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Context of 'January 19, 2009: Bush Administration Requests Stay in Judge’s Decision to Allow Lawsuit to Proceed'

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Navy General Counsel Alberto J. Mora writes a secret, but unclassified, memo to Vice Admiral Albert Church, who led a Pentagon investigation into abuses at the US detention facility at Guantanamo Bay. Mora writes the memo in an attempt to stop what he sees as a disastrous and unlawful policy of authorizing cruel and inhuman treatment of terror suspects. The memo details in chronological fashion Mora’s earlier attempts to speak out against the Bush administration’s decision to circumvent the Geneva Conventions (see January 9, 2002 and January 11, 2002).
Specific Problems - Mora, a veteran of the Reagan and George H. W. Bush administrations and a strong supporter of the “war on terror,” argues that a refusal to outlaw cruelty toward US-held terrorist suspects is an implicit invitation to abuse. Mora also writes that the Bush administration’s legal arguments that justify an expansion of executive power in everything from interrogations to warrantless wiretapping are “unlawful,” “dangerous,” and “erroneous” legal theories. Not only are they wrong in granting President Bush the right to authorize torture, he warns that they may leave US personnel open to criminal prosecution. While the administration has argued that it holds to humane, legal standards in interrogation practices (see January 12, 2006), Mora’s memo shows that from the outset of the administration’s “war on terror,” the White House, the Justice Department, and the Defense Department intentionally skirted and at times ignored domestic and international laws surrounding interrogation and detention of prisoners.
Cruelty and Torture - Mora will later recall the mood in the Pentagon: “The mentality was that we lost three thousand Americans [on 9/11], and we could lose a lot more unless something was done. It was believed that some of the Guantanamo detainees had knowledge of other 9/11-like operations that were under way, or would be executed in the future. The gloves had to come off. The US had to get tougher.” But, Mora will say, the authorization of cruel treatment of detainees is as pernicious as any defined torture techniques that have been used. “To my mind, there’s no moral or practical distinction,” he says. “If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America—even those designated as ‘unlawful enemy combatants.’ If you make this exception, the whole Constitution crumbles. It’s a transformative issue.… The debate here isn’t only how to protect the country. It’s how to protect our values.” (Mora 7/7/2004 pdf file; Mayer 2/27/2006)

Glenn A. Fine, the Justice Department’s inspector general, completes his report on Sibel Edmonds’ allegations (see Afternoon March 7, 2002). The 100-page report determines that “many of Edmonds’ core allegations relating to the co-worker [Melek Can Dickerson] were supported by either documentary evidence or witnesses” and concludes that “the FBI did not, and still has not adequately investigated these allegations.” Additionally, Fine’s report concludes that Edmonds was fired because she was having a “disruptive effect,” which could be attributed to “Edmonds’ aggressive pursuit of her allegations of misconduct, which the FBI did not believe were supported and which it did not adequately investigate.” Fine adds, “[A]s we described throughout our report, many of her allegations had basis in fact. We believe… that the FBI did not take them seriously enough, and that her allegations were, in fact, the most significant factor in the FBI’s decision to terminate her services.” The report is immediately classified by the FBI. Not even Edmonds is allowed to see the contents. An unclassified 37-page summary of the report will be released in January 2005. (Washington Post 7/9/2004; Bridis 7/30/2004; Bridis 1/14/2005; Frieden 1/14/2005; Lichtblau 1/15/2005; Rose 9/2005)

The 9/11 Commission interviews two CIA analysts who drafted an August 2001 Presidential Daily Briefing (PDB) item entitled “Bin Laden Determined to Strike in US” (see August 6, 2001). The interview is conducted mainly by commissioners Richard Ben-Veniste and Jim Thompson and follows an internal battle inside the Commission (see June 2004 and Early July 2004). Despite a claim by the Commission’s Executive Director Philip Zelikow that the analysts, known only as Barbara S and Dwayne D, were reluctant to answer questions, they are willing and eager to respond to Ben-Veniste.
PDB Item Not 'Historical' - According to author Philip Shenon, the analysts are “confused” and “appalled” by claims by National Security Adviser Condoleezza Rice and others at the White House that the PDB item only contained an “historical” overview of domestic terrorism threats. The analysts say that this was not its purpose and that it was supposed to remind President Bush that al-Qaeda remained a dire threat in August 2001 and that a domestic attack was certainly a possibility. For example, the item referred to “patterns of suspicious activity in this country consistent with preparations for hijackings or other types of attacks.” Barbara S says, “That’s not historical,” and adds the threat of a domestic terror attack by al-Qaeda was thought “current and serious” at that time.
Ordered up 'In-House' - In addition, the analysts say that another claim made by the White House, that President Bush specifically ordered the PDB (see April 13, 2004), is false. They state that the PDB item was ordered “in-house” by the CIA in the hope that the White House would pay more attention to the threat. However, President Bush had asked his intelligence briefers about the possibility of a domestic attack by terrorists that summer (see July 5, 2001).
Zelikow Objects to Placement of Material in Final Report - Ben-Veniste insists that the material from the two analysts is placed prominently in the Commission’s final report, although Zelikow objects to this. After negotiations, the relevant paragraph will read as follows: “During the spring and summer of 2001, President Bush had on several occasions asked his briefers whether any of the threats pointed to the United States. Reflecting on these questions, the CIA decided to write a briefing article summarizing its understanding of this danger. Two CIA analysts involved in preparing this briefing article believed it represented an opportunity to communicate their view that the threat of a bin Laden attack in the United States remained both current and serious. The result was an article in the August 6 Presidential Daily Brief titled ‘Bin Laden Determined to Strike in US.’” (Shenon 2008, pp. 377-379)

White House chief of staff Andy Card learns what the 9/11 Commission Report contains before it is published, as the various chapters are sent to the White House for classification review before the publication date. Card then hears back from the review teams. Despite fears about allegations made by former counterterrorism “tsar” Richard Clarke (see March 21, 2004) and a key Presidential Daily Brief item (see August 6, 2001), in the words of author Philip Shenon, Card can see “that the Commission’s final report posed no threat to [President] Bush’s re-election.” This is because the report does not “single out individuals for blame. Certainly not George Bush.” The allegations by Clarke, related in a “he-said, she-said” manner in the report, also do not damage National Security Adviser Condoleezza Rice. (Shenon 2008, pp. 411)

The 9/11 Commission’s final report.
The 9/11 Commission’s final report. [Source: 9/11 Commission]The 9/11 Commission completes its work and releases its final report. They blame incompetence for the reason why the US government did not prevent the attack. The Washington Post summarizes the report, “The US government was utterly unprepared on Sept. 11, 2001, to protect the American people from al-Qaeda terrorists.” (Eggen 7/23/2004) The report itself states, “We believe the 9/11 attacks revealed four kinds of failures: in imagination, policy, capabilities, and management.” (9/11 Commission 7/24/2004) The Washington Post reports, “Though openly dreaded for months by many Republicans and quietly feared by the White House, the report was much gentler on the Bush administration than they feared. Rather than focus criticism on the Bush administration, the commission spread the blame broadly and evenly across two administrations, the FBI, and Congress.” (Milbank and Allen 7/23/2004) More to the point, as former counterterrorism “tsar” Richard Clarke notes in a New York Times editorial, “Honorable Commission, Toothless Report,” because the commission wanted a unanimous report from a bipartisan group, “it softened the edges and left it to the public to draw many conclusions.” (Clarke 7/25/2004) The Washington Post comments, “In many respects, the panel’s work has been closer to the fact-finding, conspiracy-debunking Warren Commission of the mid-1960s, which investigated the assassination of President John F. Kennedy, than to the reform-oriented Church Commission, which exposed assassination plots and CIA abuses during the mid-1970s.” (Eggen and Coll 7/18/2004)

On July 13, 2004, a young Pakistani al-Qaeda operative named Muhammad Naeem Noor Khan was arrested in Pakistan (see July 13, 2004). US intelligence agents find what they later call a “treasure trove” of information in Noor Khan’s computers and documents. (CNN 8/2/2004) They realize that Khan has served as a communications hub of sorts for al-Qaeda. He is in frequent contact with dozens of other al-Qaeda terrorists around the world and passing messages back and forth from more senior al-Qaeda operatives. Intelligence agents quickly realize that, through Khan, they can penetrate deep into the core of al-Qaeda’s current operations. Around the weekend of July 24-25, the Pakistanis convince Khan to “turn,” or become a double agent. Khan sends e-mails to dozens of activists in Indonesia, Malaysia, Pakistan, India, Bangladesh, and other countries. He requests that they contact him immediately and reveal where they are. As the emails come back, intelligence agents all over the world go into action to monitor those who have replied to Khan. (Burke, Harris, and Bright 8/8/2004) Newsweek later reports that he sends e-mails to at least six contacts in the US, but the results of this are unknown. A senior US intelligence official confirms that Khan contacted people in the US, but believes number is less than six. (Moreau, Hussain, and Yousafzai 8/8/2004) Some of Khan’s contacts are quickly arrested, including Ahmed Khalfan Ghailani, a Tanzanian wanted since 1998 for his role in the bombing of the US embassy in his home country (see July 25-29, 2004). (Suskind 2006) Some communications take time to reach him. He is sometimes sent handwritten notes or computer discs from the mountains where bin Laden and other top leaders are hiding out. These are delivered by secretive relays of couriers who never see each other, using dead drops to avoid being traced. Other messages come from far-flung intermediaries who forward e-mail without knowing what it means, where it is going, or who is sending it. (Moreau, Hussain, and Yousafzai 8/8/2004) However, on August 1, Bush administration officials leak Noor Khan’s name to the press and the New York Times prints his name one day later. This only gives one week for the sting operation to work. Intelligence officials are crushed the operation has to end before it could expose many more al-Qaeda operatives (see August 2, 2004).

Ahmed Khalfan Ghailani.Ahmed Khalfan Ghailani. [Source: FBI]Ahmed Khalfan Ghailani, a high-level al-Qaeda operative from Tanzania suspected of participating in the 1998 bombings of US embassies in East Africa, is captured in Gujrat, Pakistan, after a violent standoff with Pakistani police. (CNN 8/3/2004) Ghailani’s arrest is publicly announced on July 29, four days later. The announcement by Pakistan’s Interior Minister Faisal Hayat is made in an unusual late-night press conference that takes place just hours before John Kerry accepts the Democratic nomination for president. (Haqqani 8/17/2004) Pakistani authorities say the announcement of Ghailani’s arrest was delayed four days because of the need to confirm his identity before making the proclamation. (BBC 7/30/2004) But former Pakistani official Husain Haqqani later claims the announcement was timed to upstage the Kerry speech. (Haqqani 8/17/2004; United States Conference on International Religious Freedom 6/30/2005) An article in the New Republic published earlier in the month reported that the Bush administration was asking Pakistan to make high-profile arrests of al-Qaeda suspects during the Democratic National Convention in order to redirect US media attention from the nomination of John Kerry (see July 8, 2004). (Judis, Ackerman, and Ansari 7/29/2004) John Judis, who co-wrote the article predicting such an arrest, says the day after the arrest is announced, “Well, the latest development pretty much confirms what we wrote in the article, which is that there was pressure for Pakistan to produce a high-value target during the last 10 days of July and to announce that arrest.” He also asks why is it “they announced [the arrest] at all? Because when you have somebody who’s been in hiding since 1998, they have an enormous amount of information and contacts. By announcing this guy’s arrest, what you do is you warn off everybody who’s been associated with him from the last five or six years. You tell them that they better get their act together or they are going to be found. So, there’s some, really a lot of questions of why they announced this thing when they did.… It may be in this case that we—that we, and the Pakistanis got somebody and prematurely announced this person’s arrest in order to have an electoral impact.” (Democracy Now! 7/30/2004)

Sibel Edmonds writes a blistering critique of the 9/11 Commission’s final report in a letter to the commission’s chairman Thomas Kean. She says the commission failed to investigate and report the information she provided in February (see February 11, 2004) regarding the problems she witnessed while working as a contract translator in the FBI’s translation unit. She also explains why she thinks the attacks were not stopped and why the government will not prevent future attacks. “If Counterintelligence receives information that contains money laundering, illegal arms sale, and illegal drug activities, directly linked to terrorist activities; and if that information involves certain nations, certain semi-legit organizations, and ties to certain lucrative or political relations in this country, then, that information is not shared with Counterterrorism, regardless of the possible severe consequences. In certain cases, frustrated FBI agents cited ‘direct pressure by the State Department,’ and in other cases ‘sensitive diplomatic relations’ is cited.… Your hearings did not include questions regarding these unspoken and unwritten policies and practices. Despite your full awareness and understanding of certain criminal conduct that connects to certain terrorist related activities, committed by certain US officials and high-level government employees, you have not proposed criminal investigations into this conduct, although under the laws of this country you are required to do so. How can budget increases address and resolve these problems, when some of them are caused by unspoken practices and unwritten policies?” (Edmonds 8/1/2004)

Muhammad Naeem Noor Khan.Muhammad Naeem Noor Khan. [Source: BBC]The New York Times reveals the identity of al-Qaeda operative Muhammad Naeem Noor Khan. Bush administration officials allegedly revealed his name to the Times in an attempt to defend a controversial US terror alert issued the day before (see August 1, 2004). (Associated Press 8/10/2004; Suskind 2006, pp. 325-326) Officials from the Department of Homeland Security apparently gave out the name without revealing that Khan had already been turned and was helping to catch other al-Qaeda operatives. (Hasan 8/8/2004) A few days later, National Security Adviser Condoleezza Rice confirms that US officials named Khan to the reporters “on background.” (Savage and Bender 8/10/2004) But some days after that, anonymous Pakistani government sources will claim that Khan’s name was initially leaked by Pakistani officials. (Haqqani 8/17/2004) Middle East expert Juan Cole suggests both accounts have merit. In the hours after the August 1 terror alert that was based on information secured from Khan’s computer, reporters scramble to determine the source of the alert. One reporter learns of the Khan arrest from a CIA analyst, though the analyst refuses to give out any names. Cole believes that New York Times reporter David Rohde then acquires Khan’s name from his Pakistani sources and confirms it through US sources at the Department of Homeland Security. (Cole 8/19/2004) Khan, an al-Qaeda computer expert, was arrested in Pakistan on July 13 and quickly began cooperating with investigators. He started sending e-mails to other operatives around the world and asked them to report back in. As they replied, investigators began tracing their locations. But Khan’s name is revealed before his computer contacts could be fully exploited. Many al-Qaeda members, including some suspected plotters planning strikes on US targets, escape arrest because of the outing. One Pakistani official says, “Let me say that this intelligence leak jeopardized our plan and some al-Qaeda suspects ran away.” (Associated Press 8/10/2004; Suskind 2006, pp. 325-326) Intelligence reports also indicate that the exposure of Khan makes al-Qaeda members more cautious in their electronic communications. Many cells abruptly move their hideouts, causing the US losing track of them. (Grieve 8/9/2004; Ridgeway 8/2/2005) Some are critical about the leak of Khan’s name:
bullet Tim Ripley, a security expert who writes for Jane’s Defense publications, says, “The whole thing smacks of either incompetence or worse. You have to ask: what are they doing compromising a deep mole within al-Qaeda, when it’s so difficult to get these guys in there in the first place? It goes against all the rules of counterespionage, counterterrorism, running agents, and so forth. It’s not exactly cloak and dagger undercover work if it’s on the front pages every time there’s a development, is it?”
bullet British Home Secretary David Blunkett is openly contemptuous of the White House’s management of the information. “In the United States there is often high-profile commentary followed, as in the current case, by detailed scrutiny, with the potential risk of ridicule. Is it really the job of a senior cabinet minister in charge of counter-terrorism to feed the media? To increase concern? Of course not. This is arrant nonsense.” (Grieve 8/9/2004)
bullet Other high-level British officials are “dismayed by the nakedly political use made of recent intelligence breakthroughs both in the US and in Pakistan.” They complain that they had to act precipitously in arresting low-level al-Qaeda figures connected to Khan instead of using those suspects to ferret out more senior al-Qaeda figures. These officials are “dismayed by the nakedly political use made of recent intelligence breakthroughs both in the US and in Pakistan.” (Conason 8/11/2004)
bullet Senator Charles Schumer (D-NY) writes in a letter to Bush officials, “I respectfully request an explanation [about] who leaked this Mr. Khan’s name, for what reason it was leaked, and whether the British and Pakistani reports that this leak compromised future intelligence activity are accurate.” (Savage and Bender 8/10/2004)
bullet Senator George Allen (R-VA) says, “In this situation, in my view, they should have kept their mouth shut and just said, ‘We have information, trust us’.”
bullet (Lobe 8/10/2004)
bullet Middle East expert Juan Cole notes that the leak of Khan’s name forced the British to arrest 12 members of an al-Qaeda cell prematurely, allowing others to escape. “[T]his slip is a major screw-up that casts the gravest doubts on the competency of the administration to fight a war on terror. Either the motive was political calculation, or it was sheer stupidity. They don’t deserve to be in power either way.” (Hasan 8/8/2004)
bullet Salon’s Dale Davis says, “[S]adly, the damage [the Bush administration’s] machinations have caused to the goal of defeating al-Qaeda will be measured in the loss of the young American servicemen and women who carry the burden of their failed policies.” (Davis 8/13/2004)

Dhiren Barot.Dhiren Barot. [Source: London Metropolitan Police]Dhiren Barot, a Londoner of Indian descent who converted to Islam and fought in Afghanistan and Pakistan, is arrested along with about a dozen other al-Qaeda suspects by British authorities (see August 3, 2004). Barot, who uses a number of pseudonyms, including Abu Eissa al-Hindi, will be charged with several crimes surrounding his plans to launch attacks against British and US targets. Barot’s plans were discovered in a computer owned by al-Qaeda operative Muhammad Naeem Noor Khan, who was arrested in July 2004 and was helping US intelligence until his outing by US and Pakistani officials on August 2, 2004 (see August 2, 2004). Though Barot is not believed to be a high-level al-Qaeda operative, he has connections to some of al-Qaeda’s most notorious leaders, including bin Laden and 9/11 plotter Khalid Shaikh Mohammed (KSM), who, according to the 9/11 Commission, dispatched him to “case” targets in New York City in 2001. Under the alias Issa al-Britani, he is known to have been sent to Malaysia in late 1999 or very early 2000 by KSM to meet with Hambali, the head of the al-Qaeda affiliate Jemaah Islamiyah. According to the commission report, Barot may have given Hambali the names of 9/11 hijackers Khalid Almihdhar and Nawaf Alhazmi. Barot may have traveled to Malaysia with Khallad bin Attash. Bin Attash is believed to be one of the planners behind the October 2000 bombing of the USS Cole (see October 12, 2000). Barot’s trip to Malaysia came just days before the well-documented January 2000 al-Qaeda summit where early plans for the 9/11 bombings were hatched (see January 5-8, 2000), though US officials do not believe that Barot was present at that meeting. British authorities believe that Barot was part of an al-Qaeda plan to launch a mass terror attack using chemical and/or radioactive weapons. Barot and other suspects arrested were, according to Western officials, in contact with al-Qaeda operatives in Pakistan, who themselves were communicating with bin Laden and other top al-Qaeda leaders as recently as July 2004. (Isikoff and Hosenball 8/20/2004) Barot’s plans seem to have focused more actively on British targets, including London’s subway system. In November 2006, Barot will be convicted of conspiracy to commit murder and other crimes, and eventually sentenced to thirty years in prison by a British court. (BBC 11/7/2006; BBC 5/16/2007)

Former Pakistani government official Husain Haqqani says that Pakistan, not the US government, may have originally leaked the news to the international press that Muhammad Naeem Noor Khan, an al-Qaeda operative turned informant for the US and Pakistan, was a double agent (see August 2, 2004). The leak of Khan’s identity ruins his capability to provide information about al-Qaeda and allows senior al-Qaeda operatives to escape arrest. Haqqani writes that there are two possible reasons for Pakistan’s decision to leak such damaging information: either Pakistani officials were eager to demonstrate their success in penetrating al-Qaeda, or, more likely, that Pakistan wanted to curb the inroads being made into al-Qaeda in order to keep the terrorist group safe and functional. A second leak, from Pakistani intelligence officials like the first, fingered US officials for the leak. The US government accepted the responsibility for outing Khan because, Haqqani writes, administration officials were complicit in the leak, and because the Bush administration is involved in a twisted, mutually duplicitous relationship with the Musharraf regime of Pakistan: “ostensibly driven by the mutual desire for security, there is clearly a political element to the relationship related to the survival of both the Bush and the Musharraf governments.” (Haqqani 8/17/2004) On August 6, 2004, former President Bill Clinton accused the Bush administration of essentially contracting out US security and the hunt for Osama bin Laden to Pakistan in its zeal to wage war in Iraq (see August 6, 2004). One consequence of the decision to subcontract the hunt for members of al-Qaeda to Pakistan is that the terrorists appear to be regrouping and regaining in strength. (Eggen and Lancaster 8/14/2004) Haqqani believes that the two have mutual political concerns: while Pakistan cooperates, to a point, in hunting down al-Qaeda members, the government of Pervez Musharraf is more secure. In return, Pakistani officials, known for their reticence, have lately been unusually forthcoming in issuing well-timed reports designed to help Bush’s re-election efforts. For instance, on July 29, just hours before John Kerry’s speech accepting the Democratic nomination for president, Pakistan’s interior minister, Faisal Hayat, held an unusual late-night press conference announcing the arrest of Ahmed Khalfan Ghailani, the man wanted for the 1998 terrorist bombings of the US embassies in Kenya and Tanzania (see July 25-29, 2004). (Haqqani 8/17/2004)

Mohammad Salah, Mousa Abu Marzouk, and Abdelhaleem Ashqar are indicted on racketeering conspiracy charges. Salah and Ashqar are arrested. Marzouk, considered a high-ranking Hamas leader, is out of reach in Syria. Marzouk had been charged in 2002 on related matters (see December 18, 2002-April 2005). Ashqar was already under house arrest on related charges of contempt and obstruction of justice. The three are accused of using US bank accounts to launder millions of dollars to support Hamas. The indictment alleges the laundered money was used to pay for murders, kidnappings, assaults, and passport fraud. Many of the charges date to the early 1990s (see 1989-January 1993) and had been the subject of legal cases in 1998 and 2000 (see June 9, 1998; May 12, 2000-December 9, 2004). (Lichtblau 8/21/2004; Associated Press 8/24/2004) Salah and Ashqar had been living openly in the US for several years. The US had declared Salah a “designated global terrorist” in 1995 and he returned to Chicago in 1997 (see February 1995). The media reported on this in 2003 but they still were not arrested (see June 2-5, 2003). In 1993, Ashqar took part in a secret Hamas meeting in Philadelphia that was wiretapped by the FBI (see October 1993). (Walter, Ross, and Sauer 6/12/2003; Lichtblau 8/21/2004)

Jacob Hornberger.Jacob Hornberger. [Source: Institute for Historical Review]Jacob Hornberger, the president of the Future of Freedom Foundation, writes that the Pentagon has learned “when the judiciary issues an order, the Pentagon is required to obey it,” which is “why the government is now permitting Ali Saleh al-Marri to meet with his attorney as part of his habeas corpus proceeding in federal district court in South Carolina.” Al-Marri is one of three “enemy combatants” (see June 23, 2003) designated by President Bush. Until recently, the Pentagon had refused to allow al-Marri to contact his lawyers, who have been challenging his detention and enemy combatant status in the US courts, but a recent Supreme Court decision scotched that procedure (see June 28, 2004). Hornberger compares al-Marri’s treatment to that of ousted Iraqi dictator Saddam Hussein, whom Iraqi and US officials have restricted from consulting with his own lawyers in Iraq. Al-Marri, before being removed from the US judicial system, “would have been entitled to all the rights and guarantees recognized in the Constitution and Bill of Rights, including being informed of the charges against him, compulsory process of witnesses, cross-examination of adverse witnesses, assistance of counsel, and a jury trial,” Hornberger writes. “If the jury had acquitted him, as juries recently did with defendants in federal terrorism cases brought in Detroit and Boise, he would have walked away from the federal courtroom a free man. By removing al-Marri from the jurisdiction of the federal court on the eve of his trial and placing him into military custody as an ‘enemy combatant,’ the Justice Department and the Pentagon, working together, effectively hijacked our criminal justice system and sabotaged our constitutional order.” (Hornberger 8/21/2004; Future of Freedom Foundation 2007)

British terror suspect Binyam Mohamed (see May-September, 2001) is flown from Afghanistan (see January-September 2004) to Guantanamo. In Morocco, Mohamed confessed to a wide array of crimes to avoid torture (see July 21, 2002 -- January 2004); as he recalls, after being charged with crimes (see November 4, 2005), his captors now want him to alter his story. He will later say: “They said they were worried I would tell the court that I had only confessed through torture. They said now they needed me to say it freely. We called them the clean team, they wanted to say they had got this stuff from a clean interrogation.” He will recall one instance where he refuses to give his fingerprints; in return, he is beaten by the so-called “Emergency Reaction Force,” a much-feared assault team: “They nearly broke my back. The guy on top was twisting me one way, the guys on my legs the other. They marched me out of the cell to the fingerprint room, still cuffed. I clenched my fists behind me so they couldn’t take prints, so they tried to take them by force. The guy at my head sticks his fingers up my nose and wrenches my head back, jerking it around by the nostrils. Then he put his fingers in my eyes. It felt as if he was trying to gouge them out. Another guy was punching my ribs and another was squeezing my testicles. Finally I couldn’t take it any more. I let them take the prints.” (Rose 3/8/2009) In October 2008, all charges against Mohamed will be dropped (see October-December 2008). In late February 2009, Mohamed will be released (see February 22-24, 2009).

