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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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Lawyers for alleged enemy combatant Ali Saleh Kahlah al-Marri (see December 12, 2001) file papers with the court asserting that al-Marri was systematically abused by FBI and Defense Intelligence Agency (DIA) interrogators while in military custody. Al-Marri continues to be held in the Naval brig in Charleston, South Carolina (see June 23, 2003). Additionally, al-Marri was told that cabinets full of videotapes of his interrogations exist, according to the legal filings. Al-Marri has been in federal detention, without charge, since 2003. The New York Times has reported that about 50 videotapes of interrogation sessions with al-Marri and fellow detainee Jose Padilla (see May 8, 2002) were recently found by Pentagon officials (see March 13, 2008). DIA spokesman Donald Black admits that one tape shows al-Marri being gagged with duct tape, but says that al-Marri brought that treatment upon himself by chanting loudly and disruptively. One of al-Marri’s lawyers, Jonathan Hafetz, says that the treatment al-Marri has been forced to endure is far worse than anything Black describes—al-Marri, Hafetz says, has been subjected to stress positions, sensory deprivation, and threats of violence or death. “On several occasions, interrogators stuffed Mr. al-Marri’s mouth with cloth and covered his mouth with heavy duct tape,” says the legal filings. “The [duct] tape caused Mr. al-Marri serious pain. One time, when Mr. al-Marri managed to loosen the tape with his mouth, interrogators re-taped his mouth even more tightly. Mr. al-Marri started to choke until a panicked agent from the FBI or Defense Intelligence Agency removed the tape.” (United Press International 3/13/2008; White and Warrick 3/31/2008)

Alleged al-Qaeda leader Muhammad Rahim al-Afghani is transferred to the US-run prison in Guantanamo, Cuba, and officially declared a “high value” prisoner. Rahim was captured in Lahore, Pakistan, by local forces in July 2007 (see July 2007) and then was held in a secret CIA prison until his transfer to Guantanamo (see Late July 2007-March 14, 2008).
Why Is Rahim Considered Important? - Rahim is just the 16th person the US government has declared a “high value” prisoner. Fourteen prisoners were given that label when they were transferred from secret CIA prisons to Guantanamo in September 2006 (see September 6, 2006 and September 2-3, 2006). The 15th was Abd al-Hadi al-Iraqi, who was held by the CIA in autumn 2006 and sent to Guantanamo in April 2007 (see Autumn 2006-Late April 2007). (Meyer and Williams 3/15/2008) Although there had been reports in Pakistan about Rahim shortly after his arrest, virtually nothing was known about him until his transfer to Guantanamo. (Asian News International 8/2/2007) He may have experienced extreme sleep deprivation during CIA interrogations (see August and November 2007).
Hayden's Memo - There still are no published photographs of him. At the same time Rahim is sent to Guantanamo, CIA Director Michael Hayden issues a memo to CIA employees explaining Rahim’s alleged importance. Hayden calls Rahim a “tough, seasoned jihadist” with “high-level contacts,” and claims his arrest “was a blow to more than one terrorist network. He gave aid to al-Qaeda, the Taliban, and other anti-coalition militants.” According to Hayden, Rahim sought chemicals for an attack on US forces in Afghanistan and tried to recruit people who had access to US military facilities there. He helped prepare Tora Bora as a hideout in 2001, and then helped al-Qaeda operatives flee the area when US forces overran it in late 2001. But perhaps most importantly, Rahim had become one of Osama bin Laden’s most trusted facilitators and translators in the years prior to Rahim’s arrest. (Meyer and Williams 3/15/2008; Mazzetti 3/15/2008)

Attorney General Michael Mukasey makes an apparent reference to the intercepts of the 9/11 hijackers’ calls by the NSA before the attacks in a speech pleading for extra surveillance powers. Mukasey says: “[Officials] shouldn’t need a warrant when somebody with a phone in Iraq picks up a phone and calls somebody in the United States because that’s the call that we may really want to know about. And before 9/11, that’s the call that we didn’t know about. We knew that there has been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn’t know precisely where it went.” (Mukasey 3/27/2008; New York Sun 3/28/2008) According to a Justice Department response to a query about the speech, this appears to be a reference to the Yemen hub, an al-Qaeda communications facility previously alluded to by Mukasey in a similar context (see February 22, 2008). (Greenwald 4/4/2008) However, the hub was in Yemen, not Afghanistan and, although it acted as a safe house, it was primarily a communications hub (see Early 2000-Summer 2001). In addition, the NSA did not intercept one call between it and the 9/11 hijackers in the US, but several, involving both Khalid Almihdhar and Nawaf Alhazmi, not just one of the hijackers (see Spring-Summer 2000, Mid-October 2000-Summer 2001, and (August 2001)). Nevertheless, the NSA failed to inform the FBI the hub was calling the US (see (Spring 2000)). (Note: it is possible Mukasey is not talking about the Yemen hub in this speech, but some other intercept genuinely from an al-Qaeda safe house in Afghanistan—for example a call between lead hijacker Mohamed Atta in the US and alleged 9/11 mastermind Khalid Shaikh Mohammed, who may have been in Afghanistan when such call was intercepted by the NSA (see Summer 2001 and September 10, 2001). However, several administration officials have made references similar to Mukasey’s about the Yemen hub since the NSA’s warrantless wiretapping program was revealed (see December 17, 2005).)

Some media outlets pick up on a claim made by Attorney General Michael Mukasey on March 27, 2008, when he said that the US intercepted a call to a 9/11 hijacker in the US from an al-Qaeda safe house in Afghanistan (see March 27, 2008). This was possibly a garbled reference to an al-Qaeda hub in Yemen (see Early 2000-Summer 2001) mentioned by several administration officials since the NSA’s warrantless wiretapping story was exposed (see December 17, 2005). The San Francisco Chronicle notes that Mukasey “did not explain why the government, if it knew of telephone calls from suspected foreign terrorists, hadn’t sought a wiretapping warrant from a court established by Congress to authorize terrorist surveillance, or hadn’t monitored all such calls without a warrant for 72 hours as allowed by law.” (Egelko 3/28/2008) Salon commentator and former civil rights litigator Glenn Greenwald will attack Mukasey over the story, commenting, “These are multiple falsehoods here, and independently, this whole claim makes no sense.” (Greenwald 3/29/2008; Greenwald 4/4/2008)
9/11 Commission Comment - In response to a query from Greenwald, former 9/11 Commission executive director Philip Zelikow comments: “Not sure of course what [Mukasey] had in mind, although the most important signals intelligence leads related to our report… was not of this character. If, as he says, the [US government] didn’t know where the call went in the US, neither did we.” (Greewald 4/3/2008) (Note: the 9/11 Commission report may actually contain two cryptic references to what Mukasey is talking about (see Summer 2002-Summer 2004).) (9/11 Commission 7/24/2004, pp. 87-88, 222) Former 9/11 Commission vice chairman Lee Hamilton initially refuses to comment, but later says: “I am unfamiliar with the telephone call that Attorney General Mukasey cited in his appearance in San Francisco on March 27. The 9/11 Commission did not receive any information pertaining to its occurrence.” (Greewald 4/3/2008; Greenwald 4/8/2008)
Other Media - The topic will also be covered by Raw Story and mentioned by MSNBC host Keith Olbermann, who also attacks Mukasey: “What? The government knew about some phone call from a safe house in Afghanistan into the US about 9/11? Before 9/11?” He adds: “Either the attorney general just admitted that the government for which he works is guilty of malfeasant complicity in the 9/11 attacks, or he’s lying. I’m betting on lying.” (Edwards and Kane 4/1/2008; MSNBC 4/1/2008; Kane 4/3/2008) The story is also picked up by CBS commentator Kevin Drum, who appears to be unaware that information about some NSA intercepts of the hijackers’ calls was first made public by the Congressional Inquiry five years previously. However, Drum comments: “[T]his deserves some followup from the press. Mukasey has spoken about this in public, so if he’s claiming that FISA prevented us from intercepting a key call before 9/11 he also needs to defend that in public.” (Drum 4/3/2008; Drum 4/4/2008) A group of Congressmen also formally asks the Justice Department for an explanation of the matter (see April 3, 2008).

The American Civil Liberties Union (ACLU) secures an 81-page memo from March 14, 2003 that gave Pentagon officials legal justification to ignore laws banning torture (see March 14, 2003). The Justice Department memo was written by John Yoo, then a top official at the Office of Legal Counsel, on behalf of then-Pentagon General Counsel William J. Haynes. It guides Pentagon lawyers on how to handle the legal issues surrounding “military interrogations of alien unlawful combatants held outside the United States.” According to Yoo’s rationale, if a US interrogator injured “an enemy combatant” in a way that might be illegal, “he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network.” That motive, Yoo opines, justifies extreme actions as national self-defense. While the existence of the memo has been known for some time, this is the first time the public has actually seen the document. This memo is similar to other Justice Department memos that define torture as treatment that “shock[s] the conscience” and risks organ failure or death for the victim. Legal scholars call the memo evidence of “the imperial presidency,” but Yoo, now a law professor at the University of California at Berkeley, says the memo is unremarkable, and is “far from inventing some novel interpretation of the Constitution.” The ACLU receives the document as the result of a Freedom of Information Act (FOIA) request from itself, the New York Civil Liberties Union, and other organizations filed in June 2004 to obtain documents concerning the treatment of prisoners kept abroad. The Yoo memo is one of the documents requested. (John C. Yoo 3/14/2003 pdf file; United Press International 4/2/2008; American Civil Liberties Union 4/2/2008) According to the ACLU, the memo not only allows military officials to ignore torture prohibitions, but allows the president, as commander in chief, to bypass both the Fourth and Fifth Amendments (see April 2, 2008). (American Civil Liberties Union 4/2/2008) The Fourth Amendment grants the right for citizens “to be secure in their persons” and to have “probable cause” shown before they are subjected to “searches and seizures.” The Fifth Amendment mandates that citizens cannot be “deprived of life, liberty, or property, without due process of law.” (Cornell University Law School 8/19/2007) Amrit Singh, an ACLU attorney, says: “This memo makes a mockery of the Constitution and the rule of law. That it was issued by the Justice Department, whose job it is to uphold the law, makes it even more unconscionable.” (American Civil Liberties Union 4/2/2008)

The American Civil Liberties Union learns of another Justice Department memo in a Freedom of Information Act (FOIA) response that produces a 2003 memo supporting the use of torture against terror suspects (see April 1, 2008). This 2001 memo (see October 23, 2001), says that the Constitution’s protections against unreasonable searches and seizures—fundamental Fourth Amendment rights—do not apply in the administration’s efforts to combat terrorism. The Bush administration now says it disavows that view.
Background - The memo was written by John Yoo, then the deputy assistant attorney general, and the same lawyer who wrote the 2003 torture memo. It was written at the request of the White House and addressed to then-Attorney General Alberto Gonzales. The administration wanted a legal opinion on its potential responses to terrorist activity. The 37-page memo itself has not yet been released, but was mentioned in a footnote of the March 2003 terror memo. “Our office recently concluded that the Fourth Amendment had no application to domestic military operations,” the footnote states, referring to a document titled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.”
Relationship to NSA Wiretapping Unclear - It is not clear exactly what domestic military operations the October memo covers, but federal documents indicate that the memo relates to the National Security Agency’s Terrorist Surveillance Program (TSP). The TSP began after the 9/11 attacks, allowing for warrantless wiretaps of phone calls and e-mails, until it stopped on January 17, 2007, when the administration once again began seeking surveillance warrants from the Foreign Intelligence Surveillance Court (see May 1, 2007). White House spokesman Tony Fratto says that the October 2001 memo is not the legal underpinning for the TSP. Fratto says, “TSP relied on a separate set of legal memoranda” outlined by the Justice Department in January 2006, a month after the program was revealed by the New York Times (see February 2001, After September 11, 2001, and December 15, 2005). Justice Department spokesman Brian Roehrkasse says department officials do not believe the October 2001 memo was about the TSP, but refuses to explain why it was included on FOIA requests for documents linked to the TSP.
No Longer Applicable - Roehrkasse says the administration no longer holds the views expressed in the October 2001 memo. “We disagree with the proposition that the Fourth Amendment has no application to domestic military operations,” he says. “Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search.” The ACLU’s Jameel Jaffer is not mollified. “The recent disclosures underscore the Bush administration’s extraordinarily sweeping conception of executive power,” he says. “The administration’s lawyers believe the president should be permitted to violate statutory law, to violate international treaties and even to violate the Fourth Amendment inside the US. They believe that the president should be above the law.” He continues, “Each time one of these memos comes out you have to come up with a more extreme way to characterize it.” The ACLU has filed a court suit to challenge the government’s withholding of the memo. (Hess and Jordan 4/3/2008) Another civil rights group, the Electronic Frontier Foundation, joins the ACLU in challenging the memo (see April 2, 2008).

A group of congressmen led by House Judiciary Committee Chairman John Conyers (D-MI) asks for an explanation of a recent statement by Attorney General Michael Mukasey about a pre-9/11 NSA intercept of a call to the 9/11 hijackers in the US (see March 27, 2008 and March 29, 2008). The group calls Mukasey’s statement “disturbing” and says it “appears to suggest a fundamental misunderstanding of the federal government’s existing surveillance authority to combat terrorism, as well as possible malfeasance by the government prior to 9/11.” Mukasey had implied that the law prior to 9/11 did not allow the call to be traced, but the congressmen state: “[I]f the administration had known of such communications from suspected terrorists, they could and should have been intercepted based on existing FISA law.… [A]s of 9/11 FISA specifically authorized such surveillance on an emergency basis without a warrant for a 48 hour period.” They ask Mukasey to clarify his comments. The congressmen also ask about a secret Justice Department memo regarding the president’s powers in wartime in the US (see April 1, 2008). (Kane 4/3/2008)

The Congressional Quarterly reports on a growing body of evidence that indicates US interrogators are using mind-altering drugs on prisoners suspected of terrorist ties. The evidence is not yet conclusive, but reporter Jeff Stein writes: “There can be little doubt now that the government has used drugs on terrorist suspects that are designed to weaken their resistance to interrogation. All that’s missing is the syringes and videotapes.”
Connection to Yoo Memo - The idea that the US might be using hallucinogenic or other drugs on detainees in Guantanamo and other US detention facilities was bolstered by the recent revelation of another “torture memo,” this one written in 2003 by then-Justice Department lawyer John Yoo (see March 14, 2003). Yoo wrote that US interrogators could use mind-altering drugs on terror suspects as long as the drugs did not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.” Yoo first rationalized the use of drugs on prisoners in earlier “torture memos” (see January 9, 2002 and August 1, 2002).
Criticism - Stephen Miles, a bioethicist and author of a recent book detailing medical complicity in US torture of suspected terrorists, notes: “The new Yoo memo, along with other White House legal memoranda, shows clearly that the policy foundation for the use of interrogational drugs was being laid. The recent memo on mood-altering drugs does not extend previous work on this area. The use of these drugs was anticipated and discussed in the memos of January and February 2002 by [Defense Department, Justice Department], and White House counsel using the same language and rationale. The executive branch memos laid a comprehensive and reiterated policy foundation for the use of interrogational drugs.” Jeffrey Kaye, a clinical psychologist who works with torture victims through Survivors International, says plainly: “Yes, I believe [drugs] have been used. I came across some evidence that they were using mind-altering drugs, to regress the prisoners, to ascertain if they were using deception techniques, to break them down.”
Varieties of Drugs and Placebos Being Used? - It is well known that US military personnel often use sedatives on shackled and hooded prisoners on “rendition” flights from Middle Eastern countries to Guantanamo. There is no hard evidence to support claims that US interrogators are using hallucinogenic drugs such as LSD on detainees. However, Michael Caruso, who represents suspected al-Qaeda operative Jose Padilla (see May 8, 2002), filed a motion last year asserting that his client “was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations.” Caruso had no proof to back up his claim.
KUBARK - Stein notes that a 1963 CIA interrogation manual, code-named KUBARK, advocated the use of placebos as well as real drugs on prisoners. And Michael Gelles, a psychologist with the Naval Criminal Investigative Institute who has spoken out against the abuse of prisoners at Guantanamo, says that he never saw anything related to drugs. “I never saw that raised as an issue,” he says. Hallucinogens such as LSD do not make subjects tell the truth. According to KUBARK, “Their function is to cause capitulation, to aid in the shift from resistance to cooperation.”
Winging It - In July 2003, the CIA, the RAND Corporation, and the American Psychological Association hosted a workshop that explored the question of using drugs to “affect apparent truth-telling behavior” (see June 17-18, 2003). After 9/11, top Bush administration officials pushed military commanders for quick intelligence but, according to a recent study, the interrogators unsure how to use harsher methodologies (see December 2006) and began “mak[ing] it up on the fly.”
Guantanamo - Guantanamo staff judge advocate Lieutenant Colonel Diane Beaver says that some of the interrogators drew inspiration from the popular TV drama 24 (see Fall 2006). Beaver makes no mention of drugs being used, but Ewe Jacobs, the director of Survivors International, says she may not have seen or heard about their use. “The Guantanamo camps were isolated from one another,” he says. What happened in one part of the facility may not have been known in other areas. Miles adds, “I suspect that most of the use of interrogational drugs was by CIA and Special Ops interrogators, and thus still remains classified.”
Credibility Issues - As with victims of the CIA’s MK-ULTRA program from the 1960s and 70s, when unwitting subjects were dosed with hallucinogenic drugs and their reactions catalogued and observed, the detainees who may have been forcibly given such drugs will likely not be believed by many. Absent hard evidence, many will consider the detainees either “looney,” in Stein’s words, or liars. Few believe that Padilla was drugged. And, Stein concludes, “Even fewer will believe the other prisoners, a number of whom are deranged from prolonged interrogation—if they ever get out.” (Stein 4/4/2008)

Author and former civil litigator Glenn Greenwald writes that he is angered, but not particularly shocked, at the US mainstream media’s failure to provide in-depth, extensive coverage of the recently released 2003 torture memo (see March 14, 2003 and April 1, 2008) and another memo asserting that the Bush administration had declared the Fourth Amendment null and void in reference to “domestic military operations” inside the US (see April 2, 2008). Greenwald also notes the lack of coverage of a recent puzzling comment by Attorney General Michael Mukasey about 9/11 (see March 27, 2008). Instead, Greenwald notes, stories about the Democratic presidential campaign (including criticism over Barack Obama’s relationship with his former pastor, Jeremiah Wright, and Obama’s recent bowling scores) have dominated press coverage. According to a recent NEXIS search, these various topics have been mentioned in the media in the last thirty days:
bullet “Yoo and torture” (referring to John Yoo, the author of the two memos mentioned above)—102.
bullet “Mukasey and 9/11”—73.
bullet “Yoo and Fourth Amendment”—16.
bullet “Obama and bowling”—1,043.
bullet “Obama and Wright”—More than 3,000 (too many to be counted).
bullet “Obama and patriotism”—1,607.
bullet “Clinton and Lewinsky”—1,079. (Greenwald 4/5/2008)
(For the record, on March 30, Obama went bowling in Pennsylvania during a campaign stop, in the company of Senator Bob Casey (D-PA). Newsmax is among the many media outlets that provided play-by-play coverage of Obama’s abysmal performance on the lanes—he scored a 37. The site reported that Obama lost “beautifully” and was “way out of his league.”) (NewsMax 3/31/2008)
Media Attacks Obama's 'Elitism' - The Washington Post’s Howard Kurtz gives over much of his column to a discussion of Obama’s eating and bowling habits, making the argument, according to Greenwald, that Obama is “not a regular guy but an arrogant elitist.” Kurtz defends his argument by compiling a raft of “similar chatter about this from Karl Rove” and others. Bloomberg’s Margaret Carlson spent a week’s worth of columns calling Obama’s bowling his biggest mistake, a “real doozy.” MSNBC reported that Obama went bowling “with disastrous consequences.” Greenwald notes that the media “as always,” takes “their personality-based fixations from the right, who have been promoting the Obama is an arrogant, exotic, elitist freak narrative for some time.” In this vein, Time’s Joe Klein wrote of what he called Obama’s “patriotism problem,” saying that “this is a chronic disease among Democrats, who tend to talk more about what’s wrong with America than what’s right.” Greenwald notes, “He trotted it all out—the bowling, the lapel pin, Obama’s angry, America-hating wife, ‘his Islamic-sounding name.’” Greenwald calls the media fixation on Obama’s bowling and his apparent failure to be a “regular guy” another instance of their “self-referential narcissism—whatever they sputter about is what ‘the people’ care about, and therefore they must keep harping on it, because their chatter is proof of its importance. They don’t need Drudge to rule their world any longer because they are Matt Drudge now.” (Greenwald 4/5/2008)

President Bush admits he knew about his National Security Council Principals Committee’s discussion and approval of harsh interrogation methods against certain terror suspects (see April 2002 and After). Earlier reports had noted that the Principals—a group of top White House officials led by then-National Security Adviser Condoleezza Rice—had deliberately kept Bush “out of the loop” in order for him to maintain “deniability.” Bush tells a reporter: “Well, we started to connect the dots in order to protect the American people. And yes, I’m aware our national security team met on this issue. And I approved.” Bush says that the news of those meetings to consider extreme interrogation methods was not “startling.” He admitted as far back as 2006 that such techniques were being used by the CIA (see September 6, 2006). But only now does the news of such direct involvement by Bush’s top officials become public knowledge. The Principals approved the waterboarding of several terror suspects, including Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003 and March 10, 2007); Bush defends the use of such extreme measures against Mohammed, saying: “We had legal opinions that enabled us to do it. And no, I didn’t have any problem at all trying to find out what Khalid Shaikh Mohammed knew.… I think it’s very important for the American people to understand who Khalid Shaikh Mohammed was. He was the person who ordered the suicide attack—I mean, the 9/11 attacks.” (Greenburg, Rosenberg, and de Vogue 4/11/2008) Bush’s admission is no surprise. The day before Bush makes his remarks, law professor Jonathan Turley said: “We really don’t have much of a question about the president’s role here. He’s never denied that he was fully informed of these measures. He, in fact, early on in his presidency—he seemed to brag that they were using harsh and tough methods. And I don’t think there’s any doubt that he was aware of this. The doubt is simply whether anybody cares enough to do anything about it.” (MSNBC 4/10/2008)

An Indonesian court officially declares Jemaah Islamiyah (JI) an illegal organization. JI is believed to be al-Qaeda’s main affiliate in Southeast Asia. The Indonesian government had previously refused to ban JI, even though it supported a United Nations ban on JI shortly after the 2002 Bali bombings (see October 12, 2002 and October 24, 2002). This court decision takes place during a trial of two high-ranking JI leaders, Zarkasih and Abu Dujana, both of whom were arrested the year before. Both are sentenced to 15 years in prison for supporting terrorist activities. Counterterrorism expert Rohan Gunaratna calls the decision “a huge victory against terrorism.” He adds: “This will have a direct impact on the leadership of JI, the most lethal terrorist group in Southeast Asia. Unless a terrorist was about to commit an attack, or had committed an attack, the Indonesian police couldn’t arrest them. Today if anyone is distributing propaganda and that person is linked to JI, that person can be arrested.” (Forbes 4/22/2008)

The American Civil Liberties Union (ACLU) says that, according to newly released documents, the US military continued to use abusive and illegal interrogation methods on detainees well after an October 2003 directive meant to end such practices was issued. A number of Defense Department documents shows how military medical workers systematically failed to report abuses, and how psychologists took part in such interrogations—violations of both the law and medical oaths, the ACLU says.
Documents Part of Church Report - The documents, part of what is known as the Church report (see May 11, 2004), have been newly unredacted in connection with a Freedom of Information Act (FOIA) request filed in 2004. The government has yet to release any details of interrogation methods used after the 2003 directive was issued. ACLU attorney Amrit Singh says the documents also show that “the use of some of the techniques… continued even until July 2004, despite the fact that many were retracted by the October 2003 memorandum, and some were subsequently prohibited by the May 2004 memorandum.” The report says, “The relatively widespread use of these techniques supports our finding that the policy documents were not always received or thoroughly understood.” The Church report, an internal review of prisoner interrogation policies conducted after the Abu Ghraib scandal, found that no military or civilian leaders either directed or encouraged the prisoner abuses committed in Iraq, Afghanistan, and Guantanamo Bay. (Goldman 4/30/2008)
Medics Failed to Report Abuse - According to the documents, Army medics failed to report abuses even after witnessing them. The Church report found that “enlisted medics witnessed obvious episodes of detainee abuse apparently without reporting them to superiors.” One medic watched as guards deliberately struck a detainee in his wounded leg. Two separate incidents involved detainees handcuffed in painful positions for extended periods of time; one of the detainees suffered a dislocated shoulder and the other experienced what the ACLU terms “excruciating pain when eventually forced to stand.” Another medic witnessed pictures of naked detainees in a pyramid but did not report the episode to superiors. “The documents reveal that psychologists and medical personnel played a key role in sustaining prisoner abuse—a clear violation of their ethical and legal obligations,” says Singh. “The documents only underscore the need for an independent investigation into responsibility for the systemic abuse of detainees held in US custody abroad.” (American Civil Liberties Union 4/30/2008)
Partial Disclosure - Some of the report was disclosed in 2005, and parts of it have been declassified. Other portions remained classified in the interest of national security, according to government officials. Singh says these documents prove again that such classifications further a pattern “of claiming national security as pretext for withholding information to cover up embarrassing information.” The ACLU has long been critical of the Church report, calling it incomplete and sanitized. Lawsuits to force further disclosure are still pending. (Goldman 4/30/2008; American Civil Liberties Union 4/30/2008)

Aden Hashi Ayro.Aden Hashi Ayro. [Source: Intelcenter / Associated Press]A US missile strike kills Aden Hashi Ayro, the alleged head of al-Qaeda’s operations in Somalia. Ayro and up to ten others are killed in the region of Dusamareeb, an area a few hundred miles north of the capital of Mogadishu. The strike is said to be the fifth US attack in Somalia since Ethiopia invaded Somalia in December 2006 with US support (see December 24, 2006-January 2007). Ayro is said to have attended an al-Qaeda training camp in Afghanistan in the late 1990s. Then he returned to Somalia in 2003 and quickly rose up the ranks of al-Shabab, the military arm of the Islamic Court Union. He is said to be in charge of al-Qaeda’s operations there, although he is not a formal member of al-Qaeda. He was reportedly behind the scattered deaths of some foreigners in Somalia between 2003 and 2005. But despite this death, in recent months militant groups such as al-Shabab have been gaining ground against Somalia’s weak transitional government and the occupying Ethiopian troops keeping it in power. (McCrummen and DeYoung 5/1/2008; Perry 5/2/2008)

