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Context of 'December 2001-January 2002: US Military Vessels Used to House Suspected Terrorists'

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Suzanne Spaulding, a former counsel for the CIA, the Senate and House intelligence commission, and executive director of the National Terrorism Commission from 1999 through 2000, writes an op-ed criticizing the Bush administration for its domestic surveillance program. She writes that the three main sources of oversight and restraint on Bush’s unfettered efforts to monitor US citizens—Congress, the judiciary, and the American people—have failed to halt what she calls “this extraordinary exercise of presidential power.” Spaulding, who will testify along similar lines before the Senate over a year later (see April 11, 2007), writes, “Ironically, if it is ultimately determined that this domestic surveillance program reflects the exercise of unchecked power in contravention of law, it will wind up weakening the presidency. Once again, we will confront the challenge of restoring Americans’ faith in the rule of law and our system of checks and balances.” The pretense of oversight by the administration, in providing limited and perhaps misleading briefings on the program only to the so-called “Gang of Eight” Congressional leaders, is superficial and ineffective, she writes; the entire process “effectively eliminates the possibility of any careful oversight.” She notes that because of the severe restrictions both in the information doled out to these Congressional leaders, and their strict prohibition on discussing the information with anyone else, even other intelligence panel members, “[i]t is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response.” Congressional oversight is key to retaining the trust of the US citizenry, she writes, and adds that that particular principle was well understood at the CIA while she was there. Oversight “is vital for a secret agency operating in a democracy. True oversight helps clarify the authority under which intelligence professionals operate. And when risky operations are revealed, it is important to have members of Congress reassure the public that they have been overseeing the operation. The briefings reportedly provided on the National Security Agency (NSA) surveillance program reflect, instead, a ‘check the box’ mentality—allowing administration officials to claim that they had informed Congress without having really achieved the objectives of oversight.” While those few members of Congress are given little real information, the judiciary, particularly the Foreign Intelligence Surveillance Court (FISC), is cut out of the process entirely. “Instead of going to a judge on the secret court that was specifically established to authorize foreign intelligence surveillance inside the United States, we are told that an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans,” she writes. “That’s neither a check nor a balance. The primary duty of the NSA shift supervisor, who essentially works for the president, is to collect intelligence. The task of the judge is to ensure that the legal standards set out in the 1978 Foreign Intelligence Surveillance Act (FISA) have been met. Which one has stronger independence to say no, if no needs to be said? The objectives of the surveillance program, as described in news reports, seem laudable. The government should be running to ground the contacts listed in a suspected terrorist’s cell phone, for example. What is troubling is that this domestic spying is being done in apparent contravention of FISA, for reasons that still are not clear.” In her piece she takes issue with the Bush administration’s insistence that its surveillance program is legal and necessary. She makes the following case:
Specious Arguments to Duck FISA Court - The argument that the FISA Court is too slow to respond to immediate needs for domestic surveillance is specious, she says. “FISA anticipates situations in which speed is essential. It allows the government to start eavesdropping without a court order and to keep it going for a maximum of three days. And while the FISA application process is often burdensome in routine cases, it can also move with remarkable speed when necessary, with applications written and approved in just a few hours.” Instead, she says that the Bush administration must have dodged FISC because their wiretaps didn’t meet FISA standards of probable cause. Since FISC is staffed by judges hand-picked by conservative then-Supreme Court Chief Justice William Rehnquist, “who presumably felt that they had the right temperament and expertise to understand the national security imperatives as well as the need to protect civil liberties,” and since FISC has granted all but four of the more than 5,645 requests for wiretaps and surveillance made by the administration since 2001, to argue that FISC is unresponsive is simply wrong-headed. And, she notes, if the administration felt that FISA’s standards were too strict, it could have moved to amend the law to allow more leniency in obtaining such warrants. It has not done so since the passage of the 2001 Patriot Act. She writes, “The administration reportedly did not think it could get an amendment without exposing details of the program. But this is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never previously considered an option to simply decide that finding a legislative solution was too hard and that the executive branch could just ignore the law rather than fix it.”
No Justification for Keeping Program Secret - In addition, the administration has consistently failed to make a case for keeping the domestic wiretapping policy secret for four years. US-designated terrorist groups already know that the government listens to their cell phone conversations whenever possible, and they are well aware of the various publicly known programs to search through millions of electronic communications, such as the NSA’s Echelon program (see April 4, 2001). “So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations?” she asks. “Presumably very little. What does the American public lose by not having the public discussion? We lose the opportunity to hold our elected leaders accountable for what they do on our behalf.”
Assertions that Program Authorized by Congress Fallacious - The argument advanced by Attorney General Alberto Gonzales that says the program does not violate the law because Congress’s post-9/11 authorization of force against terrorists gives the administration the right to circumvent FISA is equally specious, she argues. “FISA does provide for criminal penalties if surveillance is conducted under color of law ‘except as authorized by statute.’ This is a reference to either FISA or the criminal wiretap statute. A resolution, such as the Use of Force resolution, does not provide statutory authority. Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable? The law clearly states that the criminal wiretap statute and FISA are ‘the exclusive means by which electronic surveillance…and the interception of domestic wire, oral, and electronic communications may be conducted.’ If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance. Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.” Therefore, by any legal standard, the administration’s program is, apparently, illegal.
No Inherent Presidential Authority - The ultimate argument by Bush officials, that the president has some sort of inherent authority as commander-in-chief to authorize illegal wiretaps, is the same groundless legal argument recently used to justify the use of torture by US intelligence and law enforcement agents (see December 28, 2001). That argument was withdrawn, Spaulding notes, after it became publicly known. While the courts have not specifically ruled on this particular argument, Spaulding notes that the Supreme Court refused to recognize then-President Harry Truman’s attempt to seize control of the nation’s steel mills to avert a possible strike during the Korean War. The Supreme Court ruled “that the president’s inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority—as it has in FISA—‘is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between president and Congress.’” She notes that in 2004, the Supreme Court rejected the argument for unchecked presidential power in the Hamdi case (see June 28, 2004), with Justice Sandra Day O’Connor writing for the court, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens. …Whatever power the United States Constitution envisions for the Executive in its exchanges with… enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Spaulding concludes, “The rule of law and our system of checks and balances are not a source of weakness or a luxury of peace. As O’Connor reminded us in Hamdi, ‘It is during our most challenging and uncertain moments…that we must preserve our commitment at home to the principles for which we fight abroad.’” [Washington Post, 12/25/2005]

Entity Tags: Sandra Day O’Connor, William Rehnquist, USA Patriot Act, Suzanne Spaulding, National Security Agency, US Supreme Court, Harry S. Truman, Alberto R. Gonzales, “Gang of Eight”, National Commission on Terrorism, Central Intelligence Agency, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Echelon, Bush administration (43)

Timeline Tags: Civil Liberties

Retired AT&T technician Mark Klein (see July 7, 2009 and May 2004), angered by the Bush administration’s counterattack against government and media members who have helped to expose its warrantless wiretapping operation (see December 15-31, 2005), decides to go public with a memo he wrote about his own knowledge of the collusion between AT&T and the National Security Agency (NSA) in eavesdropping on American citizens’ communications (see January 16, 2004). He updates the memo with a brief preface, selects eight pages of the 121 pages of AT&T documentation he possesses which he believes gives a good overview of the NSA’s surveillance equipment installation, and includes the two photographs he has taken of the NSA’s “secret room” at the AT&T facility in San Francisco and the Internet research he has done on the Narus STA 6400 equipment the NSA is using to sort the communications being captured and recorded (see Late 2003). Instead of entrusting his newly refurbished memo to the Internet, he uses the PGP (Pretty Good Privacy) security protocol for anticipated dissemination, burns the data onto a CD, and begins searching online for civil liberties groups that might be interested in his work. [Wired News, 5/17/2006; Klein, 2009, pp. 53-55]

Entity Tags: AT&T, National Security Agency, Mark Klein

Timeline Tags: Civil Liberties

Douglas Feith.Douglas Feith. [Source: Whodidit.org]Law professor Phillippe Sands interviews Douglas Feith, the former undersecretary of defense for policy and one of the key architects of the Iraq invasion. [Vanity Fair, 5/2008] Feith is joining the School of Foreign Service at Georgetown University as a lecturer. [Washington Post, 5/25/2006] Feith discusses his great pride in his part in the administration’s decision to ignore the Geneva Conventions’ restrictions on interrogating prisoners (see February 7, 2002). Feith says that Geneva merely got in the way of the US doing what it needed to do with regards to the detainees. Since al-Qaeda and Taliban operatives did not function under Geneva, he argues, the US did not need to, either. Feith says that between his arguments and the contempt the civilians in the White House and the Pentagon held for the military officers who stood by the Geneva restrictions, the decision was made to set Geneva aside when circumstances warranted. It was never a matter of questioning Geneva’s status as international law, but deciding to whom and in what circumstances the conventions apply.
Catch 22 - Sands writes that according to Feith’s (and eventually the administration’s) rationale: “Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to POW status, because they hadn’t worn uniforms or insignia. That would still leave the safety net provided by the rules reflected in Common Article 3—but detainees could not rely on this either, on the theory that its provisions applied only to ‘armed conflict not of an international character,’ which the administration interpreted to mean civil war. This was new. In reaching this conclusion, the Bush administration simply abandoned all legal and customary precedent that regards Common Article 3 as a minimal bill of rights for everyone.… I asked Feith, just to be clear: Didn’t the administration’s approach mean that Geneva’s constraints on interrogation couldn’t be invoked by anyone at Guantanamo? ‘Oh yes, sure,’ he shot back. Was that the intended result?, I asked. ‘Absolutely.… That’s the point.‘… As he saw it, either you were a detainee to whom Geneva didn’t apply or you were a detainee to whom Geneva applied but whose rights you couldn’t invoke.”
Impact on Interrogations - When asked about the difference for the purpose of interrogation, Sands will write: “Feith answered with a certain satisfaction, ‘It turns out, none. But that’s the point.’ That indeed was the point. The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible.” Reflecting on that time, Feith says with obvious relish, “This year I was really a player.” Sands asks Feith if he ever worried that the Geneva decision might have eroded the US’s moral authority. Feith’s response is blunt: “The problem with moral authority [is] people who should know better, like yourself, siding with the _ssholes, to put it crudely.” [Vanity Fair, 5/2008]

Entity Tags: Phillippe Sands, Geneva Conventions, Douglas Feith, Al-Qaeda, Georgetown University, Taliban

Timeline Tags: Torture of US Captives, Civil Liberties

John Yoo’s ‘The Powers of War and Peace.’John Yoo’s ‘The Powers of War and Peace.’ [Source: University of Maryland]Libertarian law professor Cass Sunstein reviews a recent book by former Bush legal adviser John Yoo, who authored several of the Bush administration’s most controversial legal opinions concerning terrorism and executive power (see September 21, 2001, September 25, 2001, September 25, 2001, October 4, 2001, October 23, 2001, October 23, 2001, November 2, 2001, November 6-10, 2001, November 15, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24, 2002, January 24-26, 2002, March 13, 2002, April 8, 2002, June 27, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and October 11, 2002). Yoo’s book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, is a compendium of his pre-9/11 academic writings that landed him his job at the Justice Department’s Office of Legal Counsel. Sunstein notes that Yoo, perhaps more than any other single legal scholar, has reshaped the government’s legal stance on any number of issues. He argued for the president’s unilateral ability to declare war without the approval of Congress, the use of “enhanced interrogation techniques” on suspected terrorists, the withdrawal of essential civil liberties and legal rights from suspected terrorists and enemy collaborators, the right of the administration to electronically eavesdrop on the American citizenry without judicial consent or oversight, the ability to ignore or withdraw from international treaties without congressional approval, and more besides. Sunstein writes: “[T]aken as a whole, the claims of the Bush administration may be properly regarded as an effort to create a distinctive set of constitutional understandings for the post-September 11 era. The White House is attempting to create a kind of 9/11 Constitution. A defining feature of these understandings is a strong commitment to inherent presidential authority over national security, including a belief that in crucial domains the president can act without congressional permission, and indeed cannot be checked by congressional prohibitions.” Yoo is a key figure in that effort. Sunstein calls his work interesting but completely one-sided, simply ignoring “the mountainous counter-evidence” against most of his constitutional claims. “Yoo’s reading would require us to ignore far too many statements by prominent figures in the founding generation,” Sunstein writes. “There are not many issues on which James Madison, Thomas Jefferson, John Marshall, Alexander Hamilton, George Washington, James Wilson, John Adams, and Pierce Butler can be said to agree. Were all of them wrong?” Sunstein concludes: “[W]ith respect to war, there is no reason for a 9/11 Constitution. The old one, read in the light of our traditions, will do just fine.” [New Republic, 1/9/2006; Savage, 2007, pp. 81-82]

Entity Tags: Bush administration (43), Office of Legal Counsel (DOJ), John C. Yoo, Cass Sunstein

Timeline Tags: Civil Liberties

After Human Rights Watch, an organization which works to end torture of government detainees around the globe, claims that the Bush administration has made a “deliberate policy choice” to abuse detainees at Guantanamo Bay, Defense Secretary Donald Rumsfeld says, “What took place at Guantanamo is a matter of public record today, and the investigations turned up nothing that suggested that there was any policy in the department other than humane treatment.” In 2002, President Bush declared that detainees in US custody should be treated “humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles” of the Geneva Conventions (see January 19, 2002). Shortly after Rumsfeld’s statement, White House press secretary Scott McClellan says that Human Rights Watch has damaged its own credibility by making such claims. [New Yorker, 2/27/2006]

Entity Tags: Donald Rumsfeld, Bush administration (43), Human Rights Watch, Scott McClellan, George W. Bush, Geneva Conventions

Timeline Tags: Torture of US Captives, Civil Liberties

Al Gore speaks to the Liberty Coalition and the American Constitution Society.Al Gore speaks to the Liberty Coalition and the American Constitution Society. [Source: American Constitution Society]Former Vice President Al Gore delivers a long, impassioned speech on civil liberties and constitutional issues to the Liberty Coalition and the American Constitution Society. Gore joins former Representative Bob Barr (R-GA) in speaking out against the Bush administration’s infringement on American civil liberties. Gore and Barr have what Gore calls a “shared concern that America’s Constitution is in grave danger.”
Patently Illegal Domestic Surveillance - Gore’s speech is sparked by recent revelations that the NSA has been spying on American citizens for years (see December 15, 2005), and in response, the administration “has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress precisely to prevent such abuses.” As the Foreign Intelligence and Surveillance Act (FISA) is perfectly sufficient, there was no need for the Bush administration to circumvent that law. “At present, we still have much to learn about the NSA’s domestic surveillance,” Gore says. “What we do know about this pervasive wiretapping virtually compels the conclusion that the president of the United States has been breaking the law, repeatedly and insistently. A president who breaks the law is a threat to the very structure of our government.” Gore says he agrees with Bush on the threat of terrorism, but disagrees that the US has to “break the law or sacrifice our system of government” to protect itself, as this will make it “weaker and more vulnerable.” In addition, he says, “once violated, the rule of law is itself in danger,” and, “Unless stopped, lawlessness grows, the greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles.” It is patently obvious that the Bush administration has broken the law in conducting and approving its warrantless wiretaps, Gore says, regardless of what arguments and defenses administration officials may put forth (see September 12-18, 2001 and Early 2002). So, Gore says, “When President Bush failed to convince Congress to give him the power he wanted when this measure was passed, he secretly assumed that power anyway, as if Congressional authorization was a useless bother. But as [Supreme Court] Justice [Felix] Frankfurter once wrote, ‘To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between the president and the Congress.‘… And the disrespect embodied in these apparent mass violations of the law is part of a larger pattern of seeming indifference to the Constitution that is deeply troubling to millions of Americans in both political parties.”
Illegal Seizure of American Citizens - Gore notes that Bush has declared that he has “a heretofore unrecognized inherent power to seize and imprison any American citizen that he alone determines to be a threat to our nation, and that notwithstanding his American citizenship that person in prison has no right to talk with a lawyer, even if he wants to argue that the president or his appointees have made a mistake and imprisoned the wrong person” (see November 13, 2001 and March 5, 2002). He says: “The president claims that he can imprison that American citizen—any American citizen he chooses—indefinitely, for the rest of his life, without even an arrest warrant, without notifying them of what charges have been filed against them, without even informing their families that they have been imprisoned.” Gore then says: “No such right exists in the America that you and I know and love. It is foreign to our Constitution. It must be rejected.”
Specious Authority to Torture - Neither does the executive branch have the right to authorize torture, Gore says. After citing horrific examples from Guantanamo and Abu Ghraib, he calls it “a shameful exercise of power that overturns a set of principles that you’re nation has observed since General George Washington first enunciated them during our Revolutionary War. They have been observed by every president since then until now. They violate the Geneva Conventions, the International Convention Against Torture, and our own laws against torture.”
Unlawful Kidnapping of Foreign Citizens - The president has no right to have foreign citizens kidnapped from their homes and brought to the US for interrogation and imprisonment, or worse, delivered to other nations for harsh interrogations and torture, says Gore. The closest allies of the US have been shocked by such claims.
No Restraint in the Constitution? - Gore asks whether the president really has such powers under the Constitution and, if so, “are there any acts that can on their face be prohibited?” He quotes the dean of Yale’s law school, Harold Koh, who said, “If the president has commander in chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution.” Gore is “deeply troubl[ed]” that “our normal American safeguards have thus far failed to contain this unprecedented expansion of executive power.” He cites the numerous usage of “signing statements” by Bush that signal his intent “not to comply” with particular legislation (see December 30, 2005). When the Supreme Court struck down Bush’s indefinite detention of “enemy combatants” (see June 28, 2004), “the president then engaged in legal maneuvers designed to prevent the court from providing any meaningful content to the rights of the citizens affected.”
Historical Cycles - Since the founding of America, Gore says, the country has abrogated its citizens’ rights in one circumstance or another, and cites numerous examples. But those abrogations were always rectified to some degree in a repeated cycle of what he calls “excess and regret.” Gore is worried that the country may not be in such a cycle now. Instead, he says, the US may be on a path to permanent, state-sanctioned authoritarianism, with the constitutional safeguards American citizens have come to expect eroded and undermined to the point of irretrievability. Gore specifically cites the administration’s support for the so-called “unitary executive” theory of government, which he says “ought to be more accurately described as the unilateral executive.” That theory “threatens to expand the president’s powers until the contours of the Constitution that the framers actually gave us become obliterated beyond all recognition.”
Stark Authoritarianism - Why are Bush and his top officials doing this? Gore says that “[t]he common denominator seems to be based on an instinct to intimidate and control. The same pattern has characterized the effort to silence dissenting views within the executive branch, to censor information that may be inconsistent with its stated ideological goals, and to demand conformity from all executive branch employees.” Gore continues: “Intellectually, it is possible to carry on this process for an indefinite time. The only check on it is that, sooner or later, a false belief bumps up against solid reality, usually on a battlefield. Two thousand two hundred American soldiers have lost their lives as this false belief bumped into a solid reality.”
Gutting Congress - Though serious damage has been done to the judicial branch, Gore acknowledges, “the most serious damage in our constitutional framework has been to the legislative branch. The sharp decline of Congressional power and autonomy in recent years has been almost as shocking as the efforts by the executive to attain this massive expansion of its power.… [T]he legislative branch of government as a whole, under its current leadership, now operates as if it were entirely subservient to the executive branch.… [T]he whole process is largely controlled by the incumbent president and his political organization” (see February 1, 2004). Gore says each member of Congress, Republican and Democrat, must “uphold your oath of office and defend the Constitution. Stop going along to get along. Start acting like the independent and co-equal branch of American government that you are supposed to be under the Constitution of our country.”
We the People - The American people still, for the moment, have the power to enforce the Constitution, Gore says, quoting former President Dwight Eisenhower, who said, “Any who act as if freedom’s defenses are to be found in suppression and suspicion and fear confess a doctrine that is alien to America.” Gore continues: “Fear drives out reason. Fear suppresses the politics of discourse and opens the door to the politics of destruction.… The founders of our country faced dire threats. If they failed in their endeavors, they would have been hung as traitors. The very existence of our country was at risk. Yet in the teeth of those dangers, they insisted on establishing the full Bill of Rights. Is our Congress today in more danger than were their predecessors when the British army was marching on the Capitol? Is the world more dangerous than when we faced an ideological enemy with tens of thousands of nuclear missiles ready to be launched on a moment’s notice to completely annihilate the country?” [Congressional Quarterly, 1/16/2006; American Constitutional Society, 1/16/2006]

Entity Tags: National Security Agency, Liberty Coalition, US Supreme Court, Harold Koh, George W. Bush, Albert Arnold (“Al”) Gore, Jr., American Constitution Society, Bush administration (43), Convention Against Torture, Felix Frankfurter, George Washington, Geneva Conventions, Foreign Intelligence Surveillance Act, Robert “Bob” Barr

Timeline Tags: Civil Liberties

Electronic Frontier Foundation logo.Electronic Frontier Foundation logo. [Source: Flickr.com]The Electronic Frontier Foundation (EFF), a civil liberties and privacy-advocacy organization, files a lawsuit against telecommunications giant AT&T for allegedly violating the law and the privacy of its citizens by cooperating with the National Security Agency in the NSA’s construction of what the EFF calls a “massive, illegal program to wiretap and data-mine Americans’ communications.” EFF lawyer Kevin Bankston says: “Our goal is to go after the people who are making the government’s illegal surveillance possible. They could not do what they are doing without the help of companies like AT&T. We want to make it clear to AT&T that it is not in their legal or economic interests to violate the law whenever the president asks them to.”
Unprecedented Access to Communications System - EFF alleges that as part of the NSA’s domestic spying program, AT&T has allowed the NSA direct access to the phone and Internet communications passing over its network, and has given the government “unfettered access to its over 300 terabyte ‘Daytona’ database of caller information—one of the largest databases in the world.” One of AT&T’s databases, nicknamed “Hawkeye,” contains 312 terabytes of data detailing nearly every telephone communication on AT&T’s domestic network since 2001, the lawsuit alleges. The suit goes on to claim that AT&T allowed the NSA to use the company’s powerful Daytona database management software to quickly search this and other communication databases. AT&T, the suit claims, is in violation of the First and Fourth Amendments, federal wiretapping statutes, telecommunications laws, and the Electronic Communications Privacy Act. The suit requests fines up to $22,000 for each AT&T customer, and punitive fines—damages that could potentially reach into the billions of dollars. The EFF lawsuit is one of over 30 lawsuits filed for similar reasons (see June 26, 2006). The lawsuit will survive a number of initial legal challenges by the Justice Department and AT&T, including AT&T’s contention that “whatever we did, the government told us to do” and therefore it should be immune from such lawsuits, and the Justice Department’s invocation of “national security” and the possibility of the revelation of “state secrets” (see March 9, 1953). EFF retorts, “In this country we follow the law, we don’t just follow orders.” Bankston tells a reporter, “If state secrecy can prevent us from preserving the rights of millions upon millions of people, then there is a profound problem with the law.”
Suit Alleges Criminal Actions, Does Not Challenge Government's Right to Wiretap - The lawsuit does not challenge the government’s right to electronically monitor legitimate terrorism suspects, nor does it challenge the judicial right to issue warrants for such surveillance. Rather, EFF writes: “Wiretaps on terrorists are allowed under the law, and this lawsuit is not challenging the wiretap laws. We have sued AT&T for breaking those laws—the telecommunications giant gave the government access to its communications switches and its huge databases of information on millions of ordinary Americans. These are AT&T customers who have not even been accused of affiliations with terrorists. Americans can be both safe and free: if the government truly believes it has cause to wiretap a suspect, it can order AT&T to provide information under FISA [the Foreign Intelligence Surveillance Act]—for up to 72 hours before going to the court. But AT&T has no business providing direct access to the communications of millions of ordinary Americans, without the checks and balances of Congress or the courts.” [Electronic Frontier Foundation, 1/31/2006; Wired News, 1/31/2006]

Entity Tags: Electronic Frontier Foundation, Foreign Intelligence Surveillance Act, National Security Agency, AT&T, US Department of Justice, Kevin Bankston

Timeline Tags: Civil Liberties

The Navy’s former general counsel, Alberto Mora, now the general counsel for Wal-Mart’s international operations, ends a long, self-imposed silence about his opposition to the military’s advocacy of torture and abuse of terror suspects (see July 7, 2004). Mora tells New Yorker reporter Jane Mayer that the administration’s legal response to the 9/11 attacks was flawed from the outset, triggering a series of subsequent errors and misjudgments that were virtually impossible to correct. In particular, the determination to ignore the Geneva Conventions “was a legal and policy mistake,” but “very few lawyers could argue to the contrary once the decision had been made.” Mora continues, “It seemed odd to me that the actors weren’t more troubled by what they were doing.” Many administration lawyers seemed to be ignorant of history. “I wondered if they were even familiar with the Nuremberg trials—or with the laws of war, or with the Geneva Conventions. They cut many of the experts on those areas out. The State Department [whose lawyers and officials often opposed the use of abusive interrogation tactics] wasn’t just on the back of the bus—it was left off the bus.… [P]eople were afraid that more 9/11s would happen, so getting the information became the overriding objective. But there was a failure to look more broadly at the ramifications. These were enormously hardworking, patriotic individuals. When you put together the pieces, it’s all so sad. To preserve flexibility, they were willing to throw away our values.” [New Yorker, 2/27/2006]

Entity Tags: Geneva Conventions, US Department of State, Alberto Mora, Jane Mayer

Timeline Tags: Torture of US Captives, Civil Liberties

Electronic Frontier Foundation (EFF) lawyer Kevin Bankston asks AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) to submit a legal declaration as to his knowledge of AT&T’s collusion with the National Security Agency (NSA) in its illegal domestic wiretapping program. Klein is working with the EFF in that organization’s lawsuit against AT&T (see Early January 2006 and January 31, 2006). Five days later, Klein submits his evidence of AT&T’s actions (see December 31, 2005) to Bankston to be used in the lawsuit. Klein will work with his lawyers to craft the declaration, and will have it in final form by late March. [Klein, 2009, pp. 63-64]