Vice President Dick Cheney says that a victory by Democratic presidential candidate John Kerry in the upcoming election will put the US at risk of another “devastating” terrorist attack along the lines of 9/11. Kerry’s running mate, John Edwards, calls Cheney’s remarks “un-American.” Cheney tells a group of Republican supporters in Iowa that they need to make “the right choice” in the November 2 election. “If we make the wrong choice, then the danger is that we’ll get hit again—that we’ll be hit in a way that will be devastating from the standpoint of the United States,” Cheney says. “And then we’ll fall back into the pre-9/11 mindset, if you will, that in fact these terrorist attacks are just criminal acts and that we’re not really at war. I think that would be a terrible mistake for us.” Edwards responds: “Dick Cheney’s scare tactics crossed the line.… What he said to the American people was that if you go to the polls in November and elect anyone other than us, and another terrorist attack occurs, then it’s your fault. This is un-American. The truth is that it proves once again that they will do anything and say anything to keep their jobs.” Edwards says that a Kerry administration “will keep the American people safe, and we will not divide the country to do it.” Cheney spokeswoman Anne Womack says Cheney’s comments merely reflect “a difference in policy” between the Bush/Cheney and Kerry/Edwards tickets, and adds: “This is nothing new. This is nothing inconsistent with his views. This is an overreaction to something we have used repeatedly and consistently. This is something that both the president and vice president have talked about consistently, the need to learn the lessons of 9/11. He was not connecting the dots.” Later, Womack complains that Cheney’s remarks were taken out of context: “If you take the whole quote, the vice president stands by his statement. But if you just take a chunk, that’s not what he meant.” (CNN 9/7/2004)

Alvin Hellerstein.Alvin Hellerstein. [Source: Associated Press]In 2003, after reports began to surface that some detainees in US custody had been abused, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act request seeking records about the treatment of all detainees caught since 9/11 and held in US custody overseas. The ACLU eventually filed a lawsuit to get the records, and on September 15, 2004, judge Alvin Hellerstein orders the CIA and other government agencies to “produce or identify” all relevant documents by October 15, 2004. (Dean 12/14/2007) Hellerstein also rules that classified documents must be identified in a written log and the log must be submitted to him for review. In December 2004, the CIA and other agencies make public a huge amount of information but fail to inform the judge about the videotapes and other classified information (see December 21, 2004). Since that time, the case remains delayed with stays, extensions, and appeals. In December 2005, the CIA will destroy videotapes of the interrogations of at least two high-ranking al-Qaeda detainees (see November 2005). After the destruction of the videotapes is publicly revealed in December 2007, the New York Times will comment on the ACLU case, “Some legal experts [say] that the CIA would have great difficulty defending what seemed to be a decision not to identify the tapes to the judge, and the subsequent decision to destroy the tapes.” (Mazzetti 12/13/2007) Legal analyst John Dean will later comment, “It is difficult to see why the CIA is, in fact, not in contempt, given the nature of the [ACLU] request and the judge’s order.” He will suggest that the case may represent the best chance to find out why and how the CIA destroyed the videotapes. (Dean 12/14/2007)

Amjad Farooqi.Amjad Farooqi. [Source: Associated Press]Amjad Farooqi, a leader of al-Qaeda and the Pakistani militant group Jaish-e-Mohammed, is allegedly shot and killed in Nawabshah, Pakistan, a town 170 miles north of Karachi. Farooqi had been indicted for the murder of US journalist Daniel Pearl in 2002 (see January 31, 2002), and was said to have been a mastermind of the two assassination attempts against Pakistani President Pervez Musharraf in December 2003 (see December 14 and 25, 2003). Farooqi is also believed to have taken part in the hijacking of an Indian airliner in late 1999 (see December 24-31, 1999). He is said to be close to al-Qaeda leader Abu Faraj al-Libbi. Farooqi was allegedly tracked by his mobile home to a hideout, which was then surrounded by police. He and two associates were killed after a two-hour gun battle, while three others were arrested. A senior Pakistani official says, “Farooqi’s elimination is a crushing blow to the al-Qaeda network in Pakistan because he was the man who had been providing al-Qaeda terrorists with the manpower to carry out attacks.” (Khan 9/27/2004)
Staged Death? - However, the Asia Times reported in June 2004 that Farooqi had been secretly arrested already and that Musharraf was saving him for a politically opportune time. (Shahzad 6/5/2004) After the announcement of his death, the Asia Times further report that its sources believe Farooqi indeed was killed, but his death was staged and he had been arrested months before. It is claimed that Pakistani authorities wanted him dead to close investigations into the murder of Daniel Pearl and the assassination attempts against Musharraf. In both cases, there are unanswered questions about the links between al-Qaeda and forces within the Pakistani government. Furthermore, some say the 1999 Indian airline hijacking he was said to have been a part of was planned by al-Qaeda-linked militants working with the Pakistani ISI (see December 24-31, 1999).
Allegedly Overhyped - The Asia Times further claims that while Farooqi was involved in Pearl’s death and the Musharraf assassinations, he was not the “super villain” he was made out to be in the months before his death. They also portray him as a stand-alone operator who worked with al-Qaeda and a number of Pakistani militant groups, but did not directly belong to any one group. (Shahzad 9/28/2004; Shahzad 9/29/2004)
Questions Unanswered - One senior Pakistani law-enforcement official says after the announcement of his death, “It was very important to catch Amjad Farooqi alive. Farooqi was the key link between the foot soldiers and those who ordered the murder [of Musharraf].” Another says, “Amjad Farooqi is now dead with the most important secret and we still don’t know for sure the real identity of the Pakistani or al-Qaeda or any other foreign elements who had launched Farooqi into action to remove General Musharraf from the scene.” (Raman 9/30/2004)

On a September 30, 2004, presidential debate with John Kerry, President Bush says, “75 percent of known al-Qaeda leaders have been brought to justice.” But there is no evidence to support such a number. He uses this same number in other speeches around this time. In 2003, Bush’s top advisers typically said that more than one-third of the most wanted leaders had been found. Prior to the Republican convention in early September, the White House had claimed that “two-thirds” of the “senior al-Qaeda and associated leaders, operational managers, and key facilitators” had been captured or killed. But while the White House numbers were increasing as the November 2004 presidential election drew closer, the number of top al-Qaeda figures captured or killed remained essentially unchanged - Hassan Ghul was captured in early 2004 (see January 23, 2004). In October 2004, the Washington Post learns 28 of the approximately 30 names on a classified and unpublished “high-value targets” list of al-Qaeda leaders. Only 14, or half, are known to be killed or captured. (Other al-Qaeda leaders captured in 2004, such as Ahmed Khalfan Ghailani (see July 25-29, 2004), apparently are not considered important enough to be included in the list seen by the Washington Post.) (Gellman and Linzer 10/22/2004; Greenberg and Holmes 11/1/2004) In 2008, it will be reported that, of the 37 people the CIA deemed the most important al-Qaeda leaders in 2002, only 15 have been captured or killed. (Rashid 2008, pp. 280-281)

Osama bin Laden sends a letter to al-Qaeda leader Abu Faraj al-Libbi, and US intelligence will learn about this a year or so later. This is one of the very few pieces of evidence known by US intelligence that suggests bin Laden is alive, after bin Laden escaped from Tora Bora, Afghanistan, in late 2001. Al-Libbi has been al-Qaeda’s operational commander since early 2003.
Guantanamo File Account - In April 2011, the non-profit whistleblower group Wikileaks will release the Guantanamo prison assessment file of al-Libbi, dated September 2008. According to this assessment, which is likely based on al-Libbi’s interrogations, al-Libbi receives a letter from bin Laden in October 2004 asking about al-Qaeda’s financial situation in Pakistan and especially Waziristan (part of Pakistan’s tribal region). Al-Libbi also gets a videotape of bin Laden’s speeches. (Note that the first video footage of bin Laden is publicly released in late October 2004 (see October 29, 2004).) Al-Libbi gets the letter and videotape from bin Laden’s courier, who first met up with al-Libbi in July 2003 (see July 2003-Mid-2004). (US Department of Defense 9/10/2008)
Musharraf's 2006 Book - In a 2006 book, Pakistani President Pervez Musharraf will similarly mention that al-Libbi “was in contact with Osama through a courier and the last letter he had received from Osama was sometime in December 2004. We have been looking for the couriers intensely.” (Musharraf 2006, pp. 172) Al-Libbi will be captured in May 2005, and apparently he is interrogated by Pakistan for a few days, and then turned over and interrogated much more by the US (see May 2, 2005). So different interrogations may explain the slightly different months mentioned in each account. Bin Laden’s courier will later be revealed to be Ibrahim Saeed Ahmed, and the US effort to track him will eventually lead to bin Laden (see May 2, 2011).

Accused terrorist Yaser Esam Hamdi returns to Saudi Arabia aboard a US military jet. Earlier in 2004, the US Supreme Court ruled that the US government could not continue to hold Hamdi, a US citizen, as an enemy combatant without allowing him to challenge that status (see June 28, 2004). The US government was still free to bring charges against him but instead chose to negotiate with his attorneys about a release. In exchange for his release, Hamdi agrees to renounce his US citizenship and pledge never to travel to Afghanistan, Iraq, Israel, Pakistan, Syria, the Palestinian West Bank, or Gaza. He must also report any intent to travel outside Saudi Arabia. (CNN 10/14/2004)
'Shocking Admission' of Lack of Criminal Case against Hamdi - Andrew Cohen comments in the Los Angeles Times, “If Hamdi is such a minor threat today that he can go back to the Middle East without a trial or any other proceeding, it’s hard not to wonder whether the government has been crying wolf all these years.” He calls the release “a shocking admission from the government that there is not now, and probably never has been, a viable criminal case against Hamdi.” (Cohen 8/16/2004)
Hamdi Case Used to Set Favorable Precedent? - Author and reporter Charlie Savage will agree with Cohen. “Hamdi’s release meant that a prisoner who the White House had once sworn was too dangerous to be allowed access to a lawyer was now going free—just like hundreds of prisoners from Guantanamo who were held without trial for years and then quietly released,” Savage will write. He will note that many administration critics believe Hamdi’s case had been used as a tool by the administration to get a favorable judicial precedent and, once that precedent had been put in place, the administration had no more use for Hamdi and threw him out of the country rather than actually continue with a problematic trial or legal proceeding. (Savage 2007, pp. 199-200)

Abdurahman Alamoudi.Abdurahman Alamoudi. [Source: Wikipedia/ public domain]Muslim activist Abdurahman Alamoudi is sentenced to 23 years in prison in the US for illegal dealings with Libya. Charges include that he was involved in a complex plot to kill Crown Price Abdullah, the de facto ruler of Saudi Arabia. Prosecutors successfully argued that Alamoudi served as a go-between Saudi dissidents and Libyan officials involved in the plot. Alamoudi admitted that he illegally moved money from Libya, taking nearly $1 million and using it to pay conspirators. The plot, thought to stem from a personality dispute between the leaders of Libya and Saudi Arabia, was ultimately foiled by the Saudi government. The Washington Post notes that Alamoudi was “one of America’s best-known Muslim activists—a former head of the American Muslim Council who met with senior Clinton and Bush administration officials in his efforts to bolster Muslim political prominence.” He was “once so prominent that his influence reached the highest levels of the US government.” Alamoudi is said to be cooperating with US investigators as part of the deal. It is believed that his testimony could be very useful to an ongoing probe of the SAAR network, since he was closely involved with that network (see March 20, 2002). (Markon 10/16/2004)

Noor Uthman Muhammed, a detainee being held at Guantanamo, disputes many of the allegations made against him at a combatant status review tribunal hearing to determine if he is an enemy combatant. Muhammed admits receiving and giving military training at Khalden Camp in Afghanistan, buying food for the camp, and being captured with training camp facilitator Abu Zubaida (see March 28, 2002). However, he contests many of the charges, and he denies:
bullet Handling one of the weapons he is accused of using, the Zukair anti-aircraft weapon, which he says he has never heard of;
bullet Procuring a fax machine for Osama bin Laden. He did attempt to buy a piece of similar equipment, but the deal did not go through and the equipment was for himself, not bin Laden, who he has never met;
bullet Being assisted in his escape from Afghanistan by a senior al-Qaeda lieutenant. When he asks for the lieutenant’s name, the military officials are unable to provide it;
bullet Having a Somali passport;
bullet Being associated with al-Qaeda. He comments: “I have no knowledge of al-Qaeda, and I don’t know anybody from there. But if you want to say that I’m Muslim and want to make-believe I belong to al-Qaeda, then that is something different”;
bullet Being associated with the Taliban. He comments: “I don’t know anything about the Taliban. I never carried arms with them.” (US Department of Defense 2004 pdf file)

The New York Times agrees to a White House request to withhold publication of a potential “bombshell” story: an in-depth article revealing an enormous, and possibly illegal, warrantless wiretapping program executed by the NSA at President Bush’s behest after the 9/11 attacks. The Times will publish the story almost a year later (see December 15, 2005). In August 2006, the Times’s public editor, Byron Calame, will confirm the delay, and note that he has been “increasingly intrigued” by the various descriptions of the delay by Times editor Bill Keller (see December 16, 2005) and others. Keller will tell Calame that, contrary to some statements he and others have made, the story was originally scheduled to be published just days before the November 2004 presidential election. “The climactic discussion about whether to publish was right on the eve of the election,” Keller will say, though he will refuse to explain why he makes the final decision to hold the story. However, he will say that at this time he is not sure the story’s sources are reliable enough to warrant its publication before a close election. (Calame 8/13/2006)

Theo van Gogh.Theo van Gogh. [Source: Column Film]Dutch filmmaker Theo van Gogh is killed by al-Qaeda linked figures. He is shot while on the streets of Amsterdam, then his throat is slit and a note is pinned to his chest with a knife. Van Gogh had received death threats after the release of his short film Submission, which criticized the mistreatment of Muslim women. A Dutch Moroccan named Mohammed Bouyeri is soon captured after a shootout with police. He is later sentenced to life in prison for van Gogh’s murder. About 13 other mostly North African men are linked to Bouyeri, and most of them are later convicted for various crimes. This group is said to have ties to al-Qaeda cells in Spain and Belgium, and links to bombings in Casablanca and Madrid (see May 16, 2003 and 7:37-7:42 a.m., March 11, 2004). (Johnson 1/25/2005)

Salim Ahmed Hamdan.Salim Ahmed Hamdan. [Source: Public domain]US District Judge James Robertson rules that the Combatant Status Review Tribunal being held at the Guantanamo base in Cuba to determine the status of detainee Salim Ahmed Hamdan is unlawful and cannot continue. At the time of the decision, Hamdan is before the Guantanamo military commission. (Leonnig and Mintz 11/9/2004; Locy 11/9/2004) The commission system, as set up by White House lawyers David Addington and Timothy Flanigan three years before (see Late October 2001), gives accused terrorists such as Hamdan virtually no rights; in author and reporter Charlie Savage’s words, “the [Bush] administration had crafted rules that would make it easy for prosecutors to win cases.” (Savage 2007, pp. 195-196)
Violation of Geneva Conventions - Robertson, in his 45-page opinion, says the government should have conducted special hearings to determine whether detainees qualified for prisoner-of-war protections under the Geneva Conventions at the time of capture. (Locy 11/9/2004) He says that the Bush administration violated the Geneva Conventions when it designated prisoners as enemy combatants, denied them POW protections, and sent them to Guantanamo. (Savage 11/9/2004) The Combatant Status Review Tribunals that are currently being held in response to a recent Supreme Court decision (see June 28, 2004) are inadequate, Robertson says, because their purpose is to determine whether detainees are enemy combatants, not POWs, as required by the Third Geneva Convention. (Locy 11/9/2004)
Rejects Claims of Presidential Power - Robertson also rejects the administration’s claim that the courts must defer to the president in a time of war. “The president is not a ‘tribunal,’” the judge says. (Locy 11/9/2004) Robertson, a Clinton appointee, thus squarely opposes both the president’s military order of November 13, 2001 (see November 13, 2001) establishing the possibility of trial by military tribunal, and his executive order of February 7, 2002 (see February 7, 2002) declaring that the Geneva Conventions do not to apply to Taliban and al-Qaeda prisoners. “The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts,” Robertson writes, “one that can only weaken the United States’ own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad.” (Locy 11/9/2004; Leonnig and Mintz 11/9/2004; Savage 11/9/2004)
Orders Military Courts-Martial - Robertson orders that until the government conducts a hearing for Hamdan before a competent tribunal in accordance with the Third Geneva Conventions, he can only be tried in courts-martial, according to the same long-established military rules that apply to trials for US soldiers. (Leonnig and Mintz 11/9/2004; Savage 11/9/2004) Robertson’s ruling is the first by a federal judge to assert that the commissions are illegal. (Leonnig and Mintz 11/9/2004)
Hearings Immediately Recessed - When word of Robertson’s ruling comes to Guantanamo, Colonel Peter Brownback, presiding over a pretrial hearing for Hamdan, immediately gavels the hearing closed, declaring an “indefinite recess” for the tribunal. (Savage 2007, pp. 195-196)
Ruling Applauded by Civil Libertarians, Rejected by Bush Lawyers - Anthony Romero, director of the American Civil Liberties Union; Eugene Fidell, president of the National Institute of Military Justice; and Michael Ratner, president of the Center for Constitutional Rights, all applaud Robertson’s ruling. (Savage 11/9/2004) The Bush administration rejects the court’s ruling and announces its intention to submit a request to a higher court for an emergency stay and reversal of the decision. “We vigorously disagree.… The judge has put terrorism on the same legal footing as legitimate methods of waging war,” Justice Department spokesman Mark Corallo says. “The Constitution entrusts to the president the responsibility to safeguard the nation’s security. The Department of Justice will continue to defend the president’s ability and authority under the Constitution to fulfill that duty.” (Leonnig and Mintz 11/9/2004; Savage 11/9/2004) He also says that the commission rules were “carefully crafted to protect America from terrorists while affording those charged with violations of the laws of war with fair process.” (Savage 11/9/2004)
Ruling May Affect Other Detainees - Though the ruling technically only applies to Hamdan, his civilian attorney, Neal Katyal, says it could affect other detainees. “The judge’s order is designed only to deal with Mr. Hamdan’s case,” Katyal says. “But the spirit of it… extends more broadly to potentially everything that is going on here at Guantanamo.” (Locy 11/9/2004)

President Bush names White House counsel and close personal friend Alberto Gonzales to succeed John Ashcroft as the new attorney general. Ashcroft submitted a letter of resignation on November 2. (Bloomberg 11/10/2004)

Referring to the recent appointment of former White House counsel Alberto Gonzales as US Attorney General (see November 10, 2004), retired chief judge of the Army Court of Appeals Brigadier General James Cullen says, “When you encounter a person who is willing to twist the law… even though for perhaps good reasons, you have to say you’re really undermining the law itself.” (Hentoff 11/29/2004)

Mohamed Alanssi, an FBI counterterrorism informant (see November 2001), sets himself on fire in front of the White House in protest over how the bureau has handled him. Alanssi had previously informed the Washington Post and Robert Fuller, his FBI handler in New York, of his intention. 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). Alanssi approaches the White House and asks the Secret Service to deliver a note to President Bush. When he is turned away, he steps back and then sets his jacket on fire, suffering serious burns before the Secret Service agents can extinguish the flames. Alanssi is primarily unhappy that the FBI has confiscated his passport, because he is ill and wants to visit his family in Yemen, where his wife is sick with stomach cancer. The FBI is apparently holding the passport in an attempt to make him testify at the trial of Mohammed Ali Hassan al-Moayad, an associate of Osama bin Laden that Alanssi informed on (see January 2003). Alanssi has also complained to the Post that the FBI has not kept all of its promises, allowing his identity to become known, endangering himself and his family, not giving him US citizenship, and paying him $100,000 after promising him he would “be a millionaire.” Alanssi told the Post: “It is my big mistake that I have cooperated with FBI. The FBI has already destroyed my life and my family’s life and made us in a very danger position.… I am not crazy to destroy my life and my family’s life to get $100,000.” (Murphy and Wilber 11/16/2004)