A front-page Washington Post story reveals that, eight years after al-Qaeda bombed the USS Cole just off the coast of Yemen and killed 17 US soldiers (see October 12, 2000), “all the defendants convicted in the attack have escaped from prison or been freed by Yemeni officials.”
Two Key Suspects Keep Slipping from Yemeni Prisons - For instance, Jamal al-Badawi, a Yemeni and key organizer of the bombing, broke out of Yemeni prisons twice and then was secretly released in 2007 (see April 11, 2003-March 2004, February 3, 2006 and October 17-29, 2007). The Yemeni government jailed him again after the US threatened to cut aid to the country, but apparently he continues to freely come and go from his prison cell. US officials have demanded the right to perform random inspections to make sure he stays jailed. Another key Cole suspect, Fahad al-Quso, also escaped from a Yemeni prison and then was secretly released in 2007 (see May 2007). Yemen has refused to extradite al-Badawi and al-Quso to the US, where they have been indicted for the Cole bombing. FBI Director Robert Mueller flew to Yemen in April 2008 to personally appeal to Yemeni President Ali Abdallah Saleh to extradite the two men. However, Saleh has refused, citing a constitutional ban on extraditing its citizens. Other Cole suspects have been freed after short prison terms in Yemen, and at least two went on to commit suicide attacks in Iraq.
US Unwilling to Try Two Suspects in Its Custody - Two more key suspects, Khallad bin Attash and Abd al-Rahim al-Nashiri, were captured by US forces and have been transferred to the US-run Guantanamo prison. Al-Nashiri is considered the mastermind of the Cole bombing, but the US made the decision not to indict either of them because pending criminal charges could have forced the CIA or the Pentagon to give up custody of the men. Al-Quso, bin Attash, and al-Nashiri all attended a key 2000 al-Qaeda summit in Malaysia where the 9/11 attacks were discussed (see January 5-8, 2000).
'The Forgotten Attack' - A week after the Cole bombing, President Bill Clinton vowed to hunt down the plotters and promised, “Justice will prevail.” But less than a month after the bombing, George W. Bush was elected president. Roger Cressey, a former counterterrorism official in the Clinton and Bush administrations who helped oversee the White House’s response to the Cole bombing, says, “During the first part of the Bush administration, no one was willing to take ownership of this. It didn’t happen on their watch. It was the forgotten attack.”
'Back to Square One' - Former FBI agent Ali Soufan, a lead investigator into the bombing, complains, “After we worked day and night to bring justice to the victims and prove that these Qaeda operatives were responsible, we’re back to square one. Do they have laws over there or not? It’s really frustrating what’s happening.” The Post comments, “Basic questions remain about which individuals and countries played a role in the assault on the Cole.
Possible Government Complicity - One anonymous senior Yemeni official tells the Post that al-Badawi and other al-Qaeda members have had a long relationship with Yemen’s intelligence agencies and have targeted political opponents in the past. For instance, in 2006, an al-Qaeda suicide attack in Yemen came just days before elections there, and Saleh tried to link one of the figures involved to the opposition party, helping Saleh win reelection (see September 15, 2006). Furthermore, there is evidence that figures within the Yemeni government were involved in the Cole bombing (see After October 12, 2000), and that the government also protected key bombers such as al-Nashiri in the months before and after the bombings (see April 2000 and Shortly After October 12, 2000).
Bush Unwilling to Meet with Victims' Relatives - Relatives of the soldiers killed in the bombing have attempted to meet with President Bush to press for more action, to no avail. John P. Clodtfelter Jr., whose son died on the Cole, says, “I was just flat told that he wouldn’t meet with us. Before him, President Clinton promised we’d go out and get these people, and of course we never did. I’m sorry, but it’s just like the lives of American servicemen aren’t that important.” (Whitlock 5/4/2008)

The US military dismisses charges against Mohammed al-Khatani. In February 2008, al-Khatani was part of a small group of detainees held at the Guantanamo prison charged before a military tribunal with involvement in the 9/11 attacks (see February 11, 2008). Al-Khatani is said to be the would-be “20th hijacker” who was refused entry to the US in August 2001 (see August 4, 2001). However, he was later captured and subjected to months of torture at Guantanamo (see August 8, 2002-January 15, 2003). The Pentagon official who announces the dismissal of charges against him, Convening Authority Susan Crawford, gives no explanation. The charges are dismissed “without prejudice,” which means they could be reinstated at any time. However, many believe that the charges against him are dismissed because of the torture he underwent, as well as the fact that he appears to have only been a unsuccessful low-level figure in the plot. (Glaberson 5/14/2008) In 2006, MSNBC predicted that he would never face trial due to the way he was tortured (see October 26, 2006). However, he still remains imprisoned at Guantanamo. In January 2009, Crawford will confirm that she dismissed the case against al-Khatani because he was indeed tortured (see January 14, 2009). She will say that the treatment suffered by al-Khatani “did shock me,” and will continue: “I was upset by it. I was embarrassed by it. If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it.” Crawford will lay much of the blame for al-Khatani being tortured at the feet of then-Defense Secretary Donald Rumsfeld. “A lot of this happened on his watch,” she will say. (Woodward 1/14/2009)

The Department of Justice (DOJ) releases a long-anticipated report on the alleged torture and abuse of terrorist suspects in US custody. The report was spurred by a Congressional request after Freedom of Information Act (FOIA) requests showed that FBI agents at Guantanamo had raised concerns about CIA- and military-conducted interrogations. The report identifies then-National Security Adviser Condoleezza Rice as a recipient of complaints of torture. (American Civil Liberties Union 5/20/2008) The report, issued by DOJ Inspector General Glenn Fine, shows that CIA officials regularly ignored DOJ warnings that the interrogation tactics they were using amounted to “borderline torture.” The report also concludes that the Defense Department is ultimately responsible for how prisoners in military custody are being treated. As a result, the report finds no reason to bring criminal complaints against CIA officials or interrogators.
'Seven Months of Foot-Dragging' - The report documents what CBS News calls “seven months of foot-dragging” by the Pentagon, which attempted to water down the report. Failing that, the report cites numerous instances where Pentagon officials attempted to redact information in the report from public view. The report is lightly redacted.
FBI Praised for Legal, Non-Coercive Interrogation Techniques - The report generally praises the FBI’s own interrogation efforts, methods, and results. It confirms that when CIA officials became impatient with what they were calling “throwaway results” by FBI interrogators, particularly in the case of Abu Zubaida (see April - June 2002), the CIA took over interrogations of prisoners such as Zubaida and began using harsh, torturous techniques. The FBI pulled its agents from the ongoing interrogations, refusing to participate in what it considered to be illegal actions (see May 13, 2004). (In 2009, a former FBI interrogator will confirm that the FBI gathered far more useful information from its non-coercive techniques than the CIA did with its “borderline torture” methods—see Late March through Early June, 2002 and April 22, 2009.) (CBS News 5/20/2008; Isikoff and Hosenball 5/20/2008; American Civil Liberties Union 5/20/2008)
Witnesses to Torture - However, the report makes clear that FBI agents witnessed harsh interrogations that may have constituted torture at three locations—Baghdad’s Abu Ghraib prison, Afghanistan’s Bagram Air Force Base facility, and Guantanamo Bay. FBI agents are explicitly banned from using brutality, physical violence, intimidation, or other means of causing duress when interviewing suspects. Instead, the FBI generally tries to build a rapport with suspects to get information. “Beyond any doubt, what they are doing (and I don’t know the extent of it) would be unlawful were these enemy prisoners of war,” one FBI employee, senior FBI lawyer Spike Bowman, reported. Bowman worried that the FBI would be “tarred by the same brush,” when asked whether the FBI should refer the matter to the Defense Department Inspector General, and added, “Were I still on active duty, there is no question in my mind that it would be a duty to do so.” The report cites two FBI agents at Guantanamo who “had concerns not only about the proposed techniques but also about the glee with which the would-be [military] participants discussed their respective roles in carrying out these techniques, and the utter lack of sophistication and circus-like atmosphere within this interrogation strategy session.” (CBS News 5/20/2008; American Civil Liberties Union 5/20/2008)
Blocking Access to Zubaida - CIA general counsel John Rizzo refused to let DOJ investigators interview Zubaida for the report. The CIA has admitted that Zubaida was waterboarded (see Mid-May, 2002, March 2002 and April - June 2002). The report says that the CIA’s denial of access to Zubaida was “unwarranted,” and “hampered” the investigation, and contrasts the CIA’s actions with those of the Defense Department, which allowed DOJ investigators to interview Guantanamo prisoners. Rizzo told the DOJ that Zubaida “could make false allegations against CIA employees.” (Isikoff and Hosenball 5/20/2008; American Civil Liberties Union 5/20/2008)
Split over Al-Khatani - The rift between the CIA and FBI came to a head over the treatment of Mohamed al-Khatani, one of several suspected terrorists accused of being the fabled “20th hijacker” for the 9/11 attacks (see December 2001). According to the report, al-Khatani was abused in a number of ways by military interrogators at Guantanamo; the report cites the use of attack dogs, shackling and stress positions, sexual humiliation, mocking al-Khatani’s religion, and extended sleep deprivation among other tactics. FBI officials complained to the White House after learning that military interrogators forced him to “perform dog tricks,” “be nude in front of a female,” and wear “women’s underwear on his head.” Al-Khatani did eventually “confess” (see July 2002), but FBI officials expressed serious doubts as to the validity of his confession, both in its accuracy and in its admissability in a criminal court. The then-chief of the Guantanamo facility, Major General Geoffrey Miller, ordered a “relentless” and “sustained attack” on al-Khatani. “The plan was to keep him up until he broke,” an FBI agent told superiors, and some of those superiors worried that those techniques would render his confession inadmissible. Al-Khatani was hospitalized for hypothermia during those interrogations. His lawyer, Gitanjali Gutierrez, says her client recently attempted suicide because of his treatment. “The tactics that were used against and the impact, the pain and suffering it caused him and the damage that it caused him does rise to a level of torture,” she says. The government recently dropped all charges against al-Khatani (see October 26, 2006 and January 14, 2009), because if he had been brought to trial, all of the evidence of his treatment would be made public. (CBS News 5/20/2008; Isikoff and Hosenball 5/20/2008; American Civil Liberties Union 5/20/2008)

Henry Waxman (D-CA), the chairman of the House Oversight Committee, writes to Attorney General Michael Mukasey requesting access to the transcripts of interviews by President Bush and Vice President Cheney regarding the “outing” of CIA agent Valerie Plame Wilson (see Shortly after February 13, 2002). The interviews were conducted as part of the investigation of former Vice Presidential Chief of Staff Lewis “Scooter” Libby by special prosecutor Patrick Fitzgerald. Waxman notes that he made a similar request in December 2007 which has gone unfulfilled (see December 3, 2007). Waxman wants the reports from Bush and Cheney’s interviews, and the unredacted reports from the interviews with Libby, former White House Deputy Chief of Staff Karl Rove, former White House press secretary Scott McClellan, former National Security Adviser Condoleezza Rice, former White House aide Cathie Martin, “and other senior White House officials.” Information revealed by McClellan in conjuction with his new book What Happened, including McClellan’s statement that Bush and Cheney “directed me to go out there and exonerate Scooter Libby,” and his assertion that “Rove, Libby, and possibly Vice President Cheney… allowed me, even encouraged me, to repeat a lie,” adds to evidence from Libby’s interviews that Cheney may have been the source of the information that Wilson worked for the CIA. For Cheney to leak Wilson’s identity, and to then direct McClellan to mislead the public, “would be a major breach of trust,” Waxman writes. He adds that no argument can be made for withholding the documents on the basis of executive privilege, and notes that in 1997 and 1998, the Oversight Committee demanded and received FBI interviews with then-President Clinton and then-Vice President Gore without even consulting the White House. (US House of Representatives 6/3/2008; Tilghman 6/3/2008)

A group of German civil rights lawyers files a lawsuit against the German government, demanding that the government attempt to extradite 13 CIA agents named in the alleged kidnapping of a German citizen. Khalid el-Masri, a German citizen of Lebanese descent, says he was abducted in December 2003 at the Serbian-Macedonian border (see December 31, 2003-January 23, 2004 and January 23 - March 2004). He was flown by the CIA to a detention center in Kabul, Afghanistan, where he was interrogated and abused for months. El-Masri says he was released in Albania in May 2004, and told that he was the victim of mistaken identity (see May 29, 2004). No government or body has yet taken responsibility for el-Masri’s kidnapping and brutalization. US Secretary of State Condoleezza Rice and other US officials have refused to address the case, but German Chancellor Angela Merkel has said the US acknowledged making a mistake with el-Masri.
Accountability - “We are demanding accountability” with the lawsuit, says attorney Wolfgang Kaleck. For himself, el-Masri says, “I just want the German government to acknowledge what happened to me.” An American judge dismissed a lawsuit filed by el-Masri against the CIA and three US corporations in 2006 (see May 18, 2006). In January 2007, German prosecutors issued warrants for the arrests of 13 CIA agents, accusing them of wrongfully imprisoning el-Masri and causing him serious bodily harm. The US Justice Department refused the requests, citing “American national interests,” and the German Ministry of Justice dropped the request. The lawsuit seeks to force the German government to reconsider extradition for the CIA agents.
Extraordinary Rendition - According to human rights organizations, el-Masri’s case is an example of “extraordinary rendition,” where the US takes suspected terrorists to foreign countries where they are subjected to abuse and torture. A criminal lawsuit against CIA officers in conjunction with the el-Masri case is also ongoing in Macedonia; that case could end up before the European Court of Human Rights. And the American Civil Liberties Union has also filed a petition on el-Masri’s behalf through the Inter-American Commission on Human Rights, a body that seeks to establish international laws. (Associated Press 6/9/2008)

The Supreme Court rules 5-4 that foreign terror suspects held without charge at Guantanamo Bay have the Constitutional right to challenge their detention in US civilian courts. The Court splits along ideological lines, with the more liberal and moderate members supporting the finding, and the more conservative members opposing it. Justice Anthony Kennedy, considered a centrist, writes the ruling. He writes, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” The ruling specifically strikes down the portion of the Military Commissions Act (see October 17, 2006) that denies detainees their habeas corpus rights to file petitions. (Sherman 6/12/2008; Associated Press 6/12/2008) The case is Boumediene v. Bush, and was filed in the Supreme Court in March 2007 on behalf of Lakhdar Boumediene, a Bosnian citizen held in the Guantanamo camp since 2002 (see January 18, 2002). It was combined with a similar case, Al Odah v United States (see October 20, 2004). (Oyez (.org) 6/2007; Shawl 6/29/2007)
'Stinging Rebuke' for Bush Administration - The ruling is considered a serious setback for the Bush administration (a “stinging rebuke,” in the words of the Associated Press), which insists that terror suspects detained at Guantanamo and elsewhere have no rights in the US judicial system. It is unclear whether the ruling will lead to prompt hearings for detainees (Associated Press 6/12/2008; Sherman 6/12/2008) ; law professor James Cohen, who represents two detainees, says, “Nothing is going to happen between June 12 and January 20,” when the next president takes office. Justice Department spokesman Peter Carr says the decision will not affact war crimes trials already in the works: “Military commission trials will therefore continue to go forward.”
Scalia: Ruling Will 'Cause More Americans to Be Killed' - President Bush says he disagrees with the ruling, and says he may seek new legislation to keep detainees under lock and key. Justice Antonin Scalia, the leader of the Court’s ideological right wing, agrees; in a “blistering” dissent, he writes that the decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.” In his own dissent, Chief Justice John Roberts argues that the ruling strikes down “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” Joining Scalia and Roberts in the minority are Justices Samuel Alito and Clarence Thomas. Voting in the majority are Kennedy and Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens.
Military Tribunals 'Doomed,' Says Navy Lawyer - Former Navy lawyer Charles Swift, who argued a similar case before the Supreme Court in Hamdan v Rumsfeld (see June 30, 2006), says he believes the ruling removes any legal basis for keeping Guantanamo open, and says that military tribunals are “doomed.” The entire rationale for Guantanamo and the tribunals, Swift says, is the idea that “constitutional protections wouldn’t apply.” But now, “The court said the Constitution applies. They’re in big trouble.” Democrats and many human rights organizations hail the ruling as affirming the US’s commitment to the rule of law; some Republican lawmakers say the ruling puts foreign terrorists’ rights over the safety of the American people. Vincent Warren, the head of the Center for Constitutional Rights, says: “The Supreme Court has finally brought an end to one of our nation’s most egregious injustices. By granting the writ of habeas corpus, the Supreme Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation’s founding.” (Associated Press 6/12/2008)

David Addington and John Yoo before the House Judiciary Committee.David Addington and John Yoo before the House Judiciary Committee. [Source: Washington Post]David Addington, the chief counsel for Vice President Cheney and one of the architects of the Bush administration’s torture policies (see Late September 2001), testifies before the House Judiciary Committee. He is joined by Justice Department lawyer John Yoo, who authored or contributed to many of the legal opinions that the administration used to justify the torture and “extralegal” treatment of terror suspects (see November 6-10, 2001). Addington, unwillingly responding to a subpoena, is, in Washington Post reporter Dana Milbank’s description, “nasty, brutish, and short” with his questioners. (Milbank 6/27/2008) He tells lawmakers that the world has not changed much since the 9/11 attacks: “Things are not so different today as people think. No American should think we are free, the war is over, al-Qaeda is not coming.” (Barnes 6/27/2008)
Refusing to Define 'Unitary Executive' - Committee chairman John Conyers (D-MI) peppers Addington with questions about the Bush administration and its penchant for the “unitary executive” paradigm, which in essence sees the executive branch as separate and above the other two, “lesser” branches of government. Addington is one of the main proponents of this theory (see (After 10:00 a.m.) September 11, 2001). But instead of answering Conyers’s questions, he slaps away the questions with what Milbank calls “disdain.”
bullet Addington: “I frankly don’t know what you mean by unitary theory.”
bullet Conyers: “Have you ever heard of that theory before?”
bullet Addington: “I see it in the newspapers all the time.”
bullet Conyers: “Do you support it?”
bullet Addington: “I don’t know what it is.”
bullet Conyers (angrily): “You’re telling me you don’t know what the unitary theory means?”
bullet Addington: “I don’t know what you mean by it.”
bullet Conyers: “Do you know what you mean by it?”
bullet Addington: “I know exactly what I mean by it.”
Open Contempt - He flatly refuses to answer most questions, and treats the representatives who ask him those questions with open contempt and, in Milbank’s words, “unbridled hostility.” One representative asks if the president is ever justified in breaking the law, and Addington retorts, “I’m not going to answer a legal opinion on every imaginable set of facts any human being could think of.” When asked if he consulted Congress when interpreting torture laws, Addington snaps: “That’s irrelevant.… There is no reason their opinion on that would be relevant.” Asked if it would be legal to torture a detainee’s child (see After September 11, 2002), Addington answers: “I’m not here to render legal advice to your committee. You do have attorneys of your own.” He offers to give one questioner advice on asking better questions. When asked about an interrogation session he had witnessed at Guantanamo, he replies: “You could look and see mouths moving. I infer that there was communication going on.” At times he completely ignores questions, instead writing notes to himself while the representatives wait for him to take notice of their queries. At other times, he claims an almost complete failure of memory, particularly regarding conversations he had with other Bush officials about interrogation techniques. (Milbank 6/27/2008) (He does admit to being briefed by Yoo about an August 2002 torture memo (see August 1, 2002), but denies assisting Yoo in writing it.) (Barnes 6/27/2008) Addington refuses to talk more specifically about torture and interrogation practices, telling one legislator that he can’t speak to him or his colleagues “[b]ecause you kind of communicate with al-Qaeda.” He continues, “If you do—I can’t talk to you, al-Qaeda may watch C-SPAN.” When asked if he would meet privately to discuss classified matters, he demurs, saying instead: “You have my number. If you issue a subpoena, we’ll go through this again.” (Khanna 6/26/2008; Milbank 6/27/2008)
Yoo Dodges, Invokes Privilege - Milbank writes that Yoo seems “embolden[ed]” by Addington’s “insolence.” Yoo engages in linguistic gymnastics similar to Addington’s discussion with Conyers when Keith Ellison (D-MN) asks him whether a torture memo was implemented. “What do you mean by ‘implemented’?” Yoo asks. Ellison responds, “Mr. Yoo, are you denying knowledge of what the word ‘implement’ means?” Yoo says, “You’re asking me to define what you mean by the word?” Ellison, clearly exasperated, retorts, “No, I’m asking you to define what you mean by the word ‘implement.’” Yoo’s final answer: “It can mean a wide number of things.” (Milbank 6/27/2008) Conyers asks Yoo, “Could the president order a suspect buried alive?” Yoo responds, “Uh, Mr. Chairman, I don’t think I’ve ever given advice that the president could order someone buried alive.” Conyers retorts: “I didn’t ask you if you ever gave him advice. I asked you thought the president could order a suspect buried alive.” Yoo answers, “Well Chairman, my view right now is that I don’t think a president—no American president would ever have to order that or feel it necessary to order that.” Conyers says, “I think we understand the games that are being played.” Reporter Christopher Kuttruff writes, “Throughout his testimony, Yoo struggled with many of the questions being asked, frequently delaying, qualifying and invoking claims of privilege to avoid answering altogether.” (Human Rights First 6/26/2008; Kuttruff 6/27/2008)

Retired AT&T “whistleblower” Mark Klein (see December 15-31, 2005 and July 7, 2009) has a short essay published in Wired News, sharply criticizing the recently passed legislation that amended the Foreign Intelligence Surveillance Act (FISA—see July 10, 2008) and granted telecommunications firms immunity from prosecution for helping government agencies illegally spy on American citizens. Klein initially offered the essay in letter form to the New York Times, but although the editors there showed what Klein will call “some interest,” they rejected the letter. Instead, Wired News’s Ryan Singel accepted the letter for one of his “Threat Level” columns. Singel describes Klein as “furious” at the vote, and quotes Klein: “[Wednesday]‘s vote by Congress effectively gives retroactive immunity to the telecom companies and endorses an all-powerful president. It’s a Congressional coup against the Constitution. The Democratic leadership is touting the deal as a ‘compromise,’ but in fact they have endorsed the infamous Nuremberg defense: ‘Just following orders.’ The judge can only check their paperwork. This cynical deal is a Democratic exercise in deceit and cowardice.… Congress has made the FISA law a dead letter—such a law is useless if the president can break it with impunity. Thus the Democrats have surreptitiously repudiated the main reform of the post-Watergate era and adopted Nixon’s line: ‘When the president does it that means that it is not illegal.’ This is the judicial logic of a dictatorship. The surveillance system now approved by Congress provides the physical apparatus for the government to collect and store a huge database on virtually the entire population, available for data mining whenever the government wants to target its political opponents at any given moment—all in the hands of an unrestrained executive power. It is the infrastructure for a police state.” (Singel 6/27/2008; Klein 2009, pp. 108)

The Defense Department announces that it is charging al-Qaeda leader Abd al-Rahim al-Nashiri with “organizing and directing” the bombing of the USS Cole in 2000 (see October 12, 2000) and will seek the death penalty. Al-Nashiri was captured in 2002 (see Early October 2002), held and tortured in secret CIA prisons until 2006 (see (November 2002)), and then transferred to Defense Department custody at the Guantanamo prison (see September 2-3, 2006). He will be tried there in a military tribunal. Al-Nashiri told a hearing at Guantanamo in 2007 that he confessed a role in the Cole bombing, but only because he was tortured by US interrogators (see March 10-April 15, 2007). CIA Director Michael Hayden has conceded that al-Nashiri was subjected to waterboarding. (Associated Press 6/30/2008) Khallad bin Attash, who is being held at Guantanamo with al-Nashiri and other al-Qaeda leaders, allegedly had a major role in the Cole bombing, but he is not charged. Presumably this is because he has already been charged for a role in the 9/11 attacks.

Milt Bearden, a retired 30-year CIA veteran who served as senior manager for clandestine operations, writes: “The [Bush] administration’s claims of having ‘saved thousands of Americans’ can be dismissed out of hand because credible evidence has never been offered—not even an authoritative leak of any major terrorist operation interdicted based on information gathered from these interrogations in the past seven years. All the public gets is repeated references to Jose Padilla (see June 10, 2002), the Lackawanna Six (see April-August 2001), the Liberty Seven (see June 23, 2006), and the Library Tower operation in Los Angeles (see October 2001-February 2002). If those slapstick episodes are the true character of the threat, then maybe we’ll be okay after all. When challenged on the lack of a game-changing example of a derailed operation, administration officials usually say that the need to protect sources and methods prevents revealing just how enhanced interrogation techniques have saved so many thousands of Americans. But it is irresponsible for any administration not to tell a credible story that would convince critics at home and abroad that this torture has served some useful purpose.” Bearden suggests that the CIA might have been permanently “broken” by its use of torture, and that some US officials will likely face the threat of being arrested overseas on torture charges for years to come. (Bearden 7/1/2008)

President Bush signs the FISA Amendments Act of 2008 (FAA), a revamping and expansion of the original Foreign Intelligence Surveillance Act (see 1978). The legislation passed the House by a sweeping 293 to 129 votes, with most Democratic Congressional leaders supporting it over the opposition of the more liberal and civil liberties-minded Democrats. Republicans were almost unanimously supportive of the bill. Though Democratic Senators Russell Feingold (D-WI) and Christopher Dodd (D-CT) managed to delay the bill’s passage through the Senate, their attempt to modify the bill was thwarted by a 66-32 margin. (Dodd credits AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) as one of the very few people to make the public aware of the illegal NSA wiretapping program, which the FISA amendment would protect. Without Klein, Dodd states, “this story might have remained secret for years and years, causing further erosion of our rights.”) Senator Barack Obama (D-IL), the party’s presumptive presidential nominee, gave his qualified support to the bill, stating: “Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program.” Obama had opposed an earlier Senate version that would have given “blanket immunity” to the telecommunications companies for their participation in the illegal NSA wiretapping program (see December 15, 2005). House Speaker Nancy Pelosi (D-CA), who organized Democratic support for the bill in the House, said that she supported the bill primarily because it rejects Bush’s argument that a wartime chief executive has the “inherent authority” to conduct some surveillance activity he considers necessary to fight terrorism. It restores the legal notion that the FISA law is the exclusive rule on government spying, she said, and added: “This is a democracy. It is not a monarchy.” Feingold, however, said that the bill granted “retroactive immunity to the telecommunications companies that may have engaged in President Bush’s illegal wiretapping program.” The amendments restore many of the provisions of the expired Protect America Act (PAA—see August 5, 2007) that drastically modify the original FISA legislation and grant the government broad new surveillance powers. Like the PAA, the FAA grants “third parties” such as telecommunications firms immunity from prosecution for engaging in illegal surveillance of American citizens if they did so in partnership with government agencies such as the National Security Agency (NSA). (Kane 6/20/2008; CNN 6/26/2008; US Senate 7/9/2008; White House 7/10/2008; Klein 2009, pp. 95-97) Senate Majority Leader Harry Reid (D-NV) actually refused to honor a “hold” placed on the bill by Dodd, a highly unusual move. Klein will later note that Reid has in the past always honored holds placed on legislation by Republicans, even if Democrats were strongly supportive of the legislation being “held.” Klein will write that Pelosi crafted a “showpiece” FISA bill without the immunity provisions, garnering much praise for her from civil liberties organizations; however, Pelosi’s colleague House Majority Leader Steny Hoyer (D-MD) had secretly worked with the White House to craft a bill that preserved immunity for telecoms, and on June 10, Pelosi “rammed” that bill through the House. The final bill actually requires the judiciary to dismiss lawsuits brought against telecom firms if those firms can produce evidence that they had worked in collusion with the NSA. Feingold later observes that the final bill is not a “compromise, it is a capitulation.” (Klein 2009, pp. 101-103) Klein will write that Democrats and Republicans have worked together to “unw[ind] one of the main reforms of the post-Watergate era and accepted the outrageous criminal rationalizations of [President] Nixon himself.” Klein will quote Nixon as saying, “If the president does it, that means it’s not illegal” (see April 6, 1977), and will say that is “the essence of the FISA ‘compromise’” and turned Congress into the White House’s “rubber stamp.… It is the twisted judicial logic of a dictatorship.” (Klein 2009, pp. 107)

A US drone strike kills al-Qaeda leader Midhat Mursi (a.k.a. Abu Khabab al-Masri). He is one of six people killed in the strike on a compound in South Waziristan, in Pakistan’s tribal region. Mursi, an Egyptian, was considered a poisons and explosives expert, and was accused of training the suicide bombers in the 2000 USS Cole bombing. He also is believed to have run the Darunta training camp in eastern Afghanistan until it was abandoned during the US invasion in late 2001. The US had put a $5 million bounty on him. A statement by al-Qaeda leader Mustafa Abu al-Yazid posted on the Internet about a week later will confirm his death. (Johnson 8/3/2008)

Pages from two passports seized in the raid. Both show pictures of Fazul but have different names.Pages from two passports seized in the raid. Both show pictures of Fazul but have different names. [Source: East African Standard]An al-Qaeda leader named Fazul Abdullah Mohammed, (a.k.a. Haroun Fazul), narrowly escapes capture in Kenya. The US government claims that Fazul had important roles in the 1998 embassy bombings in Kenya and Tanzania (see 10:35-10:39 a.m., August 7, 1998) and the 2002 hotel bombing in Mombasa, Kenya (see November 28, 2002). Fazul was indicted for the embassy bombings before 9/11, and there is a $5 million reward for him. On August 2, 2008, Kenyan police raid a house in Malindi, a town on Kenya’s coast. Two passports bearing Fazul’s picture but different names are found, as well as his laptop computer. A Kenyan newspaper reports that a local police officer may have tipped off Fazul about the raid minutes before it took place. A half-eaten meal is discovered in the house, and the television is still on, leading police to believe that he ran out of the house just before they arrived. Three Kenyans are arrested and charged with helping to hide him. He reportedly narrowly escaped a US air strike in Somalia in 2007 (see December 24, 2006-January 2007), as well as a police raid in Kenya in 2003. (CNN 8/4/2008; East African Standard 8/5/2008) He will be killed in Somalia in 2011 (see June 10, 2011).