Entity Tags: National Security Agency, AT&T, Electronic Frontier Foundation, Mark Klein, Kevin Bankston

Timeline Tags: Civil Liberties

Expert witness J. Scott Marcus, in an analysis submitted on behalf of the Electronic Frontier Foundation’s lawsuit against AT&T (see January 31, 2006), notes that if the NSA had wanted to intercept only international electronic communications in its surveillance operations facilited by AT&T (see January 16, 2004), it would have placed “splitters” only at entry points such as ocean cable-head stations rather than in AT&T offices (see October 2003) in locations such as Atlanta and San Francisco (see Late 2003), where they would inevitably pick up huge amounts of domestic communications. Marcus, a former AT&T employee who held a top secret clearance when he was a consultant for the Federal Communications Commission (FCC), writes: “The majority of international IP [Internet Protocol] traffic enters the United States at a limited number of locations, many of them in the areas of northern Virginia, Silicon Valley, New York, and (for Latin America) south Florida. This deployment, however, is neither modest nor limited, and it apparently involves considerably more locations that would be required to catch the majority of international traffic.” (Emphasis in original.) Marcus continues: “I conclude that the designers of the SG3 Configuration (see Late 2003) made no attempt, in terms of the location or position of the fiber split, to exclude data sources primarily comprised of domestic data.… Once the data has been diverted, there is nothing in the data that reliably and unambiguously distinguishes whether the destination is domestic or foreign.” Marcus estimates that the NSA has 15 to 20 sites in AT&T facilities around the country, and says, “a substantial fraction, probably well over half, of AT&T’s purely domestic traffic was diverted.” Former senior AT&T technician Mark Klein (see July 7, 2009 and May 2004) will later write, “Though Marcus refrained from drawing the obvious conclusion, the facts strongly suggest that this entire apparatus was designed for domestic spying.” (Emphasis in original). [Klein, 2009, pp. 49-50, 71] Klein will also write that Marcus’s expertise “was at a much higher level than mine.” Klein will later write that he is pleased that Marcus’s statement validates and supports his own documentation and conclusions. [Klein, 2009, pp. 71]

Entity Tags: National Security Agency, AT&T, Electronic Frontier Foundation, Mark Klein, J. Scott Marcus

Timeline Tags: Civil Liberties

The Justice Department demands that it be allowed to review evidence obtained by the Electronic Frontier Foundation (EFF) from retired AT&T technician Mark Klein (see February 23-28, 2006). The EFF is preparing to submit the evidence under regular court seal to presiding Judge Vaughn Walker. Neither the Justice Department nor any other government agency is a named defendant in the EFF’s lawsuit against AT&T for its allegedly illegal behavior in working with the National Security Agency (NSA) to conduct warrantless surveillance against American citizens (see January 31, 2006). Even so, lawyers from the Justice Department say they want to see if Klein’s documentation contains classified information (it does not—see Late 2003), and if so, they intend to place Klein’s documentation into a “sensitive compartmented information facility,” which would mean it would not be kept at the courthouse but in the possession of government agents at a secure location. Such classification would make the legal proceedings more difficult for both Judge Walker and the EFF lawyers. However, the request piques the interest of the national media, and reporters begin “flooding” Klein and the EFF with requests for information and interviews. [Klein, 2009, pp. 65-66] Ironically, two news outlets, the Los Angeles Times and New York Times, have all but shunned Klein before now (see February 11, 2006 and After and Mid-February - Late March, 2006). On April 4, after perusing the documents, the government lawyers return them to Walker with approval from senior Justice Department lawyer Anthony J. Coppolino to file them under ordinary court seal. Klein will later write that Coppolino’s acquiescence will undermine the government’s later efforts to have the lawsuit dismissed under the “state secrets” provision (see Late May, 2006). [Klein, 2009, pp. 66] In June 2007, the online technical news site Wired News will publish the documents after they are released by the Electronic Frontier Foundation (see June 13, 2007) under the headline “AT&T ‘Spy Room’ Documents Unsealed; You’ve Already Seen Them.” Wired previously published them in May 2006 (see May 17, 2006), and PBS’s Frontline also published them as part of a televised documentary on Klein and the eavesdropping program. [Wired News, 6/13/2007]

Entity Tags: Mark Klein, AT&T, Anthony J. Coppolino, Los Angeles Times, US Department of Justice, New York Times, Electronic Frontier Foundation, Vaughn Walker, Wired News, National Security Agency

Timeline Tags: Civil Liberties

AT&T issues a set of demands to whistleblower and former AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), who is providing evidence and documentation to the Electronic Frontier Foundation (EFF) for that organization’s lawsuit against AT&T (see December 31, 2005 and January 31, 2006). AT&T claims Klein’s documentation, which he procured while working for the company, is “confidential and proprietory” information which he should never have publicly disclosed (see Late March - April 4, 2006 and April 6, 2006). The documentation, AT&T claims, is “extremely sensitive in nature and could be used to compromise the integrity of AT&T’s network.” The firm demands the return of the original documents and all copies, and tells Klein to “refrain from discussing or otherwise disclosing your sealed declaration,” referring to the declaration he has made for the lawsuit (see February 23-28, 2006). AT&T sends similar demands to the EFF, and makes a court filing requesting that EFF turn over its documents to the firm. In response, Klein’s lawyers, Miles Ehrlich and Ismail “Izzy” Ramsey (see Early February 2006), decide that they need the assistance of an experienced civil lawyer, and retain James Brosnahan, the veteran trial lawyer who once represented “American Taliban” John Walker Lindh (see December 3-5, 2001). Klein, with the approval of his lawyers, sends a letter to the EFF explaining that AT&T’s threats and demands are “intended to dazzle ignorant people who know nothing about technical matters.” In his letter, he accuses AT&T of either being genuinely ignorant or “feign[ing] ignorance” about the content of his technical documents. The technical documents he possesses, he says, are not confidential nor proprietory, nor are they related to AT&T’s telephone services, as the firm has claimed. Nothing in the documents could be used to compromise the integrity of AT&T’s networks. Klein says that the addition of the splitters to eavesdrop upon and copy over the electronic communications of American citizens (see Late 2003 and March 29, 2006) has already “compromised the integrity of AT&T’s network.” Klein goes on to note that AT&T does not deny colluding with the government to spy on Americans’ communications, instead it says that the documents Klein possesses do not clearly prove that collusion. In conclusion, Klein writes, AT&T is using specious claims of “trade secrets” infringement and false assertions about the nature and content of Klein’s documents to challenge their acceptability in court. Klein meets with his lawyers to discuss their response to the AT&T demands, and after the lawyers warn him of the possible ramifications of fighting such a large corporation and the government at once, Klein insists he wants to press forward. Brosnahan tells Klein, “My grandfather would be proud of me for taking this on,” and promises, “Don’t worry, Mark, we won’t let you hang out there to dry.” Klein later writes that Bresnahan “was as good as his word.” After Brosnahan meets with the AT&T lawyers on April 10, the firm will withdraw its demands against Klein and EFF. Klein will later write: “[I]f they sued me we would get the right of discovery in court, and that was the last thing they wanted. They only wanted to get out of court.” [New York Times, 4/12/2006; Wired News, 4/12/2006; Klein, 2009, pp. 67-70]

Entity Tags: Ismail (“Izzy”) Ramsey, AT&T, Electronic Frontier Foundation, James Brosnahan, Mark Klein, Miles Ehrlich

Timeline Tags: Civil Liberties

The New York Times does a more in-depth report on the allegations advanced by former AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), who is providing evidence and documentation to the Electronic Frontier Foundation (EFF) for that organization’s lawsuit against AT&T (see December 31, 2005 and January 31, 2006). The Times published a far briefer report five days earlier (see April 7, 2006). The article provides a brief synopsis of Klein’s allegations—that AT&T worked with the National Security Agency (NSA) to illegally monitor and record millions of Americans’ telephone and Internet communications and thus illegally invaded its customers’ privacy. It also notes, as did the first article, that Klein had provided some of his documentation “to reporters,” though neither article admits that the Times received the documents months beforehand (see Mid-February - Late March, 2006). The new information in the article is the conclusion of “four independent telecommunications and computer security experts” who examined Klein’s documents “at the request of The New York Times.” According to the four experts, the documents “describe equipment capable of monitoring a large quantity of email messages, Internet phone calls, and other Internet traffic. The equipment… was able to select messages that could be identified by keywords, Internet or email addresses, or country of origin and divert copies to another location for further analysis.” All four experts agreed that the documents proved “AT&T had an agreement with the federal government to systematically gather information flowing on the Internet through the company’s network. The gathering of such information, known as data mining, involves the use of sophisticated computer programs to detect patterns or glean useful intelligence from masses of information.” Brian Reid, the director of engineering at the Internet Systems Consortium, says of the AT&T/NSA project: “This took expert planning and hundreds of millions of dollars to build. This is the correct way to do high volume Internet snooping.” An expert who refuses to be named says the documents are “consistent” with Bush administration claims that the NSA only monitored foreign communications and communications between foreign and US locations, in part because of the location of the monitoring sites. (An expert witness, former AT&T and FCC employee J. Scott Marcus, has given testimony for EFF that flatly contradicts this expert’s assertions—see March 29, 2006). The article notes the Justice Department’s objections to Klein’s documents being filed with the court in the EFF lawsuit, and notes that the department withdrew its objections (see Late March - April 4, 2006). It also notes AT&T’s request for the court to order the EFF to return the documents because they are, the firm claimed, “proprietary” (see April 6-8, 2006). AT&T spokesman Walt Sharp says of Klein and the EFF lawsuit: “AT&T does follow all laws with respect to assistance offered to government agencies. However, we are not in a position to comment on matters of national security.” NSA spokesman Don Weber makes a similar statement: “It would be irresponsible of us to discuss actual or alleged operational issues as it would give those wishing to do harm to the United States the ability to adjust and potentially inflict harm.” [New York Times, 4/12/2006] Klein will write of the story, “Finally it was out there in a major newspaper, though I noticed that the New York Times did not show any images of the actual documents, and never called me back for an in-depth followup story.” [Klein, 2009, pp. 71]

Entity Tags: J. Scott Marcus, Brian Reid, AT&T, Bush administration (43), Electronic Frontier Foundation, National Security Agency, Walter Sharp, Mark Klein, Don Weber, New York Times, US Department of Justice

Timeline Tags: Civil Liberties

The Justice Department announces that it is invoking the “state secrets” clause to prevent a lawsuit by the Electronic Frontier Foundation (EFF) against AT&T from going forward (see March 9, 1953 and January 31, 2006). The EFF is suing AT&T for compromising its customers’ privacy by colluding with the National Security Agency (NSA) in that agency’s domestic surveillance program. The government alleges that the lawsuit would reveal “state secrets” critical to “national security” if it continues. The Justice Department makes its initial filing in mid-May (see May 13, 2006). [US District Court, Northern District of California, 4/28/2006 pdf file; Klein, 2009, pp. 71]

Entity Tags: Electronic Frontier Foundation, AT&T, National Security Agency, US Department of Justice

Timeline Tags: Civil Liberties

A simulation of waterboarding arranged by ABC News.A simulation of waterboarding arranged by ABC News. [Source: ABC News]According to an ABC News report in September 2007, CIA Director Michael Hayden bans the use of waterboarding some time in 2006, with the approval of the White House. It is not known when exactly the technique is banned that year, but presumably it takes place after Hayden becomes CIA director (see May 5, 2006) and in response to the Supreme Court decision mandating that terror suspects must be given treatment consistent with the Geneva Conventions (see July 12, 2006). Waterboarding is a harsh interrogation technique that simulates drowning and is usually referred to as torture. Allegedly, the CIA last used waterboarding in 2003 on Khalid Shaikh Mohammed and “It is believed that waterboarding was used on fewer than five ‘high-value’ terrorist subjects” (see May 2002-2003). John Sifton of Human Rights Watch later says the ban “a good thing, but the fact remains that the entire [CIA interrogation] program is illegal.” [ABC News, 9/14/2007] Over a year before Hayden’s decision, Justice Department official Daniel Levin had himself subjected to simulated waterboarding to help him determine if waterboarding was indeed torture (see Late 2004-Early 2005). Levin intended to issue a memo condemning the practice as beyond the bounds of the law, but was forced out of the Justice Department before he could make that ruling.

Entity Tags: Daniel Levin, US Supreme Court, US Department of Justice, White House, Central Intelligence Agency, John Sifton, Khalid Shaikh Mohammed, Michael Hayden, Geneva Conventions

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

The British high court in London decides in favor of the Chagos islanders, ruling that the British government’s 2004 decision (see June 2004) to block the return of the islanders to their homes was unlawful. Lord Justice Hooper and Justice Cresswell write in their ruling: “The suggestion that a minister can, through the means of an order in council, exile a whole population from a British overseas territory and claim that he is doing so for the ‘peace, order and good government’ of the territory is, to us, repugnant.” The ruling—which is the fourth time in the past five years that the courts have deplored the government’s treatment of the islanders—paves the way for the islanders’ return. [Guardian, 5/12/2006] But on June 30, Foreign Secretary Margaret Beckett will file an appeal. [Guardian, 7/1/2006]

Entity Tags: Margaret Beckett, Chagossians

Timeline Tags: US-Britain-Diego Garcia (1770-2004)

The lawsuit brought forth by Khalid el-Masri and the ACLU (see December 6, 2005) is dismissed by US District Judge T.S. Ellis III in Alexandria, who rules that the state secrets privilege (see March 9, 1953) was properly invoked by the US Justice Department. The judge argues that Masri’s “private interests must give way to the national interest in preserving state secrets.” [Washington Post, 5/19/2006]

Entity Tags: American Civil Liberties Union, Central Intelligence Agency, T.S. Ellis III, Khalid el-Masri

Timeline Tags: Torture of US Captives, Civil Liberties

Wired News logo.Wired News logo. [Source: Delve Networks]Evan Hansen, the editor in chief of Wired News, an online technical news site, explains why the site published a set of documents from AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009). Klein is working with the Electronic Frontier Foundation (EFF) in that organization’s lawsuit against AT&T for invading its customers’ privacy by taking part in the National Security Agency’s warrantless domestic wiretap operation (see January 31, 2006). The presiding judge, Vaughn Walker, has denied requests from the EFF and a number of news organizations to unseal the documents and make them public. For its part, AT&T wants the documents to remain sealed, claiming they are proprietary and that it would suffer harm if they were disclosed (see April 6-8, 2006). Hansen and the Wired News senior staff disagree. “In addition,” Hansen writes, “we believe the public’s right to know the full facts in this case outweighs AT&T’s claims to secrecy.” Hansen erroneously says that the documents seem “to be excerpted from material that was later filed in the lawsuit under seal,” though “we can’t be entirely sure, because the protective order prevents us from comparing the two sets of documents.” Klein later writes that the Wired News staff “confused my 2004 memo (see January 16, 2004) with my court-sealed legal declaration” (see February 23-28, 2006); even so, Klein will write, “it was true that all of the AT&T documents were still under court seal.” Hansen says Wired News reporter Ryan Singel received the Klein documents from “an anonymous source close to the litigation.” Hansen also writes: “We are filing a motion to intervene in the case in order to request that the court unseal the evidence, joining other news and civil rights organizations that have already done so, including the EFF, the San Francisco Chronicle, the Los Angeles Times, the San Jose Mercury News, the Associated Press, and Bloomberg. Before publishing these documents we showed them to independent security experts, who agreed they pose no significant danger to AT&T. For example, they do not reveal information that hackers might use to easily attack the company’s systems.” Hansen writes that Wired’s publication of the documents does not violate Walker’s gag order concerning the documents’ publication, as the order specifically bars the EFF and its representatives—and no one else—from publishing or discussing them. “The court explicitly rejected AT&T’s motion to include Klein in the gag order and declined AT&T’s request to force the EFF to return the documents,” he notes (see May 17, 2006). [Wired News, 5/22/2006; Klein, 2009, pp. 75]

Entity Tags: Vaughn Walker, AT&T, Electronic Frontier Foundation, Evan Hansen, Mark Klein, Ryan Singel, Wired News, National Security Agency

Timeline Tags: Civil Liberties

The Bush administration submits a legal brief arguing that the Electronic Frontier Foundation’s lawsuit against AT&T, alleging that firm cooperated with the NSA’s domestic surveillance program (see January 31, 2006), should be thrown out of court because of the government’s “state secrets” privilege (see March 9, 1953). Justice Department lawyers want Judge Vaughn Walker to examine classified documents that they say will convince him to dismiss the lawsuit. However, the government does not want the defense lawyers to see that material. “No aspect of this case can be litigated without disclosing state secrets,” the government argues. “The United States has not lightly invoked the state secrets privilege, and the weighty reasons for asserting the privilege are apparent from the classified material submitted in support of its assertion.” [CNET News, 5/26/2006]

Entity Tags: US Department of Justice, Electronic Frontier Foundation, AT&T, Vaughn Walker, Bush administration (43)

Timeline Tags: Civil Liberties

The Miami Seven. Group leader Narseal Batiste is on the bottom right.The Miami Seven. Group leader Narseal Batiste is on the bottom right. [Source: BBC]Police arrest seven people during a raid on a warehouse in the Miami area. The men are alleged to be a “home-grown” terrorist cell plotting to blow up the Sears Tower in Chicago and the FBI building in Miami, as well as possible other unspecified targets. They had allegedly conducted video surveillance of their targets. [CNN, 6/23/2006] The men are identified in the federal indictment as Narseal Batiste, Patrick Abraham, Stanley Grant Phanor, Naudimar Herrera, Burson Augustin, Lyglenson Lemorin, and Rotschild Augustine. [FindLaw, 6/22/2006] Two are Haitians, five are US citizens, and two are US immigrants. [Democracy Now!, 6/26/2006] Vice President Dick Cheney describes them as a “a very real threat.” [London Times, 6/25/2006] Bruce Hoffman, a counterterrorism expert who heads the Washington office of the Rand Corp., says that “amateur terrorists can kill as effectively as the professional kind.” [Washington Post, 6/24/2006] However, officials concede that the group never had any contact with any other terrorist groups, including al-Qaeda. [BBC, 6/23/2006] Officials also admit that the men had not acquired any explosives or weapons. Chicago Police Superintendent Philip Cline says “there was never any danger to the Sears Tower or Chicago.” Deputy FBI Director John Pistole says that the plot had not progressed beyond early planning stages and “was aspirational rather than operational.” Hoffman says that it is “not clear is whether they had any real capabilities to pull [the plot] off.” [Washington Post, 6/24/2006] An FBI informant posing as an al-Qaeda operative had infiltrated the group for nearly six months and many conversations were recorded. [Washington Post, 9/2/2006] Batiste, the leader of the group, allegedly stated that he and his “soldiers” wanted to receive terrorist training in order to wage a “full ground war” against the US and to “kill all the devils we can.” [BBC, 6/23/2006] He requested boots, uniforms, machine guns, radios, vehicles, and $50,000 in cash from the informant. However, the men were only able to acquire military boots and a video camera. The indictment indicates that the men lacked any real resources; these organizational problems caused the plot to peter out by May. [Washington Post, 6/24/2006] Critics accuse the FBI of running a border-line entrapment operation in which a plot that was virtually a pipe-dream was kept alive by the involvement of the informant. Max Rameau of Miami CopWatch points out that the military gear and cameras had been supplied to the men by the government, via the informant. [Democracy Now!, 6/26/2006] Court records would later show that not only did the government provide materiel to the group, but the informant also suggested the Miami FBI office as the first target. The records show that the informant, known as CW2, played a key role in the advancement of the plot, such as administering the “al-Qaeda oaths” taken by the men. At a detention hearing, judge Ted E. Bandstra says that the allegations are “disturbing,” but adds that “the plans appear to be beyond the present ability of these defendants.” [Washington Post, 9/2/2006]

Entity Tags: Narseal Batiste, Naudimar Herrera, Patrick Abraham, Rotschild Augustine, Richard (“Dick”) Cheney, Max Rameau, Philip J. Cline, Lyglenson Lemorin, Federal Bureau of Investigation, Joan Leonard, Al-Qaeda, John S. Pistole, Bruce Hoffman, CW2, Burson Augustin, Ted E. Bandstra, Stanley Grant Phanor

Timeline Tags: Complete 911 Timeline

Salim Ahmed Hamdan in 1999.Salim Ahmed Hamdan in 1999. [Source: Pubic domain via the New York Times]In the Hamdan v. Rumsfeld case, the Supreme Court rules 5-3 to strike down the Bush administration’s plans to try Guantanamo detainees before military commissions. Ruling in favor of detainee Salim Ahmed Hamdan (see November 8, 2004), the Court rules that the commissions are unauthorized by federal statutes and violate international law. Writing for the majority, Justice John Paul Stevens says, “The executive is bound to comply with the rule of law that prevails in this jurisdiction.” The opinion throws out each of the administration’s arguments in favor of the commissions, including its assertion that Congress had stripped the Supreme Court of the jurisdiction to decide the case. One of the major flaws in the commissions, the Court rules, is that President Bush unilaterally established them without the authorization of Congress. [New York Times, 6/30/2006] During the oral arguments three months before, Hamdan’s lawyer, Neal Katyal, told the Court: “The whole point of this [proceeding] is to say we’re challenging the lawfulness of the tribunal [the military commissions] itself. This isn’t a challenge to some decision that a court makes. This is a challenge to the court itself, and that’s why it’s different than the ordinary criminal context that you’re positing.” [Savage, 2007, pp. 274-275]
Major Defeat for Bush Administration - Civil libertarian and human rights organizations consider the ruling a shattering defeat for the administration, particularly in its assertions of expansive, unfettered presidential authority. Bush says in light of the decision, he will work with Congress to “find a way forward” to implement the commissions. “The ruling destroys one of the key pillars of the Guantanamo system,” says Gerald Staberock, a director of the International Commission of Jurists. “Guantanamo was built on the idea that prisoners there have limited rights. There is no longer that legal black hole.” The ruling also says that prisoners held as “enemy combatants” must be afforded rights under the Geneva Conventions, specifically those requiring humane treatment for detainees and the right to free and open trials in the US legal system. While some form of military trials may be permissible, the ruling states that defendants must be given basic rights such as the ability to attend the trial and the right to see and challenge evidence submitted by the prosecution. Stevens writes that the historical origin of military commissions was in their use as a “tribunal of necessity” under wartime conditions. “Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections.” [New York Times, 6/30/2006] In 2007, author and reporter Charlie Savage will write, “Five justices on the Supreme Court said Bush had broken the law.” [Savage, 2007, pp. 275]
Hardline Conservative Justices Dissent - Stevens is joined by Justices David Souter, Stephen Breyer, and Ruth Bader Ginsburg. Justice Anthony Kennedy issues a concurring opinion. Dissenting are Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. Thomas, in a dissent signed by Scalia and Alito, calls the decision “untenable” and “dangerous.” Chief Justice John Roberts recused himself from the case because of his participation in a federal appeals court that ruled in favor of the administration (see November 8, 2004).
Not Charged for Three Years - Hamdan is a Guantanamo detainee from Yemen, captured in Afghanistan in November 2001 and taken to Guantanamo in June 2002. He is accused of being a member of al-Qaeda, in his function as driver and bodyguard for Osama bin Laden. He was not charged with a crime—conspiracy—until mid-2004. [New York Times, 6/30/2006]

Entity Tags: Samuel Alito, US Supreme Court, Salim Ahmed Hamdan, Stephen Breyer, Ruth Bader Ginsburg, John G. Roberts, Jr, Al-Qaeda, Antonin Scalia, Bush administration (43), Center for Constitutional Rights, Anthony Kennedy, John Paul Stevens, David Souter, International Commission of Jurists, Gerald Staberock, Geneva Conventions, Clarence Thomas

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Daniel Dell’Orto.Daniel Dell’Orto. [Source: US Department of Defense]Shortly after the Supreme Court rules that the Geneva Conventions apply to detainees suspected of terrorist affiliations (see June 30, 2006), the Bush administration publicly agrees to apply the Conventions to all terrorism suspects in US custody, and the Pentagon announces that it is now requiring all military officials to adhere to the Conventions in dealing with al-Qaeda detainees. The administration says that from now on, all prisoners in US custody will be treated humanely in accordance with the Conventions, a stipulation that would preclude torture and “harsh interrogation methods.” Until the ruling, the administration has held that prisoners suspected of terrorist affiliations did not have the right to be granted Geneva protections (see February 7, 2002). Lawyer David Remes, who represents 17 Guantanamo detainees, says, “At a symbolic level, it is a huge moral triumph that the administration has acknowledged that it must, under the Supreme Court ruling, adhere to the Geneva Conventions. The legal architecture of the war on terror was built on a foundation of unlimited and unaccountable presidential power, including the power to decide unilaterally whether, when and to whom to apply the Geneva Conventions.” But in the wake of the ruling the administration is pressuring Congress to introduce legislation that would strip detainees of some of the rights afforded them under the Conventions, including the right to free and open trials, even in a military setting. “The court-martial procedures are wholly inappropriate for the current circumstances and would be infeasible for the trial of these alien enemy combatants,” says Steven Bradbury, the acting chief of the Justice Department’s Office of Legal Counsel. Bradbury and Daniel Dell’Orto, the Defense Department’s principal deputy attorney general, have repeatedly urged lawmakers to limit the rights of detainees captured in what the administration terms its war on terrorism. Dell’Orto says Congress should not require that enemy combatants be provided lawyers to challenge their imprisonment. Congressional Democrats have a different view. Senate Judiciary Chairman Patrick Leahy (D-VT) says, “I find it hard to fathom that this administration is so incompetent that it needs kangaroo-court procedures to convince a tribunal of United States military officers that the ‘worst of the worst’ imprisoned at Guantanamo Bay should be held accountable” for crimes. “We need to know why we’re being asked to deviate from rules for courts-martial.” [Washington Post, 7/12/2006]

