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Context of 'August 2004: Lawyer with Pentagon Connections Say Fay Report is a ‘Whitewash’ '

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Conservative talk show host Rush Limbaugh dismisses photos taken of prisoners at Abu Ghraib over the course of several broadcasts. The excerpts are collected by Newsweek, researchers from the Annenberg Public Policy Center, and the progressive media watchdog site Media Matters. On May 3, he tells his listeners, “You know, if you look at—if you really look at these pictures, I mean, I don’t know if it’s just me, but it looks just like anything you’d see Madonna or Britney Spears do onstage—maybe I’m, yeah—and get an NEA [National Education Association] grant for something like this” (see October 2003, October 17-22, 2003, October 24, 2003, Evening October 25, 2003, November 4, 2003, November 4-December 2, 2003, and Between 4:30 a.m. and 5:30 a.m. November 4, 2003, among others). On May 4, he says: “You know, those [US soldiers in Iraq] are being fired at every day. I’m talking about people having a good time. These people—you ever heard of emotional release? You ever heard of needing to blow some steam off? … It is no different than what happens at the Skull and Bones initiation.” On May 5, he says: “I think a lot of the American culture is being feminized. I think the reaction to the stupid torture is an example of the feminization of this country.” On May 6: he says, “The thing, though, that continually amazes—here we have these pictures of homoeroticism that look like standard good old American pornography, the Britney Spears or Madonna concerts or whatever.… I mean, this is something that you can see onstage at Lincoln Center from an NEA grant, maybe on Sex and the City.” In that same broadcast, he praises the torturers by saying: “And we hear that the most humiliating thing you can do is make one Arab male disrobe in front of another. Sounds to me like it’s pretty thoughtful.… Maybe the people who executed this pulled off a brilliant maneuver. Nobody got hurt. Nobody got physically injured.… Sounds pretty effective to me if you look at us in the right context.” And on May 11, he says, “If you take these pictures and bring them back and have them taken in an American city and put on an American Web site, they might win an award from the pornography industry.” [Media Matters, 5/6/2004; Newsweek, 5/13/2004; Boehlert, 2006, pp. 118; Jamieson and Cappella, 2008, pp. 160]

Entity Tags: Rush Limbaugh, Britney Spears, Annenberg Public Policy Center, Madonna, Media Matters, Newsweek

Timeline Tags: Torture of US Captives, Domestic Propaganda

Major General Geoffrey Miller says during a Coalition Provisional Authority briefing that while physical contact between the interrogator and detainees is prohibited, “sleep deprivation and stress positions and all that could be used—but they must be authorized.” (see April 16, 2003) But as Amnesty International later notes in a letter to George Bush, “The United Nations Committee against Torture, the expert body established by the Convention against Torture (see October 21, 1994) has expressly held that restraining detainees in very painful positions, hooding, threats, and prolonged sleep deprivation are methods of interrogation which violate the prohibition on torture and cruel, inhuman, or degrading treatment.” [Amnesty International, 5/7/2004]

Entity Tags: Geoffrey D. Miller, George W. Bush, Amnesty International

Timeline Tags: Torture of US Captives

Speaking about the Abu Ghraib scandal (see April 28, 2004), President Bush promises a “full investigation.” In an interview with Al Arabiya, he says: “It’s important for people to understand that in a democracy, there will be a full investigation. In other words, we want to know the truth. In our country, when there’s an allegation of abuse… there will be a full investigation, and justice will be delivered.… It’s very important for people and your listeners to understand that in our country, when an issue is brought to our attention on this magnitude, we act. And we act in a way in which leaders are willing to discuss it with the media.… In other words, people want to know the truth. That stands in contrast to dictatorships. A dictator wouldn’t be answering questions about this. A dictator wouldn’t be saying that the system will be investigated and the world will see the results of the investigation.” [White House, 5/5/2004] In April 2009, after significant revelations of Bush torture policies have hit the press (see April 16, 2009 and April 21, 2009), Atlantic columnist Andrew Sullivan will write: “Bush personally authorized every technique revealed at Abu Ghraib. He refused to act upon the International Committee of the Red Cross’s report that found that he had personally authorized the torture of prisoners, in violation of the Geneva Conventions and the UN Convention on Torture and domestic law against cruel and inhuman treatment. A refusal to investigate and prosecute Red Cross allegations of torture is itself a violation of the Geneva Accords.” [Atlantic Monthly, 4/27/2009]

Entity Tags: Andrew Sullivan, George W. Bush

Timeline Tags: Torture of US Captives

The Wall Street Journal publishes portions of the February Red Cross (ICRC) report (see February 24, 2004) on coalition prisons in Iraq. [Wall Street Journal, 5/7/2004]

Entity Tags: International Committee of the Red Cross

Timeline Tags: Torture of US Captives

A Pentagon report determines that conditions at the detention facilities at Guantanamo Bay, Cuba, and Charleston, South Carolina used to house “enemy combatants” are problematic at best. The facilities house three designated enemy combatants: Jose Padilla (see May 8, 2002), Yaser Esam Hamdi (see December 2001), and Ali Saleh Kahlah al-Marri (see December 12, 2001). The report, entitled “Brief to the Secretary of Defense on Treatment of Enemy Combatants Detained at Naval Station Guantanamo Bay, Cuba, and Naval Consolidated Brig Charleston,” is written by the Navy’s Vice Admiral A.T. Church III and by Marine Brigadier General D.D. Thiessen. The focus of the report is to “[e]nsure Department of Defense orders concerning proper treatment of enemy combatants.” The report documents extensive problems at both locations. It cites the following as some of the problems:
bullet “One detainee has Koran removed from cell as part of JFCOM [Joint Forces Command] interrogation plan. Muslim chaplain not available.”
bullet “One detainee in Charleston has mattress removed as part of JFCOM-approved interrogation plan.”
bullet “One detainee in each location currently not authorized ICRC [Red Cross] visits due to interrogation plans in progress.”
bullet “One detainee in Charleston has Koran, mattress, and pillow removed and is fed cold MREs as part of interrogation plan.” This citation has a footnote that reads, “After completion of current interrogation,” removal of the Koran as an incentive to answer questions “will no longer be used at Charleston.”
bullet “Limited number and unique status of detainees in Charleston precludes interaction with other detainees. Argument could be made that this constitutes isolation.”
bullet At the Charleston brig, “Christian chaplain used to provide socialization, but could be perceived as forced proselytization.”
Nonetheless, the report concludes, “No evidence of noncompliance with DoD orders at either facility.” The authors assume that “treatment provided for in presidential and SECDEF orders constitutes ‘humane treatment.’” [Progressive, 3/2007] When Church presents his report to journalists (see May 12, 2004), he says he only found eight “minor infractions.”

Entity Tags: US Department of Defense, Jose Padilla, D.D. Thiessen, Ali Saleh Kahlah al-Marri, Albert T. Church III, Yaser Esam Hamdi

Timeline Tags: Torture of US Captives

The New York Times learns that FBI Director Robert Mueller has ordered FBI interrogators to stay out of CIA-led interrogations of suspected al-Qaeda members. Mueller, and many FBI officials, believe the CIA’s interrogation tactics are too brutal and violate domestic and international laws. Mueller and other FBI officials have objected to the use of techniques such as waterboarding, as well as forced starvation, forced drugging, and beatings. FBI officials told Mueller that the techniques would be prohibited in criminal cases. Some CIA officers are worried that public outrage over the recent revelations of prisoner abuse at Baghdad’s Abu Ghraib prison might lead to a closer examination of the agency’s treatment of al-Qaeda prisoners. “Some people involved in this have been concerned for quite a while that eventually there would be a new president, or the mood in the country would change, and they would be held accountable,” one says. “Now that’s happening faster than anybody expected.” [BBC, 5/13/2004] In 2008, a Justice Department investigation (see May 20, 2008) will reveal that sometime in mid-2002, the FBI’s then-assistant director for counterterrorism, Pasquale D’Amuro, ordered FBI agents at Guantanamo to stop participating in interrogations and leave the facility. D’Amuro brought the issue to Mueller’s attention; according to the Justice Department report, D’Amuro “stated that his exact words to Mueller were ‘we don’t do that’ and that someday the FBI would be called to testify and he wanted to be able to say that the FBI did not participate in this type of activity.” D’Amuro was concerned that the use of such aggressive interrogation techniques “failed to take into account an ‘end game.’” The report will continue: “D’Amuro stated that even a military tribunal would require some standard for admissibility of evidence. Obtaining information by way of ‘aggressive’ techniques would not only jeopardize the government’s ability to use the information against the detainees, but also might have a negative impact on the agents’ ability to testify in future proceedings.” Mueller agreed with D’Amuro and issued what became a “bright line rule” barring FBI agents from participating in CIA and military interrogations involving such methods. [Newsweek, 5/20/2008]

Entity Tags: Federal Bureau of Investigation, Central Intelligence Agency, Robert S. Mueller III, Pasquale D’Amuro, US Department of Justice

Timeline Tags: Torture of US Captives

In response to what the five Britons released from Guantanamo (see March 9, 2004) have claimed about the abuses they suffered during their stay at the US detention camp, John Sifton from Human Rights Watch says, “It is now clear that there is a systemic problem of abuse throughout the US military’s detention facilities—not merely misbehavior by a few bad apples.” [Observer, 5/16/2004]

Entity Tags: John Sifton

Timeline Tags: Torture of US Captives

Sgt. Samuel Provance of the 302nd Military Intelligence Battalion tells ABC News that the US military is engaged in a cover-up of the Abu Ghraib abuses. “There’s definitely a cover-up,” he says. “People are either telling themselves or being told to be quiet.” He also says the MPs seen in the photos with naked Iraqi prisoners at the prison were acting under orders from military intelligence. “Anything [the MPs] were to do legally or otherwise, they were to take those commands from the interrogators…. One interrogator told me about how commonly the detainees were stripped naked, and in some occasions, wearing women’s underwear. If it’s your job to strip people naked, yell at them, scream at them, humiliate them, it’s not going to be too hard to move from that to another level.” [ABC News, 5/18/2004; Washington Post, 5/20/2004]

Entity Tags: Samuel Provance

Timeline Tags: Torture of US Captives

A Defense Intelligence Agency (DIA) document shows that Lieutenant General Ricardo Sanchez, the supreme commanding officer of US forces in Iraq, approved of extreme interrogation methods to be used by military interrogators against detainees. A DIA officer in charge of a team of interrogators states that there is a 35-page order spelling out the rules of engagement that interrogators are supposed to follow, and that they are encouraged to “go to the outer limits to get information from the detainees by people who wanted the information.” When asked to whom the officer is referring, the officer answers, “LTG Sanchez.” The officer states that the expectation coming from “headquarters” is to break the detainees. [American Civil Liberties Union, 5/2/2006]

Entity Tags: Ricardo S. Sanchez, Defense Intelligence Agency

Timeline Tags: Torture of US Captives

After speaking to the media (see May 18, 2004) (see May 19, 2004), Sgt. Samuel Provance receives a disciplinary order from his battalion commander, Lt. Col. James Norwood, notifying him that he has been stripped of his security clearance, transferred to a different platoon, and made ineligible for promotions or awards. He is also informed that he may be prosecuted for speaking out because his comments were “not in the national interest.” [ABC News, 5/21/2004] Norwood says: “There is reason for me to believe that you may have been aware of the improper treatment of the detainees at Abu Ghraib before they were reported by other soldiers.” The conclusions of Maj. Gen. George Fay’s investigation (see August 25, 2004), Norwood warns, “may reveal that you should face adverse action for your failure to report.” [Newsweek, 6/7/2004] Indeed, the Fay report will conclude that Provance “[f]ailed to report detainee abuse” and “[f]ailed to obey a direct order.” Maj. Gen. Fay will also write, “He interfered with this investigation by talking about the investigation, giving interviews to the media, and passing the questions being asked by investigators to others via a website.” [US Department of Defense, 8/23/2004 pdf file] Provance’s attorney, Scott Horton, believes the military is intimidating soldiers in an effort to prevent them from speaking out about what they know. “I see it as an effort to intimidate Sgt. Provance and any other soldier whose conscience is bothering him, and who wants to come forward and tell what really happened at Abu Ghraib,” he says. [ABC News, 5/21/2004]

Entity Tags: George R. Fay, Scott Horton, James Norwood, Samuel Provance

Timeline Tags: Torture of US Captives

In an e-mail, an “On Scene Commander” of the FBI in Baghdad refers to an executive order by President Bush allowing aggressive interrogation techniques to be used at any rate in Iraq by Task Force 6-26, which is the new name for JTF-121. These techniques include sleep deprivation, stress positions, loud music, yelling, stripping, dogs, and hooding. The executive order is still in use even though the use of hooding, stress positions, dogs, and stripping at Guantanamo and in Afghanistan were prohibited on January 15, 2003 (see January 15, 2003). Since the FBI agent has been ordered to report instances of abuse (see May 19, 2004), he notes a dilemma: would the techniques authorized by the executive order constitute abuse or not? He writes: “This instruction begs the question of what constitutes ‘abuse.’ We assume this does not include lawful interrogation techniques authorized by executive order.” A week before, apparently as a result of the unfolding of the Abu Ghraib scandal, some techniques described in the executive order could only be used with special approval from top levels in the hierarchy. Thus, the FBI agent says in his e-mail: “[W]e will still not report the use of these techniques as ‘abuse’ since we will not be in a position to know whether, or not, the authorization for these tactics was received from the aforementioned high-level officials. We will consider as abuse any physical beatings, sexual humiliation or touching, and other conduct clearly constituting abuse. Yet, there may be a problem if OGC [FBI Office of General Counsel] does not clearly define ‘abuse’ and if OGC does not draw a clear line between conduct that is clearly abusive and conduct that, while seemingly harsh, is permissible under applicable Executive Orders and other laws. In other words, we know what’s permissible for FBI agents but are less sure what is permissible for military interrogators.” [FBI, 5/14/2004]

Entity Tags: Chris Briese, George W. Bush

Timeline Tags: Torture of US Captives

When the Taguba report (see March 9, 2004), which together with all its 106 annexes includes 6,000 pages, is delivered by the Pentagon to the Senate Armed Services Committee, some 2,000 pages are missing, withheld by the Defense Department. Pentagon spokesman Larry DiRita calls this an “oversight.” [Associated Press, 5/24/2004] Nevertheless, the missing pages contain key documents, internal Army memos and e-mails, sworn statements by soldiers, officers, contractors, and prisoners. It also includes the final section of Taguba’s interview with Col. Thomas M. Pappas. [Newsweek, 6/7/2004] The missing annexes of the Taguba report hold evidence that the abuse was not conducted solely by a few MPs acting on their own, but instead at the instigation and with the involvement of military intelligence personnel.