Congress expands the Patriot Act (see October 26, 2001) by approving an intelligence spending bill with a provision that gives the FBI the power to subpoena business documents and transactions from a broad range of businesses and entities—including libraries, travel agencies, and even eBay—without court warrants. This reduces oversight of the FBI and shifts power away from the judiciary. The Patriot Act already allows the FBI to acquire bank records and communications records by issuing a National Security Letter (NSL) affirming that the information it seeks is relevant to an open investigation; the targeted institution is legally “gagged,” unable to inform anyone, especially the subject of the investigation, of the subpoena. The new law expands the use of NSLs by redefining “financial institution” to include insurance companies, real estate agents, the US Postal Service, travel agencies, casinos, pawn shops, car dealers and any other business whose “cash transactions have a high degree of usefulness in criminal, tax or regulatory matters.” The provision is one of the most controversial parts of the so-called “Patriot II” act (see February 7, 2003) that was withdrawn after the public learned of its elements. Like most intelligence spending bills, this one was drafted in secret and passed with little debate or public comment. Law professor Chris Schroeder, a former Justice Department assistant attorney general, says the insertion of the provision shows that “people who want to expand the powers of the FBI didn’t want to stop after Patriot II was leaked. They are going to insert these provisions on a stealth basis. It’s insidious.” James Dempsey of the Center for Democracy and Technology agrees: “On its face, it’s a cryptic and seemingly innocuous amendment. It wasn’t until after it passed both houses that we saw it. The FBI and CIA like to try to graft things like this into intelligence bills.” CIA Director Porter Goss, when he was chairman of the House Intelligence Committee, defended the provision, saying it is necessary to keep pace with terrorists and the changing economy. “This provision brings the definition of ‘financial institution’ up to date with the reality of the financial industry,” Goss told House members. “This provision will allow those tracking terrorists and spies to ‘follow the money’ more effectively and thereby protect the people of the United States more effectively.” Timothy Edgar of the American Civil Liberties Union says the bill goes too far in expanding executive branch powers. “The more that checks and balances against government abuse are eroded, the greater that abuse,” Edgar says. “We’re going to regret these initiatives down the road.” (Singel 11/24/2003)

Recently retired Spanish Prime Minister Jose María Aznar says to a parliamentary investigation, “There is absolute proof that shows… a connection between ETA terrorists and Islamic terrorism.… I am one of those who believe that all [forms of] terrorism end up being connected.” ETA are a Basque separatist group. According to the Guardian, Aznar’s political party lost a national election three days after the March 2004 Madrid train bombings (see 7:37-7:42 a.m., March 11, 2004) “partly because voters mistrusted his government’s initial insistence that ETA, rather than Islamists, was to blame.” Since then, little evidence has come forward suggesting any ETA link with the bombing, although some of the Arab bomb suspects had contacts with some ETA associates in prison several years before. Aznar denies that his government lied about what it knew regarding who was responsible for the bombings. “My conscience is clear… we told the truth about what we knew.” (Tremlett 11/29/2004) Many Spaniards, especially supporters of Aznar’s conservative Popular Party, continue to assert that there was an ETA link. The Observer comments, “Few experts, however, give credence to the ETA theory. Some see it as an attempt by the [Popular] Party to muddy the waters in a vain bid to save the party’s battered reputation.” (Tremlett 11/28/2004)

Daniel Levin.Daniel Levin. [Source: ABC News]Daniel Levin, the acting chief of the Justice Department’s Office of Legal Counsel (OLC), goes to a military base near Washington and has himself subjected to simulated waterboarding to judge for himself whether or not the interrogation tactic is torture. Levin then tells White House officials that he found the experience terrifying, and he is sure it simulates drowning. Levin concludes that waterboarding clearly qualifies as torture and should not be used by US personnel except in a highly limited and closely supervised fashion. Levin, who like his predecessor Jack Goldsmith (see June 17, 2004) is deeply troubled by the White House’s advocacy of torture as a method of securing information from terror suspects, and by its refusal to issue clear guidelines as to what is and what is not torture, decides to prepare a memo—legally binding—to replace the August 2002 Justice Department memo that established torture as an acceptable method of interrogation. Goldsmith had already withdrawn the memo after finding it deeply flawed (see December 2003-June 2004). In December 2004, Levin issues his new memo, which flatly states that “[t]orture is abhorrent” (see December 30, 2004), but he notes that the Justice Department is not declaring any previous positions by the administration illegal. Levin is planning a second memo that will impose tighter restrictions on specific interrogation techniques, but he never gets the chance to complete it. New attorney general Alberto Gonzales forces him out of the department instead, and replaces him with a much more compliant OLC chief, Steven Bradbury (see June 23, 2005). Most experts believe that waterboarding is indeed torture, and that torture is a poor way of extracting accurate information. Retired Rear Admiral John Hutson will say, “There is no question this is torture—this is a technique by which an individual is strapped to a board, elevated by his feet and either dunked into water or water poured over his face over a towel or a blanket.” (Greenburg and de Vogue 11/2/2007; Think Progress 11/3/2007; Safty 11/5/2007) Gonzales is widely believed to have been selected as the new attorney general in part to ease the way for the Bush administration to continue its support for torture as a valid method of interrogation. Shortly after taking the office, Gonzales pressured Levin to add the footnote exculpating the administration from any legal responsibility for its previous positions, and shortly thereafter, Gonzales has Levin removed from the department. In November 2007, the Washington Post’s editorial board will decry Gonzales’s ouster of Levin, and the administration’s support for torture, as a blatant “disregard for principle.” (Washington Post 11/6/2007) MSNBC host Keith Olbermann, a harsh critic of the Bush administration, will later call Levin “an astonishingly patriotic American and a brave man.” He will fire a broadside directly at the president: “Daniel Levin should have a statue in his honor in Washington right now. Instead, he was forced out as acting assistant attorney general nearly three years ago because he had the guts to do what George Bush couldn’t do in a million years: actually put himself at risk for the sake of his country, for the sake of what is right.” (Olbermann 11/5/2007)

Saad al-Fagih.Saad al-Fagih. [Source: PBS]The US and UN designate Saad al-Fagih a global terrorist, but Britain, where he lives, takes no effective action against him. Al-Fagih helped supply bin Laden with a satellite telephone used in the 1998 embassy bombings (see November 1996-Late August 1998). Britain seizes the assets of al-Fagih and his organization, the Movement for Islamic Reform in Arabia. (US Department of the Treasury 12/21/2004; BBC 12/24/2004) However, Saudi ambassador to Britain Prince Turki al-Faisal will later complain that the total seized is only ”£20 or something” (note: equivalent of about $39) and that the British government allows al-Fagih to continue to operate openly from London, despite being a specially designated global terrorist (see August 10, 2005). (Beeston and Binyon 8/10/2005) Britain has long been suspected of harboring Islamic militants in return for them promising not to attack Britain (see August 22, 1998).

The Justice Department issues a 17-page memo which officially replaces the August 2002 memo (see August 1, 2002), which asserted that the president’s wartime powers supersede international anti-torture treaties and defined torture very narrowly, describing it as a tactic that produces pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The new memo, authored by acting chief of the Office of Legal Counsel (OLC) and Acting Assistant Attorney General Daniel Levin, is ostensibly meant to deflect criticisms that the Bush administration condones torture. In fact, the very first sentence reads, “Torture is abhorrent both to American law and values and to international norms.” But the White House insists that the new memo does not represent a change in policy because the administration has always respected international laws prohibiting the mistreatment of prisoners. The primary concern of the new memo is to broaden the narrow definition of torture that had been used in the August memo. Levin adopts the definition of torture used in Congressional anti-torture laws, which says that torture is the infliction of physical suffering, “even if it does not involve severe physical pain.” But the pain must still be more than “mild and transitory,” the memo says. Like the original memo, Levin says that torture may include mental suffering. But to be considered so it would not have to last for months or years, as OLC lawyers Jay Bybee and John Yoo had asserted two years earlier. The most contested conclusions of the August 2002 memo—concerning the president’s wartime powers and potential legal defense for US personnel charged with war crimes—are not addressed in the Levin memo. “Consideration of the bounds of any such authority would be inconsistent with the president’s unequivocal directive that United States personnel not engage in torture,” the memo says. (US Department of Justice 12/30/2004 pdf file; Guggenheim 12/31/2004)
National Security Not a Justification for Torture - The memo also attempts to quell concerns that the administration believes national security may be used as justification for tactics that could be considered as torture. It states, “[A] defendant’s motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute.” (US Department of Justice 12/30/2004 pdf file)
Memo Divided White House Officials - Many in the White House opposed the issuance of the memo, but were rebuffed when other administration officials said the memo was necessary to ease the confirmation of Alberto Gonzales as Attorney General. (Shane, Johnston, and Risen 10/4/2007)
Torture Opponents Disappointed - Civil libertarians and opponents of torture within the Justice Department are sharply disappointed in the memo. While it gives a marginally less restrictive definition of the pain required to qualify as torture, and gives no legal defenses to anyone who might be charged with war crimes, it takes no position on the president’s authority to override interrogation laws and treaties, and finds that all the practices previously employed by the CIA and military interrogators were and are legal. Yoo will later write that “the differences in the opinions were for appearances’ sake. In the real world of interrogation policy, nothing had changed. The new opinion just reread the statute to deliberately blur the interpretation of torture as a short-term political maneuver in response to public criticism.” (Savage 2007, pp. 196-197)
Secret Memo Will Allow Waterboarding; Dissidents Purged - A secret memo is completed a short time later that allows such torture techniques as waterboarding to be used again (see February 2005). The Levin memo triggers a department-wide “purge” of dissidents and torture opponents; some will resign voluntarily, while others will resign after being denied expected promotions. (Savage 2007, pp. 197)

Judge Colleen Kollar-Kotelly, the presiding judge over the Foreign Intelligence Surveillance Court (FISC), warns the Justice Department that if it does not stop using evidence collected with warrantless wiretaps to obtain warrants to continue surveillance, her court will be more reluctant to grant warrants for surveillance. Kollar-Kotelly has complained about this before (see 2004). Though both Kollar-Kotelly and her predecessor, Judge Royce Lambeth, express concerns to senior officials that Bush’s warrantless wiretapping program is inherently unconstitutional, neither judge feels that they have the authority to rule on the president’s power to order such surveillance. Instead, they work to preserve the integrity of the FISA process. Eventually, the judges reach a compromise with government lawyers: any case using evidence from warrantless wiretaps that is to be presented to the judges for FISA warrants to continue monitoring the same suspects will be “tagged,” and that evidence will not be used to obtain warrants. Those cases, numbering less than ten a year, are to be presented only to the presiding judge. Lambeth and Kollar-Kotelly both feel that the process will work primarily because of the trust they have developed in James Baker, the Justice Department’s liaison to FISC. Part of the problem stems from contradictory statements and claims from the administration; after the wiretapping program began (see After September 11, 2001, NSA chief Michael Hayden and then-Attorney General John Ashcroft made it clear in private meetings with the judges that President Bush wanted to gain all possible information on any potential terrorist attacks, and that such information-gathering must by necessity go beyond the FISA court’s probable-cause requirement. But more recent assertions by Hayden and Ashcroft’s successor, Alberto Gonzales (see December 19, 2005, claiming that NSA analysts do not listen to domestic calls unless they already have some evidence that one of the parties to the call has links to terrorism, contradict earlier administration claims to the judges. Kollar-Kotelly suspects that the entire truth of the matter is not being presented to her and the FISC. Her suspicions are validated when her court is, in spite of administration reassurances, again presented with warrant applications based on illegally obtained evidence (see Late 2005). (Leonnig 2/9/2006)

Arlen Specter.Arlen Specter. [Source: US Senate]White House counsel Alberto Gonzales testifies before the US Senate as part of his confirmation as the Bush administration’s new attorney general. Much of the seven hours of testimony focuses on Gonzales’s position on torturing terrorist suspects. He is specifically questioned on the August 2002 Justice Department memo requested by Gonzales that outlined how US officials could interrogate subjects without violating domestic and international laws against torture by setting unusually high standards for the definition of torture (see August 1, 2002). (Goodman and Gonzales 1/7/2005) Arlen Specter (R-PA) asks Gonzales if he approves of torture. Gonzales replies, “Absolutely not,” but refuses to be pinned down on specifics of exactly what constitutes torture.
Equivocating on the Definition of Torture - Gonzales says he “was sickened and outraged” by the photographs of tortured Iraqis at Abu Ghraib prison (see Evening November 7, 2003), but refuses to say whether he believes any of that conduct is criminal, citing ongoing prosecutions. Joseph Biden (D-DE) retorts: “That’s malarkey. You are obliged to comment. That’s your judgment we’re looking at.… We’re looking for candor.” (CNN 1/7/2005) When asked whether he agrees with the August 2002 memo that said, “[F]or an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function, or even death,” Gonzales says: “We were trying to interpret the standard set by Congress. There was discussion between the White House and Department of Justice as well as other agencies about what does this statute mean? It was a very, very difficult—I don’t recall today whether or not I was in agreement with all of the analysis, but I don’t have a disagreement with the conclusions then reached by the department.” He says that the standard “does not represent the position of the executive branch” today. Author and torture expert Mark Danner calls the standard “appalling… even worse the second time through.” Gonzales was obviously prepped for this line of questioning, Danner says: “He sat in front of the committee and asserted things, frankly, that we know not to be true.… He was essentially unwilling to say definitively there were no situations in which Americans could legally torture prisoners.… [T]here’s an assumption behind [this performance] that we have the votes. We’re going to get through. I just have to give them nothing on which to hang some sort of a contrary argument.”
Equivicating on Techniques - Edward Kennedy (D-MA) questions Gonzales about what techniques are defined as torture, including “live burial” (see February 4-5, 2004) and waterboarding. Kennedy says that, according to media reports, Gonzales never objected to these or other techniques. Gonzales does not have a “specific recollection” of the discussions or whether the CIA ever asked him to help define what is and is not torture. He also says that in “this new kind of” war against “this new kind of enemy, we realized there was a premium on receiving information” the US needs to defeat terrorists. Agencies such as the CIA requested guidance as to “[w]hat is lawful conduct” because they did not “want to do anything that violates the law.” Kennedy asks if Gonzales ever suggested that the Justice Department’s Office of Legal Counsel (OLC) ever “lean forward on this issue about supporting the extreme uses of torture?” Gonzales focuses on Kennedy’s phrasing: “Sir, I don’t recall ever using the term sort of ‘leaning forward,’ in terms of stretching what the law is.” He refuses to admit giving any opinions or requesting any documents, but only wanted “to understand [the OLC’s] views about the interpretation” of torture. Danner notes that Justice Department officials have told reporters that Gonzales pushed for the expansive definition of torture in the memos, but Gonzales refuses to admit to any of that in the questioning.
Ignoring the Uniform Code of Military Justice - Lindsey Graham (R-SC) tells Gonzales that the Justice Department memo was “entirely wrong in its focus” because it excluded the Uniform Code Of Military Justice, and that it “put our troops at jeopardy.” Gonzales replies that he does not think that because of the memo the US has lost “the moral high ground” in the world. Danner says, “[Graham] is arguing that these steps weakened the United States, not only by putting troops at risk, but by undermining the US’s reputation in the world, undermining the ideological side of this war… Graham is saying very directly that by torturing, and by supplying images like that one, of… a hooded man, the man with the hood over his head and the wires coming out of his fingers and his genitals which is known far and wide in the Arab world in the Middle East it’s become highly recognizable by supplying that sort of ammunition, you’re giving very, very strong comfort and aid to the enemy in fact.” (Goodman and Gonzales 1/7/2005)

The Senate Judiciary Committee brings in several experts to expand upon the testimony of attorney general nominee Alberto Gonzales (see January 6, 2005 and January 6, 2005). One of the most outspoken critics is Yale Law School dean Harold Koh. Koh had worked in the Justice Department’s Office of Legal Counsel (OLC) under Ronald Reagan, and later served as assistant secretary of state for democracy, human rights, and labor in the Clinton administration. He is a vocal critic of the Bush administration’s detention policies at Guantanamo and elsewhere. Koh had once worked closely with OLC lawyer John Yoo, the author of 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), but now, without explicitly mentioning Yoo by name, he repudiates his former student’s legal positions. Gonzales worked closely with Yoo to craft the administration’s positions on wiretapping, torture, the inherent power of the president, and other issues. “Having worked in both Democratic and Republican administrations, and for more than two years as an attorney in the Office of Legal Counsel, I am familiar with how legal opinions like this are sought and drafted,” Koh states. “I further sympathize with the tremendous pressures of time and crisis that government lawyers face while drafting such opinions. Nevertheless, in my professional opinion, the August 1, 2002 OLC memorandum [drafted by Yoo at Gonzales’s behest—see August 1, 2002] is perhaps the most clearly erroneous legal opinion I have ever read.” The August 1 memo, as well as other opinions by Yoo and Gonzales, “grossly overreads the inherent power of the president” as commander in chief, Koh testifies. The memos raise profound questions about the legal ethics of everyone involved—Gonzales, Yoo, and others in the Justice Department and White House. “If a client asks a lawyer how to break the law and escape liability, the lawyer’s ethical duty is to say no,” Koh testifies. “A lawyer has no obligation to aid, support, or justify the commission of an illegal act.” (Senate Judiciary Committee 1/7/2005 pdf file; Savage 2007, pp. 211-212)

Dennis Mahon, a white supremacist in Catoosa, Oklahoma (see 1973 and After, August 1994 - March 1995, November 1994, and February 9, 1996 and After), tells Rebecca Williams he committed multiple terrorist bombings since the early 1980s. Mahon is not aware that Williams is an informant working for the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATF), nor that Williams’s trailer, in which he makes his statements, is wired for both audio and video. Mahon is showing Williams an album of old pictures, his old Ku Klux Klan robe, and other memorabilia of his life in the white supremacist movement, when he tells Williams about the bombings he says he committed, many with his twin brother Daniel. The bombing targets included an abortion clinic, a Jewish community center, and the offices of IRS and immigration authorities. Mahon says he made his bombs with ammonium nitrate, fuel oil, and powdered sugar “for an extra bang,” and says he set the bombs off at 2 a.m. to avoid casualties but still send a message. Williams is one of the few informants to gain such access into what TPM Muckraker calls the “network of so-called ‘lone wolf’ extremists, a loose-knit group of racists and anti-government types who seem to always be looking for ways to start or win an ever-coming race war.” The same network produced “lone wolf” Timothy McVeigh, who killed 168 people in the Oklahoma City bombing (see 8:35 a.m. - 9:02 a.m. April 19, 1995). The BATF probe will result in investigations of the Mahons (see January 10, 2012 and After), as well as white supremacist leader Tom Metzger (see 1981 and After) and Missouri survivalist Robert Joos, who stockpiled weapons in caves on his farm near the Ozarks. On January 26, 2005, Williams moves into a rental trailer in the Catoosa trailer park and puts a Confederate flag sticker in her window. She is much younger than the 54-year-old Mahon and, according to TPM Muckraker, is both attractive and able to handle herself around dangerous males. (The BATF initially provides little background information on Williams to the media; later the media learns that her brother was a BATF informant who infiltrated a motorcycle gang, and that she became an informant for the money. She has formerly worked as, among other jobs, an exotic dancer.) The same day that she moves in, the Mahon brothers come over to introduce themselves. “I’m a girl and they’re guys and, you know, guys like to talk to pretty girls so they—we just started talking,” she later testifies. Williams will establish a friendship with the brothers that will last four years, most of it recorded by BATF cameras and microphones. Her pickup truck is wired, and she even has a microphone on her key chain. Within hours of meeting her, Dennis Mahon brags about the bombings he carried out, and Daniel Mahon speaks of drive-by shootings and car bombings. Daniel tells her: “We thought we were doing the right thing. We were just trying to send a message. When I would take someone’s car out, it wasn’t anger. It was a sense of duty. It is like a military operation. You plan for it, equip for it.” When Williams asks if they had ever sent package bombs, Dennis whispers, “In Tempe, Arizona, Godd_mn diversity officer, Scottsdale Police Department, had his fingers blown off.” He then backs away from his admission and says he showed “white cops how to do it.” Williams is flirtatious with the brothers, and mails them photographs of herself in a bikini with a grenade hanging from around her neck, and of her standing in front of a swastika flag. Williams’s investigation documents the Mahons’ close connection to Metzger, Joos, and other white supremacists; Joos will be convicted of multiple weapons charges, but Metzger will not be charged with any crime (see June 25, 2009). (Martin 1/10/2012; Myers 1/26/2012)

The Justice Department issues a secret opinion that countermands and contradicts the administration’s official policy that torture is “abhorrent” and will not be practiced by US military or law enforcement officials (see December 30, 2004). The secret opinion is, the New York Times writes two years later while publicly revealing its existence, “an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.” The opinion gives explicit authorization to abuse detainees with a combination of physical and psychological abuse, including head-slapping, stress positioning, simulated drowning (“waterboarding”), and prolonged exposure to intense cold. New attorney general Alberto Gonzales (see November 10, 2004) approves the memo over the objections of deputy attorney general James Comey, himself preparing to leave the Justice Department after a series of battles over the legality of torture and the domestic surveillance program (see March 10-12, 2004). Comey says at the time that everyone at the department will be “ashamed” of the new opinion once the world learns of it. (Shane, Johnston, and Risen 10/4/2007)

The New York Times reports that, according to current and former government officials, there is “widening unease within the Central Intelligence Agency over the possibility that career officers could be prosecuted or otherwise punished for their conduct during interrogations and detentions of terrorism suspects.” The conduct is questionable because it is said to amount to torture in some cases (see Mid-May 2002 and After, Shortly After September 6, 2006 and March 10-April 15, 2007). At this time, only one CIA contractor has been charged with a crime, after a prisoner died in Afghanistan. However, at least half a dozen other investigations by the Justice Department and the CIA’s Inspector General are ongoing, and involve actions in Afghanistan, Iraq, and possibly “black sites” in other countries. An official says, “There’s a lot more out there than has generally been recognized, and people at the agency are worried.” (Jehl and Johnston 2/27/2005) Apparently due to these fears, some officers purchase legal insurance policies. (Cochran 12/15/2007)

Abu Bakar Bashir.Abu Bakar Bashir. [Source: US National Counterterrorism Center]Abu Bakar Bashir, allegedly the spiritual leader of Jemaah Islamiyah, al-Qaeda’s main affiliate in Southeast Asia, is acquitted of most charges in a trial in Indonesia. Bashir, a well-known radical imam, had been accused of involvement in the 2002 Bali bombings (see October 12, 2002) and 2003 Marriott Hotel bombing (see August 5, 2003). However, he is only convicted of one charge of criminal conspiracy, because the judges say he knew the bombers and his words may have encouraged them. Bashir is sentenced to 30 months in prison, but is released after serving only one year due to good behavior. In late 2006, the Indonesian supreme court will void his one conviction altogther. (Bonner 3/4/2005; Associated Press 12/26/2006) The New York Times will later report: “Legal observers here said the case against Mr. Bashir was weak. The strongest evidence linking him to the Bali terrorist attacks was never heard by the five-judge panel because of a decision by the Bush administration that the Indonesian government would not be allowed to interview two senior al-Qaeda operatives, Riudan Isamuddin, better known as Hambali, and Omar al-Faruq.” The CIA has been holding Hambali and al-Faruq in secret prisons since 2003 and 2002 respectively (see August 12, 2003 and June 5, 2002). (Bonner 6/14/2006) One Indonesian counterterrorism official says: “We need[ed] Hambali very much. We [fought] to get access to him, but we have failed.” An unnamed Australian official complains that the US was hypocritical in pressing Indonesia to prosecute Bashir and then doing nothing to help convict him. (Bonner 3/4/2005) Al-Faruq allegedly told the CIA that Bashir had provided logistical and financial support for several terrorist attacks, but he was also interrogated by techniques considered close to torture. The US allowed Indonesian officials to directly interrogate al-Faruq in 2002, but then prohibited any later access to him (see June 5, 2002). And shortly after Hambali’s arrest in 2003, President Bush promised to allow Hambali to be tried in Indonesia, but then failed to even give Indonesians any access to him (see October 23, 2003).