Entity Tags: US Department of Justice, US Supreme Court, US Department of Defense, Patrick J. Leahy, Al-Qaeda, Daniel J. Dell’Orto, David Remes, Geneva Conventions, Office of Legal Counsel (DOJ), Steven Bradbury

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Federal district court judge Anna Diggs Taylor rules that the NSA’s warrantless wiretapping program (see Early 2002) is unconstitutional and orders it ended. She amends her ruling to allow the program to continue while the Justice Department appeals her decision. The decision is a result of a lawsuit filed by the American Civil Liberties Union (ACLU) and other civil liberties groups. Taylor rules that the NSA program violates US citizens’ rights to privacy and free speech, the Constitutional separation of powers among the three branches of government, and the Foreign Intelligence Surveillance Act (see 1978). Taylor writes: “It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution.” [Verdict in ACLU et al v. NSA et al, 8/17/2006 pdf file; Washington Post, 8/18/2006] The program “violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III,” Taylor writes, and adds, “[T]he president of the United States… has undisputedly violated the Fourth in failing to procure judicial orders.” [CNN, 8/17/2006]
Judge Lets One Portion Stand - Taylor rejects one part of the lawsuit that seeks information about the NSA’s data mining program (see October 2001), accepting the government’s argument that to allow that portion of the case to proceed would reveal state secrets (see March 9, 1953). Other lawsuits challenging the program are still pending. Some legal scholars regard Taylor’s decision as poorly reasoned: national security law specialist Bobby Chesney says: “Regardless of what your position is on the merits of the issue, there’s no question that it’s a poorly reasoned decision. The opinion kind of reads like an outline of possible grounds to strike down the program, without analysis to fill it in.” The White House and its Republican supporters quickly attack Taylor, who was appointed to the bench by then-President Jimmy Carter, as a “liberal judge” who is trying to advance the agenda of Congressional Democrats and “weaken national security.” For instance, Senator Mike DeWine (R-OH) says that halting the program “would hamper our ability to foil terrorist plots.” [Washington Post, 8/18/2006]
Democrats, Civil Libertarians Celebrate Ruling - But Democrats defend the ruling. For instance, Senator John Kerry (D-MA) says the ruling provides a much-needed check on the unfettered power of the Bush White House. “[N]o one is above the law,” says Kerry. [Washington Post, 8/18/2006] Lawyers for some of the other cases against the NSA and the Bush administration laud the decision as giving them vital legal backing for their own court proceedings. “We now have a ruling on the books that upholds what we’ve been saying all along: that this wiretapping program violates the Constitution,” says Kevin Bankston, who represents the Electronic Frontier Foundation (EFF) in its class-action case against AT&T for its role in the NSA’s surveillance program (see January 31, 2006). [Washington Post, 8/18/2006] Legal expert and liberal commentator Glenn Greenwald writes that Taylor’s ruling “does not, of course, prohibit eavesdropping on terrorists; it merely prohibits illegal eavesdropping in violation of FISA. Thus, even under the court’s order, the Bush administration is free to continue to do all the eavesdropping on terrorists it wants to do. It just has to cease doing so using its own secretive parameters, and instead do so with the oversight of the FISA court—just as all administrations have done since 1978, just as the law requires, and just as it did very recently when using surveillance with regard to the [British] terror plot. Eavesdropping on terrorists can continue in full force. But it must comply with the law.” Greenwald writes: “[T]he political significance of this decision cannot be denied. The first federal court ever to rule on the administration’s NSA program has ruled that it violates the constitutional rights of Americans in several respects, and that it violates criminal law. And in so holding, the court eloquently and powerfully rejected the Bush administration’s claims of unchecked executive power in the area of national security.” [Salon, 8/17/2006]
White House Refuses to Comply - The Bush administration refuses to comply with Taylor’s ruling, asserting that the program is indeed legal and a “vital tool” in the “war on terrorism.” It will quickly file an appeal, and law professors on both sides of the issue predict that Taylor’s ruling will be overturned. [Savage, 2007, pp. 206]
Lawsuit Ends with White House 'Compromise' - The lawsuit will end when the White House announces a “compromise” between the wiretapping program and FISC (see January 17, 2007).

Entity Tags: John Kerry, Kevin Bankston, Mike DeWine, US Department of Justice, Peter Hoekstra, Glenn Greenwald, National Security Agency, George W. Bush, James Earl “Jimmy” Carter, Jr., Foreign Intelligence Surveillance Act, Alberto R. Gonzales, American Civil Liberties Union, AT&T, Anna Diggs Taylor, Bush administration (43), Bobby Chesney, Foreign Intelligence Surveillance Court, Electronic Frontier Foundation

Timeline Tags: Civil Liberties

Actor Kiefer Sutherland as ‘Jack Bauer.’Actor Kiefer Sutherland as ‘Jack Bauer.’ [Source: Stuff.co.nz]Law professor Phillippe Sands begins a series of interviews with the former staff judge advocate for the US Army in Guantanamo, Lieutenant Colonel Diane Beaver. She is the author of a legal analysis that was used by the Bush administration to justify its extreme interrogation techniques (see October 11, 2002). Sands describes her as “coiled up—mistreated, hung out to dry.” She is unhappy with the way the administration used her analysis, and notes that she was guided in her work at Guantanamo by personnel from the CIA and Defense Intelligence Agency. She believes that some of the interrogation techniques were “reverse-engineered” from a training program called SERE—Survival, Evasion, Resistance, and Escape—though administration officials have denied this. Several Guantanamo personnel were sent to Fort Bragg, SERE’s home, for a briefing on the program (see December 2001, January 2002 and After, Mid-April 2002, Between Mid-April and Mid-May 2002, July 2002, July 2002, July 2002, and August 1, 2002). Military training was not the only source of inspiration. Fox’s television drama 24 came to a conclusion in the spring of 2002, Beaver recalls. One of the overriding messages of that show is that torture works. “We saw it on cable,” Beaver remembers. “People had already seen the first series. It was hugely popular.” The story’s hero, Jack Bauer, had many friends at Guantanamo, Beaver adds. “He gave people lots of ideas.” She recalls in graphic terms how excited many of the male personnel became when extreme interrogation methods were discussed. “You could almost see their d_cks getting hard as they got new ideas,” she will say. “And I said to myself, You know what? I don’t have a d_ck to get hard—I can stay detached.” The FBI and the Naval Criminal Investigative Service refused to become involved in aggressive interrogations, she says (see Late March through Early June, 2002 and December 17, 2002). [Vanity Fair, 5/2008]

Entity Tags: Naval Criminal Investigative Service, Diane E. Beaver, Federal Bureau of Investigation, Fox Broadcasting Company, Phillippe Sands, Georgetown University

Timeline Tags: Torture of US Captives

Mohamad Farik Amin.Mohamad Farik Amin. [Source: FBI]The US temporarily closes a network of secret CIA prisons around the world and transfers the most valuable prisoners to the US prison in Guantanamo, Cuba, for eventual military tribunals. The prison network will be reopened a short time later (see Autumn 2006-Late April 2007). There were reportedly fewer than 100 suspects in the CIA prisons; most of them are apparently sent back to their home countries while fourteen are sent to Guantanamo. All fourteen have some connection to al-Qaeda. Seven of them reportedly had some connection to the 9/11 attacks. Here are their names, nationalities, and the allegations against them.
bullet Khalid Shaikh Mohammed (KSM) (Pakistani, raised in Kuwait). He is the suspected mastermind of 9/11 attacks and many other al-Qaeda attacks. A CIA biography of KSM calls him “one of history’s most infamous terrorists.”
bullet Mustafa Ahmed al-Hawsawi (Saudi). He allegedly helped finance the 9/11 attacks.
bullet Hambali (Indonesian). He attended a key planning meeting for the 9/11 attacks in Malaysia (see January 5-8, 2000) and is accused of involvement in many other plots, including the 2002 Bali bombings (see October 12, 2002).
bullet Khallad bin Attash (a.k.a. Tawfiq bin Attash) (Yemeni). He also attended a key planning meeting for the 9/11 attacks in Malaysia (see January 5-8, 2000) and had a role in other plots such as the 2000 USS Cole bombing (see October 12, 2000).
bullet Ali Abdul Aziz Ali (Pakistani, raised in Kuwait). He allegedly helped finance the 9/11 attacks and arranged transportation for some hijackers. His uncle is KSM.
bullet Ramzi bin al-Shibh (Yemeni). A member of the Hamburg al-Qaeda cell with Mohamed Atta and other 9/11 hijackers. The CIA calls him the “primary communications intermediary” between the hijackers and KSM. He also attended a key planning meeting for the 9/11 attacks in Malaysia (see January 5-8, 2000).
bullet Abd al-Rahim al-Nashiri (Saudi). He is said to have been one of the masterminds of the USS Cole bombing (see October 12, 2000). He also attended a key planning meeting for the 9/11 attacks in Malaysia (see January 5-8, 2000).
The remaining seven suspects are alleged to have been involved in other al-Qaeda plots:
bullet Abu Zubaida (Palestinian, raised in Saudi Arabia). He is said to be a facilitator who helped make travel arrangements for al-Qaeda operatives. He is also alleged to have organized a series of planned millennium attacks.
bullet Ahmed Khalfan Ghailani (Tanzanian). He was indicted for a role in the 1998 African embassy bombings (see 10:35-10:39 a.m., August 7, 1998). He is also said to be an expert document forger.
bullet Majid Khan (Pakistani). He lived in the US since 1996 and is said to have worked with KSM on some US bomb plots (see March 5, 2003).
bullet Abu Faraj al-Libbi (a.k.a. Mustafa al-‘Uzayti) (Libyan). He allegedly became al-Qaeda’s top operations officer after KSM was captured.
bullet Mohamad Farik Amin (a.k.a. Zubair) (Malaysian). He is a key Hambali associate and was allegedly tapped for a suicide mission targeting Los Angeles.
bullet Mohammed Nazir Bin Lep (a.k.a. Lillie) (Malaysian). He is a key Hambali associate. He is accused of providing funds for the 2003 bombing of the Marriott hotel in Jakarta, Indonesia (see August 5, 2003). He was allegedly tapped for a suicide mission targeting Los Angeles.
bullet Gouled Hassan Dourad (Somali). He allegedly scouted a US military base in Djibouti for a planned terrorist attack.
The fourteen are expected to go on trial in 2007. [Knight Ridder, 9/6/2006; Central Intelligence Agency, 9/6/2006; USA Today, 9/7/2006]

Entity Tags: Majid Khan, Mustafa Ahmed al-Hawsawi, Mohamad Farik Amin, Mohammed Nazir Bin Lep, Ramzi bin al-Shibh, Hambali, Gouled Hassan Dourad, Abd al-Rahim al-Nashiri, Abu Faraj al-Libbi, Khallad bin Attash, Abu Zubaida, Ali Abdul Aziz Ali, Central Intelligence Agency, Ahmed Khalfan Ghailani, Khalid Shaikh Mohammed

Timeline Tags: Torture of US Captives, Complete 911 Timeline, 9/11 Timeline

Bush acknowledging the secret CIA prison network.Bush acknowledging the secret CIA prison network. [Source: Gerald Herbert / Associated Press]In a speech, President Bush acknowledges a network of secret CIA prisons and announces plans to try 14 top al-Qaeda terrorist suspects in military tribunals. [Knight Ridder, 9/6/2006]
Admits Existence of Detainees in CIA Custody - Bush tells his listeners: “In addition to the terrorists held at Guantanamo, a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency.… Many specifics of this program, including where these detainees have been held and the details of their confinement, cannot be divulged.… We knew that Abu Zubaida (see March 28, 2002) had more information that could save innocent lives, but he stopped talking.… As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures… The procedures were tough, and they were safe, and lawful, and necessary.… These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful. I cannot describe the specific methods used—I think you understand why.” Bush then adds that Zubaida “began to provide information on key al-Qaeda operatives, including information that helped us find and capture more of those responsible for the attacks on September 11” (see June 2002). Another high-value detainee, 9/11 planner Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003), provided “many details of other plots to kill innocent Americans” (see March 7 - Mid-April, 2003 and August 6, 2007). [Vanity Fair, 12/16/2008; New York Review of Books, 3/15/2009] The 14 prisoners will be put on trial as soon as Congress enacts the Military Commissions Act (MCA—see October 17, 2006), which he is sending to Congress for its approval today. [Savage, 2007, pp. 308-309]
Political Reasons to Acknowledge CIA Prisons - The US government has never officially acknowledged the existence of the CIA prisons before, despite numerous media accounts about them. Bush’s speech comes less than two months before midterm Congressional elections and also comes as the White House is preparing new legislation to legalize the CIA’s detention program and shield US officials from prosecution for possible war crimes. Knight Ridder comments that the speech “appeared to be intended to give him more leverage in his negotiations with Congress over how to try suspected terrorists.… In addition to the potential political benefits, Bush had other reasons to make the program public. A Supreme Court ruling in June struck down the administration’s plan to bring terrorist suspects before military tribunals and called into question the legality of secret CIA detentions.” [Knight Ridder, 9/6/2006]
Sites Closed Down? - Other administration officials say the CIA prison network has been closed down, at least for the time being. (In fact, it will be reopened a short time later (see Autumn 2006-Late April 2007).) Reportedly, “fewer than 100” suspects had ever been in CIA custody. It is not known who they were or what happened to all of them, but most of them reportedly were returned to their home countries for prosecution. Fourteen “high-value” suspects, including accused 9/11 mastermind Khalid Shaikh Mohammed, were transferred from the secret CIA prisons to the prison in Guantanamo, Cuba in the days just prior to Bush’s speech (see September 2-3, 2006).
Torture is 'against [US] Values' - Bush says: “I want to be absolutely clear with our people and the world: The United States does not torture. It’s against our laws, and it’s against our values. I have not authorized it—and I will not authorize it.” However, he says the Geneva Conventions’ prohibition against “humiliating and degrading treatment” could potentially cause legal problems for CIA interrogators. Other administration officials say harsh interrogation techniques such as waterboarding were used in the CIA prisons. Such techniques are considered by many to be forms of torture. Bush claims that information gleaned from interrogations in the secret prisons helped thwart attacks on the US and provided valuable information about al-Qaeda operations around the world. [Knight Ridder, 9/6/2006; Washington Post, 9/7/2006]

Entity Tags: Geneva Conventions, Central Intelligence Agency, George W. Bush, Military Commissions Act, Abu Zubaida, Khalid Shaikh Mohammed

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

In two separate sessions, from October 6-11 and again from December 4-14, officials of the International Committee of the Red Cross (ICRC) interview 14 detainees newly transferred from a variety of CIA secret “black sites” to Guantanamo. The transfers followed President Bush’s acknowledgment that the CIA has maintained a number of these sites and his announced intention to have a number of the detainees sent to the Cuban facility (see September 17, 2001 and September 6, 2006).
ICRC Access - The ICRC is legally bound to monitor compliance with the Geneva Conventions and to supervise the treatment of prisoners of war; previously, it had not been allowed to see the detainees, and in some cases were never informed of their detention. The ICRC officials interview each prisoner in private, with the intention of producing “a description of the treatment and material conditions of detention of the 14 during the period they were held in the CIA detention program.”
Interviews - The 14 have been held for periods ranging “from 16 months to almost four and a half years.” The ICRC’s report, never intended for public consumption, will be released to the CIA several months later (see February 14, 2007) and revealed in a book in early 2009 (see March 15, 2009). Some of the detainees, concerned about the possible repercussions that may ensue from their discussions, ask the ICRC to withhold their names from some allegations, though most of the report attributes specific narratives and allegations to particular prisoners. Almost every allegation is independently corroborated by other, named detainees.
'Striking Similarity' - In 2009, author Mark Danner will write, quoting the ICRC report: “[I]ndeed, since the detainees were kept ‘in continuous solitary confinement and incommunicado detention’ throughout their time in ‘the black sites,’ and were kept strictly separated as well when they reached Guantanamo, the striking similarity in their stories, even down to small details, would seem to make fabrication extremely unlikely, if not impossible. ‘The ICRC wishes to underscore,’ as the writers tell us in the introduction, ‘that the consistency of the detailed allegations provided separately by each of the 14 adds particular weight to the information provided below.’”
Topics of Report - The report covers the following areas:
bullet Main elements of the CIA detention program;
bullet Arrest and transfer;
bullet Continuous solitary confinement and incommunicado detention;
bullet Other methods of ill-treatment;
bullet Suffocation by water (the ICRC term for waterboarding);
bullet Prolonged stress standing;
bullet Beatings by use of a collar;
bullet Beating and kicking;
bullet Confinement in a box;
bullet Prolonged nudity;
bullet Sleep deprivation and use of loud music;
bullet Exposure to cold temperature/cold water;
bullet Prolonged use of handcuffs and shackles;
bullet Threats;
bullet Forced shaving;
bullet Deprivation/restricted provision of solid food;
bullet Further elements of the detention regime.
Conclusion - The report concludes: “The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman, or degrading treatment.” Danner will write, “Such unflinching clarity, from the body legally charged with overseeing compliance with the Geneva Conventions—in which the terms ‘torture’ and ‘cruel, inhuman, and degrading treatment’ are accorded a strictly defined legal meaning—couldn’t be more significant.” [New York Review of Books, 3/15/2009]

Entity Tags: International Committee of the Red Cross, Geneva Conventions, Central Intelligence Agency, Mark Danner

Timeline Tags: Torture of US Captives

President Bush signs the Military Commissions Act into law.President Bush signs the Military Commissions Act into law. [Source: White House]President Bush signs the Military Commissions Act (MCA) into law. [White House, 10/17/2006] The MCA is designed to give the president the authority to order “enemy detainees” tried by military commissions largely outside the scope of US civil and criminal procedures. The bill was requested by the Bush administration after the Supreme Court’s ruling in Hamdi v. Rumsfeld (see June 28, 2004) that the US could not hold prisoners indefinitely without access to the US judicial system, and that the administration’s proposal that they be tried by military tribunals was unconstitutional (see June 28, 2004). [FindLaw, 10/9/2006] It is widely reported that the MCA does not directly apply to US citizens, but to only non-citizens defined as “enemy combatants. [CBS News, 10/19/2006] However, six months later, a Bush administration lawyer will confirm that the administration believes the law does indeed apply to US citizens (see February 1, 2007).
Sweeping New Executive Powers - The MCA virtually eliminates the possibility that the Supreme Court can ever again act as a check on a president’s power in the war on terrorism. Similarly, the law gives Congressional approval to many of the executive powers previously, and unilaterally, seized by the Bush administration. Former Justice Department official John Yoo celebrates the MCA, writing, “Congress… told the courts, in effect, to get out of the war on terror” (see October 19, 2006). [Savage, 2007, pp. 319, 322]
'Abandoning' Core 'Principles' - The bill passed the Senate on a 65-34 vote, and the House by a 250-170 vote. The floor debate was often impassioned and highly partisan; House Majority Leader John Boehner (R-OH) called Democrats who opposed the bill “dangerous,” and Senate Judiciary Committee member Patrick Leahy (D-VT) said this bill showed that the US is losing its “moral compass.” Leahy asked during the debate, “Why would we allow the terrorists to win by doing to ourselves what they could never do, and abandon the principles for which so many Americans today and through our history have fought and sacrificed?” Senate Judiciary Committee chairman Arlen Specter (R-PA) had said he would vote against it because it is “patently unconstitutional on its face,” but then voted for it, saying he believes the courts will eventually “clean it up.” Specter’s attempt to amend the bill to provide habeas corpus rights for enemy combatants was defeated, as were four Democratic amendments. Republicans have openly used the debate over the MCA as election-year fodder, with House Speaker Dennis Hastert (R-IL) saying after the vote that “House Democrats have voted to protect the rights of terrorists,” and Boehner decrying “the Democrats’ irrational opposition to strong national security policies.” Democrats such as Senator Barack Obama (D-IL) say they will not fight back at such a level. “There will be 30-second attack ads and negative mail pieces, and we will be called everything from cut-and-run quitters to Defeatocrats, to people who care more about the rights of terrorists than the protection of Americans,” Obama says. “While I know all of this, I’m still disappointed, and I’m still ashamed, because what we’re doing here today—a debate over the fundamental human rights of the accused—should be bigger than politics.” [Washington Post, 10/19/2006] After winning the vote, Hastert accused Democrats who opposed the bill of “putting their liberal agenda ahead of the security of America.” Hastert said the Democrats “would gingerly pamper the terrorists who plan to destroy innocent Americans’ lives” and create “new rights for terrorists.” [New York Times, 10/19/2006]
Enemy Combatants - The MCA applies only to “enemy combatants.” Specifically, the law defines an “unlawful enemy combatant” as a person “who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents,” and who is not a lawful combatant. Joanne Mariner of Human Rights Watch says the definition far exceeds the traditionally accepted definition of combatant as someone who directly participates in hostilities. But under the MCA, someone who provides “material support” for terrorists—whether that be in the form of financial contributions or sweeping the floors at a terrorist camp—can be so defined. Worse, the label can be applied without recourse by either Bush or the secretary of defense, after a “competent tribunal” makes the determination. The MCA provides no guidelines as to what criteria these tribunals should use. Taken literally, the MCA gives virtually unrestricted power to the tribunals to apply the label as requested by the president or the secretary. Mariner believes the definition is both “blatantly unconstitutional” and a direct contradiction of centuries of Supreme Court decisions that define basic judicial rights. [FindLaw, 10/9/2006] Under this definition, the president can imprison, without charge or trial, any US citizen accused of donating money to a Middle East charity that the government believes is linked to terrorist activity. Citizens associated with “fringe” groups such as the left-wing Black Panthers or right-wing militias can be incarcerated without trial or charge. Citizens accused of helping domestic terrorists can be so imprisoned. Law professor Bruce Ackerman calls the MCA “a massive Congressional expansion of the class of enemy combatants,” and warns that the law may “haunt all of us on the morning after the next terrorist attack” by enabling a round of mass detentions similar to the roundup of Japanese-American citizens during World War II. [Savage, 2007, pp. 322]
Military Commissions - The MCA mandates that enemy combatants are to be tried by military commissions, labeled “regularly constituted courts that afford all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions.” The commissions must have a minimum of five commissioned military officers and a military judge; if death is a possible penalty, the commissions must have at least 12 officers. The defendant’s guilt must be proven beyond a reasonable doubt; convictions require a two-thirds vote. Sentences of beyond 10 years require a three-quarters vote, and death penalties must be unanimously voted for. Defendants may either represent themselves or by military or civilian counsel. The court procedures themselves, although based on standard courts-martial proceedings, are fluid, and can be set or changed as the secretary of defense sees fit. Statements obtained through methods defined as torture are inadmissible, but statements take by coercion and “cruel treatment” can be admitted. The MCA sets the passage of the Detainee Treatment Act (DTA—see December 15, 2005) as a benchmark—statements obtained before the December 30, 2005 enactment of that law can be used, even if the defendant was “coerced,” if a judge finds the statement “reasonable and possessing sufficient probative value.” Statements after that date must have been taken during interrogations that fall under the DTA guidelines. Defendants have the right to examine and respond to evidence seen by the commission, a provision originally opposed by the administration. However, if the evidence is classified, an unclassified summary of that material is acceptable, and classified exculpatory evidence can be denied in lieu of what the MCA calls “acceptable substitutes.” Hearsay evidence is admissible, as is evidence obtained without search warrants. Generally, defendants will not be allowed to inquire into the classified “sources, methods, or activities” surrounding evidence against them. Some human rights activists worry that evidence obtained through torture can be admitted, and the fact that it was obtained by torture, if that detail is classified, will not be presented to the court or preclude the evidence from being used. Public access to the commissions will be quite limited. Many experts claim these commissions are illegal both by US constitutional law and international law. [FindLaw, 10/9/2006]
Secret Courts - The military tribunals can be partially or completely closed to public scrutiny if the presiding judge deems such an action necessary to national security. The government can convey such concerns to the judge without the knowledge of the defense. The judge can exclude the accused from the trial if he deems it necessary for safety or if he decides the defendant is “disruptive.” Evidence can be presented in secret, without the knowledge of the defense and without giving the defense a chance to examine that evidence, if the judge finds that evidence “reliable.” And during the trial, the prosecution can at any time assert a “national security privilege” that would stop “the examination of any witness” if that witness shows signs of discussing sensitive security matters. This provision can easily be used to exclude any potential defense witness who might “breach national security” with their testimony. Author and investigative reporter Robert Parry writes, “In effect, what the new law appears to do is to create a parallel ‘star chamber’ system for the prosecution, imprisonment, and elimination of enemies of the state, whether those enemies are foreign or domestic.” [Consortium News, 10/19/2006]
Appeals - Guilty verdicts are automatically appealed to a Court of Military Commission Review, consisting of three appellate military justices. The DC Circuit Court of Appeals has extremely limited authority of review of the commissions; even its authority to judge whether a decision is consistent with the Constitution is limited “to the extent [that the Constitution is] applicable.”
Types of Crimes - Twenty-eight specific crimes fall under the rubric of the military commissions, including conspiracy (not a traditional war crime), murder of protected persons, murder in violation of the bill of war, hostage-taking, torture, cruel or inhuman treatment, mutilation or maiming, rape, sexual abuse or assault, hijacking, terrorism, providing material support for terrorism, and spying. [FindLaw, 10/9/2006]
CIA Abuses - The MCA, responding to the recent Supreme Court decision of Hamdan v. Rumsfeld (see June 30, 2006) that found the CIA’s secret detention program and abusive interrogation practices illegal, redefines and amends the law to make all but the most pernicious interrogation practices, even those defined as torture by the War Crimes Act and the Geneva Conventions, legal. The MCA actually rules that the Geneva Conventions are all but unenforceable in US courts. It also provides retroactive protection under the law to all actions as far back as November 1997. Under the MCA, practices such as waterboarding, stress positioning, and sleep deprivation cannot be construed as torture. [FindLaw, 10/9/2006] The MCA even states that rape as part of interrogations cannot be construed as torture unless the intent of the rapist to torture his victim can be proven, a standard rejected by international law. The MCA provides such a narrow definition of coercion and sexual abuse that most of the crimes perpetrated at Abu Ghraib are now legal. [Jurist, 10/4/2006] Although the MCA seems to cover detainee abuse for all US agencies, including the CIA, Bush says during the signing of the bill, “This bill will allow the Central Intelligence Agency to continue its program for questioning key terrorist leaders and operatives.” International law expert Scott Horton will note, “The administration wanted these prohibitions on the military and not on the CIA, but it did not work out that way.” Apparently Bush intends to construe the law to exempt the CIA from its restrictions, such as they are, on torture and abuse of prisoners. [Salon, 5/22/2007]
No Habeas Corpus Rights - Under the MCA, enemy combatants no longer have the right to file suit under the habeas corpus provision of US law. This means that they cannot challenge the legality of their detention, or raise claims of torture and mistreatment. Even detainees who have been released can never file suit to seek redress for their treatment while in US captivity. [FindLaw, 10/25/2006]
Retroactive Immunity - The administration added a provision to the MCA that rewrote the War Crimes Act retroactively to November 26, 1997, making any offenses considered war crimes before the MCA is adopted no longer punishable under US law. Former Nixon White House counsel John Dean will write in 2007 that the only reason he can fathom for the change is to protect administration officials—perhaps including President Bush himself—from any future prosecutions as war criminals. Dean will note that if the administration actually believes in the inherent and indisputable powers of the presidency, as it has long averred, then it would not worry about any such criminal liability. [Dean, 2007, pp. 239-240]