Entity Tags: US Congress, Larry Di Rita, Thomas M. Pappas

Timeline Tags: Torture of US Captives

A heavily redacted e-mail shows that either a military officer or government official is told that three reports of detainee abuse from Iraq are “probably true/valid.” One detainee was “in such poor physical shape from obvious beatings that [name redacted] asked the MPs to note his condition before he proceeded with interrogation.” Another detainee was “in such bad shape… that he was laying down in his own feces.” These cases seem to have occurred in Abu Ghraib and Camp Cropper. The e-mail will be released in 2006 (see May 2, 2006). [American Civil Liberties Union, 5/2/2006]

Timeline Tags: Torture of US Captives

An Iraqi detainee in US custody in Tikrit charges that he has been beaten and shocked with a taser. A US military medic examines the prisoner and finds evidence confirming his allegations. The medic states, “Everything he described he had on his body.” Yet the medic gives the detainee Tylenol and clears him for further interrogations. There are no indications that the medic ever reports the abuse. [American Civil Liberties Union, 5/2/2006]

Timeline Tags: Torture of US Captives

The Washington Post reveals the existence of a secret August 2002 memo from the Justice Department. This memo advised the White House that torturing al-Qaeda terrorists in captivity “may be justified,” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted in the US war on terrorism (see August 1, 2002). The legal reasoning was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the military detention center at Guantanamo Bay (see March 6, 2003). Bush officials say that despite the memo, it has abided by the Geneva Conventions and other international treaties proscribing torture (see February 7, 2002). The incidents at Abu Ghraib, where numerous Iraqi prisoners were tortured, maimed, and sometimes murdered, were not policy, officials say. Human rights organizations and civil libertarians are appalled at the memo. “It is by leaps and bounds the worst thing I’ve seen since this whole Abu Ghraib scandal broke,” says Tom Malinowski of Human Rights Watch. “It appears that what they were contemplating was the commission of war crimes and looking for ways to avoid legal accountability. The effect is to throw out years of military doctrine and standards on interrogations.” A senior Pentagon official says that the Judge Advocate Generals (JAGs) were quick to challenge the Justice Department opinion when it was promoted by the Pentagon. “Every flag JAG lodged complaints,” the official says. A senior military attorney says of the memo: “It’s really unprecedented. For almost 30 years we’ve taught the Geneva Convention one way. Once you start telling people it’s okay to break the law, there’s no telling where they might stop.” [Washington Post, 6/8/2004] Attorney General John Ashcroft tells the Senate Judiciary Committee that he will not discuss the contents of the August 2002 memo, nor turn it over to the committee. “I believe it is essential to the operation of the executive branch that the president has the opportunity to get information from the attorney general that is confidential,” he says. [Washington Post, 6/8/2004]

Entity Tags: Senate Judiciary Committee, Bush administration (43), Geneva Conventions, John Ashcroft, Tom Malinowski, US Department of Justice, Judge Advocate General Corps, US Department of Defense

Timeline Tags: Torture of US Captives, Civil Liberties

During the annual G-8 economic summit, held in Sea Island, Georgia [2004 G8 Summit, 2004] , President Bush rejects the notion that he approved the use of torture. “The authorization I gave,” the president says, “was that all we did should be in accordance with American law and consistent with our international treaty obligations. That’s the message I gave our people.” He adds, “What I authorized was that we stay within the framework of American law.” And to emphasize his point, he says: “Listen, I’ll say it one more time.… The instructions that were given were to comply with the law. That should reassure you. We are a nation of laws. We follow the law. We have laws on our books. You could go look at those laws and that should reassure you.” [US President, 6/21/2004] During the summit, the foreign ministers of the participating countries are suddenly called to Washington to meet with Bush and Secretary of State Colin Powell. As Canadian Foreign Minister Bill Graham will later recall: “Colin suddenly phoned us all up and said, ‘We’re going to the White House this morning.’ Now, this is curious, because normally the heads of government don’t give a damn about foreign ministers. We all popped in a bus and went over and were cordially received by Colin and President Bush. The president sat down to explain that, you know, this terrible news had come out about Abu Ghraib and how disgusting it was. The thrust of his presentation was that this was a terrible aberration; it was un-American conduct. This was not American. [German Foreign Minister] Joschka Fischer was one of the people that said, ‘Mr. President, if the atmosphere at the top is such that it encourages or allows people to believe that they can behave this way, this is going to be a consequence.’ The president’s reaction was: ‘This is un-American. Americans don’t do this. People will realize Americans don’t do this.’ The problem for the United States, and indeed for the free world, is that because of this—Guantanamo, and the ‘torture memos’ from the White House (see November 6-10, 2001 and August 1, 2002), which we were unaware of at that time—people around the world don’t believe that anymore. They say, ‘No, Americans are capable of doing such things and have done them, all the while hypocritically criticizing the human-rights records of others.’” [Vanity Fair, 2/2009]

Entity Tags: Bill Graham, George W. Bush, Colin Powell, Joschka Fischer

Timeline Tags: Torture of US Captives, Civil Liberties

Jack Goldsmith, once considered a rising star in the Bush administration (see October 6, 2003), resigns under fire from his position as chief of the Justice Department’s Office of Legal Counsel (OLC). In his nine-month tenure, Goldsmith fought against the administration’s warrantless wiretapping program, its advocacy of torture, and its policy of extrajudicial detention and trial for terror suspects. Goldsmith will not discuss his objections to the administration’s policy initiatives until September 2007, when he will give interviews to a variety of media sources in anticipation of the publication of his book, The Terror Presidency. Goldsmith led a small, in-house revolt of administration lawyers against what they considered to be the constitutional excesses of the legal policies advocated by the administration in its war on terrorism. “I was disgusted with the whole process and fed up and exhausted,” he will recall. Goldsmith chooses to remain quiet about his resignation, and as a result, his silence will be widely misinterpreted by media, legal, and administration observers. Some even feel that Goldsmith should be investigated for his supposed role in drafting the torture memos (see January 9, 2002, August 1, 2002, and December 2003-June 2004) that he had actually opposed. “It was a nightmare,” Goldsmith will recall. “I didn’t say anything to defend myself, except that I didn’t do the things I was accused of.” [New York Times Magazine, 9/9/2007] Goldsmith will not leave until the end of July, and will take a position with the Harvard University Law School. Unlike many other Justice Department officials, he will not be offered a federal judgeship, having crossed swords with White House lawyers too many times. [Savage, 2007, pp. 191]

Entity Tags: US Department of Justice, Office of Legal Counsel (DOJ), Jack Goldsmith

Timeline Tags: Civil Liberties

After a search of Iraqi paramilitary records indicates a man named Hikmat Shakir Ahmad was a lieutenant colonel in Saddam Hussein’s Fedayeen, there is speculation that he is the same person as Ahmad Hikmat Shakir, an alleged Iraqi al-Qaeda operative who met one of the 9/11 hijackers during an al-Qaeda summit in Malaysia (see January 5-8, 2000), and was captured and inexplicably released after 9/11 (see September 17, 2001). The claim that the two men are the same person is used to bolster the theory that Saddam Hussein was in some way connected to 9/11, but turns out not to be true, as the two of them are found to be in different places at one time, in September 2001. [Knight Ridder, 6/12/2004; Washington Post, 6/22/2004; 9/11 Commission, 7/24/2004, pp. 502]

Entity Tags: Hikmat Shakir Ahmad, Ahmad Hikmat Shakir

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Attempting to stem the flow of bad publicity and world-wide criticism surrounding the revelations of torture at Abu Ghraib prison in Baghdad and similar reports from Guantanamo Bay, Attorney General Alberto Gonzales and Pentagon general counsel William J. Haynes, accompanied by Pentagon lawyer Daniel Dell’Orto, give a lengthy press conference to discuss the US’s position on interrogation and torture. Gonzales and Haynes provide reporters with a thick folder of documents, being made public for the first time. Those documents include the so-called “Haynes Memo” (see November 27, 2002), and the list of 18 interrogation techniques approved for use against detainees (see December 2, 2002 and April 16, 2003). Gonzales and Haynes make carefully prepared points: the war against terrorism, and al-Qaeda in particular, is a different kind of war, they say. Terrorism targets civilians and is not limited to battlefield engagements, nor do terrorists observe the restrictions of the Geneva Conventions or any other international rules. The administration has always acted judiciously in its attempt to counter terrorism, even as it moved from a strictly law-enforcement paradigm to one that marshaled “all elements of national power.” Their arguments are as follows:
Always Within the Law - First, the Bush administration has always acted within reason, care, and deliberation, and has always followed the law. In February 2002, President Bush had determined that none of the detainees at Guantanamo should be covered under the Geneva Conventions (see February 7, 2002). That presidential order is included in the document packet. According to Gonzales and Haynes, that order merely reflected a clear-eyed reading of the actual provision of the conventions, and does not circumvent the law. Another document is the so-called “torture memo” written by the Justice Department’s Office of Legal Counsel (see August 1, 2002). Although such legal opinions carry great weight, and though the administration used the “torture memo” for months to guide actions by military and CIA interrogators, Gonzales says that the memo has nothing to do with the actions at Guantanamo. The memo was intended to do little more than explore “the limits of the legal landscape.” Gonzales says that the memo included “irrelevant and unnecessary” material, and was never given to Bush or distributed to soldiers in the field. The memo did not, Gonzales asserts, “reflect the policies that the administration ultimately adopted.” Unfortunately for their story, the facts are quite different. According to several people involved in the Geneva decision, it was never about following the letter of the law, but was designed to give legal cover to a prior decision to use harsh, coercive interrogation. Author and law professor Phillippe Sands will write, “it deliberately created a legal black hole into which the detainees were meant to fall.” Sands interviewed former Defense Department official Douglas Feith about the Geneva issue, and Feith proudly acknowledged that the entire point of the legal machinations was to strip away detainees’ rights under Geneva (see Early 2006).
Harsh Techniques Suggested from Below - Gonzales and Haynes move to the question of where, exactly, the new interrogation techniques came from. Their answer: the former military commander at Guantanamo, Michael E. Dunlavey. Haynes later describes Dunlavey to the Senate Judiciary Committee as “an aggressive major general.” None of the ideas originated in Washington, and anything signed off or approved by White House or Pentagon officials were merely responses to requests from the field. Those requests were prompted by a recalcitrant detainee at Guantanamo, Mohamed al-Khatani (see August 8, 2002-January 15, 2003), who had proven resistant to normal interrogation techniques. As the anniversary of the 9/11 attacks approached, and fears of a second attack mounted, Dell’Orto says that Guantanamo field commanders decided “that it may be time to inquire as to whether there may be more flexibility in the type of techniques we use on him.” Thusly, a request was processed from Guantanamo through military channels, through Haynes, and ultimately to Defense Secretary Donald Rumsfeld, who approved 15 of the 18 requested techniques to be used against al-Khatani and, later, against other terror suspects (see September 25, 2002 and December 2, 2002). According to Gonzales, Haynes, and Dell’Orto, Haynes and Rumsfeld were just processing a request from military officers. Again, the evidence contradicts their story. The torture memo came as a result of intense pressure from the offices of Rumsfeld and Vice President Cheney. It was never some theoretical document or some exercise in hypothesizing, but, Sands will write, “played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantanamo led to abuses at Abu Ghraib.” Gonzales and Haynes were, with Cheney chief of staff David Addington and Justice Department lawyers John Yoo and Jay Bybee (the authors of the torture memo), “a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse,” in Sands’s words. Dunlavey was Rumsfeld’s personal choice to head the interrogations at Guantanamo; he liked the fact that Dunlavey was a “tyrant,” in the words of a former Judge Advocate General official, and had no problem with the decision to ignore the Geneva Conventions. Rumsfeld had Dunlavey ignore the chain of command and report directly to him, though Dunlavey reported most often to Feith. Additionally, the Yoo/Bybee torture memo was in response to the CIA’s desire to aggressively interrogate another terror suspect not held at Guantanamo, Abu Zubaida (see March 28, 2002). Sands will write, “Gonzales would later contend that this policy memo did ‘not reflect the policies the administration ultimately adopted,’ but in fact it gave carte blanche to all the interrogation techniques later recommended by Haynes and approved by Rumsfeld.” He also cites another Justice Department memo, requested by the CIA and never made public, that spells out the specific techniques in detail. No one at Guantanamo ever saw either of the memos. Sands concludes, “The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn’t want to be seen as the ones applying it—they wanted distance and deniability. They also wanted legal cover for themselves. A key question is whether Haynes and Rumsfeld had knowledge of the content of these memos before they approved the new interrogation techniques for al-Khatani. If they did, then the administration’s official narrative—that the pressure for new techniques, and the legal support for them, originated on the ground at Guantanamo, from the ‘aggressive major general’ and his staff lawyer—becomes difficult to sustain. More crucially, that knowledge is a link in the causal chain that connects the keyboards of Feith and Yoo to the interrogations of Guantanamo.”
Legal Justifications Also From Below - The legal justification for the new interrogation techniques also originated at Guantanamo, the three assert, and not by anyone in the White House and certainly not by anyone in the Justice Department. The document stack includes a legal analysis by the staff judge advocate at Guantanamo, Lieutenant Colonel Diane Beaver (see October 11, 2002), which gives legal justifications for all the interrogation techniques. The responsibility lies ultimately with Beaver, the three imply, and not with anyone higher up the chain. Again, the story is severely flawed. Beaver will give extensive interviews to Sands, and paint a very different picture (see Fall 2006). One Naval Criminal Investigative Service (NCIS) psychologist, Mike Gelles (see December 17-18, 2002), will dispute Gonzales’s contention that the techniques trickled up the chain from lower-level officials at Guantanamo such as Beaver. “That’s not accurate,” he will say. “This was not done by a bunch of people down in Gitmo—no way.” That view is supported by a visit to Guantanamo by several top-ranking administration lawyers, in which Guantanamo personnel are given the “green light” to conduct harsh interrogations of detainees (see September 25, 2002).
No Connection between Guantanamo, Abu Ghraib - Finally, the decisions regarding interrogations at Guantanamo have never had any impact on the interrogations at Abu Ghraib. Gonzales wants to “set the record straight” on that question. The administration has never authorized nor countenanced torture of any kind. The abuses at Abu Ghraib were unauthorized and had nothing to do with administration policies. Much evidence exists to counter this assertion (see December 17-18, 2002). In August 2003, the head of the Guantanamo facility, Major General Geoffrey Miller, visited Abu Ghraib in Baghdad, accompanied by, among others, Diane Beaver (see August 31, 2003-September 9, 2003). They were shocked at the near-lawlessness of the facility, and Miller recommended to Lieutenant General Ricardo Sanchez, the supreme US commander in Iraq, that many of the same techniques used at Guantanamo be used in Abu Ghraib. Sanchez soon authorized the use of those techniques (see September 14-17, 2003). The serious abuses reported at Abu Ghraib began a month later. Gelles worried, with justification, that the techniques approved for use against al-Khatani would spread to other US detention facilities. Gelles’s “migration theory” was controversial and dangerous, because if found to be accurate, it would tend to implicate those who authorized the Guantanamo interrogation techniques in the abuses at Abu Ghraib and elsewhere. “Torture memo” author John Yoo called the theory “an exercise in hyperbole and partisan smear.” But Gelles’s theory is supported, not only by the Abu Ghraib abuses, but by an August 2006 Pentagon report that will find that techniques from Guantanamo did indeed migrate into Abu Ghraib, and a report from an investigation by former defense secretary James Schlesinger (see August 24, 2004) that will find “augmented techniques for Guantanamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.” [White House, 7/22/2004; Vanity Fair, 5/2008]