On March 18, 2005, Mouhannad Almallah is arrested in Madrid, Spain. The next day, his brother Moutaz Almallah is arrested in Slough, near London. Both are accused of involvement in the 2004 Madrid train bombings (see 7:37-7:42 a.m., March 11, 2004). (Khan 3/20/2005) The arrests come less than two weeks after it was widely reported that in 2004 police had found a sketch of the New York Grand Central Station terminal in an apartment where Mouhannad was living, leading to suspicions that he was involved in a planned attack on New York. (Escriva and Marraco 3/2/2005) It appears that Moutaz was under surveillance in Spain for al-Qaeda links since 1995, and Mouhannad since 1998 (see November 1995). Mouhannad was arrested shortly after the Madrid bombings, but then released (see March 16, 2004). Moutaz will be extradited to Spain in March 2007, but he has yet to be put on trial. (Reuters 3/8/2007) In 2007, Mouhannad will be sentenced to 12 years in prison for a role in the Madrid bombings (see October 31, 2007).

Zacarias Moussaoui wants captured al-Qaeda leaders Khalid Shaikh Mohammed and Ramzi bin al-Shibh to testify in his trial. However, an appeals court in April 2004 had only allowed indirect access to those prisoners, and further appeals court decisions in September and October 2004 had reaffirmed that ruling. On this date, the US Supreme Court, without comment, refuses to hear a further appeal. This was expected because the Supreme Court typically doesn’t hear such appeals until after the case goes to trial. (Markon 9/14/2004; Markon 10/14/2004; Markon 3/22/2005) Moussaoui’s guilty plea one month later (see April 22, 2005) may lead to a new round of appeals. Presiding judge Leonie Brinkema has indicated she believes witness access is “highly relevant to the sentencing phase,” which will begin next, and could constitute “mitigating evidence” that could make the difference between Moussaoui receiving the death penalty or not. (Markon 4/23/2005)

Dr. Michael Gelles, the head psychologist for the Naval Criminal Investigative Service (NCIS), says that torture and coercion do not produce reliable information from prisoners. Gelles adds that many military and intelligence specialists share his view. Gelles warned of problems with torture and abuse at Guantanamo nearly three years ago (see Early December, 2002 and December 18, 2002). And he is frustrated that Bush administration officials have “dismissed” critics of coercive techniques as weaklings and “doves” who are too squeamish to do what is necessary to obtain information from terror suspects. In reality, Gelles says, many experienced interrogators are convinced that torture and coercion do more harm than good. Gelles has extensive experience with interrogations in Iraq, Afghanistan, and Guantanamo, and notes that NCIS had interrogated Muslim terror suspects well before 9/11, including investigations into the 2000 bombing of the USS Cole (see October 12, 2000) and the 1983 bombing of a Marine barracks in Lebanon (see April 18-October 23, 1983).
'Rapport-Building' - The best way to extract reliable intelligence from a Muslim extremist, Gelles says, is through “rapport-building”—by engaging the suspect in conversations that play on his cultural sensitivities. Similar techniques worked on Japanese soldiers during the height of battles during World War II (see July 17, 1943). Gelles says he and others have identified patterns of questioning that can elicit accurate information from Islamist radicals, but refuses to discuss them specifically. “We do not believe—not just myself, but others who have to remain unnamed—that coercive methods with this adversary are… effective,” he says. “If the goal is to get ‘information,’ then using coercive techniques may be effective. But if the goal is to get reliable and accurate information, looking at this adversary, rapport-building is the best approach.”
Conflict between Experts, Pentagon Civilians - Gelles describes a sharp division between interrogation specialists such as himself, and civilian policymakers at the Pentagon. Many government specialists, including fellow psychologists, intelligence analysts, linguists, and interrogators who have experience extracting information from captured Islamist militants, agree with Gelles that coercion is not effective, but top civilians in the Office of the Secretary of Defense disagree. Coercive interrogations try to “vacuum up all the information you can and figure out later” what is true and what is not, he says. This method jams the system with false and misleading data. Gelles compares it to “coercive tactics leading to false confessions” by suspects in police custody. Many at the Pentagon and elsewhere mistake “rapport-building” techniques for softness or weakness. Just because those interrogations are not humiliating or physically painful, Gelles says, the techniques are not necessarily “soft.” Telling a detainee that he is a reprehensible murderer of innocents is perfectly acceptable, Gelles says: “Being respectful doesn’t mean you don’t confront, clarify, and challenge the detainee when he gives the appearance of being deceptive.” On the other hand, coercive techniques induce detainees to say anything to make the pain and discomfort stop. “Why would you terrify them with a dog?” Gelles asks, referring to one technique of threatening detainees with police dogs. “So they’ll tell you anything to get the dog out of the room?” Referring to shackling prisoners in “stress positions” for hours on end, Gelles adds: “I know there is a school of thought that believes [stress positions] are effective. In my experience, I’ve never seen it be of any value.” Innocent suspects will confess to imagined crimes just to stop the abuse, Gelles says.
Other Harmful Consequences - Gelles also notes that coercive techniques undermine the possibility of building rapport with the prisoner to possibly gain information from him. And, he says, unless the prisoner is either killed in custody or detained for life, eventually he will be released to tell the world of his captivity, damaging America’s credibility and moral authority. (Savage 3/31/2005; Savage 2007, pp. 217-218)

The DC federal appeals court rules in favor of the attorney general’s use of the state secrets privilege (see March 9, 1953, October 18, 2002 and May 19, 2004) to prevent the court from hearing Sibel Edmonds’ lawsuit (see June 2002). Lawyers for the Justice Department had addressed the judge behind sealed doors. (Rose 9/2005)

The FBI searches the home that once belonged to convicted Oklahoma City bombing conspirator Terry Nichols (see December 23, 1997 and May 26, 2004) and finds explosive materials related to the 1995 bombing (see 8:35 a.m. - 9:02 a.m. April 19, 1995). The bureau acts on a tip that it missed evidence in its search a decade earlier (see 3:15 p.m. and After, April 21-22, 1995). Blasting caps and other explosive materials were concealed in a crawl space of the Herington, Kansas, home, buried under about a foot of rock, dirt, and gravel, an area not searched in the 1995 investigation. FBI agent Gary Johnson says, “[T]he information so far indicates the items have been there since prior to the Oklahoma City bombing.” Nichols’s lawyer, Brian Hermanson, says the discovery is either a hoax or evidence of a major failure by the FBI: “They were there often. It’s surprising. I would think they would have done their job and found everything that was there. But I’m still suspicious that it could be something planted there. The house was empty for several years.” (Associated Press 4/2/2005) Reportedly, Nichols has admitted conspiring to build the bomb that destroyed the Murrah Federal Building in Oklahoma City (see November 30, 2004).

White supremacist Matthew Hale, the leader of the World Church of the Creator (WCOTC—see May 1996 and After), receives a 40-year sentence for soliciting the murder of US District Court Judge Joan Lefkow (see January 9, 2003). Lefkow ruled against Hale’s group in a trademark dispute (see November 2002). Hale is sentenced after a rambling, two-hour statement in which he claims he is the victim. “I have to go back to a solitary cell—I have to go back to hell,” Hale tells Judge James Moody. “They want me to die in a hole.” In his statement, Hale compares the FBI to the Gestapo, says the national news media was out to get him, blames his former lawyer for representing him poorly, and chants the national anthem. He claims that he and Lefkow are “on the same side against these liars.” Moody, unmoved by Hale’s statement, gives Hale the maximum sentence for his crimes. US Attorney Patrick Fitzgerald argued that Hale’s crime was essentially an act of domestic terrorism and Moody agrees. “Mr. Hale is not concerned about taking someone’s life, but rather how to do it without getting caught,” Moody says. “I consider Mr. Hale to be extremely dangerous and the offense for which he was convicted to be extremely egregious.” After the ruling, Fitzgerald tells reporters, “I put no stock in his claims, the crocodile tears, that he didn’t do anything wrong.” Hale’s mother, Evelyn Hutcheson, tells reporters: “I think it’s absolutely horrible. “Matt’s the only one in there telling the… truth.” (National Public Radio 4/6/2005; Robinson 4/7/2005) Hale will serve his sentence at the Florence, Colorado, “supermax” prison, the same prison where convicted bombers Eric Rudolph (see July 18, 2005) and Ted Kaczynski (see April 3, 1996) are held. (Korecki 4/28/2005)

Anti-abortion activist Eric Rudolph, who has pled guilty to bombing abortion clinics (see January 16, 1997 and January 29, 1998), a gay and lesbian nightclub (see February 21, 1997), and the 1996 Olympics (see July 27, 1996 and After and October 14, 1998) in a series of court proceedings, releases an 11-page “manifesto” that explains the rationale behind his bombing spree. In the document, which the Associated Press terms “[a] sometimes-rambling, sometimes-reflective” statement, Rudolph writes that he considers himself a “warrior” against abortion, which he calls murder, and the US government, which he charges with permitting the “slaughter” of “innocent babies.” Rudolph will receive four life sentences without parole in return for the prosecution removing the death penalty from consideration (see July 18, 2005). He has also alerted authorities to a large stash of explosives he created while hiding in the mountains of western North Carolina.
Abortion Providers, Lawmakers 'Legitimate Targets' in 'War' - The “holocaust” of abortion is his driving impulse, Rudolph writes in his statement. Anyone who supports or allows abortion, he writes, is an enemy deserving of death. “Because I believe that abortion is murder, I also believe that force is justified… in an attempt to stop it,” he writes, “whether these agents of the government are armed or otherwise they are legitimate targets in the war to end this holocaust.… Abortion is murder. And when the regime in Washington legalized, sanctioned, and legitimized this practice, they forfeited their legitimacy and moral authority to govern.”
Rationale for Bombing Olympics - Rudolph also writes that the Olympic bombing was envisioned as the first in a weeklong campaign of bombings designed to shut down the Olympics, held in Atlanta, and embarrass the US government as a result. He had hoped to use high-grade explosives to shut down the Atlanta power grid and force the termination of the Olympics, but was unable to procure the explosives, and calls the results of his bombing a “disaster.” He writes: “In the summer of 1996, the world converged upon Atlanta for the Olympic Games. Under the protection and auspices of the regime in Washington, millions of people came to celebrate the ideals of global socialism. Multinational corporations spent billions of dollars, and Washington organized an army of security to protect these best of all games. Even though the conception and purpose of the so-called Olympic movement is to promote the values of global socialism, as perfectly expressed in the song Imagine by John Lennon, which was the theme of the 1996 Games even though the purpose of the Olympics is to promote these despicable ideals, the purpose of the attack on July 27 was to confound, anger, and embarrass the Washington government in the eyes of the world for its abominable sanctioning of abortion on demand.”
Racist, Homophobic Views - In the document, Rudolph attacks homosexuality as an “aberrant” lifestyle, and blames the government for condoning it. He denies holding racist or anti-Semitic views (Associated Press 4/13/2005; Gross 4/14/2005; CNN 4/19/2005) , though his ex-sister-in-law Deborah Rudolph told reporters that Rudolph believed abortion was part of a plot to undermine the white race; she said, “He felt like if woman continued to abort their white babies, that eventually the white race would become a minority instead of a majority.” Others have said that Rudolph told them he believed the Holocaust never occurred. (CNN 6/15/2002)
'Worse to Him than Death' - After Rudolph’s guilty plea, Deborah Rudolph says of the prospects of his life in jail, “Knowing that he’s living under government control for the rest of his life, I think that’s worse to him than death.” (Associated Press 4/13/2005) Rudolph, Prisoner No. 18282-058, will be incarcerated in a tiny cell in the Federal Correctional Complex in Florence, Colorado, colloquially known as the “Supermax” facility. Rudolph lives on “bomber’s row” along with Ted Kaczynski, the so-called “Unabomber” (see April 3, 1996), Islamist terrorist Ramzi Yousef (see February 7, 1995), “shoe bomber” Richard Reid (see December 22, 2001), and Oklahoma City bomber Terry Nichols (see 8:35 a.m. - 9:02 a.m. April 19, 1995). After his imprisonment, he releases a statement that reads in part, “The talking heads on the news [will] opine that I am ‘finished,’ that I will ‘languish broken and unloved in the bowels of some supermax,’ but I say to you people that by the grace of God I am still here—a little bloodied, but emphatically unbowed.” (Freeman 8/24/2006)

Zacarias Moussaoui.
Zacarias Moussaoui. [Source: Sherburne County Sheriffs Office]In an unexpected move, Zacarias Moussaoui pleads guilty to all six terrorism conspiracy charges against him. Moussaoui had been arrested weeks before 9/11, and was formally charged in December 2001 for his role in the 9/11 plot. He says it is “absolutely correct” that he is guilty of the charges: conspiracy to commit acts of terrorism transcending national boundaries; to commit aircraft piracy; to destroy aircraft; to use weapons of mass destruction; to murder US government employees; and to destroy US government property. However, he says, “I was not part of 9/11,” but rather claims he was part of a “broader conspiracy” aimed at post-9/11 attacks. He says he was personally directed by bin Laden to pilot a 747 and “strike the White House” with it, but as part of a “different conspiracy than 9/11.” His plea means there will be no trial to determine guilt, but there will still be a trial to determine his sentencing, which could be as severe as the death penalty. He promises to fight in the sentencing phase, stating he doesn’t deserve death because he was not directly connected to the 9/11 plot. (Arena and Hirschkorn 4/23/2005; Markon 4/23/2005) A CNN legal analyst notes that Moussaoui’s guilty plea “makes little sense.” Moussaoui may have actually had a chance to be proven not guilty because of the many thorny legal issues his case raises (two suspected members of the al-Qaeda Hamburg cell have been found not guilty in German courts because they have not been allowed access to testimony from al-Qaeda prisoners who might exonerate them, and Moussaoui so far has been denied access to those same prisoners (see March 22, 2005)). It is pointed out that Moussaoui gave a guilty plea without “any promise of leniency in exchange for his plea,” and that he is unlikely to gain any sympathetic advantage from it in the death penalty trial. CNN’s analyst notes that the statements in his plea “suggest that Moussaoui [mistakenly] thought he had tricked the prosecution.” Doubts still remain whether Moussaoui is fully mentally sound and capable of legally defending himself. (Dorf 4/28/2005) A counterterrorism expert for RAND Corporation says of Moussaoui’s rather confusing statements, “If we thought by the end of the day we would find the holy grail as to exactly what the genesis of 9/11 was and what Moussaoui’s role in it was, we have been sorely disappointed. This contradiction in his behavior raises more questions than it answers.” The Washington Post notes that, “It remains uncertain” whether the death penalty trial “will divulge much new information about the plot.” (Eggen 4/23/2005)

A high-ranking Yemeni defector alleges that the highest ranks of Yemen’s military and security forces have long collaborated with radical militants in the country. The defector, Ahmed Abdullah al-Hasani, was head of Yemen’s navy at the time of the USS Cole bombing (see October 12, 2000) and recently served as its ambassador to Syria. Al-Hasani claims that the perpetrators of the USS Cole attack “are well known by the regime and some are still officers in the national army.” The Yemeni government hindered the Cole investigation (see After October 12, 2000). Al-Hasani also says that Ali Mohsen al-Ahmar, an army commander who is the half-brother of President Ali Abdallah Saleh and has links with radical militants (see 1980-1990 and May 21-July 7, 1994), was involved in a plot to kidnap Western tourists in 1998 (see December 26, 1998 and December 28-29, 1998). Al-Hasani arrived in Britain with his family, and is apparently debriefed by Western intelligence agencies. He claims to have fallen out with President Saleh over discrimination against southern Yemenis and fears he will be assassinated if he returns home. Yemeni authorities dismiss al-Hasani’s claims. “All these allegations are untrue and groundless,” says a government spokesman. “This man is making these allegations in order to legitimise and give significance to his claim of asylum.” (Gadher 5/8/2005)

A courtroom sketch of Leonie Brinkema.A courtroom sketch of Leonie Brinkema. [Source: Art Lein / Agence France-Presse]Leonie Brinkema, the federal judge overseeing the prosecution of Zacarias Moussaoui, denies a request to make public an unclassified version of a report on the FBI’s failure to stop the 9/11 attacks. The report, written by the Justice Department’s Inspector General Glenn Fine, was completed in July 2004 (see July 2004) has been held up from publication because of the Moussaoui trial. One portion of the report deals with the FBI’s handling of Moussaoui’s arrest in August 2001 (see August 16, 2001). However, he pleaded guilty earlier in April (see April 22, 2005). Judge Brinkema doesn’t give an explanation for continuing to keep the report classified or hint when it might finally be unclassified. Most of the report has no bearing on Moussaoui. (Eggen 4/30/2005) The report will be released two months later with the section on Moussaoui completely removed (see June 9, 2005).

Author Gerald Posner has claimed that shortly after al-Qaeda leader Abu Zubaida was captured in late March 2002 (see March 28, 2002), he was tricked into thinking he had been handed over to the Saudis and then confessed high-level cooperation between al-Qaeda and the Saudi and Pakistani governments. Posner’s account has since been corroborated by New York Times journalist James Risen (see Early April 2002). In a 2005 book, Posner further alleges: “From conversations with investigators familiar with the [9/11 Commission’s] probe, the portions of Zubaida’s interrogation in which he named [Saudi and Pakistani connections] were not provided to the Commission. The CIA has even withheld [them] from the FBI, which is supposed to have access to all terror suspects’ questioning.” (Posner 2005, pp. 14) There is some circumstantial evidence to support this. Aside from the alleged Saudi trickery, Zubaida reportedly confessed vital intelligence in late March and into April 2002, including the previously unknown fact that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks (see Late March through Early June, 2002). But footnotes from various 9/11 Commission reports indicate that the earliest Zubaida interrogation used by the Commission is from May 23, 2002, after a new CIA team had taken over his interrogation (see Mid-May 2002 and After). (9/11 Commission 8/21/2004, pp. 65 pdf file) Hundreds of hours of Zubaida’s interrogation sessions have been videotaped by the CIA, but these videotapes will be destroyed by the CIA in 2005 under controversial circumstances (see November 2005).

Abu Faraj al-Libbi.Abu Faraj al-Libbi. [Source: Pakistani Interior Ministry]Al-Qaeda leader Abu Faraj al-Libbi is arrested in Mardan, Pakistan, near the town of Peshawar. He is captured by Pakistani forces with US assistance. Pakistani President Pervez Musharraf will later claim that he doesn’t even tell the US about al-Libbi’s capture until a few days after it happened (and the first media account comes out three days later), so apparently Pakistan interrogates him on their own for a few days. Al-Libbi is that turned over to the US and detained in a secret CIA prison (see September 2-3, 2006). (Sengupta 5/5/2005; Musharraf 2006, pp. 209)
Some Call Al-Libbi High-Ranking Leader - In 2004, the Daily Telegraph claimed al-Libbi was Khalid Shaikh Mohammed’s “right hand man” and helped him plan the 9/11 attacks. After Mohammed was arrested in early 2003 (see February 29 or March 1, 2003), Al-Libbi allegedly took his place and became the third in command of al-Qaeda and the group’s operational leader. Furthermore, the Telegraph claims he was once Osama bin Laden’s personal assistant, helped plan two assassination attempts against Pakistani President Pervez Musharraf (see December 14 and 25, 2003), and has been in contact with sleeper cells in the US and Britain. (Ansari 9/19/2004) The same month, MSNBC made the same claims. They also called him al-Qaeda’s number three leader and operational commander. (Windrem 9/7/2004) President Bush hails al-Libbi’s capture as a “critical victory in the war on terror.” Bush also calls him a “top general” and “a major facilitator and chief planner for the al-Qaeda network.”
Al-Libbi Little Known to Media and Experts - But al-Libbi is little known at the time of his arrest and some experts and insiders question if he really is as important as the US claims. The London Times will report several days after his arrest, “[T]he backslapping in Washington and Islamabad has astonished European terrorism experts, who point out that the Libyan was neither on the FBI’s most wanted list, nor on that of the State Department ‘Rewards for Justice’ program.” One former close associate of Osama bin Laden now living in London laughs at al-Libbi’s supposed importance, saying, “What I remember of him is he used to make the coffee and do the photocopying.” Even a senior FBI official admits that his “influence and position have been overstated.” The Times comments, “Some believe [his] significance has been cynically hyped by two countries [the US and Pakistan] that want to distract attention from their lack of progress in capturing bin Laden, who has now been on the run for almost four years.” (Lamb and Islamabad 5/8/2005) However, later revelations, such as details on al-Libbi’s interrogation (see Shortly After May 2, 2005 and Late 2005), will provide more evidence that al-Libbi in fact was al-Qaeda’s operational leader. It is not known why the FBI did not have him on their most wanted list, if MSNBC and the Telegraph newspaper and other sources were already aware of his importance in 2004.