The Electronic Frontier Foundation (EFF) files a lawsuit against the National Security Agency (NSA), President Bush, Vice President Dick Cheney, former Attorney General and White House counsel Alberto Gonzales, former Cheney chief of staff David Addington, and other members of the Bush administration. The EFF claims the lawsuit is “on behalf of AT&T customers to stop the illegal unconstitutional and ongoing dragnet surveillance of their communications and communications records.” The EFF is referring to its ongoing lawsuit against AT&T and other telecommunications firms, which it accuses of colluding with the NSA to illegally monitor American citizens’ domestic communications (see December 15, 2005). The case, the EFF writes, “is aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it.” After January 2009, the newly elected Obama administration will challenge the lawsuit, Jewel v. NSA, on the grounds that to defend itself against the lawsuit, the government would be required to disclose “state secrets” (see Late May, 2006). The government used similar arguments to quash the EFF’s lawsuit against AT&T (see April 28, 2006), arguments which were rejected by a judge (see July 20, 2006). (Electronic Frontier Foundation 2009) The suit will be dismissed (see January 21, 2010).

The FBI attempts to prevent two agents who were involved in a key pre-9/11 failure from talking about it in a television interview. The agents, Doug Miller and Mark Rossini, were on loan to Alec Station, the CIA’s bin Laden unit, before 9/11. They were involved in the deliberate blocking of a cable to the FBI saying that 9/11 hijacker Khalid Almihdhar had a US visa (see 9:30 a.m. - 4:00 p.m. January 5, 2000) and later, under pressure, falsely claimed not to remember anything about it when interviewed by the Justice Department’s inspector general (see (February 12, 2004)). The FBI allowed Miller and Rossini to be interviewed by author James Bamford for a book and they told him they helped block the cable on the orders of a female CIA officer known only as “Michael” and the station’s deputy chief, Tom Wilshire. However, when Bamford wants them to repeat their stories for a PBS documentary he is making, the FBI initially says yes, but then retracts its approval, saying the bureau “doesn’t want to stir up old conflicts with the CIA.” (Stein 10/1/2008) However, Rossini will actually appear in the documentary, although Miller will not. (PBS 2/3/2009)

The US and Britain jointly drop all charges against terror suspect Binyam Mohamed, realizing that Mohamed’s confession to his involvement in a so-called “dirty bomb” plot (see November 4, 2005) is likely the product of torture and not real (see July 21, 2002 -- January 2004). However, his captors refuse to release him from Guantanamo, driving him to try to force the matter by filing a lawsuit (see February 4, 2009) and going on a hunger strike (see February 8, 2009). In late February 2009, Mohamed will be released (see February 22-24, 2009). (Rose 3/8/2009)

Steven Bradbury, the head of the Justice Department’s Office of Legal Counsel (OLC), officially repudiates an OLC memo from seven years earlier claiming that the president has the unilateral authority to order military strikes or raids within the US (see October 23, 2001). “[C]aution should be exercised before relying in any respect” on the memo, Bradbury writes, and it “should not be treated as authoritative for any purpose.” The 2001 contention that the Fourth Amendment is, for all intents and purposes, irrelevant in the face of presidential authority “does not reflect the current views of this Office,” Bradbury writes. Another portion of that 2001 memo, the contention that the president can set aside First Amendment rights of free speech and freedom of the press (see October 23, 2001), are no longer operative, Bradbury writes. Much of Bradbury’s memo is an attempt to explain and justify the 2001 memo by recalling the period of anxiety and disarray after the 9/11 attacks. (US Department of Justice 10/6/2008 pdf file; American Civil Liberties Union [PDF] 1/28/2009 pdf file) Yale law professor Jack Balkin will later note that the memo does not repudiate “any of the Bush administration’s specific policies regarding surveillance, detention, and interrogation.” (Jack Balkin 3/3/2009)

David Neiwert.David Neiwert. [Source: Quotd (.com)]Author and reporter David Neiwert appears on CNN’s Newshour program to discuss a recent article he co-wrote for Salon that revealed details of Governor Sarah Palin’s (R-AK) support from far-right militia and secessionist groups in Alaska (see October 10, 2008). Palin is now running on the Republican presidential ticket with John McCain (R-AZ). CNN interviewer Rick Sanchez is particularly interested in discussing Palin’s connections with the Alaskan Independence Party (AIP), a political third party in Alaska that advocates an array of far-right initiatives, including the secession of Alaska from the United States. Sanchez notes that between 1995 and 2002 Palin’s husband Todd was a member of the AIP, and according to Neiwert’s article Sarah Palin has had her political career shaped by AIP leaders such as Mark Chryson. Neiwert explains the AIP to Sanchez, saying, “Well, what we have known about the AIP for some time is that they were basically the Alaskan contingent and the ‘Patriot Movement,’ which, in the lower 48 states, manifested itself as people who form militias, tax protesters, constitutionalists, and that sort of thing.” Neiwert refuses to directly compare the AIP to the ideology of the far-right militia groups that spawned Oklahoma City bomber Timothy McVeigh (see 8:35 a.m. - 9:02 a.m. April 19, 1995), as Sanchez asks, but says that McVeigh and the AIP “basically come from the same sort of ideological background.” Neiwert does not consider the AIP a particularly violent group, and calls it “a pretty benign organization,” but affirms that most AIP members “despise” the US government. He notes that Chryson told him and co-author Max Blumenthal that Todd Palin was never particularly active in the AIP, saying, “Basically, he signed up, joined the party, and then was not active at all.” He also confirms that Sarah Palin was most likely not a member of the AIP, but, as Sanchez says, “[S]he does have some ties to either members or its causes.” Palin rose to power in Wasilla, Alaska, through the auspices of the AIP, Neiwert says, both as a city council member and later as mayor (see Mid and Late 1996). Sanchez runs a video clip of Palin’s videotaped address to the AIP convention in 2008 (see March 2008). Sanchez confirms that Palin attended the convention personally in 2006, because, Neiwert says, “she was campaigning there for governor. And the AIP did not have a gubernatorial candidate that year. And its members essentially endorsed Sarah as their party’s standard-bearer.” Neiwert then explains Chryson’s program of “infiltrating” AIP members into positions of power in both Republican and Democratic parties, and notes that the Salon article quoted Chryson as being particularly proud of having “infiltrated” Palin into such a high level of influence. “[T]he AIP has specifically had a program of infiltration aimed at getting members and their sort of camp followers promoting within the other political parties,” he says. “And, obviously, the Republican Party is a lot closer in Alaska to the AIP than the Democratic Party is.” The McCain campaign sends a message to CNN during the Neiwert interview from campaign spokesman Michael Goldfarb that reads: “CNN is furthering a smear with this report, no different than if your network ran a piece questioning Senator [Barack] Obama’s religion. No serious news organization has tried to make this connection. And it is unfortunate that CNN would be the first.” Sanchez notes that CNN has been trying for hours to get the McCain-Palin campaign to prepare a response to the Neiwert interview, which begins after 3:00 p.m. EST. Neiwert notes that the AIP is not a religious organization, saying: “Some of the members are very definitely fundamentalist Christians, but the AIP, itself, is not involved in religious issues, except to the extent that it is involved with the Constitution Party of the United States. This is the larger national umbrella that they organize under. And the Constitution Party is definitely a theocratic party.” (CNN 10/14/2008) After the interview, Neiwert posts on a liberal blog, Crooks & Liars, that like CNN, he attempted to elicit a response or rejoinder from the McCain-Palin campaign and received no response until the broadcast. Neiwert notes that his interview was not in any way a “smear,” because “[a] smear by definition is untrue. However, everything in our story is fully documented. We’ve even posted the relevant documents here so readers can judge the accuracy of the story for themselves.” He also notes that the interview said nothing about Palin’s faith or religious beliefs, but was strictly “about her conduct as a public official.” He concludes, “If Team McCain wants to convince anyone this is merely a ‘smear,’ they’re going to have to demonstrate some falsity or distortion first.” Neiwert says that some Palin defenders respond with the accusation that he is attempting to find Palin “guilt[y] by association.” He counters: “But ‘guilt by association,’ by definition, involves an entirely irrelevant association.… Palin’s associations with the ‘Patriot’ right, however, are entirely relevant, because they reflect directly on her conduct as a public official and her judgment. They also, I should add, reflect on a deeper level the kind of right-wing populism she’s been indulging in recent weeks.” (Neiwert 10/14/2008) In the days after this interview appears, the McCain-Palin campaign will confirm that Sarah Palin has been a registered Republican since 1982, and claim that she was never a member of AIP. AIP chairperson Lynette Clark will later say that AIP party officials’ recollection of Palin as an official AIP member is mistaken, and will reiterate that she and AIP support Palin fully in her bid for the vice presidency. (Tapper 9/1/2008; Alaskan Independence Party 9/3/2008)

Los Angeles Times columnist James Rainey lambasts CNN for what he calls an attempted “smear” against Republican vice-presidential candidate Sarah Palin (R-AK). Rainey is referring to a segment recently aired on CNN (see October 14, 2008) that interviewed author and columnist David Neiwert, who recently co-wrote an article about Palin’s connections to the far-right, secessionist Alaskan Independence Party (AIP—see October 10, 2008). Palin has already demanded that the McCain-Palin campaign issue a statement repudiating the CNN segment, a decision the campaign did not acquiesce to (see October 15, 2008); it is unclear whether Rainey had any knowledge of Palin’s demand, though McCain campaign spokesman Michael Goldfarb sent a message to CNN calling the segment “a smear” that was aired during the segment itself. Rainey writes that the Neiwert interview was little more than “a reheated, overwrought, and misleading story that seemed designed to yoke Sarah Palin and her husband to the most extreme secessionists in Alaska.” He acknowledges that Palin’s husband Todd Palin once belonged to the AIP, and writes, “[H]is wife, the governor and now Republican vice presidential nominee, has been friendly with some of its members.” (The article by Neiwert and co-author Max Blumenthal goes into significant detail about how AIP leaders such as Mark Chryson have steered Palin’s rise to power from her days as a Wasilla city council member.) Rainey accurately notes that neither Neiwert, Blumenthal, nor CNN have shown that Palin has echoed the AIP’s central platform call for Alaska’s secession from the United States. He calls Alaskan politics “eccentric,” and says that in Alaska, the AIP “is not so far out on the fringe. An AIP member won the governorship in 1990. And party members have been in the thick of the state’s public life for decades. Members run the gamut from states-rights enthusiasts to radical secessionists who have advocated extreme measures to free Alaska from the United States.” Rainey criticizes CNN interviewer Rick Sanchez for “front-loading” his segment with “outrageous pronouncements from AIP founder Joe Vogler, now deceased,” including Voger’s famous pronoucement: “The fires of hell are frozen glaciers compared to my hatred for the American government. And I won’t be buried under their damn flag.” Rainey draws a comparison to Democratic candidate Barack Obama (D-IL)‘s “old pastor, the Rev. Jeremiah A. Wright Jr.,” then writes, “[T]o my knowledge, no direct connection between Vogler and Gov. Palin has been reported.” (Rainey 10/15/2008) In a rejoinder published on the liberal news blog Crooks and Liars, Neiwert notes that in the CNN interview, he was careful not to associate Palin directly with far-right radicals such as Oklahoma City bomber Timothy McVeigh (see 8:35 a.m. - 9:02 a.m. April 19, 1995), as Sanchez attempted to do, and notes, “Part of covering and writing about the Patriot movement involved listening and watching carefully to distinguish them, because to some extent, you had to give the mainstream conservatives the benefit of the doubt when it came to their actual intent in getting involved with these groups.” However, Neiwert goes on to say, the connections between Palin and the AIP are quite strong and well detailed. He also notes that AIP vice chairman Dexter Clark said flatly in 2007 that Palin “was an AIP member before she got the job as a mayor of a small town (see Mid and Late 1996)—that was a non-partisan job. But you get along to go along—she eventually joined the Republican Party, where she had all kinds of problems with their ethics, and well, I won’t go into that. She also had about an 80 percent approval rating, and is pretty well sympathetic to her former membership.” He also notes that Clark later disavowed his claim of Palin’s membership in the AIP. However, Neiwert writes, “it’s clear that Clark and many others within the AIP viewed Palin as ‘one of ours.’ And as we have demonstrated, they did so with good cause.” He concludes that it is a “cold reality that Palin has a real history of empowering these extremists, and pandering to their conspiratorial beliefs, from her position of public office. And the question is whether that would continue from a position of real power in the White House.” (Neiwert 10/15/2008)

The Electronic Frontier Foundation (EFF) files a lawsuit challenging the constitutionality of the recently passed amendment to the Foreign Intelligence Surveillance Act (FISA—see July 10, 2008). The EFF is particularly concerned with the portion of the legislation that grants retroactive immunity from prosecution to telecommunications firms that worked with government agencies to illegally conduct electronic surveillance against American citizens (see December 15, 2005). The FISA Amendments Act of 2008, or FAA, violates the Constitution’s separation of powers, according to the EFF, and, the organization writes, “robs innocent telecom customers of their rights without due process of law.” The lawsuit was triggered by Attorney General Michael Mukasey’s recent submission of a classified certification in another EFF lawsuit about illegal electronic certification (see January 31, 2006) that claimed the electronic surveillance conducted on behalf of the National Security Agency by AT&T did not happen. EFF senior attorney Kevin Bankston says: “The immunity law puts the fox in charge of the hen house, letting the attorney general decide whether or not telecoms like AT&T can be sued for participating in the government’s illegal warrantless surveillance. In our constitutional system, it is the judiciary’s role as a co-equal branch of government to determine the scope of the surveillance and rule on whether it is legal, not the executive’s. The attorney general should not be allowed to unconstitutionally play judge and jury in these cases, which affect the privacy of millions of Americans.” Mukasey’s certification claimed the government has no “content-dragnet” program that surveills millions of domestic communications, though it does not deny having acquired such communications. EFF has provided the court with thousands of pages of documents proving the falsity of Mukasey’s assertions, the organization writes. EFF attorney Kurt Opsahl says: “We have overwhelming record evidence that the domestic spying program is operating far outside the bounds of the law. Intelligence agencies, telecoms, and the administration want to sweep this case under the rug, but the Constitution won’t permit it.” EFF spokesperson Rebecca Jeschke tells a reporter that the FAA “violates the federal government’s separation of powers and violates the Constitution. We want to make sure this unconstitutional law does not deny telecom customers their day in court. They have legitimate privacy claims that should be heard by a judge. Extensive evidence proves the existence of a massive illegal surveillance program affecting millions of ordinary Americans. The telecoms broke the law and took part in this. The FISA Amendments Act and its immunity provisions were an attempt to sweep these lawsuits under the rug, but it’s simply unconstitutional.” EFF lawyers fear the FAA will render their lawsuit invalid. (Electronic Frontier Foundation 10/17/2008; Farivar 10/17/2008) The EFF has filed a related lawsuit against the NSA and senior members of the Bush administration (see September 18, 2008).

A US District Court orders the Justice Department to turn over ten documents from the Justice Department’s Office of Legal Counsel to determine whether they should be released under the Freedom of Information Act. The Electronic Privacy Information Center (EPIC) and the American Civil Liberties Union (ACLU) say the documents may hold information that would shed light on the legal reasoning behind the Bush administration’s “Stellar Wind” warrantless wiretapping program (see Spring 2004 and December 15, 2005). EPIC and the ACLU seek the release of 30 documents from the OLC; Judge Henry Kennedy has ordered that 10 be turned over to him for further examination and 20 others remain classified because of national security considerations. Seven of those documents are about the government’s “Terrorist Surveillance Program” (TSP—apparently the same program as, or an element of, Stellar Wind), 12 are FBI documents detailing how TSP had assisted the Bureau in counterterrorism investigations, and one is an OLC memo covered under an exemption for “presidential communications”—presumably a memo written either by, or for, President Bush. (Sanchez 11/2/2008)

Responding to speculation that his administration will continue the policies of torture and indefinite detention, President-elect Barack Obama says flatly that he will shut down the Guantanamo detention center as part of his administration’s new policy towards terror suspects. CBS interviewer Steve Kroft asks: “There are a number of different things that you could do early pertaining to executive orders. One of them is to shut down Guantanamo Bay. Another is to change interrogation methods that are used by US troops. Are those things that you plan to take early action on?” Obama responds: “Yes. I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn’t torture. And I’m gonna make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world.” (Gorman 11/11/2008; CBS News 11/16/2008) Two days into his administration, Obama orders that the Guantanamo detention facility be closed (see January 22, 2009).

Mohamed al-Khatani in September 2009.Mohamed al-Khatani in September 2009. [Source: US Defense Department]Military prosecutors at Guantanamo say they are going to file new war crimes charges against Mohamed al-Khatani, the so-called “20th hijacker” in the 9/11 plot. The senior official in charge of prosecutions at Guantanamo, Susan Crawford, dismissed similar charges against al-Khatani six months before (see May 13, 2008). Military officials now say that even though al-Khatani was originally interrogated using previously approved, then later disapproved, techniques (see August 8, 2002-January 15, 2003 and October 11, 2002), those previous interrogations will not make it impossible to try him. Speculation has been rife that Crawford dismissed the charges against al-Khatani over concerns that he was tortured at Guantanamo. (In 2009, Crawford will verify that al-Khatani was indeed tortured—see January 14, 2009). Colonel Lawrence Morris, the chief prosecutor at Guantanamo, says of al-Khatani, “His conduct is significant enough that he falls into the category of people who ought to be held accountable by being brought to trial.” According to evidence compiled by the 9/11 Commission, al-Khatani was slated to have been one of the “muscle hijackers” (see August 4, 2001). Lieutenant Colonel Bryan Broyles, al-Khatani’s defense lawyer, says new charges filed against his client would be disturbing. “It speaks about the moral bankruptcy of this whole process,” Broyles says, “that there’s nothing we can do to these people that is too much, that there are no consequences for our own misconduct.” (Glaberson 11/18/2008)

Federal Judge Richard Leon rules that the US government has unlawfully held five Algerian men at Guantanamo for nearly seven years (see January 18, 2002). Leon orders their release. Leon rules that the government’s case, based on a slender compilation of classified evidence, was too weak to justify the five men’s continued detention. The government’s case is based on a single “classified document from an unnamed source” for its central claim against the men, and the court has no way to accurately judge its credibility. “To rest on so thin a reed would be inconsistent with this court’s obligation,” Leon writes. He urges the Bush administration not to appeal the ruling, and recommends that they be released “forthwith.” Leon rules that a sixth Algerian, Bensayah Belkacem (see October 8, 2001), is being lawfully detained due to his demonstrable ties with al-Qaeda. The six are among the Guantanamo inmates who won a narrowly decided Supreme Court case recognizing their right to seek redress in the US court system (see June 22, 2008), and include Lakhdar Boumediene, for whom the Court’s ruling was named. Leon, a Republican appointee previously considered sympathetic to the Bush administration’s position on the detention of suspects, urges the government not to appeal his ruling: such an appeal could take as much as two years, and, he notes, “Seven years of waiting for our legal system to give them an answer to a question so important is, in my judgment, more than plenty.” If the government chooses not to appeal, the lawyers for the detainees expect them to be released into Bosnia, where they were arrested in early 2002. The Justice Department calls the ruling “perhaps an understandable consequence of the fact that neither the Supreme Court nor Congress has provided rules on how these habeas corpus cases should proceed in this unprecedented context.” One of the detainees’ lawyers, Robert Kirsch, says the case illustrates “the human cost of what can happen when mistakes are made at the highest levels of our government, and no one has the courage to acknowledge those mistakes.” Other detainee lawyers say the case is a broad repudiation of the Bush administration’s attempts to use the Guantanamo facility to avoid the scrutiny of US judges. Lawyer Zachary Katznelson, a member of the British human rights group Reprieve, says, “The decision by Judge Leon lays bare the scandalous basis on which Guantánamo has been based—slim evidence of dubious quality.” The case was not strengthened by the Bush administration’s pursuit of it: originally the six were charged with planning a bomb attack on the US Embassy in Sarajevo, Bosnia, but in October, Justice Department lawyers abruptly withdrew those accusations. (Glaberson 11/20/2008; McCarthy 11/20/2008) The five will be released the following month (see December 2008).

A former Air Force interrogator writing under the pseudonym “Matthew Alexander” pens an impassioned plea against the use of torture for the Washington Post. Alexander is a former Special Operations soldier with war experience in Bosnia and Kosovo before volunteering to serve as a senior interrogator in Iraq from February 2006 through August 2006. He writes that while he served in Iraq, his team “had successfully hunted down one of the most notorious mass murderers of our generation, Abu Musab al-Zarqawi, the leader of al-Qaeda in Iraq and the mastermind of the campaign of suicide bombings that had helped plunge Iraq into civil war.” Yet upon his return, Alexander writes that he was less inclined to celebrate American success than “consumed with the unfinished business of our mission: fixing the deeply flawed, ineffective and un-American way the US military conducts interrogations in Iraq.” Since then, Alexander has written a book, How to Break a Terrorist: The US Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq (see December 2-4, 2008). He writes that interrogation techniques used against terror suspects in Iraq both “betrays our traditions” and “just doesn’t work.”
Army Used 'Guantanamo Model' of Interrogation - When he joined the team hunting for al-Zarqawi, he was astonished to find that “[t]he Army was still conducting interrogations according to the Guantanamo Bay model: Interrogators were nominally using the methods outlined in the US Army Field Manual, the interrogators’ bible, but they were pushing in every way possible to bend the rules—and often break them.… These interrogations were based on fear and control; they often resulted in torture and abuse.”
New and Different Methodology - Alexander refused to allow his interrogators to use such tactics, he writes, and instead taught them a new set of practices: “one based on building rapport with suspects, showing cultural understanding and using good old-fashioned brainpower to tease out information. I personally conducted more than 300 interrogations, and I supervised more than 1,000. The methods my team used are not classified (they’re listed in the unclassified Field Manual), but the way we used them was, I like to think, unique. We got to know our enemies, we learned to negotiate with them, and we adapted criminal investigative techniques to our work (something that the Field Manual permits, under the concept of ‘ruses and trickery’). It worked. Our efforts started a chain of successes that ultimately led to Zarqawi.” Alexander writes that his attitude, and that of his colleagues, changed during this time. “We no longer saw our prisoners as the stereotypical al-Qaeda evildoers we had been repeatedly briefed to expect; we saw them as Sunni Iraqis, often family men protecting themselves from Shi’ite militias and trying to ensure that their fellow Sunnis would still have some access to wealth and power in the new Iraq. Most surprisingly, they turned out to despise al-Qaeda in Iraq as much as they despised us, but Zarqawi and his thugs were willing to provide them with arms and money.” When Alexander pointed this out to General George Casey, then the top US commander in Iraq, Casey ignored him. Alexander writes that Casey’s successor, General David Petraeus, used some of the same “rapport-building” techniques to help boost the “Anbar Awakening,” which saw tens of thousands of Sunnis repudiate al-Zarqawi and align themselves with the US. And, the techniques persuaded one of al-Zarqawi’s associates to tell where he was hiding, giving the US a chance to find and kill him (see June 8, 2006).
Little Overall Change - Even the success in locating and killing al-Zarqawi had little effect on US interrogation methods outside of Alexander’s unit. He left Iraq still unsettled about the methods being used; shortly after his return, he was horrified at news reports that the CIA had waterboarded detainees to coerce information from them (see Between May and Late 2006). Such hard-handed techniques are not only illegal and morally reprehensible, Alexander notes, they usually don’t work. He writes: “Torture and abuse are against my moral fabric. The cliche still bears repeating: Such outrages are inconsistent with American principles. And then there’s the pragmatic side: Torture and abuse cost American lives.” He remembers one jihadist who told him: “I thought you would torture me, and when you didn’t, I decided that everything I was told about Americans was wrong. That’s why I decided to cooperate.”
Torture Breeds Terrorism - Alexander writes that while in Iraq, he learned that the primary reason foreign jihadists came to Iraq to fight Americans was because of their outrage and anger over the abuses carried out at Guantanamo and Abu Ghraib. “Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq,” he writes. “The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on US and coalition forces in Iraq. It’s no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of US soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me—unless you don’t count American soldiers as Americans.”
Writing about His Experiences - Alexander began writing about his time in Iraq after returning to the US. When he submitted his book for the Defense Department’s review (standard procedure to ensure no classified information is being released), he writes that he “got a nasty shock.” The Pentagon delayed the review past the first scheduled printing date, then redacted what Alexander says was “an extraordinary amount of unclassified material—including passages copied verbatim from the Army’s unclassified Field Manual on interrogations and material vibrantly displayed on the Army’s own Web site.” Alexander was forced to file a lawsuit to get the review completed and to appeal the redactions. “Apparently, some members of the military command are not only unconvinced by the arguments against torture; they don’t even want the public to hear them.”
Conclusions - How we conduct ourselves in the “war on terror” helps define who we are as Americans, Alexander writes. “Murderers like Zarqawi can kill us, but they can’t force us to change who we are. We can only do that to ourselves.” It is up to Americans, including military officers directly involved in the battle against terrorist foes, “to protect our values not only from al-Qaeda but also from those within our own country who would erode them.” He continues: “We’re told that our only options are to persist in carrying out torture or to face another terrorist attack. But there truly is a better way to carry out interrogations—and a way to get out of this false choice between torture and terror.” With the ascension of Barack Obama to the White House, Alexander describes himself as “quite optimistic” that the US will renounce torture. “But until we renounce the sorts of abuses that have stained our national honor, al-Qaeda will be winning. Zarqawi is dead, but he has still forced us to show the world that we do not adhere to the principles we say we cherish. We’re better than that. We’re smarter, too.” (Alexander 11/30/2008)