Yaser Esam Hamdi.Yaser Esam Hamdi. [Source: Associated Press]In the case of Yaser Esam Hamdi v. Donald Rumsfeld, the Supreme Court rules 8-1 that, contrary to the government’s position, Hamdi (see December 2001), as a US citizen held inside the US, cannot be held indefinitely and incommunicado without an opportunity to challenge his detention. It rules he has the right to be given the opportunity to challenge the basis for his detention before an impartial court. Justice Sandra Day O’Connor writes for the majority: “It would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.” Hamdi, on the other hand, apart from military interrogations and “screening processes,” has received no process. Due process, according to a majority of the Court, “demands some system for a citizen detainee to refute his classification [as enemy combatant].” A “citizen-detainee… must receive notice of the factual basis for his classification, and a fair opportunity to rebut the government’s factual assertions before a neutral decision-maker.” However, O’Connor writes, “an interrogation by one’s captor… hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker.”
Conservative Dissent: President Has Inherent Power to Detain Citizens during War - Only Justice Clarence Thomas affirms the government’s opinion, writing, “This detention falls squarely within the federal government’s war powers, and we lack the expertise and capacity to second-guess that decision.” [Supreme Court opinion on writ of certiorari. Shafiq Rasul, et al. v. George W. Bush, et al., 6/28/2004] Thomas adds: “The Founders intended that the president have primary responsibility—along with the necessary power—to protect the national security and to conduct the nation’s foreign relations. They did so principally because the structural advantages of a unitary executive are essential in these domains.” [Dean, 2007, pp. 105]
'A State of War Is Not a Blank Check for the President' - The authority to hold Hamdi and other such US citizens captured on enemy battlefields derives from Congress’s Authorization to Use Military Force (AUMF—see September 14-18, 2001). Justice Antonin Scalia dissents from this portion of the majority ruling, saying that because Congress had not suspended habeas corpus, Hamdi should either be charged with a crime or released. The Court also finds that if Hamdi was indeed a missionary and not a terrorist, as both he and his father claim, then he must be freed. While the Court does not grant Hamdi the right to a full criminal trial, it grants him the right to a hearing before a “neutral decision-maker” to challenge his detention. O’Connor writes: “It is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested; and it is in these times that we must preserve our commitment at home to the principles for which we fight abroad.… We have long 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.”
Affirms President's Right to Hold US Citizens Indefinitely - Although the media presents the ruling as an unmitigated defeat for the Bush administration, it is actually far more mixed. The White House is fairly pleased with the decision, insamuch as Hamdi still has no access to civilian courts; the administration decides that Hamdi’s “neutral decision-maker” will be a panel of military officers. Hamdi will not have a lawyer, nor will he have the right to see the evidence against him if it is classified. This is enough to satisfy the Court’s ruling, the White House decides. In 2007, author and reporter Charlie Savage will write: “[T]he administration’s legal team noted with quiet satisfaction that, so long as some kind of minimal hearing was involved, the Supreme Court had just signed off on giving presidents the wartime power to hold a US citizen without charges or a trial—forever.” The Justice Department says of the ruling that it is “pleased that the [Court] today upheld the authority of the president as commander in chief of the armed forces to detain enemy combatants, including US citizens.… This power, which was contested by lawyers representing individuals captured in the War on Terror, is one of the most essential authorities the US Constitution grants the president to defend America from our enemies.” [Savage, 2007, pp. 193-194]

Entity Tags: Sandra Day O’Connor, Antonin Scalia, Donald Rumsfeld, Yaser Esam Hamdi, Clarence Thomas, Charlie Savage

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

Defense Secretary Donald Rumsfeld reportedly pressures the Army to conclude the investigations (see August 25, 2004) of Generals George Fay and Anthony R. Jones by late August, before the Republican Convention in New York. [Guardian, 9/13/2004 Sources: Scott Horton]

Entity Tags: Donald Rumsfeld, George R. Fay, Anthony R. Jones

Timeline Tags: Torture of US Captives

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

Entity Tags: Geneva Conventions, Richard (“Dick”) Cheney, US Department of Defense, Alberto Mora, Albert T. Church III, US Department of Justice, Bush administration (43)

Timeline Tags: Torture of US Captives, Civil Liberties

Pat Roberts during a July 9, 2004 interview on PBS.Pat Roberts during a July 9, 2004 interview on PBS. [Source: PBS]The Senate Intelligence Committee releases the 511-page Senate Report on Iraqi WMD intelligence, formally titled the “Report of the Select Committee on Intelligence on the US Intelligence Community’s Prewar Intelligence Assessments on Iraq.” [US Congress, 7/7/2004; CNN, 7/9/2004] All nine Republicans and eight Democrats signed off on the report without dissent, which, as reporter Murray Waas will write, is “a rarity for any such report in Washington, especially during an election year.” [National Journal, 10/27/2005]
Report Redacted by White House - About 20 percent of the report was redacted by the White House before its release, over the objections of both Republicans and Democrats on the committee. Some of the redactions include caveats and warnings about the reliability of key CIA informants, one code-named “Red River” and another code-named “Curveball” (see Mid- and Late 2001). The source called “Red River” failed polygraph tests given to him by CIA officers to assess his reliability, but portions of the report detailing these and other caveats were redacted at the behest of Bush administration officials. [New York Times, 7/12/2004; New York Times, 7/18/2004]
Widespread Failures of US Intelligence - The report identifies multiple, widespread failures by the US intelligence community in its gathering and analysis of intelligence about Iraq WMD, which led to gross misunderstandings and misrepresentations about Iraq’s WMD programs to the American public by government officials. Committee chairman Pat Roberts (R-KS), who has previously attempted to shift blame for the intelligence misrepresentations away from the Bush administration and onto the CIA (see July 11, 2003 and After), says that intelligence used to support the invasion of Iraq was based on assessments that were “unreasonable and largely unsupported by the available intelligence.” He continues: “Before the war, the US intelligence community told the president as well as the Congress and the public that Saddam Hussein had stockpiles of chemical and biological weapons and if left unchecked would probably have a nuclear weapon during this decade. Today we know these assessments were wrong.” Senator John D. Rockefeller (D-WV), the ranking Democrat on the 18-member panel that created the report, says “bad information” was used to bolster the case for war. “We in Congress would not have authorized that war with 75 votes if we knew what we know now,” he says (see October 10, 2002). “Leading up to September 11, our government didn’t connect the dots. In Iraq, we are even more culpable because the dots themselves never existed.” Numerous assertions in an October 2002 National Intelligence Estimate (NIE—see October 1, 2002) were “overstated” or “not supported by the raw intelligence reporting,” including:
bullet Claims that Iraq was rebuilding its nuclear weapons program;
bullet Claims that Iraq had large stockpiles of chemical and biological weapons;
bullet Claims that Iraq was developing an unmanned aerial vehicle that could be used to deliver chemical and/or biological weapons payloads onto distant targets;
bullet The so-called “layering effect,” where “assessments were based on previous judgments, without considering the uncertainties of those judgments” (Roberts calls it an “assumption train”);
bullet The failure to explain adequately the uncertainties in the October 2002 NIE to White House officials and Congressional lawmakers;
bullet Reliance on claims by “Curveball,” noting that the use of those claims “demonstrated serious lapses in handling such an important source”;
bullet Use of “overstated, misleading, or incorrect” information in helping then-Secretary of State Colin Powell present the administration’s case to the United Nations in February 2003 (see February 5, 2003); and
bullet The failure of the CIA to share significant intelligence with other agencies. [CNN, 7/9/2004; Cybercast News Service, 7/9/2004; New York Times, 7/9/2004]
“One fact is now clear,” Roberts says. “Before the war, the US intelligence community told the president as well as the Congress and the public that Saddam Hussein had stockpiles of chemical and biological weapons, and if left unchecked, would probably have a nuclear weapon during this decade. Well, today we know these assessments were wrong.” [Cybercast News Service, 7/9/2004; New York Times, 7/9/2004] Rockefeller says the intelligence community failed to “accurately or adequately explain the uncertainties behind the judgments in the October 2002 National Intelligence Estimate to policymakers.” The community’s “intelligence failures” will haunt America’s national security “for generations to come,” he says. “Our credibility is diminished. Our standing in the world has never been lower,” he says. “We have fostered a deep hatred of Americans in the Muslim world, and that will grow. As a direct consequence, our nation is more vulnerable today than ever before.” [CNN, 7/9/2004; New York Times, 7/9/2004]
'Group Think' and 'Corporate Culture' - Roberts says the report finds that the “flawed” information used to send the nation to war was the result of “what we call a collective group think, which led analysts and collectors and managers to presume that Iraq had active and growing WMD programs.” He says this “group think caused the community to interpret ambiguous evidence, such as the procurement of dual-use technology, as conclusive evidence of the existence of WMD programs.” Roberts blames “group think” and a “broken corporate culture and poor management,” which “cannot be solved by simply adding funding and also personnel.” [CNN, 7/9/2004; New York Times, 7/9/2004]
Lack of Human Intelligence in Iraq - Perhaps the most troubling finding, Roberts says, is the intelligence community’s near-total lack of human intelligence in Iraq. “Most alarmingly, after 1998 and the exit of the UN inspectors, the CIA had no human intelligence sources inside Iraq who were collecting against the WMD target,” he says. [CNN, 7/9/2004; New York Times, 7/9/2004]
No Connection between Iraq, al-Qaeda - Rockefeller says that the administration’s claims of an alliance between Iraq’s Saddam Hussein and al-Qaeda had no basis in fact: “[N]o evidence existed of Iraq’s complicity or assistance in al-Qaeda’s terrorist attacks, including 9/11.” The report says that intelligence claims of connections between Iraq and some terrorist activities were accurate, though the contacts between al-Qaeda and Iraq from the 1990s “did not add up to an established formal relationship.” [CNN, 7/9/2004; New York Times, 7/9/2004]
Divided Opinion on Pressure from Bush Administration - Republicans and Democrats on the committee differ as to whether they believe the CIA and other intelligence agencies groomed or distorted their findings as a result of political pressure from the White House. “The committee found no evidence that the intelligence community’s mischaracterization or exaggeration of intelligence on Iraq’s weapons of mass destruction capabilities was the result of politics or pressure,” Roberts says. However, Rockefeller notes that the report fails to explain fully the pressures on the intelligence community “when the most senior officials in the Bush administration had already forcefully and repeatedly stated their conclusions publicly. It was clear to all of us in this room who were watching that—and to many others—that they had made up their mind that they were going to go to war.” The analysts were subjected to a “cascade of ominous statements,” Rockefeller says, that may have pushed them to slant their analyses in the direction the White House indicated it wanted. The report finds that Vice President Dick Cheney and others who repeatedly visited intelligence agencies (see 2002-Early 2003) pressured intelligence analysts or officials to present particular findings or change their views. However, the report notes repeated instances of analysts exaggerating what they knew, and leaving out, glossing over, or omitting dissenting views. According to the report, the intelligence community released a misleading public version of the October 2002 NIE (see October 4, 2002) that eliminated caveats and dissenting opinions, thus misrepresenting “their judgments to the public which did not have access to the classified National Intelligence Estimate containing the more carefully worded assessments.” [CNN, 7/9/2004; New York Times, 7/9/2004; Cybercast News Service, 7/9/2004] In an interview the evening after the report’s release, Rockefeller is asked if the report documents “a failure of a system or is this a failure of a bunch of individuals who just did their jobs poorly?” Rockefeller responds: “This is a failure of a system.… It is not fair to simply dump all of this on the Central Intelligence Agency. The Central Intelligence Agency does not make the decision, and [former Director] George Tenet does not make the decision to go to war. That decision is made at the other end of Pennsylvania Avenue.… So we went to war under false pretenses, and I think that is a very serious subject for Americans to think about for our future.” Asked “if the president had known then what he knows now, he would have still taken us to war?” Rockefeller answers: “I can’t answer that question. I just ask—the question I ask is, why isn’t he, and maybe he is, why isn’t he as angry about his decision, so to speak his vote on this, as I am about mine?” [PBS, 7/9/2004]
Supporting the Claim of Iraq's Attempt to Purchase Nigerien Uranium - The report states flatly that senior CIA case officer Valerie Plame Wilson made the decision to send her husband, former ambassador Joseph Wilson, to Niger to investigate false claims that Iraq had attempted to purchase uranium from that nation (see February 21, 2002-March 4, 2002). The CIA has demonstrated that Plame Wilson did not make that decision (see February 19, 2002). However, as well as claiming that Plame Wilson sent Wilson to Niger, it claims that Wilson’s report, far from disproving the assertion of an attempt by Iraq to purchase uranium, actually bolstered that assertion. The report states that the question of Iraq’s attempt to buy Nigerien uranium remains “open.” It also says Wilson lied to the Washington Post in June 2004 by claiming that the documents used to support the claim were forgeries (see Between Late 2000 and September 11, 2001, Late September 2001-Early October 2001, October 15, 2001, December 2001, February 5, 2002, February 12, 2002, October 9, 2002, October 15, 2002, January 2003, February 17, 2003, March 7, 2003, March 8, 2003, and 3:09 p.m. July 11, 2003). “Committee staff asked how the former ambassador could have come to the conclusion that the ‘dates were wrong and the names were wrong’ when he had never seen the CIA reports and had no knowledge of what names and dates were in the reports,” the report states. Wilson told committee members he may have been confused and may have “misspoken” to some reporters (see May 2, 2004). The committee did not examine the documents themselves. [Washington Post, 7/10/2009] The committee made similar claims a year before (see June 11, 2003 and July 11, 2003 and After). Progressive reporter and columnist Joshua Micah Marshall disputes the report’s claim that Wilson’s trip to Niger actually helped prove the assertion that Iraq tried to buy Nigerien uranium. The intelligence reports making the assertion are “fruits of the same poison tree” that produced so many other false and misleading claims, Marshall writes, and were based on the assumption that the forged documents were genuine. [Joshua Micah Marshall, 7/10/2004] In 2007, Plame Wilson will write, “What was missing from the [committee] report was just as telling as the distortions it contained. The ‘Additional Views’ section… had concluded” that she was responsible for sending Wilson to Niger. Yet that was contradicted by a senior CIA official over a year before. Plame Wilson will call the “Additional Views” section “a political smear if there ever was one,” crammed with “distortions and outright lies. Yet it continues to be cited today by Joe’s critics as proof of his lack of credibility.” The Wilsons learn months later that committee Democrats decided not to fight against the attacks on Wilson’s integrity; according to one of the senior Democratic senators on the panel, there was simply too much “incoming” from the Republicans for them to fight every issue. There were “far too many serious substantial disputes” that needed solving, and the Democrats chose to allow the attacks on Wilson to proceed without comment. [Wilson, 2007, pp. 187-190]
Portion of the Report Delayed - Roberts and other Republican majority committee members were successful in blocking Democrats’ attempts to complete the second portion of the report, which delineates the Bush administration’s use of the intelligence findings. That report will not be released until after the November 2004 presidential election. Rockefeller says he feels “genuine frustration… that virtually everything that has to do with the administration” has been “relegated to phase two” and will be discussed at another time. The second part of the committee’s investigation will focus on the “interaction or the pressure or the shaping of intelligence” by the Bush administration, Rockefeller says. “It was clear to all of us that the Bush administration had made up its mind to go to war,” he says, and he believes that such a “predetermination” influenced the intelligence community. Representative Jane Harman (D-CA), the ranking member of the House Intelligence Committee, says she hopes a similar House investigation would address some of those issues. However, she notes, she has been stymied by House Republicans in even launching that investigation. “There has not been the cooperation that there apparently has been on the Senate side,” she says. She has just now managed to wangle a meeting with House Intelligence Committee chairman Porter Goss (R-FL), who is being touted as the next director of the CIA (see September 24, 2004). Harman says, “I would hope we could address [the issues] factually and on a bipartisan basis, but at the moment I don’t have a lot of confidence in it.” [CNN, 7/9/2004; Cybercast News Service, 7/9/2004] Roberts’s spokeswoman Sarah Little later says that the committee has not yet decided whether the second portion of the report will be fully classified, declassified, or even if it will hold hearings. [National Journal, 10/27/2005]
Cheney, Roberts Colluded in Interfering with Report - Over a year later, the media will find that Roberts allowed Cheney and members of his staff to interfere with the committee’s investigation and dramatically limit its scope (see October 27, 2005). Rockefeller will say that he made three separate requests for White House documents during the committee’s investigation, but never received the documents he asked for. “The fact is,” Rockefeller will say, “that throughout the Iraq investigation any line of questioning that brought us too close to the White House was thwarted.” Rockefeller’s spokesperson, Wendy Morigi, will say that Rockefeller will “sadly come to the conclusion that the Intelligence Committee is not capable of doing the job of investigating the fundamental question as to whether the administration has misused intelligence to go to war.” [National Journal, 10/30/2005] Plame Wilson will write: “In the coming months, many reliable sources told us that before the report was issued, there was considerable collusion between the vice president’s office and… Roberts on how to craft the report and its content. So much for checks and balances and the separation of powers.” [Wilson, 2007, pp. 192]