Some time after he is captured in May 2005 (see May 2, 2005), al-Qaeda leader Abu Faraj al-Libbi tells his CIA interrogators that he has never heard of Ibrahim Saeed Ahmed. CIA analysts already strongly suspect that Ahmed is a trusted courier working for Osama bin Laden, but they only know him by his main alias Abu Ahmed al-Kuwaiti.
Al-Libbi's False Claims - Al-Libbi tells his interrogators that he does not know who “al-Kuwaiti” is. Instead, he admits that when 9/11 mastermind Khalid Shaikh Mohammed (KSM) was captured in 2003 and al-Libbi was chosen to replace him as al-Qaeda’s operational chief, he was told the news of his selection by a courier. But he says the courier was someone named Maulawi Abd al-Kahliq Jan. CIA analysts never find anyone using this name, and eventually they will conclude that al-Libbi made it up to protect Ahmed (see Late 2005). Later, the CIA will learn Ahmed’s real name, and this fact will eventually lead to bin Laden’s location (see Summer 2009 and July 2010).
False Claims Made While Tortured? - The interrogation techniques used on al-Libbi are unknown. However, days after his capture, the CIA pressures the Justice Department for new legal memorandums approving the use of very brutal methods. (Goldman 5/2/2011; Shane and Savage 5/3/2011)

Maussili Kalaji.Maussili Kalaji. [Source: El Mundo]The Madrid newspaper El Mundo reveals some curious details about Spanish police officer Ayman Maussili Kalaji and the 2004 Madrid bombings (see 7:37-7:42 a.m., March 11, 2004):
bullet Born in Syria, Kalaji belonged to the militant group Al Fatah and was also a Soviet intelligence agent. He moved to Spain in the early 1980s as a political refugee and eventually became a citizen and joined the national police by the late 1980s. He rose through the ranks and at some point he was the bodyguard to Baltasar Garzon, the Spanish judge presiding over trials of al-Qaeda-linked militants in Spain such as Barakat Yarkas.
bullet In 1995, Kalaji sold an apartment to Moutaz Almallah. Almallah is considered a key link between the bombing cell and al-Qaeda operatives overseas. His apartment is said to be a nerve center for the plot. Kalaji admits to being in close contact with Almallah.
bullet When a different apartment owned by Almallah was raided after the Madrid bombing, two documents were found with Kalaji’s name on it. One referenced the 1995 purchase, and the second was from 2001. This apartment, on Virgen de Coro street in Madrid, was a key hub of the Madrid bombers and was under surveillance for a full year leading up to the bombings (see January 17, 2003-Late March 2004).
bullet Kalaji is also said to have been on friendly terms with Barakat Yarkas, the leader of the al-Qaeda cell in Madrid until his arrest in November 2001. Kalaji played a role in the arrest.
bullet In 2001, Kalaji was investigated for credit card fraud.
bullet For many years, Kalaji’s sister Lina Kalaji was in charge of translating the monitored telephone calls from Islamist cells in Spain. In 2002, she translated the intercepts of Serhane Abdelmajid Fakhet, considered one of the bombing masterminds (see 2002).
bullet His ex-wife Marisol Kalaji is also a police officer and was the first on the scene to a van discovered the day of the bombings containing a cassette tape of the Koran. This is what first led investigators to believe the bombing was the work of Islamist and not Basque militants (see 10:50 a.m.-Afternoon, March 11, 2004).
bullet He owns a cell phone store. The phones used to trigger the bombs were bought in a different store, but in Kalaji’s store the phones’ internal codes were reset so they could be used by other phone services.
He is said to go on leave not long after the bombings, due to all his curious connections. He also gives a statement to investigators regarding his role in changing the phone codes, but he is not charged for any crime. (El Mundo (Madrid) 5/17/2005; Gaffney 5/18/2005; El Mundo (Madrid) 5/20/2005; Mugica 8/22/2005) For days after El Mundo publishes its first story about Kalaji, a Spanish police commissioner will officially request Kalaji be arrested, but apparently he never is (see May 20, 2005). In August 2005, El Mundo will conclude that “it is becoming increasingly evident” that Kalaji played a “leading role” in the Madrid bombings. (Mugica 8/22/2005) Almallah will be arrested in Britain in 2005 and extradited to stand trial in Spain in 2007 (see March 18-19, 2005). (London Times 3/9/2007)

Ali Soufan.Ali Soufan. [Source: CBS News]Ali Soufan resigns from the FBI. As an Arabic-speaking Muslim who joined the FBI long before 9/11 (see November 1997), Soufan has become one of the FBI’s best interrogators and experts on al-Qaeda. However, in a 2011 book, he will claim that he grew increasingly frustrated due to the CIA’s opposition to his work. “It was… clear that some high-level people at the time were specifically targeting me—I was told that by more than a few FBI executives and CIA colleagues,” he will write. “Ever since I had been interviewed by the 9/11 Commission, I was a marked man.” In 2004, Soufan gave information to the 9/11 Commission that made the CIA look bad. He will claim there were instances when the FBI wanted him to go overseas as part of an investigation but the CIA tried to prevent him from doing so. (Soufan 2011, pp. 515-517, 522-523)

Steven Bradbury, the acting head of the Justice Department’s Office of Legal Counsel, issues a classified memo. The contents and the recipient remain secret, but the American Civil Liberties Union (ACLU) will later determine the memo deals with the use of “enhanced interrogation techniques” by the CIA. In early May, Bradbury determined that none of the CIA’s past or present interrogation methods violated either federal or international standards (see May 10, 2005). (American Civil Liberties Union [PDF] 1/28/2009 pdf file)

The FBI and Justice Department quietly open an investigation into whether Representative Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee, improperly colluded with the American Israel Public Affairs Committee (AIPAC) to win reappointment as the committee’s ranking member. The investigation is not revealed to the public until October 2006 (see October 20, 2006). The investigation centers on allegations that Harman and AIPAC arranged for wealthy supporters to lobby House Minority Leader Nancy Pelosi (D-CA) on Harman’s behalf. The case is an outgrowth of a probe that has already led to the felony conviction of former DIA official Larry Franklin, who pled guilty to giving classified information to two AIPAC lobbyists (see October 5, 2005), and the lobbyists, Steve Rosen and Keith Weissman, who still face charges of passing that information on to Israel (see April 13, 1999-2004). The investigation has now expanded to determine if Harman’s campaign to persuade Pelosi to reappoint her to the committee may have involved AIPAC, and whether Harman promised to return the favor by using her influence to persuade the Justice Department to ease up on the AIPAC lobbyists. Reporter Timothy Burger will write: “If that happened, it might be construed as an illegal quid pro quo, depending on the context of the situation. But the sources caution that there has been no decision to charge anyone and that it is unclear whether Harman and AIPAC acted on the idea.” Both Harman and Pelosi are outspoken supporters of Israel, and have praised AIPAC for its efforts to further cement ties between Israel and the US. However, Congressional sources will say that Pelosi is furious at attempts by major donors to lobby on behalf of Harman. The LA Weekly reported in May that Harman “had some major contributors call Pelosi to impress upon her the importance of keeping Jane in place. According to these members, this tactic, too, hasn’t endeared Harman to Pelosi.” Another powerful figure has lobbied for Harman: entertainment industry billionaire Haim Saban, who made his fortune through the Mighty Morphin Power Rangers children’s entertainment franchise. It is unclear whether Saban had any contact with AIPAC, and if his efforts to lobby on Harman’s behalf were part of a larger, more orchestrated plan. (Burger 10/20/2006) When the story becomes public in October 2006, Harman will deny any improper or illegal conduct (see October 20, 2006). The investigation will eventually be dropped, supposedly for “lack of evidence.” In April 2009, evidence will surface that the NSA wiretapped Harman discussing a quid pro quo with a suspected Israeli agent, and that the investigation was not dropped because of lack of evidence, but because of the intervention of Attorney General Alberto Gonzales (see October 2005, Late 2005, and April 19, 2009). (Stein 4/19/2009)

In a Columbus, Ohio, speech praising the USA Patriot Act (see October 26, 2001), President Bush claims that when US government agencies wiretap anyone’s phones or email communications, they do so with a court order. Bush says: “Before the Patriot Act, agents could use wiretaps to investigate a person committing mail fraud, but not to investigate a foreign terrorist. The Patriot Act corrected all these pointless double standards—and America is safer as a result. One tool that has been especially important to law enforcement is called a roving wiretap. Roving wiretaps allow investigators to follow suspects who frequently change their means of communications. These wiretaps must be approved by a judge, and they have been used for years to catch drug dealers and other criminals. Yet, before the Patriot Act, agents investigating terrorists had to get a separate authorization for each phone they wanted to tap. That means terrorists could elude law enforcement by simply purchasing a new cell phone. The Patriot Act fixed the problem by allowing terrorism investigators to use the same wiretaps that were already being using against drug kingpins and mob bosses. The theory here is straightforward: If we have good tools to fight street crime and fraud, law enforcement should have the same tools to fight terrorism.” (White House 6/9/2005) Bush made almost identical claims a year ago (see April 19-20, 2004). The same day as Bush makes his speech, the White House issues a fact sheet making the same claims (see June 9, 2005). Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004), who helped install the equipment used by the National Security Agency (NSA) and his firm to intercept foreign and domestic Internet communications (see January 16, 2004), will later say that Bush’s insistence that the administration gets court orders before wiretapping communications is false. AT&T, on behalf of the NSA, was monitoring “billions of messages a second,” Klein will write, all without court orders. (Klein 2009, pp. 47-48)

Steven Bradbury.Steven Bradbury. [Source: Mark Wilson / Getty Images]Steven Bradbury is nominated by President Bush to head the Justice Department’s Office of Legal Counsel (OLC). He will continue in that position on an acting basis into 2008, even though Congressional Democrats refuse to confirm him for the job, and even though his continuation in the post violates the Vacancies Reform Act, which precludes non-confirmed appointees for holding their positions for over 210 days (see October 16, 2007). (Ward 9/20/2007; Shane, Johnston, and Risen 10/4/2007; Ackerman 10/19/2007) Bradbury takes over from Jack Goldsmith, who resigned the position under fire (see June 17, 2004).
Arm of the White House - Bradbury has a long history of supporting the White House’s agenda of expansive executive power. He came to the Justice Department after clerking with Supreme Court Justice Clarence Thomas and mentoring under former Whitewater special counsel Kenneth Starr. (Shane, Johnston, and Risen 10/4/2007) A co-founder of the Federalist Society (Shenon 10/15/2007) , he is as staunchly conservative as any Bush appointee, but unlike some of the more outspoken of his colleagues, he comes across as low-key, pragmatic, and non-confrontational. As a Justice Department lawyer, Bradbury proved himself in line with the neoconservative views of Vice President Dick Cheney and Cheney’s chief of staff, David Addington. Former State Department senior official Philip Zelikow recalls Bradbury as being “fundamentally sympathetic to what the White House and the CIA wanted to do.” Bradbury was brought in to the OLC in part to rein in that office, which under its previous head Jack Goldsmith became the hub of the internal opposition to Bush’s policies of “enhanced interrogation” and domestic surveillance (see Late 2003-2005). In 2005, Bradbury signs two secret Justice Department memos giving broad authorization and legal justification for the CIA’s torture of terrorist suspects (see February 2005 and Late 2005),. Bradbury works closely with then-White House counsel and current attorney general Alberto Gonzales to bring the Justice Department back into line with White House demands. Conservative legal scholar Douglas Kmiec, who headed the OLC under former presidents Reagan and George H. W. Bush, says he believes the intense pressures from the current administration’s campaign against terrorism has warped the OLC’s proper role. “The office was designed to insulate against any need to be an advocate,” Kmiec says. Now the OLC has “lost its ability to say no.… The approach changed dramatically with opinions on the war on terror. The office became an advocate for the president’s policies.”
Probation - Bradbury was first considered for the job after Gonzales, newly confirmed as attorney general, rejected the idea of promoting Daniel Levin, the acting head of the OLC after Goldsmith’s departure. Gonzales considered Levin unsuitable for the job because of his independence and support for Goldsmith’s dissents. Instead, Gonzales chose Bradbury for the job. But the White House was uncertain of Bradbury’s reliability, and so placed him on a sort of “internal trial,” monitored by Gonzales’s replacement at the White House, Harriet Miers. Miers judged Bradbury’s loyalty to the president and his willingness to work with Gonzales in justifying White House policy decisions. Bradbury reportedly understands that his “probation” is intended for him to show just how compliant and supportive he is of the White House, and he soon wins the confidence of the White House by completely aligning himself with Addington. (Shane, Johnston, and Risen 10/4/2007)
'Sordid criminal conspiracy' - Harper’s Magazine commentator and lawyer Scott Horton will write in November 2007 that it is obvious “Bradbury was picked for one reason: to provide continuing OLC cover for the torture conspirators.… The Justice Department’s strategy has been to cloak Bradbury’s torture memoranda in secrecy classifications and then to lie aggressively about their very existence.… This episode demonstrates once more the intimate interrelationship between the policies of torture, secrecy, and the right to lie to the public and the courts in the interests of shielding the Bush administration from public embarrassment. And once more the Justice Department is enlisted not in the enforcement of the law, but rather in a sordid criminal conspiracy.” (Horton 11/7/2007)

Donald Shepperd, on the June 24 CNN broadcast.Donald Shepperd, on the June 24 CNN broadcast. [Source: CNN]Within hours of returning from a Pentagon-sponsored “fact-finding” trip to the Guantanamo detention facility (see June 24-25, 2005), CNN military analyst Don Shepperd, as planned (see June 25, 2005), extolls the virtues of the Pentagon’s handling of detainees on a lineup of CNN news broadcasts. As per his most recent briefing, he does not mention the case of Mohammed al-Khatani (see August 8, 2002-January 15, 2003), who has suffered extensive brutality at the hands of his captors. Instead, his “analyses” are so uniformly laudatory that, as commentator Glenn Greenwald will observe, they are “exactly what it would have been had [Defense Secretary Donald] Rumsfeld himself written the script.” After returning from his half-day visit, he participates in a live telephone interview with CNN anchor Betty Nguyen. He opens with the observation: “I tell you, every American should have a chance to see what our group saw today. The impressions that you’re getting from the media and from the various pronouncements being made by people who have not been here, in my opinion, are totally false. What we’re seeing is a modern prison system of dedicated people, interrogators and analysts that know what they are doing. And people being very, very well-treated. We’ve had a chance to tour the facility, to talk to the guards, to talk to the interrogators and analysts. We’ve had a chance to eat what the prisoners eat. We’ve seen people being interrogated. And it’s nothing like the impression that we’re getting from the media. People need to see this, Betty.… I have been in prisons and I have been in jails in the United States, and this is by far the most professionally-run and dedicated force I’ve ever seen in any correctional institution anywhere.” Shepperd watched an interrogation, and he describes it thusly: “[T]hey’re basically asking questions. They just ask the same questions over a long period of time. They get information about the person’s family, where they’re from, other people they knew. All the type of things that you would want in any kind of criminal investigation. And these were all very cordial, very professional. There was laughing in two of them that we…” Nguyen interrupts to ask, “Laughing in an interrogation?” and Shepperd replies: “In the two of them that we watched. Yes, indeed. It’s not—it’s not like the impression that you and I have of what goes on in an interrogation, where you bend people’s arms and mistreat people. They’re trying to establish a firm professional relationship where they have respect for each other and can talk to each other. And yes, there were laughing and humor going on in a couple of these things. And I’m talking about a remark made where someone will smirk or laugh or chuckle.” In another CNN interview three days later, Shepperd reiterates and expands upon his initial remarks, and says of the detainees: “[W]e have really gotten a lot of information to prevent attacks in this country and in other countries with the information they’re getting from these people. And it’s still valuable.” CNN does not tell its viewers that Shepperd is president of The Shepperd Group, a defense lobbying and consulting firm. (CNN 6/24/2005; Greenwald 5/9/2008)

Retired Air Force General Donald Shepperd, a CNN news analyst, returns from a “fact-finding” trip to Guantanamo Bay (see June 24-25, 2005) prepared to provide Pentagon talking points to CNN audiences. Shepperd is remarkably candid about his willingness to serve as a Pentagon propagandist, writing in a “trip report” he files with his handlers, “Did we drink the ‘Government Kool-Aid?’—of course, and that was the purpose of the trip.” He acknowledges that “a one day visit does not an expert make” (Shepperd and his fellow analysts spent less than four hours touring the entire facility, all in the company of Pentagon officials), and notes that “the government was obviously going to put its best foot forward to get out its message.” He adds that “former military visitors are more likely to agree with government views than a more appropriately skeptical press.” Shepperd also sends an e-mail to Pentagon officials praising the trip and asking them to “let me know if I can help you.” He signs the e-mail, “Don Shepperd (CNN military analyst).” Shepperd’s e-mail is forwarded to Larry Di Rita, a top public relations aide to Secretary of Defense Donald Rumsfeld. Di Rita’s reply shows just how much control the Pentagon wields over the analysts. Di Rita replies, “OK, but let’s get him briefed on al-Khatani so he doesn’t go too far on that one.” Di Rita is referring to detainee Mohammed al-Khatani (see August 8, 2002-January 15, 2003), who had been subjected to particularly brutal treatment. Shepperd will, as planned, praise the Guantanamo detainee program on CNN in the days and hours following his visit to the facility (see June 24-25, 2005). (Greenwald 5/9/2008) He will say in May 2008: “Our message to them as analysts was, ‘Look, you got to get the importance of this war out to the American people.’ The important message is, this is a forward strategy, it is better to fight the war in Iraq than it is a war on American soil.” (Folkenflik 5/1/2008)

Gordon Cucullu.Gordon Cucullu. [Source: The Intelligence Summit]“Independent military analyst” Gordon Cucullu, a former Green Beret, is an enthusiastic participant in the Pentagon’s Iraq propaganda operation (see April 20, 2008 and Early 2002 and Beyond). Cucullu has just returned from a half-day tour of the Guantanamo detention facility (see June 24-25, 2005), and is prepared to give the Pentagon’s approved message to the media.
Talking Points Covered in Fox Appearance - In an e-mail to Pentagon official Dallas Lawrence, he alerts the department to a new article he has written for conservative Website FrontPage, and notes that he has appeared on an early-morning broadcast on Fox News and delivered the appropriate talking points: “I did a Fox & Friends hit at 0620 this morning. Good emphasis on 1) no torture, 2) detainees abuse guards, and 3) continuing source of vital intel.” (Greenwald 5/9/2008)
Op-Ed: Pampered Detainees Regularly Abuse Guards - In the op-ed for FrontPage, entitled “What I Saw at Gitmo,” he writes that the US is being “extraordinarily lenient—far too lenient” on the detainees there. There is certainly abuse going on at Guantanamo, Cucullu writes—abuse of soldiers by the detainees. Based on his three-hour tour of the facility, which included viewing one “interrogation” and touring an unoccupied cellblock, Cucullu says that the detainees “fight their captors at every opportunity” and spew death threats against the soldiers, their families, and Americans in general. The soldiers are regularly splattered with “feces, urine, semen, and spit.” One detainee reportedly told another, “One day I will enjoy sucking American blood, although their blood is bitter, undrinkable.” US soldiers, whom Cucullu says uniformly treat the detainees with courtesy and restraint (see August 8, 2002-January 15, 2003), are constantly attacked by detainees who wield crudely made knives, or try to “gouge eyes and tear mouths [or] grab and break limbs as the guards pass them food.” In return, the detainees are given huge meals of “well-prepared food,” meals which typically overflow from two styrofoam containers. Many detainees insist on “special meal orders,” and throw fits if their meals are not made to order. The level of health care they are granted, Cucullu says, would suit even the most hypochondriac American. Cucullu writes that the detainees are lavished with ice cream treats, granted extended recreational periods, live in “plush environs,” and provided with a full array of religious paraphernalia. “They are not abused, hanged, tortured, beheaded, raped, mutilated, or in any way treated the way that they once treated their own captives—or now treat their guards.” The commander, Brigadier General Jay Hood, tells Cucullu that such pampered treatment provides better results than harsher measures. “Establishing rapport” is more effective than coercion, Hood says, and, in Cucullu’s words, Hood “refers skeptics to the massive amount of usable intelligence information [the detainees] produce even three years into the program.” In conclusion, Cucullu writes, the reader is “right to worry about inhumane treatment” at Guantanamo, but on behalf of the soldiers, not the detainees. (Cucullu 6/27/2005)

Months after the Bush administration successfully convinced the New York Times to hold off publishing its report on the administration’s warrantless wiretapping program (see Early November 2004, December 6, 2005, and December 15, 2005), one of the reporters on the story, Eric Lichtblau, attempts to get a response on the program from one of the few Democrats briefed on it, House Intelligence Committee ranking member Jane Harman (D-CA). In his 2008 book Bush’s Law: The Remaking of American Justice, Lichtblau will write about covering a House hearing where Harman launches into a passionate call for stronger civil liberties safeguards in the reauthorization of the USA Patriot Act (see March 9, 2006). According to his recollection, Lichtblau approaches Harman and says, “I’m trying to square what I heard in there with what we know about that program.” He will write: “Harman’s golden California tan turned a brighter shade of red. She knew exactly what I was talking about. Shooing away her aides, she grabbed me by the arm and drew me a few feet away to a more remote section of the Capitol corridor. ‘You should not be talking about that here,’ she scolded me in a whisper. ’ They don’t even know about that,’ she said, gesturing to her aides, who were now looking on at the conversation with obvious befuddlement.” Harman tells Lichtblau, “The Times did the right thing by not publishing that story,” but will not discuss the details. When asked what intelligence capabilities would be lost by informing the public about something the terrorists already knew—that the government was listening to them—she simply replies, “This is a valuable program, and it would be compromised.” Lichtblau will add: “This was clearly as far as she was willing to take the conversation, and we didn’t speak again until months later, after the NSA story had already run. By then, Harman’s position had undergone a dramatic transformation. When the story broke publicly, she was among the first in line on Capitol Hill to denounce the administration’s handling of the wiretapping program, declaring that what the NSA was doing could have been done under the existing FISA law.” (Kiel 3/19/2008)

Convicted Oklahoma City bombing conspirator Terry Nichols (see 8:35 a.m. - 9:02 a.m. April 19, 1995, August 10, 1995, June 4, 1998, and May 26, 2004) has said that he believes his co-conspirator, Timothy McVeigh (see 7:14 a.m. June 11, 2001), was involved with a white supremacist compound in eastern Oklahoma, Elohim City (see (April 1) - April 18, 1995). Nichols’s statements to the FBI, a US congressman, and his family are now being reported by The Oklahoman. Representative Dana Rohrbacher (R-CA), who met with Nichols on June 27, 2005 at the federal prison in Florence, Colorado, says: “He said he was driving past it one time and Tim McVeigh knew everything about Elohim City, just told him all about it. And he said on a number of occasions… Tim McVeigh mentioned his friend, Andy the German, who lives at Elohim City.… So there was a strong indication that Tim McVeigh had much more than just a minor association with some of the people at Elohim City.” “Andy the German” is Andreas Strassmeir, a former German soldier who helped coordinate security at Elohim City (see 1973 and After). Strassmeir has admitted meeting McVeigh at a 1993 Tulsa gun show (see April 1993), but has said he never saw or spoke with him again. Strassmeir has denied any role in the bombing (see November 1994), as has Elohim City leader Robert Millar (see May 24, 1995). The FBI investigated Elohim City after discovering McVeigh called there two weeks before the bombing (see April 5, 1995), and ruled out the residents as suspects (see February 1995). The bureau never found conclusive proof that McVeigh ever visited there, though other sources found that McVeigh and Nichols had visited there in late 1993 (see October 12, 1993 - January 1994) and learned that McVeigh took part in paramilitary exercises there in late 1994 (see September 12, 1994 and After). For years, many have speculated that Strassmeir and other Elohim City residents may have played a part in the bombing; Rohrbacher says he is considering holding Congressional hearings on the possibility, and says he asked Nichols specifically about those theories. Former federal informant Carole Howe has claimed she saw McVeigh and Strassmeir together at Elohim City in July 1994, and has said Strassmeir talked about blowing up federal buildings in Oklahoma (see August 1994 - March 1995 and November 1994). Federal prosecutors did not believe Howe’s claims. (Clay 7/10/2005) A precursor of the McVeigh-Nichols bomb plot was hatched in 1983 by Elohim City residents (see 1983). Some believe that Strassmeir may have been McVeigh’s alleged co-conspirator identified only as “John Doe No. 2” (see June 14, 1995), even though federal authorities have said that person was not involved with Nichols or McVeigh (see January 29, 1997). McVeigh told his friend Michael Fortier that he planned the Oklahoma City bombing with input from people at Elohim City (see December 1994). Less than two weeks before the bombing, McVeigh went to a strip club with people from Elohim City, including Strassmeir (see April 8, 1995).