Cover of ‘How to Break a Terrorist.’Cover of ‘How to Break a Terrorist.’ [Source: Military (.com)]Former Iraq interrogator “Matthew Alexander” (a pseudonym) publishes his book How to Break a Terrorist: The US Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq. Alexander has just published an editorial in the Washington Post detailing his success in using non-coercive interrogation techniques to locate terrorist leader Abu Musab al-Zarqawi, and denouncing the use of torture by US interrogators in Iraq and Guantanamo (see November 30, 2008). Time’s Gilbert Cruz writes, “Structured around a series of interrogations, [Alexander’s book] details the battle of wills between ‘gators [Alexander’s term for interrogators] and suspects as well as the internal fight between Alexander’s team and the old-school military inquisitors used to more brutal methods of questioning.” In his book, Alexander writes that these “old-school” interrogation tactics not only failed to elicit useful information, they “led down the disastrous path to the Abu Ghraib scandal.” Cruz calls the book “a claustrophobic read,” bringing the reader into the interrogation rooms with him, his partner, and the detainee during marathon questioning sessions. However, “Alexander scarcely discusses the theories behind his interrogation strategy, its derivation, or whether the US military continues to use it.” He concludes, “[A] fuller epilogue could have broadened the story beyond this single set of circumstances.” (Cruz 12/2/2008)
'Times Where You Have to be Harsher' - In an interview about the book, Fox News host Sean Hannity attempts to assert that there will be times when torture is necessary to gain critical information. Alexander refuses to agree. Hannity says: “But I do think there’s going to be times where you have to be harsher. That’s an outsider’s view. Never? It never will work?” Alexander replies: “No.… I don’t say that torture doesn’t work; it does work on occasion. But what I say is that there’s better ways to do it.” (Fox News 12/3/2008)
'Extremely Ineffective and Counter-Productive' - In another interview the same evening, Alexander tells MSNBC’s Keith Olbermann that torture is “extremely ineffective and counter-productive to what we are trying to accomplish in both the short-term and the long-term.” He explains: “In the short-term, when you torture somebody, it hardens their resolve, the information that you get is unreliable. And if you do get reliable information, you’re able to stop a terrorist attack, al-Qaeda is then going to use the fact that we torture people to recruit new members, and then we’re going to have to deal with a whole new wave of terrorists.” In the MSNBC interview, Alexander calls for an outright ban on torture and the retraining of US interrogators in non-coercive methods of questioning. (MSNBC 12/4/2008)

The Malaysian government releases alleged al-Qaeda operative Yazid Sufaat. Malaysian Interior Minister Datuk Seri Syed Hamid Albar announces that Sufaat and five other detained Islamist militants are being freed because “they are no longer a threat and will no longer pose a threat to public order.” Albar adds that Sufaat “has been rehabilitated and can return to society.” Sufaat was arrested in Malaysia in December 2001 (see December 19, 2001). However, he was never tried or even charged. Malaysian law allows suspects to be held for up to two years without charge, and the two year period can be renewed multiple times. But apparently the Malaysian government decided to release him rather than put him on trial or hold him another two years.
Sufaat's History - Sufaat, a Malaysian, received a biological sciences degree in the US in the 1980s. There are allegations that he led al-Qaeda’s effort to get biological and chemical weapons until his arrest (see December 19, 2001). An important al-Qaeda summit was held in his apartment in January 2000; at least two 9/11 hijackers attended (see January 5-8, 2000). Later in 2000, Sufaat hosted al-Qaeda operative Zacarias Moussaoui, and he provided papers that helped Moussaoui get in the US (see September-October 2000).
Concern about Sufaat's Release - Sufaat is supposed to be kept under close observation. However, Newsweek reports that US counterterrorism officials have “expressed doubt that Sufaat has abandoned his radical al-Qaeda views or his desire to attack the United States with biological weapons.” One unnamed official says, “This individual is considered dangerous.” (Hosenball 12/16/2008)

It is reported that the US is attempting to place former ISI Director Hamid Gul on a United Nations Security Council list of people and organizations that assist al-Qaeda and/or the Taliban. Additionally, the US is trying to add four other former ISI officials to the list. If a person is added to the list, all UN countries are supposed to freeze the person’s assets and deny them visas. However, all 15 Security Council members must sign off on additions to the list, including permanent member China. In the past, China has not always signed off on additions that the Pakistani government does not want on the list, due to China’s close ties to Pakistan. There is no indication that Gul or any of the others have actually been added to the list. (Cameron-Moore 12/7/2008; Hindu 12/9/2008)
Charges against Gul - A document listing the charges against Gul is leaked to some Pakistani newspapers. He is accused of helping to relocate al-Qaeda fighters from Iraq to Pakistan’s tribal region earlier in the year, providing financial and military support to the Taliban, and helping to recruit fighters to attack US forces in Afghanistan. It is also claimed he is in contact with Baitullah Mahsud, leader of Tehrik-i-Taliban (the Pakistani Taliban). (Cameron-Moore 12/7/2008) Gul strongly denies the allegations. He was head of the ISI from 1987 to 1989 (see April 1987). Since then, he has maintained a high public profile in Pakistan, generally speaking in support of Islamist militant groups, and even defending Osama bin Laden on occasion. According to the Washington Post, both Indian and US officials say that Gul has maintained particularly close ties to the Pakistani militant group Lashkar-e-Toiba, and he is believed to have played an advisory role in several of that group’s recent attacks. (Rondeaux 12/9/2008) The names of the other four ex-ISI officials the US wants to add to the UN list have not been made public. However, ex-ISI official Khalid Khawaja says he suspects he is one of the other names. “I openly say I have links” to the Taliban and other militants, Khawaja says, but he denies there is anything illegal about his activities. (Cameron-Moore 12/7/2008) The US could also place Gul on its own terrorist blacklist, but if it has done so, it has not made this public.

Five high-value detainees being held at Guantanamo tell a military tribunal they wish to plead guilty to charges related to the 9/11 attacks, but refuse to enter a guilty plea at this time. The five are alleged 9/11 mastermind Khalid Shaikh Mohammed (KSM); Ramzi bin al-Shibh, who helped coordinate the attacks; Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi, who assisted some of the 19 hijackers in Asia; and Khallad bin Attash, who attended a meeting with two of the hijackers in January 2000 (see January 5-8, 2000). The plea is not entered at this time, because it is not yet certain bin al-Shibh and al-Hawsawi are mentally competent to stand trial, and KSM says they all want to plead together. The judge, Colonel Stephen Henley, has already ordered a probe into the two men’s mental competence. The five say that they made their decision “without being under any kind of pressure, threat, intimidations, or promise from any party,” although an investigation of potential pressure would have to be conducted before such plea could be accepted. If convicted, the five men would face the death penalty, although four of them, including KSM, have declared a desire to become martyrs. KSM also says he wants to get rid of his military lawyer, who previously served in Iraq. For the first time, the hearing is watched live in the courtroom by nine relatives of people killed in the 9/11 attacks. (BBC 12/8/2008)

In a Newsweek interview, Pakistani President Asif Ali Zardari calls former ISI Director Hamid Gul a “political ideologue of terror.” He is asked about reports that US Secretary of State Condoleezza Rice asked him to arrest Gul, due to Gul’s alleged links to the Taliban and al-Qaeda. Zardari replies: “Hamid Gul is an actor who is definitely not in our good books. Hamid Gul is somebody who was never appreciated by our government. She [Rice] did not go into specifics, if I may share that with you.… He has not been accused in the Mumbai incident.… I think he is more of a political ideologue of terror rather than a physical supporter.” Zardari also strongly denies that the ISI, Pakistan’s intelligence agency, had any role in the bombing of the Indian embassy in Kabul, Afghanistan (see July 7, 2008). (Weymouth 12/12/2008) In fact, Gul has been accused in regards to the “Mumbai incident,” which is a reference to the November 2008 attacks in Mumbai, India. Several days prior to Zardari’s interview, it was reported that India is seeking Gul’s arrest for a role in that attack along with that of some other Pakistanis. The Pakistani militant group Lashkar-e-Toiba has been accused of having a role in the attack, and Gul is widely seen as a frequent adviser to this group. Gul denies any link to the attack, or any other attack. Also several days before Zardari’s interview, it was reported the US is attempting to add Gul’s name to a terrorist watchlist for actual roles in attacks and not just being a “political ideologue of terror” (see December 7, 2008). (Rondeaux 12/9/2008) In 2010, it will be reported that Gul has been linked to many recent militant attacks (see July 26, 2010).

In his first exit interview after the November 2008 elections, Vice President Dick Cheney unapologetically acknowledges that the US used waterboarding on suspected terrorists, and says that the Guantanamo Bay prison should remain open until terrorism has been eradicated. Methods such as waterboarding were indeed used on at least one subject, suspected 9/11 plotter Khalid Shaikh Mohammed (see May 2002-2003, Shortly After February 29 or March 1, 2003, March 7 - Mid-April, 2003, After March 7, 2003, and May 2003), Cheney says, but he goes on to claim that those methods do not constitute torture. “On the question of so-called torture, we don’t do torture,” he says. “We never have. It’s not something that this administration subscribes to. I think those who allege that we’ve been involved in torture, or that somehow we violated the Constitution or laws with the terrorist surveillance program, simply don’t know what they’re talking about.” Asked if he authorized the waterboarding of Mohammed, Cheney says: “I was aware of the program, certainly, and involved in helping get the process cleared, as the agency [CIA] in effect came in and wanted to know what they could and couldn’t do. And they talked to me, as well as others, to explain what they wanted to do. And I supported it.” Cheney says that waterboarding Mohammed produced critically important information: “There was a period of time there, three or four years ago, when about half of everything we knew about al-Qaeda came from that one source. So it’s been a remarkably successful effort. I think the results speak for themselves.” Cheney adds that the invasion of Iraq and the overthrow of Saddam Hussein were justified regardless of whether that nation possessed weapons of mass destruction. The only thing US intelligence got wrong, he says, “was that there weren’t any stockpiles. What they found was that Saddam Hussein still had the capability to produce weapons of mass destruction. He had the technology, he had the people, he had the basic feed stock.” (Karl 12/15/2008; Karl 12/15/2008) In the US, waterboarding has been considered a war crime at least as far back as World War II (see 1947, January 21, 1968, and November 29, 2007); in 2007, a judge concurred (see November 4, 2007). A former senior Justice Department official determined that waterboarding is torture (see Late 2004-Early 2005), as did a former deputy secretary of state who was subjected to waterboarding as part of his military training (see January 21, 2009) and a US senator who was a prisoner of war in Vietnam (see April 20, 2009). The CIA suspended the use of waterboarding in 2005 after determining that the technique was most likely ineffective and certainly illegal (see Shortly After April 28, 2004-February 2005), and banned it entirely in 2006 (see Between May and Late 2006); the CIA’s Inspector General determined that the practice was torture (see March 6, 2009). The FBI and DIA have forbidden their agents from using the technique (see May 13, 2004 and February 7, 2008). The US military banned its use in 2006 (see September 6, 2006). The king of Saudi Arabia will accuse the Bush administration of torturing prisoners in its custody (see April 24, 2009). The information derived from torturing Mohammed and other prisoners is widely considered unreliable (see August 6, 2007, April 16, 2009, December 18, 2008, and March 29, 2009), and may well have been initially designed to elicit false confessions (see April 22, 2009).

Vanity Fair reporter David Rose publishes an extensive examination of the US’s use of torture to extract information from a number of suspected militant Islamists, focusing on three subjects: Abu Zubaida (see April - June 2002, Mid-April-May 2002, May 2002-2003, Mid-May, 2002, Mid-May 2002 and After, June 2002, and December 18, 2007), Khalid Shaikh Mohammed (see May 2002-2003, March 7 - Mid-April, 2003, After March 7, 2003, and August 6, 2007), and Binyam Mohamed (see May 17 - July 21, 2002, July 21, 2002 -- January 2004, and January-September 2004). The conclusion he draws, based on numerous interviews with current and former CIA, military, and administration sources, is that torture not only does not work to provide reliable intelligence, it provides so much false information that it chokes the intelligence system and renders the intelligence apparatus unreliable. One CIA official tells Rose: “We were done a tremendous disservice by the [Bush] administration. We had no background in this; it’s not something we do. They stuck us with a totally unwelcome job and left us hanging out to dry. I’m worried that the next administration is going to prosecute the guys who got involved, and there won’t be any presidential pardons at the end of it. It would be okay if it were [former Attorney Generals] John Ashcroft or Alberto Gonzales. But it won’t be. It’ll be some poor GS-13 who was just trying to do his job.”
Enormous Waste of Resources - A veteran FBI counterterrorism agent says the waste of time and resources on false leads generated through torture has been enormous. “At least 30 percent of the FBI’s time, maybe 50 percent, in counterterrorism has been spent chasing leads that were bullsh_t,” he says. “There are ‘lead squads’ in every office trying to filter them. But that’s ineffective, because there’s always that ‘What if?’ syndrome. I remember a claim that there was a plot to poison candy bought in bulk from Costco. You follow it because someone wants to cover himself. It has a chilling effect. You get burned out, you get jaded. And you think, ‘Why am I chasing all this stuff that isn’t true?’ That leads to a greater problem—that you’ll miss the one that is true. The job is 24-7 anyway. It’s not like a bank job. But torture has made it harder.”
No Proof of Efficacy of Torture - Former FBI counterterrorism specialist Dan Cloonan points to the near-total lack of proof the administration has been able to advance to show that torture works. “The proponents of torture say, ‘Look at the body of information that has been obtained by these methods,’” he says. “But if KSM [Khalid Shaikh Mohammed] and Abu Zubaida did give up stuff, we would have heard the details. What we got was pabulum.” A former CIA officer says: “Why can’t they say what the good stuff from Abu Zubaida or KSM is? It’s not as if this is sensitive material from a secret, vulnerable source. You’re not blowing your source but validating your program. They say they can’t do this, even though five or six years have passed, because it’s a ‘continuing operation.’ But has it really taken so long to check it all out?”
Propaganda Value - Officials who analyzed Zubaida’s interrogation reports say that his reports were given such credence within the White House not because of the American lives they would supposedly save, but because they could be used to rebut those who criticized the Iraq invasion. “We didn’t know he’d been waterboarded and tortured when we did that analysis, and the reports were marked as credible as they could be,” says a former Pentagon analyst. “The White House knew he’d been tortured. I didn’t, though I was supposed to be evaluating that intelligence.” He was unable to draw valid conclusions about the importance of Zubaida’s confessions without knowing how the information was extracted. “It seems to me they were using torture to achieve a political objective,” he says. “I cannot believe that the president and vice president did not know who was being waterboarded, and what was being given up.”
False Claims of Preventing London Attack - President Bush has claimed that secret CIA black site interrogations “helped foil a plot to hijack passenger planes and fly them into Heathrow [Airport] and London’s Canary Wharf” (see October 6, 2005). The former head of Scotland Yard’s anti-terrorist branch, Peter Clarke, who served through May 2008 and helped stop several jihadist attacks, says Bush’s claim is specious. Clarke says it is possible that al-Qaeda had considered some sort of project along the lines of Bush’s assertion, but if it had, it was nowhere near fruition. “It wasn’t at an advanced stage in the sense that there were people here in the UK doing it,” he says. “If they had been, I’d have arrested them.” No terror plot of which Clarke is aware has been foiled due to information gathered due to torture.
FBI Director Confirms No Plots Disrupted by Torture Interrogations - Rose concludes by quoting an interview he held with FBI Director Robert Mueller in April 2008. Rose lists a number of plots disrupted by the FBI, all “foiled by regular police work.” He asked Mueller if he was aware of any attacks on America that had been disrupted thanks to what the administration calls “enhanced techniques.” Mueller responded, “I’m really reluctant to answer that.” He paused, looked at an aide, then said quietly, “I don’t believe that has been the case.” (Rose 12/16/2008) On April 21, 2009, a spokesman for Mueller will say, “The quote is accurate.” (Shane 4/22/2008)

Newsweek reveals that Thomas Tamm, a former high-level Justice Department official, was one of the whistleblowers who revealed the government’s illegal domestic wiretapping program, known as “Stellar Wind,” to the New York Times (see December 15, 2005). Tamm, an ex-prosecutor with a high security clearance, learned of the program in the spring of 2004 (see Spring 2004).
Intense FBI Scrutiny - As of yet, Tamm has not been arrested as one of the leakers in the criminal leak investigation ordered by President Bush (see December 30, 2005), though since the December 2005 publication, Tamm has remained under Justice Department suspicion—FBI agents have raided his home, hauled away his personal possessions, and relentlessly questioned his family and friends (see August 1, 2007). He no longer has a government job, and is having trouble finding steady work as a lawyer. He has resisted pressure to plead to a felony charge of divulging classified information. Newsweek’s Michael Isikoff writes, “[H]e is living under a pall, never sure if or when federal agents might arrest him.” Perhaps his biggest regret is the impact the FBI investigation has had on his wife and children. “I didn’t think through what this could do to my family,” he says. But, “I don’t really need anybody to feel sorry for me,” he says. “I chose what I did. I believed in what I did.”
No Decision to Prosecute Yet - The Justice Department has deferred a decision over whether to arrest and prosecute Tamm until after the Bush administration leaves office and a new attorney general takes over the department. Both President-elect Barack Obama and the incoming Attorney General, Eric Holder, have denounced the warrantless wiretapping program. In one speech Holder gave in June 2008, he said that President Bush had acted “in direct defiance of federal law” by authorizing the NSA program. Former US Attorney Asa Hutchinson, who is helping in Tamm’s defense, says: “When I looked at this, I was convinced that the action he took was based on his view of a higher responsibility. It reflected a lawyer’s responsibility to protect the rule of law.” Hutchinson has no use for the idea, promulgated by Bush officials and conservative pundits, that the Times story damaged the “war on terror” by alerting al-Qaeda terrorists to Stellar Wind and other surveillance programs. “Anybody who looks at the overall result of what happened wouldn’t conclude there was any harm to the United States,” he says. Hutchinson is hopeful that Holder’s Justice Department will drop its investigation of Tamm.
The Public 'Ought to Know' about NSA Eavesdropping - Recently Tamm decided to go public with his story, against the advice of his lawyers. “I thought this [secret program] was something the other branches of the government—and the public—ought to know about,” he tells Isikoff. “So they could decide: do they want this massive spying program to be taking place?… If somebody were to say, who am I to do that? I would say, ‘I had taken an oath to uphold the Constitution.’ It’s stunning that somebody higher up the chain of command didn’t speak up.” Tamm also admits that he leaked information to the Times in part over his anger at other Bush administration policies for the Justice Department, including its aggressive pursuit of death penalty cases, and its use of “renditions” and “enhanced” interrogation techniques against terrorist suspects. He insists that he divulged no “sources and methods” that might compromise national security when he spoke to the Times. He could not tell the Times reporters anything about the NSA program, he says, because he knew nothing specific about the program. As Isikoff writes, “All he knew was that a domestic surveillance program existed, and it ‘didn’t smell right.’” (Times reporter Eric Lichtblau refuses to confirm if Tamm was one of his sources for the stories he wrote with fellow Times reporter James Risen.) (Isikoff 12/22/2008)

The CIA rehires a former officer who previously threatened al-Qaeda leader Abd al-Rahim al-Nashiri with a gun and drill during interrogations (see Between December 28, 2002 and January 1, 2003 and Late December 2002 or Early January 2003). The officer, a former FBI translator known as “Albert,” is to train other CIA officers at a facility in northern Virginia to handle different scenarios they might face in the field. He continues with the training until 2008 at the latest. However, according to an anonymous US official, he will still be working as an intelligence contractor in 2010. Albert’s rehiring will be revealed by the Associated Press in September 2010. According to the Associated Press, human rights critics say Albert’s return as a contractor raises questions about how the intelligence community deals with those who used unauthorized interrogation methods. “The notion that an individual involved in one of the more notorious episodes of the CIA’s interrogation program is still employed directly or indirectly by the US government is scandalous,” Ben Wizner, an attorney with the American Civil Liberties Union, will comment. (Goldman 9/7/2010)

A CIA drone strike kills two al-Qaeda leaders, Usama al-Kini and Sheikh Ahmed Salim Swedan, in Pakistan’s tribal region. Al-Kini, a Kenyan also known as Fahid Muhammad Ally Msalam, is said to be al-Qaeda’s chief of operations in Pakistan since 2007. Swedan, also a Kenyan, is al-Kini’s long-time deputy. Both men are said to be linked to a recent series of suicide bombings in Pakistan, including a September 16 bombing of the Marriott Hotel in Islamabad that killed 53 people. Both are said to have had central roles in planning the 1998 US embassy bombings (see 10:35-10:39 a.m., August 7, 1998). The FBI had a $5 million bounty for their capture. An anonymous US counterterrorism official says that al-Kini is one of the top 10 highest ranking terrorists the CIA ever killed or captured. The drone strike is said to have hit a building being used for explosives training near the town of Karikot in South Waziristan. (Warrick 1/9/2009)

Judge Vaughn Walker rules that “sufficient facts” exist to keep alive a lawsuit brought by the defunct Islamic charity Al Haramain, which alleges it was subjected to illegal, warrantless wiretapping by the US government (see February 28, 2006). The lawsuit centers on a Top Secret government document accidentally disclosed to plaintiffs’ lawyers Wendell Belew and Asim Ghafoo that allegedly proves the claim of illegal wiretapping; previous court rulings forced Belew and Ghafoo to return the document to the government and prohibited its use in the lawsuit. The lawsuit is widely viewed as a test case to decide in court whether the Bush administration abused its power by authorizing a secret domestic spying program (see Spring 2004 and December 15, 2005). Jon Eisenberg, the lawyer for Belew and Ghafoo, says it does not matter whether the case pertains to the Bush administration or the incoming Obama administration. “I don’t want President Obama to have that power any more than I do President Bush,” he says. Because the lawsuit contains sufficient evidence even without the Top Secret document, Walker rules, it can continue. “The plaintiffs have alleged sufficient facts to withstand the government’s motion to dismiss,” he writes. Therefore, he adds, the law demands that they be allowed to review the classified document, and others, to determine whether the lawyers were spied on illegally and whether Bush’s spy program was unlawful. “To be more specific, the court will review the sealed document ex parte and in camera,” Walker writes. “The court will then issue an order regarding whether plaintiffs may proceed—that is, whether the sealed document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA” (the Foreign Intelligence Surveillance Act—see 1978). (Kravets 1/5/2009)

Newsweek publishes a range of responses to its article about Justice Department whistleblower Thomas Tamm (see December 22, 2008), who alerted the New York Times to the Bush administration’s illegal domestic wiretapping program “Stellar Wind” (see Spring 2004 and December 15, 2005). Most are extremely supportive of Tamm; Newsweek writes, “Nearly all labeled Tamm a hero.” One reader wonders why “few in the Justice Department were as troubled as Tamm about the illegality of the secret domestic wiretapping program or had the courage of his convictions.” Another notes, “Whistle-blowers like him are heroes because they are protecting ‘We the people.’” A Milwaukee reader, Harvey Jay Goldstein, suggests that President-elect Obama honor Tamm’s courage and service by “issuing him a pardon” and then “seek indictments against those involved in authorizing and carrying out the illegal program, including President Bush and Vice President Cheney.” The reader is “appalled” that Tamm “is being harassed and persecuted by the FBI (see August 1, 2007) for his part in disclosing the coverup of a program that originated in the Oval Office.” He calls Tamm “a national hero who had the guts to do what he thought was right and wasn’t intimidated by the power of the presidency.” Goldstein accuses Bush and Cheney of “undermining and circumventing the protections of the First and Fourth amendments [in what] are perhaps the most egregious attempts to consolidate absolute power within the executive branch since the dark days of Richard Nixon.” Illinois reader Leonard Kliff, a World War II veteran, writes: “It is disgusting that this man is on the run when he should be receiving a medal for his actions. I am sure the majority of Americans fully support him.” The Reverend Joseph Clark of Maryland calls Tamm “a common man doing his job—upholding the Constitution of the United States and the rule of law.… Thank God for people like Thomas Tamm who spoke when no one else was finding a voice.… This nation is made up of people like Tamm, and that is our strength.” And a former schoolmate of Tamm’s, Peter Craig, writes: “No one who attended Landon School in Bethesda, Md., in the late 1960s, as I did, will be at all surprised to learn that Tom Tamm ended up risking it all to do the right thing. In his senior year, for instance, Tom, then the president of the student council, decided to turn himself in to the rest of the council for some minor infraction unknown to anyone else (and ultimately warranting no punishment). It showed the same character and a burgeoning morality that years later would compel him to do what he did.” Only one published letter, from Bob Spickelmier, expresses the view that Tamm should go to jail for his actions. (Newsweek 1/10/2009)