Entity Tags: Joshua Micah Marshall, Pat Roberts, Murray Waas, Richard (“Dick”) Cheney, Valerie Plame Wilson, Porter J. Goss, Joseph C. Wilson, Senate Intelligence Committee, John D. Rockefeller, Central Intelligence Agency, House Intelligence Committee, ’Curveball’, Jane Harman, Bush administration (43), Al-Qaeda, Colin Powell, Wendy Morigi, Sarah Little, George J. Tenet

Timeline Tags: Events Leading to Iraq Invasion

British detainee Moazzam Begg, being held in Guantanamo, manages to send a handwritten four-page letter uncensored by US authorities. Begg’s lawyers in Britain describe this as an “oddity.” His solicitor Stafford Smith says the letter must have been released either “by mistake or because someone in the US has a conscience.” In the letter, Begg describes having been subjected to “pernicious threats of torture, actual vindictive torture, and death threats, amongst other coercively employed interrogation techniques.” This happened “particularly, though unexclusively in Afghanistan.” Interviews, Begg writes, “were conducted in an environment of generated fear, resonant with terrifying screams of fellow detainees facing similar methods. In this atmosphere of severe antipathy towards detainees was the compounded use of racially and religiously prejudiced taunts. This culminated, in my opinion, with the deaths of two fellow detainees (see November 30-December 3, 2002) (see December 10, 2002) at the hands of US military personnel, to which I myself was partially witness.” [Guardian, 10/1/2004]

Entity Tags: Moazzam Begg, Stafford Smith

Timeline Tags: Torture of US Captives

While reviewing reports from Iraq, senior CIA case officer and WMD expert Valerie Plame Wilson admits a fellow CIA officer into her office. In 2007, Plame Wilson will recall: “His round face was flushed and his eyes, behind glasses, looked close to tears. I had worked with him for the last two years, through many stressful days, and I had never seen him so emotional or distressed.” After she closes the door, he says tightly, “They twisted my testimony.” Plame Wilson is not sure what he is talking about. ”I recommended Joe for the trip, don’t you remember?” he continues. “I told the committee this, but they didn’t include it in the report.” Plame Wilson realizes that the officer is talking about the recently released report from the intelligence committee on the prewar intelligence used to justify the Iraq invasion (see July 9, 2004), and referring to her husband, Joseph Wilson. She will write: “So when… the reports officer came to my office a day after the [committee] report came out, he confirmed what I had felt to be true—that I had not suggested Joe at all—but was afraid to voice without knowing for sure. He also reminded me of how the phone call to [another CIA officer] had started this chain of events (see February 13, 2002). A wave of apprehension swept over me. I wanted to urge my colleague to come forward again with the truth, but I couldn’t tell him what to do—it would be witness tampering.” [Wilson, 2007, pp. 192-193]

Entity Tags: Valerie Plame Wilson, Central Intelligence Agency, Joseph C. Wilson

Timeline Tags: Niger Uranium and Plame Outing

The Deputy Staff Judge Advocate for US Central Command (CENTCOM) says that Defense Secretary Donald Rumsfeld’s authorization of torture methods against detainees in US custody (see December 2, 2002) rendered such methods legal for use in Afghanistan. According to the lawyer: “[T]he methodologies approved for [Guantanamo]… would appear to me to be legal interrogation processes. [The secretary of defense] had approved them. The general counsel [Pentagon counsel William J. Haynes] had approved them.… I believe it is fair to say the procedures approved for Guantanamo were legal for Afghanistan.” [Huffington Post, 4/21/2009]

Entity Tags: Donald Rumsfeld, William J. Haynes, US Central Command

Timeline Tags: Torture of US Captives

Investigative journalist Seymour Hersh, in a speech to the American Civil Liberties Union (ACLU), says that there is proof that Iraqi prisoners, including women and children, were raped and sodomized by US guards while in custody at Baghdad’s Abu Ghraib prison. Hersh, who, as evidenced by a video recording of the speech, is struggling with what to say and what not to say, tells the assemblage: “Debating about it, ummm.… Some of the worst things that happened you don’t know about, okay? Videos, um, there are women there. Some of you may have read that they were passing letters out, communications out to their men. This is at Abu Ghraib.… The women were passing messages out saying, ‘Please come and kill me, because of what’s happened,’ and basically what happened is that those women who were arrested with young boys, children in cases that have been recorded. The boys were sodomized with the cameras rolling. And the worst above all of that is the soundtrack of the boys shrieking that your government has. They are in total terror. It’s going to come out.” Hersh continues: “It’s impossible to say to yourself how did we get there? Who are we? Who are these people that sent us there? When I did My Lai [a US military atrocity during the Vietnam War] I was very troubled like anybody in his right mind would be about what happened. I ended up in something I wrote saying in the end I said that the people who did the killing were as much victims as the people they killed because of the scars they had, I can tell you some of the personal stories by some of the people who were in these units witnessed this. I can also tell you written complaints were made to the highest officers, and so we’re dealing with a enormous massive amount of criminal wrongdoing that was covered up at the highest command out there and higher, and we have to get to it and we will. We will.” In an earlier speech, Hersh noted the photos and videos of “horrible things done to children of women prisoners, as the cameras run.” [Salon, 7/15/2004] Other stories from Abu Ghraib document the rape and sexual assault of prisoners (see October 7, 2003, October 24, 2003, and January 4, 2004).

Entity Tags: Seymour Hersh, American Civil Liberties Union

Timeline Tags: Torture of US Captives

Paul T. Mikolashek.Paul T. Mikolashek. [Source: US Army]The US Army’s inspector general, Lt. Gen. Paul T. Mikolashek, presents a 300-page report listing 94 documented cases of prisoner abuse to the Senate Armed Services Committee. [Washington Post, 7/23/2004] Of the 94 cases cited in the report, 39 are deaths. Twenty of those are suspected homicides. [Los Angeles Times, 10/15/2004] In preparing the report, Mikolashek’s team visited more than two dozen US military installations in Iraq, Afghanistan, and the US. Unlike previous investigations, Mikolashek did not look at individual cases. Instead, his team reviewed records of reported cases and the findings of previous investigations. Team members also interviewed 650 soldiers and officers and looked at broad Army doctrine and training. [Washington Post, 7/23/2004] Mikolashek’s report concludes that abuses were not due to “systemic” problems. [Washington Post, 7/23/2004] For example, it found no evidence that there was a “pattern of abuse” in the central command’s area of responsibility. [New York Times, 6/6/2004] The report’s conclusions are made in spite of the fact that the investigative team identified numerous problems at the prison stemming from poorly trained US military personnel, inadequate supervision, and vague and contradictory policies and orders. According to Mikolashek, documented cases of abuse were “aberrations” that did not follow from Army doctrine but from the “the failure of individuals to follow known standards of discipline and Army values and, in some cases, the failure of a few leaders to enforce those standards of discipline.” They were, the report stressed, “unauthorized actions taken by a few individuals.” The conduct of most of the soldiers, however, exhibited “military professionalism, ingrained Army values, and moral courage,” the report insisted. [Washington Post, 7/23/2004] The report’s conclusions stand in stark contrast to the Red Cross’s report (see February 24, 2004), released in late February, which concluded that problems in the US detention system were widespread and systemic. Though the report will be heavily criticized for its conclusion that military and administration officials should not be blamed for the atrocities, it does contain an abundant amount of evidence that they created an environment that encouraged the abuses to happen. For example, Mikolashek’s team found:
bullet The military hired private contractors to interrogate detainees because the military had too few translators and interrogators in the field. More than a third of these private contractors were not sufficiently trained. [Washington Post, 7/23/2004]
bullet Almost two thirds of the prisoners were kept in makeshift prison camps, or collection points, for as many as 30 days—60 times the 12-hour limit set by Army doctrine. [Washington Post, 7/23/2004]
bullet Preventive medical services were insufficient. Not one of the US-run facilities visited by the team met the Army’s medical screening requirements. [Washington Post, 7/23/2004]
bullet Copies of the Geneva Conventions in the detainees’ native languages were present at only four of the 16 facilities visited by Mikolashek’s team, in contravention of international law. There was not a single US-run facility in Afghanistan that had a copy. [Washington Post, 7/23/2004]
bullet At Abu Ghraib, the conditions were extremely unsanitary. The prison was seriously overcrowded, lacked an adequate supply of potable water, and had garbage and sewage strewn on the grounds of the outdoor camps. There were only 12 showers available for 600 to 700 detainees. Meals provided to the detainees were often contaminated with dirt and rodent droppings. [Washington Post, 7/23/2004]
bullet The Bagram base in Afghanistan had a leaking roof and no sanitary system. “Human waste spills were frequent on the main floor,” the reports says. Sections of the base were contaminated with toxic chemicals leftover from previous airport operations. [Washington Post, 7/23/2004]
bullet The military’s interrogation policy was confusing and instructions were often conflicting. “While the language of the approved policies could be viewed as a careful attempt to draw the line between lawful and unlawful conduct, the published instructions left considerable room for misapplication.” This could “create settings in which unsanctioned behavior, including detainee abuse, could occur,” the report’s authors conclude. [Washington Post, 7/23/2004]

Entity Tags: International Committee of the Red Cross, Paul T. Mikolashek

Timeline Tags: Torture of US Captives, War in Afghanistan

A lawyer, who has been in regular communication with military officials about the problem of prisoner abuse, tells the Telegraph of London that the soon-to-be-released Fay report (see August 25, 2004) is a whitewash: “This is a whitewash—a carefully orchestrated one. People in the Pentagon have been coming to me in a fury because of the way this has been handled. By naming military intelligence officials as well as the seven military police who have been charged, it will look like action has been taken. But basically it’s still the same storyline of just a few bad apples, way down the food chain.” [Sunday Telegraph, 8/15/2004]

Timeline Tags: Torture of US Captives

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

Entity Tags: Khallad bin Attash, USS Cole, Nawaf Alhazmi, Hambali, Dhiren Barot, Al-Qaeda, Osama bin Laden, Khalid Almihdhar, Jemaah Islamiyah, Khalid Shaikh Mohammed, Muhammad Naeem Noor Khan

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

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

Entity Tags: George W. Bush, Ali Saleh Kahlah al-Marri, US Department of Defense, Saddam Hussein, Jacob Hornberger