George Christian.George Christian. [Source: PBS]Librarian and data manager George Christian is served with a so-called “National Security Letter” (NSL) from the FBI demanding that his firm turn over private information on its patrons because of an apparent terrorist threat e-mailed from one of his libraries (see February 2005). Christian is the executive director of Library Connection, Inc., which manages catalog information, patron records, and circulation information for 27 libraries in and around Hartford, Connecticut, as well as providing telecommunications services to many of its member libraries. Christian is given the NSL, as well as a gag order preventing them from ever mentioning their receipt of the letter, or any details surrounding it. Christian is notified of the letter five days before actually receiving it; he spends those days frantically learning more about NSLs and the laws surrounding them (see October 25, 2005). He learns that a district court in New York had found the entire NSL statute unconstitutional because of what Christian calls “prima facie violations of the 1st, 4th and 5th amendments.” By the time they receive the letter, he has decided to oppose it. The letter, delivered by two FBI agents, orders Christian and Library Connection to turn over information about a specific IP address registered to the firm. One of the agents warns Christian that the gag order prohibits anyone in the firm from telling anyone that the FBI is attempting to secure information from its library business records. Christian, who will testify before the Senate Judiciary Committee about the NSL in April 2007 (see April 11, 2007), says neither he nor his colleagues could “fathom any ‘exigent’ nature for the FBI request.” The letter was dated May 19, nearly two months before its delivery, was not addressed to Christian, and requested information from the use of the IP address five months earlier, February 15. Christian later says that while he and his colleagues want to assist the FBI in any way they can, and have no desire to “impede the investigation of a perilous situation that endanger[s] my country or my fellow citizens,” because of the date of the letter and the IP usage, they conclude that the FBI has not been in any rush to get the information. Christian tells the FBI agents that he believes the use of NSLs is unconstitutional and that he will consult his attorney. Library Connection’s attorney says that the only way to contest compliance with an NSL is to take the Attorney General, Alberto Gonzales, to court. Christian is understandably reluctant to involve his firm in such a court challenge without authorization, and takes the case to the Executive Committee of the firm’s board of directors. The three members, Barbara Bailey, Peter Chase, and Janet Nocek (who will soon be dubbed the “Connecticut Four” by the media), after conferring with the attorney and reviewing the New York court’s decision against NSLs, decide to go forward with the complaint. They secure representation from the American Civil Liberties Union (ACLU). Together, they decide to ask for relief from the NSL, to seek a broader ruling that the use of NSLs is unconstitutional, and to have the gag order lifted so they can publicly discuss the incident as “part of the national debate over renewal of the Patriot Act” (see March 9, 2006). Christian will tell the Senate Judiciary Committee, “We… felt we were defending our democracy by insisting that the checks and balances established in the Constitution be observed. We had no court order, and there was no evidence that an independent judge had examined the FBI’s evidence and found there to be probable cause justifying their request for information.… [W]e did not want to aid terrorists or criminals.… But we did not feel we would be helping the country or making anyone safer by throwing out the Constitution either.” Because of the way the computer system is set up, to give the FBI the information about the specific IP address and usage it required, Christian would have to give the FBI information about everyone using every computer in the particular library on the day in question. He later says, “[S]ince there was no way of determining who was using the computers in the library five months after the fact, we felt that [the FBI wanted] information we had on all the patrons of that library. That seemed like a rather sweeping request. Some would call it a fishing expedition.” The case goes to trial in August 2005 (see August 2005-May 2006). (Senate Judiciary Committee 4/11/2007) It is later learned that the original e-mailed threat is a hoax. (Willing 7/6/2006)

Douglas Dickerson.Douglas Dickerson. [Source: US Army]The Air Force’s Office of Special Investigation sends word to Sibel Edmonds’ attorney Mark Zaid that it is reopening the investigation into Edmonds’ former co-worker Melek Can Dickerson and her husband, Douglas Dickerson. Edmonds had warned her superiors in early 2002 that the couple was involved in espionage (see December 4, 2001). Journalist David Rose, who recently authored a lengthy piece on the Sibel Edmonds case for Vanity Fair magazine, believes the investigation may have been re-opened in part because of that article and because he submitted about 150 different questions about the case to the Air Force and other parts of the Pentagon, the Justice Department, and the FBI. (Democracy Now! 8/10/2005)

The Connecticut Four, from left to right: Janet Nocek, Peter Chase, George Christian, and Barbara Bailey.The Connecticut Four, from left to right: Janet Nocek, Peter Chase, George Christian, and Barbara Bailey. [Source: Robert Deutsch/ USA Today]A case filed against Attorney General Alberto Gonzales by four plaintiffs from Connecticut’s Library Connection, Inc.—George Christian, Barbara Bailey, Peter Chase, and Janet Nocek—goes to trial in federal district court (see July 13, 2005). The trial is filed as Doe v. Gonzales because the government has filed a gag order against the plaintiffs forbidding them from identifying themselves or discussing the case publicly. The case involves a demand for information from the FBI for information concerning library usage by patrons of a Connecticut library; the four plaintiffs, on behalf of their data management firm Library Connection, have refused. The case revolves around the use of a National Security Letter (NSL) by the FBI; the plaintiffs, with support from the American Civil Liberties Union, want the NSL voided, the gag order lifted, and such use of NSLs found unconstitutional. Christian and his three colleagues are not allowed to attend the hearings in person because of the possibility that they might be identified as the plaintiffs; they are forced to watch the proceedings on a closed-circuit broadcast from a locked room in the Hartford courthouse. When the judge in the proceeding asks to review the government’s evidence for keeping the gag rule in place, Justice Department lawyers insist on submitting secret evidence directly to the judge, without providing that evidence to the plaintiff’s lawyers. The judge is not pleased, and rules, as did her predecessor in New York, that a perpetual gag order amounts to prior restraint, and thereby is unconstitutional. She adds that her review of the secret evidence gives no national security rationale for keeping the plaintiffs gagged. The Justice Department immediately appeals the ruling, and the plaintiffs stay silent and gagged. While the four plaintiffs remain silent about the NSL and the court case, the Justice Department’s primary lawyer, Kevin O’Conner, does not: O’Conner has frequently debated one of the plaintiffs, Chase, about the Patriot Act, and though Chase is now required to remain silent, O’Conner continues to make frequent public appearances touting the Patriot Act. Christian later says, in 2007 testimony before the Senate Judiciary Committee (see April 11, 2007), that the continuing gag order causes the four “John Does” considerable professional and personal distress, especially after the national media begins reporting the story. The media eventually learns, through the careless redaction of information by government lawyers, of Chase’s identity as one of the four plaintiffs, and reveals that Library Connection is the firm involved in the lawsuit. Christian’s name comes to light shortly thereafter. The attorneys warn Christian and the others that even though their identities and their firm have been revealed, they still cannot comment at all on the case. Christian, for one, wants to testify before Congress in regards to the upcoming reauthorization of the Patriot Act (see March 9, 2006), but cannot. The four plaintiffs quickly become known in the media as the “Connecticut John Does” or the “Connecticut Four.”
Appeals Court - In November 2005, a New York court of appeals hears the case. Christian and his colleagues are allowed to be present at the case this time, but are required to conceal their identities by entering and leaving the court building separately, are not allowed to sit together, and are not allowed to confer with, or even make eye contact with, each other or their attorneys. The Justice Department lawyers argue that even revealing themselves as recipients of a NSL would violate national security, an argument refuted by submission of the raft of news articles identifying Christian, Chase, and Library Connection. The government argues that those news reports don’t matter because no one in Connecticut reads the primary newspaper carrying the story, the New York Times, and that surveys prove that most people don’t believe what they read in the news anyway. The Justice Department also tries to get the news articles to be kept under seal in court papers. Christian characterizes the entire proceeding as “absurd.” The court refuses to admit the plaintiff’s claim that 48 states, including Connecticut, have laws protecting the privacy of library patrons, but does admit into evidence the claims by Gonzales that there is no statutory justification for claims of privacy. In an attempt to get the gag order lifted before the Patriot Act reauthorization, the plaintiff’s attorneys make an emergency appeal directly to the Supreme Court, but are rebuffed. (Senate Judiciary Committee 4/11/2007) In June 2006, Nocek tells a reporter, “Imagine the government came to you with an order demanding that you compromise your professional and personal principles. Imagine then being permanently gagged from speaking to your friends, your family or your colleagues about this wrenching experience.… Under the Patriot Act, the FBI demanded Internet and library records without showing any evidence or suspicion of wrongdoing to a court of law. We were barred from speaking to anyone about the matter and we were even taking a risk by consulting with lawyers.” (Interview: George Christian 6/2/2006)
Gag Order Lifted, Case Dropped - Weeks after President Bush signs into law the Patriot Act reauthorization (see March 9, 2006), the FBI voluntarily lifts the gag order without waiting for a court order. The agency then tries to get the original ruling against the gag order vacated, an attempt that the appeals court refuses. The appellate judges are clearly disturbed by the breadth of the NSL gag provisions; one appellate judge writes, “A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens… Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.” The appeals court refers the case back to district court, allowing the original opinion to stand. Weeks later, the FBI withdraws its NSL, saying that it no longer needs the information it originally requested. Christian later testifies, “In doing so, they removed the Patriot Act from the danger of court review.” Christian later says that he believes the entire procedure was managed as an attempt to prevent the case from becoming public knowledge before Congress could vote on the reauthorization of the Patriot Act. (Senate Judiciary Committee 4/11/2007)

Lawyers for Sibel Edmonds file a petition with the Supreme Court asking it “to provide guidance to the lower courts about the proper scope and application of the state secrets privilege (see March 9, 1953), and to prevent further misuse of the privilege to dismiss lawsuits at the pleading stage.” The petition also urges the court to affirm that the press and public may not be barred from court proceedings in civil cases without just cause. In May, the federal appeals court had closed the courtroom to the public and media. Edmonds’ lawyers include the American Civil Liberties Union and Mark Zaid of Krieger and Zaid, PLLC. If the Supreme Court rules in favor of Edmonds, she will return to the lower courts and start her case again. (Petition for a writ of certiorari. Sibel Edmonds v. Department of Justice, et all. 8/4/2005, pp. 2 pdf file; Strohm 8/8/2005)

Camp Casey.Camp Casey. [Source: Indybay (.org)]Antiwar activist Cindy Sheehan, of Vacaville, California, sets up “Camp Casey” three miles outside of President Bush’s Crawford, Texas ranch. Bush has come to his ranch for his yearly August vacation; Sheehan has come to demand a meeting with Bush to discuss the loss of her son, Casey, in Iraq. Sheehan chooses the date to coincide with the fourth anniversary of the briefing that warned Bush of Osama bin Laden’s intention to attack the US (see August 6, 2001). Camp Casey begins as a single pup tent in a ditch by the side of a dirt road, in which Sheehan intends to stay for whatever time it takes to secure a meeting with Bush. Author and media critic Frank Rich later writes that because Bush is so firmly ensconsced in the protective “bubble” that shields him from awareness of criticism, he and his top officials are blindsided by the media response to Sheehan’s lonely vigil. Casey Sheehan, who died in April 2004 a mere two weeks after his arrival in Iraq (see April 4, 2004), will become, Rich will write, emblematic of both “the noble intentions of those who volunteered to fight the war [and] also the arrogance, incompetence, and recklessness of those who gave the marching orders.”
Bush Refuses to Meet with Sheehan - Bush will refuse to meet with Sheehan and the increasing number of peace activists who gather at Camp Casey, causing him inordinate embarrassment (see August 12, 2005) as more and more reporters begin questioning his motives in refusing to meet with the bereaved mother of a fallen US soldier. Bush even ignores the advice of some of his public relations staffers and fellow Republicans, who ask him to reconsider, as Senator George Allen (R-VA) says, “as a matter of courtesy and decency.” Rich will write: “Only someone as adrift as Bush would need to be told that a vacationing president couldn’t win a standoff with a grief-stricken parent commandeering TV cameras and the blogosphere 24/7. But the White House held firm. In a particularly unfortunate gesture, the presidential motorcade, in a rare foray out of the vacation compound, left Sheehan in the dust on its way to a fundraiser at a fat cat’s ranch nearby” (see August 12, 2005). (Rich 2006, pp. 193-196) Political analyst Charlie Cook says: “Anything that focuses media and public attention on Iraq war casualties day after day—particularly [something] that is a good visual for television, like a weeping Gold Star mother—is a really bad thing for President Bush and his administration.… Americans get a little numb by the numbers of war casualties, but when faces, names, and families are added, it has a much greater effect.” Republican strategist Kellyanne Conway agrees, saying: “Cindy Sheehan has tapped into a latent but fervent feeling among some in this country who would prefer that we not engage our troops in Iraq. She can tap into what has been an astonishingly silent minority since the end of last year’s presidential contest. It will capture attention.” University professor Stephen Hess says that Sheehan’s “movement… can be countered by a countermovement” and therefore negated, but “I think the president might have defused the situation if he had invited her in instantly.” Hess predicts that Sheehan will soon be targeted by Republican strategists in a counterattack (see August 11, 2005 and After).
Focus of Antiwar Movement - Camp Casey quickly becomes the focus of the American antiwar movement, with organizations such as MoveOn.org and Code Pink pitching in to help expand and coordinate the camp, and high-profile Democratic operatives such as Joe Trippi organizing support among left-wing bloggers. MoveOn’s Tom Mattzie says: “Cindy reached out to us.… Cindy is a morally pure voice on the war, so we’re trying to keep the focus on her and not jump in and turn it into a political fight.” (Calvo and Chen 8/11/2005)

National Security Adviser Stephen Hadley and White House deputy chief of staff Joe Hagin meet with antiwar protester Cindy Sheehan (see August 6, 2005 and After) for about 45 minutes. Sheehan, who has requested a meeting with President Bush during his vacation at his ranch in Texas, says she is not satisfied with the meeting with Hadley and Hagin. “I don’t believe his phony excuses for the war,” she says. “I want him to tell me why my son died (see April 4, 2004). If he gave the real answer, people in this country would be outraged—if he told people it was to make his buddies rich, that it was about oil.” (Calvo and Chen 8/11/2005)

The outgoing Saudi ambassador to Britain, Prince Turki al-Faisal, criticizes the Blair government over its lack of response to terrorism and says that MI5 is hampering efforts to clamp down. Prince Turki describes his experience: “When you call somebody, he says it is the other guy. If you talk to the security people, they say it is the politicians’ fault. If you talk to the politicians, they say it is the Crown Prosecution Service. If you call the Crown Prosecution service, they say, no, it is MI5. So we have been in this runaround…” Turki particularly criticizes the government’s failure to act against Saad al-Fagih of the movement for Islamic Reform in Arabia and Mohammed al-Massari. Al-Fagih is accused of being involved in the 1998 US embassy bombings (see 10:35-10:39 a.m., August 7, 1998) and a plot to assassinate King Abdullah of Saudi Arabia. (Beeston and Binyon 8/10/2005)

Right-wing commentators react to the sudden media presence of antiwar activist and bereaved mother Cindy Sheehan (see August 6, 2005 and After) with vitriolic criticism. (Author and media critic Frank Rich will later write of his belief that the anti-Sheehan campaign is orchestrated from the White House: “The attack was especially vicious because there was little the White House feared more than a critic who had more battle scars than a president or a vice president who had avoided Vietnam.”) Weekly Standard writer Fred Barnes tells Fox News viewers that Sheehan is a “crackpot.” Right-wing bloggers begin spreading lurid, and sometimes false, stories of her recent divorce and the opposition Sheehan receives from some of her family members. Because some of the Camp Casey protesters showed the recent Iraq documentary Fahrenheit 9/11 (see June 25, 2004), many right-wing commentators and pundits accuse Sheehan of being a tool of documentary filmmaker Michael Moore. Conservative pundit Michelle Malkin accuses Sheehan and other bereaved family members opposing the war of using their losses to promote their ideological agenda, and calls them “grief pimps.” The American Spectator says Sheehan’s own peace organization, Gold Star Families for Peace, “seeks to impeach George W. Bush and apparently to convince the US government to surrender to Muslim terrorists.” Talk-show host Rush Limbaugh makes the extraordinary claim that Sheehan is making up the entire story of her son’s death (see April 4, 2004), claiming that her loss “is nothing more than forged documents—there’s nothing about it that’s real.” Rich later notes that what he calls “the Swift Boating of Cindy Sheehan” has “failed, utterly.” He will continue: “The hope this time was that we’d change the subject to Cindy Sheehan’s ‘wacko’ rhetoric and the opportunistic left-wing groups that have attached themselves to her like barnacles. That way we would forget about her dead son. But if much of the 24/7 media has taken the bait, much of the public has not.… The public knows that what matters this time is Casey Sheehan’s story, not the mother who symbolizes it.” (Calvo and Chen 8/11/2005; Fletcher 8/13/2005; Rich 8/21/2005; Rich 2006, pp. 194-195)

The Bush motorcade drives past Camp Casey; Texas police officers stand between the motorcade and the camp.The Bush motorcade drives past Camp Casey; Texas police officers stand between the motorcade and the camp. [Source: American Patriot Friends Network]President Bush and his motorcade drive past the growing camp of war protesters and peace activists nicknamed “Camp Casey” (see August 6, 2005 and After) without stopping, leaving the gathered protesters and bereaved family members literally in the dust. Bush is on his way to a fundraising barbecue expected to raise at least $2 million for the Republican National Committee. Camp founder Cindy Sheehan holds a sign that reads, “Why do you make time for donors and not for me?” The Associated Press reports, “It was unclear whether Bush, riding in a black Suburban with tinted windows, saw the demonstrators.” Bush has continued to refuse to meet with Sheehan and the others in Camp Casey, a makeshift camp three miles outside of his Crawford, Texas vacation ranch. The camp is attracting war protesters, peace activists, and bereaved family members who have lost loved ones in Iraq and Afghanistan. (Associated Press 8/12/2005) The New York Times notes that in less than a week, Camp Casey has grown from one woman’s lonely vigil to a gathering of well over 100 protesters and family members, with visits from celebrities such as actor Viggo Mortensen and a full-time police presence. War supporters have blasted Sheehan and her companions, calling her everything from a traitor to a terrorist supporter, and arguing that the death of her son does not give her the right to criticize the war effort. Local supporters of Bush have suggested, among other things, that they unleash a gaggle of skunks on the camp to drive the protesters away; some have pretended to drive their pickup trucks into the crowds, and splashed protesters with mud as they revved their engines. (Kornblut 8/13/2005) Author and media critic Frank Rich will later write that the images of Bush’s motorcade ignoring Sheehan and the other protesters become embarrassing fodder for media comment and criticism. (Rich 2006, pp. 194) The Times writes, “[Bush’s] five-week sojourn at his 1,600-acre ranch offers the protesters ample opportunity to camp out for extended periods in front of the national media at a time of sharp spikes in the casualties in Iraq, and as public polling data suggests the lowest support for the war since it began.” In a recent television ad paid for by her peace organization Gold Star Families for Peace, Sheehan said: “All I wanted was an hour out of his extended vacation time, but he’s refused to meet with me and the other military families. We just want honest answers.” (Kornblut 8/13/2005)

Deputy Attorney General James Comey, who has already tendered his resignation, gives his farewell speech to an assemblage in the Justice Department. Comey makes what author and reporter Charlie Savage will later call “a cryptic reference to the fights over warrantless surveillance and torture issues that he had fought alongside [former Office of Legal Counsel chief Jack] Goldsmith and the other non-team players” (see Late 2003-2005 and June 17, 2004). Comey tells the assembled employees that, during his tenure, he had dealt with issues that “although of consequence almost beyond my imagination, were invisible because the subject matter demanded it.” In these disputes, he says he worked with people whose loyalty “to the law… would shock people who are cynical about Washington.” Those people, he says, “came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were people committed to getting it right—and to doing the right thing—whatever the price. These people know who they are. Some of them did pay a price for their commitment to [do] right, but they wouldn’t have it any other way.” (US Department of Justice 8/15/2005; Parry 2/8/2006; Savage 2007, pp. 199) Comey will later testify that one of the people he is referring to is former Justice Department lawyer Patrick Philbin. (Savage 2007, pp. 199)

Prince Bandar, Saudi ambassador to the US since 1983, steps down and is replaced by Prince Turki al-Faisal. It is said that Prince Bandar had been suffering health problems and is not close to the new Saudi King Abdullah (see August 1, 2005). Prince Turki was Saudi intelligence minister from the late 1970s until about one week before 9/11 (see August 31, 2001). Then he served three years as Saudi ambassador to Britain. Prince Turki has had a controversial past. He was considered a mentor to bin Laden, and encouraged him to represent Saudi Arabia in the Afghanistan war against the Soviet Union. There are allegations that Prince Turki took part in a series of secret meetings between bin Laden and the Saudis over a period of many years (see Summer 1991; May 1996; Spring 1998; June 1998; July 1998; July 4-14, 2001). There are also allegations that he went falcon hunting in Afghanistan with bin Laden during much of the 1990s (see 1995-2001). In the wake of his appointment as ambassador, US officials try to downplay his past. One unnamed US official says, “Yes, he knew members of al-Qaeda. Yes, he talked to the Taliban. At times he delivered messages to us and from us regarding Osama bin Laden and others. Yes, he had links that in this day and age would be considered problematic, but at the time we used those links.” The official adds that Prince Turki seems to have “gotten out of that business” since 2001 and “he understands that times have changed.” He was sued in 2002 by a group of 9/11 victims’ relatives for allegedly supporting al-Qaeda, but his name was dropped from the suit because of diplomatic immunity (see August 15, 2002). (Weisman 7/21/2005)