Susan Crawford.Susan Crawford. [Source: Susan Crawford / Washington Post]The senior Bush administration official in charge of bringing Guantanamo Bay detainees to trial rules that the US military tortured a detainee, and therefore the US cannot try him. Susan Crawford, the convening authority of military commissions, says that the US tortured Mohamed al-Khatani, a Saudi national accused of planning to participate in the September 11 attacks (see August 4, 2001). Crawford says al-Khatani was interrogated with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, and which cumulatively left him in a “life-threatening condition.” Crawford says: “We tortured [al-]Khatani. His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution. Crawford is a retired judge who served as the Army’s general counsel during the Reagan administration and the Pentagon’s inspector general during the first Bush administration. She is the first senior official of the current Bush administration to publicly state that a detainee was tortured while in US custody.
Cumulative Effect Equals Torture - None of the individual techniques used against al-Khatani were torturous in and of themselves, Crawford says, but the cumulative effect—particularly their duration and the deleterious effect on al-Khatani’s health—combined to constitute torture. “The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” she says. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge” to call it torture. Al-Khatani has been in US custody since December 2001 (see December 2001), and was interrogated from November 2002 through January 2003 (reports of the exact dates vary—see August 8, 2002-January 15, 2003 and October 11, 2002). He was held in isolation until April 2003. “For 160 days his only contact was with the interrogators,” Crawford says. “Forty-eight of 54 consecutive days of 18-to-20-hour interrogations. Standing naked in front of a female agent. Subject to strip searches. And insults to his mother and sister.” He was threatened with a military dog named Zeus. He “was forced to wear a woman’s bra and had a thong placed on his head during the course of his interrogation,” Crawford says, and “was told that his mother and sister were whores.” With a leash tied to his chains, he was led around the room “and forced to perform a series of dog tricks,” according to reports from his interrogations. He was twice hospitalized with bradycardia, a potentially lethal condition where the heartbeat drops to abnormally low levels.
Ruling Halts Future Prosecution against al-Khatani - Crawford dismissed war crimes charges against al-Khatani in May 2008 (see May 13, 2008). In November, military prosecutors said they would refile charges against al-Khatani, based on subsequent interrogations that did not employ harsh techniques (see November 18, 2008). But Crawford says that she would not let any such prosecutions go forward. However, Crawford is not unaware of the potential danger posed by letting him go free. “There’s no doubt in my mind he would’ve been on one of those planes had he gained access to the country in August 2001,” Crawford says. “He’s a muscle hijacker.… He’s a very dangerous man. What do you do with him now if you don’t charge him and try him? I would be hesitant to say, ‘Let him go.’” Al-Khatani’s civilian lawyer, Gitanjali Gutierrez, says, “There is no doubt he was tortured.” Gutierrez says: “He has loss of concentration and memory loss, and he suffers from paranoia.… He wants just to get back to Saudi Arabia, get married and have a family.” Al-Khatani “adamantly denies he planned to join the 9/11 attack,” she adds. “He has no connections to extremists.” Gutierrez says she thinks Saudi Arabia has an effective rehabilitation program and Khatani ought to be returned there. (Woodward 1/14/2009; Glaberson 1/14/2009) His lawyers at the Center for Constitutional Rights describe him as a broken, suicidal man who can never be prosecuted because of his treatment at the hands of his captors. (Glaberson 1/14/2009)
Sympathetic but Unbending - Crawford, a lifelong Republican, says she sympathizes with the situation faced by the Bush administration and the CIA after the 9/11 attacks. “I sympathize with the intelligence gatherers in those days after 9/11, not knowing what was coming next and trying to gain information to keep us safe,” she acknowledges. “But there still has to be a line that we should not cross. And unfortunately what this has done, I think, has tainted everything going forward.” Noting that the 2006 Hamdan v. Rumsfeld case (see June 30, 2006) disallowed torture but allowed for “coercive interrogation techniques,” Crawford says even those techniques should not be allowed: “You don’t allow it in a regular court.” Crawford says she is not yet sure if any of the other five detainees accused of participating in the 9/11 plot, including their leader, Khalid Shaikh Mohammed, were tortured, but she believes they may have been. “I assume torture,” she says, and notes that CIA Director Michael Hayden has publicly confirmed that Mohammed was one of three detainees subjected to waterboarding, a technique classified by law as torture. Crawford has not blocked prosecution of the other five detainees. Ultimately, she says, the responsibility for the farrago of illegal detentions and torture rests with President Bush. He was right to create a system to try suspected terrorists, she says, but the implementation was fatally flawed. “I think he hurt his own effort.… I think someone should acknowledge that mistakes were made and that they hurt the effort and take responsibility for it.… We learn as children it’s easier to ask for forgiveness than it is for permission. I think the buck stops in the Oval Office.” (Woodward 1/14/2009)
Rules Change - Pentagon spokesman Geoff Morrell says that the Hamdan case changed the rules, and thus retroactively classified al-Khatani’s treatment as torture. “The [Defense] Department has always taken allegations of abuse seriously,” he says. “We have conducted more than a dozen investigations and reviews of our detention operations, including specifically the interrogation of Mohamed al-Khatani, the alleged 20th hijacker. They concluded the interrogation methods used at [Guantanamo], including the special techniques used on Khatani in 2002, were lawful. However, subsequent to those reviews, the Department adopted new and more restrictive policies and procedures for interrogation and detention operations. Some of the aggressive questioning techniques used on al-Khatani, although permissible at the time, are no longer allowed in the updated Army field manual.” (Woodward 1/14/2009)
Prosecutors Unprepared - When Crawford came to Guantanamo as convening authority in 2007, she says “the prosecution was unprepared” to bring cases to trial. Even after four years of working possible cases, “they were lacking in experience and judgment and leadership.” She continues: “A prosecutor has an ethical obligation to review all the evidence before making a charging decision. And they didn’t have access to all the evidence, including medical records, interrogation logs, and they were making charging decisions without looking at everything.” It took over a year, and the intervention of Deputy Defense Secretary Gordon England, for prosecutors to turn over possibly exculpatory evidence to defense lawyers, even though the law requires that such evidence be turned over immediately. The entire system at Guantanamo is a blot on the reputation of the US and its military judicial system, she says: “There’s an assumption out there that everybody was tortured. And everybody wasn’t tortured. But unfortunately perception is reality.” The system she oversees cannot function now, she believes. “Certainly in the public’s mind, or politically speaking, and certainly in the international community” it may be forever tainted. “It may be too late.” (Woodward 1/14/2009)

Eric Holder.Eric Holder. [Source: New York Times]Incoming Attorney General Eric Holder says the Justice Department will defend the US’s warrantless eavesdropping program (see Spring 2004 and December 15, 2005) in court, based on Congress’s passage of legislation immunizing US telecommunications companies from lawsuits challenging their participation in the government spy program (see January 5, 2009). Holder makes this statement during Senate hearings to confirm his selection as attorney general. “The duty of the Justice Department is to defend statutes that have been passed by Congress,” Holder says. “Unless there are compelling reasons, I don’t think we would reverse course.” President-elect Obama, while a senator, opposed granting immunity to the telecommunications firms, but voted for immunity because it was included in a broader surveillance bill that gave the Bush administration broad new powers to eavesdrop on Americans without warrants. (Kravets 1/15/2009)

Lieutenant Colonel Darrel Vandeveld (see January 13, 2009), a former Army prosecutor at Guantanamo who resigned his position in September 2008 (see September 2008), publishes a column in the Washington Post explaining his decision. After a lengthy recounting of his experiences at Guantanamo, he concludes: “I am ashamed that it took me so long to recognize the stain of Guantanamo, not simply on America’s standing in the world, but as part, now, of a history we cannot undo. We have kept human beings in solitary confinement for as long as seven years, even though they have never been charged with any crime. In other places, we have beaten hooded, shackled prisoners, at least two of whom died as a result. There is a way out of Guantanamo. It is not as difficult as some apologists have made it seem. Many of the detainees have not committed war crimes and the handful of real terrorists and war criminals can be tried in federal court.… For the detainees who have not committed any crime, we must begin an immediate and intensive program of rehabilitation that will allow them to reintegrate into the societies from which they were removed on the flimsiest of legal bases.… No one who has fought for our country and its values has done so to enable what happened in Guantanamo. We did not sacrifice so that an administration of partisan civilians, abetted by military officers who seemed to have lost their moral compass, could defile our Constitution and misuse the rule of law. For a few dark years, it was ‘legal’ to mistreat fellow human beings. Now, some of that treatment has been called ‘torture’ by Susan Crawford, the convening authority of military commissions (see January 14, 2009). I just hope no one will see that kind of abuse—and look the other way—again.” (Vandeveld 1/18/2009)

As one of its last official acts, the Bush administration asks federal judge Vaughn Walker to stay his ruling that keeps alive a lawsuit testing whether a sitting president can bypass Congress and eavesdrop on Americans without warrants. The request, filed at 10:56 p.m. on President Bush’s last full day in office, asks Walker to stay his ruling and allow the federal government to appeal his ruling that allows the al-Haramain lawsuit to proceed (see February 28, 2006). The warrantless wiretapping alleged in the lawsuit took place in 2004, well before Congress’s 2008 authorization of the government’s spy program. The Obama administration’s incoming Attorney General, Eric Holder, says the Justice Department will defend the spy program because Congress made it legal (see January 15, 2009). It is not clear whether the Justice Department under Holder will continue to fight the Al Haramain lawsuit. The Bush administration wants Walker to reverse his decision to let plaintiffs’ lawyers Wendell Belew and Asim Ghafoo use a Top Secret document that was accidentally disclosed to them in 2004 (see January 5, 2009); that document, which allegedly proves the warrantless and illegal nature of the wiretapping performed against the Al Haramain charity, is at the center of the lawsuit. Previous rulings disallowed the use of the document and forced the defense lawyers to return it to the government, but Walker ruled that other evidence supported the claim of warrantless wiretapping, and therefore the document could be used. In its request for a stay, the Bush administration asserts that allowing the document to be used in the lawsuit would jeopardize national security, and that the document is protected under the state secrets privilege (see March 9, 1953). Administration lawyers say that Walker should not be allowed to see the document, much less the defense lawyers. “If the court were to find… that none of the plaintiffs are aggrieved parties, the case obviously could not proceed, but such a holding would reveal to plaintiffs and the public at large information that is protected by the state secrets privilege—namely, that certain individuals were not subject to alleged surveillance,” the administration writes in its request. If the lawsuit continues, the government says, that decision “would confirm that a plaintiff was subject to surveillance” and therefore should not be allowed: “Indeed, if the actual facts were that just one of the plaintiffs had been subject to alleged surveillance, any such differentiation likewise could not be disclosed because it would inherently reveal intelligence information as to who was and was not a subject of interest, which communications were and were not of intelligence interest, and which modes of communication were and were not of intelligence interest, and which modes of communication may or may not have been subject to surveillance.” Jon Eisenberg, the lawyer for Belew and Ghafoo, says: “We filed this lawsuit to establish a judicial precedent that the president cannot disregard Congress in the name of national security. Plaintiffs have a right to litigate the legality of the surveillance.” (Kravets 1/20/2009)

Constitutional lawyer and author Bruce Fein, a former official in the Justice Department under Ronald Reagan, writes that if President Obama wants to “restore the rule of law and to prevent future wrongdoing by high-level government officials,” he “should investigate, among others, former President George W. Bush, former Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld, former Attorney General John Ashcroft, former White House counsel and Attorney General Alberto Gonzales, and former White House political adviser Karl Rove. The crimes to be investigated should include complicity in torture, illegal surveillance, illegal detention, perjury, obstruction of justice, and contempt of Congress. Prosecutions should follow if the evidence convinces a grand jury to indict.” Fein states that “[t]he best way to deter government criminality and to teach citizens the rule of law is to punish the perpetrators who are unanimously found guilty beyond a reasonable doubt by independent and impartial jurors.”
FBI, CIA Feared Prosecution for Torture - He notes that the FBI refused to participate in “enhanced interrogation techniques,” including waterboarding, for fear of being charged with war crimes. And the CIA required specific legal opinions from the Bush Justice Department—the so-called “golden shield” (see August 1, 2002)—and specific presidential authorization before it would allow its agents to torture detainees. And the White House ordered an end to waterboarding after it was warned that such tactics left its officials open to charges of torture and war crimes.
Attorney General Feared Prosecution under FISA - He goes on to note that Justice Department officials such as acting Attorney General James Comey “balked at approving… Bush’s warrantless surveillance program without modification in March 2004 probably because he feared criminal prosecution under the Foreign Intelligence Surveillance Act” (see 1978).
'Unpunished Lawlessness by Government Officials Invites Lawlessness Generally' - Fein asserts that “unpunished lawlessness by government officials invites lawlessness generally.” He quotes former Supreme Court Justice Louis Brandeis: “Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” The best way to deter criminal behavior, he says, is to prosecute alleged criminals, and that process must start with government officials. (Fein 1/20/2009)

Lindsey Graham.Lindsey Graham. [Source: Boston Globe]Senator Lindsey Graham (R-SC) says that some detainees currently held in Guantanamo should be imprisoned indefinitely, without legal recourse. Graham is responding to President Obama’s order to close Guantanamo within a year (see January 22, 2009). On Fox News, Graham says, “I do believe we can close Gitmo, but what to do with them [the remaining detainees]?” He says there are three options: “Repatriate some back to other countries makes sense, if you can do it safely. Some of them will be tried for war crimes. And a third group will be held indefinitely because the sensitive nature of the evidence may not subject them to the normal criminal process, but if you let them go, we’ll be letting go someone who wants to go back to the fight.… So we’ve got three lanes we’ve got to deal with: repatriation, trials, and indefinite detention.” Civil liberties expert Ken Gude is critical of Graham’s position: “US courts have tried some of the most dangerous terrorists the world has ever known, and done so while both protecting classified information and the rights of the accused to ensure the verdict is fair, legitimate, and accurate.… Of course these prosecutions will not be easy, but the admissibility of classified evidence is not an insurmountable obstacle to trials of Guantanamo detainees.” (Think Progress 1/21/2009)

David Kris.David Kris. [Source: Brookings Institution]President Obama picks as his nominee to lead the Justice Department’s National Security Division an outspoken critic of the Bush administration’s legal justifications for warrantless wiretapping. David Kris served as a senior Justice Department official in both the Clinton and Bush administrations before accepting a position at Georgetown University’s law school, and is considered an expert on intelligence law. After the New York Times revealed the Bush administration’s warrantless wiretapping program (see December 15, 2005), Kris wrote a 25-page legal analysis describing the rationale for the program as “weak” and probably invalid. When he was at the Justice Department, Kris advised his then-boss, Deputy Attorney General Larry Thompson, not to sign a batch of wiretapping warrants—results of the warrantless wiretap program—because intelligence officials would not reveal how the information in the wiretaps was obtained. If confirmed by the Senate, Kris will not only oversee intelligence and national security law, but may be responsible for the dispensation of the detainees in the Guantanamo prison camp (see January 22, 2009). (Lichtblau 1/22/2009)

Former Attorney General Alberto Gonzales tells an NPR reporter that he never allowed the Justice Department (DOJ) to become politicized, and that he believes the historical judgment of his tenure in the department will be favorable. He acknowledges making some errors, including failing to properly oversee the DOJ’s push to fire nine US attorneys in 2008, a process many believe was orchestrated by the White House with the involvement of Gonzales and then-White House political guru Karl Rove.
Failure to Engage - “No question, I should have been more engaged in that process,” he says, but adds that he is being held accountable for decisions made by his subordinates. “I deeply regret some of the decisions made by my staff,” he says, referring to his former deputy Paul McNulty, who resigned over the controversy after telling a Senate committee that the attorney firings were performance-related and not politically motivated. Gonzales says his then-chief of staff, Kyle Sampson, was primarily responsible for the US attorney review process and for working with McNulty. “If Paul McNulty makes a recommendation to me—if a recommendation includes his views—I would feel quite comfortable that those would be good recommendations coming to me” about the qualifications of the US attorneys under question, Gonzales says. He adds that he has “seen no evidence” that Rove or anyone at the White House tried to use the US attorneys to politicize the work at the DOJ. A review by the DOJ’s Inspector General found that the firing policy was fundamentally flawed, and that Gonzales was disengaged and had failed to properly supervise the review process.
Claims He Was Unfairly Targeted by 'Mean-Spirited' Washington Insiders - Gonzales says he has been unfairly held responsible for many controversial Bush administration policies, including its refusal to abide by the Geneva Conventions (see Late September 2001, January 9, 2002, January 18-25, 2002, January 25, 2002, August 1, 2002, November 11, 2004, and January 17, 2007) and its illegal eavesdropping on US citizens (see Early 2004, March 9, 2004, December 19, 2005, Early 2006, and February 15, 2006), because of his close personal relationship with former President Bush. Washington, he says, is a “difficult town, a mean-spirited town.” He continues: “Sometimes people identify someone to target. That’s what happened to me. I’m not whining. It comes with the job.”
Visiting Ashcroft at the Hospital - In 2004, Gonzales, then the White House counsel, and White House chief of staff Andrew Card raced to the bedside of hospitalized Attorney General John Ashcroft to persuade, or perhaps coerce, Ashcroft to sign off on a secret government surveillance program (see March 10-12, 2004). The intervention was blocked by Deputy Attorney General James Comey (see March 12-Mid-2004). Gonzales says he has no regrets about the incident: “Neither Andy nor I would have gone there to take advantage of somebody who was sick. We were sent there on behalf of the president of the United States.” As for threats by Justice Department officials to resign en masse over the hospital visit (see Late March, 2004), Gonzales merely says, “Lawyers often disagree about important legal issues.”
Warning about Plain Speaking - Gonzales says Obama’s attorney general nominee, Eric Holder, should refrain from making such statements as Holder made last week when he testified that waterboarding is torture. “One needs to be careful in making a blanket pronouncement like that,” Gonzales says, adding that such a statement might affect the “morale and dedication” of intelligence officials and lawyers who are attempting to make cases against terrorism suspects. (Halloran 1/26/2009)

Convicted al-Qaeda conspirator Jose Padilla (see January 22, 2008) files a lawsuit holding former Defense Secretary Donald Rumsfeld and other former Bush administration officials responsible for his years in US detention without a lawyer or criminal charge. Last year Padilla sued former Justice Department lawyer John Yoo for writing legal opinions that led to his designation as an “enemy combatant” (see January 4, 2008); that case is still pending. In both cases, Padilla is seeking only a token $1 in damages; he wants a judge to declare his treatment illegal and unconstitutional. Justice Department lawyers argue that the lawsuit should be dismissed, saying that allowing it to proceed would endanger national security. A Padilla victory, they argue, “would strike at the core functions of the political branches, impacting military discipline, aiding our enemies, and making the United States more vulnerable to terrorist attack.” The government’s brief states, “Adjudication of the claims pressed by [Padilla] in this case would necessarily require an examination of the manner in which the government identifies, captures, designates, detains, and interrogates enemy combatants.” The Justice Department also wants the lawsuit against Yoo dismissed. “The issues of Padilla’s extreme interrogations and punitive conditions of confinement were never addressed by this court, the Fourth Circuit, or any other court,” Padilla’s lawyers say in their brief. They say the ordeal left Padilla psychologically disabled. “This guy had nothing,” says lawyer Michael O’Connell. “He was utterly isolated and had no clue that there was anybody out there advocating for him. He was just there forever. I don’t think I could have stood that and come out sane.… I can’t think of another time in this country that that ever happened to an American citizen.” Padilla’s lawyers argue that his designation as an enemy combatant violated his rights as a citizen. In their brief, they argue, “It was clearly established that military agents could not enter a civilian jail, seize a man from the civilian justice system, transport him to a military prison, detain him there indefinitely without criminal charge or conviction, deprive him of contact with attorneys or family, take from him his ability to fulfill the minimum requirements of his religion, and subject him to a program of extreme interrogations, sensory deprivation, and punishment.” (Richey 1/29/2009)

Military judge Colonel James Pohl denies the Obama administration’s request to suspend legal proceedings at Guantanamo Bay (see January 20, 2009) in the case of a detainee accused of planning the attack on the USS Cole (see October 12, 2000). Because of Pohl’s order, the Pentagon may be forced to temporarily withdraw charges against accused Cole plotter Abd al-Rahim al-Nashiri and perhaps 20 other detainees facing military trials, including 9/11 mastermind Khalid Shaikh Mohammed (see January 5-8, 2000 and November-December 2000).
White House Response - Obama officials are startled by Pohl’s order, as five other military judges have agreed to the government’s request. White House press secretary Robert Gibbs says, “We just learned of the ruling here… and we are consulting with the Pentagon and the Department of Justice to explore our options in that case.” Asked if the decision will hamper the administration’s ability to evaluate detainees’ cases, Gibbs replies, “Not at all.”
Judge: Government Arguments 'Unpersuasive' - Pohl says he finds the government’s arguments in favor of suspension “unpersuasive” and that the case will go forward because “the public interest in a speedy trial will be harmed by the delay in the arraignment.” The White House wants the delay in order to review the cases of the approximately 245 detainees at Guantanamo and decide the disposition of each case. Pohl says he is bound by the Military Commissions Act (see October 17, 2006), “which remains in effect.”
Reactions Mixed - Navy Commander Kirk Lippold, who commanded the Cole when it was attacked, says he is “delighted” with the ruling, and adds, “It proves the military commissions work without undue command influence, and this decision puts us back on track to see an accounting for al-Nashiri’s terrorist acts.” Human rights activists disagree, with many arguing that the charges against al-Nashiri and perhaps other detainees should be withdrawn in order to allow the option of preserving or reforming military commissions at a new location. “Given that the Guantanamo order was issued on day two of the new administration, the president was clearly trying to make the immediate decisions needed while giving himself the flexibility to deal with the rest down the road,” says Human Rights Watch official Jennifer Daskal. “That said, the only sure way to ensure that the commissions process is brought to a halt is to now withdraw the charges.”
Options for Proceeding - Susan Crawford, the Pentagon official who approves charges and refers cases to trial (see January 14, 2009), can withdraw charges “without prejudice,” which would allow for refiling at a later date, whether under a modified military commissions procedure or for a civilian or military court. Pentagon spokesman Geoff Morrell says, “And so while that executive order is in force and effect, trust me, there will be no proceedings continuing down at Gitmo with military commissions.” Al-Nashiri’s case is complicated by the fact that he is one of at least three detainees who were waterboarded by CIA interrogators (see May 2002-2003). (Finn 1/30/2009)

Several Republican senators plan to visit the Guantanamo Bay detention facility and report their findings. They are expected to continue their calls for keeping Guantanamo open indefinitely. Senators Jim Inhofe (R-OK), David Vitter (R-LA), Pat Roberts (R-KS), Richard Burr (R-NC), and Mel Martinez (R-FL) decided to make the trip after President Obama issued an executive order mandating that the prison be closed within a year (see January 22, 2009). “I’ve always looked at [the prison] as being a real valuable asset,” says Inhofe. He admits he does not “have a solution to what we’re going to ultimately do” with the prisoners deemed most dangerous. “I’m not addressing that problem,” he says. Inhofe says Obama’s order to close the prison “failed to take into consideration the implications of closing [Guantanamo]—what happens to current detainees, what the military will do with detainees held in other military prisons around the world and what judicial process is going to be used.” Obama has asked for a “comprehensive interagency review” to settle those questions. (Daily Oklahoman 1/30/2009; Bixby Bulletin 1/30/2009) Burr says that he is “so far unconvinced that moving trained terrorists to the United States is in the best national security interests of our nation.” And Vitter notes that he is “very disappointed in President Obama’s decision to close the detention facility at Guantanamo.” He continues: “This facility should not be closed, and these individuals should not be released until we can determine the extent of their potential involvement in terrorist activities. And we most certainly should use every available measure to ensure that they do not make their way into the United States if in fact they are released.” (Bixby Bulletin 1/30/2009)
Worry about Housing Detainees in US Prisons - Like Inhofe, Roberts is concerned that some Guantanamo inmates will be transferred into prisons in his home state. Kansas is the home of Fort Leavenworth, which houses a large Army prison. “I am especially concerned with ridiculous speculation that Ft. Leavenworth is equipped to handle these detainees, some of the most dangerous terrorists in the world,” he says. “I am convinced these terrorists cannot and will not be housed in Kansas.” (Kallail 1/30/2009)
Advocating Continued Detentions without Trials - In an interview with Fox News, Vitter goes further than his Senatorial colleagues, saying that he favors continuing to detain some suspects without trials. “We need the ability to deal with these folks adequately,” he says. “To me, that has to include the ability to detain some—without trial—to continue proper interrogation.… I’d like to have Gitmo stay open. But certainly, we need detention facilities where we can detain dangerous terrorists without trial, continue to interrogate them.” (Shakir 1/30/2009) Fellow Republican Senator Lindsey Graham (R-SC) has already made the same recommendation (see January 21, 2009).

Reflecting on the Bush administration’s decision to create “military commissions” to try terror suspects (see November 13, 2001), John Bellinger, the former legal adviser to the National Security Council during much of the Bush administration, says: “A small group of administration lawyers drafted the president’s military order establishing the military commissions, but without the knowledge of the rest of the government, including the national security adviser, me, the secretary of state, or even the CIA director. And even though many of the substantive problems with the military commissions as created by the original order have been resolved by Congress in response to the Supreme Court’s decision in the Hamdan case (see June 30, 2006), we have been suffering from this original process failure ever since.” (Murphy and Purdum 2/2009)

Attorney General-nominee Eric Holder says that if he is confirmed, he intends to review current litigation in which the Bush administration asserted the so-called “state secrets” privilege (see March 9, 1953), and that he intends to minimize the use of the privilege during his tenure. “I will review significant pending cases in which DOJ [the Justice Department] has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations,” he writes in a response to pre-confirmation questions. (Shortly after Holder’s testimony, the Justice Department again asserts the “state secrets” privilege in a case involving a Guantanamo detainee—see February 9, 2009). Holder adds: “I firmly believe that transparency is a key to good government. Openness allows the public to have faith that its government obeys the law.” To a related question, he asserts his belief that the Office of Legal Counsel (OLC) must disclose as many of the opinions it generates as possible: “Once the new assistant attorney general in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC’s policies relating to publication of its opinions with the [objective] of making its opinions available to the maximum extent consistent with sound practice and competing concerns.” (Aftergood 2/2/2009; Senate Judiciary Committee 2/2/2009) Weeks later, the Justice Department will release nine controversial OLC memos from the Bush administration (see March 2, 2009).

PBS’s Nova series broadcasts “The Spy Factory,” an examination of the National Security Agency’s domestic surveillance program. The program is crafted by author and national security expert James Bamford with PBS producer Scott Willis. One portion of the broadcast shows a representation of the enormous data flow of Internet communications entering the US from Asia at Morro Bay, California, and then goes to a small AT&T facility in San Luis Obispo. “If you want to tap into international communications, it seems like the perfect place is San Luis Obispo,” Bamford narrates. “That’s where 80 percent of all communications from Asia enters the United States.” However, the NSA taps into the AT&T datastream much farther north, in AT&T’s Folsom Street facility in San Francisco (see October 2003 and Late 2003). According to former AT&T technician Mark Klein (see July 7, 2009 and May 2004), the NSA would have far more access to domestic communications by tapping into the dataflow at the San Francisco facility. He will later write, “This fact belies the government’s claims that they’re only looking at international communications.” (Klein 2009, pp. 50-51; PBS 2/3/2009)

Former Vice President Dick Cheney says that because of the Obama administration’s new policies, there is what he calls a “high probability” that terrorists will attempt a catastrophic nuclear or biological attack in coming years. “If it hadn’t been for what we did—with respect to the terrorist surveillance program (see After September 11, 2001 and December 15, 2005), or enhanced interrogation techniques for high-value detainees (see September 16, 2001 and November 14, 2001, among others), the Patriot Act (see October 26, 2001), and so forth—then we would have been attacked again,” says Cheney. “Those policies we put in place, in my opinion, were absolutely crucial to getting us through the last seven-plus years without a major-casualty attack on the US.” The situation has changed, he says. “When we get people who are more concerned about reading the rights to an al-Qaeda terrorist (see January 22, 2009) than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry,” he says. Protecting the country’s security is “a tough, mean, dirty, nasty business,” he continues. “These are evil people. And we’re not going to win this fight by turning the other cheek.” He calls the Guantanamo detention camp, which President Obama has ordered shut down (see January 22, 2009), a “first-class program” and a “necessary facility” that is operated legally and provides inmates better living conditions than they would get in jails in their home countries. But the Obama administration is worried more about its “campaign rhetoric” than it is protecting the nation: “The United States needs to be not so much loved as it needs to be respected. Sometimes, that requires us to take actions that generate controversy. I’m not at all sure that that’s what the Obama administration believes.” Cheney says “the ultimate threat to the country” is “a 9/11-type event where the terrorists are armed with something much more dangerous than an airline ticket and a box cutter—a nuclear weapon or a biological agent of some kind” that is deployed in the middle of an American city. “That’s the one that would involve the deaths of perhaps hundreds of thousands of people, and the one you have to spend a hell of a lot of time guarding against. I think there’s a high probability of such an attempt. Whether or not they can pull it off depends whether or not we keep in place policies that have allowed us to defeat all further attempts, since 9/11, to launch mass-casualty attacks against the United States.” (Harris, Allen, and Vanderhei 2/4/2009) Cheney has warned of similarly dire consequences to potential Democratic political victories before, before the 2004 presidential elections (see September 7, 2004) and again before the 2006 midterm elections (see October 31, 2006).