Entity Tags: Human Rights Watch, Joanne Mariner, US Supreme Court, Patrick J. Leahy, Military Commissions Act, John Dean, George W. Bush, Scott Horton, Geneva Conventions, Bruce Ackerman, Dennis Hastert, American Civil Liberties Union, Amnesty International, Detainee Treatment Act, Arlen Specter, War Crimes Act, Barack Obama, Central Intelligence Agency, Bush administration (43), John Boehner

Timeline Tags: Civil Liberties

John Yoo, a former Justice Department official, celebrates the passage of the Military Commissions Act (see October 17, 2006). Yoo writes that Congress has ordered “the courts, in effect, to get out of the war on terror.” The bill is not so much a victory for the presidency, Yoo writes, as it is a loss for the judiciary, a “stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world.” It supersedes the Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), which Yoo calls “an unprecedented attempt by the court to rewrite the law of war and intrude into war policy… [a] stunning power grab.” Now, he writes: “Congress and the president did not take the court’s power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court’s habeas powers in wartime because it disagreed with its decisions. The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.” Yoo had previously authored numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002). [Wall Street Journal, 10/19/2006]

Entity Tags: Military Commissions Act, John C. Yoo

Timeline Tags: Civil Liberties

In an interview with WDAY’s Scott Heinen, Vice President Dick Cheney says it was a “no-brainer for me” to authorize waterboarding of suspected terrorists (see April 2002 and After and Summer 2003). Cheney says that since waterboarding and other brutal methods are not torture, as he defines the term (see Mid-March 2002), the entire issue is not really an issue. “We don’t torture,” he says. “That’s not what we’re involved in. We live up to our obligations in international treaties that we’re party to, and so forth. But the fact is, you can have a fairly robust interrogation program without torture, and we need to be able to do that.” [Savage, 2007, pp. 154-155; Financial Times, 10/26/2008] After Cheney’s statement causes a welter of criticism among lawmakers and media figures, the White House says Cheney was not talking about waterboarding, and insists that the US does not torture. Cheney calls reporters to bolster the denial. “I did not talk about specific techniques and won’t,” he says. “I didn’t say anything about waterboarding.… He [Heinen] didn’t even use that phrase.” Human Rights Watch says Cheney’s remarks are “the Bush administration’s first clear endorsement” of waterboarding. [Associated Press, 10/28/2006]

Entity Tags: Richard (“Dick”) Cheney, Bush administration (43), Scott Heinen, Human Rights Watch

Timeline Tags: Torture of US Captives

The Director of National Intelligence, John Negroponte, and NSA Director Keith Alexander try to get a lawsuit dismissed that alleges the NSA illegally wiretapped a Saudi charitable organization (see February 28, 2006). The organization, the Al Haramain Islamic Foundation, is presenting a classified US document as proof of the illegal wiretapping.
Invoking 'State Secrets' Privilege - In late 2006, Negroponte and Alexander tell the presiding judge, US District Judge Garr King, that in order to defend itself, the government would have to disclose “state secrets” (see March 9, 1953) that would expose US anti-terrorism efforts. This same argument will be reiterated in July 2007, when government lawyers say, “Whether plaintiffs were subjected to surveillance is a state secret, and information tending to confirm or deny that fact is privileged.” The judge will hear arguments for and against dismissing the case on August 15, 2007. [Associated Press, 8/5/2007]
Judicial Examination - King, in Portland, Oregon, examined the document for himself, and read classified briefs supplied by the Justice Department. Upon reading the briefs, King met with government lawyers to discuss turning over yet more documents in discovery—a decision unlikely to have been taken had King not believed the evidence did not show that the Al Haramain plaintiffs were, in fact, monitored. And, under FISA, had the surveillance been lawful and court-ordered, King would have been legally constrained to dismiss the lawsuit, since according to that law, plaintiffs can only sue if no warrant was ever issued for the alleged surveillance. “If there was a FISA warrant, the whole case would have crumbled on the first day,” says plaintiff attorney Thomas Nelson, “It’s pretty obvious from the government’s conduct in the case, there was no warrant.”
'Inherent Authority' of President - Justice Department lawyers rely on the argument that the president has the inherent authority to order surveillance of suspected terrorists with or without warrants, and that to judge the president’s decision would reveal national secrets that would alert terrorists to government anti-terrorist actions, thereby mandating that this and other lawsuits be dismissed.
Consolidation of Lawsuits - An August 2006 court ruling ordering that the Al Haramain case be consolidated with 54 other NSA-related lawsuits, under US District Court Judge Vaughn Walker, damaged the government’s argument that it cannot be sued in court. Walker has presided over the year-old class-action lawsuit brought before his court by the Electronic Frontier Foundation against AT&T for the telecom firm’s cooperation with the NSA program (see January 31, 2006); Walker ruled in July 2006 that the case would proceed, against government requests that it be thrown out because of national security requirements. Walker ruled that because the government had already admitted to the existence of the program, the state secrets privilege does not apply. (The Justice Department is appealing Walker’s decision.) As for Al Haramain, its lawyers want that case to be adjudicated separately, because the court has sufficient evidence to decide on the case without waiting for the appellate court decision. Another lawyer for the plaintiffs, Jon Eisenberg, tells Walker in February 2007, “You need only read the statutes to decide, ‘Does the president have the right to do this without a warrant?’” Walker has yet to rule on that request. [Wired News, 3/5/2007]

Entity Tags: Thomas Nelson, Vaughn Walker, National Security Agency, US Department of Justice, Jon Eisenberg, John Negroponte, AT&T, Al Haramain Islamic Foundation (Oregon branch), Garr King, Keith Alexander, Electronic Frontier Foundation

Timeline Tags: Civil Liberties

Nieman Reports, a quarterly magazine about journalism, publishes an article by investigative journalist Craig Pyes describing how the US Army attempted to undermine a Los Angeles Times investigation looking into the March 2003 deaths of two Afghan detainees (see March 16, 2003). It is believed that members of a Special Forces detachment in Afghanistan murdered the two men, identified as Jamal Naseer and Wakil Mohammed, and then covered up the circumstances surrounding their deaths. An official investigation into the two deaths by the Army’s Criminal Investigation Command (CID) found insufficient probable cause to bring charges for either of the two deaths. As a result of the CID investigation, two soldiers were given noncriminal administrative letters of reprimand (see January 26, 2007) for “slapping” prisoners at the Gardez facility and for failing to report the death of Naseer. In his article, Pyes recounts the resistance he and his colleague Kevin Sack encountered from the military as they sought information about the two deaths. The military refused to disclose basic information about the circumstances surrounding the two deaths, including the two men’s identities, the circumstances of their detention, the charges against them, court papers, and investigative findings. The journalists also learned that soldiers had been told by their superiors that it was important that everyone be “on the same page in case there was an investigation.” During their investigation, they also discovered that “military examiners had made some significant errors, including their initial failure to identify the victims. They also grossly misidentified dates of crucial events and persistently failed to interview key people and locate supporting documents.” [Nieman Watchdog, 3/2/2007]

Entity Tags: Wakil Mohammed, United Nations Assistance Mission in Afghanistan, US Special Forces, Jamal Naseer, Los Angeles Times, Criminal Investigation Command

Timeline Tags: Torture of US Captives, War in Afghanistan

Judge Marcia Cooke.Judge Marcia Cooke. [Source: Daily Business Review]Federal prosecutors in the Jose Padilla case (see May 8, 2002) say that a video of Padilla’s final interrogation, on March 2, 2004, is inexplicably missing. The video was not part of a packet of DVDs containing classified material turned over to the court handling the Padilla case. Padilla’s lawyers believe that the missing videotape may show Padilla being subjected to “harsh” interrogation techniques that may qualify as torture, and wonder if other potentially exculpatory recordings and documentation of Padilla’s interrogations have also been lost. Padilla’s lawyers say something happened during that last interrogation session on March 2, 2004, at the Navy brig in Charleston, South Carolina, that led Padilla to believe that the lawyers are actually government agents. Padilla no longer trusts them, the lawyers say, and they want to know what happened. Prosecutors say that they cannot find the tape despite an intensive search. “I don’t know what happened to it,” Pentagon attorney James Schmidli said during a recent court hearing. US District Court Judge Marcia Cooke finds the government’s claim hard to believe. “Do you understand how it might be difficult for me to understand that a tape related to this particular individual just got mislaid?” Cooke told prosecutors at a hearing last month. Padilla, a US citizen, is scheduled to stand trial in April. Padilla’s lawyers want the brig tapes, medical records, and other documentation to prove their claims that Padilla suffers intense post-traumatic stress syndrome from his long isolation and repeated interrogations, though Cooke has ruled that Padilla is competent to stand trial. They believe that he was mistreated and possibly tortured in the Naval brig before being transferred to civilian custody. This missing DVD may not be the only one because brig logs indicate that there were approximately 72 hours of interrogations that either were not recorded, or whose recordings were never disclosed. Prosecutors claim some interrogations were not recorded, but defense lawyers question that, pointing out that there are even videos of Padilla taking showers. [Newsweek, 2/28/2007; Associated Press, 3/9/2007] Statements by then-Deputy Attorney General James Comey in June 2004 indirectly support the defense’s claim that Padilla was subjected to harsh interrogation tactics (see June 2004). Other videotapes that may pertain to the Padilla case have been destroyed by the CIA (see November 22, 2005). Former civil rights litigator Glenn Greenwald writes, “[I]f the administration’s patently unbelievable claim were true—namely, that it did ‘lose’ the video of its interrogation of this Extremely Dangerous International Terrorist—that would, by itself, evidence a reckless ineptitude with American national security so grave that it ought to be a scandal by itself. But the likelihood that the key interrogation video with regard to Padilla’s torture claims was simply ‘lost’ is virtually non-existent. Destruction of relevant evidence in any litigation is grounds for dismissal of the case (or defense) of the party engaged in that behavior. But where, as here, the issues extend far beyond the singular proceeding itself—we are talking about claims by a US citizen that he was tortured by his own government—destruction of evidence of this sort would be obstruction of justice of the most serious magnitude.” [Salon, 3/10/2007]

Entity Tags: Anthony Natale, US Department of Justice, US Department of Defense, Marcia Cooke, Jose Padilla, Al-Qaeda, Glenn Greenwald, James B. Comey Jr., James Schmidli

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

A photo of Khalid Shaikh Mohammed allegedly taken during his capture in 2003 (there are controversies about the capture).A photo of Khalid Shaikh Mohammed allegedly taken during his capture in 2003 (there are controversies about the capture). [Source: FBI]Khalid Shaikh Mohammed (KSM) attends his combat status review tribunal at Guantanamo Bay (see March 9-April 28, 2007), where he admits participating in the 9/11 attacks and numerous other plots, and offers a defense of his actions. He claims responsibility or co-responsibility for a list of 31 plots, including:
bullet The 1993 World Trade Center bombing (see February 26, 1993);
bullet The 9/11 operation: “I was responsible for the 9/11 operation from A to Z”;
bullet The murder of Daniel Pearl (see January 31, 2002): “I decapitated with my blessed right hand the head of the American Jew, Daniel Pearl”;
bullet The late 2001 shoe bombing operation (see December 22, 2001);
bullet The 2002 Bali nightclub bombings (see October 12, 2002);
bullet A series of ship-bombing operations (see Mid-1996-September 11, 2001 and June 2001);
bullet Failed plots to assassinate several former US presidents;
bullet Planned attacks on bridges in New York;
bullet Various other failed attacks in the US, UK, Israel, Indonesia, Australia, Japan, Azerbaijan, the Philippines, India, South Korea, and Turkey;
bullet The planned destruction of an El-Al flight in Bangkok;
bullet The Bojinka plot (see January 6, 1995), and assassination plans for President Clinton (see September 18-November 14, 1994) and the Pope (see September 1998-January 1999); and
bullet Planned attacks on the Library Tower in California, the Sears Tower in Chicago, the Empire State Building in New York, and the “Plaza Bank” in Washington State (see October 2001-February 2002). [US Department of Defense, 3/10/2007 pdf file] However, the Plaza Bank was not founded until 2006, three years after KSM was captured. The bank’s president comments: “We’re confused as to how we got on that list. We’ve had a little bit of fun with it over here.” [Seattle Post-Intelligencer, 3/15/2007]
On the other hand, KSM denies receiving funds from Kuwait or ever heading al-Qaeda’s military committee; he says this was a reporting error by Yosri Fouda, who interviewed him in 2002 (see April, June, or August 2002). In addition, he claims he was tortured, his children were abused in detention, and that he lied to his interrogators (see June 16, 2004). He also complains that the tribunal system is unfair and that many people who are not “enemy combatants” are being held in Guantanamo Bay. For example, a team sent by a Sunni government to assassinate bin Laden was captured by the Taliban, then by the US, and is being held in Guantanamo Bay. He says that his membership of al-Qaeda is related to the Bojinka operation, but that even after he became involved with al-Qaeda he continued to work with another organization, which he calls the “Mujaheddin,” was based in Pakistan, and for which he says he killed Daniel Pearl. [US Department of Defense, 3/10/2007 pdf file] (Note: KSM’s cousin Ramzi Yousef was involved with the militant Pakistani organization Sipah-e-Sahaba.) [Reeve, 1999, pp. 50, 54, 67] Mohammed says he was waterboarded by his interrogators. He is asked: “Were any statements you made as the result of any of the treatment that you received during that time frame from 2003 to 2006? Did you make those statements because of the treatment you receive from these people?” He responds, “CIA peoples. Yes. At the beginning, when they transferred me.” [ABC News, 4/11/2008] He goes on to compare radical Islamists fighting to free the Middle East from US influence to George Washington, hero of the American War of Independence, and says the US is oppressing Muslims in the same way the British are alleged by some to have oppressed Americans. Regarding the fatalities on 9/11, he says: “I’m not happy that three thousand been killed in America. I feel sorry even. I don’t like to kill children and the kids.” Although Islam prohibits killing, KSM argues that there is an exception because “you are killing people in Iraq.… Same language you use, I use.… The language of war is victims.” [US Department of Defense, 3/10/2007 pdf file] The hearing is watched from an adjoining room on closed circuit television by Senator Carl Levin (D-MI) and former Senator Bob Graham (D-FL). [US Congress, 3/10/2007] KSM’s confession arouses a great deal of interest in the media, which is skeptical of it (see March 15-23, 2007 and Shortly After).

Entity Tags: Daniel Robert (“Bob”) Graham, Khalid Shaikh Mohammed, Carl Levin

Timeline Tags: Torture of US Captives, Complete 911 Timeline, 9/11 Timeline

At a Guantanamo Bay tribunal to decide his combat status (see March 9-April 28, 2007), militant Islamist logistics manager Abu Zubaida (see March 28, 2002) is accused of heading Khaldan and Darunta training camps in Afghanistan and of co-ordinating their operation with Osama bin Laden, as well as moving money for al-Qaeda, desiring fraudulently-obtained Canadian passports for a terrorist plot, and making diary entries about planned attacks in the US. [US Department of Defense, 3/27/2007 pdf file]
Complaints of Torture, Admission of False Confessions - Zubaida complains of being tortured in US custody (see Mid-May 2002 and After and March 10-April 15, 2007). Zubaida’s statements about his treatment in US custody will be redacted from the trial transcripts, but a few remarks remain. In broken English, Zubaida states: “I was nearly before half die plus [because] what they do [to] torture me. There I was not afraid from die because I do believe I will be shahid [martyr], but as God make me as a human and I weak, so they say yes, I say okay, I do I do, but leave me. They say no, we don’t want to. You to admit you do this, we want you to give us more information… they want what’s after more information about more operations, so I can’t. They keep torturing me.” The tribunal president, a colonel whose name is also redacted, asks, “So I understand that during this treatment, you said things to make them stop and then those statements were actually untrue, is that correct?” Zubaida replies, “Yes.” [US Department of Defense, 3/27/2007 pdf file; Vanity Fair, 12/16/2008]
Denies Being Al-Qaeda Member or Enemy of US - He goes on to deny that he is an “enemy combatant,” saying that the Khaldan training camp, which he admits being logistics manager of, was around since the Soviet-Afghan War and was also used to train Muslims who wanted to fight invaders in Muslim lands, such as Chechnya, Kashmir, the Philippines, and Bosnia, where “America helped us.” After he was captured the US administration exaggerated his importance, and some media accounts have suggested his role was greatly exaggerated (see Shortly After March 28, 2002). He denies being an official member of al-Qaeda and says he disagrees with attacks on civilians. However, he admits some of his trainees subsequently decided to join al-Qaeda and that he did not prevent them from doing this. He also denies moving the money and submits a volume of his diary that apparently shows he was in Pakistan when the charges state he went to Saudi Arabia to collect the money. He requests the production of other volumes of his diaries, on which some of the charges are based, but they are not made available to the tribunal. In addition, he denies corresponding with bin Laden before 2000 and details a dispute that arose between them after that time. He says his diary entries about military targets are “strictly hypothetical,” and the passports are for non-terrorist travel. Following the US invasion of Afghanistan, he admits he helped non-aligned fighters escape from South Asia. He states that he is an enemy of the US because of its alliance with Israel, which he claims is oppressing his fellow Palestinians, saying, “A partner of a killer is also a killer.” [US Department of Defense, 3/27/2007 pdf file]

Entity Tags: Darunta training camp, Abu Zubaida, Al-Qaeda, Khaldan training camp

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Suzanne Spaulding.Suzanne Spaulding. [Source: Bipartisan Security Group]Suzanne Spaulding, a national security expert with twenty years of experience in the CIA, on various Congressional oversight committees, and executive director of two separate commissions on terrorism and weapons of mass destruction, testifies before the Senate Judiciary Committee as part of that body’s hearings on the improper use of National Security Letters (NSLs) by the FBI (see October 25, 2005). Spaulding has spoken out before against the NSA’s wiretapping program (see December 25, 2005). She says that the nation’s law enforcement and intelligence agents need “the tools they need to do their job” and “clear guidance on just what it is that we want them to do on our behalf—and how we want them to do it. Clear rules and careful oversight provide essential protections for those on the front lines of our domestic counterterrorism efforts.” However, Spaulding testifies, “it appears both were lacking in the implementation of national security letter authorities.” Spaulding says that Congress should begin a much larger examination of domestic surveillance issues, saying, “The appropriateness of using FISA electronic surveillance to eavesdrop on Americans should be considered in light of other, less intrusive techniques that might be available to establish whether a phone number belongs to a suspected terrorist or the pizza delivery shop. It’s not the ‘all or nothing’ proposition often portrayed in some of the debates.” However, according to recent findings by the Justice Department’s Inspector General, Glenn A. Fine, “there is not sufficient guidance on how to apply that in the NSL context or in conjunction with other available collection techniques.” Therefore, there is a strong “need for a broader examination of domestic intelligence tools.”
Urges Congressional Review - Spaulding urges Congress “to undertake a comprehensive review of all domestic intelligence collection, not just by FBI but also by the other national security agencies engaged in domestic intelligence collection, including the Central Intelligence Agency, the Department of Defense, and the National Security Agency. A Joint Inquiry or Task Force could be established by the Senate leadership, with representation from the most relevant committees (Judiciary, Intelligence, Armed Services, and Homeland Security and Government Affairs), to carefully examine the nature of the threat inside the US and the most effective strategies for countering it. Then Congress, and the American public, can consider whether we have the appropriate institutional and legal framework for implementing those strategies with adequate safeguards and oversight.”
FBI's Expanded Powers Need Review - In addition, she testifies, the FBI’s expanded ability to use NSLs under the Patriot Act must be examined. Currently, the law seems to allow the FBI to use NSLs to obtain evidence pursuant to a FISA warrant, thus allowing “the government to get information about individuals who are not themselves the subject of an investigation”—“parties two or three steps removed from their subjects without determining if these contacts reveal suspicious connections,” Fine reported. Spaulding expands on Fine’s findings: “In fact, the most tenuous of connections would seem to suffice for this NSL standard. For example, it’s not clear why an ‘investigation to protect against international terrorism’ couldn’t justify demanding information about all residents of, say, Dearborn, Michigan [home to a large Arab-American community], so that you could run them through some logarithmic profile to identify ‘suspicious’ individuals. In fact, Congress should examine the facts surrounding the nine NSLs in one investigation that were, according to the IG Report, used to obtain information regarding over 11,000 different phone numbers.”
Data Mining Efforts Should Be Examined - Also, she says, data mining efforts by other law enforcement and intelligence agencies should be carefully examined and addressed: “NSLs should not become a mechanism for gathering vast amounts of information about individuals with no known connection to international terrorism for purposes of data mining.” Spaulding also notes that the Patriot Act allows FBI special agents in charge (SACs) to issue NSLs; instead, she says, only attorneys in the Justice Department’s National Security Division should be able to issue NSLs. Yet another problem Spaulding notes is the FBI’s policy of retention of data gathered on US citizens through NSLs, even when those citizens have no connection to terrorist activities. Spaulding expressed similar concerns in a previous op-ed for the Washington Post (see December 25, 2005). [Senate Judiciary Committee, 4/11/2007]

Entity Tags: US Department of Justice, US Department of Defense, USA Patriot Act, Senate Judiciary Committee, Foreign Intelligence Surveillance Act, Federal Bureau of Investigation, Central Intelligence Agency, Suzanne Spaulding, National Security Letters, National Security Agency

Timeline Tags: Civil Liberties

May 14, 2007: Padilla Trial Begins

The trial of suspected al-Qaeda operative Jose Padilla begins in a Miami criminal court. Padilla is charged with conspiring to “murder, kidnap, and maim” people overseas. The charges include no allegations of a “dirty bomb” plot or other plans for US attacks, as have been alleged by Bush administration officials (see June 10, 2002). Two co-defendants, Adham Amin Hassoun (see 1993) and Kifah Wael Jayyousi (see (October 1993-November 2001)), also face charges of supporting terrorist organizations. “The defendants were members of a secret organization, a terrorism support cell, based right here in South Florida,” says prosecutor Brian Frazier in his opening statement. “The defendants took concrete steps to support and promote this violence.” Defense attorneys argue that Padilla, Hassoun, and Jayyousi are peaceful Muslims interested in studying their religion and helping their fellow Muslims in war-ravaged areas of the world. Padilla’s attorney, Anthony Natale, calls the case against his client the product of “the politics of fear” in the aftermath of the 9/11 attacks. “Political crises can cause parts of our government to overreach. This is one of those times,” he says. “He’s a young man who has been wrongly accused.” Hassoun’s attorney, Jeanne Baker, says: “The government really is trying to put al-Qaeda on trial in this case, and it doesn’t belong in this courtroom. There’s a lot of rhetoric, but there’s no evidence.” Much of the evidence against the three consists of FBI wiretaps, documents, and witness statements. One of the strongest pieces of evidence against Padilla is his application to attend an al-Qaeda training camp in Afghanistan in July 2000 (see September-October 2000). Prosecutors say Hassoun recruited Padilla when they met in a Florida mosque. “Jose Padilla was an al-Qaeda terrorist trainee providing the ultimate form of material support—himself,” says Frazier. “Padilla was serious, he was focused, he was secretive. Padilla had cut himself off from most things in his life that did not concern his radical view of the Islamic religion.” [Associated Press, 5/14/2007]

Entity Tags: Kifah Wael Jayyousi, Adham Amin Hassoun, Al-Qaeda, Anthony Natale, Brian Frazier, Bush administration (43), Jose Padilla, Jeanne Baker, Federal Bureau of Investigation