Tammy Pruett weeps while watching Bush’s presentation.Tammy Pruett weeps while watching Bush’s presentation. [Source: Jim Watson / Agence France-Presse / Getty Images]The White House presents Tammy Pruett, whose four sons are serving in Iraq, as a counter to antiwar protester Cindy Sheehan, who lost her son Casey in Iraq (see August 6, 2005 and After). Unlike Sheehan, Pruett and her family staunchly support the war; also unlike Sheehan, Pruett has not lost any of her sons. Apparently the White House found Pruett after learning of her family’s appearance on CNN in June 2004, where she defended the war effort, and contacted the family a week before the event. “An obviously delighted President Bush,” who has repeatedly refused to meet with Sheehan (see August 12, 2005), flies to Idaho to introduce Pruett to what the Washington Post calls “a boisterous invitation-only audience mostly made up of military families.” Bush tells the audience: “There are few things in life more difficult than seeing a loved one go off to war. And here in Idaho, a mom named Tammy Pruett—I think she’s here—knows that feeling six times over. Tammy has four sons serving in Iraq right now with the Idaho National Guard—Eric, Evan, Greg, and Jeff. Last year, her husband Leon and another son, Eren, returned from Iraq, where they helped train Iraqi firefighters in Mosul. Tammy says this—and I want you to hear this—‘I know that if something happens to one of the boys, they would leave this world doing what they believe, what they think is right for our country. And I guess you couldn’t ask for a better way of life than giving it for something that you believe in.’ America lives in freedom because of families like the Pruetts.” Bush kisses Pruett on the cheek after the speech, then sends her out to talk to the press. (Froomkin 8/25/2005)
Pruetts Offer Condolences to Sheehan, Other Bereaved Families - But the Pruetts are not willing to merely serve as props for the White House’s pro-war agenda. Both Leon and Tammy Pruett are quick to offer tearful condolences to families who have lost loved ones overseas, specifically naming Sheehan. Tammy says while her family supports the war, they do not want to be seen as criticizing those who oppose it. “We don’t feel like we’re out here trying to be a poster family, we’re just proud of our sons,” she says. (O'Donnell 8/24/2005)
Careful Staging - The Post notes that the Pruett speech is viewed by White House planners “as a crucial opportunity for Bush to show both compassion and resolve when his conduct of the war is increasingly being publicly questioned, and polls of public support are flirting with Vietnam War-era depths.” The speech and presentation are carefully crafted, with a drum corps playing the themes of each of the five branches of service, and Bush placed before a group of soldiers dressed in fatigues and arrayed in front of a huge red, white, and blue backdrop festooned with photographs of soldiers, police officers, firefighters, and rescue workers beneath the heading “Honoring America’s Soldiers.” The entire event, Knight Ridder reporter William Douglas writes, is designed to “creat[e] a visual link between the Sept. 11, 2001, terrorist attacks and the war in Iraq.” (O'Donnell 8/24/2005; Froomkin 8/25/2005)

The FBI begins to build cases against high value detainees held by the US in Guantanamo Bay, due to Defense Department fears that evidence obtained from the detainees by the CIA will be inadmissible or too controversial to present at their upcoming war crimes tribunals. The investigation, which involves up to 300 agents in a “Guantanamo task force,” runs for at least two years and FBI agents travel widely to collect evidence. According to former officials and legal experts, “The [FBI] process is an embarrassment for the Bush administration, which for years held the men incommunicado overseas and allowed the CIA to use coercive means to extract information from them that would not be admissible in a US court of law—and might not be allowed in their military commissions….” In fact, the techniques used to extract the confessions even cause some CIA officials to question whether they are believable, much less sustainable in court, particularly as CIA officers are not trained to obtain evidence that can be used in such a setting. In addition, if the information is used, this may focus the trials on the actions of the CIA and not the accused. The detainees will be designated enemy combatants in 2007 in preparation for military commissions (see March 9-April 28, 2007 and August 9, 2007), but this process will be questioned by a judge (see June 4, 2007). The Los Angeles Times will also comment, “The FBI’s efforts appear in part to be a hedge in case the commissions are ruled unconstitutional or never occur, or the US military detention center at Guantanamo Bay is closed. Under those scenarios, authorities would have to free the detainees, transfer them to military custody elsewhere, send them to another country, or have enough evidence gathered by law enforcement officials to charge them with terrorism in US federal courts.” (Meyer 10/21/2007)

Representative Jane Harman (D-CA) is recorded telling a suspected Israeli agent that she would intervene with the Justice Department to try to get charges against two Israeli lobbyists reduced. In return, the Israeli agent promises to help Harman secure the chairmanship of the House Intelligence Committee. The Israeli agent will remain unidentified; the two lobbyists, Steve Rosen and Keith Weissman, are charged with espionage after they allegedly passed along classified information to the American Israel Public Affairs Committee (AIPAC—see April 13, 1999-2004). The conversation between Harman and the Israeli agent is recorded on an wiretap, reportedly by the NSA, mounted as part of a federal investigation into AIPAC’s potential espionage operations against the US (see October 5, 2005). According to transcripts of the wiretapped conversation, Harman agrees to “waddle into” the AIPAC case “if you think it’ll make a difference.” The Israeli agent asks Harman if she could speak with Attorney General Alberto Gonzales on Rosen’s and Weissman’s behalf. Harman replies that Gonzales might not cooperate, because he “just follows White House orders,” but other officials might be more pliable. In return, the Israeli agent promises to contact House Minority Leader Nancy Pelosi (D-CA) and attempt to persuade her to name Harman as chairwoman of the Intelligence Committee if the Democrats win control of the House in the November 2006 elections. Harman tells the agent, “This conversation doesn’t exist,” and hangs up. The contents of the conversation will later be confirmed by three separate sources, including two former senior national security officials. (Stein 4/19/2009) Reporter Marc Ambinder will later write that Harman’s conversation may have been recorded by the FBI, and not the NSA, as part of the its investigation into Rosen and Weissman. (Ambinder 4/20/2009)

Defense Department analyst Larry Franklin pleads guilty to passing government secrets to two employees of a pro-Israel lobbying group and to an Israeli government official, a violation of the Espionage Act. He is later sentenced to 12 and a half years in prison. (Markon 10/6/2005; Markon 1/21/2006; Savage 2007, pp. 173) Franklin, an Iran specialist, gave details of US policy towards Iran to Steven Rosen and Keith Weissman, two members of AIPAC (American Israel Public Affairs Committee) which the Washington Post calls “one of Washington’s most influential lobbying organizations.” He also admits to giving classified information directly to Naor Gilon, chief of political affairs at the Israeli Embassy in Washington. Gilon returned to Israel, but Rosen and Weissman have been charged in what prosecutors claim was a conspiracy to obtain and illegally pass classified US information to foreign officials and news reporters. Franklin reportedly has been cooperating with investigators in return for a relatively lenient sentence. (Markon 10/6/2005; Markon 1/21/2006) It appears that Franklin was caught by accident in 2003 as part of a larger FBI investigation into Israeli spying that began in 2001 (see September 9, 2001). Investigators had been monitoring Gilon and were reportedly “floored” to watch Franklin sit down and eat lunch with him. (Sale 12/9/2004)

Dulmatin.Dulmatin. [Source: Rewards for Justice]The US announces a $10 million reward for information leading to the arrest of Dulmatin, a leader of Jemaah Islamiyah (JI), al-Qaeda’s main affiliate in Southeast Asia. A $1 million reward is also offered for Umar Patek, who apparently is a little-known aide to Dulmatin. The reward for Dulmatin is as large as any other cash reward the US has offered for any al-Qaeda linked figure, except for $25 million rewards for Osama bin Laden, Ayman al-Zawahiri, and Abu Musab al-Zarqawi. Dulmatin is believed to have been one of the masterminds of the 2002 Bali bombings (see October 12, 2002). Since then, it is believed that he is hiding out in the Philippines and has not been linked to any other bombings. (Schweid 10/7/2005) The announcement is met with puzzlement in Indonesia, because it comes just six days after a second set of bombings in Bali (see October 1, 2005), and Dulmatin has no known role in those bombings. However, Azhari Husin and Noordin Mohammed Top were quickly found to be the masterminds of the bombings. Furthermore, Husin and Top have been named as masterminds to the 2002 Bali bombings and every major bombing in Indonesia since then, including the 2003 Marriott Hotel bombing (see August 5, 2003) and the 2004 Australian embassy bombing (see September 9, 2004). Later in the month, Hank Crumpton, the State Department’s coordinator for counterterrorism, is asked by an Indonesian journalist why cash rewards have been given for Dulmatin and even Patek but not Husin or Top. Crumpton replies, “We believe [Dulmatin] is a threat to the region,” but he declines to be more specific or to explain why there were no rewards for Husin or Top. (Bonner 10/19/2005) Husin is killed in a shootout in Indonesia one month later (see October 1, 2005). Dulmatin is listed on the US Rewards for Justice website, but he is one of only two out of the 37 suspects listed without actual rewards given for them. The other is Zulkarnaen, who is also said to be involved in the 2002 Bali bombings and 2003 Marriott Hotel bombing. (Rewards for Justice 8/10/2007; Rewards for Justice 8/10/2007; Rewards for Justice 8/11/2007)

The Fourth Circuit Court of Appeals rules that President Bush, as commander in chief, can continue to hold Jose Padilla (see June 9, 2002), a US citizen arrested on US soil (see June 8, 2002), indefinitely as an enemy combatant. Padilla is to be treated the same as an American captured on a foreign battlefield (see June 28, 2004). The majority ruling is written by Judge J. Michael Luttig, often thought of as a potential Bush Supreme Court nominee. Luttig rules there is “no difference in principle between [Yaser Esam] Hamdi (see June 28, 2004) and Padilla.” Bush’s “powers include the power to detain identified and committed enemies such as Padilla, who associated with al-Qaeda and the Taliban regime, and who entered the United States for the avowed purpose of further prosecuting [terrorism] by attacking American citizens and targets on our own soil.” Luttig ignores the fact that Padilla has never been charged, much less convicted, of any crime. When the Bush administration later charges Padilla as an ordinary criminal—and does not charge him with with any of the terrorist activities it had long alleged he had committed—many administration critics will conclude that, just as in the Hamdi case, the administration had used inflammatory rhetoric and baseless charges to obtain a judicial decision it wanted (see October 10, 2004). When Luttig learns of the administration’s actions, he will issue a supplementary opinion excoriating the White House (see December 21, 2005). (Savage 2007, pp. 200)

CIA Director Porter Goss announces that the agency will not pursue disciplinary action against any current or former CIA officials who have been severely criticized in an internal report produced by John Helgerson, the CIA’s inspector general. Those who have read the classified report say that it faults about 20 intelligence officials, including former CIA Director George Tenet, his former Deputy Director of Operations James Pavitt, and the former head of the CIA’s Counter Terrorism Center Cofer Black (see June 2005). Tenet in particular is faulted for focusing too little attention on combating al-Qaeda as a whole in the years prior to 9/11. However, he and others who are singled out strongly object to the report’s conclusions, and have prepared lengthy rebuttals. The 9/11 Congressional Inquiry, of which Goss was ironically the co-chairman, had formally requested the report in November 2002, as it was finishing its investigation. The 400-page document was completed in June 2004, but its release was delayed (see June-November 2004). John Helgerson finally delivered it to Congress in August 2005, and had urged Goss to convene “accountability boards” to assess the performance of officers it criticized. However, Goss says he has decided not to do this. He says the report in no way suggests “that any one person or group of people could have prevented 9/11,” and that “[o]f the officers named in [Helgerson’s] report, about half have retired from the Agency, and those who are still with us are amongst the finest we have.” Goss also claims the report “unveiled no mysteries,” and states that it will remain classified. (Jehl 10/5/2005; Miller 10/6/2005; Linzer and Pincus 10/6/2005) In response to Goss’s statement, Sen. John D. Rockefeller (D-WV), the senior Democrat on the Senate Select Committee on Intelligence, asks, “What failures in performance, if not these, warrant the convening of an accountability board at the CIA?” 9/11 victim’s relative Kristen Breitweiser comments, “No one has been held accountable for the failures on 9/11.” (Reuters 10/5/2005)

Abdurrahman Wahid.Abdurrahman Wahid. [Source: Indonesian Embassy in the Netherlands]In an interview with the Australian public television station SBS, Abdurrahman Wahid, president of Indonesia from 1999 to 2001, suggests that the country’s military or police may have been behind the 2002 Bali bombings (see October 12, 2002). The Australian reports: “Wahid told SBS’s Dateline program that he had grave concerns about links between Indonesian authorities and terrorist groups and believed that authorities may have organized the larger of the two 2002 Bali bombings which hit the Sari Club, killing the bulk of the 202 people who died.… Asked who he thought planted the Sari Club bomb, Mr Wahid said: ‘Maybe the police… or the armed forces. The orders to do this or that came from within our armed forces, not from the fundamentalist people.’” Wahid believes the smaller bomb was indeed planted by Islamist militants. (SBS Dateline 10/12/2005; Stewart and Powell 10/13/2005) Counterterrorism expert John Mempi also comments, “Why this endless violence [in Indonesia]? Why are there acts of terrorism year in, year out? Regimes change, governments change, but violence continues. Why? Because there is a sort of shadow state in this country. A state within a state ruling this country.” (SBS Dateline 10/12/2005) In 2008, Imam Samudra, imprisoned and sentenced to death for being one of the Bali bombings masterminds, will make comments similar to Wahid’s. While he admits being involved in the bombings, he claims that they never meant to kill so many people. He says the second explosion was much bigger than they had expected and suggests that “the CIA or KGB or Mossad” had somehow tampered with the bomb. (Sheridan 3/2/2008)

President Bush signs Executive Order 13388, which dramatically expands the powers of the US government to monitor and collect data on US citizens. (Executive Order 13388 of October 25, 2005 10/25/2005) The order augments the power of “National Security Letters,” authorized in 1981 by then-President Ronald Reagan (see December 4, 1981), but rarely used against US citizens until the advent of the Bush administration and the USA Patriot Act. Thanks to the order, the data files are even more accessible to what the order calls “state, local, and tribal” governments as well as the undefined “appropriate private sector entities,” presumably private data-mining corporations that collect personal and financial data on US citizens for the government.
Over 30,000 NSLs a Year - The FBI now issues over 30,000 NSLs a year, a hundredfold increase from earlier administration usages. NSLs are issued by FBI field supervisors at their discretion without court warrant or oversight by the judiciary or Congress. NSLs force their recipients—librarians, booksellers, employers, Internet providers, and others—to turn over any and all personal data on their customers and employees and are legally required not to tell the targets of the investigations about the letters or the data collection. An FBI supervisor can, without oversight or reasonable suspicion of terrorist activity, collect data on what a citizen makes, spends, invests, gambles, reads in books and on the Internet, buys online, and with whom that citizen lives, works, associates, telephones, and exchanges e-mails. Senior FBI officials admit that the huge spike in NSLs stems from the FBI’s new authority to collect tremendous amounts of data on US citizens not accused of criminal activities. And NSLs are now used to generate leads against terrorist suspects and not merely pursue them.
NSLs Handled With Discretion, Officials Insist - FBI and White House officials insist that NSLs are handled with discretion and with a recognizance of Americans’ right to privacy. Joseph Billy Jr, the FBI’s deputy director for counterterrorism, says he understand that “merely being in a government or FBI database… gives everybody, you know, neck hair standing up.” But innocent Americans “should take comfort at least knowing that it is done under a great deal of investigative care, oversight, within the parameters of the law.” (Gellman 11/6/2005)

David Addington.David Addington. [Source: Richard A. Bloom / Corbis]David Addington, the chief counsel for Vice President Dick Cheney, is named Cheney’s chief of staff to replace Lewis “Scooter” Libby, who was convicted of perjury and obstruction of justice in the Valerie Plame Wilson case (see February 13, 2002). (Waas and Singer 10/30/2005; MSNBC 11/4/2005) Addington is described by one White House official as “the most powerful man you never heard of.” A former Justice Department official says of Addington, “He seems to have his hand in everything, and he has these incredible powers, energy, reserves in an obsessive, zealot’s kind of way.” He is, according to former Solicitor General Theodore Olson, Cheney’s “eyes, ears, and voice.” (Ravagan 5/21/2006) Addington is a neoconservative ideologue committed to dramatically expanding the power of the presidency, and a powerful advocate of the “unitary executive” theory of presidential power. He has been with Cheney for years, ever since Cheney chose him to serve as the Pentagon’s chief counsel while Cheney was Defense Secretary under Ronald Reagan. During that time, Addington was an integral part of Cheney’s battle to keep the Iran-Contra scandal from exploding (see 1984). (Milbank 10/11/2004; Waas and Singer 10/30/2005; MSNBC 11/4/2005; Ravagan 5/21/2006) According to Larry Wilkerson, the former chief of staff to former Secretary of State Colin Powell, documentary evidence shows that Cheney’s office, and Addington in particular, were responsible for giving at least tacit approval for US soldiers to abuse and torture prisoners in Iraq (see January 9, 2002). In an administration devoted to secrecy, Addington stands out in his commitment to keeping information away from the public. (Milbank 10/11/2004) Though Addington claims to have a lifelong love affair with the Constitution, his interpretation of it is somewhat unusual. One senior Congressional staffer says, “The joke around here is that Addington looks at the Constitution and sees only Article II, the power of the presidency.” (Ravagan 5/21/2006) Addington’s influence in the White House is pervasive. He scrutinizes every page of the federal budget, hunting for riders that might restrict the power of the president. He worked closely with Gonzales to oppose attempts by Congress to pry information from the executive branch, and constantly battles the State Department, whose internationalist philosophy is at odds with his and Cheney’s own beliefs. (Milbank 10/11/2004) Former Reagan Justice Department official Bruce Fein calls Addington the “intellectual brainchild” of overreaching legal assertions that “have resulted in actually weakening the presidency because of intransigence.” According to Fein, Addington and Cheney are doing far more than reclaiming executive authority, they are seeking to push it farther than it has ever gone under US constitutional authority. They have already been successful in removing executive restraints formerly in place under the War Powers Act, anti-impoundment legislation, the legislative veto and the independent counsel statute. “They’re in a time warp,” Fein says. “If you look at the facts, presidential powers have never been higher.” (Milbank 10/11/2004) “He thinks he’s on the side of the angels,” says a former Justice Department official. “And that’s what makes it so scary.” (Ravagan 5/21/2006)

Mustafa Setmarian Nasar.Mustafa Setmarian Nasar. [Source: Public domain]Around this date, al-Qaeda leader Mustafa Setmarian Nasar, a.k.a. Abu Musab al-Suri, is arrested in a raid in Quetta, Pakistan. The US posted a $5 million reward for his capture in 2004. A red-haired, light-skinned Syrian citizen, he also is a citizen of Spain and long-time resident there. The raid takes place in a Quetta shop used as an office for the Madina Trust, a Pakistani charity that is linked to the Pakistani militant group Jaish-e-Mohammed. A man arrested with Nasar is believed to be a Jaish-e-Mohammed member; another man is killed in the raid. (CNN 11/5/2005; Associated Press 11/5/2005; Associated Press 5/2/2006) He is believed to have taught the use of poisons and chemicals at Afghanistan training camps and he is suspected of a role in the 2004 Madrid train bombings (see 7:37-7:42 a.m., March 11, 2004) and the 7/7 London bombings (see July 7, 2005). But he is best known for his strategic writings. The Washington Post calls him “one of the jihad movement’s prime theorists.” He long advocated a decentralized militant movement, and was often critical of bin Laden’s and al-Qaeda’s mistakes. He says, “Al-Qaeda is not an organization, it is not a group, nor do we want it to be. It is a call, a reference, a methodology.” He is soon flown out of Pakistan and into US custody. In 2006, US intelligence sources will claim that he is now in the secret custody of another unnamed country. (Whitlock 5/23/2006; Wright 9/4/2006) In 2006, Baltasar Garzon, a Spanish judge involved in many al-Qaeda related cases, will complain that the US has not shared any information about Nasar since his secret arrest. He adds, “I don’t know where he is. Nobody knows where he is. Can you tell me how this helps the struggle against terrorism?” (Sciolino 6/4/2006)

By November 2005, when the CIA destroys videotapes of the interrogations of al-Qaeda leaders Abu Zubaida and Abd al-Rahim al-Nashiri (see November 2005), there are numerous reasons to not destroy them, some of them possibly legal requirements. (Mazzetti 12/8/2007)
bullet In February 2003, Porter Goss, chairman of the House Intelligence Committee in 2003, Congressperson Jane Harman, the top Democrat on the committee, requested that the videotapes be preserved (see February 2003).
bullet Beginning in 2003 and continuing through 2005, White House officials, including White House deputy chief of staff Harriet Miers, requested that the videotapes be preserved (see Between 2003-Late 2005).
bullet In 2003, Justice Department lawyers also advised the CIA to preserve the videotapes (see 2003).
bullet Beginning in 2003, lawyers in the Zacarias Moussaoui trial have requested access to evidence of interrogations of al-Qaeda leaders like Zubaida. The CIA twice misinformed the judge in the trial about the existence of the videotapes (see May 7-9, 2003 and November 3-14, 2005). The trial will not be concluded until mid-2006 (see May 3, 2006).
bullet In September 2004, a judge rules the CIA has to preserve all records about the treatment of detainees overseas, as part of a lawsuit filed by the American Civil Liberties Union. The videotapes of Zubaida and al-Nashiri would clearly qualify, since both are held overseas (see September 15, 2004).
bullet Beginning in May 2005, Sen. Jay Rockefeller of the Senate Intelligence Committee asked the CIA to preserve over 100 documents about the CIA interrogation program. One of the documents requested is a report about the videotapes of interrogations and their possible illegality (see May-September 2005).
bullet In June and July 2005, two judges ordered the CIA to preserve all evidence relevant to detainees being held in Guantanamo prison. The interrogation videotapes are indirectly relevant because the cases of some detainees hinge on their alleged ties to Zubaida (see June-July 2005).
bullet In the summer of 2005, Director of National Intelligence John Negroponte met with CIA Director Porter Goss and “strongly advised” him not to allow the videotapes to be destroyed (see Summer 2005).
bullet The videotapes are also needed for a trial of Jose Padilla, who is indicted in November 2005 (see November 22, 2005).
An unnamed official familiar with the case will comment, “Everybody from the top on down told them not to do it and still they went ahead and did it anyway.” (Meyer 12/9/2007) Despite this, many later reports will indicate that the National Clandestine Service (NCS), the CIA unit that takes the decision to destroy the tapes, believes the advice about their destruction is ambiguous. NCS head Jose Rodriguez will be said to feel he never gets a straight answer to the question of whether the tapes should be destroyed, despite extensive correspondence about the issue at the CIA. (Isikoff and Hosenball 12/11/2007; Isikoff and Hosenball 12/24/2007) A former intelligence official will say, “They never told us, ‘Hell, no.’ If somebody had said, ‘You cannot destroy them,’ we would not have destroyed them.” (Mazzetti and Shane 12/11/2007)

On November 3, 2005, Leonie Brinkema, the judge in the Zacarias Moussaoui trial, asks the CIA about recordings of interrogations of detainees who are related to the Moussaoui case. Eleven days later, the CIA again incorrectly claims to prosecutors in that trial that it has no such recordings. The CIA made a similar claim in 2003 (see May 7-9, 2003), but in fact the CIA secretly videotaped detainee interrogations in 2002 (see Spring-Late 2002). Some of these videotapes are destroyed this month (see November 2005), however it is unknown if the destruction takes place before or after this date. In late 2007, the CIA will reveal that it did have some videotapes after all and prosecutors will finally be able to view some of them (see September 19 and October 18, 2007). But it will also be revealed that most of the videotapes were destroyed (see December 6, 2007). Prosecutors will later claim that neither the video nor the audio recordings contained material relevant to the Moussaoui trial, and some of the content of the interrogations was provided during discovery. (US District Court for the Eastern District of Virginia, Alexandria Division 7/31/2006; US District Court for the Eastern District of Virginia, Alexandria Division 10/25/2007 pdf file; Vicini 11/13/2007)

The US charges British citizen Binyam Ahmed Mohamed (see May-September, 2001), who has allegedly used the aliases Talha al-Kini, Foaud Zouaoui, Taha al-Nigeri, and John Samuel, with conspiracy to foment and carry out terrorist attacks against US targets. Mohamed, who was arrested in Pakistan in April 2002, is charged with “attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism,” though the charge sheet is unclear whether Mohamed carried out any of these actions himself, or whether he was part of a larger conspiracy by the al-Qaeda terrorist organization. The charges allege links between Mohamed and “shoe bomber” Richard Reid (see December 22, 2001), radical Islamist Abu Zubaida, 9/11 plotter Khalid Shaikh Mohammed, and alleged “dirty bomber” Jose Padilla. Mohamed is alleged to have been part of the Padilla bomb plot. (US Defense Department 11/4/2005 pdf file) Much of the evidence against Mohamed comes from confessions he allegedly made while in US custody at the detention camp at Bagram Air Force Base (see January-September 2004), and in Guantanamo Bay (see September 2004 and After). He was also held in Pakistan (see April 10-May, 2002 and May 17 - July 21, 2002), and “rendered” to a secret prison in Morocco (see July 21, 2002 -- January 2004). Through his lawyers, Mohamed has claimed that he was tortured in all four detention sites. The British judiciary will later establish that British officials facilitated Mohamed’s interrogation in Pakistan, and had “full knowledge of the reported conditions of his detention and treatment” (see February 24, 2009). (Guardian 2/5/2009) As with Padilla, the charges relating to the “dirty bomb” plot will later be dropped due to lack of evidence, and all charges against Mohamed will eventually be dropped (see October-December 2008 and February 4, 2009).