Upon his return from a brief tour of the Guantanamo detention facility (see January 30, 2009), Senator James Inhofe (R-OK) delivers a speech on the floor of the Senate recommending that the facility remain open, despite President Obama’s decision to close it (see January 22, 2009). Inhofe says, “The military detention facilities at GTMO meet the highest international standards and are a fundamental part of protecting the lives of Americans from terrorism.” He says “[t]he detainees are being treated humanely,” there are “two lawyers for every detainee that has been charged or had charges preferred against them,” and there is one health care professional for every two detainees, ensuring that they receive the highest level of medical care (see April-May 2002, August 8, 2002-January 15, 2003, and March 10-April 15, 2007). Guantanamo “is the only complex in the world that can safely and humanely hold these individuals who pose such a grave security risk to the US,” Inhofe insists. “It is a secure location away from population centers, provides the maximum security required to prevent escape, provides multiple levels of confinement opportunities based on the compliance of the detainee, and provides medical care not available to a majority of the population of the world.” He goes on: “Furthermore, GTMO is the single greatest repository of human intelligence in the war on terror. This intelligence has prevented terrorist attacks and saved lives in the past and continues to do so today (see Summer 2000 and November 30, 2008). New intelligence is continually being collected from detainees at GTMO and is being used to fight terrorists in Iraq, Afghanistan and around the globe.” Since the US “will continue to capture, hold and detain enemy combatants,” he says, “we require a location to safely detain and care for these detainees.” (US Senate 2/5/2009) Fellow Republican Senator Richard Burr (R-NC), who joined Inhofe on the tour, agrees, saying that the Guantanamo facility is “well thought out and in keeping with our nation’s highest ideals.” Burr adds that it is the US guards, not the prisoners, who are being mistreated: “If anyone receives mistreatment at Guantanamo, it is the guard force. They must endure frequent verbal and physical attacks from detainees while maintaining the highest standard of care for those same individuals.” (US Senate 2/2/2009) Neither Inhofe nor Burr address the hunger strike among Guantanamo detainees, nor the allegations that prisoners are being force-fed and beaten (see February 8, 2009). Satyam Khanna of the left-leaning website Think Progress notes: “It is unclear how Inhofe and his conservative colleagues failed to see 50 detainees on hunger strike, some near death, while touring the prison. Conveniently, none of the senators alerted the public to these facts upon their return.” (Khanna 2/9/2009)

Binyam Mohamed.Binyam Mohamed. [Source: Independent]A lawyer for a Guantanamo detainee demands the release of her client because he is near death. Lieutenant Colonel Yvonne Bradley is in London to ask that her client, British resident Binyam Mohamed (see May-September, 2001), who is still in Guantanamo even though all charges against him have been dropped (see October-December 2008), be released. Through Bradley, Mohamed claims that he has been repeatedly tortured at the behest of US intelligence officials (see April 10-May, 2002, May 17 - July 21, 2002, July 21, 2002 -- January 2004, and January-September 2004). Bradley says that Mohamed is dying in his cell. Mohamed and some twenty other detainees are so unhealthy that they are on what Bradley calls a “critical list.”
Hunger Strike, Beatings - Fifty Guantanamo detainees, including Mohamed, are on a hunger strike, and are being strapped to chairs and force-fed; those who resist, witnesses say, are beaten. Mohamed has suffered drastic weight loss, and has told his lawyer that he is “very scared” of being attacked by guards after witnessing what The Guardian describes as “a savage beating for a detainee who refused to be strapped down and have a feeding tube forced into his mouth.” Bradley is horrified at Mohamed’s description of the state of affairs in the prison. She says: “At least 50 people are on hunger strike, with 20 on the critical list, according to Binyam. The JTF [the Joint Task Force running Guantanamo] are not commenting because they do not want the public to know what is going on. Binyam has witnessed people being forcibly extracted from their cell. SWAT teams in police gear come in and take the person out; if they resist, they are force-fed and then beaten. Binyam has seen this and has not witnessed this before. Guantanamo Bay is in the grip of a mass hunger strike and the numbers are growing; things are worsening. It is so bad that there are not enough chairs to strap them down and force-feed them for a two- or three-hour period to digest food through a feeding tube. Because there are not enough chairs the guards are having to force-feed them in shifts. After Binyam saw a nearby inmate being beaten it scared him and he decided he was not going to resist. He thought, ‘I don’t want to be beat, injured or killed.’ Given his health situation, one good blow could be fatal.… Binyam is continuing to lose weight and he is going to get worse. He has been told he is about to be released, but psychologically and physically he is declining.”
Demanding Documents to Prove Torture, Rendition - Bradley is also demanding documents that she says will prove her client was tortured, and may also prove British complicity in Mohamed’s treatment (see February 24, 2009). An American court in San Francisco is also slated to hear evidence that Mohamed was subjected to “extraordinary rendition” by the CIA, where Mohamed and other prisoners were sent to other countries that tortured them. That lawsuit was originally dismissed when the Bush administration asserted “state secrets privilege” (see March 9, 1953), but lawyers for Mohamed refiled the case hoping that the Obama administration would be less secretive.
US Intelligence Wants Mohamed Dead? - The Guardian also notes that “some sections of the US intelligence community would prefer Binyam did die inside Guantanamo.” The reason? “Silenced forever, only the sparse language of his diary would be left to recount his torture claims and interviewees with an MI5 officer, known only as Witness B. Such a scenario would also deny Mohamed the chance to personally sue the US, and possibly British authorities, over his treatment.” (Townsend and Harris 2/8/2009)

A Justice Department official says that the Obama administration will continue to assert the so-called “state secrets privilege” (see March 9, 1953) in a lawsuit filed by Guantanamo detainee Binyam Mohamed (see February 8, 2009). In the case Mohamed et al v Jeppesen Dataplan, Inc, Mohamed and four former detainees are suing a Boeing subsidiary, Jeppesen Dataplan, for cooperating with the CIA in subjecting them to “extraordinary rendition,” flying them to foreign countries and secret overseas CIA prisons where, they say, they were tortured. The case was thrown out a year ago, but the American Civil Liberties Union (ACLU) has appealed it. According to a source inside the Ninth US District Court, a Justice Department lawyer tells the presiding judge that its position has not changed, that the new administration stands behind arguments that the previous administration made, with no ambiguity at all. The lawyer says the entire subject matter remains a state secret. According to Justice Department spokesman Matt Miller, “It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases, consistent with the United States Supreme Court’s decision in Reynolds that the privilege not ‘be lightly invoked.’” Miller adds that Attorney General Eric Holder is conducting a review of all state secret privilege matters. “The Attorney General has directed that senior Justice Department officials review all assertions of the State Secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations,” Miller says. “It is vital that we protect information that, if released, could jeopardize national security. The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government’s actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations.” The ACLU’s Anthony Romero says that the Obama administration is doing little besides offering “more of the same.” He continues: “Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition, and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.” ACLU attorney Ben Wizner, who argued the case for Mohamed and the other plaintiffs, adds: “We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration’s practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government’s false claims of state secrets and allowing the victims of torture and rendition their day in court.” (Tapper and de Vogue 2/9/2009)

A newly released government threat analysis shows that slain trust-fund millionaire James G. Cummings, an American Nazi sympathizer from Maine who was killed by his wife Amber in December 2008, possessed the radioactive components necessary to build a so-called “dirty bomb.” Cummings, infuriated by the election of Barack Obama to the presidency, purchased depleted uranium over the Internet from an American company.
FBI Confiscates Radioactive Materials - The Bangor Daily News reports, “According to an FBI field intelligence report from the Washington Regional Threat and Analysis Center posted online by WikiLeaks, an organization that posts leaked documents, an investigation into the case revealed that radioactive materials were removed from Cummings’s home after his shooting death on December 9.” According to the Washington Regional Threat and Analysis Center: “Amber [Cummings] indicated James was very upset with Barack Obama being elected president. She indicated James had been in contact with ‘white supremacist group(s).’ Amber also indicated James mixed chemicals in the kitchen sink at their residence and had mentioned ‘dirty bombs.’” An FBI search of the Cummings home found four jars of depleted uranium-238 labeled “uranium metal” and the name of an unidentified US corporation, another jar labeled “thorium” and containing that material, and a second, unlabeled jar which also contained thorium-232. Other materials found in Cummings’s home were consistent with the manufacture of an explosive device, which if detonated could have spread radioactive debris throughout a relatively large local area. The FBI also found information on how to build “dirty bombs,” and information about cesium-137, strontium-90, cobalt-60, and other radioactive materials. FBI evidence shows Cummings had numerous ties to a variety of right-wing white supremacist groups. Cummings also owned a collection of Nazi memorabilia which, according to local tradesmen, he proudly displayed throughout his home. Police reports show that Cummings has a long history of violence. Amber Cummings contends she is innocent of her husband’s murder by reason of insanity, and claims she suffered years of mental, physical, and sexual abuse at his hands. The Department of Homeland Security has refused to comment on the incident. (Bangor Daily News 2/10/2009; Webster 3/9/2009) Local law enforcement officials downplay the threat Cummings posed, and the national media virtually ignores the story. (Gellman 9/30/2010)
Later Information Shows Depth of Threat Posed by Cummings - Additional information gleaned by Time reporter Barton Gellman from Cummings’s notes and records later shows that the threat posed by Cummings was even more serious than initially reported. Cummings had applied to join the National Socialist Party (the American Nazi organization), and had detailed plans on how to assassinate President-elect Obama. Gellman will call Cummings “a viciously angry and resourceful man who had procured most of the supplies for a crude radiological dispersal device and made some progress in sketching a workable design.” Gellman says that in his attempt to construct a nuclear weapon, Cummings “was far ahead of Jose Padilla, the accused al-Qaeda dirty-bomb plotter (see June 10, 2002), and more advanced in his efforts than any previously known domestic threat involving a dirty bomb.” The materials were later confirmed to be the radioactive materials they were labeled as being; Amber Cummings will say that her husband bought them under the pretense of conducting legal research for a university. Although the materials Cummings had would not, themselves, succeed in unleashing large amounts of radiation over a large area, he was actively searching for three ingredients that would serve such a purpose: cobalt-60, cesium-137, and strontium-90. He had succeeded in manufacturing large amounts of TATP, an explosive favored by Islamist suicide bombers and brought on board an aircraft by “shoe bomber” Richard Reid (see December 22, 2001). “His intentions were to construct a dirty bomb and take it to Washington to kill President Obama,” Amber Cummings says. “He was planning to hide it in the undercarriage of our motor home.” She says her husband had practiced crossing checkpoints with dangerous materials aboard, taking her and their daughter along for an image of innocence. Maine state police detective Michael McFadden, who participated in the investigation throughout, says he came to believe that James Cummings posed “a legitimate threat” of a major terrorist attack. “When you’re cooking thorium and uranium under your kitchen sink, when you have a couple million dollars sitting in the bank and you’re hell-bent on doing something, I think at that point you become someone we want to sit up and pay attention to,” he says. “If she didn’t do what she did, maybe we would know Mr. Cummings a lot better than we do right now.” (Gellman 9/30/2010)

Retired Major General Anthony Taguba, who headed an intensive military investigation into the abuses at Abu Ghraib prison (see March 9, 2004), is one of the most prominent supporters of the call to investigate the Bush administration’s interrogation, detention, and torture policies. Taguba joins 18 human rights organizations, former State Department officials, former law enforcement officers, and former military leaders in asking President Obama to create a non-partisan commission to investigate those abuses. Even though prosecuting former Bush officials might be difficult, Taguba says, a commission would provide some measure of accountability for the practices Taguba calls “misguided,” “illegal,” “despicable and questionable.” Taguba wants the commission to study the Bush administration’s claims that torture provides good intelligence, which he disputes. He particularly wants the commission to investigate administration officials’ claims that the administration’s policies were legal. Taguba says he supports “a structured commission with some form of authority with clear objectives and a follow-on action plan. I’m not looking for anything that is prosecutorial in nature, unless a suspected violation of relevant laws occurred, which should be referred to the Department of Justice.… In my opinion, our military prosecuted those who were involved in torture or unlawful interrogation. And I think our military has come to terms with that. We are an institution that prides itself on taking corrective action immediately, admitting to it, and holding ourselves accountable. And we have done that. But I am not so sure that our civilian authorities in government have done that for themselves.” Speaking about the Bush Justice Department’s findings that torture and indefinite detentions are legal (see Late September 2001, November 11-13, 2001, December 28, 2001, January 9, 2002, August 1, 2002, and August 1, 2002), Taguba says: “This notion that a lot of constitutional legal experts—lawyers with great intellect, well educated—came up with such despicable and questionable legal findings that were contrary to the definition of defending the Constitution? And then they framed this as if the executive branch had the authority to extend beyond the constitution to establish a policy of torture and illegal detention?… Some of those that were tortured were innocent. How do we come to terms with those that were cruelly mistreated and were innocent, never charged, were illegally detained, and never compensated for their suffering? This is not a political issue, but a moral and ethical dilemma which has far-reaching implications.” (Benjamin 2/21/2009)

Mohamed returning to London.Mohamed returning to London. [Source: Lewis Whyld / Associated Press]Binyam Mohamed (see May-September, 2001, February 8, 2009, and February 9, 2009) is released from Guantanamo, and returns to Great Britain. He is flown to Britain on a private chartered Gulfstream jet similar to those used by the CIA in “extraordinary renditions.” His sister, Zuhra Mohamed, meets him at the RAF Northolt airbase in west London, and tells reporters: “I am so glad and so happy, more than words can express. I am so thankful for everything that was done for Binyam to make this day come true.” His lawyers claim that he has suffered severe physical and psychological abuse, some of which was inflicted in recent days. He suffers from what his lawyers call a huge range of injuries. Doctors have found Mohamed suffering from extensive bruising, organ damage, stomach complaints, malnutrition, sores to feet and hands, and severe damage to ligaments. His weight has dropped from around 170 pounds to 125 pounds. His lawyers say he suffers from serious emotional and psychological problems, which have been exacerbated by the refusal of Guantanamo officials to provide him with counseling. Mohamed’s British lawyer, Clive Stafford Smith, says his client had been beaten “dozens” of times, with the most recent abuse occurring in the last few weeks (see September 2004 and After). “He has a list of physical ailments that cover two sheets of A4 paper,” says Stafford Smith. “What Binyam has been through should have been left behind in the middle ages.” Mohamed’s American military lawyer, Lieutenant Colonel Yvonne Bradley, adds: “He has been severely beaten. Sometimes I don’t like to think about it because my country is behind all this.” Britain’s former Attorney General, Lord Goldsmith, an advocate for the closure of Guantanamo, says that allegations of abuse against Mohamed, a British resident, should be raised by Foreign Secretary David Miliband with his American counterpart, Secretary of State Hillary Clinton. “If there are credible accounts of mistreatment then they need to be pursued,” Goldsmith says.
Care Provided upon Return - Upon his return to Britain, Mohamed will receive physical care and emotional counseling in a secure, secret location by a team of volunteer doctors and psychiatrists. He will be kept under a “voluntary security arrangement,” where he must report regularly to authorities, but will not be subject to charges or anti-terror control orders. The US dropped all charges against Mohamed last year, including allegations that he had participated in a “dirty bomb” plot. (Townsend 2/22/2009; Booth and Norton-Taylor 2/24/2009)
MI5 to Be Investigated? - At least one MI5 officer may face a criminal investigation over his alleged complicity in torturing Mohamed (see February 24, 2009). And Mohamed’s future testimony is expected to shed light upon MI5’s own participation in his interrogation and alleged torture; Mohamed may sue the British government and MI5, Britain’s counter-intelligence and security service, over its alleged complicity in his detention, abduction, treatment, and interrogation. If filed, Mohamed’s lawsuit could force US and British authorities to disclose vital evidence regarding Mohamed’s allegations of torture. (Townsend 2/22/2009)

Former Guantanamo detainee Binyam Mohamed (see May-September, 2001), a British citizen who suffered extensive abuse during his detention (see July 21, 2002 -- January 2004 and February 8, 2009) and is just now released (see February 22-24, 2009), says in a written statement that British officials from MI5 played an integral part in his abduction and torture at the hands of the CIA and Moroccan officials. Senior MPs say they intend to investigate his claims. Just after his arrival in London, Mohamed tells reporters: “For myself, the very worst moment came when I realized in Morocco that the people who were torturing me were receiving questions and materials from British intelligence.… I had met with British intelligence in Pakistan. I had been open with them. Yet the very people who I had hoped would come to my rescue, I later realized, had allied themselves with my abusers.” Days later, the Daily Mail will obtain documents from Mohamed’s American court proceedings that show MI5 agents twice gave CIA agents lists of questions they wanted to have asked, as well as dossiers of photographs. (Norton-Taylor 2/24/2009; Rose 3/8/2009)
Gives Primary Blame to CIA - Mohamed places the bulk of the blame on his rendition and torture on the CIA, and says, “It is still difficult for me to believe that I was abducted, hauled from one country to the next, and tortured in medieval ways—all orchestrated by the United States government.” (Johnson 2/24/2009)
'They Sold Me Out' - Mohamed will later say that he reached his “lowest ebb” when he realized British agents were involved in his interrogation and torture. “They started bringing British files to the interrogations,” he will recall, “not one, but several of them, thick binders, some of them containing sheaves of photos of people who lived in London and places there like mosques. It was obvious the British were feeding them questions about people in London. When I realized that the British were co-operating with the people who were torturing me, I felt completely naked.… They sold me out.” The documents indicate that MI5 did not know where Mohamed was being held, but that its agents knew he was in a third nation’s custody through the auspices of the CIA. MI5 agents met with their CIA counterparts in September 2002, well after Mohamed’s rendition to Morocco, to discuss the case. (Rose 3/8/2009)
False Confession - He suffered tortures in Pakistan (see April 10-May, 2002), Morocco, and Afghanistan (see January-September 2004), including being mutilated with scalpels, a mock execution, sleep deprivation for days, being fed contaminated food, and being beaten for hours while hanging by his wrists from shackles in the ceiling. He says that the closest he came to losing his mind entirely was when, in US custody in Afghanistan, he was locked in a cell and forced to listen to a CD of rap music played at ear-shattering volume 24 hours a day for a month. It was these tortures that drove him to confess to being part of a plot to build a radioactive “dirty bomb” (see November 4, 2005), a confession he now says was untrue and given merely to avoid further torment. He also confessed to meeting Osama bin Laden and getting a passport from 9/11 plotter Khalid Shaikh Mohammed: “None of it was true.” (Rose 3/8/2009)
'Zero Doubt' of British Complicity - His lawyer, Clive Stafford Smith, says Mohamed is being cared for under the auspices of his legal team, and is “incredibly skinny and very emaciated.” Stafford Smith says he has “zero doubt” Britain was complicit in his client’s ill-treatment. “Britain knew he was being abused and left him,” he says. Stafford Smith also says Mohamed was subjected to “very serious abuse” in Guantanamo. Mike Gapes, the chairman of the House of Commons Foreign Affairs Committee, says he intends to question Foreign Secretary David Miliband and Foreign Office Minister Lord Malloch Brown over “outstanding issues,” which include “rendition, what happened to people in Guantanamo Bay, and black sites,” a reference to prisons in Afghanistan and elsewhere. Two British judges say they are suppressing “powerful evidence” of Mohamed’s torture at the insistence of Miliband and US authorities (see February 4, 2009). (Norton-Taylor 2/24/2009) Miliband says Mohamed’s release was effected due to “intensive negotiations with the US government,” in which he played a key part. Edward Davey of the Liberal Democrats has little use for Miliband’s claims, saying, “It is telling that David Miliband is unable to give a straightforward yes or no as to whether British agents and officials have been complicit in torture,” and adds that “Mohamed’s case may just be the tip of the iceberg.” (Johnson 2/24/2009)
Evidence that MI5 Lied - The new revelations about MI5’s involvement contradict the testimony of MI5 officials, who in 2007 told Parliament’s Intelligence and Security Committee that the agency had no idea that Mohamed had been subjected to “extraordinary rendition” to Morocco or anywhere else. The Daily Mail will note, “The revelations will put Foreign Secretary David Miliband under even greater pressure to come clean about British involvement in the rendition and alleged torture of Muslim terror suspects.” (Rose 3/8/2009)

Attorney General Eric Holder confirms the Obama administration’s plans to close the Guantanamo Bay detention facility (see November 16, 2008 and January 22, 2009), but calls it a well-run, professional institution. Closing Guantanamo “will not be an easy process,” Holder says after visiting the site. “It’s one we will do in a way that ensures that people are treated fairly and that the American people are kept safe.” Holder leads the administration’s effort to close the facility within a year. Most of that time will be spent reviewing the case files and histories of the 245 inmates currently incarcerated there: “It’s going to take us a good portion of that time to look at all of the files that we have to examine, until we get our hands around what Guantanamo is, and also what Guantanamo was,” he says. Senator James Inhofe (R-OK), an outspoken advocate of keeping Guantanamo open (see February 5, 2009), says he is encouraged by Holder’s remarks. “I believe as more time goes by there is a chance the administration will grow to realize that we need Gitmo and must keep it open,” he says. “More time will allow facts to replace political rhetoric.” Inhofe is promoting legislation that will bar any Guantanamo detainees from coming to the US. (Barrett 2/25/2009)

A federal appeals court rejects the Obama administration’s assertion that a potential threat to national security should stop a lawsuit challenging the government’s warrantless wiretapping program. The Justice Department had requested an emergency stay in a case brought by a defunct Islamic charity, the Al Haramain Islamic Foundation (see February 28, 2006). Al Haramain has asked that classified information be made available to the court to prove its case that the electronic surveillance brought to bear against it by the government was illegal; Justice Department lawyers contend that the information needs to remain classified and unavailable to the court, and cite the “state secrets” privilege (see March 9, 1953) as legal justification. Although the court rejects the request for the stay, Justice Department lawyers say they will continue fighting to keep the information secret. “The government respectfully requests that the court refrain from further actions to provide plaintiffs with access to classified information,” says a filing made by the Justice Department in regards to the ruling. A lawyer for Al Haramain, Steven Goldberg, says: “All we wanted was our day in court and it looks like we’re finally going to get our day in court. This case is all about challenging an assertion of power by the executive branch which is extraordinary.” The American Civil Liberties Union’s Ann Brick says the court has now crafted a way to review the issue in which “national security isn’t put at risk, but the rule of law can still be observed.” (Barrett 2/27/2009) Days later, the Justice Department will file a brief announcing its intention to refuse to honor the appeals court’s decision (see March 2, 2009).

Some of the Justice Department memos released today.Some of the Justice Department memos released today. [Source: Los Angeles Times]The Department of Justice releases nine memos written after the 9/11 attacks that claimed sweeping, extraconstitutional powers for then-President Bush. The memos, written primarily by John Yoo of the Office of Legal Counsel (OLC), claim that Bush could, if he desired, order military raids against targets within the US, and order police or military raids without court warrants (see October 23, 2001). The only justification required would be that Bush had declared the targets of such raids to be suspected terrorists. Other powers the president had, according to the memos, were to unilaterally abrogate or abandon treaties with foreign countries, ignore Congressional legislation regarding suspected terrorists in US detention (see March 13, 2002), suspend First Amendment rights to freedom of speech and information dissemination (see October 23, 2001), and conduct a program of warrantless domestic surveillance (see September 25, 2001). In January, an opinion issued by the OLC claimed that the opinions of the earlier memos had not been acted upon since 2003, and were generally considered unreliable (see January 15, 2009). Attorney General Eric Holder, who signed off on the release of the memos, says: “Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties. Not only is that thought misguided, I fear that in actuality it does more harm than good.” (American Civil Liberties Union [PDF] 1/28/2009 pdf file; US Department of Justice 3/2/2009; US Department of Justice 3/2/2009; Lewis 3/2/2009)
Memos Laid Groundwork for Warrantless Wiretapping - Though many of the powers said to belong to the president in the memos were never exercised, the assertions led to the warrantless wiretapping of US citizens (see December 15, 2005 and Spring 2004) and the torture of detained terror suspects. (Isikoff 3/2/2009)
'How To ... Evade Rule of Law' - Senate Judiciary Committee Chairman Patrick Leahy (D-VT) says the memos begin “to provide details of some of the Bush administration’s misguided national security policies” that have long been withheld from public scrutiny. Jennifer Daskal of Human Rights Watch says the memos collectively “read like a how-to document on how to evade the rule of law.” (Smith and Eggen 3/3/2009) Kate Martin of the Center for National Security Studies says that the memos were part of a larger effort “that would basically have allowed for the imposition of martial law.” (Isikoff 3/2/2009)
'Tip of Iceberg' - The memos are, according to a former Bush administration lawyer, “just the tip of the iceberg” in terms of what the Bush administration authorized. Jameel Jaffer of the American Civil Liberties Union (ACLU) says the Bush administration memos “essentially argue that the president has a blank check to disregard the Constitution during wartime, not only on foreign battlefields, but also inside the United States.” (Meyer and Barnes 3/3/2009) The ACLU, which has sued to obtain these and other memos, applauds the release of the documents, and says it hopes this is the first step in a broader release. (Mikkelson 3/2/2009)

Columnist and international law expert Scott Horton writes of his horror and shock at the nine just-released Bush administration memos from the Justice Department designed to grant President Bush extraordinary executive authority (see March 2, 2009).
'Disappearing Ink' - Horton writes: “Perhaps the most astonishing of these memos was one crafted by University of California at Berkeley law professor John Yoo. He concluded that in wartime, the president was freed from the constraints of the Bill of Rights with respect to anything he chose to label as […] counterterrorism operations inside the United States” (see October 23, 2001, and October 23, 2001). Horton continues: “John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the president as commander in chief. The rest of the Constitution was apparently printed in disappearing ink.”
Timing of Repudiation Proves Bush Officials Found Claims Useful - Horton has no patience with the claims of former Office of Legal Counsel chief Steven Bradbury that the extraordinary powers Yoo attempted to grant Bush were not used very often (see January 15, 2009). “I don’t believe that for a second,” Horton notes, and notes Bradbury’s timing in repudiating the Yoo memos: five days before Bush left office. “Bradbury’s decision to wait to the very end before repealing it suggests that someone in the Bush hierarchy was keen on having it,” Horton asserts.
Serving Multiple Purposes - The memos “clear[ly]” served numerous different purposes, Horton notes. They authorized, or provided legal justification for, the massive domestic surveillance programs launched by military agencies such as the Defense Intelligence Agency and the National Security Agency (see September 25, 2001). But the memos went much farther, Horton says: “[T]he language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.” They also gave Bush the apparent legal grounds to order the torture of people held at secret overseas sites (see March 13, 2002), and to hold accused terrorist Jose Padilla without charge or due process, even though the administration had no evidence whatsoever of the crimes he had been alleged to commit (see June 8, 2002).
American Dictatorship - Horton’s conclusion is stark. “We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship,” he writes. “The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.” (Horton 3/3/2009)

