The state secrets privilege is well established in federal law… and allows the Executive Branch to safeguard vital information regarding the nation’s security or diplomatic relations. In the past, this privilege has been applied many times to protect our nation’s secrets from disclosure, and to require dismissal of cases when other litigation mechanisms would be inadequate. It is an absolute privilege that renders the information unavailable in litigation.” (US Department of Justice 10/18/2002; Siegel 2008, pp. 201)

CIA station chiefs from all over the Middle East meet at the United States Embassy in London for a secret conference. Deputy Director for Operations James Pavitt has called the meeting because certain people in the CIA are disappointed with a lack of action in the field on Iraq-related tasks. John Maquire of the Iraqi Operations Group has repeatedly criticized field operatives for being too timid (see, e.g., (October 2002)). (Isikoff and Corn 2006, pp. 161) “After several worldwide cables from IOG [Iraqi Operations Group], the Near East front office, and the DDO’s office, we found little movement in the field on the Iraq issue.… This lack of movement on the Iraq target triggered the call by the ADDO [the assistant deputy director of operations] for the London meeting,” an official from the CIA’s Iraqi Operations Group (IOG) later tells author James Risen. The problem is that many CIA officers, especially those in the Near East division, simply do not support the administration’s plan to invade Iraq. So one of the meeting’s objectives is to get everyone on board. The IOG official explains: “We kept saying that the president has decided we are going to war, and if you don’t like it, quit.” During the meeting, the officials say that the agency is interested in developing a plan for sabotage that will undermine the Iraqi regime. The chief of the IOG describes a plan to prevent the shipment of goods to Saddam Hussein and his family with the hope that it might cause Hussein to become paranoid and distrustful of those around him. One young station chief suggests sinking a ferry that imports these goods into Iraq from neighboring Arab countries. An IOG official present at the meeting will later tell Risen that this plan is dismissed because the vessel also transports passengers. But two station chiefs tell Risen that they left the meeting with the impression that IOG officials were open to the plan. Risen also reports in his book that another plan for sabotage was to equip “low-level Iraqi agents with special spring-loaded darts that they could use to destroy the windshields of cars owned by members of the Iraqi regime. Large supplies of the darts were later delivered to forward CIA stations, but nothing was ever done with them.” (Risen 2006, pp. 183-184)

Ramzi bin al-Shibh.Ramzi bin al-Shibh. [Source: Uli Deck / Agence France-Presse]Ramzi bin al-Shibh, a key member of al-Qaeda’s Hamburg cell, is allegedly flown to Jordan and tortured there. Bin al-Shibh was arrested in Pakistan on September 11, 2002, and held by US forces (see September 11, 2002). According to a 2008 report by the watchdog group Human Rights Watch, the US takes bin al-Shibh to the Bagram air base in Afghanistan, and then flies him to Jordan. A former detainee in a secret prison run by Jordanian intelligence will later tell Human Rights Watch that he was held in a cell next to bin al-Shibh in late 2002. He says he was able to briefly talk to bin al-Shibh, and bin al-Shibh told him that he had been tortured while in Jordanian custody. He said he had suffered electric shocks, forced nakedness, sleep deprivation, and being made to sit on sticks and bottles in sexually humiliating ways. (Human Rights Watch 4/8/2008) The Washington Post will similarly report in late 2007, “Although hard evidence is elusive, some former inmates have reported being detained in the same wing as Ramzi Bin al-Shibh… said Abdulkareem al-Shureidah, an Amman lawyer. “He was detained in Jordanian jails, definitely.” (Whitlock 12/1/2007) Bin al-Shibh will be transferred out of CIA custody into the Guantanamo prison in 2006, but exactly where he was held between 2002 and 2006 remains unclear (see September 2-3, 2006).

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