Timeline Tags: Torture of US Captives

Former Deputy Attorney General James Comey delivers dramatic testimony before the Senate Judiciary Committee about the March 2004 attempts by then-White House counsel Alberto Gonzales and then-White House chief of staff Andrew Card to pressure a seriously ill John Ashcroft, then the attorney general, to certify the legality of the Bush/NSA domestic wiretapping program (see March 10-12, 2004, Early 2002). Comey testifies that even though he, who at the time has the full authority of the attorney general during Ashcroft’s illness, and Ashcroft both refused to authorize the program due to their belief that the program is illegal, President Bush will certify the program anyway. Only a threatened mass resignation by Ashcroft, Comey, FBI director Robert Mueller, and other senior officials will persuade Bush, weeks later, to make changes in the program that bring it somewhat closer to operating within the law. [Think Progress, 5/15/2007; Washington Post, 5/16/2007]
Bush Sent Gonzales, Card to Ashcroft's Hospital Room, Comey Believes - Comey says that while he cannot be certain, he believes Gonzales and Card went to Ashcroft’s hospital room on orders from President Bush: “I have some recollection that the call was from the president himself, but I don’t know that for sure,” he tells the committee. His major concern in heading off Gonzales and Card at the hospital, Comey testifies, is that, “given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that.” Comey says he was “stunned” by how forceful Ashcroft was in refusing to comply with Gonzales and Card’s directive to sign the reauthorization.
Gonzales a 'Loyal Bushie' - Committee members are openly contemptuous of Gonzales’s actions, and question his fitness to serve as attorney general. “He’s presided over a Justice Department where being a, quote, loyal Bushie seems to be more important than being a seasoned professional, where what the White House wants is more important than what the law requires or what prudence dictates,” says Charles Schumer (D-NY). Arlen Specter (R-PA) is hardly less critical. “It is the decision of Mr. Gonzales as to whether he stays or goes, but it is hard to see how the Department of Justice can function and perform its important duties with Mr. Gonzales remaining where he is,” Specter says. “And beyond Mr. Gonzales’s decision, it’s a matter for the president as to whether the president will retain the attorney general or not.” [New York Times, 5/15/2007]
Not a 'Team Player' - Interestingly, President Bush views Comey with disdain because Comey isn’t what Bush calls a “team player;” Bush earlier tagged Comey, who resigned his position in 2005 and who previously tangled with the White House over its embrace of torture for terrorist suspects, with the derisive nickname “Cuomo,” after the former Democratic governor of New York, Mario Cuomo, famous for vacillating over whether to run for the presidency in the 1980s. The White House denies the nickname. [Newsweek, 1/9/2006] Comey is not popular in the White House in part because of his 2003 appointment of special prosecutor Patrick Fitzgerald to investigate Vice President Dick Cheney’s chief of staff, Lewis “Scooter” Libby, for perjury connected to the outing of CIA agent Valerie Plame Wilson (see Shortly after February 13, 2002). And after the 9/11 attacks, Comey challenged Cheney’s assertions that the use of torture and other “war on terror” policies were legal (see January 9, 2002). Comey says he has been prepared to testify about the Ashcroft hospital visit for three years, but never did until now, because “Nobody ever asked.…I’ve never been in a forum where I was obligated to answer the question. Short of that, it was not something I was going to volunteer.” Card says that his actions at the hospital earned him bureaucratic punishment from Card. After Gonzales became attorney general, Ashcroft’s then-chief of staff, Kyle Sampson, told Comey that Gonzales’s “vision” was to merge the deputy’s office with Gonzales’s own office, stripping Comey of much of his autonomy and reducing him, in essence, to a staff member. Comey refused to cooperate. “You may want to try that with the next deputy attorney general,” Comey told Sampson. “But it’s not going to work with me.” [US News and World Report, 5/20/2007]

Entity Tags: Robert S. Mueller III, Valerie Plame Wilson, Richard (“Dick”) Cheney, Senate Judiciary Committee, D. Kyle Sampson, Patrick J. Fitzgerald, Alberto R. Gonzales, Andrew Card, John Ashcroft, James B. Comey Jr., George W. Bush

Timeline Tags: Civil Liberties

The British Royal Court of Appeal rules that the Chagossians were tricked, starved, and even terrorized from their homes by the British government 30 years ago (see July 27, 1971-May 26, 1973), and can return to their homes immediately. The islanders had previously won a ruling in 2006, however foreign secretary Margaret Beckett had appealed that ruling (see May 11, 2006). Explaining the court’s decision, Lord Justice Sedley says that “while a natural or man-made disaster could warrant the temporary, perhaps even indefinite, removal of a population for its own safety and so rank as an act of governance, the permanent exclusion of an entire population from its homeland for reasons unconnected with their collective well-being cannot have that character and accordingly cannot be lawfully accomplished by use of the prerogative power of governance.” The British Foreign Office says it is “disappointed” with the decision and says it may file an appeal with the House of Lords. [Guardian, 5/23/2007]

Entity Tags: Chagossians, Stephen Sedley

Timeline Tags: US-Britain-Diego Garcia (1770-2004)

The Electronic Frontier Foundation (EFF) publishes a set of three non-classified documents secured from telecommunications giant AT&T by former AT&T technician and current whistleblower Mark Klein. Klein has used the documents to prove his assertions that AT&T colluded with the National Security Agency to illegally eavesdrop on Americans’ telephone and Internet communications (see December 15-31, 2005 and July 7, 2009). The EFF has sued AT&T for violating its customers’ privacy, and Klein and the documents are key elements of its case (see February 23-28, 2006). After years of opposing their public disclosure and attempting to force their return (see April 6-8, 2006), AT&T acquiesced to the documents’ disclosure earlier this week after the EFF threatened to take the corporation to a federal appeals court. The documents were released in part by Wired News over a year ago against AT&T’s wishes (see May 17, 2006), and PBS also made them public as a part of a Frontline documentary. The Justice Department considered classifying the documents, then rejected the idea (see Late March - April 4, 2006). According to EFF’s Cindy Cohn, AT&T agreed to the disclosure of those portions to escape the embarrassment of arguing that documents available on the Internet for more than a year were secret. Wired’s Ryan Singel writes: “There are no surprises in the AT&T documentation… which consist of a subset of the pages already published by Wired News. They include AT&T wiring diagrams, equipment lists, and task orders that appear to show the company tapping into fiber-optic cables at the point where its backbone network connects to other ISPs at a San Francisco switching office. The documents appear to show the company siphoning off the traffic to a room packed with Internet-monitoring gear.” The EFF also releases a formerly sealed, signed declaration by Klein (see February 23-28, 2006) and a written analysis of the documentation by Internet expert J. Scott Marcus (see March 29, 2006). Marcus’s analysis, which had previously remained largely under court-ordered seal, is “the most interesting” of the releases, Singel writes. Marcus said the AT&T technical configuration allowed the NSA to conduct “surveillance and analysis of Internet content on a massive scale, including both overseas and purely domestic traffic,” and found it probable that AT&T had “15 or 20” secret facilities around the country, not just the few facilities of which Klein was aware. AT&T, with the Justice Department, is trying to prevent EFF’s lawsuit from continuing, insisting that such a trial would expose “state secrets” (see April 28, 2006 and May 13, 2006). Judge Vaughn Walker has already considered and dismissed that claim (see July 20, 2006); AT&T and the government hope an appeals court will find in their favor. Cohn tells Singel she hopes the documents will show the public that their case is based in fact and not speculation, and that the government’s claim of a national security risk is overblown: “It really paints them into a corner, how unreasonable their claims of state secrets are. I’m hoping [the document release] demonstrates we are right and know what we are talking about and that we don’t need much more to win our case. We are much closer than people think.” [Wired News, 6/13/2007]

Entity Tags: J. Scott Marcus, Cindy Cohn, AT&T, Electronic Frontier Foundation, Mark Klein, National Security Agency, Wired News, Ryan Singel, US Department of Justice, Vaughn Walker

Timeline Tags: Civil Liberties

Former Reagan Justice Department official and constitutional lawyer Bruce Fein and former civil liberties lawyer Glenn Greenwald applaud the recent ruling requiring the government to overturn alleged al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri’s military detention status (see June 11, 2007). Fein writes that the decision “rebuked President Bush’s frightening claim that the Constitution crowned him with power to pluck every American citizen from his home for indefinite detention without trial on suspicion of preparing for acts of international terrorism.” Other terrorist acts, such as the 1995 Oklahoma City bombings (see 8:35 a.m. - 9:02 a.m. April 19, 1995) and the 1993 World Trade Center bombings (see February 26, 1993), “were tried and punished in civilian courts,” Fein notes, adding that Bush bypassed the USA Patriot Act to classify al-Marri as an enemy combatant, although the Patriot Act “provides a specific method for the government to detain aliens affiliated with terrorist organizations who are believed likely to engage in terrorist activity.” Al-Marri was denied that procedure due to his classification as an enemy combatant. [Washington Times, 6/19/2007] Greenwald writes, “How extraordinary it is—how extraordinarily disturbing it is—that we are even debating these issues at all. Although its ultimate resolution is complicated, the question raised by al-Marri is a clear and simple one: Does the president have the power—and/or should he have it—to arrest individuals on US soil and keep them imprisoned for years and years, indefinitely, without charging them with a crime, allowing them access to lawyers or the outside world, and/or providing a meaningful opportunity to contest the validity of the charges? How can that question not answer itself?… Who would possibly believe that an American president has such powers, and more to the point, what kind of a person would want a president to have such powers? That is one of a handful of powers that this country was founded to prevent.” [Chicago Sun-Times, 6/17/2007]

Entity Tags: George W. Bush, Al-Qaeda, Ali Saleh Kahlah al-Marri, Glenn Greenwald, Bruce Fein, USA Patriot Act

Timeline Tags: Torture of US Captives, Civil Liberties

Most of the lawsuits filed against the US government and against a number of private telecommunications firms alleging illegal wiretapping of US citizens and foreign organizations (see January 31, 2006) are hampered by what legal experts call a “Catch 22” process: lawyers for the Justice Department and for the firms that are alleged to have cooperated with the government in wiretapping citizens and organizations argue that the lawsuits have no merits because the plaintiffs cannot prove that they were direct victims of government surveillance. At the same time, the lawyers argue that the government cannot reveal if any individuals were or were not monitored because the “state secrets privilege” (see March 9, 1953) allows it to withhold information if it might damage national security. Lawyer Shayana Kadidal, who is representing the Center for Constitutional Rights in another lawsuit on behalf of Guantanamo Bay detainees, says, “The government’s line is that if you don’t have evidence of actual surveillance, you lose on standing.”
One Lawsuit Has Evidence of Surveillance - But the lawsuit filed by Saudi charitable organization the Al Haramain Islamic Foundation (see February 28, 2006) is different, because the plaintiffs have an actual classified US document that they say proves their allegations. Kadidal says that because of that document, “[T]his is the only one with evidence of actual surveillance” and therefore has a much stronger chance of going forward. The Justice Department will not confirm, or deny, if anyone from Al Haramain was monitored either under the Terrorist Surveillance Program or any other government operation, but plaintiff lawyer Jon Eisenberg tells a judge in July 2007: “We know how many times [my client has] been surveilled. There is nothing left for this court to do except hear oral arguments on the legality of the program.”
Extraordinary Measures to Keep Document 'Secure' - Though the Justice Department has repeatedly argued that the Treasury Department document at the heart of the case is harmless and unrelated to NSA surveillance, it is taking extraordinary measures to keep it secure—it is held under strict government seal and remains classified as top secret. Even the plaintiff’s lawyers are no longer allowed to see the document, and have been forced to file briefs with the court based on their memories of the document. [Wired News, 3/5/2007]
Expert: Government Cannot Stop Case - The government probably does not have enough to derail the Al Haramain case, according to law professor Curtis Bradley. In August 2007, Bradley observes, “The biggest obstacle this litigation has faced is the problem showing someone was actually subjected to surveillance,” but the lawsuit “has a very good chance to proceed farther than the other cases because it’s impossible for the government to erase [the lawyers’] memories of the document.” [Associated Press, 8/5/2007]

Entity Tags: US Department of Justice, Terrorist Surveillance Program, Shayana Kadidal, Jon Eisenberg, Curtis Bradley, Al Haramain Islamic Foundation (Oregon branch), National Security Agency, Center for Constitutional Rights

Timeline Tags: Civil Liberties

Justice Department official Patrick Philbin testifies in a closed session of the House Intelligence Committee on the subject of interrogation tactics. Philbin testifies that each of the 24 approved interrogation tactics used by US personnel to interrogate terrorist suspects are “plainly lawful.” He notes that laws such as the Military Extraterritorial Jurisdiction Act and the Uniform Code of Military Justice define, to an extent, what is and is not torture, and prohibit excessive interrogation methods that might come under that rubric. He also notes that the US is a signatory to the Convention Against Torture (see October 21, 1994), which defines torture broadly as the intentional infliction of “severe pain or suffering” by anyone acting in an official capacity. He insists the US has done nothing to violate this treaty, nor the War Crimes Act, the Geneva Conventions, or Fifth and the Eighth Amendments to the US Constitution. Although terrorist organizations such as al-Qaeda and “extragovernmental” organizations such as the Taliban do not fall under the protection of the Geneva Conventions, Philbin argues that the US continues to follow its guidelines in its treatment of prisoners from those groups “to the extent consistent with military necessity…” [House Intelligence Committee, 7/14/2007 pdf file] However, in 2004, a classified report by the CIA’s Inspector General concluded that some of the interrogation techniques used by the CIA probably did violate the Convention Against Torture (see May 7, 2004).

Entity Tags: War Crimes Act, US Department of Justice, Uniform Code of Military Justice, Patrick F. Philbin, Geneva Conventions, Convention Against Torture, Al-Qaeda, Taliban, House Intelligence Committee, Military Extraterritorial Jurisdiction Act

Timeline Tags: Torture of US Captives, Civil Liberties

In a blistering editorial, the New York Times lambasts both the Bush administration and the Democratic leadership in the Senate for allowing Michael Mukasey, the new attorney general, to slide through the confirmation process with so little challenge (see November 8, 2007). The only thing left in the Senate’s traditional responsibility of “advice and consent” is the “consent” part, the editors write. The editorial continues: “Once upon a time, the confirmation of major presidential appointments played out on several levels—starting, of course, with politics. It was assumed that a president would choose like-minded people as cabinet members and for other jobs requiring Senate approval. There was a presumption that he should be allowed his choices, all other things being equal. Before George W. Bush’s presidency, those other things actually counted. Was the nominee truly qualified, with a professional background worthy of the job? Would he discharge his duties fairly and honorably, upholding his oath to protect the Constitution? Even though [he or] she answers to the president, would the nominee represent all Americans? Would he or she respect the power of Congress to supervise the executive branch, and the power of the courts to enforce the rule of law? In less than seven years, Mr. Bush has managed to boil that list down to its least common denominator: the president should get his choices.” The Times observes that in the first six years of Bush’s rule, he had an enthusiastically compliant set of Republican allies in Congress, but during that time, minority Democrats “did almost nothing… to demand better nominees than Mr. Bush was sending up. And now that they have attained the majority, they are not doing any better.” The editors focus particularly on two issues: Mukasey’s refusal to answer straightforward questions on whether waterboarding is torture, and the Democrats’ refusal to filibuster the Senate vote. The Times notes that Mukasey passed confirmation with a 53-40 vote. Democrats have made what the Times calls “excuses for their sorry record” on a host of issues, and first and foremost is the justification that it takes 60 votes to break a filibuster. “So why did Mr. Mukasey get by with only 53 votes?” the Times asks. “Given the success the Republicans have had in blocking action when the Democrats cannot muster 60 votes, the main culprit appears to be the Democratic leadership, which seems uninterested in or incapable of standing up to Mr. Bush.” The editors do not accept the rationale of Mukasey supporters like Charles Schumer (D-NY), who argued that by not confirming Mukasey, the path would be clear for Bush to make an interim appointment of someone far more extreme. The Times calls this line of argument “cozy rationalization,” and by Mukasey’s refusal to answer questions about his position on waterboarding, he has already aligned himself with the extremist wing of the administration. For the record, the Times notes, “Waterboarding is specifically banned by the Army Field Manual, and it is plainly illegal under the federal Anti-Torture Act, federal assault statutes, the Detainee Treatment Act (see December 30, 2005), the Convention Against Torture (see October 21, 1994), and the Geneva Conventions.” Therefore, “[i]t is hard to see how any nominee worthy of the position of attorney general could fail to answer ‘yes.’” The Times speculates that Mukasey was not permitted to answer the question by the White House because a “no” answer “might subject federal officials who carried out Mr. Bush’s orders to abuse and torture prisoners after the 9/11 attacks: the right answer could have exposed them to criminal sanctions.” All in all, the Times is appalled by “the Senate giving the job of attorney general, chief law enforcement officer in the world’s oldest democracy, to a man who does not even have the integrity to take a stand against torture.” [New York Times, 11/11/2007]

Entity Tags: Michael Mukasey, New York Times, Geneva Conventions, Bush administration (43), Charles Schumer, George W. Bush, Convention Against Torture, Detainee Treatment Act

Timeline Tags: Civil Liberties

A federal appellate court bars an Islamic charity accused of assisting terrorists from using a US government document to prove that it had been illegally spied upon (see February 28, 2006). The charity, the now-defunct Al Haramain Islamic Foundation (see Late May, 2004), has been accused by the government and the UN Security Council of being affiliated with al-Qaeda; the charity’s officials deny the charges. In its finding, the three-judge panel rules in favor of the government’s argument that protecting “state secrets” (see March 9, 1953) is of overriding importance in the case. Other courts have ruled that the Bush administration can refuse to disclose information if “there is a reasonable danger” it would affect national security. Al Haramain’s lawyers argued that the document is necessary to prove that it was illegally monitored. According to the ruling, the judges accept “the need to defer to the executive on matters of foreign and national security and surely cannot legitimately find ourselves second-guessing the executive in this arena.”
Reaction Divided - Opinion is divided on the ruling. Constitutional law professor Erwin Chemerinsky of Duke University says the court’s deference to the “executive branch in situations like this [is] very troubling.” Another constitutional law professor, Douglas Kmiec of Pepperdine, says “the opinion is consistent with” an earlier ruling that struck down a challenge to the government’s surveillance program filed by the American Civil Liberties Union; Kmiec says the rulings indicate that “federal courts recognize that the essential aspects of the Terrorist Surveillance Program both remain secret and are important to preserve as such.”
Mixed Results - The appellate court does not give the government everything it asked for. It rejects the Justice Department’s argument that “the very subject matter of the litigation is a state secret.” That finding may prove important in the other surveillance cases where the government is arguing that even to consider legal challenges to warrantless wiretapping endangers national security. The appeals court sends the case back to a lower court to consider whether or not the Foreign Intelligence Surveillance Act, which requires approval by a special court for domestic surveillance, preempts the state secrets privilege. The court also severs the Al Haramain case from other, similar lawsuits challenging the government’s secret surveillance program. [Los Angeles Times, 11/17/2007]

Entity Tags: United Nations Security Council, US Department of Justice, Erwin Chemerinsky, Foreign Intelligence Surveillance Act, Al-Qaeda, Al Haramain Islamic Foundation (Oregon branch), Douglas Kmiec, Bush administration (43), Terrorist Surveillance Program

Timeline Tags: Civil Liberties

John Kiriakou.John Kiriakou. [Source: ABC News]Former CIA officer John Kiriakou gives the first of several media interviews around this time about the agency’s use of waterboarding and torture, to ABC. In this interview and others Kiriakou, who led the team that captured militant training camp facilitator Abu Zubaida (see March 28, 2002), makes several points:
bullet Zubaida was waterboarded. This is the first official on-the-record acknowledgment by any CIA official that the controversial technique that simulates drowning was used.
bullet Zubaida was only waterboarded once, for about 30 to 35 seconds. (This is untrue. Zubaida was actually waterboarded at least 83 times—see April 18, 2009.)
bullet After the waterboarding, Zubaida became co-operative; he had previously been uncooperative. (This is also allegedly untrue—see June 2002.) Kiriakou says, “The threat information that he provided disrupted a number of attacks, maybe dozens of attacks.” Kiriakou thinks the attacks were not to be on US soil, but overseas, although he is not sure. Waterboarding and the other techniques were used because of a sense of urgency. “Those tricks of the trade require a great deal of time—much of the time—and we didn’t have that luxury. We were afraid that there was another major attack coming.”
bullet Use of the CIA’s enhanced interrogation techniques is tightly controlled in the agency. Each application of a technique had to be specifically approved by the deputy director for operations.
bullet Kiriakou implies that waterboarding is torture and should remain banned now, but the circumstances of the time warranted its use. He believes that waterboarding both compromised American principles and saved lives. “Like a lot of Americans, I’m involved in this internal, intellectual battle with myself weighing the idea that waterboarding may be torture versus the quality of information that we often get after using the waterboarding technique,” he says. “And I struggle with it.”
Although he was personally involved in Zubaida’s capture, Kiriakou was not present at the interrogations and only learned about them at CIA headquarters. [ABC News, 12/10/2007; ABC News, 12/10/2007 pdf file; ABC News, 12/10/2009 pdf file] Over the next few days, Kiriakou gives a number interviews to other media outlets with basically the same information. The New York Times will call the series of interviews a “media blitz.” [New York Times, 12/11/2007; New York Times, 4/28/2009] The media he speaks to include the Washington Post, the New York Times, National Public Radio, CBS, CNN, and MSNBC (see December 11, 2007). A CNN anchor even calls him “the man of the hour.” [New York Times, 4/28/2009] Kiriakou garners praise for his poise in front of the camera. For example, Harper’s journalist Scott Horton will call him “telegenic,” whereas Foreign Policy magazine commentator Annie Lowery will opt for “telegenic and well spoken.” [Harpers, 12/21/2007; Foreign Policy, 4/28/2009]

Entity Tags: Central Intelligence Agency, Scott Horton, Abu Zubaida, John Kiriakou, Annie Lowery

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

The CIA videotapes destruction scandal reopens a debate about the usefulness of torturing al-Qaeda leader Abu Zubaida. The FBI briefly used rapport-building techniques on Zubaida before the CIA took over and tortured him. On December 10, 2007, several days after the public disclosure that the videotapes of the CIA’s interrogation of Zubaida were destroyed, former CIA officer John Kiriakou admitted that Zubaida was tortured by the use of waterboarding (see December 10, 2007). Kiriakou claimed that waterboarding was so effective that Zubaida completely broke after just one session of waterboarding lasting 35 seconds. [ABC News, 12/10/2007] This claim became a frequently used media talking point. However, on December 18, the Washington Post presents a contrary account, stating, “There is little dispute, according to officials from both agencies, that Abu Zubaida provided some valuable intelligence before CIA interrogators began to rough him up, including information that helped identify Khalid Shaikh Mohammed, the alleged mastermind of the Sept. 11 attacks, and al-Qaeda operative Jose Padilla” (see Late March through Early June, 2002). The Post notes that Kiriakou helped capture Zubaida but was not present at any of his interrogations. Furthermore, “other former and current officials” disagree with Kiriakou’s claim “that Abu Zubaida’s cooperation came quickly under harsh interrogation or that it was the result of a single waterboarding session. Instead, these officials said, harsh tactics used on him at a secret detention facility in Thailand went on for weeks or, depending on the account, even months.” [Washington Post, 12/18/2007] The most in-depth previous media accounts suggesed that the FBI interrogation of Zubaida was getting good intelligence while the CIA torture of him resulted in very dubious intelligence (see Mid-April-May 2002 and June 2002).

Entity Tags: John Kiriakou, Federal Bureau of Investigation, Abu Zubaida, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Convicted terrorism conspirator Jose Padilla (see January 22, 2008) sues former Justice Department lawyer John Yoo. Padilla claims Yoo’s legal arguments led to his mistreatment and illegal detention at a US Navy brig. Padilla’s lawsuit says that Yoo’s memos led President Bush to designate Padilla as an “enemy combatant” (see June 10, 2002) and subject him to indefinite detention without being charged or having access to a lawyer. The lawsuit asks for only $1 in damages, and seeks a legal judgment declaring that the policies violated the US Constitution. “This is ultimately about right and wrong, not money,” says Padilla’s attorney Jonathan Freiman, a law professor at Yale University. Freiman says Yoo is being sued because “he gave the green light” to how to deal with Padilla. The lawsuit reiterates claims that Padilla was subjected to harsh interrogation techiques and mistreatment that amounted to torture, claims Justice Department and Pentagon officials deny. [Associated Press, 1/4/2008]

Entity Tags: US Department of Defense, John C. Yoo, Jose Padilla, US Department of Justice, Jonathan Freiman

Timeline Tags: Torture of US Captives

Jose Padilla (see May 14, 2007), convicted in August 2007 of conspiring to assist terrorist organizations such as al-Qaeda, is sentenced for his crimes. Padilla was not charged with plotting to detonate a radioactive “dirty bomb,” as Bush administration officials have long alleged (see June 10, 2002). He is sentenced to over 17 years in prison, but is not sentenced to life in prison, as Judge Marcia Cooke could have given him. Cooke gives Padilla some credit for his detention in a US naval brig, and agrees that he was subjected to what she calls “harsh conditions” and “extreme environmental stresses” while there. “I do find that the conditions were so harsh for Mr. Padilla… they warrant consideration in the sentencing in this case,” she rules. Padilla does not get credit for time served. Two co-defendants, Adham Amin Hassoun (see 1993) and Kifah Wael Jayyousi (see (October 1993-November 2001)), are also convicted; Hassoun receives over 15 years in prison and Jayyousi is sentenced to over 12 years. Cooke says that the prosecution failed to prove that either defendant was responsible for any specific acts of terrorism. “There is no evidence that these defendants personally maimed, kidnapped, or killed anyone in the United States or elsewhere,” she rules. The reactions from the defendants’ lawyers and family members are mixed. “I feel good about everything. This is amazing,” says Padilla’s mother, Estela Lebron. Hassoun’s lawyer, Jeanne Baker, calls the verdict “a defeat for the government.” And Jayyousi’s lawyer, William Swor, says: “The government has not made America any safer. It has just made America less free.” [Associated Press, 1/22/2008] Padilla will serve his prison sentence at a so-called “supermax” prison facility in Colorado. Domestic terrorists such as Terry Nichols, convicted of conspiring to bomb a federal building in Oklahoma City (see Late 1992-Early 1993 and Late 1994), “Unabomber” Ted Kaczynski (see April 3, 1996), and al-Qaeda operative Zacarias Moussaoui (see April 22, 2005) are also held at this facility. [Jurist, 4/19/2008]

Entity Tags: Marcia Cooke, William Swor, Kifah Wael Jayyousi, Jeanne Baker, Adham Amin Hassoun, Al-Qaeda, Jose Padilla, Estela Lebron, Bush administration (43)

Timeline Tags: Torture of US Captives

MSNBC counts the number of endnotes in the 9/11 Commission report that cite detainee interrogations and finds that more than a quarter of them—441 out of over 1,700—do so. It is widely believed that the detainees were tortured while in US custody, and that statements made under torture are unreliable. One of the detainees, alleged 9/11 mastermind Khalid Shaikh Mohammed, whose interrogations are mentioned hundreds of times in the report (see After January 2004), was extensively waterboarded (see Shortly After February 29 or March 1, 2003), and a CIA manager said that up to 90 percent of the information he provided under questioning was unreliable (see August 6, 2007). The endnotes often give the sources of the information contained in the main text. MSNBC comments: “The analysis shows that much of what was reported about the planning and execution of the terror attacks on New York and Washington was derived from the interrogations of high-ranking al-Qaeda operatives. Each had been subjected to ‘enhanced interrogation techniques.’ Some were even subjected to waterboarding.” In addition, many of the endnotes that cite detainee interrogations are for the report’s “most critical chapters”—five, six, and seven—which cover the planning of the attacks and the hijackers’ time in the US. In total, the Commission relied on more than 100 CIA interrogation reports. Its Executive Director Philip Zelikow admits that “quite a bit, if not most” of its information on the 9/11 conspiracy “did come from the interrogations.” Karen Greenberg, director of the Center for Law and Security at New York University’s School of Law, says, “It calls into question how we were willing to use these interrogations to construct the narrative.” [MSNBC, 1/30/2008]

Entity Tags: Center for Law and Security, 9/11 Commission, MSNBC, Philip Zelikow, Karen Greenberg

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

CIA Director Michael Hayden and Director of National Intelligence Mike McConnell testify to a Senate committee that US officials had indeed waterboarded three terrorist suspects (see May 2002-2003, Mid-May 2002 and After, (November 2002), and After March 7, 2003). Hayden and McConnell, testifying before the Senate Intelligence Committee, say that while the CIA banned the use of waterboarding (see Between May and Late 2006), the agency might authorize it again if circumstances warranted. Hayden says that the CIA found it necessary to waterboard the three suspects—alleged 9/11 mastermind Khalid Shaikh Mohammed, militant training camp facilitator Abu Zubaida, and al-Qaeda manager Abd al-Rahim al-Nashiri—because the US believed they had information about an imminent attack, and because it needed information about al-Qaeda immediately. “Those two circumstances have changed,” says Hayden. McConnell calls waterboarding a “lawful technique” that could be used again if needed. Hayden says the CIA has held fewer than 100 detainees, and of those, less than a third were put through what he calls “enhanced techniques.” Hayden also admits that “private contractors” took part in subjecting detainees to those “enhanced techniques,” which many call torture. He says he is not sure if any contractors were involved in waterboarding anyone. Senator Richard Durbin (D-IL) calls for an immediate Justice Department investigation into whether waterboarding is a criminal act. [Wall Street Journal, 2/6/2008] Two days later, Attorney General Michael Mukasey announces his decision not to investigate the US’s use of waterboarding (see February 7, 2008).