Legal experts and civil libertarians are “stunned” by the recently released memos from the Bush-era Justice Department which assert sweeping powers for the president not granted by the Constitution (see March 2, 2009 and March 3, 2009). Yale law professor Jack Balkin calls the memos a demonstration of the Bush “theory of presidential dictatorship.” Balkin continues: “They say the battlefield is everywhere. And the president can do anything he wants, so long as it involves the military and the enemy.… These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush administration in the days following 9/11.” George Washington University law professor Orin Kerr agrees. “I agree with the left on this one,” he says. The approach in the memos “was simply not a plausible reading of the case law. The Bush [Office of Legal Counsel, or OLC] eventually rejected [the] memos because they were wrong on the law—and they were right to do so” (see January 15, 2009). Balkin says the time period of most of the memos—the weeks and months following the 9/11 attacks—merely provided a convenient excuse for the administration’s subversion of the Constitution. “This was a period of panic, and panic creates an opportunity for patriotic politicians to abuse their power,” he says. (Jack Balkin 3/3/2009; Savage 3/4/2009) Civil litigator and columnist Glenn Greenwald writes that the memos helped provide the foundation for what he calls “the regime of secret laws under which we were ruled for the last eight years… the grotesque blueprint for what the US government became.” (Greenwald 3/3/2009) Duke University law professor Walter Dellinger says that, contrary to the memos’ assertion of blanket presidential powers in wartime, Congress has considerable powers during such a time. Congress has, according to the Constitution, “all legislative powers,” including the power “to declare war… and make rules concerning captures on land and water” as well as “regulation of the land and naval forces.” Dellinger, who headed the OLC during the Clinton administration, continues: “You can never get over how bad these opinions were. The assertion that Congress has no role to play with respect to the detention of prisoners was contrary to the Constitution’s text, to judicial precedent, and to historical practice. For people who supposedly follow the text [of the Constitution], what don’t they understand about the phrase ‘make rules concerning captures on land and water’?” (Savage 3/4/2009)

Court documents filed by the government show that the CIA destroyed 12 videotapes specifically depicting two detainees being tortured by interrogators. Though the CIA has previously admitted to destroying 92 videotapes (see March 2, 2009), this is the first time it has admitted that some of the tapes showed detainees being tortured. The agency does not use the word “torture,” but instead uses the phrase “enhanced interrogation techniques.” According to the heavily redacted classified document: “There are 92 videotapes, 12 of which include EIT [enhanced interrogation techniques] applications. An OGC [Office of General Counsel] attorney reviewed the videotapes” and the CIA’s “OIG [Office of Inspector General} reviewed the videotapes in May 2003.” The document, along with others, are filed pursuant to a Freedom of Information Act lawsuit begun by the American Civil Liberties Union (ACLU). The ACLU has asked that the CIA be found in contempt for destroying the videotapes, a motion that is still pending. The videotapes were destroyed to prevent disclosure of evidence showing that CIA interrogators actively tortured detainees, using waterboarding and other methods. The destruction is under investigation by acting US Attorney John Durham (see January 2, 2008). The two detainees depicted in the videotapes are Abu Zubaida and Abd al-Rahim al-Nashiri, both of whom were waterboarded by the CIA (see March 2002, April - June 2002, and (November 2002)). The document describing the destroyed videotapes says “interrogators administered the waterboard to Al-Nashiri.” The videotapes are believed to have been made at the CIA’s secret detention center in Thailand. The CIA has promised to release more information about the videotapes by March 20. However, according to acting US Attorney Lev Dassin, “to date, the CIA is not aware of any transcripts of the destroyed videotapes.” An unredacted version of the inventory of the destroyed videotapes will only be made available for the ACLU to view behind closed doors in court: “This inventory identifies the tapes and includes any descriptions that were written on the spine of the tapes.” Much of the information sought by the ACLU will remain classified, Dassin says. ACLU attorney Amrit Singh says the “government is needlessly withholding information about these tapes from the public, despite the fact that the CIA’s use of torture—including waterboarding—is no secret. This new information only underscores the need for full and immediate disclosure of the CIA’s illegal interrogation methods. The time has come for the CIA to be held accountable for flouting the rule of law.” Author and reporter Jane Mayer believes the tapes were destroyed at least in part because Democratic members of Congress briefed on the tapes began inquiring whether the interrogations of Zubaida and al-Nashiri were legal. (Leopold 3/6/2009)

Conservative pundit Ann Coulter tells a New York Times reporter that the editorial staff of the Times—which she brands the “Treason Times”—should have been executed for treason for revealing the Bush administration’s warrantless wiretapping program (see December 15, 2005). Coulter responded to a set of questions e-mailed to her regarding her upcoming debates with political satirist Bill Maher. Asked if she believes she speaks for the conservative movement, for her own fan base, or someone else, she answers, “I think I speak for all Americans who think newspaper editors who print the details of top secret anti-terrorist intelligence gathering programs on page one in wartime should be executed for treason.” (Itzkoff 3/9/2009)

The New York Review of Books publishes a lengthy article documenting the Red Cross’s hitherto-secret report on US torture practices at several so-called “black sites.” The International Committee of the Red Cross (ICRC) issued a report on “The Black Sites” in February 2007 (see October 6 - December 14, 2006), but that report has remained secret until now. These “black sites” are secret prisons in Thailand, Poland, Afghanistan, Morocco, Romania, and at least three other countries (see October 2001-2004), either maintained directly by the CIA or used by them with the permission and participation of the host countries.
Specific Allegations of Torture by Official Body Supervising Geneva - The report documents the practices used by American guards and interrogators against prisoners, many of which directly qualify as torture under the Geneva Conventions and a number of international laws and statutes. The ICRC is the appointed legal guardian of Geneva, and the official body appointed to supervise the treatment of prisoners of war; therefore, its findings have the force of international law. The practices documented by the ICRC include sleep deprivation, lengthy enforced nudity, subjecting detainees to extensive, intense bombardment of noise and light, repeated immersion in frigid water, prolonged standing and various stress positions—sometimes for days on end—physical beatings, and waterboarding, which the ICRC authors call “suffocation by water.” The ICRC writes that “in many cases, the ill-treatment to which they [the detainees] were subjected while held in the CIA program… constituted torture.” It continues, “In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman, and degrading treatment.” Both torture and “cruel, inhuman, and degrading treatment” are specifically forbidden by Geneva and the Convention Against Torture, both of which were signed by the US (see October 21, 1994). The 14 “high-value detainees” whose cases are documented in the ICRC report include Abu Zubaida (see March 28, 2002), Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003), and Tawfiq bin Attash (see March 28, 2002-Mid-2004). All 14 remain imprisoned in Guantanamo. (Hederman 3/15/2009 pdf file; Danner 3/15/2009) Based on the ICRC report and his own research, Danner draws a number of conclusions.
bullet The US government began to torture prisoners in the spring of 2002, with the approval of President Bush and the monitoring of top Bush officials, including Attorney General John Ashcroft. The torture, Danner writes, “clearly violated major treaty obligations of the United States, including the Geneva Conventions and the Convention Against Torture, as well as US law.”
bullet Bush, Ashcroft, and other top government officials “repeatedly and explicitly lied about this, both in reports to international institutions and directly to the public. The president lied about it in news conferences, interviews, and, most explicitly, in speeches expressly intended to set out the administration’s policy on interrogation before the people who had elected him.”
bullet Congress was privy to a large amount of information about the torture conducted under the aegis of the Bush administration. Its response was to pass the Military Commissions Act (MCA—see October 17, 2006), which in part was designed to protect government officials from criminal prosecutions under the War Crimes Act.
bullet While Congressional Republicans were primarily responsible for the MCA, Senate Democrats did not try to stop the bill—indeed, many voted for it. Danner blames the failure on its proximity to the November 2006 midterm elections and the Democrats’ fear of being portrayed as “coddlers of terrorists.” He quotes freshman Senator Barack Obama (D-IL): “Soon, we will adjourn for the fall, and the campaigning will begin in earnest. And there will be 30-second attack ads and negative mail pieces, and we will be criticized as caring more about the rights of terrorists than the protection of Americans. And I know that the vote before us was specifically designed and timed to add more fuel to that fire.” (Obama voted against the MCA, and, when it passed, he said, “[P]olitics won today.”)
bullet The damage done to the US’s reputation, and to what Danner calls “the ‘soft power’ of its constitutional and democratic ideals,” has been “though difficult to quantify, vast and enduring.” Perhaps the largest defeat suffered in the US’s “war on terror,” he writes, has been self-inflicted, by the inestimable loss of credibility in the Muslim world and around the globe. The decision to use torture “undermin[ed] liberal sympathizers of the United States and convinc[ed] others that the country is exactly as its enemies paint it: a ruthless imperial power determined to suppress and abuse Muslims. By choosing to torture, we freely chose to become the caricature they made of us.”
A Need for Investigation and Prosecution - Danner is guardedly optimistic that, under Democratic leadership in the White House and Congress, the US government’s embrace of torture has stopped, and almost as importantly, the authorization and practice of torture under the Bush administration will be investigated, and those responsible will be prosecuted for crimes against humanity. But, he notes, “[i]f there is a need for prosecution there is also a vital need for education. Only a credible investigation into what was done and what information was gained can begin to alter the political calculus around torture by replacing the public’s attachment to the ticking bomb with an understanding of what torture is and what is gained, and lost, when the United States reverts to it.” (Danner 3/15/2009)

Lawrence Wilkerson, who served as former Secretary of State Colin Powell’s chief of staff and now chairs the New America Foundation/US-Cuba 21st Century Policy Initiative, writes an op-ed titled “Some Truths about Guantanamo Bay” for the Washington Note. Wilkerson explains why he believes so many people were captured and so many of those were tortured, for so little gain, and in the process covers several other issues regarding the Bush administration.
Handling of Terror Suspects - Wilkerson writes that the entire process of capturing, detaining, and processing suspected Islamist militants was marked by incompetence and a casual, improvisational approach. Most of the “suspects” captured during the first weeks and months of the Afghanistan invasion (see October 7, 2001) were merely picked up in sweeps, or bought from corrupt regional warlords, and transported wholesale to a variety of US bases and military camps, and then sent to Guantanamo, mostly in response to then-Defense Secretary Rumsfeld’s exhortation to “just get the b_stards to the interrogators.” Wilkerson blames the civilian leadership, for failing to provide the necessary information and guidance to make sensible, informed decisions about who should and should not have been considered either terror suspects or potential sources of information. When detainees were found not to have had any ties to Islamist radical groups, nor had any real intelligence value, they were kept at Guantanamo instead of being released. Wilkerson writes that “to have admitted this reality would have been a black mark on their leadership from virtually day one of the so-called Global War on Terror and these leaders already had black marks enough.… They were not about to admit to their further errors at Guantanamo Bay. Better to claim that everyone there was a hardcore terrorist, was of enduring intelligence value, and would return to jihad if released.” He writes that State Department attempts to rectify the situation “from almost day one” experienced almost no success.
Data Mining Called for Large Numbers of Detainees - Wilkerson notes what he calls “ad hoc intelligence philosophy that was developed to justify keeping many of these people,” a data mining concept called in the White House “the mosaic philosophy.” He explains: “Simply stated, this philosophy held that it did not matter if a detainee were innocent. Indeed, because he lived in Afghanistan and was captured on or near the battle area, he must know something of importance (this general philosophy, in an even cruder form, prevailed in Iraq as well, helping to produce the nightmare at Abu Ghraib). All that was necessary was to extract everything possible from him and others like him, assemble it all in a computer program, and then look for cross-connections and serendipitous incidentals—in short, to have sufficient information about a village, a region, or a group of individuals, that dots could be connected and terrorists or their plots could be identified. Thus, as many people as possible had to be kept in detention for as long as possible to allow this philosophy of intelligence gathering to work. The detainees’ innocence was inconsequential. After all, they were ignorant peasants for the most part and mostly Muslim to boot.” Unfortunately for this data mining effort, the gathering, cataloging, and maintenance of such information was carried out with what he calls “sheer incompetence,” rendering the information structure virtually useless either for intelligence or in prosecuting terror suspects.
No Information of Value Gained from Guantanamo Detainees - And, Wilkerson adds, he is not aware of any information gathered from Guantanamo detainees that made any real contribution to the US’s efforts to combat terrorism: “This is perhaps the most astounding truth of all, carefully masked by men such as Donald Rumsfeld and Richard Cheney in their loud rhetoric—continuing even now in the case of Cheney—about future attacks thwarted, resurgent terrorists, the indisputable need for torture and harsh interrogation, and for secret prisons and places such as Gitmo.”
Hindrance to Prosecution - This incompetence in gathering and storing information had a powerful impact on the ability of the US to prosecute the two dozen or so detainees who actually might be what Wilkerson calls “hardcore terrorists.” For these and the other detainees, he writes, “there was virtually no chain of custody, no disciplined handling of evidence, and no attention to the details that almost any court system would demand” (see January 20, 2009).
Shutting Down Guantanamo - Wilkerson writes that the Guantanamo detention facility could be shut down much sooner than President Obama’s promised year (see January 22, 2009), and notes he believes a plan for shutting down the facility must have existed “[a]s early as 2004 and certainly in 2005.”
War on Terror Almost Entirely Political - Wilkerson charges that the Bush administration’s driving rationale behind the “never-ending war on terror” was political: “For political purposes, they knew it certainly had no end within their allotted four to eight years,” he writes in an op-ed about the US’s detention policies. “Moreover, its not having an end, properly exploited, would help ensure their eight rather than four years in office.”
Cheney's Criticisms of Obama 'Twisted ... Fear-Mongering' - Wilkerson excoriates former Vice President Dick Cheney for his recent statements regarding President Obama and the “war on terror” (see February 4, 2009). Instead of helping the US in its fight against al-Qaeda and Islamic terrorism, Wilkerson writes, Cheney is making that fight all the more difficult (see February 5, 2009). “Al-Qaeda has been hurt, badly, largely by our military actions in Afghanistan and our careful and devastating moves to stymie its financial support networks. But al-Qaeda will be back. Iraq, Gitmo, Abu Ghraib, heavily-biased US support for Israel, and a host of other strategic errors have insured al-Qaeda’s resilience, staying power, and motivation. How we deal with the future attacks of this organization and its cohorts could well seal our fate, for good or bad. Osama bin Laden and his brain trust, Ayman al-Zawahiri, are counting on us to produce the bad. With people such as Cheney assisting them, they are far more likely to succeed.” (Wilkerson 3/17/2009)

President Obama disagrees with recent statements from former Vice President Dick Cheney that his administration’s policies are endangering America (see February 4, 2009 and March 15, 2009). “I fundamentally disagree with Dick Cheney—not surprisingly,” Obama tells CBS reporter Steve Kroft. “I think that Vice President Cheney has been at the head of a movement whose notion is somehow that we can’t reconcile our core values, our Constitution, our belief that we don’t torture, with our national security interests. I think he’s drawing the wrong lesson from history. (CNN 3/22/2009; CBS News 3/22/2009) The facts don’t bear him out.” Cheney “is eager to defend a legacy that was unsustainable,” Obama says, and notes that Cheney’s politics reflect a mindset that “has done incredible damage to our image and position in the world.” (Edwards and Webster 3/22/2009; CBS News 3/22/2009) In response to Cheney’s advocacy of extreme interrogation methods—torture—of suspected terrorists, Obama asks: “How many terrorists have actually been brought to justice under the philosophy that is being promoted by Vice President Cheney? It hasn’t made us safer. What it has been is a great advertisement for anti-American sentiment.” (Martin 3/21/2009; CBS News 3/22/2009) “The whole premise of Guantanamo promoted by Vice President Cheney was that, somehow, the American system of justice was not up to the task of dealing with these terrorists,” Obama continues. “This is the legacy that’s been left behind and, you know, I’m surprised that the vice president is eager to defend a legacy that was unsustainable. Let’s assume that we didn’t change these practices. How long are we going to go? Are we going to just keep on going until, you know, the entire Muslim world and Arab world despises us? Do we think that’s really going to make us safer? I don’t know a lot of thoughtful thinkers, liberal or conservative, who think that was the right approach.” (Edwards and Webster 3/22/2009; CBS News 3/22/2009)

US CENTCOM commander General David Petraeus disagrees with assertions by former Vice President Cheney that President Obama is endangering the country (see February 4, 2009 and March 15, 2009). Petraeus, whom Cheney has called “extremely capable,” says when asked about Cheney’s comments: “Well, I wouldn’t necessarily agree with that. I think in fact that there is a good debate going on about the importance of values in all that we do. I think that if one violates the values that we hold so dear, that we jeopardize.… We think for the military, in particular that camp, that’s a line [torture] that can’t be crossed. It is hugely significant to us to live the values that we hold so dear and that we have fought so hard to protect over the years.” (Khanna 3/29/2009)

The CIA says it intends to close down the network of secret overseas prisons it used to torture suspected terrorists during the Bush administration. CIA Director Leon Panetta says that agency officers who worked in the program “should not be investigated, let alone punished” because the Justice Department under President Bush had declared their actions legal. Justice Department memos (see April 16, 2009) and investigations by the International Committee of the Red Cross (see October 6 - December 14, 2006) have shown that torture was used on several prisoners in these so-called “black sites.” Panetta says the secret detention facilities have not been used since 2006, but are still costing taxpayers money to keep open. Terminating security contracts at the sites would save “at least $4 million,” he says. The CIA has never revealed the location of the sites, but independent investigations and news reports place at least some of them in Afghanistan, Thailand, Poland, Romania, and Jordan. Agency officials have claimed that fewer than 100 prisoners were ever held in the sites, and around 30 of them were tortured. The last 14 prisoners were transferred to Guantanamo in 2006 (see September 2-3, 2006), but then-President Bush ordered the sites to remain open for future use. Since then, two suspected al-Qaeda operatives are known to have been kept in the sites. Panetta also says that the CIA will no longer use private contractors to conduct interrogations. (Shane 4/10/2009)

One of Hayden’s Twitter posts.One of Hayden’s Twitter posts. [Source: Twitteradar (.com)]Daniel Knight Hayden, an Oklahoma man who has declared himself affiliated with local tea party organizations and the “Oath Keeper” movement (see March 9, 2009 and March 2010), is arrested by FBI agents after posting a series of messages on Twitter threatening to unleash a violent attack on Oklahoma state government officials on April 15, “Tax Day.” On April 13, under the moniker “CitizenQuasar,” Hayden began posting a blizzard of “tweets” about his intention to be on the Oklahoma State Capitol steps on the 15th, at first as part of a peaceful tea party event, then escalating into harsher rhetoric, and eventually threats of violence. On April 14, he wrote: “Tea Parties: And Poot Gingrich wants to stand in the limelight. He is a NWO operative,” referring to former Republican House Speaker and tea party favorite Newt Gingrich, and accusing him of being an “operative” for the “New World Order” (see September 11, 1990). Towards midnight of April 14, Hayden begins the following series of posts: “Maybe it’s time to die. Let’s see if I can video record the Highway Patrol at the entrance to the Oklahoma State Capitol.” “While trying to inform them of Oath Keepers” (and links to the Oath Keepers blog). “And post it on the internet. Since i live on this sorry f_cking state,that is as good a place as ANY to die and start a WAR. WEshallsee.” “I WISH I had someone to watch my back with MY camera.” “AND, no matter WHAT happens, to post it on the internet IMMEDIATELY, AND send it to Alex Jones!!!!!!!!!!!!” (referring to radio talk show host Alex Jones). “Damnit!” “Alas… WE SHALL see the TRUTH about this sorry f_cking state!!!!!!!” After a few more posts, Dyer begins posting direct threats of violence (later removed from the Twitter account, but presented in the FBI affidavit). “The WAR wWIL start on the stepes of the Oklahoma State Capitol. I will cast the first stone. In the meantime, I await the police.” “START THE KILLING NOW! I am wiling to be the FIRST DEATH! I Await the police. They will kill me in my home.” “After I am killed on the Capitol Steps like REAL man, the rest of you will REMEMBER ME!!!” “I really don’ give a sh_t anymore. Send the cops around. I will cut their heads off the heads and throw the on the State Capitol steps.” Hayden is taken into custody before he can go to the Capitol building, and arrested for transmitting threats to kill or injure people using interstate communication tools over the Internet. FBI agent Michael Puskas confirms that Dyer posted under the moniker “CitizenQuasar,” and says Dyer also has MySpace and Blogger accounts under similar monikers. Wired magazine says it “appears to be [the] first criminal prosecution to stem from posts on the microblogging site,” and calls Dyer’s MySpace page “a breathtaking gallery of right-wing memes about the ‘New World Order,’ gun control as Nazi fascism, and Barack Obama’s covert use of television hypnosis, among many others.” Dyer will be arraigned on April 16 and ordered released to a halfway house, a move the Associated Press reports as suggesting “the magistrate judge does not consider him a genuine threat.” (Wired News 4/24/2009; Associated Press 4/26/2009) Posters on the conservative blog Free Republic, commenting on Hayden’s arrest, label him a “leftist” who intended to kill tea party protesters, a contention they say is proven by Hayden’s vows to seek revenge for the government’s execution of Oklahoma City bomber Timothy McVeigh (see 8:35 a.m. - 9:02 a.m. April 19, 1995). One poster writes: “Hayden appears to be one of those mixtures of far out ideologies. On one hand he seems to support nazism but accused Obama of using mind control.” (Free Republic 4/24/2009)

ProPublica reporter Dafna Linzer discovers that one of the CIA torture memos released on this day by the Obama administration (see April 16, 2009) inadvertently identifies one of the so-called CIA “ghost detainees” being held in an agency “black site.” The May 30, 2005 memo from the Justice Department’s Office of Legal Counsel (see May 30, 2005) was redacted before its release, but it identifies one detainee as “Gul.” This apparently refers to Hassan Ghul, arrested in northern Iraq in early 2004 (see January 23, 2004). At the time of his capture, President Bush stated: “Just last week we made further progress in making America more secure when a fellow named Hassan Ghul was captured in Iraq. Hassan Ghul reported directly to Khalid Shaikh Mohammed, who was the mastermind of the September 11 attacks. He was captured in Iraq, where he was helping al-Qaeda to put pressure on our troops.” US officials, including then-CIA Director George Tenet, described Ghul as an al-Qaeda facilitator who delivered money and messages to top leaders. Those were the last references any US official made to him, except a brief reference in the 9/11 Commission report, which noted that Ghul was in “US custody.” The CIA has never acknowledged holding Ghul. In late 2006, human rights groups were surprised when Ghul was not one of a group of 14 “high-value” detainees sent from secret CIA prisons to Guantanamo (see September 2-3, 2006). Since then, Ghul has been considered a missing, or “ghost” detainee (see June 7, 2007). The May 30 memo notes that he was one of 28 CIA detainees who were subjected to “enhanced interrogation techniques.” It says that he was subjected to the following interrogation methods: “facial hold,” “facial slap,” “stress positions,” “sleep deprivation,” “walling,” and the “attention grasp.” There is no mention in the unredacted portions of the memo as to when or where Ghul was in CIA custody, or where he is today. (Linzer 4/16/2009) Apparently, the CIA transferred Ghul to Pakistani custody in 2006 so he would not have to join other prisoners sent to the Guantantamo prison (see (Mid-2006)), and Pakistan released him in 2007, allowing him to rejoin al-Qaeda (see (Mid-2007)).

Congressional Quarterly reporter Jeff Stein publishes an article alleging that House Democrat Jane Harman (D-CA) was captured on an NSA wiretap telling a suspected Israeli agent that she would lobby the Justice Department to reduce espionage charges against two officials of the American Israel Public Affairs Committee (AIPAC—see October 2005). The offer was allegedly made in return for AIPAC’s help in Harman’s attempt to gain the chairmanship of the House Intelligence Committee (see Summer 2005). Stein’s sources say the wiretap was approved by a federal court as part of an FBI investigation into illegal Israeli covert actions in Washington. Stein also reports on accusations that the FBI investigation into Harman’s activities was halted by then-Attorney General Alberto Gonzales in return for Harman’s support for the Bush administration’s warrantless wiretapping program (see Late 2005). In a statement, Harman says the allegations are false. “These claims are an outrageous and recycled canard, and have no basis in fact,” she says through a spokesman. “I never engaged in any such activity. Those who are peddling these false accusations should be ashamed of themselves.” (Stein 4/19/2009) Harman’s chief of staff, John Hess, later tells reporters that Stein’s story “recycles three-year-old discredited reporting of largely unsourced material to manufacture a ‘scoop’ out of widely known and unremarkable facts—that Congresswoman Jane Harman is and has long been a supporter of AIPAC, and that some members of AIPAC regarded her as well qualified to chair the House Intelligence Committee following the 2006 elections.” Hess adds, “If there is anything about this story that should arouse concern, it is that the Bush administration may have been engaged in electronic surveillance of members of the Congressional intelligence committees.” (Newmyer 4/21/2009)
Explanation of Harman's Failure to Ascend - According to Stein, “[s]uch accounts go a long way toward explaining not only why Harman was denied the gavel of the House Intelligence Committee (see December 2, 2006), but failed to land a top job at the CIA or Homeland Security Department in the Obama administration.” (Stein 4/19/2009)
Bipartisan Corruption - Both Congressional Democrats and their Republican colleagues are remarkably silent on the charges, which, if true, would taint both a high-ranking Congressional Democrat and a former Republican attorney general. “The whole thing smells, and nobody’s hands are clean,” says an aide to a senior Democratic lawmaker. Conservative scholar Norman Ornstein of the American Enterprise Institute says, “I don’t think anybody wants to touch it.” Ornstein, who says he knows Harman “very well,” calls the charges a “big embarrassment,” but notes that he would be “very surprised” if the charges proved to be true. The political watchdog group Citizens for Responsibility and Ethics in Washington (CREW) is calling for an investigation. CREW executive director Melanie Sloan says, “If Rep. Harman agreed to try to influence an ongoing criminal investigation in return for help securing a committee chairmanship, her conduct not only violates federal law and House rules, but also her oath to uphold the Constitution.” (Newmyer 4/21/2009)

Brian Kilmeade.Brian Kilmeade. [Source: Chattahbox (.com)]Brian Kilmeade, a co-host of Fox News’s morning broadcast Fox and Friends, says he “feel[s] better” knowing that alleged 9/11 mastermind Khalid Shaikh Mohammed was waterboarded 183 times in a single month (see April 16, 2009 and April 18, 2009). “Guess what?” Kilmeade says. “Maybe if he were so scared of caterpillars [referring to militant training camp facilitator Abu Zubaida’s torture by insects—see August 1, 2002]… maybe he should have thought about that before he helped plot the taking down of 3,000-plus people on 9/11.” (Kilmeade is either unaware of, or ignoring, reports that show Zubaida may not have been a member of al-Qaeda and had no involvement in the 9/11 planning—see March 28, 2002, Shortly After March 28, 2002, and April 9, 2002 and After.) Kilmeade continues: “Khalid Shaikh Mohammed, I understand, was waterboarded 183 times. Did anyone care about that? Does anyone in America walk around going, ‘I’m really upset that the mastermind of 9/11 was waterboarded 183 times.’ That makes me feel better.… It’s unbelievable that people care more about Khalid Shaikh Mohammed, uh, his health, than they would about the future attacks that are being hatched.” (Media Matters 4/20/2009)