Timeline Tags: Torture of US Captives

James Schlesinger.James Schlesinger. [Source: HBO]The four-member Independent Panel to Review Department of Defense Detention Operations completes its final report on its investigations into the prisoner abuses that are known to have taken place in US-run detention centers throughout Iraq and Afghanistan. The investigative panel, which includes James R. Schlesinger, Harold Brown, Tillie K. Fowler, and Gen. Charles A. Horner, finds that a failure of leadership, leading all the way to Defense Secretary Rumsfeld, contributed to the abuse of prisoners. Like the Fay report (see August 25, 2004), to be released the following day, and the February 2004 Taguba report (see March 9, 2004), the Schlesinger report concludes that a lack of oversight and supervision allowed incidents, such as that which occurred at Abu Ghraib, to occur. Unlike preceding investigations, the Schlesinger Panel takes issue with the notion that abuses resulted from the actions of a few bad apples and were not widespread, charging that there is “both institutional and personal responsibility at higher levels.” The panel however does not name names. Notwithstanding their criticisms of the secretary, all four members say that Rumsfeld’s mistakes were comparably less significant than those made by uniformed officers. The panel, appointed by the secretary himself, recommends against removing Rumsfeld from office. [New York Times, 8/25/2004] In sum, the panel finds:
bullet Defense Secretary Rumsfeld and his aides failed to anticipate significant militant resistance to the US invasion and did not respond quickly enough to it when its strength became apparent. [New York Times, 8/25/2004]
bullet The Department of Defense created confusion when it issued, retracted, and then re-issued its policy on interrogation methods. [New York Times, 8/25/2004]
bullet The failure to adequately staff Abu Ghraib contributed to the poor conditions and abuses that took place at the prison. The ratio of military police to prisoners at the facility was 75 to one. [New York Times, 8/25/2004]
bullet Responsibility for the abuses that took place at Abu Ghraib go beyond the handful of MPs present in the photographs. “We found a string of failures that go well beyond an isolated cellblock in Iraq,” panelist Tillie K. Fowler explains during a Pentagon press conference. “We found fundamental failures throughout all levels of command, from the soldiers on the ground to the Central Command and to the Pentagon. These failures of leadership helped to set the conditions which allowed for the abusive practice to take place.” [US Department of Defense, 8/24/2004; New York Times, 8/25/2004]
bullet Rumsfeld’s decision (see December 2, 2002) on December 2, 2002 to authorize 16 pre-approved additional interrogation procedures for use at the Guantanamo facility; his subsequent decision (see January 15, 2003) to rescind that authority, and the final April 16, 2003 decision (see April 16, 2003) providing a final list of approved techniques was “an element contributing to uncertainties in the field as to which techniques were authorized.” The methods on the list eventually “migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.” [New York Times, 8/25/2004]
bullet The panel seemingly concludes that the interrogation methods approved for use in Afghanistan and at Guantanamo are lawful, fully agreeing that the Third Geneva Convention does not apply to detainees considered enemy combatants. The panel does not question whether the military was justified in classifying the detainees, or “terrorists,” as such. “The Panel accepts the proposition that these terrorists are not combatants entitled to the protections of Geneva Convention III. Furthermore, the Panel accepts the conclusion the Geneva Convention IV and the provisions of domestic criminal law are not sufficiently robust and adequate to provide for the appropriate detention of captured terrorists.” [US Congress, 9/9/2004, pp. 83 pdf file]
bullet The panel says that Gen. Ricardo Sanchez’s decision to classify some prisoners in Iraq as enemy combatants was “understandable,” even though Combined Joint Task Force 7 “understood there was no authorization to suspend application of the Geneva Conventions… .” [US Congress, 9/9/2004, pp. 83 pdf file]
bullet Abuses at Abu Ghraib involved both MPs and military intelligence personnel. “We now know these abuses occurred at the hands of both military police and military intelligence personnel,” the report says. “The pictured abuses, unacceptable even in wartime, were not part of authorized interrogations nor were they even directed at intelligence targets. They represent deviant behavior and a failure of military leadership and discipline. However, we do know that some of the egregious abuses at Abu Ghraib which were not photographed did occur during interrogation sessions and that abuses during interrogation sessions occurred elsewhere.… We concur with the Jones/Fay investigation’s (see August 25, 2004) conclusion that military intelligence personnel share responsibility for the abuses at Abu Ghraib with the military police soldiers cited in the Taguba investigation.” [New York Times, 8/25/2004]
bullet In Guantanamo, roughly one-third of all abuses were interrogation related. [New York Times, 8/25/2004]
bullet Contradicting the conclusions of the Red Cross report (see May 7, 2004), the Schlesinger report demonstrates that abuses were widespread. “Abuses of varying severity occurred at differing locations under differing circumstances and context,” the report’s authors write. “They were widespread and, though inflicted on only a small percentage of those detained… .” [New York Times, 8/25/2004]
bullet The abusive practices were not sanctioned by the military’s interrogation policy. “No approved procedures called for or allowed the kinds of abuse that in fact occurred. There is no evidence of a policy of abuse promulgated by senior officials or military authorities.” [New York Times, 8/25/2004]
bullet The panelists believe the abuses occurring during the night shift in Cell Block 1 of Abu Ghraib “would have been avoided with proper training, leadership and oversight.” [New York Times, 8/25/2004] Critics will say the report is a “whitewash,” noting that the panel cannot be considered independent given that it was appointed by Rumsfeld himself. Months before the panel completed its work, panelist Tillie Fowler said Rumsfeld should not be blamed for the abuses. “The secretary is an honest, decent, honorable man, who’d never condone this type of activity,” she said referring to the abuse at Abu Ghraib. “This was not a tone set by the secretary.” [New York Times, 6/6/2004]

Entity Tags: James R. Schlesinger, International Committee of the Red Cross, Harold Brown, Charles A. Horner, George R. Fay, Donald Rumsfeld, Tillie K. Fowler

Timeline Tags: Torture of US Captives, Civil Liberties

George Fay.George Fay. [Source: US Army]Generals George Fay and Anthony R. Jones release a final report describing the findings of their combined investigation of the abuses committed by US soldiers against detainees being held at Abu Ghraib. The investigation was initially ordered by Lt. Gen. Ricardo S. Sanchez, commander of CJTF-7, who charged Fay with determining whether the 205th Military Intelligence Brigade “requested, encouraged, condoned, or solicited Military Police (MP) personnel to abuse detainees and whether MI [military intelligence] personnel comported with established interrogation procedures and applicable laws and regulations.” Lt. Gen. Anthony R. Jones joined the investigation in June and was instructed to determine if “organizations or personnel higher” than the 205th Military Intelligence Brigade chain of command were involved in the Abu Ghraib abuses. [US Department of the Army, 3/9/2004] The report provides detailed descriptions of 44 separate incidents of abuse perpetrated by US soldiers against Abu Ghraib detainees beginning in September 2003. The abuses described include acts of sodomy, beatings, nudity, lengthy isolation, and the use of unmuzzled dogs aimed at making detainees urinate and defecate in fear. “The abuses spanned from direct physical assault, such as delivering head blows rendering detainees unconscious, to sexual posing and forced participation in group masturbation,” the authors say in the report. “At the extremes were the death of a detainee… an alleged rape committed by a US translator and observed by a female soldier, and the alleged sexual assault of an unknown female.” [Washington Post, 8/26/2005] Parts of the report are classified because, according to Army officials, they include references to secret policy memos. But when these classified sections are leaked to the New York Times by a senior Pentagon official, they do not appear to contain any sensitive material about interrogation methods or details of official memos. Instead, the secret passages demonstrate how interrogation practices from Afghanistan and Guantanamo were introduced to Abu Ghraib and how Sanchez played a major part in that process. [New York Times, 8/27/2004] Though the report lays most of the blame on MPs and a small group of military intelligence, civilian, and CIA interrogators, it does recommend disciplinary action for Col. Thomas M. Pappas and Lt. Col. Steven L. Jordan. “The primary causes are misconduct (ranging from inhumane to sadistic) by a small group of morally corrupt soldiers and civilians, a lack of discipline on the part of the leaders and soldiers of the 205 MI BDE [Military Intelligence Brigade] and a failure or lack of leadership by multiple echelons within CJTF-7.” Lt. Gen. Sanchez, the commander of Combined Joined Task Force (CJTF) 7, though mildly criticized, is still praised in the report as having performed “above expectations.” [US Department of the Army, 3/9/2004; Washington Post, 8/26/2005] Jones portrays the abuse as being only coincidentally linked to interrogations. “Most, though not all, of the violent or sexual abuses occurred separately from scheduled interrogations and did not focus on persons held for intelligence purposes.” Gen. Fay on the other hand writes that the majority of the victims of abuse were military intelligence holds, and thus held for intelligence purposes. In addition, he concludes that “confusion and misunderstanding between MPs and MI [military intelligence]” also contributed to acts of abuse. Military intelligence personnel ordered MPs to implement the tactic of “sleep adjustment.” “The MPs used their own judgment as to how to keep them awake. Those techniques included taking the detainees out of their cells, stripping them, and giving them cold showers. Cpt. [Carolyn A.] Wood stated she did not know this was going on and thought the detainees were being kept awake by the MPs banging on the cell doors, yelling, and playing loud music.” [US Department of Defense, 8/23/2004 pdf file]
Conclusions -
bullet Nearly 50 people were involved in the 44 incidents of abuse listed in the report: 27 military intelligence soldiers, 10 military police officers, four civilian contractors, and a number of other intelligence and medical personnel who failed to report the abuse. [Washington Post, 8/26/2005; Washington Post, 8/26/2005] Military intelligence soldiers were found to have requested or encouraged 16 of the 44 incidents. [Washington Post, 8/26/2005; Washington Post, 8/26/2005]
bullet The incidents of abuse included torture. “Torture sometimes is used to define something in order to get information,” Fay tells reporters. “There were very few instances where in fact you could say that was torture. It’s a harsh word, and in some instances, unfortunately, I think it was appropriate here. There were a few instances when torture was being used.” [Washington Post, 8/26/2005]
bullet Lt. Gen. Ricardo Sanchez and his staff “contributed indirectly to the questionable activities regarding alleged detainee abuse at Abu Ghraib” and failed “to ensure proper staff oversight of detention and interrogation operations.” [US Department of the Army, 3/9/2004; Washington Post, 8/26/2005] For example, Sanchez endorsed the use of stress positions, nudity, and military working dogs (see October 12, 2003), even though they had not been approved by Rumsfeld. [Washington Post, 8/26/2005] In spite of this, the executive summary of the report asserts that “the CJTF-7 Commander and staff performed above expectations… .” [US Department of the Army, 3/9/2004; Washington Post, 8/26/2005]
bullet Senior officers in Iraq failed to provide “clear, consistent guidance” for handling detainees. [US Department of the Army, 3/9/2004; Washington Post, 8/26/2005]
bullet There is no evidence that policy or instructions provided by senior US authorities sanctioned the types of abuses that occurred at Abu Ghraib. [Washington Post, 8/26/2005; Washington Post, 8/26/2005]
bullet CIA officials in the prison hid “ghost detainees” from human rights groups in violation of international law. [Washington Post, 8/26/2005]

Entity Tags: Steven L. Jordan, Ricardo S. Sanchez, George R. Fay, Anthony R. Jones, Thomas M. Pappas, Carolyn A. Wood

Timeline Tags: Torture of US Captives

At Fort Bragg, defense attorneys for Pfc. Lynndie England rely upon the two Pentagon reports (see August 24, 2004) (see August 25, 2004) released the previous week to argue that their client and other low-ranking MPs were following approved military intelligence procedures. The hearing is being held to investigate the nineteen charges against England and to determine whether she should face a court-martial. Thirteen of her charges relate to the abuse of detainees, while the others concern possession of sexually explicit photos. If convicted, England faces up to thirty-eight years in prison. [Associated Press, 8/30/2004]

Entity Tags: Lynndie England

Timeline Tags: Torture of US Captives

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

Entity Tags: Richard (“Dick”) Cheney, Anne Womack, John Kerry, John Edwards

Timeline Tags: Complete 911 Timeline, 2004 Elections

During the presentation and discussion of the Schlesinger report (see August 24, 2004) before the House Armed Services Committee, most Republicans, including its chairman, Representative Duncan Hunter (R-CA), say the investigation shows that only a handful of US soldiers were responsible for the abuses. Democrats however, like Representative Ike Skelton (D-MO), disagree. “We must not continue to call this the work of just a few bad apples,” Skelton says. [New York Times, 9/10/2004]

Entity Tags: Duncan Hunter, Ike Skelton

Timeline Tags: Torture of US Captives, Civil Liberties

The Army’s Criminal Investigation Division (CID) opens a probe into the deaths of two Afghan detainees, allegedly at the hands of US Special Forces soldiers. The two men, Wakil Mohammed and Jamal Naseer, died on March 1, 2003 and March 16, 2003, respectively (see March 1, 2003 and March 16, 2003). Mohammed, an unarmed peasant, was being interrogated about his role in a recent firefight. While he was protesting his innocence, he was shot in the face by an American soldier. Naseer, taken into custody with seven other Afghans for interrogation about their supposed involvement with local Taliban or al-Qaeda fighters, died about a week after his capture, allegedly from repeated torture and abuse. Los Angeles Times reporters Craig Pyes and Mark Mazzetti write, “Motivation for those arrests remains cloaked in Afghan political intrigue. The action was requested by a provincial governor feuding with local military commanders, an Afghan intelligence report says.” While the Army apparently looked into the circumstances of the deaths shortly after they occurred, no official investigation was ever mounted until the Crimes of War Project began its own investigation into the deaths. When the organization released its findings to two Los Angeles Times reporters, Kevin Sack and Craig Pyes, and the reporters filed a series of articles on the deaths in September 2004, the CID opened its own probe. Former Attorney General for the Armed Forces Yar Mohammed Tamkin, who directs the Afghan investigation into the death of Naseer, concludes in his own report that there was a “strong possibility” that Naseer was “murdered as the result of torture” at the hands of his US captors. Under Afghan law, he writes, “it is necessary for our legal system to investigate the torture of the seven individuals and the murder of Jamal, son of Ghazi, and other similar acts committed by foreign nationals.” CID investigators say that the Army’s original inquiry into the deaths was stymied by a lack of information made available by the Gardez unit’s commanders. “We’re trying to figure out who was running the base,” says Army detective Christopher Coffey. “We don’t know what unit was there. There are no records. The reporting system is broke across the board. Units are transferred in and out. There are no SOPs [standard operating procedures]… and each unit acts differently.” Coffey does acknowledge that “Gardez is the worst facility—it is three or four times as bad as any other base in Afghanistan.” Naseer’s death was officially attributed to “natural causes” stemming from an apparent sexually-contracted urinary tract infection, and his death was never reported, as is standard Army procedure. Shortly after Naseer’s death, the other seven detainees were transferred to the custody of local Afghan police, who mounted their own investigation. The seven were released without charge six weeks later. [Los Angeles Times, 9/21/2004] Two special Forces soldiers accused of complicity in Naseer and Mohammed’s deaths will be given administrative reprimands by the Army in 2007 (see January 26, 2007).