Entity Tags: Michael Hayden, Abu Zubaida, Abd al-Rahim al-Nashiri, Al-Qaeda, Khalid Shaikh Mohammed, Mike McConnell, Senate Intelligence Committee, Michael Mukasey, Central Intelligence Agency, Office of the Director of National Intelligence, Richard (“Dick”) Durbin

Timeline Tags: Torture of US Captives

The Defense Department announces that it is bringing death penalty charges against six high-value enemy detainees currently being held at the Guantanamo Bay detention camp. The six, all charged with involvement in the 9/11 attacks, will be tried under the much-criticized military tribunal system (see October 17, 2006) implemented by the Bush administration. They are:
bullet Khalid Shaikh Mohammed, a Pakistani who claims responsibility for 31 terrorist attacks and plots, is believed to have masterminded the 9/11 attacks, and claims he beheaded Wall Street Journal reporter Daniel Pearl (see January 31, 2002). Mohammed was subjected to harsh interrogation tactics by the CIA, including waterboarding.
bullet Ali Adbul Aziz Ali, Mohammed’s nephew and cousin of jailed Islamist terrorist Ramzi Yousef. He is accused of facilitating the attacks by sending $120,000 to US-based terrorists, and helping nine of the hijackers enter the US.
bullet Ramzi Bin al-Shibh, accused of being a link between al-Qaeda and the 9/11 hijackers. Bin al-Shibh is accused of helping some of the hijackers obtain flight training.
bullet Khallad bin Attash, who has admitted planning the attack on the USS Cole (see October 12, 2000) and is accused of running an al-Qaeda training camp in Afghanistan. He claims to have helped in the bombing of the US embassy in Kenya (see 10:35-10:39 a.m., August 7, 1998).
bullet Mustafa Ahmad al-Hawsawi, accused of being a financier of the 9/11 attacks, providing the hijackers with cash, clothing, credit cards, and traveller’s checks.
bullet Mohamed al-Khatani, another man accused of being a “20th hijacker;” al-Khatani was stopped by immigration officials at Orlando Airport while trying to enter the US. He was captured in Afghanistan.
Many experts see the trials as part of an election-year effort by the Bush administration to demonstrate its commitment to fighting terrorism, and many predict a surge of anti-American sentiment in the Middle East and throughout the Islamic world. Some believe that the Bush administration is using the trials to enhance the political fortunes of Republican presidential candidate John McCain, who has made the US battle against al-Qaeda a centerpiece of his campaign. “What we are looking at is a series of show trials by the Bush administration that are really devoid of any due process considerations,” says Vincent Warren, the executive director head of the Center for Constitutional Rights, which represents many Guantanamo detainees. “Rather than playing politics the Bush administration should be seeking speedy and fair trials. These are trials that are going to be based on torture as confessions as well as secret evidence. There is no way that this can be said to be fair especially as the death penalty could be an outcome.”
Treatment of Detainees an Issue - While the involvement of the six detainees in the 9/11 attacks is hardly disputed, many questions surround their treatment at Guantanamo and various secret “black sites” used to house and interrogate terror suspects out of the public eye. Questions are being raised about the decision to try the six men concurrently instead of separately, about the decision to seek the death penalty, and, most controversially, the admissibility of information and evidence against the six that may have been gathered by the use of torture.
Details of Forthcoming Tribunals - While the charges are being announced now, Brigadier General Thomas Hartmann, the Pentagon official supervising the case, acknowledges that it could be months before the cases actually begin, and years before any possible executions would be carried out. Hartmann promises the trials will be “as completely open as possible,” with lawyers and journalists present in the courtroom unless classified information is being presented. Additionally, the six defendants will be considered innocent until proven guilty, and the defendants’ lawyers will be given “every stitch of evidence” against their clients.
'Kangaroo Court' - British lawyer Clive Stafford Smith, who has worked with “enemy combatants” at Guantanamo, believes nothing of what Hartmann says. The procedures are little more than a “kangaroo court,” Stafford Smith says, and adds, “Anyone can see the hypocrisy of espousing human rights, then trampling on them.” Despite Hartmann’s assurances, it is anything but clear just what rights the six defendants will actually have. [Independent, 2/12/2008] The charges against al-Khahtani are dropped several months later (see May 13, 2008).

Entity Tags: Vincent Warren, US Department of Defense, Khallad bin Attash, Daniel Pearl, Clive Stafford Smith, John McCain, Mohamed al-Khatani, Khalid Shaikh Mohammed, Thomas Hartmann, Center for Constitutional Rights, Ramzi Yousef, Ramzi bin al-Shibh, Bush administration (43), Mustafa Ahmed al-Hawsawi, Ali Abdul Aziz Ali, Al-Qaeda

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Joseph Margulies.Joseph Margulies. [Source: PBS]Joseph Margulies, a law professor at Northwestern University, and lawyer George Brent Mickum write of their plans to meet with Guantanamo detainee Abu Zubaida (see March 28, 2002) as part of his legal defense team. The lawyers write: “Zubaydah’s world became freezing rooms alternating with sweltering cells. Screaming noise replaced by endless silence. Blinding light followed by dark, underground chambers. Hours confined in contorted positions. And, as we recently learned, Zubaydah was subjected to waterboarding. We do not know what remains of his mind, and we will probably never know what he experienced.” What exactly the CIA did to Zubaida may never be determined, as the agency destroyed the videotapes of his interrogations (see Spring-Late 2002). Zubaida’s subsequent confessions to FBI agents are essentially meaningless, the lawyers assert, because his will and mind were already irrevocably broken by the time of the FBI interviews. The lawyers hope to piece together what Zubaida knew and what was done to him, although they are not confident they will be given the documentation necessary to find out what they want to know. They fear that, if they are not able to learn the truth of Zubaida’s participation with al-Qaeda and the interrogation methods he was subjected to, then in his and others’ cases, the truth will be “only what the administration reports it to be. We hope it has not come to that.” [Washington Post, 2/23/2008]

Entity Tags: Federal Bureau of Investigation, Osama bin Laden, Abu Zubaida, Al-Qaeda, Central Intelligence Agency, Joseph Margulies, George Brent Mickum

Timeline Tags: Torture of US Captives

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.” [Congressional Quarterly, 4/4/2008]

Entity Tags: Jose Padilla, Ewe Jacobs, Diane E. Beaver, Central Intelligence Agency, Bush administration (43), American Psychological Association, Jeff Stein, John C. Yoo, Richard (“Dick”) Cheney, US Department of the Army, Jeffrey Kaye, Stephen Miles, RAND Corporation, Michael Caruso, Michael Gelles, Survivors International

Timeline Tags: Torture of US Captives

The press reports that, beginning in the spring of 2002, top Bush administration officials approved specific details about how terrorism suspects would be interrogated by the CIA. The officials issued their approval as part of their duties as the National Security Council’s Principals Committee (see April 2002 and After). [ABC News, 4/9/2008] The American Civil Liberties Union’s Caroline Fredrickson says: “With each new revelation, it is beginning to look like the torture operation was managed and directed out of the White House. This is what we suspected all along.” [Associated Press, 4/10/2008]

Entity Tags: Caroline Fredrickson, Bush administration (43), Principals Committee, American Civil Liberties Union

Timeline Tags: Torture of US Captives, Civil Liberties

John Conyers.John Conyers. [Source: Public domain / US Congress]Democrats in Congress lambast the Bush administration over recent disclosures that senior White House officials specifically approved the use of extreme interrogation measures against suspected terrorists (see April 2002 and After). Senator Edward Kennedy (D-MA) calls the news “yet another astonishing disclosure about the Bush administration and its use of torture.… Who would have thought that in the United States of America in the 21st century, the top officials of the executive branch would routinely gather in the White House to approve torture? Long after President Bush has left office, our country will continue to pay the price for his administration’s renegade repudiation of the rule of law and fundamental human rights.” [Associated Press, 4/10/2008] John Conyers (D-MI), chairman of the House Judiciary Committee, calls the actions “a stain on our democracy.” Conyers says his committee is considering subpoenaing members of the Principals, and perhaps the author of the torture memo, John Yoo (see August 1, 2002), to testify about the discussions and approvals. [Progressive, 4/14/2008]

Entity Tags: George W. Bush, Bush administration (43), Edward M. (“Ted”) Kennedy, John Conyers, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

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.” [ABC News, 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]

Entity Tags: George W. Bush, Central Intelligence Agency, Condoleezza Rice, Jonathan Turley, National Security Council, Khalid Shaikh Mohammed

Timeline Tags: Torture of US Captives, Complete 911 Timeline, 9/11 Timeline, Civil Liberties

The American Civil Liberties Union (ACLU) calls for an independent counsel to investigate President Bush and his current and former top officials over their involvement in approving torture against terror suspects held captive by US military and intelligence personnel (see April 2002 and After and April 11, 2008). The ACLU’s executive director, Anthony Romero, says: “We have always known that the CIA’s use of torture was approved from the very top levels of the US government, yet the latest revelations about knowledge from the president himself and authorization from his top advisers only confirms our worst fears. It is a very sad day when the president of the United States subverts the Constitution, the rule of law, and American values of justice.” The ACLU’s Caroline Frederickson adds: “No one in the executive branch of government can be trusted to fairly investigate or prosecute any crimes since the head of every relevant department, along with the president and vice president, either knew [of] or participated in the planning and approval of illegal acts. Congress cannot look the other way; it must demand an independent investigation and independent prosecutor.” Romero says the ACLU is offering legal assistance to any terrorism suspect being prosecuted by the US: “It is more important than ever that the US government, when seeking justice against those it suspects of harming us, adhere to our commitment to due process and the rule of law. That’s why the ACLU has taken the extraordinary step to offer our assistance to those being prosecuted under the unconstitutional military commissions process.” [American Civil Liberties Union, 4/12/2008]

Entity Tags: Anthony D. Romero, American Civil Liberties Union, Bush administration (43), Caroline Frederickson, George W. Bush

Timeline Tags: Torture of US Captives, Civil Liberties

Ruth Conniff.Ruth Conniff. [Source: PBS]Columnist and veteran news commentator Ruth Conniff writes in the Progressive that she is disturbed both by the news that senior Bush officials signed off on the use of specific torture methods against al-Qaeda suspects in US custody (see April 2002 and After), and by the fact that the mainstream media, with notable exceptions, has virtually ignored the story. Between this story and the follow-up that President Bush himself knew of the discussions and approvals (see April 11, 2008), Conniff asks: “Why is this not bigger news? Remember when the nation was brought to a virtual standstill over Bill Clinton’s affair with a White House intern? We now have confirmation that the president of the United States gave the OK for his national security team to violate international law and plot the sordid details of torture. The Democrats in Congress should be raising the roof.” [Progressive, 4/14/2008]

Entity Tags: Al-Qaeda, Bush administration (43), Ruth Conniff

Timeline Tags: Torture of US Captives, Domestic Propaganda

The Washington Post reports that at least two dozen current and former detainees at Guantanamo Bay claim that they were given drugs against their will, or witnessed other inmates being drugged. These detainees believe that they were drugged in order to force confessions of terrorist ties from them (see 2002-2005). The CIA and the Defense Department deny using drugs in their interrogations, and suggest that such claims are either lies or mistaken interpretations of routine medical treatment.
Claims Bolstered by Justice Department Memo - But the claims are bolstered by the recent revelation of a 2003 Justice Department memo that explicitly condoned the use of drugs on detainees (see March 14, 2003). The memo, written by then-Justice Department lawyer John Yoo, reversed a decades-old US ban on the use of “mind-altering substances” on prisoners. Instead, Yoo wrote, drugs could indeed be used as long as they did not inflict permanent or “profound” psychological damage. US law “does not preclude any and all use of drugs,” Yoo wrote. The claims are also given weight by a 2004 statement from the commander of a detention facility in Afghanistan, who alluded to the CIA drugging detainees (see February 2004).
Drugging Detainees a Gross Violation of Anti-Torture Treaties - Legal experts and human rights groups are calling for a full accounting, including release of detailed prison medical records. They say that forcing drugs on detainees for non-medical reasons is a particularly serious violation of international treaties banning torture. Medical ethics expert Leonard Rubinstein, the president of Physicians for Human Rights, says: “The use of drugs as a form of restraint of prisoners is both unlawful and unethical. These allegations demand a full inquiry by Congress and the Department of Justice.” Scott Allen, the co-director of the Center for Prisoner Health and Human Rights, says that there are no accepted medical standards for the use of drugs to interrogate or subjugate prisoners. Any such use “would have to be considered an experimental use of medicine.… The involvement of physicians and other health professionals in such a program would be a profound betrayal of medical trust and needs to be investigated further.” The Geneva Conventions do not specifically refer to drugs, but they ban any use of force or coercion in interrogating prisoners of war. Law professor Barbara Olshansky, the author of a book on military tribunals, says: “If you’re talking about interrogations, you’re talking about very specific prohibitions that mean you cannot use any force, at all, to interrogate someone. The law is beyond clear.”
Team of Guards Present - When inmates were injected or forced to take pills, former detainees claim, the personnel administering the drugs were always accompanied by a squad of specially equipped guards known as the “Immediate Reaction Force” to handle any possible violent reactions from the drugged inmates. One former detainee who was later released without charge, Ruhel Ahmed, recalls that the guards wore padded gear and “forced us to have injections.” Ahmed recalls, “You are not allowed to refuse it and you don’t know what it is for.” He says he was given about a dozen injections, which “had the effect of making me feel very drowsy.”
No Solid Evidence of Claims - No evidence of such drugging is known to the public, outside of detainee claims of effects from the injections that range from unnatural drowsiness to full-blown hallucinations. Former US intelligence officials have acknowledged giving sedatives to terror suspects before transporting them from one facility to another (see May 1, 2002). Former Navy general counsel Alberto Mora, who attempted without success to resist the Bush administration’s decision to use harsh interrogation tactics against detainees (see December 17-18, 2002), says he knows of no instances where detainees were drugged as part of their questioning. However, he adds, the detainees “knew they were being injected with something, and it is clear from all accounts that some suffered severe psychological damage.” Emi MacLean, a lawyer for the Center for Constitutional Rights (CCR), an organization which represents dozens of current and former detainees, says that many former detainees have clear and disturbing memories of being forcibly drugged. “Many speak about forced medication at Guantanamo without knowledge about what medication they were being forced to take,” MacLean says. “For some released [military] detainees, the forced medication they experienced was the most traumatic part” of their captivity. Other detainees have claimed, in interviews and statements provided by their lawyers, to have had injections and/or pills forcibly administered to them. One former detainee, French national Mourad Benchellali, says that during his three years at Guantanamo he was given treatments that were described to him as antibiotics or vitamins, yet they left him in what he describes as a mental fog. “These medicines gave us headaches, nausea, drowsiness,” Benchellali recalls. “But the effects were different for different detainees. Some fainted or threw up. Some had reactions such as pimples.” Other injections, often administered by force, left him and other detainees nauseated and light-headed, he says. “We were always tired and always felt groggy.” Detainee Moazzam Begg says that he believes he was given legitimate medications, but in improper dosages by poorly trained prison workers. Once, while being treated with pills for a panic attack, he began to hallucinate. “I saw things moving when they were not,” he recalls. “I talked to myself. I cried, laughed and sat immobile in a corner for hours. All of this was noted by the MPs and recorded.”
Use of Hallucinogens on Recalcitrant Prisoners? - Benchellali says that a different type of injection was used on detainees who were particularly uncooperative. His recollections are echoed by statements from four other detainees. “The injection would make them crazy,” he recalls. “They would have a crisis or dementia—yelling, no longer sleeping, soiling themselves. Some of us suspected they were given LSD.” Center for Constitutional Rights attorney J. Wells Dixon says the government seems to have given drugs to detainees whose extended captivity made them distraught or rebellious. “Many of these men have become desperately suicidal,” Dixon says. “And the government’s response has been to administer more medication, often without the consent of the prisoners.” [Washington Post, 4/22/2008]

Entity Tags: John C. Yoo, Central Intelligence Agency, Center for Prisoner Health and Human Rights, Center for Constitutional Rights, Barbara Olshansky, Alberto Mora, Emi MacLean, J. Wells Dixon, Mourad Benchellali, Scott Allen, Physicians for Human Rights, Geneva Conventions, Moazzam Begg, US Department of Justice, Leonard Rubinstein, US Department of Defense, Rhuhel Ahmed

Timeline Tags: Torture of US Captives

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. [New York Times, 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. [Washington Post, 1/14/2009]

Entity Tags: Donald Rumsfeld, Mohamed al-Khatani, Susan Crawford

Timeline Tags: Complete 911 Timeline

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; Newsweek, 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.” [Newsweek, 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; Newsweek, 5/20/2008; American Civil Liberties Union, 5/20/2008]

Entity Tags: US Department of Justice, Glenn Fine, John Rizzo, Marion (“Spike”) Bowman, Gitanjali Gutierrez, Geoffrey D. Miller, Federal Bureau of Investigation, Condoleezza Rice, Abu Zubaida, Mohamed al-Khatani, Central Intelligence Agency, US Department of Defense

Timeline Tags: Torture of US Captives

The American Civil Liberties Union (ACLU) releases several heavily redacted documents detailing the CIA’s use of waterboarding as well as a similarly redacted CIA Office of Inspector General (OIG) report on the CIA’s interrogation and detention program. The documents are obtained through a Freedom of Information Act lawsuit. In addition, Judge Alvin Hellerstein has “preliminarily overruled” CIA assertions that other documents it is withholding are exempt from the lawsuit. ACLU senior official Jameel Jaffer says: “Even a cursory glance at these heavily redacted documents shows that the CIA is still withholding a great deal of information that should be released. This information is being withheld not for legitimate security reasons but rather to shield government officials who ought to be held accountable for their decisions to break the law.”
OIG Report References Classified OLC Torture Memo - The OIG report contains references to an as-yet unreleased Justice Department Office of Legal Counsel (OLC) memo from August 2002 authorizing an array of brutal interrogation methods (see August 1, 2002). (The OIG report calls the memo “unclassified.”)
As-Yet Unreleased Documents - If Hellerstein follows through on his preliminary ruling, the CIA could be forced to disgorge three more documents:
bullet A September 17, 2001 CIA presidential directive setting up secret CIA detention centers abroad (see September 17, 2001);
bullet An August 2002 OLC memo authorizing the CIA to use particular interrogation methods (see August 1, 2002);
bullet CIA documents gathered by the CIA’s inspector general in the course of investigations into unlawful and improper conduct by CIA personnel.
ACLU attorney Amrit Singh says: “We welcome the court’s preliminary ruling rejecting the CIA’s attempt to withhold records relating to its unlawful treatment of prisoners. If sustained, this ruling would be a historic victory that could compel the CIA to publicly disclose for the first time meaningful records relating to its use of torture.” [American Civil Liberties Union, 5/27/2008] The documents will be released two months later (see July 24, 2008).

Entity Tags: Jameel Jaffer, Alvin K. Hellerstein, American Civil Liberties Union, Central Intelligence Agency, Office of the Inspector General (CIA), Amrit Singh, Office of Legal Counsel (DOJ)

Timeline Tags: Torture of US Captives

The USS Peleliu.The USS Peleliu. [Source: Zack Baddor / AP]Human rights groups claim that the US is operating “floating prisons” as detention facilities for prisoners taken in the “war on terror.” The groups claim that the US is keeping prisoners aboard ships such as the USS Ashland, the USS Bataan, and the USS Peleliu (see December 27, 2001), and say that the Americans refuse to admit to the existence of such detainees. The human rights group Reprieve has asked that the US list the names and whereabouts of such “ghost detainees” held aboard US vessels. The existence of the detainees has come to light from a number of sources, including statements from US military officials, information provided by the Council of Europe and other parliamentary bodies, and prisoner testimonies (see June 2, 2008).
Details of Detentions - Reprieve says the US has used as many as 17 ships as “floating prisons” since 2001. While aboard, the prisoners are interrogated, then rendered to undisclosed locations. Fifteen of those ships may have operated around the British territory of Diego Garcia, which hosts a large British-American military base (see July 27, 1971-May 26, 1973 and After February 7, 2002). According to information obtained by Reprieve, in early 2007, the Ashland was involved in the detention and rendering of over 100 individuals abducted by Somali, Kenyan, and Ethiopian forces during an upsurge of fighting in Somalia, and then interrogated by FBI and CIA agents. Those individuals have now disappeared, but many are believed to be held in prisons in Kenya, Somalia, Ethiopia, Djibouti and Guantanamo Bay, among other possible sites. One prisoner released from Guantanamo has retold the account of a fellow inmate’s detention: “[H]e was in the cage next to me. He told me that there were about 50 other people on the ship. They were all closed off in the bottom of the ship. The prisoner commented to me that it was like something you see on TV. The people held on the ship were beaten even more severely than in Guantanamo.” Clive Stafford Smith, Reprieve’s legal director, says the US military “choose ships to try to keep their misconduct as far as possible from the prying eyes of the media and lawyers. We will eventually reunite these ghost prisoners with their legal rights.… By its own admission, the US government is currently detaining at least 26,000 people without trial in secret prisons, and information suggests up to 80,000 have been ‘through the system’ since 2001 (see November 17, 2005). The US government must show a commitment to rights and basic humanity by immediately revealing who these people are, where they are, and what has been done to them.”
British Officials Ask for Accountability - Andrew Tyrie, the Conservative MP who chairs the all-party parliamentary group on extraordinary rendition, says both the US and British governments must own up to their practices of rendition and “ghost detainees.” “Little by little, the truth is coming out on extraordinary rendition,” he says. “The rest will come, in time. Better for governments to be candid now, rather than later. Greater transparency will provide increased confidence that President Bush’s departure from justice and the rule of law in the aftermath of September 11 is being reversed, and can help to win back the confidence of moderate Muslim communities, whose support is crucial in tackling dangerous extremism.” Tyrie has requested that an investigation into the use of Diego Garcia as a rendition refueling stop be undertaken (see June 2, 2008). Liberal Democrat MP Edward Davey adds: “If the Bush administration is using British territories to aid and abet illegal state abduction, it would amount to a huge breach of trust with the British government. Ministers must make absolutely clear that they would not support such illegal activity, either directly or indirectly.” A US Naval spokesman says that none of its vessels have “detention facilities,” but admits that some detainees had been put on ships “for a few days” during their initial days of detention. He refuses to comment on reports that US Naval vessels stationed in or near Diego Garcia had been used as “prison ships.” [Guardian, 6/2/2008]

Entity Tags: Council of Europe, Andrew Tyrie, Central Intelligence Agency, Clive Stafford Smith, Federal Bureau of Investigation, Edward Davey, Reprieve