The Senate Armed Services Committee releases a report showing that CIA and Pentagon officials explored ways to “break” Taliban and al-Qaeda detainees in early 2002, eight months before the Justice Department issued its “golden shield” memo (see August 1, 2002) approving the use of waterboarding and nine other methods of interrogation that most legal observers believe amount to torture. The report, under Pentagon review since before its release, focuses solely on military interrogations, and not on interrogations carried out by CIA officers and contractors; it rejects claims by former Defense Secretary Donald Rumsfeld and other Bush administration officials that Pentagon policies played no role in the torture of prisoners in US custody. Committee chairman Carl Levin (D-MI) says the report shows a direct link between early Bush administration policy decisions and the torture and abuse of detainees. “Senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques,” Levin says. “Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses. The paper trail on abuse leads to top civilian leaders, and our report connects the dots. This report, in great detail, shows a paper trail going from that authorization” by Rumsfeld “to Guantanamo to Afghanistan and to Iraq.” (Senate Armed Services Committee 11/20/2008 pdf file; Knowlton 4/21/2009; Agence France-Presse 4/21/2009; Warrick and Finn 4/22/2009)
Torture Policies Driven from Top - One of the report’s findings is that top Bush administration officials, and not a “few bad apples” as many of that administration’s officials have claimed, are responsible for the use of torture against detainees in Guantanamo, Afghanistan, Iraq, and elsewhere. Levin says in a statement that the report proves that such claims “were simply false.” He adds that the report is “a condemnation of both the Bush administration’s interrogation policies and of senior administration officials who attempted to shift the blame for abuse—such as that seen at Abu Ghraib, Guantanamo Bay, and Afghanistan—to low-ranking soldiers.” (Senate Armed Services Committee 11/20/2008 pdf file; Warrick and Finn 4/22/2009) The report adds details to the material already released that showed Bush officials, particularly those in the Offices of the Vice President and Defense Secretary, pushed for harsher and more brutal interrogation techniques to be used during the run-up to war with Iraq, in hopes that results might prove the link between Iraq and al-Qaeda that administration officials had long touted (see December 11, 2008). Levin says: “I think it’s obvious that the administration was scrambling then to try to find a connection, a link [between al-Qaeda and Iraq]. They made out links where they didn’t exist.” Senior Guantanamo interrogator David Becker confirmed that only “a couple of nebulous links” between al-Qaeda and Iraq were uncovered during interrogations of unidentified detainees. (Landay 4/21/2009)
Ignored Warnings that Torture Techniques Worthless, Illegal - The report, released in classified form in December 2008 (see December 11, 2008), also documents multiple warnings from legal sources and trained interrogation experts that the techniques could backfire, producing false and erroneous intelligence, and might violate US and international law. One Army lieutenant colonel warned in 2002 that coercion “usually decreases the reliability of the information because the person will say whatever he believes will stop the pain,” according to the Senate report. Another official, after being briefed on plans to use “extreme methods” on detainees, asked, “Wouldn’t that be illegal?” (Senate Armed Services Committee 11/20/2008 pdf file; Agence France-Presse 4/21/2009; Warrick and Finn 4/22/2009)
Torture Methods Became Procedures at Detention Sites - Instead of being abandoned, the methods became the basis for harsh interrogations at Guantanamo, Abu Ghraib, Bagram, and other US detention facilities around the world, including the CIA’s so-called “black sites.” (Senate Armed Services Committee 11/20/2008 pdf file; Warrick and Finn 4/22/2009)
White House Officials Ignorant of SERE Techniques - The report—261 pages long and with almost 1,800 footnotes—documents how techniques from a US military training program called Survival, Evasion, Resistance, and Escape (SERE) were adapted for use against detainees. SERE trains US soldiers to resist harsh interrogation methods if captured by an enemy that does not observe the Geneva Conventions’ ban on torture. The military’s Joint Personnel Recovery Agency (JRPA) reverse-engineered SERE methods to use against detainees (see December 2001). Other tactics, such as waterboarding, were culled from methods used by Chinese Communists against US soldiers captured during the Korean War (see July 2002). (Senate Armed Services Committee 11/20/2008 pdf file; Agence France-Presse 4/21/2009; Warrick and Finn 4/22/2009) According to the report, Bush White House officials seemed unaware of the Chinese Communist origins of the SERE tactics, and were apparently unaware that veteran SERE trainers insisted that the methods were useless for getting reliable information from a prisoner. Moreover, the former military psychologist who recommended that the CIA adopt SERE techniques “had never conducted a real interrogation.” One CIA official called the process “a perfect storm of ignorance and enthusiasm.” Bush administration officials also ignored concerns raised by military legal experts over the efficacy and legality of the techniques (see November 2002).
Torture Policies Directly Responsible for Abu Ghraib Scandal - The Armed Service Committee concludes that the abuses at Abu Ghraib were a direct result of the Bush torture policies. It writes: “The abuses of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own.… Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials (see December 2, 2002) conveyed the message that physical pressures and degradation were appropriate treatment for detainees in US custody.” (Senate Armed Services Committee 11/20/2008 pdf file)

Ali Soufan, an FBI supervisory special agent from 1997 to 2005, writes an op-ed for the New York Times about his experiences as a US interrogator. Soufan, who was one of the initial interrogators of suspected al-Qaeda operative Abu Zubaida (see Late March through Early June, 2002), says he has remained silent for seven years “about the false claims magnifying the effectiveness of the so-called enhanced interrogation techniques like waterboarding.” Until now, he has spoken only in closed government hearings, “as these matters were classified.” But now that the Justice Department has released several memos on interrogation (see April 16, 2009), he can publicly speak out about the memos. “I’ve kept my mouth shut about all this for seven years,” Soufan says. “I was in the middle of this, and it’s not true that these techniques were effective. We were able to get the information about Khalid Shaikh Mohammed in a couple of days. We didn’t have to do any of this [torture]. We could have done this the right way.” (Soufan 4/22/2009; Isikoff 4/25/2009) In early 2002, Soufan trained Guantanamo interrogators in the use of non-coercive interrogation techniques; a colleague recalls the military intelligence officials in the session being resistant to the ideas Soufan proposed (see Early 2002). (Isikoff 4/25/2009)
'False Premises' Underpinning Use of Torture - Soufan says the memos are based on what he calls “false premises.” One is the August 2002 memo granting retroactive authorization to use harsh interrogation methods on Zubaida on the grounds that previous methods had been ineffective (see August 1, 2002). Soufan asserts that his questioning of Zubaida had indeed been productive (contradicting earlier CIA claims—see December 10, 2007), and that he used “traditional interrogation methods” to elicit “important actionable intelligence” from the suspected operative. The harsh methods later used on Zubaida produced nothing that traditional methods could not have produced, Soufan says; moreover, those harsh techniques—torture—often “backfired” on the interrogators. Many of the methods used on detainees such as Zubaida remain classified, Soufan writes: “The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process.”
False Claims 'Proving' Usefulness of Torture - Some claim that Zubaida gave up information leading to the capture of suspected terrorists Ramzi bin al-Shibh and Jose Padilla. “This is false,” Soufan writes. “The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.”
Restoring the 'Chinese Wall' - Because of the use of torture by the CIA, the two agencies will once again be separated by what Soufan calls “the so-called Chinese wall between the CIA and FBI, similar to the communications obstacles that prevented us from working together to stop the 9/11 attacks.” Since the FBI refused to torture suspects in its custody, “our agents who knew the most about the terrorists could have no part in the investigation. An FBI colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him.”
Targeted Investigations - Soufan writes that any investigations into the use of torture by the CIA should not seek to punish the interrogators who carried out the government’s policies. “That would be a mistake,” he writes. “Almost all the agency officials I worked with on these issues were good people who felt as I did about the use of enhanced techniques: it is un-American, ineffective, and harmful to our national security.” Soufan goes farther, adding, “It’s worth noting that when reading between the lines of the newly released memos, it seems clear that it was contractors, not CIA officers, who requested the use of these techniques.” The CIA itself must not be targeted for retribution, Soufan writes, as “[t]he agency is essential to our national security.” Instead, “[w]e must ensure that the mistakes behind the use of these techniques are never repeated.” (Soufan 4/22/2009; Isikoff 4/25/2009)

New York Times editor Clark Hoyt, in a column entitled “Telling the Brutal Truth,” writes of the lengthy discussions among Times editors and staffers on using the term “torture” in their reports and editorials. Hoyt writes that the term is not used in news reports, though it is in editorials. “Until this month,” he writes, “what the Bush administration called ‘enhanced’ interrogation techniques were ‘harsh’ techniques in the news pages of the Times. Increasingly, they are ‘brutal.’” He characterizes the decision to use, or not use, the word “torture” as an example of “the linguistic minefields that journalists navigate every day in the quest to describe the world accurately and fairly.” He notes that the final decision—to rely on the adjective “brutal”—“displeas[es] some who think ‘brutal’ is just a timid euphemism for torture [as well as] their opponents who think ‘brutal’ is too loaded.”
Reader Criticism - Hoyt notes that some readers have criticized the Times for its lack of “backbone” in not using the term “torture” in its reporting, with one writing that by refusing to use the term, “you perpetuate the fantasy that calling a thing by something other than its name will change the thing itself.” Others say that even using the word “brutal” is “outrageously biased.”
'Harsh' Not Accurately Descriptive - Hoyt notes that in the process of editing an April 10 news report on the CIA’s closing of its network of secret overseas prisons (see April 10, 2009), reporter Scott Shane and editor Douglas Jehl debated over the wording of the first paragraph. Jehl had written that the interrogation methods used in the prisons were “widely denounced as illegal torture,” a phrase Jehl changed to “harshest interrogation methods.” Shane argued that the term “harshest” was not strong enough, and the two agreed to use the word “brutal.” After reading the recently released Justice Department torture memos (see April 16, 2009), managing editor Jill Abramson said a new and stronger term needed to be used. “Harsh sounded like the way I talked to my kids when they were teenagers and told them I was going to take the car keys away,” she says. She, too, came down in favor of “brutal” after conferring with legal experts and Washington bureau chief Dean Baquet. But senior editors have all agreed that the word torture will not be used except in quoting others’ descriptions of the methods. “I have resisted using torture without qualification or to describe all the techniques,” Jehl says. “Exactly what constitutes torture continues to be a matter of debate and hasn’t been resolved by a court. This president and this attorney general say waterboarding is torture, but the previous president and attorney general said it is not. On what basis should a newspaper render its own verdict, short of charges being filed or a legal judgment rendered?” (Hoyt 4/25/2009)
Accusation of Bias, Semantic Games - Media critic Brad Jacobson accuses Hoyt and the Times staff of engaging in meaningless semantic wordplay instead of labeling torture as what it is, and notes that Hoyt seems to admit that public opinion, not journalistic standards, has determined what terms the Times will and will not use. Jacobson writes: “1) If the Times called techniques such as waterboarding torture in its reporting, which it should based on US and international law, legal experts, historians, military judges, combat veterans, and human rights organizations, and described, however briefly, what that torture entailed, then the use of modifying adjectives such as ‘harsh’ or ‘brutal’ would not only be superfluous but, in a news story, better left out; and 2) isn’t the Times (along with any news outlet that has failed to report these acts as torture) directly responsible in some way for inspiring the kind of response it received from readers [who objected to the term ‘brutal’]? If readers are not provided the facts—a) waterboarding is torture and b) torture is illegal—while Times editors are simultaneously ascribing arbitrary descriptors to it like ‘brutal’ or ‘harsh,’ then the Times is not only denying its readers the necessary information to understand the issue but this denial may also lead directly to accusations of bias.” He also notes that Jehl censored Shane’s story to eliminate the reference to the methods being “widely denounced as illegal torture,” and asks why Abramson discussed the matter with legal experts rather than determining if waterboarding, physical assaults, and other techniques do indeed qualify as torture under the Geneva Conventions, the Convention Against Torture (see October 21, 1994), and other binding laws and treaties. (Jacobson 4/26/2009)

The US Court of Appeals for the Ninth Circuit reinstates the case of Mohamed v. Jeppesen Dataplan, overruling strong objections from the Obama administration (see February 9, 2009), which argued that the case risked revealing “state secrets.” The New York Times writes that the verdict “deal[s] a blow to efforts by both the Bush and Obama administrations to claim sweeping executive secrecy powers.” Five victims of the CIA’s “extraordinary rendition” program are suing Jeppesen, a subsidiary of Boeing, for assisting the CIA with its transfer flights to and from secret overseas detention sites. The former detainees are joined in their suit by the American Civil Liberties Union (ACLU). A lower court had previously ruled in the government’s favor while President Bush was in office; the Obama administration supported the Bush administration’s position. The logic of the state secrets privilege, the appeals court panel writes, “simply cannot stretch to encompass cases brought by third-party plaintiffs against alleged government contractors for the contractors’ alleged involvement in tortious intelligence activities. Nothing the plaintiffs have done supports a conclusion that their ‘lips [are] to be for ever sealed respecting’ the claim on which they sue, such that filing this lawsuit would in itself defeat recovery.” The ACLU had argued that there was no compelling reason to prevent the victims from bringing suit against a government contractor who allegedly assisted in their torture. The pursuit of those claims would not necessarily endanger state secrets. (Eviatar 4/28/2009; Savage 4/28/2009)
Government Asked for Immunity from Oversight, Court Finds - Repudiating the state secrets claim in the case, the appeals court adds: “The [government’s position] has no logical limit—it would apply equally to suits by US citizens, not just foreign nationals; and to secret conduct committed on US soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government activities from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.” (Greenwald 4/28/2009)
Civil Liberties Advocates Celebrate Verdict - Civil liberties correspondent Daphne Eviatar calls the decision “a huge victory, not only for the five victims themselves, but also for many civil liberties advocates.” Former civil litigator and columnist Glenn Greenwald calls the government’s position a “radical secrecy theory” that should have been repudiated in its entirety. “Today’s decision is a major defeat for the Obama [Justice Department]‘s efforts to preserve for itself the radically expanded secrecy powers invented by the Bush [Justice Department] to shield itself from all judicial scrutiny,” he writes.
Further Actions Possible - The Obama administration has the option to ask for another appeals court hearing, ask that the Supreme Court review the decision, or accept the ruling. Greenwald is certain it will ask for another appeal. (Eviatar 4/28/2009; Greenwald 4/28/2009)

Federal prosecutors drop all charges against two former lobbyists accused of passing classified information to Israel (see August 4, 2005). The lobbyists, Steven Rosen and Keith Weissman, worked for the American Israel Public Affairs Committee (AIPAC) when they took classified information from former government official Larry Franklin and passed it to Israeli officials (see April 13, 1999-2004 and October 5, 2005). The case against Rosen and Weissman had the potential to criminalize the exchange of classified information among journalists, lobbyists, and ordinary citizens not bound by government restrictions. “Thank God we live in a country where you can defend yourself against an injustice like this,” says Rosen. He calls the case an example of government officials “who have an obsession with leaks (see May 21, 2006)… and an obsession with Israel and the theory that it spies on America.” The lawyers for the two former lobbyists believe that Obama administration officials had reservations about the case where their predecessors in the Bush administration did not, but former FBI counterintelligence official David Szady says that politics played no part in the decision to withdraw the charges. Prosecutors say that recent court rulings would make winning their case much more difficult than they had previously anticipated. Gary Wasserman, a Georgetown University professor who is writing a book about the case, says it is understandable that AIPAC welcomes the dismissal. A trial, he says, “would have provoked a lot of public discussion about how they worked.” (Markon 5/2/2009)

Ibn al-Shaykh al-Libi’s body, shortly after he died.Ibn al-Shaykh al-Libi’s body, shortly after he died. [Source: Public domain]Ibn al-Shaykh al-Libi, a former manager of a training camp for militants in Afghanistan, dies at Al Saleem jail in Libya. Al-Libi was captured and handed over to the US in 2001 (see December 19, 2001), and later provided information falsely linking Iraq and al-Qaeda while being tortured in Egyptian custody (see February 2002). The story of his death is broken by a Libyan newspaper named Oea, and picked up by media around the world. However, Newsweek will point out that Oea has “close ties to the [Libyan] government,” as it is owned by a son of Libyan dictator Colonel Mu’ammar al-Qadhafi. Workers with Human Rights Watch visited al-Libi at the prison on April 27, and spoke to him briefly, finding him reasonably well. Hafed al-Ghwell, a leading critic of the al-Qadhafi regime, will comment, “This idea of committing suicide in your prison cell is an old story in Libya.” Apparently, sometimes a prisoner is reported to have committed suicide, but when the family gets the body back, there is a bullet hole in its back or signs of torture. George Brent Mickum, a US lawyer representing al-Libi’s former partner in the training camp, US-held detainee Abu Zubaidah, says he had recently begun efforts through intermediaries to arrange to talk to al-Libi. “The timing of this is weird,” Mickum says. “My gut feeling is that something fishy happened here and somebody in Libya panicked,” adds al-Ghwell. (Isikoff and Hosenball 5/12/2009) Tom Malinowski of Human Rights Watch says: “I would speculate that he was missing because he was such an embarrassment to the Bush administration. He was Exhibit A in the narrative that tortured confessions contributed to the massive intelligence failure that preceded the Iraq war.” After the Bush administration used al-Libi’s claims of links between al-Qaeda and the Iraqi government to justify the US invasion of Iraq in 2003, al-Libi withdrew the claims. (Finn 5/12/2009) In October 2009, in a video posted on an Islamist website, al-Qaeda deputy leader Ayman al-Zawahiri will claim the US government “handed him over to the agents of al-Qadhafi to continue torturing him and kill him.” (Reuters 10/4/2009)

One of the billboards erected by WorldNetDaily.One of the billboards erected by WorldNetDaily. [Source: WorldNetDaily]The conservative news blog WorldNetDaily (WND), which has been at the forefront of the “birther” movement challenging President Obama’s citizenship (see August 1, 2008 and After, October 21, 2008, October 24, 2008, November 12, 2008 and After, and December 5, 2008), begins erecting billboards asking “Where’s the Birth Certificate?” Joseph Farah, editor and chief executive officer of WND, calls the billboard initiative “the truth and transparency campaign.” The first, a digital electronic billboard, is displayed along Highway 165 in Ball, Louisiana, and two more standard billboards are being prepared for display in Los Angeles and Pennsylvania. Farah says the “national [billboard] campaign is going to be big and long-lasting,” and uses WND to solicit donations for more billboards. Farah says he and the WND staff deliberately chose not to name Obama in the billboards: “There are several reasons we chose the message, ‘Where’s the birth certificate?’ There is only one birth certificate controversy in this country today—despite the near-total absence of this issue from coverage in the non-WND media. This is a grass-roots issue that resonates around the country, as our own online petition with nearly 400,000 signers suggests. In addition, I like the simplicity of the message. I like the fact that the message will cause some people to ask themselves or others about the meaning of the message. It will stir curiosity. It will create a buzz. I’m assuming when these billboards are springing up all over the country, it might even make some in the news media curious. And there’s one more factor that persuaded me this was the way to go. Come 2012, campaign laws will pose restrictions on political advertising mentioning the names of presidential candidates. This one clearly doesn’t. I would like to see the federal government make the case that this is somehow a political ad.” Farah blames “timid elected officials in Washington, corrupt judges around the country, and a news media that show a stunning lack of curiosity about the most basic facts of Obama’s background—especially how it relates to constitutional eligibility for the highest office in the land” for failing to investigate the “birther” controversy. Obama released his birth certificate in 2008 (see June 13, 2008), and since then it has been validated by multiple governmental and independent sources (see June 27, 2008, July 2008, August 21, 2008, and October 30, 2008). Farah, however, is not convinced, and believes the birth certificate “controversy” is part of a larger, sinister scheme by the Obama administration: “As Obama transforms this country from self-governing constitutional republic to one governed by a central ruling elite, the simple fact remains that no controlling legal authority has established that he is indeed a ‘natural born citizen’ as the Constitution requires,” he says. “Obama’s promises of transparency have become a bad joke as he continues to hide simple, innocuous documents like his birth certificate and his student records.” Farah says WND is operating as an “independent watchdog on government” by launching the billboard campaign, and not acting as a partisan organization. “I wish such a campaign were not absolutely necessary,” he says. “I wish there were checks and balances in our political and electoral systems to ensure that constitutional eligibility of presidential candidates was established before politicians could assume the highest office in the land. I wish my colleagues in the news media believed the Constitution really means what it says and pressed this issue as hard as we have pressed it at WND. I wish radio talk show hosts were bold enough to ask this question. But wishing is not enough. It’s time to raise the visibility of this issue vital to the rule of law in America. I ask everyone to pitch in and help WND make a simple yet profound statement: The Constitution still matters.” (WorldNetDaily 5/20/2009) In November 2010, WND will erect a “birth certificate” billboard along Highway 93 near Kingman, Arizona, the small town in which Oklahoma City bomber Timothy McVeigh planned the destruction of the Murrah Federal Building (see 8:35 a.m. - 9:02 a.m. April 19, 1995). Other billboards will be erected in Pennsylvania, Texas, Alabama, and Delaware. (WorldNetDaily 11/8/2010)

Former Justice Department lawyer John Yoo, who authored numerous legally untenable memos authorizing torture and the preeminence of the executive branch (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, November 6-10, 2001, and January 9, 2002), writes that in the nomination of Sonia Sotomayor to the Supreme Court (see May 26, 2009), “empathy has won out over excellence in the White House.” Yoo, who calls the Justice she is replacing, David Souter, an equally “weak force on the high court,” writes that President Obama “chose a judge distinguished from the other members of [his list of potential nominees] only by her race. Obama may say he wants to put someone on the Court with a rags-to-riches background, but locking in the political support of Hispanics must sit higher in his priorities.” Sotomayor’s record is “undistinguished,” Yoo writes, and “will not bring to the table the firepower that many liberal academics are asking for.” She will not be the intellectual and legal equal of conservatives Antonin Scalia and Clarence Thomas, he says. “Liberals have missed their chance to put on the Court an intellectual leader who will bring about a progressive revolution in the law.” Conservatives should challenge her nomination, Yoo writes, because the Court is “a place where cases are decided by a faithful application of the Constitution, not personal politics, backgrounds, and feelings. Republican senators will have to conduct thorough questioning in the confirmation hearings to make sure that she will not be a results-oriented voter, voting her emotions and politics rather than the law.” (Yoo 5/26/2009)

Former White House political director Karl Rove continues his attacks on Supreme Court nominee Sonia Sotomayor (see May 26, 2009). In a column for the Wall Street Journal, Rove echoes former Justice Department official John Yoo in claiming that the Obama administration chose “empathy” over capability in Sotomayor’s selection (see May 26, 2009). Rove goes one step further than Yoo in equating Sotomayor’s “empathy” with “liberal judicial activism.” “‘Empathy’ is the latest code word for liberal activism,” Rove writes, “for treating the Constitution as malleable clay to be kneaded and molded in whatever form justices want. It represents an expansive view of the judiciary in which courts create policy that couldn’t pass the legislative branch or, if it did, would generate voter backlash.” He accuses Sotomayor, and indirectly President Obama, of a “readiness to discard the rule of law whenever emotion moves them.” He also accuses Obama of attempting to “placate Hispanic groups who’d complained of his failure to appoint more high profile Latinos to his administration.… Mr. Obama also hopes to score political points as GOP senators oppose a Latina. Being able to jam opponents is a favorite Chicago political pastime.” Rove advises Republicans to use Sotomayor’s nomination as an opportunity to “stress their support for judges who strictly interpret the Constitution and apply the law as written.” He notes: “A majority of the public is with the GOP on opposing liberal activist judges. There is something in our political DNA that wants impartial umpires who apply the rules, regardless of who thereby wins or loses.” (Rove 5/28/2009) Hours after his attack column is printed, Rove tells a Fox News audience that Republicans need to treat Sotomayor with “respect” and criticize her over her “philosophy,” not her background. (Terkel 5/29/2009)

President Barack Obama lambasts critics of Supreme Court nominee Sonia Sotomayor (see May 26, 2009) for their attacks on her (see May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 28, 2009, May 26, 2009, May 27-29, 2009, May 27, 2009, May 28, 2009, May 28, 2009, May 28, 2009, and May 29, 2009). Obama says that Sotomayor regrets her choice of words in a 2001 speech in which she said a “wise Latina” judge would often make better decisions than a white male (see October 26, 2001), but goes on to condemn “all this nonsense that is being spewed out” by critics who have accused her of racism and belonging to racist groups. Of her speech, Obama says: “I’m sure she would have restated it. But if you look in the entire sweep of the essay that she wrote, what’s clear is that she was simply saying that her life experiences will give her information about the struggles and hardships that people are going through. That will make her a good judge.” White House spokesman Robert Gibbs says of the racial accusations: “It’s sort of hard to completely quantify the outrage I think almost anybody would feel at the notion that you’re being compared to somebody who used to be a member of the Ku Klux Klan. It’s amazing.” Republican strategist John Ullyot, who worked on judicial nominations as a Congressional staffer, says that “any comments politically on race or gender are fraught with peril for Republicans.” He continues: “A few conservatives from outside of the Senate, in their zeal to pick a fight over Obama’s nominee, decided to get very ugly very quickly. No one in the Senate has followed along, and that’s the loudest condemnation you can have.” Ullyot fails to mention attacks from Republican Senators James Inhofe (R-OK) and Jeff Sessions (R-AL—see May 26, 2009). (Eggen and Kane 5/29/2009)

Former President George H. W. Bush condemns the right-wing attacks against Supreme Court nominee Sonia Sotomayor (see May 26, 2009), speaking out specifically against the charges that she has racist tendencies (see May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 28, 2009, May 26, 2009, May 27-29, 2009, May 27, 2009, May 28, 2009, May 28, 2009, May 28, 2009, May 29, 2009, May 29, 2009, June 2, 2009, June 5, 2009, and June 7, 2009). “I don’t know her that well but I think she’s had a distinguished record on the bench and she should be entitled to fair hearings,” he says. “Not—[it’s] like the senator John Cornyn said it (see May 28-31, 2009). He may vote for it, he may not. But he’s been backing away from these… backing off from those radical statements to describe her, to attribute things to her that may or may not be true.… And she was called by somebody a racist once. That’s not right. I mean that’s not fair. It doesn’t help the process. You’re out there name-calling. So let them decide who they want to vote for and get on with it.” (Terkel 6/12/2009)

The CIA releases heavily redacted documents containing statements by Guantanamo detainees concerning their allegations of torture and abuse at the hands of CIA personnel. The documents are released as part of a Freedom of Information Act (FOIA) lawsuit filed by the American Civil Liberties Union (ACLU). The lawsuit seeks uncensored transcripts from Combatant Status Review Tribunals (CSRTs) that determine if prisoners held by the Defense Department at Guantanamo qualify as “enemy combatants.” Previously released versions were redacted so heavily as to contain almost no information about abuse allegations; the current versions, while still heavily redacted, contain some new information. ACLU attorney Ben Wizner, the lead attorney on the FOIA lawsuit, says: “The documents released today provide further evidence of brutal torture and abuse in the CIA’s interrogation program and demonstrate beyond doubt that this information has been suppressed solely to avoid embarrassment and growing demands for accountability. There is no legitimate basis for the Obama administration’s continued refusal to disclose allegations of detainee abuse, and we will return to court to seek the full release of these documents.” The ACLU press release notes, “The newly unredacted information includes statements from the CSRTs of former CIA detainees,” and includes quotes from alleged 9/11 mastermind Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003); alleged high-level al-Qaeda operative Abu Zubaida (see Mid-May 2002 and After); and accused terrorists Abd al-Rahim al-Nashiri (see (November 2002)) and Majid Khan (see March 10-April 15, 2007). These statements include details about their treatment, which the ACLU refers to as “torture and coercion”:
Abu Zubaida - “After months of suffering and torture, physically and mentally, they did not care about my injuries that they inflicted to my eye, to my stomach, to my bladder, and my left thigh and my reproductive organs. They didn’t care that I almost died from these injuries. Doctors told me that I nearly died four times.… They say ‘this in your diary.’ They say ‘see you want to make operation against America.’ I say no, the idea is different. They say no, torturing, torturing. I say ‘okay, I do. I was decide to make operation.’”
Abd al-Rahim al-Nashiri - “[And, they used to] drown me in water.”
Khalid Shaikh Mohammed - “This is what I understand he [a CIA interrogator] told me: you are not American and you are not on American soil. So you cannot ask about the Constitution.”
Majid Khan - “In the end, any classified information you have is through… agencies who physically and mentally tortured me.” (American Civil Liberties Union 6/15/2009)

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