Entity Tags: Yar Mohammed Tamkin, Jamal Naseer, Al-Qaeda, Christopher Coffey, Wakil Mohammed, Taliban, US Department of the Army

Timeline Tags: Torture of US Captives, War in Afghanistan

Senator Patrick Leahy, the ranking Democrat on the Judiciary Committee, releases a statement condemning the allegations of the abuse and torture of Iraqi and Afghan detainees; the statement coincides with a letter Leahy sends to Defense Secretary Donald Rumsfeld. [Pyes, 9/20/2004] In the statement, Leahy says that committee chairman Sen. John Warner’s efforts to investigate the scandals "remain… hampered by the leadership of his own party and an Administration that does not want the full truth revealed.… Despite calls from a small handful of us who want to find the truth, Congress and this Administration have failed to seriously investigate acts that bring dishonor upon our great Nation and endanger our soldiers overseas.… The Bush Administration circled the wagons long ago and has continually maintained that the abuses were the work of ‘a few bad apples.’ I have long said that somewhere in the upper reaches of the executive branch a process was set in motion that rolled forward until it produced this scandal. Even without a truly independent investigation, we now know that the responsibility for abuse runs high up into the chain of command." He accuses the Senate Judiciary Committee, and the Senate as a whole, of falling “short in its oversight responsibilities.” He calls for a truly independent investigation into the torture allegations, along the lines of the 9/11 Commission. He also calls for the US to once again begin following the guidelines of the Geneva Conventions. [US Senate, 10/1/2004] Sen. Warner’s office will later admit that Warner was pressured by unnamed Bush administration officials to “back off” investigating the Abu Ghraib abuses (see May 2004).

Entity Tags: US Department of Defense, Patrick J. Leahy, John W. Warner, Donald Rumsfeld, US Department of the Army

Timeline Tags: Torture of US Captives

The Supreme Court declines without comment to hear an appeal by “enemy combatant” Ali Saleh Kahlah al-Marri (see December 12, 2001 and June 23, 2003). Al-Marri has filed a civil suit, Al-Marri v. Rumsfeld, challenging his detention and his status as an enemy combatant. Previously, courts ruled that al-Marri’s lawyers should have filed the suit in South Carolina, where al-Marri is being held in a Charleston naval brig, not in Illinois, where al-Marri was attending college. The Supreme Court refused to overturn that decision. Al-Marri’s lawyers intend to refile the suit in South Carolina (see August 8, 2005). [Al-Marri v. Rumsfeld, 6/2004; Associated Press, 10/4/2004; Slate, 4/20/2006]

Entity Tags: US Supreme Court, Ali Saleh Kahlah al-Marri

Timeline Tags: Torture of US Captives, Civil Liberties

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

Entity Tags: Noor Uthman Muhammed, Guantanamo Bay Naval Base

Timeline Tags: Torture of US Captives

The Army completes a classified report on detainee abuse at Camp Nama, a Special Forces detention center at Baghdad International Airport. The report is based on an investigation led by Brigadier General Richard Formica into three specific allegations against the Combined Joint Special Operations Task Force Arabian Peninsula, which operates throughout Iraq. Formica’s report concludes that detainees who report being sodomized or beaten are seeking sympathy and better treatment, and thus are not credible. The report cites an Army medical report which had initially noted that a complaining detainee’s wounds were “consistent with the history [of abuse] he provided.… The doctor did find scars on his wrists and noted what he believed to be an anal fissure.” Two days later, Formica had the detainee re-examined by another doctor, who found “no fissure, and no scarring.” Formica concludes, “As a result, I did not find medical evidence of the sodomy.” In the case of a detainee who died in custody, Formica reports that the detainee suffered bruising to the “shoulders, chest, hip, and knees” but adds, “It is not unusual for detainees to have minor bruising, cuts, and scrapes.” A July 2006 report by Human Rights Watch will find evidence of “serious mistreatment” of detainees based on witness accounts of Special Forces interrogators and other US personnel. Formica will note in an e-mail: “I conducted a thorough investigation… and stand by my report.… [S]everal issues” he discovered “were corrected,” he will say. [Armed Forces Press Service, 6/17/2006; New Yorker, 6/17/2007]

Entity Tags: Combined Joint Special Operations Task Force Arabian Peninsula, Human Rights Watch, Richard Formica, Camp Nama, US Department of the Army

Timeline Tags: Torture of US Captives

The day after President Bush’s presidential election victory over Senator John Kerry (D-MA), an Associated Press exit poll indicates that 22 percent of voters made their choice because of “moral values”—a higher ranked criterion than the Iraq war, the threat of terrorism, or the economy. The mainstream media seizes on the poll as an indication of a new focus on morality among American voters. “It really is Michael Moore versus Mel Gibson,” says former Republican House Speaker Newt Gingrich, comparing the liberal documentary maker to the actor who has wooed conservatives with his recent film, The Passion of the Christ. News analysts say that singer Janet Jackson’s “wardrobe malfunction,” where she showed her right breast for a moment during the February 2004 Super Bowl halftime show, was “the socio-political event of the past year.” Bush campaign manager and White House deputy chief of staff Karl Rove says, “I think it’s people who are concerned about the coarseness of our culture, about what they see on the television sets, what they see in the movies.” Conservative columnist Robert Novak uses the poll to claim that “the anti-abortion, anti-gay marriage, socially conservative agenda is transcendant.” Author and media critic Frank Rich will note that the interpretation of the poll is transparently false. First, he will point out, if one adds together the 19 percent who chose terrorism and the 15 percent who chose Iraq as the issues that most drove their vote, then it is “clear that national security was of greater concern to Americans than ‘moral values.’” Moreover, the poll itself is suspect: the category of “moral values” is so general as to mean anything from, as Rich will write, “abortion to aiding the poor to being nice to your mother.” According to a Pew Research Center analysis, the over-generalized category of “moral values” is an easy way for voters to choose “none of the above” instead of choosing a specific issue as their single motivator. According to Rich, Pew will find that “when voters were given no menu of suggestions to choose from, Iraq, the economy, and terrorism led by far, and issues that might be labeled as ‘values’ polled in the low single digits.” Worse for the conservative “moral values” argument, 60 percent of those polled actually favored either same-sex marriage or civil unions, and 55 percent support abortion in one form or another. ABC News polling director Greg Langer later notes that the erroneous “moral values” claim “created a deep distortion—one that threatens to misinform the political discourse for years to come.” [Rich, 2006, pp. 150-151] One effect of the new “moral values” perception is the decision by 66 ABC affiliates not to air the World War II film Saving Private Ryan over Memorial Day over fears that the profanity and violence portrayed in the film might result in fines from the Federal Communications Commission (see November 11, 2004).

Entity Tags: Newt Gingrich, ABC, Associated Press, Frank Rich, Pew Research Center, Robert Novak, Greg Langer, Karl C. Rove

Timeline Tags: Domestic Propaganda

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

Entity Tags: Mark Corallo, Neal Katyal, James Robertson, George W. Bush, Anthony D. Romero, Peter Brownback, Charlie Savage, US Supreme Court, American Civil Liberties Union, Salim Ahmed Hamdan

Timeline Tags: Torture of US Captives, Civil Liberties

Studio poster for ‘Saving Private Ryan.’Studio poster for ‘Saving Private Ryan.’ [Source: Little Golden Guy (.com)]Sixty-six of ABC’s 225 affiliated stations choose not to air the World War II film Saving Private Ryan on Veterans Day. ABC aired the film, widely considered a homage to American soldiers, on Veterans Day in 2001 and 2002 without complaint. But with new concerns that the Bush administration, and the American electorate, is energized by a passion for “moral values” (see November 3, 2004), the stations’ executives believe they may risk fines from the Federal Communications Commission (FCC). The film opens with a graphic depiction of the famous D-Day invasion of Normandy by US, British, and Canadian forces, and the entire film contains a significant amount of profanity. The FCC could impose fines of up to $32,500 on a station if it finds the film violates moral and ethical standards. The FCC says it has received complaints, but has not yet decided to mount any sort of investigation. Many stations choosing not to air the film say that if their viewers are angry at the decision, they should call the FCC themselves. ABC spokeswoman Susan Sewell says the “overwhelming majority” of viewers are comfortable with their decision to broadcast the film. Some of the stations choosing not to air the film point to a recent FCC decision to fine CBS stations up to $500,000 for airing a Super Bowl halftime show in which entertainer Janet Jackson exposed her right breast for a moment. ABC’s contract with DreamWorks, the film studio who produced Saving Private Ryan, does not allow the network or its stations to edit the film. ABC shows an introduction by Senator John McCain (R-AZ), a prisoner of war during Vietnam. Jack Valenti, the former head of the Motion Pictures Association of America, says that he cannot imagine the FCC fining any station for showing the film: “I think that this planet would collide with Saturn before that happens.” [Associated Press, 11/12/2004; BBC, 11/13/2004] In 2006, author and media critic Frank Rich will write that “merely the fear of reprisals was enough to push television stations… onto the slippery slope of self-censorship before anyone in Washington even bothered to act.” Rich asks if such self-censorship might extend into these stations’, and networks’, coverage of the Iraq war: “If these media outlets were afraid to show a graphic Hollywood treatment of a 60-year old war starring the beloved Tom Hanks because the feds might fine them, toy with their licenses, or deny them regulatory permission to expand their empires, might they curry favor with Washington by softening their news divisions’ efforts to present the ugly facts of an ongoing war? The pressure groups that were incensed by both Saving Private Ryan and risque programming were often the same ones who campaigned against any news organization that was not toeing the administration political line in lockstep with Fox [News].” [Rich, 2006, pp. 153-154]

Entity Tags: Janet Jackson, CBS, ABC, DreamWorks, Jack Valenti, Susan Sewell, Federal Communications Commission, John McCain

Timeline Tags: Domestic Propaganda

Randall Schmidt.Randall Schmidt. [Source: US Air Force]FBI agents at Guantanamo prison have been complaining to superiors about military personnel abusing detainees there since 2002 (see End of 2002). However, there is no official investigation until December 2004, after the widely publicized Abu Ghraib abuse scandal. Gen. Bantz Craddock, head of the US Army’s Southern Command and a close associate of Defense Secretary Donald Rumsfeld, assigns Air Force Lt. Gen. Randall Schmidt to investigate. Schmidt will later say, “I found some things that didn’t seem right. For lack of a camera, you could have seen in Guantanamo what was seen at Abu Ghraib.” Schmidt will say that he determined Maj. Gen. Geoffrey Miller, commander of the Guantanamo prison, “was responsible for the conduct of interrogations that I found to be abusive and degrading. The intent of those might have been to be abusive and degrading to get the information they needed.… Did the means justify the ends? That’s fine.… He was responsible.” Schmidt formally recommends that Miller be “held accountable” and “admonished.” But Craddock rejects this and absolves Miller of any improprieties, and the army’s Inspector General seconds that conclusion. By this time, Miller is in charge of reforming Abu Ghraib and other prisons in Iraq (see March 22, 2004). Schmidt will later learn that Rumsfeld was in contact with Miller about some Guantanamo interrogations and personally approved the most severe interrogation tactics. [New Yorker, 6/17/2007]

Entity Tags: Donald Rumsfeld, Geoffrey D. Miller, Bantz J. Craddock, Randall Schmidt

Timeline Tags: Torture of US Captives

Congress passes a law requiring the director of national intelligence (DNI) to recruit and train women and minorities to be spies, analysts, and translators in order to ensure diversity in the intelligence community. President Bush signs the bill, then issues a signing statement ordering the executive branch—including the DNI—to construe the law in a manner consistent with a constitutional clause guaranteeing “equal protection” for all: a legalistic phrasing designed to sidestep the law. Bush has long been an opponent of any sort of affirmative action program; as recently as 2003, the Supreme Court ruled against the Bush administration’s “equal protection” arguments and in favor of a race-conscious affirmative action program. In his signing statement, Bush advances the “equal protection” argument over affirmative action in spite of the Supreme Court’s rejection of that argument. [Boston Globe, 4/30/2006; Savage, 2007, pp. 240-241]

Entity Tags: Bush administration (43), Office of the Director of National Intelligence, US Supreme Court, George W. Bush

Timeline Tags: Civil Liberties

Congress passes a law forbidding US troops in Colombia, who are there advising the government in its struggle against Marxist rebels funded by drug money, from engaging in any combat against the rebels except in self-defense. The law also caps the number of American soldiers deployed in Colombia at 800. President Bush issues a signing statement that only he, as the commander in chief, can place restrictions on the use of US armed forces. Therefore, the executive branch will construe the law “as advisory in nature.” [Boston Globe, 4/30/2006]

Entity Tags: George W. Bush, Bush administration (43)

Timeline Tags: US International Relations, Civil Liberties

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

Entity Tags: Office of Legal Counsel (DOJ), Bush administration (43), Daniel Levin, Alberto R. Gonzales, Jay S. Bybee, John C. Yoo

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

A new chief of the CIA’s Baghdad station is appointed. Possibly due to problems the previous two station chiefs are perceived to have experienced (see (Late December 2003) and December 2004), this new official files only one Aardwolf priority report during his one-year tour. An anonymous official will later say that this report is widely derided within the CIA as “a joke,” because it asserts that the United States is winning the war despite all evidence to the contrary. Harper’s journalist Ken Silverstein will comment, “It was garbage, but garbage that the Bush administration wanted to hear.” At the end of his tour, the station chief will be given what Silverstein calls a “plum assignment.” [Harper's, 5/18/2006]

Entity Tags: CIA Baghdad Station, Central Intelligence Agency

Timeline Tags: Iraq under US Occupation

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

Entity Tags: Clarence Thomas, Arlen Specter, Alberto R. Gonzales, Central Intelligence Agency, Uniform Code of Military Justice, US Department of Justice, Mark Danner, Patrick J. Leahy, Joseph Biden, Bush administration (43), Office of Legal Counsel (DOJ)