Timeline Tags: Torture of US Captives

Jan Schakowsky.Jan Schakowsky. [Source: Washington Post]Fifty-six Democratic members of the House of Representatives send a letter to Attorney General Michael Mukasey, asking him to appoint a special counsel to investigate whether top Bush administration officials committed crimes in authorizing the use of waterboarding and other harsh interrogation tactics against suspected terrorists (see April 2002 and After). The lawmakers, who include John Conyers (D-MI), the chairman of the House Judiciary Committee, and House Intelligence Committee members Jan Schakowsky (D-IL) and Jerrold Nadler (D-NY), cite “mounting evidence” that senior officials personally sanctioned the use of such extreme interrogation methods. An independent investigation is needed to determine whether such actions violated US or international law, the letter states. “This information indicates that the Bush administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law,” the letter says. It adds that a broad inquiry is needed to examine the consequences of administration decisions at US detention sites in Iraq, at Guantanamo, and in secret prisons operated by the CIA. The interrogation methods have resulted in “abuse, sexual exploitation and torture” that may have violated the War Crimes Act of 1996 and the American Anti-Torture Act of 2007. “Despite the seriousness of the evidence, the Justice Department has brought prosecution against only one civilian for an interrogation-related crime,” the letter reads. “Given that record, we believe it is necessary to appoint a special counsel in order to ensure that a thorough and impartial investigation occurs.” Conyers tells reporters after sending the letter, “We need an impartial criminal investigation.” The entire detainee controversy is “a truly shameful episode” in US history, he says. “Because these apparent ‘enhanced interrogation techniques’ were used under cover of Justice Department legal opinions, the need for an outside special prosecutor is obvious.” The Justice Department refuses to comment on the letter. Jennifer Daskal of Human Rights Watch says that the letter is significant even if Mukasey refuses to appoint a special counsel. “The fact that so many representatives have called for the investigation helps lay the groundwork for the inevitable reckoning and accounting that the next administration is going to have to do regarding this administration’s practices,” she says. [US House of Representatives, 6/6/2008; Washington Post, 6/7/2008; United Press International, 6/7/2008]

Entity Tags: Jerrold Nadler, House Intelligence Committee, Central Intelligence Agency, Bush administration (43), House Judiciary Committee, Human Rights Watch, Michael Mukasey, US Department of Justice, John Conyers, Jan Schakowsky, Jennifer Daskal

Timeline Tags: Torture of US Captives, Civil Liberties

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. [Washington Post, 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.” [Los Angeles Times, 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. [Washington Post, 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.) [Los Angeles Times, 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.” [Think Progress, 6/26/2008; Washington Post, 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.” [Washington Post, 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; Truthout (.org), 6/27/2008]

Entity Tags: House Judiciary Committee, John C. Yoo, Al-Qaeda, David S. Addington, Dana Milbank, Christopher Kuttruff, Bush administration (43), John Conyers, Keith Ellison

Timeline Tags: Civil Liberties

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. [Washington Independent, 7/1/2008]

Entity Tags: Milt Bearden, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Jameel Jaffer.Jameel Jaffer. [Source: ACLU (.org)]The American Civil Liberties Union (ACLU) releases three heavily redacted documents detailing the Bush administration’s use of brutal torture methods against detainees in US custody. The documents are turned over to the ACLU by the CIA after a judge orders their release (see May 27, 2008). “These documents supply further evidence, if any were needed, that the Justice Department authorized the CIA to torture prisoners in its custody,” says ACLU official Jameel Jaffer. “The Justice Department twisted the law, and in some cases ignored it altogether, in order to permit interrogators to use barbaric methods that the US once prosecuted as war crimes.” One document is an August 2002 Office of Legal Counsel (OLC) memo authorizing the CIA to use particular interrogation methods, including waterboarding (see August 1, 2002). The memo states that interrogation methods that cause severe mental pain do not amount to torture under US law unless they cause “harm lasting months or even years after the acts were inflicted upon the prisoners.” The other two documents, from 2003 and 2004, are memos from the CIA related to requests for legal advice from the Justice Department. The 2003 memo shows that the OLC authorized the agency to use what it called “enhanced interrogation techniques”; the memo shows that when those techniques were used, the CIA documented, among other things, “the nature and duration of each such technique employed” and “the identities of those present.” The 2004 memo shows that CIA interrogators were told that the Justice Department had concluded that waterboarding and other “harsh interrogation methods” did not constitute torture. The memo also advised CIA interrogators that, in light of the Supreme Court’s ruling that courts can decide whether foreign citizens could be held at Guantanamo (see June 28, 2004), they should be aware that their actions might possibly be subject to judicial review. Jaffer says: “While the documents released today do provide more information about the development and implementation of the Bush administration’s torture policies, even a cursory glance at the documents shows that the administration continues to use ‘national security’ as a shield to protect government officials from embarrassment, criticism, and possible criminal prosecution. Far too much information is still being withheld.” [American Civil Liberties Union, 7/24/2008]

Entity Tags: US Department of Justice, American Civil Liberties Union, Jameel Jaffer, Bush administration (43), Office of Legal Counsel (DOJ), Central Intelligence Agency

Timeline Tags: Torture of US Captives

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.” [New York Times, 11/18/2008]

Entity Tags: Mohamed al-Khatani, Susan Crawford, Bryan Broyles, Lawrence J. Morris

Timeline Tags: Torture of US Captives

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.” [Washington Post, 11/30/2008]

Entity Tags: Matthew Alexander, US Department of Defense, US Department of the Air Force, US Department of the Army, Central Intelligence Agency, Barack Obama, David Petraeus, Abu Musab al-Zarqawi, Al-Qaeda in Iraq, George Casey

Timeline Tags: Torture of US Captives

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.” [ABC News, 12/15/2008; ABC News, 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).

Entity Tags: Central Intelligence Agency, Al-Qaeda, Bush administration (43), Richard (“Dick”) Cheney, Saddam Hussein, Khalid Shaikh Mohammed

Timeline Tags: Torture of US Captives

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.” [Vanity Fair, 12/16/2008] On April 21, 2009, a spokesman for Mueller will say, “The quote is accurate.” [New York Times, 4/22/2008]

Entity Tags: Central Intelligence Agency, Bush administration (43), Alberto R. Gonzales, Abu Zubaida, US Department of Defense, Robert S. Mueller III, Peter Clarke, Khalid Shaikh Mohammed, Federal Bureau of Investigation, David Rose, George W. Bush, Dan Cloonan, John Ashcroft, Binyam Mohamed

Timeline Tags: Torture of US Captives

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. [Washington Post, 1/14/2009; New York Times, 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. [New York Times, 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.” [Washington Post, 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.” [Washington Post, 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.” [Washington Post, 1/14/2009]

Entity Tags: Susan Crawford, Gordon England, Gitanjali Gutierrez, George W. Bush, Geoff Morrell, Central Intelligence Agency, Khalid Shaikh Mohammed, Bush administration (43), Center for Constitutional Rights, Mohamed al-Khatani, US Department of Defense, Michael Hayden

Timeline Tags: Torture of US Captives

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.” [Washington Post, 1/18/2009]

Entity Tags: Darrel Vandeveld

Timeline Tags: Torture of US Captives

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.” [Wired News, 1/20/2009]

Entity Tags: Jon Eisenberg, Asim Ghafoo, Al Haramain Islamic Foundation, Bush administration (43), Obama administration, Eric Holder, Wendell Belew, Vaughn Walker, US Department of Justice, George W. Bush

Timeline Tags: Civil Liberties

Officials for the incoming Obama administration are dismayed to find that the task of closing Guantanamo Bay, one of President Obama’s first orders as president (see January 22, 2009), is going to be much harder than anticipated, because the records and details of the approximately 245 prisoners in custody are in terrific disarray. Obama officials, barred from examining classified records on the detainees until the inauguration, also find that many of the prisoners have no comprehensive case files at all. What information that does exist on the detainees is, according to a senior Obama official, “scattered throughout the executive branch.” Most detainees have little more than a dossier containing brief summaries of information, and lack any sort of background or investigative information that would be required for federal prosecutions. Obama named a Cabinet-level panel to review each case individually before the base is to be closed in a year, and those panel members will now have to spend weeks and perhaps months hunting down and correlating relevant material.
'Food Fights' among Bush Agencies - Officials from the former Bush administration admit that the files are incomplete, and that no single government office was tasked with keeping the information on Guantanamo detainees together. They blame the CIA and other intelligence agencies for not adequately sharing information, and add that the Bush administration’s focus was more on detention and interrogation, and much less on putting together information for future prosecutions. A former Pentagon official says that “regular food fights” between competing government agencies over the sharing of information contributed to the lack of coherent and consistent files. (A CIA official denies that the agency ever balked at sharing information with other governmental agencies, and says the Defense Department was more likely to be responsible for laspes in information.)
Former Bush Officials Say Obama Officials 'Look[ing] for Excuses' - However, other former Bush officials say the Obama team is trying to “look for excuses” instead of dealing with the complexities of the issues involved. Obama officials, after promising quick solutions, are now “backpedaling and trying to buy time” by blaming its predecessor, according to a former senior Bush official. He says that “all but about 60… are either high-level al-Qaeda people responsible for 9/11 or bombings, or were high-level Taliban or al-Qaeda facilitators or money people,” and the Obama administration will come to the same conclusion as Bush officials: that they need to stay in detention without trial or charges.
Files 'Not Comprehensive,' Problem Noted in Previous Judicial Proceedings - But Obama officials say they want to make their own judgments. A senior Obama official says: “The consensus among almost everyone is that the current system is not in our national interest and not sustainable. [But] it’s clear that we can’t clear up this issue overnight” in part because the files “are not comprehensive.” Justice Department lawyers claim that after the Supreme Court ruled detainees have habeas corpus rights (see June 30, 2006), Bush officials were “overwhelmed” by the sudden need to gather and correlate information and material. In one federal filing, the Justice Department told a court that the record for a particular detainee “is not simply a collection of papers sitting in a box at the Defense Department. It is a massive undertaking just to produce the record in this one case.” In another filing, Justice Department officials told a court that “defending these cases requires an intense, inter-agency coordination of efforts. None of the relevant agencies, however, was prepared to handle this volume of habeas cases on an expedited basis.” Some former military officials say that evidence gathered for military commissions trials was scattered and incomplete. One former Guantanamo prosecutor, Darrel Vandeveld, says evidence was “strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks.” He says he once accidentally found “crucial physical evidence” that “had been tossed in a locker located at Guantanamo and promptly forgotten.” [Washington Post, 1/25/2009] Vandeveld says that evidence at Guantanamo was often so disorganized “it was like a stash of documents found in a village in a raid and just put on a plane to the US.” [United Press International, 1/14/2009]
Prosecutors Lacked Evidence Necessary for Prosecutions, Says Senior Official - “A prosecutor has an ethical obligation to review all the evidence before making a charging decision,” says Susan Crawford, the convening authority for the military commissions. “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.” Crawford has stated that another detainee was tortured while at Guantanamo (see January 14, 2009). [ABA Journal, 1/14/2009]
Defense Department: Information There, but Scattered - Pentagon spokesman Geoff Morrell says the files are in good order: “Fundamentally, we believe that the individual files on each detainee are comprehensive and sufficiently organized,” however, “in many cases, there will be thousands of pages of documents… which makes a comprehensive assessment a time-consuming endeavor.… Not all the documents are physically located in one place,” but most are available through a database. “The main point here is that there are lots of records, and we are prepared to make them available to anybody who needs to see them as part of this review.” [Washington Post, 1/25/2009]

Entity Tags: US Department of Justice, Susan Crawford, Bush administration (43), US Department of Defense, Central Intelligence Agency, Geoff Morrell, Obama administration, Darrel Vandeveld

Timeline Tags: Civil Liberties

In an interview for the German television program Frontal 21, broadcast on ZDF, Professor Manfred Nowak, the United Nations rapporteur responsible for torture, states that with George W. Bush’s head of state immunity now terminated, the new government of Barack Obama is obligated by international law to commence a criminal investigation into Bush’s torture practices. “The evidence is sitting on the table,” Nowak says. “There is no avoiding the fact that this was torture.” Nowak cites the Convention Against Torture (see October 21, 1994), which obligates a signatory country such as the US to criminally prosecute anyone who tortures a person, or extradites a person to a country which will torture him. “The government of the United States is required to take all necessary steps to bring George W. Bush and Donald Rumsfeld before a court,” Nowak says. Nowak headed a 2006 study of conditions at Guantanamo that concluded the practices used at that facility and approved by the Bush administration violated human rights norms and constituted torture. ZDF also interviews attorney Wolfgang Kaleck, who brought charges against former Defense Secretary Donald Rumsfeld before German prosecutors. The Obama administration is “off to a good beginning” with its explicit renunciation of torture, Kaleck says, but has yet to show how it will hold Bush, Rumsfeld, and others accountable for their crimes, nor has it demonstrated its legally obligated duty to provide compensation to torture victims. Lastly, law professor Dietmar Herz confirms that Bush bears personal responsibility for the introduction and use of torture. Herz confirms that once Bush lost his immunity from prosecution as a head of state, the US is obligated to prosecute him for crimes against humanity. [Harper's, 1/21/2009]

Entity Tags: Wolfgang Kaleck, Donald Rumsfeld, Barack Obama, Convention Against Torture, Dietmar Herz, Manfred Nowak, George W. Bush, United Nations

Timeline Tags: Civil Liberties

President Barack Obama, in the same sweeping set of executive orders that mandates the closure of the Guantanamo Bay detention facility and orders the closure of the CIA’s secret prisons (see January 22, 2009), orders that the US no longer torture prisoners. And in a broad repudiation of Bush administration policies and legal arguments, Obama’s order nullifies every single legal order and opinion on interrogations issued by any lawyer in the executive branch—including the Department of Justice—since September 11, 2001 (see Shortly After September 11, 2001, Late September 2001, October 23, 2001, Late October 2001, November 6-10, 2001, January 9, 2002, January 25, 2002, and April 2002 and After). “Key components of the secret structure developed under Bush are being swept away,” the Washington Post reports. Obama orders that all interrogations conducted by the CIA and other US officials strictly follow the procedures outlined in the US Army Field Manual. Retired Admiral Dennis Blair, Obama’s nominee to become the director of national intelligence, says that the government may revise the Field Manual to include more coercive interrogation techniques; a commission will be appointed to determine if the Field Manual is adequate. Currently the Field Manual limits interrogators to 19 approved techniques, bans torture, and prohibits harsh questioning techniques in favor of using psychological approaches. “I can say without exception or equivocation that the United States will not torture,” Obama tells a group of listeners at the State Department. “The message that we are sending the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism and we are going to do so vigilantly and we are going to do so effectively and we are going to do so in a manner that is consistent with our values and our ideals,” he adds. The US will now “observe core standards of conduct, not just when it’s easy, but also when it’s hard.” [Agence France-Presse, 1/22/2009; Los Angeles Times, 1/23/2009; Washington Post, 1/23/2009] Tom Malinowski of Human Rights Watch says that he is certain Obama will not secretly authorize torture. Malinowski says that while Obama might oversee some changes in the Field Manual, he says that Obama will not renege on his promise that detainees would not be tortured or treated inhumanely. [Financial Times, 1/22/2009]

Entity Tags: Human Rights Watch, US Department of Justice, Central Intelligence Agency, Barack Obama, Tom Malinowski, Dennis C. Blair

Timeline Tags: Torture of US Captives, Civil Liberties

News columnist Ann Woolner writes that with President Obama’s executive orders to close Guantanamo (see January 22, 2009) and stop torture of terror suspects (see January 22, 2009), “I am beginning to recognize my country again.” Referring to the infamous picture of the hooded Abu Ghraib prisoner with electric wires attached to his body (see April 29-30, 2004), “It’s time to lift the hood and let the man under it step off that box.” [Bloomberg, 1/23/2009]

Entity Tags: Ann Woolner

Timeline Tags: Torture of US Captives

White House counsel Greg Craig says that the executive orders given by President Obama in his first days in office, particularly those outlawing torture (see January 22, 2009) and closing Guantanamo (see January 22, 2009) have been in the works for over a year. Craig also notes that Obama has not finished issuing reforms, and has deliberately put off grappling with several of the most thorny legal issues. Craig says that as Obama prepared to issue the orders, he was “very clear in his own mind about what he wanted to accomplish, and what he wanted to leave open for further consultation with experts.”
Process Began before First Presidential Caucus - Craig says that the thinking and discussion behind these orders, and orders which have yet to be issued, began in Iowa in January 2008, before the first presidential caucus. Obama met with former high-ranking military officers who opposed the Bush administration’s legalization of harsh interrogation tactics, including retired four-star generals Dave Maddox and Joseph Hoar. They were sickened at the abuses committed at Abu Ghraib prison, and, as reporter Jane Mayer writes, “disheartened by what they regarded as the illegal and dangerous degradation of military standards.” They had formed what Mayer calls “an unlikely alliance with the legal advocacy group Human Rights First, and had begun lobbying the candidates of both parties to close the loopholes that Bush had opened for torture.” The retired flag officers lectured Obama on the responsibilities of being commander in chief, and warned the candidate that everything he said would be taken as an order by military personnel. As Mayer writes, “Any wiggle room for abusive interrogations, they emphasized, would be construed as permission.” Craig describes the meeting as the beginning of “an education process.”
'Joy' that US is 'Getting Back on Track' - In December 2008, after Obama’s election, the same group of retired flag officers met with Craig and Attorney General-designate Eric Holder. Both Craig and Holder were impressed with arguments made by retired Marine general and conservative Republican Charles Krulak, who argued that ending the Bush administration’s coercive interrogation and detention regime was “right for America and right for the world.” Krulak promised that if the Obama administration would do what he calls “the right thing,” which he acknowledged will not be politically easy, that he would personally “fly cover” for it. Sixteen of those flag officers joined Obama for the signing of the executive order banning torture. After the signing, Obama met with the officers and several administration officials. “It was hugely important to the president to have the input from these military people,” Craig says, “not only because of their proven concern for protecting the American people—they’d dedicated their lives to it—but also because some had their own experience they could speak from.” During that meeting, retired Major General Paul Eaton called torture “the tool of the lazy, the stupid, and the pseudo-tough. It’s also perhaps the greatest recruiting tool that the terrorists have.” Retired Admiral John Hutson said after the meeting that the feeling in the room “was joy, perhaps, that the country was getting back on track.”
Uncertainty at CIA - Some CIA officials are less enthusiastic about Obama’s changes. They insist that their so-called “enhanced interrogation techniques” have provided critical intelligence, and, as Craig says, “They disagree in some respect” with Obama’s position. Many CIA officials wonder if they will be forced to follow the same interrogation rules as the military. Obama has indeed stopped torture, Craig says, but the president “is somewhat sympathetic to the spies’ argument that their mission and circumstances are different.” Craig says that during the campaign, Obama’s legal, intelligence, and national security advisers visited CIA headquarters in Langley for two intensive briefings with current and former intelligence officials. The issue of “enhanced interrogation tactics” was discussed, and the advisers asked the intelligence veterans to perform a cost-benefit analysis of such tactics. Craig says, “There was unanimity among Obama’s expert advisers that to change the practices would not in any material way affect the collection of intelligence.” [New Yorker, 1/25/2009]

Entity Tags: Paul Eaton, Dave Maddox, Charles Krulak, Central Intelligence Agency, Barack Obama, Eric Holder, Greg Craig, Human Rights First, Jane Mayer, Joseph Hoar, John D. Hutson, Obama administration

Timeline Tags: Civil Liberties

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. [National Public Radio, 1/26/2009]

Entity Tags: US Department of Justice, Eric Holder, Bush administration (43), Andrew Card, Alberto R. Gonzales, Geneva Conventions, George W. Bush, James B. Comey Jr., Karl C. Rove, Paul J. McNulty, D. Kyle Sampson

Timeline Tags: Civil Liberties

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.” [Christian Science Monitor, 1/29/2009]

Entity Tags: John C. Yoo, Bush administration (43), Jose Padilla, Donald Rumsfeld, US Department of Justice, Michael O’Connell

Timeline Tags: Torture of US Captives

John Yoo, the former Bush administration legal adviser who authored numerous opinions on the legality of torture, detentions without legal representation, and warrantless wiretapping (see November 6-10, 2001, December 28, 2001, January 9, 2002, August 1, 2002, and August 1, 2002, among others), writes an op-ed for the Wall Street Journal opposing the Obama administration’s intent to close the Guantanamo Bay detention facility (see January 20, 2009 and January 22, 2009)) and restrict the CIA’s ability to torture detainees (see January 22, 2009). Yoo, now a law professor and a member of the neoconservative American Enterprise Institute, writes that while President Obama’s decision “will please his base” and ease the objections to the Bush “imperial presidency,” it will “also seriously handicap our intelligence agencies from preventing future terrorist attacks.” Yoo writes that the Obama decisions mark a return “to the failed law enforcement approach to fighting terrorism that prevailed before Sept. 11, 2001.” Yoo recommends that Obama stay with what he calls “the Bush system” of handling terror suspects. Yoo fails to note that the US law enforcement system prevented, among others, the “millennium bombing” plot (see December 14, 1999), the plot to bomb New York City’s Lincoln and Holland Tunnels (see June 24, 1993), and Operation Bojinka (see January 6, 1995).
Obama Needs to be Able to Torture Prisoners Just as Bush Did, Yoo Declares - And by eschewing torture, Obama is giving up any chance on forcing information from “the most valuable sources of intelligence on al-Qaeda” currently in American custody. The Bush administration policies prevented subsequent terrorist attacks on the US, Yoo contends, and Obama will need the same widespread latitude to interrogate and torture prisoners that Bush employed: “What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al-Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)” It is noteworthy that Yoo refused to confirm that Bush ordered waterboarding of suspects during his previous Congressional hearings (see June 26, 2008).
Interrogations Must be 'Polite' - According to Yoo, in forcing the CIA and other US interrogators to follow the procedures outlined in the Army Field Manual, they can no longer use “coercive techniques, threats and promises, and the good-cop bad-cop routines used in police stations throughout America.… His new order amounts to requiring—on penalty of prosecution—that CIA interrogators be polite. Coercive measures are unwisely banned with no exceptions, regardless of the danger confronting the country.” [Wall Street Journal, 1/29/2009] Yoo is incorrect in this assertion. The Army Field Manual explicitly countenances many of the “coercive techniques, threats and promises, and the good-cop bad-cop routines” Yoo says it bans. Further, the Field Manual says nothing about requiring interrogators to be “polite.” [Army, 9/2006] And actual field interrogators such as the Army’s Matthew Alexander have repeatedly said that torturing prisoners is ineffective and counterproductive, while building relationships and treating prisoners with dignity during interrogations produces usable, reliable intelligence (see November 30, 2008).
Shutting Down Military Commissions - Obama’s order to stay all military commission trials and to review the case of “enemy combatant” Ali Saleh al-Marri (see June 23, 2003) is also mistaken, Yoo writes. Yoo fears that Obama will shut down the military commissions in their entirety and instead transfer detainees charged with terrorist acts into the US civilian court system. He also objects to Obama’s apparent intent to declare terrorists to be prisoners of war under the Geneva Conventions, instead of following the Bush precedent of classifying terrorists “like pirates, illegal combatants who do not fight on behalf of a nation and refuse to obey the laws of war.” To allow terror suspects to have rights under Geneva and the US legal system, Yoo asserts, will stop any possibility of obtaining information from those suspects. Instead, those suspects will begin using the legal system to their own advantage—refusing to talk, insisting on legal representation and speedy trials instead of cooperating with their interrogators. “Our soldiers and agents in the field will have to run more risks as they must secure physical evidence at the point of capture and maintain a chain of custody that will stand up to the standards of a civilian court,” Yoo writes. [Wall Street Journal, 1/29/2009] In reality, the Supreme Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), as well as the Detainee Treatment Act (see December 15, 2005) and the Military Commissions Act (see October 17, 2006), all mandate that detainees must be handled according to the Geneva Conventions.
Risk to Americans - Another effect of transferring detainees into the civilian justice system, Yoo claims, is to allow “our enemies to obtain intelligence on us.” Defense lawyers will insist on revealing US intelligence—information and methods—in open court, and will no doubt force prosecutors to accept plea bargains “rather than risk disclosure of intelligence secrets.”
Obama 'Open[ed] the Door to Further Terrorist Acts on US Soil' - Obama said in his inaugural speech that the US must “reject as false the choice between our safety and our ideals.” Yoo calls that statement “naive,” and writes, “That high-flying rhetoric means that we must give al-Qaeda—a hardened enemy committed to our destruction—the same rights as garden-variety criminals at the cost of losing critical intelligence about real, future threats.” By making his choices, Yoo writes, “Mr. Obama may have opened the door to further terrorist acts on US soil by shattering some of the nation’s most critical defenses.” [Wall Street Journal, 1/29/2009]

Entity Tags: John C. Yoo, Barack Obama, American Enterprise Institute, Wall Street Journal, Obama administration

Timeline Tags: Torture of US Captives, Civil Liberties

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.” [Vanity Fair, 2/2009]

Entity Tags: Condoleezza Rice, Bush administration (43), Colin Powell, US Supreme Court, George J. Tenet, National Security Council, John Bellinger

Timeline Tags: Civil Liberties

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.” [Federation of American Scientists, 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).

Entity Tags: Eric Holder, Bush administration (43), Office of Legal Counsel (DOJ), US Department of Justice

Timeline Tags: Civil Liberties

George W. Bush’s former political guru Karl Rove echoes incorrect statements made by former Bush lawyer John Yoo. In an op-ed, Yoo claimed that President Obama’s prohibition against torture, and the mandate for US interrogators to use the Army Field Manual as their guide, prevents interrogators from using long-established, non-invasive techniques to question prisoners (see January 29, 2009). In an address at Loyola Marymount University, Rove tells his listeners: “The Army Field Manual prohibits ‘good cop, bad cop.’ All that stuff you see on CSI—the Army Field Manual prohibits it.… If you stop collecting that information, you begin to make America more at risk.” [Torrance Daily Breeze, 2/3/2009] Both Rove and Yoo are wrong. The Army Field Manual explicitly permits many of the “coercive techniques, threats and promises, and the good-cop bad-cop routines” Yoo and Rove claim it bans. [Army, 9/2006]

Entity Tags: Karl C. Rove

Timeline Tags: Torture of US Captives, Civil Liberties

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.” [Politico, 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).