Brett Tolman.Brett Tolman. [Source: ABC4 (.com)]Brett Tolman, a Republican Senate Judiciary Committee official, tells Assistant Attorney General William Moschella that he will perform a “comprehensive fix” to the USA Patriot Act reauthorization coming up for approval in Congress (see March 9, 2006). Tolman and Moschella are referring to a provision in the reauthorization legislation that would allow the attorney general to appoint interim US Attorneys on an indefinite basis without having them go through Senate confirmation, and remove the ability of a federal court to appoint a US Attorney (see July 2005 - March 2006). Moschella suggests Tolman use the “comprehensive fix” of repealing Section 546 of Title 28 of the United States Code, subsections C and D, and replacing them with the following language: “A person appointed as United States Attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the president under section 541 of this title.” Late the same evening, Tolman receives an email from Moschella instructing him to quietly insert the provision in the USA Patriot Act reauthorization bill that would eliminate a 120-day limit for “interim” US Attorneys to serve without Senate confirmation. In essence, the provision would allow such “interims” to serve indefinitely, cutting the Senate entirely out of the process of naming US Attorneys and allowing the attorney general to make political appointments without oversight. Tolman replies, “I will get the comprehensive fix done.” He slips the provision into a draft of the bill while it is in conference committee. None of the members notice the provision, and it is part of the bill as signed into law in March 2006 (see March 9, 2006). Tolman himself is one of the first beneficiaries of the new provision, becoming the US Attorney for Utah. When the new provision comes to light in early 2007, both chambers of Congress vote overwhelmingly to repeal it. This is one of numerous “stealth provisions” the White House will have inserted into legislation with the help of compliant Congressional Republicans and staffers. (Savage 2007, pp. 316; US Department of Justice 3/23/2007 pdf file) Moschella will later take the credit for the provision, and will tell reporters that he made the change on behalf of the Justice Department “without the knowledge or coordination of his superiors at the Justice Department or anyone at the White House.” (Thomas 2011)

Attorney General Alberto Gonzales sends a letter to a federal judge in Montana, assuring him that US Attorney William W. Mercer is not violating federal law by spending almost all of his time in Washington as a temporary Justice Department official. The same day, Mercer has a Republican Senate staffer insert language into the USA Patriot reauthorization bill (see March 9, 2006) that would retroactively change the rules and allow federal prosecutors such as himself to live outside their districts and serve in other positions. Congress will include the language in the bill when it passes the legislation. Mercer and a small number of other Justice Department employees are the only ones to benefit from the provision. In 2007, when the provision is revealed to the public, Justice Department officials will say the provision was necessary to ensure that prosecutors such as Mercer could fill temporary positions in Washington, Iraq, and elsewhere. Critics will accuse Gonzales of being, in the Washington Post’s words, “less than truthful” about the actions of himself, his staff, and the White House. The question surrounding Mercer involves residency. Mercer is the US Attorney for Montana, appointed in 2001. In June 2005, he was appointed to serve as principal associate deputy attorney general, at Gonzales’s request. US District Chief Judge Donald W. Molloy of Billings has become increasingly irked at Mercer’s absence from Montana for the last two years. In October, Molloy wrote Gonzales to say that Mercer was violating federal law because he “no longer resides in Montana” and was living with his family in the Washington area. Gonzales replies three weeks later to tell Molloy that Mercer “is in compliance with the residency requirement” under federal law because he “is domiciled there, returns there on a regular basis, and will live there full-time as soon as his temporary assignment is completed.” At the same time Gonzales writes Molloy, Mercer has a Senate staffer, Brett Tolman, insert the provision into the Patriot Act legislation. Tolman is the counsel for Senator Arlen Specter (R-PA), chairman of the Senate Judiciary Committee. Tolman will later be named the US Attorney for Utah. Specter’s office will characterize the provision as “unremarkable” and aboveboard. Mercer currently serves as acting associate attorney general and has been nominated for the position on a permanent basis. He spends only about three days a month in Montana and delegates almost all of his duties as US Attorney to underlings. (ePluribus Media 3/26/2007; Eggen 5/2/2007) Mercer will be nominated to serve as associate attorney general, the third-highest position in the Justice Department, in September 2006. He will not be confirmed for the position by the Senate, as confirmation would require his leaving the position of US Attorney. In June 2007, Mercer will resign from the associate attorney general position, retaining his position as US Attorney for Montana (see June 22, 2007). (ePluribus Media 3/26/2007; Eggen 6/22/2007)

Jose Padilla being escorted by federal agents in January 2006.Jose Padilla being escorted by federal agents in January 2006. [Source: Alan Diaz / Associated Press]Jose Padilla, a US citizen and “enemy combatant” alleged to be an al-Qaeda terrorist (see May 8, 2002) and held without charges for over three years (see October 9, 2005), is charged with being part of a North American terrorist cell that sent money and recruits overseas to, as the indictment reads, “murder, maim, and kidnap.” The indictment contains none of the sensational allegations that the US government has made against Padilla (see June 10, 2002), including his supposed plan to detonate a “dirty bomb” inside the US (see Early 2002) and his plans to blow up US hotel and apartment buildings (see March 2002). Nor does the indictment accuse Padilla of being a member of al-Qaeda. Attorney General Alberto Gonzales says, “The indictment alleges that Padilla traveled overseas to train as a terrorist (see September-October 2000) with the intention of fighting a violent jihad.” He refuses to say why the more serious charges were not filed. Some provisions of the Patriot Act helped the investigation, Gonzales adds: “By tearing down the artificial wall that would have prevented this kind of investigation in the past, we’re able to bring these terrorists to justice,” he says. The Padilla case has become a central part of the dispute over holding prisoners such as Padilla without charge; by charging Padilla with lesser crimes, the Bush administration avoids the possibility of the Supreme Court ruling that he and other “enemy combatants,” particularly American citizens, must either be tried or released. Law professor Eric Freedman says the Padilla indictment is an effort by the administration “to avoid an adverse decision of the Supreme Court.” Law professor Jenny Martinez, who represents Padilla, says: “There’s no guarantee the government won’t do this again to Mr. Padilla or others. The Supreme Court needs to review this case on the merits so the lower court decision is not left lying like a loaded gun for the government to use whenever it wants.” Padilla’s lawyers say the government’s case against their client is based on little more than “double and triple hearsay from secret witnesses, along with information allegedly obtained from Padilla himself during his two years of incommunicado interrogation.” Padilla will be transferred from military custody to the Justice Department, where he will await trial in a federal prison in Miami. He faces life in prison if convicted of conspiracy to murder, maim, and kidnap overseas. The lesser charges—providing material support to terrorists and conspiracy—carry maximum prison terms of 15 years each. (Associated Press 11/22/2005; Fox News 11/23/2005)
'Dirty Bomb' Allegations 'Not Credible,' Says Former FBI Agent - Retired FBI agent Jack Cloonan, an expert on al-Qaeda, later says: “The dirty bomb plot was simply not credible. The government would never have given up that case if there was any hint of credibility to it. Padilla didn’t stand trial for it, because there was no evidence to support it.” (Rose 12/16/2008)
Issue with CIA Videotapes - In 2002, captured al-Qaeda leader Abu Zubaida identified Padilla as an al-Qaeda operative (see Mid-April 2002) and the government cited Zubaida as a source of information about Padilla after Padilla’s arrest. Yet, sometime this same month, the CIA destroys the videotapes of Zubaida’s interrogations from the time period where he allegedly identified Padilla (see November 2005). The Nation’s Aziz Huq will later comment: “Given the [Bush] administration’s reliance on Zubaida’s statements as evidence of Padilla’s guilt, tapes of Zubaida’s interrogation were clearly relevant to the Padilla trial.… A federal criminal statute prevents the destruction of any record for a foreseeable proceeding, even if the evidence is not admissible.… [I]t seems almost certain that preservation of the tapes was legally required by the Jose Padilla prosecution.” (Huq 12/11/2007)

The Supreme Court declines, without comment, to hear the case (see August 4, 2005) brought by former FBI translator Sibel Edmonds. (Stout 11/28/2005; Vicini 11/28/2005) The decision puts an end to Edmonds’ legal efforts to hold the bureau accountable for its failure to address several security issues raised by Edmonds in late 2001 and early 2002 (see December 2, 2001 and Afternoon February 12, 2002, respectively). On August 4, Edmonds had filed a petition with the Supreme Court asking it “to provide guidance to the lower courts about the proper scope and application of the state secrets privilege (see March 9, 1953), and to prevent further misuse of the privilege to dismiss lawsuits at the pleading stage.” The petition also urged the court to affirm that the press and public may not be barred from court proceedings in civil cases without just cause. (In May, the federal appeals court had closed the courtroom to the public and media.) Had the Supreme Court had ruled in favor of Edmonds, she would have been able to return to the lower courts and start her case again. (Petition for a writ of certiorari. Sibel Edmonds v. Department of Justice, et all. 8/4/2005, pp. 2 pdf file; Strohm 8/8/2005)

Judge Colleen Kollar-Kotelly, the presiding judge over the Foreign Intelligence Surveillance Court (FISC), learns from Justice Department liaison James Baker that at least one more government application for a FISA surveillance warrant is based on illegally obtained evidence. Kollar-Kotelly has warned the Justice Department about this practice in the past (see 2004 and 2005). This time, administration officials claim that the evidence in question is presented due to an error by a low-level Defense Department employee. Kollar-Kotelly asks Defense Secretary Donald Rumsfeld to ensure that such an “error” does not happen again. (Leonnig 2/9/2006)

Arthur Sulzberger.Arthur Sulzberger. [Source: New York Times]George W. Bush summons New York Times publisher Arthur Sulzberger and Times editor Bill Keller to the Oval Office to try to dissuade them from running a landmark story revealing the NSA’s illegal wiretapping program (see December 15, 2005) that he authorized in 2002 (see Early 2002). In the meeeting, Bush warns Sulzberger and Keller that “there’ll be blood on your hands” if another terrorist attack were to occur, obviously implying that to reveal the nature of the program would invite terrorist strikes. Bush is unsuccessful in his attempt to quash the story. (Alter 12/21/2005; Isikoff 12/22/2008)

According to an unnamed law enforcement official who works with the FBI and the National Counter Terrorism Center, the investigation into the SAAR network is still ongoing. However, only a small portion of the documents and computer files confiscated in a raid on the network in 2002 (see March 20, 2002) have been fully translated from Arabic into English. This official complains, “They don’t have the damn resources. They don’t have the language skills or computer forensic personnel to go through it all. And yet it’s a gold mine of information.” (Sperry 12/9/2005)

An FBI investigation into Jane Harman (D-CA), the ranking minority member of the House Intelligence Committee, is halted by Attorney General Alberto Gonzales, according to three former top national security officials. The investigation was to determine whether she agreed to use her influence on behalf of accused Israeli spies in return for Israeli support in being named chairman of the committee (see Summer 2005, October 2005 and December 2, 2006). In contrast to the former officials’ claims, the media will report that the investigation is ended due to “lack of evidence” of impropriety or illegal behavior on Harman’s part. However, according to the former officials, Gonzales wants Harman to help defend the administration’s warrantless wiretapping program, which is about to be revealed by a long-simmering New York Times story (see December 15, 2005). The evidence against Harman includes NSA wiretaps of a conversation between her and an Israeli agent. Reporter Jeff Stein will write, “As for there being ‘no evidence’ to support the FBI probe, a source with first-hand knowledge of the wiretaps called that ‘bull****.’” Another former national security officer will confirm Harman’s presence on the wiretaps. “It’s true,” the official will say. “She was on there.” Justice Department attorneys in the intelligence and public corruption units have concluded that Harman had committed what they called a “completed crime,” meaning there was evidence to show that she had attempted to complete it; they were prepared to open a case on her that would include wiretaps approved by the Foreign Intelligence Surveillance Court (FISC). CIA Director Porter Goss certified the FISA wiretapping request, and decided to inform House Speaker Dennis Hastert (R-IL) and ranking House Democrat Nancy Pelosi (D-CA) of the impending FBI investigation. At this point, say Stein’s sources, Gonzales intervenes to stop the investigation. Two officials with knowledge of the events will say that, in Gonzales’s words, he “needed Jane” to help support the warrantless wiretapping program once it became public knowledge. Gonzales tells Goss that Harman had helped persuade the Times to refrain from publishing the story in late 2004 (see Early November 2004, December 6, 2005, and Mid-2005), and although the Times would no longer wait on the story, Harman could be counted on to help defend the program. She will do just that (see December 21, 2005 and February 8-12, 2006). Hastert and Pelosi are never told of the FBI investigation. Stein will also learn that Goss’s successor, Michael Hayden, will later be informed of the potential investigation, but choose to take no action. Likewise, Director of National Intelligence John Negroponte will oppose any such investigation. Former officials who will pursue the Israeli espionage case for years will say, in Stein’s words, that “Harman dodged a bullet… [s]he was protected by an administration desperate for help.” A recently retired national security official closely involved in the investigation will add: “It’s the deepest kind of corruption. It’s a story about the corruption of government—not legal corruption necessarily, but ethical corruption.” (Stein 4/19/2009)

New York Times headline from article revealing NSA surveillance.New York Times headline from article revealing NSA surveillance. [Source: CBS News]The New York Times reveals that after the 9/11 attacks, President Bush granted the National Security Agency (NSA) secret authorization to eavesdrop on Americans and others inside the US without going through the Foreign Intelligence Surveillance Act (FISA) court to obtain legal warrants (see Early 2002. The administration justifies its actions by claiming such eavesdropping, which includes wiretapping phones and reading e-mails, is necessary to find evidence of terrorist activities, and says the nation needs the program after the 9/11 attacks exposed deficiencies in the US intelligence community’s information gathering process, and because of what they characterize as the “handcuffing” of US intelligence agencies by restrictive laws. The Times has had the article for over a year; the White House prevailed on the Times not to publish its findings for that time, arguing that publication would jeopardize continuing investigations and warn potential terrorists that they were under scrutiny. Many believe that the White House wanted to delay the publication of the article until well after the 2004 presidential elections. The Times delayed publication for over a year, and agreed to suppress some information that administration officials say could be useful to terrorists. (Less than two weeks before the article is published, Bush tries to convince the Times not to print the article at all: see December 6, 2005.) Two days after the Times publishes its article, Bush will acknowledge the order, and accuse the Times of jeopardizing national security (see December 17, 2005). The NSA program eavesdrops without warrants on up to 500 people in the US at any given time, officials say; the overall numbers have likely reached into the thousands. Overseas, up to 7,000 people suspected of terrorist ties are being monitored. Officials point to the discovery of a plot by Ohio trucker and naturalized US citizen and alleged al-Qaeda supporter Iyman Faris to bring down the Brooklyn Bridge with blowtorches as evidence of the program’s efficacy. They also cite the disruption of an al-Qaeda plot to detonate fertilizer bombs outside of British pubs and train stations by the program. But, officials say, most people targeted by the NSA for warrantless wiretapping have never been charged with a crime, and many are targeted because of questionable evidence and groundless suspicion. Many raise an outcry against the program, including members of Congress, civil liberties groups, immigrant rights groups, and others who insist that the program undermines fundamental Constitutional protections of US citizens’ civil liberties and rights to privacy. Several other government programs to spy on Americans have been challenged, including the Federal Bureau of Investigation (FBI)‘s surveillance of US citizens’ library and Internet usage, the monitoring of peaceful antiwar protests, and the proposed use of public and private databases to hunt for terrorist links. In 2004, the Supreme Court overturned the administration’s claim that so-called “enemy detainees” were not entitled to judicial review of their indefinite detentions. Several senior officials say that when the warrantless wiretapping program began, it operated with few controls and almost no oversight outside of the NSA itself. The agency is not required to seek the approval of the Justice Department or anyone else outside the FISA court for its surveillance operations. Some NSA officials wanted nothing to do with a program they felt was patently illegal, according to a former senior Bush administration official. Internal concerns about the program prompted the Bush administration to briefly suspend the program while Justice Department officials audited it and eventually provided some guidelines for its operations. A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the FISA Court, helped spur the suspension, according to officials. Kollar-Kotelly questioned whether information obtained under the program was being improperly used as the basis for FISA wiretap warrant requests from the Justice Department. Some government lawyers say that the Justice Department may have deliberately misled Kollar-Kotelly and the FISA court about the program in order to keep the program under wraps. The judge insisted to Justice Department officials that any material gathered under the program not be used in seeking wiretap warrants from her court. The question also arose in the Faris case, when senior Justice Department officials worried that evidence obtained by warrantless wiretapping by the NSA of Faris could be used in court without having to lie to the court about its origins. (Risen and Lichtblau 12/15/2005)

Times executive editor Bill Keller.Times executive editor Bill Keller. [Source: New York Times]The New York Times’s executive editor, Bill Keller, defends his paper’s decision to reveal the Bush administration’s warrantless wiretapping program, conducted through the NSA (see December 15, 2005), after holding the story for over a year. Keller writes: “We start with the premise that a newspaper’s job is to publish information that is a matter of public interest. Clearly a secret policy reversal that gives an American intelligence agency discretion to monitor communications within the country is a matter of public interest.… A year ago, when this information first became known to Times reporters, the administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country’s security. Officials also assured senior editors of The Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions. As we have done before in rare instances when faced with a convincing national security argument, we agreed not to publish at that time. We also continued reporting, and in the ensuing months two things happened that changed our thinking. First, we developed a fuller picture of the concerns and misgivings that had been expressed during the life of the program. It is not our place to pass judgment on the legal or civil liberties questions involved in such a program, but it became clear those questions loomed larger within the government than we had previously understood. Second, in the course of subsequent reporting we satisfied ourselves that we could write about this program—withholding a number of technical details—in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record. The fact that the government eavesdrops on those suspected of terrorist connections is well-known. The fact that the NSA can legally monitor communications within the United States with a warrant from the Foreign Intelligence Surveillance Court is also public information. What is new is that the NSA has for the past three years had the authority to eavesdrop on Americans and others inside the United States without a warrant. It is that expansion of authority—not the need for a robust anti-terror intelligence operation—that prompted debate within the government, and that is the subject of the article.” (CNN 12/16/2005)

President Bush acknowledges that he issued a 2002 executive order authorizing the National Security Agency (NSA) to wiretap US citizens’ phones and e-mails without proper warrants, and accuses the New York Times of jeopardizing national security by publishing its December 15 article (see Early 2002 and December 15, 2005). Bush says he was within the law to issue such an order, which many feel shatters fundamental Constitutional guarantees of liberty and privacy, but accuses the Times of breaking the law by publishing the article. Bush tells listeners during his weekly radio address that the executive order is “fully consistent” with his “constitutional responsibilities and authorities.” But, he continues, “Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.” He admits allowing the NSA to “to intercept the international communications of people with known links to al-Qaeda and related terrorist organizations” in a program designed to “detect and prevent terrorist attacks.” Under the law, the NSA must obtain warrants from the Foreign Intelligence Surveillance Act (FISA) Court, but after Bush’s executive order, it was no longer required to do so. Bush justifies the order by citing the example of two 9/11 hijackers, Khalid Almihdhar and Nawaf Alhazmi, who, he says, “communicated while they were in the United States to other members of al-Qaeda who were overseas, but we didn’t know they were here until it was too late.” Because of the unconstitutional wiretapping program, it is “more likely that killers like these 9/11 hijackers will be identified and located in time, and the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.” Bush also admits to reauthorizing the program “more than thirty times,” and adds, “I intend to do so for as long as our nation faces a continuing threat from al-Qaeda and related groups.” (CNN 12/16/2005) Bush fails to address the likelihood that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

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