Timeline Tags: Torture of US Captives, Civil Liberties

The Senate Judiciary Committee brings in several experts to expand upon the testimony of attorney general nominee Alberto Gonzales (see January 6, 2005 and January 6, 2005). One of the most outspoken critics is Yale Law School dean Harold Koh. Koh had worked in the Justice Department’s Office of Legal Counsel (OLC) under Ronald Reagan, and later served as assistant secretary of state for democracy, human rights, and labor in the Clinton administration. He is a vocal critic of the Bush administration’s detention policies at Guantanamo and elsewhere. Koh had once worked closely with OLC lawyer John Yoo, the author of numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002), but now, without explicitly mentioning Yoo by name, he repudiates his former student’s legal positions. Gonzales worked closely with Yoo to craft the administration’s positions on wiretapping, torture, the inherent power of the president, and other issues. “Having worked in both Democratic and Republican administrations, and for more than two years as an attorney in the Office of Legal Counsel, I am familiar with how legal opinions like this are sought and drafted,” Koh states. “I further sympathize with the tremendous pressures of time and crisis that government lawyers face while drafting such opinions. Nevertheless, in my professional opinion, the August 1, 2002 OLC memorandum [drafted by Yoo at Gonzales’s behest—see August 1, 2002] is perhaps the most clearly erroneous legal opinion I have ever read.” The August 1 memo, as well as other opinions by Yoo and Gonzales, “grossly overreads the inherent power of the president” as commander in chief, Koh testifies. The memos raise profound questions about the legal ethics of everyone involved—Gonzales, Yoo, and others in the Justice Department and White House. “If a client asks a lawyer how to break the law and escape liability, the lawyer’s ethical duty is to say no,” Koh testifies. “A lawyer has no obligation to aid, support, or justify the commission of an illegal act.” [Senate Judiciary Committee, 1/7/2005 pdf file; Savage, 2007, pp. 211-212]

Entity Tags: Senate Judiciary Committee, US Department of Justice, Harold Koh, Alberto R. Gonzales, Bush administration (43), John C. Yoo, Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

The US television news media virtually ignores the court-martial of Specialist Charles Graner, who is charged with abusing and torturing prisoners at Abu Ghraib (see May 19, 2004-March 22, 2006 and January 16, 2005), according to author and media critic Frank Rich. “[I]f a story isn’t on TV in America, it’s MIA in the culture,” Rich will write. Much of the broadcast coverage is focused on stories about President Bush’s upcoming inauguration and on Britain’s Prince Harry, who had dressed up in Nazi regalia for a costume party. The network and cable news stations grant Graner’s trial only “brief, mechanical” summations “when it was broadcast at all.” The usual claims that television news only focuses on lurid, scandal-ridden news stories do not apply here, Rich writes: “It surely didn’t lack for drama; the Graner trial was Judgment at Nuremberg turned upside down.” Viewers do not learn of defense lawyer Guy Womack’s claim during his closing argument that “In Nuremberg, it was the government being prosecuted. We were going after the order-givers. Here the government is going after the order-takers.” Rich will later write that if the American public could not be exposed to fictional films about World War II (see November 11, 2004), then it “certainly… could not be exposed to real-life stories involving forced group masturbation, electric shock, rape committed with a phosphorescent stick, the burning of cigarettes in prisoners’ ears, involuntary enemas, and beatings that ended in death (see May 3-11, 2004). When one detainee witness at the Graner trial testified… that he had been forced to eat out of a toilet, his story was routinely cited in newspaper accounts but left unmentioned on network TV newscasts.” [Rich, 2006, pp. 155]

Entity Tags: Guy Womack, Charles Graner, Frank Rich

Timeline Tags: Torture of US Captives, Domestic Propaganda

Army Specialist Charles Graner is sentenced to 10 years in prison. In a military court-martial, Graner was convicted of crimes related to the torture and abuse of prisoners in Baghdad’s Abu Ghraib prison (see October 2003), October 17-22, 2003), November 4-December 2, 2003, and (7:00 a.m.) November 4, 2003), including charges of battery, conspiracy, maltreatment of detainees, committing indecent acts, and dereliction of duty. Graner admitted some of his actions were criminal, and told jurors, “I didn’t enjoy what I did there” before he was found guilty. Asked if he felt remorse over his actions, Graner says simply: “There’s a war on. Bad things happen.” After Graner completes his sentence, he will be dishonorably discharged. He has forfeited all of his pay and benefits. Defense lawyer Guy Womack says that Graner and his six fellow Abu Ghraib guards also facing trials (see May 19, 2004-March 22, 2006) are being used as scapegoats by the Defense Department. Graner and his lawyers were unable to effectively discuss orders being handed down from superior officers during the trial, as the judge in the court-martial, Colonel James Pohl, refused to let witnesses say the names of officers who gave the orders or what orders might have been given, in effect constraining the trial to point to Graner and his colleagues as independent, “rogue” agents operating outside the chain of command. Graner did not testify during his trial, but during sentencing said that he had done what he was ordered to do by US intelligence agents, in order to “soften up” prisoners for interrogation. According to Graner, a lieutenant in his unit told him: “If [military intelligence] asks you to do this, it needs to be done. They’re in charge, follow their orders.” He believed the orders to torture and abuse prisoners were lawful, he claims. [Associated Press, 1/16/2005; Rich, 2006, pp. 155] Author and media critic Frank Rich will later note that while the print media coverage of Graner’s trial is relatively extensive, the broadcast media virtually ignores it in favor of celebrating the inauguration of President Bush (see January 11-16, 2005). [Rich, 2006, pp. 155]

Entity Tags: Guy Womack, US Department of Defense, Charles Graner, James L. Pohl, Frank Rich

Timeline Tags: Torture of US Captives

Attorney general nominee Alberto Gonzales turns in supplementary written answers to expand upon and clarify his testimony before the Senate Judiciary Committee (see January 6, 2005 and January 6, 2005). Buried in the documents is what reporter Charlie Savage will call “an explosive new disclosure.” Gonzales reveals that the Bush administration had secretly decided that the Convention against Torture, an international treaty, only has force on domestic soil, where the US Constitution applies. Noncitizens held overseas have no rights under the treaty, Bush lawyers concluded. Legal scholars from all sides of the political continuum denounce the administration’s position. Judge Abraham Sofaer, who negotiated the treaty for the Reagan administration, will write a letter to Congress informing it that President Reagan had never intended the treaty’s prohibition on torture and brutal treatment to apply only on US soil. However, the Bush administration stands by its position. [Savage, 2007, pp. 213]

Entity Tags: Senate Judiciary Committee, Abraham Sofaer, Alberto R. Gonzales, Bush administration (43), Charlie Savage

Timeline Tags: Civil Liberties

The American Civil Liberty Union (ACLU) calls for the creation of a Special Counsel “to investigate and prosecute any criminal acts by civilians in the torture or abuse of detainees by the US Government” and appeals to senators to insist that Alberto Gonzales commit to appointing one, before voting on his nomination as attorney general. “[I]t is likely,” the ACLU concludes, that between the production of the August 1, 2002 OLC memo (see August 1, 2002) and its official replacement by another legal opinion on December 30, 2004 (see December 30, 2004), “criminal acts occurred under the looser interpretations in effect for more than two years.” According to the ACLU, “The appointment of an outside special counsel—with full investigatory and prosecutorial powers—is the only way to ensure that all civilians who violated federal laws against torture will be held responsible.” [American Civil Liberties Union, 1/30/2005]

Entity Tags: Alberto R. Gonzales, American Civil Liberties Union

Timeline Tags: Torture of US Captives, Civil Liberties

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

Entity Tags: US Department of Justice, Alberto R. Gonzales, Central Intelligence Agency, New York Times

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

Former White House counsel Alberto Gonzales is confirmed as attorney general by the Senate on a generally party-line vote of 60-36, one of the smallest margins of confirmation in Senate history. Gonzales’s confirmation hearings (see January 6, 2005 and January 6, 2005) have been the source of great controversy, with Senate Democrats accusing him of being deliberately evasive, obfuscutory (see January 17, 2005), and even obtuse during questioning, but with a solid Republican majority, Democrats have little ability to do anything to interfere with Gonzales’s ascension to power. [Savage, 2007, pp. 213] Senator Christopher Dodd (D-CT) explains his opposition to Gonzales: “What is at stake here is whether he has demonstrated to the Senate of the United States that he will discharge the duties of the office to which he’s been nominated, specifically whether he will enforce the Constitution and the laws of the United States and uphold the values upon which those laws are based. Regrettably, and disturbingly in my view, Alberto Gonzales has fallen short of meeting this most basic and fundamental standard.” Dodd adds that Gonzales “has endorsed, unfortunately, the position that torture can be permissible.” Fellow Senator Richard Durbin (D-IL) adds: “At the very least Mr. Gonzales helped to create a permissive environment that made it more likely that abuses would take place. You could connect the dots from the administration’s legal memos to the Defense Department’s approval of abusive interrogation techniques for Guantanamo Bay to Iraq and Abu Ghraib.” Republicans are incredulous that Democrats would oppose Gonzales’s candidacy, and imply that their opposition is racially based. “Is it prejudice?” asks Senator Orrin Hatch (R-UT). “Is it a belief that a Hispanic-American should never be in a position like this because he will be the first one ever in a position like this? Or is it because he’s constantly mentioned for the Supreme Court of the United States of America? Or is it that they just don’t like Judge Gonzales?” Senator Mel Martinez (R-FL) says: “This is a breakthrough of incredible magnitude for Hispanic-Americans and should not be diluted by partisan politics. Judge Gonzales is a role model for the next generation of Hispanic-Americans in this country.” [Fox News, 2/4/2005] When Gonzales is sworn in on February 14, President Bush will use the occasion to urge Congress to renew the controversial USA Patriot Act (see February 14, 2005). [Deseret News, 2/15/2005]

Entity Tags: Richard (“Dick”) Durbin, Mel Martinez, Alberto R. Gonzales, Orrin Hatch, Bush administration (43), George W. Bush, Christopher Dodd, US Department of Justice

Timeline Tags: Civil Liberties

After a contentious Senate confirmation hearing (see February 3, 2005), White House senior counsel Alberto Gonzales is sworn in as attorney general of the United States. He is the first Hispanic to hold the office, and replaces former Attorney General John Ashcroft. President Bush says that the “attorney general has my complete confidence” and that he has been “a model of service” with a “deep dedication to the cause of justice.” Gonzales, Bush says, is now on “an urgent mission to protect the United States from another terrorist attack.” Bush uses the swearing-in press conference to urge Congress to renew all provisions of the USA Patriot Act, saying that “we must not allow the passage of time, or the illusion of safety, to weaken our resolve in this new war.” Gonzales says he will place his loyalty to the nation above his loyalty to Bush, noting that while the attorney general is “a member of the president’s Cabinet, a part of his team… the attorney general represents also the American people, and his first allegiance must always be to the Constitution of the United States.” [New York Times, 2/14/2005; Talking Points Memo, 2011]

Entity Tags: Alberto R. Gonzales, John Ashcroft, USA Patriot Act, George W. Bush

Timeline Tags: Civil Liberties

The Army decides not to prosecute unnamed soldiers for killing an Iraqi detainee and attempting to cover up the death. The soldiers were stationed at Forward Operating Base Rifles near Al Asad, Iraq. In January 2004, several soldiers assaulted an Iraqi detainee. One lifted the detainee up from the floor by placing a baton under his chin, fracturing the detainee’s hyoid bone and causing his death. The soldiers were charged with negligent homicide, and with additional charges of conspiracy and making false statements. Apparently, the soldiers receive nothing more than written letters of reprimand and counseling. The officer completing the Commander’s Report on the offense writes, “Soldier should not be titled for any offense.” The detainee’s name is not revealed to the public. [US Department of Defense, 3/5/2005 pdf file; American Civil Liberties Union, 5/2/2006]

Entity Tags: US Department of the Army

Timeline Tags: Torture of US Captives

A scene of a US soldier aiming his weapon from the ‘Ramadi Madness’ videotapes.A scene of a US soldier aiming his weapon from the ‘Ramadi Madness’ videotapes. [Source: Miami New Times]The Palm Beach Post releases two undated videos from Iraq that the government had refused to release to the American Civil Liberties Union (ACLU). The videos, part of a set which will become known as the “Ramadi Madness” videos, were made by members of the West Palm Beach-based Bravo Company, 1st Battalion, 124th Infantry Regiment, stationed in Ramadi in 2002 and 2003. The videos are divided into segments called, among other titles, “See Haj Run” and “Blood Clot,” and depict scenes of urban fighting and Iraqis being captured and detained by US forces. In 2006, the government will authenticate the videos as being genuine (see May 2, 2006). The videos combine to make an approximately 26-minute long “crude documentary,” according to the Post, “created by a couple of [Bravo Company] sergeants.” The films were examined by Army investigators, who eventually concluded that they showed “inappropriate behaviors” but nothing criminal. The Post describes the videotaped scenes as ranging “from routine to poignant to macabre.” One shows a US soldier moving the hand of a dead Iraqi truck driver to “make him say ‘Hi.’” Another shows two soldiers pretending to choke a third with a plastic handcuff. A snippet entitled “Haji Cat” shows soldiers feeding and cuddling a kitten, which they’ve named “Anthrax.” Another shows an injured Iraqi man being pulled from the sidewalk into a building by other Iraqis. A later video shows an Iraqi prisoner on the ground with his hands bound and an off-screen voice saying, “I don’t know what the [expletive] this guy did, but he is a bad guy”; another detainee is receiving medical treatment for a head wound and being told to “smile for the camera.” A small group of soldiers interrogates a detainee. One video shows a homemade bomb made with plastic explosives packed in a rusted oil can. The “Blood Clot” video shows a US soldier kicking a wounded Iraqi and explaining, “This [expletive] shot at me.” The video moves to a close-up of an Iraqi detainee’s gunshot wound, then shows a group of women being detained while an off-screen voice declares, “Bad women.” One of the more graphic videos is titled “Friends Don’t Let Friends Play with Explosives.” It begins with a camera shot of burned and dismembered corpses, with an off-screen voice saying, “There’s the crater,” and, “That’s what you get, [expletive].” A soldier points to human remains and pokes the remains across the ground with his foot. Voices are heard off-screen, saying, “Oh, that’s part of his skull,” “That’s where the guy got thrown against the wall,” and, “They were setting the explosive, and it blew up on them.” Finally, “That’s your brain on idiocy” is said as the camera focuses on another pile of remains. [Palm Beach Post, 3/13/2005; American Civil Liberties Union, 5/2/2006] The Army will not charge anyone over the actions depicted in the videotapes. [Associated Press, 3/4/2005]