Entity Tags: Barack Obama, Al-Qaeda, Obama administration, Richard (“Dick”) Cheney

Timeline Tags: Complete 911 Timeline, Domestic Propaganda, 2010 Elections

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.” [Think Progress, 2/9/2009]

Entity Tags: Richard Burr, Barack Obama, James M. Inhofe, Satyam Khanna

Timeline Tags: Torture of US Captives, Civil Liberties

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.” [Guardian, 2/8/2009]

Entity Tags: Yvonne Bradley, Binyam Mohamed, Bush administration (43), Obama administration

Timeline Tags: Torture of US Captives, Civil Liberties

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.” [ABC News, 2/9/2009]

Entity Tags: Binyam Mohamed, Anthony D. Romero, American Civil Liberties Union, Ben Wizner, US Department of Justice, Obama administration, Eric Holder, Central Intelligence Agency, Matthew Miller, Jeppesen Dataplan

Timeline Tags: Civil Liberties

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; Raw Story, 3/9/2009] Local law enforcement officials downplay the threat Cummings posed, and the national media virtually ignores the story. [Time, 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.” [Time, 9/30/2010]

Entity Tags: Washington Regional Threat and Analysis Center, US Department of Homeland Security, Michael McFadden, Jose Padilla, Amber Cummings, Federal Bureau of Investigation, James G. Cummings, Richard C. Reid, WikiLeaks

Timeline Tags: Domestic Propaganda, US Domestic Terrorism

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.” [Salon, 2/21/2009]

Entity Tags: Antonio M. Taguba

Timeline Tags: Torture of US Captives

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.” [Associated Press, 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).

Entity Tags: Obama administration, Ann Brick, Steven Goldberg, US Department of Justice, Al Haramain Islamic Foundation

Timeline Tags: Civil Liberties

In response to a Freedom of Information Act lawsuit by the American Civil Liberties Union (ACLU), the CIA turns over unredacted pages of a classified internal agency report that concluded the techniques used on two prisoners “appeared to constitute cruel, inhumane, and degrading treatment, as defined by the International Convention Against Torture” (see October 21, 1994). The CIA also turns over evidence showing that videotapes of the two prisoners being tortured were destroyed (see March 6, 2009). The pages are from a 2004 report compiled by then-CIA Inspector General John Helgerson. The document reads in part: “In January 2003, OIG [Office of Inspector General] initiated a special review of the CIA terrorist detention and interrogation program. This review was intended to evaluate CIA detention and interrogation activities, and was not initiated in response to an allegation of wrongdoing. During the course of the special review, OIG was notified of the existence of videotapes of the interrogations of detainees. OIG arranged with the NCS [National Clandestine Service, the covert arm of the CIA] to review the videotapes at the overseas location where they were stored. OIG reviewed the videotapes at an overseas covert NCS facility in May 2003. After reviewing the videotapes, OIG did not take custody of the videotapes and they remained in the custody of NCS. Nor did OIG make or retain a copy of the videotapes for its files. At the conclusion of the special review in May 2004, OIG notified [the Justice Department] and other relevant oversight authorities of the review’s findings.” The report has never been made public, but information concerning it was revealed by the New York Times in 2005 (see May 7, 2004). [Public Record, 3/6/2009]

Entity Tags: American Civil Liberties Union, National Clandestine Service, John Helgerson, Central Intelligence Agency

Timeline Tags: Torture of US Captives

Oath Keepers logo, as pictured on a T-shirt sold on the organization’s Web site.Oath Keepers logo, as pictured on a T-shirt sold on the organization’s Web site. [Source: Oath Keepers (.com)]The Oath Keepers, a newly formed far-right “patriot” organization whose membership is restricted to soldiers, police officers, firefighters, and military veterans (see March 2010), is formed at a pro-militia rally in Lexington, Massachusetts, the site of the first battle of the Revolutionary War. It is founded by Army veteran and lawyer Stewart Rhodes, who delivers a fiery speech at the rally. “You need to be alert and aware to the reality of how close we are to having our constitutional republic destroyed,” he tells the assemblage. “Every dictatorship in the history of mankind, whether it is fascist, communist, or whatever, has always set aside normal procedures of due process under times of emergency.… We can’t let that happen here. We need to wake up!” The crowd of listeners includes many well-known “patriot movement” members, including Richard Mack, a former Arizona sheriff who refused to enforce the federal Brady law (see November 30, 1993) in his jurisdiction; Mike Vanderboegh of the “Three Percenter” movement (see October 1995 and After); and others. Rhodes gives the rally his group’s “Orders We Will Not Obey,” a list of 10 orders he considers unconstitutional and therefore unenforceable, whether they are issued by commanding officers, policemen, or the president. When Rhodes finishes, Captain Larry Bailey, a retired Navy SEAL who leads a group called Gathering of Eagles, asks the crowd to raise their right hands and retake their oath—not to the president, but to the Constitution. [Mother Jones, 3/2010]
Posting the 'Orders' - On the Oath Keepers blog, Rhodes posts the “Orders We Will Not Obey” along with an introductory statement culled from the speech given by then-General George Washington before the Battle of Long Island: “The time is now near at hand which must probably determine, whether Americans are to be, Freemen, or Slaves; whether they are to have any property they can call their own; whether their Houses, and Farms, are to be pillaged and destroyed, and they consigned to a State of Wretchedness from which no human efforts will probably deliver them. The fate of unborn Millions will now depend, under God, on the Courage and Conduct of this army.” Rhodes writes: “Such a time is near at hand again. The fate of unborn millions will now depend, under God, on the Courage and Conduct of this Army—and this Marine Corps, This Air Force, This Navy and the National Guard and police units of these sovereign states.” He calls the Oath Keepers “non-partisan,” and issues his list of orders they will refuse to obey, calling these “acts of war” against the American people “and thus acts of treason.” He cites Revolutionary War actions and precedents for each of his 10 statements.
bullet “1. We will NOT obey any order to disarm the American people.” Rhodes explains that this means the government will not attempt to restrain gun ownership in any way, and states his group’s opposition to any bans on assault rifles or any attempts to enforce gun regulation or registration.
bullet “2. We will NOT obey any order to conduct warrantless searches of the American people, their homes, vehicles, papers, or effects—such as warrantless house-to-house searches for weapons or persons.” Rhodes compares these to the Revolutionary War-era “writs of assistance,” carried out by British soldiers against American colonists without judicial orders. The Constitution proscribes warrantless searches, Rhodes says. “We expect that sweeping warrantless searches of homes and vehicles, under some pretext, will be the means used to attempt to disarm the people,” he writes, and says Oath Keepers will not follow such orders.
bullet “3. We will NOT obey any order to detain American citizens as ‘unlawful enemy combatants’ or to subject them to trial by military tribunal.” Any such detentions (see June 26, 2002 and June 9, 2002) are unconstitutional, harking back to Revolutionary War-era admiralty courts and the British “star chambers.” Rhodes predicts that the federal government will attempt to detain its own citizens under international law.
bullet “4. We will NOT obey orders to impose martial law or a ‘state of emergency’ on a state, or to enter with force into a state, without the express consent and invitation of that state’s legislature and governor.” Rhodes fears that “states of emergency” will be declared in the aftermath of a natural disaster such as a hurricane or a massive flood, or perhaps another 9/11-level terror attack, and then used to impose tyranny and martial law on the American populace.
bullet “5. We will NOT obey orders to invade and subjugate any state that asserts its sovereignty and declares the national government to be in violation of the compact by which that state entered the Union.” As many as 20 individual states have either passed or considered what Rhodes calls “courageous resolutions affirming states rights and sovereignty” that take powers from the federal government and give them over to the states. The federal government may attempt to use force to retake these powers, Rhodes writes, especially if a state attempts to secede or declare itself of equal sovereignty with the federal government.
bullet “6. We will NOT obey any order to blockade American cities, thus turning them into giant concentration camps.” One of Rhodes’s most strongly stated fears is what he believes will be the attempts of the federal government to build concentration camps and detain citizens.
bullet “7. We will NOT obey any order to force American citizens into any form of detention camps under any pretext.”
bullet “8. We will NOT obey orders to assist or support the use of any foreign troops on US soil against the American people to ‘keep the peace’ or to ‘maintain control’ during any emergency, or under any other pretext. We will consider such use of foreign troops against our people to be an invasion and an act of war.” Rhodes believes that the US government may use foreign troops, perhaps under the auspices of the United Nations, to conduct military operations against its own citizenry.
bullet “9. We will NOT obey any orders to confiscate the property of the American people, including food and other essential supplies, under any emergency pretext whatsoever.”
bullet “10. We will NOT obey any orders which infringe on the right of the people to free speech, to peaceably assemble, and to petition their government for a redress of grievances.”
Rhodes concludes: “The above list is not exhaustive but we do consider them to be clear tripwires—they form our ‘line in the sand’—and if we receive such orders, we will not obey them. Further, we will know that the time for another American Revolution is nigh. If you the people decide that you have no recourse, and such a revolution comes, at that time, not only will we NOT fire upon our fellow Americans who righteously resist such egregious violations of their God given rights, we will join them in fighting against those who dare attempt to enslave them.… The mission of Oath Keepers is to vastly increase their numbers. We are in a battle for the hearts and minds of our own troops. Help us win it.” [Stewart Rhodes, 3/9/2009] Army spokesman Nathan Banks will remind the members that following through on their Oath Keepers pledge could mean serious repercussions. “You have every right to disobey an order if you think it is illegal,” Banks will say. “But you will face court-martial, and so help you God if you are wrong. Saying something isn’t constitutional isn’t going to fly.”
Associated with Tea Party Movement - After the 2009 rally, Rhodes’s organization will become closely affiliated with the tea party movement; on July 4, 2009, Rhodes will send speakers to administer his organization’s “oath” at over 30 tea party rallies across the nation. He will take part in the September 12, 2009 “9/12” march in Washington, DC (see September 12, 2009), and host rallies in Florida and other states. [Mother Jones, 3/2010]

Entity Tags: Richard Mack, Nathan Banks, Mike Vanderboegh, Oath Keepers, Gathering of Eagles, Larry Bailey, Stewart Rhodes

Timeline Tags: US Domestic Terrorism

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. [New York Review of Books, 3/15/2009 pdf file; New York Review of Books, 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.” [New York Review of Books, 3/15/2009]

Entity Tags: Khallad bin Attash, Khalid Shaikh Mohammed, Bush administration (43), Barack Obama, Abu Zubaida, New York Review of Books, Central Intelligence Agency, George W. Bush, Geneva Conventions, John Ashcroft, International Committee of the Red Cross, Mark Danner

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Baltasar Garzon.Baltasar Garzon. [Source: Presidency of Argentina]A Spanish court begins preliminary work towards opening a criminal investigation into allegations that six former top Bush administration officials may be guilty of war crimes related to torture of prisoners at Guantanamo. Spanish law allows the investigation and prosecution of people beyond its borders in the case of torture or war crimes. Investigative judge Baltasar Garzon, who ordered the arrest of Chilean dictator Augusto Pinochet and has overseen the prosecution of numerous terrorists and human rights violators, wants to prosecute former US Attorney General Alberto Gonzales, former Justice Department lawyers John Yoo and Jay Bybee, former Defense Department officials William Haynes and Douglas Feith, and David Addington, the former chief of staff to then-Vice President Cheney. Many legal experts say that even if Garzon’s case results in warrants being issued, it is highly doubtful that the warrants would ever be served as long as the six potential defendants remain in the US. Spain has jurisdiction in the case because five Spanish citizens or residents have claimed to have been tortured at Guantanamo; the five faced charges in Spain, but were released after the Spanish Supreme Court ruled that evidence obtained through torture was inadmissible. Garzon’s complaint rests on alleged violations of the Geneva Conventions and the 1984 Convention Against Torture (see October 21, 1994). The complaint was prepared by Spanish lawyers with the assistance of experts in Europe and America, and filed by the Association for the Dignity of Prisoners, a Spanish human rights group. Lawyer Gonzalo Boye, who filed the complaint, says that Gonzales, Yoo, and the others have what he calls well-documented roles in approving illegal torture techniques, redefining torture, and ignoring the constraints set by the Convention Against Torture. “When you bring a case like this you can’t stop to make political judgments as to how it might affect bilateral relations between countries,” Boye says. “It’s too important for that.” Boye adds: “This is a case from lawyers against lawyers. Our profession does not allow us to misuse our legal knowledge to create a pseudo-legal frame to justify, stimulate, and cover up torture.” The US is expected to ignore any extradition requests occuring from the case. [New York Times, 3/28/2009; Associated Press, 3/28/2009]

Entity Tags: William J. Haynes, Jay S. Bybee, David S. Addington, John C. Yoo, Geneva Conventions, Convention Against Torture, Gonzalo Boye, Association for the Dignity of Prisoners, Alberto R. Gonzales, Baltasar Garzon, Bush administration (43)

Timeline Tags: Civil Liberties

The CIA’s torture of a supposed high-ranking al-Qaeda operative, Abu Zubaida, produced no information that helped foil any terrorist attacks or plots, according to former senior government officials who closely followed the interrogations. Zubaida was subjected to intensive waterboarding and other tortures (see April - June 2002), and provided information about a fantastic array of al-Qaeda plots that sent CIA agents all over the globe chasing down his leads. But none of his information panned out, according to the former officials. Almost everything Zubaida said under torture was false, and most of the reliable information gleaned from him—chiefly the names of al-Qaeda members and associates—was obtained before the CIA began torturing him. Moreover, the US’s characterization of Zubaida as “al-Qaeda’s chief of operations” and a “trusted associate” of Osama bin Laden turned out to be false as well. Several sources have challenged the government’s characterization of Zubaida as a “high-level al-Qaeda operative” before now (see Shortly After March 28, 2002 and April 9, 2002 and After).
'Fixer' for Islamists before 9/11 - Zubaida, a native Palestinian, never even joined al-Qaeda until after 9/11, according to information obtained from court documents and interviews with current and former intelligence, law enforcement, and military sources. Instead, he was a “fixer” for a number of radical Islamists, who regarded the US as an enemy primarily because of its support for Israel. Many describe Zubaida as a “travel agent” for al-Qaeda and other radical Islamists. He joined al-Qaeda because of the US’s preparations to invade Afghanistan. US officials are contemplating what, if any, charges they can use to bring him into court. Zubaida has alleged links with Ahmed Ressam, the so-called “Millennium Bomber” (see December 14, 1999), and allegedly took part in plans to retaliate against US forces after the overthrow of the Taliban in late 2001 (see December 17, 2001). But some US officials worry that bringing him into a courtroom would reveal the extent of his torture and abuse at the hands of the CIA, and that any evidence they might have against him is compromised because it was obtained in part through torture. Those officials want to send him to Jordan, where he faces allegations of conspiracy in terrorist attacks in that country.
Defending Zubaida's Information - Some in the US government still believe that Zubaida provided useful information. “It’s simply wrong to suggest that Abu Zubaida wasn’t intimately involved with al-Qaeda,” says a US counterterrorism official. “He was one of the terrorist organization’s key facilitators, offered new insights into how the organization operated, provided critical information on senior al-Qaeda figures… and identified hundreds of al-Qaeda members. How anyone can minimize that information—some of the best we had at the time on al-Qaeda—is beyond me.… Based on what he shared during his interrogations, he was certainly aware of many of al-Qaeda’s activities and operatives.” But the characterization of Zubaida as a well-connected errand runner was confirmed by Noor al-Deen, a Syrian teenager captured along with Zubaida at a Pakistani safe house (see March 28, 2002). Al-Deen readily answered questions, both in Pakistan and in a detention facility in Morocco. He described Zubaida as a well-known functionary with little knowledge of al-Qaeda operations. (Al-Deen was later transferred to Syria; his current whereabouts and status are unknown to the public.) A former Justice Department official closely involved in the early investigation of Zubaida says: “He was the above-ground support” for al-Qaeda and other radicals. “He was the guy keeping the safe house, and that’s not someone who gets to know the details of the plans. To make him the mastermind of anything is ridiculous.” A former intelligence officer says the US spent an inestimable amount of time and money chasing Zubaida’s “leads” to no effect: “We spent millions of dollars chasing false alarms.”
Connected to KSM - Zubaida knew radical Islamist Khalid Shaikh Mohammed for years. Mohammed, often dubbed “KSM” by US officials, approached Zubaida in the 1990s about finding financial backers for a plan he had concocted to fly a small plane into the World Trade Center. Zubaida declined involvement but recommended he talk to bin Laden. Zubaida quickly told FBI interrogators of Mohammed and other al-Qaeda figures such as alleged “dirty bomber” Jose Padilla (see May 8, 2002). He also revealed the plans of the low-level al-Qaeda operatives he fled Afghanistan with. Some wanted to strike US forces in Afghanistan with bombs, while others harbored ideas of further strikes on American soil. But he knew few details, and had no knowledge of plans by senior al-Qaeda operatives. At this point, the CIA took over the interrogations, and the torture began (see Mid-April-May 2002). As a result of the torture, Zubaida began alternating between obstinate silence and providing torrents of falsified and fanciful “intelligence”; when FBI “clean teams” attempted to re-interview some detainees who had been tortured in order to obtain evidence uncontaminated by abusive treatment, Zubaida refused to cooperate. Joseph Margulies, one of Zubaida’s attorneys, says: “The government doesn’t retreat from who KSM is, and neither does KSM. With Zubaida, it’s different. The government seems finally to understand he is not at all the person they thought he was. But he was tortured. And that’s just a profoundly embarrassing position for the government to be in.” Margulies and other lawyers want the US to send Zubaida to another country besides Jordan—Saudi Arabia, perhaps, where Zubaida has family. Military prosecutors have already deleted Zubaida’s name from the charge sheets of detainees who will soon stand trial, including several who were captured with Zubaida and are charged with crimes in which Zubaida’s involvement has been alleged.
Pressure from the White House - The pressure from the White House to get actionable information from Zubaida was intense (see Late March 2002), according to sources. One official recalls the pressure as “tremendous.” He says the push to force information from Zubaida mounted from one daily briefing to the next. “They couldn’t stand the idea that there wasn’t anything new. They’d say, ‘You aren’t working hard enough.’ There was both a disbelief in what he was saying and also a desire for retribution—a feeling that ‘He’s going to talk, and if he doesn’t talk, we’ll do whatever.’” [Washington Post, 3/29/2009]

Entity Tags: Jose Padilla, Al-Qaeda, Ahmed Ressam, Abu Zubaida, Bush administration (43), Federal Bureau of Investigation, Khalid Shaikh Mohammed, US Department of Justice, Joseph Margulies, Central Intelligence Agency, Noor al-Deen

Timeline Tags: Torture of US Captives

Former Secretary of State Colin Powell, in an interview with MSNBC’s Rachel Maddow, refuses to acknowledge his role in approving the torture of suspected terrorists. In 2008, ABC News named Powell as one of the members of the National Security Council’s principals committee who repeatedly authorized a variety of torture techniques to be used on detainees (see April 9, 2008). He also declines to affirm that several techniques, including waterboarding and sleep deprivation, qualify as torture. Powell says the torture of Abu Zubaida (see April - June 2002) and other al-Qaeda suspects “were not play-by-play discussed but there were conversations at a senior level with regard to what could be done with these types of interrogation. I cannot say further because I don’t have knowledge of all the meetings that took place or what was discussed at each of those meetings and I think it’s going to have to be in the written record of that meeting what will determine whether anything improper took place. But it is always the case that at least in the State Department’s standpoint, we should be consistent with the requirements of the Geneva Convention and that’s why this was such a controversial, controversial issue that you have to go—in due course I think we all will go to the written record. I’m not sure what memos were signed or not signed. I didn’t have access to all of that information.” Maddow asks, “If there was a meeting, though, at which senior officials were giving the approval for sleep deprivations, stress positions, waterboarding, were those officials committing crimes when they were getting their authorization?” Powell refuses to answer, saying, “I don’t know If any of these items would be considered criminal and I would wait for whatever investigation that the government or the Congress intends to pursue with this.” Maddow asks if he regrets his own participation in discussions about interrogations and torture, but Powell cuts her off to state: “There was no meeting on torture. It is constantly said that the meetings—I had an issue with this—we had meetings on what torture to administer. What I recall, the meetings I was in, I was not in all the meetings and I was not an author of many of the memos that have been written and some have come out and some have not come out. The only meetings I recall was where we talked about what is it we can do with respect to trying to get information from individuals who were in our custody. And I will just have to wait until the full written record is available and examined.… I don’t know where these things were being approved at a political level.” [MSNBC, 4/1/2009; Think Progress, 4/1/2009]

Entity Tags: Rachel Maddow, Colin Powell

Timeline Tags: Torture of US Captives

The White House releases four key Justice Department memos documenting the CIA’s use of harsh interrogation methods—torture—against suspected terrorists. The memos were released as a result of a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU). The documents show that two high-level detainees were subjected to waterboarding at least 266 times between them. Al-Qaeda operative Abu Zubaida was waterboarded at least 83 times in August 2002, contradicting earlier CIA reports that he “broke” after a single waterboarding session (see December 10, 2007). Confessed 9/11 mastermind Khalid Shaikh Mohammed was waterboarded at least 183 times in March 2003. The so-called “insect” technique—exposure to insects within an enclosed box—was approved for use on Zubaida, but apparently never used. Numerous prisoners were subjected to “walling” and “sleep deprivation,” with at least one detainee subjected to the technique for 180 hours (over seven days). Three of the memos were written by then-Office of Legal Counsel (OLC) chief Steven Bradbury in May 2005 (see May 10, 2005, May 10, 2005, and May 30, 2005), and the fourth by Bradbury’s predecessor, Jay Bybee, in August 2002 (see August 1, 2002). [American Civil Liberties Union, 4/16/2009; New York Times, 4/19/2009; BBC, 4/23/2009] Senate Judiciary Committee chairman Patrick Leahy (D-VT) says: “These legal memoranda demonstrate in alarming detail exactly what the Bush administration authorized for ‘high value detainees’ in US custody. The techniques are chilling. This was not an ‘abstract legal theory,’ as some former Bush administration officials have characterized it. These were specific techniques authorized to be used on real people.” [CNN, 4/17/2009] House Judiciary Committee chairman John Conyers (D-MI) agrees, saying: “This release, as well as the decision to ban the use of such techniques in the future, will strengthen both our national security and our commitment to the rule of law and help restore our country’s standing in the international community. The legal analysis and some of the techniques in these memos are truly shocking and mark a disturbing chapter in our nation’s history.” [Think Progress, 4/16/2009] Senate Intelligence Committee chairwoman Dianne Feinstein (D-CA), whose committee is conducting an investigation of abusive interrogation methods used during the Bush administration, says Bush officials “inaccurately interpreted” the Geneva Conventions prohibiting torture. “I find it difficult to understand how the opinions found these interrogation techniques to be legal,” she says. “For example, waterboarding and slamming detainees head-first into walls, as described in the OLC opinions, clearly fall outside what is legally permissible.” [United Press International, 4/16/2009]
White House Condemns Methods, Opposes Investigations - Attorney General Eric Holder says of the memos: “The president has halted the use of the interrogation techniques described in these opinions, and this administration has made clear from day one that it will not condone torture. We are disclosing these memos consistent with our commitment to the rule of law.” Holder adds that, according to a Justice Department statement, “intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.” Holder states, “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.” [US Department of Justice, 4/16/2009] President Obama condemns what he calls a “dark and painful chapter in our history,” and promises that such torture techniques will never be used again. However, he restates his opposition to a lengthy investigation into the program, saying that “nothing will be gained by spending our time and energy laying blame for the past.” In contrast, Leahy says that the memos illustrate the need for an independent investigation. Dennis Blair, the director of national intelligence, points out that the memos were written at a time when the CIA was working to prevent a repeat of the 9/11 attacks. “Those methods, read on a bright, sunny, safe day in April 2009, appear graphic and disturbing,” he says. “But we will absolutely defend those who relied on these memos.” [New York Times, 4/19/2009] The ACLU demands criminal prosecution of Bush officials for their torture policies (see April 16, 2009). [American Civil Liberties Union, 4/16/2009]
Techniques Include Waterboarding, Insect Exposure, 'Walling' - The memos show that several techniques were approved for use, including waterboarding, exposure to insects within a “confinement box,” being slammed into a wall, sleep deprivation, stress positions, forced nudity, and others. [American Civil Liberties Union, 4/16/2009; New York Times, 4/19/2009; BBC, 4/23/2009]
Waterboarded Well beyond Allowed Procedures - Because the information about the waterboarding of Zubaida and Mohammed comes from the classified and heavily redacted CIA’s inspector general report, which has not yet been released to the public, the information is at least in part based on the videotapes of Zubaida’s interrogation sessions that were later destroyed by CIA officials (see March 6, 2009). The CIA memo explained that detainees could be waterboarded between 12 and 18 times in a single day, but only on five days during a single month—which mathematically only adds up to 90 times in a month, and thus does not explain how Mohammed could have been waterboarded 183 times in a month if these procedures were being followed. The memos also reveal that in practice, the waterboarding went far beyond the methodologies authorized by the Justice Department and used in SERE training (see December 2001 and July 2002).
Information Unearthed by Blogger - Initial media reports fail to divulge the extraordinary number of times Zubaida and Mohammed were waterboarded. It falls to a blogger, Marcy Wheeler, to unearth the information from the CIA memo and reveal it to the public (see April 18, 2009). [Marcy Wheeler, 4/18/2009]

Entity Tags: Marcy Wheeler, Central Intelligence Agency, Dennis C. Blair, Khalid Shaikh Mohammed, Dianne Feinstein, Jay S. Bybee, Geneva Conventions, Eric Holder, Barack Obama, Bush administration (43), John Conyers, Office of Legal Counsel (DOJ), US Department of Justice, American Civil Liberties Union, Steven Bradbury, Patrick J. Leahy, Abu Zubaida, Obama administration

Timeline Tags: Torture of US Captives

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