Entity Tags: Palm Beach Post, American Civil Liberties Union, US Department of the Army

Timeline Tags: Torture of US Captives

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

Entity Tags: Michael Gelles, Bush administration (43), US Department of Defense, Naval Criminal Investigative Service

Timeline Tags: Torture of US Captives

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

Entity Tags: Gerald Posner, Abu Zubaida, Central Intelligence Agency, Federal Bureau of Investigation, 9/11 Commission

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Steven Bradbury, the head of the Justice Department’s Office of Legal Counsel, issues a classified memo to John Rizzo, the senior deputy counsel for the CIA. The memo will remain classified for nearly four years (see April 16, 2009). It addresses, in the words of the American Civil Liberties Union (ACLU), “whether CIA interrogation methods violate the cruel, inhuman, and degrading treatment standards under federal and international law.” Bradbury concludes that neither past nor present CIA interrogation methods violate such standards. [Office of Legal Counsel, 5/10/2005 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file]
CIA Techniques Not Torture, Bradbury Explains - Bradbury calls torture “abhorrent” and “universally repudiated,” and says the US will never condone it. Afterwards, he spends a great deal of effort explaining why the various techniques used by the CIA do not constitute torture. Bradbury goes into numerous details about varieties of “harsh interrogation techniques” that can be used on prisoners, often restating details from an August 2002 OLC memo (see August 1, 2002) and elaborating on those descriptions. One technique he details is forced nudity. “Detainees subject to sleep deprivation who are also subject to nudity as a separate interrogation technique will at times be nude and wearing a diaper,” he writes, and notes that the diaper is “for sanitary and health purposes of the detainee; it is not used for the purpose of humiliating the detainee and it is not considered to be an interrogation technique.… The detainee’s skin condition is monitored, and diapers are changed as needed so that the detainee does not remain in a soiled diaper.” He cites “walling,” a technique involving slamming a detainee into a “false wall,” and writes, “Depending on the extent of the detainee’s lack of cooperation, he may be walled one time during an interrogation session (one impact with the wall) or many times (perhaps 20 or 30 times) consecutively.” Other techniques Bradbury cites include waterboarding, “abdominal slaps,” and “water dousing.” For water dousing, Bradbury gives specific restrictions: “For example, in employing this technique:
bullet “For water temperarure of 41°F, total duration of exposure may not exceed 20 minutes without drying and rewarming.
bullet “For water temperarure of 50°F, total duration of exposure may not exceed 40 minutes without drying and rewarming.
bullet “For water tempetarure of 59°F, total duration of exposure may not exceed 60 minutes without drying and rewarming.
“The minimum permissible temperature of the water used in water dousing is 41°F, though you have informed us that in practice the water temperature is generally not below 50°F, since tap water rather than refrigerated water is generally used.” [Office of Legal Counsel, 5/10/2005 pdf file; CNN, 4/17/2009]
Waterboarding Used More Frequently than Authorized - Bradbury also notes that waterboarding is sometimes used more times than authorized or indicated. Referring to an as-yet-unreleased 2004 report by the CIA’s inspector general on torture and abuse of detainees, he writes: “The IG report noted that in some cases the waterboard was used with far greater frequency than initially indicated.… (‘[T]he waterboard technique… was different from the technique described in the DoJ [Department of Justice] opinion and used in the SERE training (see December 2001 and July 2002). The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the [CIA] interrogator… applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the agency’s use of the technique is different from that used in SERE training because it is ‘for real—and is more poignant and convincing.’)… The inspector general further reported that ‘OMS [the CIA’s Office of Medical Services] contends that the expertise of the SERE waterboard experience is so different from the subsequent agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.‘… We have carefully considered the IG report and discussed it with OMS personnel. As noted, OMS input has resulted in a number of changes in the application of the waterboard, including limits on frequency and cumulative use of the technique. Moreover, OMS personnel are carefully instructed in monitoring this technique and are personally present whenever it is used.… Indeed, although physician assistants can be present when other enhanced techniques are applied, ‘use of the waterboard requires the presence of the physician.’” [Office of Legal Counsel, 5/10/2005 pdf file]

Entity Tags: US Department of Justice, Steven Bradbury, Central Intelligence Agency, Office of Legal Counsel (DOJ), American Civil Liberties Union

Timeline Tags: Civil Liberties

The New York Times obtains a copy of a classified file of the Army criminal investigation into a number of detainee deaths at Bagram Air Force Base in Afghanistan. The report focuses on two Afghan detainees, Mullah Habibullah (see October 2004 and November 30-December 3, 2002) and a taxi driver known as Dilawar (see December 10, 2002), both of whom were in essence tortured to death; other detainees are also covered in the report. The Army report follows up on the official inquiry conducted in late 2004 (see October 2004).
Torture to Extract Information, Punish Detainees, and Alleviate Boredom - The Times writes: “Like a narrative counterpart to the digital images from Abu Ghraib, the Bagram file depicts young, poorly trained soldiers in repeated incidents of abuse. The harsh treatment, which has resulted in criminal charges against seven soldiers, went well beyond the two deaths. In some instances, testimony shows, it was directed or carried out by interrogators to extract information. In others, it was punishment meted out by military police guards. Sometimes, the torment seems to have been driven by little more than boredom or cruelty, or both.” One female interrogator has what a colleague in a sworn statement calls a taste for humiliation; that interrogator is described as having stood on the neck of one prostrate detainee, and having kicked another detainee in the genitals. Another statement tells of a shackled prisoner being forced to kiss the boots of his interrogators. A third tells of a detainee forced to pick plastic bottle caps out of a drum mixed with excrement and water. Overall, the Army report concludes that many of the tactics used by interrogators and guards amounts to criminal assault. Pentagon spokesman Larry Di Rita says: “What we have learned through the course of all these investigations is that there were people who clearly violated anyone’s standard for humane treatment. We’re finding some cases that were not close calls.” Seven soldiers, all interrogators and guards of low rank, have been charged with crimes ranging from dereliction of duty to maiming and involuntary manslaughter; two others received reprimands, and 15 others named in the original report were cited as bearing probable criminal responsibility in the deaths. One of the interrogators charged with assaulting Dilawar, Sergeant Selena Salcedo, says: “The whole situation is unfair. It’s all going to come out when everything is said and done.”
Many Interrogators Redeployed to Iraq; Bagram Tactics Used at Abu Ghraib - The Army criminal investigation was conducted slowly. During the course of the investigation, many of the Bagram interrogators, including their operations officer, Captain Carolyn Wood, were redeployed to Iraq (see Mid-March 2003). Wood took charge of interrogations at Abu Ghraib prison and, according to Army inquiries, began using tactics “remarkably similar” to those employed at Bagram (see July 15, 2003 and (Early August 2003)). She received the Bronze Star for her actions (see January 22, 2003-May 8, 2003).
Serious Disparities between Investigative Results and Personnel Statements - In the aftermaths of the deaths, military officials made a number of unsupported claims. The deaths of both Dilawar and Habibullah were originally listed as due to natural causes even as military coroners ruled the deaths homicides. The American commander in Afghanistan at the time, Lieutenant General Daniel McNeill, said that he had no indication that the deaths were caused by abuses carried out by US soldiers; the methods used in the detainees’ interrogations were, McNeill said, “in accordance with what is generally accepted as interrogation techniques.”
Poorly Trained Interrogators - The report focuses on one group of poorly trained interrogators from the Army’s 519th Military Intelligence Brigade (see July 2002). After Bush’s decree that terror suspects have no rights under Geneva, the interrogators began pushing the envelope of acceptable interrogation techniques. They began employing “stress positions” that cause pain and suffering but not, presumably, actual injury. They began experimenting with longer and longer periods of sleep deprivation. One of the more popular methods is called in military jargon “Fear Up Harsh,” or as one soldier called it, “the screaming technique.” The technique is based on verbally and physically intimidating detainees, and often degenerates into screaming and throwing furniture. The noncommissioned officer in charge of the interrogators, Staff Sergeant Steven Loring, sometimes tried to curb his interrogators’ excesses, but, contradictorily, often refused to countenance “soft” interrogation techniques, and gave some of the most aggressive interrogators wide latitude. Sergeant James Leahy recalled, “We sometimes developed a rapport with detainees, and Sergeant Loring would sit us down and remind us that these were evil people and talk about 9/11 and they weren’t our friends and could not be trusted.” One of Loring’s favorites was Specialist Damien Corsetti, nicknamed “Monster,” a tall, bearded interrogator Loring jokingly nicknamed “the King of Torture.” One Saudi detainee told Army investigators that during one session, Corsetti pulled out his penis, shoved it in the Saudi’s face, and threatened to rape him. (The earlier investigation found cause to charge Corsetti with assault, maltreatment of a prisoner, and indecent acts; no charges were filed. Corsetti was fined and demoted for brutalizing a female prisoner at Abu Ghraib.) By August 2002, the 519th interrogators, joined by a group of reservists from a military police company, were routinely beating their prisoners, and particularly favored the “common peroneal strike,” a potentially disabling blow to the side of the leg just above the knee. The MPs later said that they never knew such physical brutality was not part of Army interrogation practices. “That was kind of like an accepted thing; you could knee somebody in the leg,” one of the MPs, Sergeant Thomas Curtis, later told investigators.
'Timmy' - Specialist Jeremy Callaway told investigators of one Afghan prisoner with apparently severe emotional and mental problems. The detainee would eat his own feces and mutilate himself with concertina wire. He quickly became a favorite target for some of the MPs, who would repeatedly knee him in the legs and, at least once, chained him with his arms straight up in the air. The MPs nicknamed him “Timmy” after an emotionally disturbed child in the “South Park” animated television show. According to Callaway, one of the guards who beat the prisoner also taught him to screech like the cartoon character. Eventually, “Timmy” was sent home. [New York Times, 5/20/2005]

Entity Tags: US Department of the Army, Jeremy Callaway, James Leahy, Dilawar, Daniel K. McNeill, Damien Corsetti, Carolyn A. Wood, Lawrence Di Rita, Mullah Habibullah, New York Times, Steven Loring, US Department of Defense, Selena Salcedo, Thomas Curtis

Timeline Tags: Torture of US Captives

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

Entity Tags: Office of Legal Counsel (DOJ), American Civil Liberties Union, US Department of Justice, Steven Bradbury

Timeline Tags: Civil Liberties

Philip Zelikow, the chief adviser to Secretary of State Condoleezza Rice (see February 28, 2005) and the former executive director of the 9/11 Commission (see Shortly Before January 27, 2003), writes a classified memo challenging the Justice Department’s legal justifications for its authorizations of torture. Zelikow writes his memo after gaining access to four secret memos from the Justice Department’s Office of Legal Counsel (see April 16, 2009), in his role as Rice’s policy representative to the National Security Council’s Deputies Committee. Rice and her legal adviser, John Bellinger, are the only others besides Zelikow to have been briefed on the memos. Zelikow was aware of what many of the suspected terrorists did, or were alleged to have done, through his experience on the 9/11 Commission. The evidence against most of them is “damning,” he will later write: “But the issue is not about who or what they are. It is about who or what we are.” In the memo, which he will publicly discuss four years later (see April 21, 2009), Zelikow focuses on three main areas of contention.
bullet First, the question should not be whether waterboarding (or any other particular technique) is torture, but on the idea of a program of authorized torture. The program used numerous well-planned, carefully considered methods of physical coercion to gain information from detainees, or as Zelikow will write, “to disorient, abuse, dehumanize, and torment individuals over time.” Waterboarding is only one of many objectionable, and illegal, techniques being used against prisoners.
bullet Second, the question of torture should not first be settled by lawyers. The moral and professional aspects of such an issue should be dealt with before asking lawyers to justify such actions. Better questions would be: Are these methods reliable in getting important information? And does the garnering of such information, even if such can be proven, justify the moral position of using torture? In 2009, Zelikow will write: “There is an elementary distinction, too often lost, between the moral (and policy) question—‘What should we do?’—and the legal question: ‘What can we do?’ We live in a policy world too inclined to turn lawyers into surrogate priests granting a form of absolution. ‘The lawyers say it’s OK.’ Well, not really. They say it might be legal. They don’t know about OK.”
bullet Finally, the legal opinions themselves have what Zelikow calls “grave weaknesses.” Many of the OLC opinions, particularly the May 30, 2005 opinion (see May 30, 2005), “presented the US government with a distorted rendering of relevant US law.” He goes on: “The case law on the ‘shocks the conscience’ standard for interrogations would proscribe the CIA’s methods,” in his view. Moreover, the OLC position ignores “standard 8th Amendment ‘conditions of confinement’ analysis (long incorporated into the 5th Amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.” And, while “the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques… other kinds of cruel treatment should be barred categorically under US law—whatever the alleged gain.” The logical extension of the OLC’s position is that since the “substantive standard is the same as it is in analogous US constitutional law… the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail. In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, waterboarded, and all the rest—if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.”
White House Orders Copies Destroyed - Zelikow will admit he has no standing to offer a legal opinion. However, he will write: “I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo.” Zelikow will say he believes that copies still exist in State Department archives. [Foreign Policy, 4/21/2009; Politico, 4/21/2009]

Entity Tags: Office of Legal Counsel (DOJ), Central Intelligence Agency, Bush administration (43), 9/11 Commission, Condoleezza Rice, National Security Council, US Department of State, Philip Zelikow, John Bellinger, US Department of Justice

Timeline Tags: Torture of US Captives

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

Entity Tags: Kenneth Starr, Richard (“Dick”) Cheney, National Security Agency, Philip Zelikow, US Department of Justice, Steven Bradbury, Scott Horton, Vacancies Reform Act, James B. Comey Jr., Jack Goldsmith, Office of Legal Counsel (DOJ), Harper’s Magazine, Clarence Thomas, Central Intelligence Agency, Bush administration (43), Daniel Levin, Alberto R. Gonzales, Harriet E. Miers, Geneva Conventions, Douglas Kmiec, David S. Addington, George Herbert Walker Bush

Timeline Tags: Civil Liberties

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

Entity Tags: The Shepperd Group, CNN, Donald Shepperd, US Department of Defense

Timeline Tags: US Military, Torture of US Captives, Iraq under US Occupation, Domestic Propaganda

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

Entity Tags: US Department of Defense, CNN, Donald Shepperd

Timeline Tags: US Military, Torture of US Captives, Iraq under US Occupation, Domestic Propaganda

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

Entity Tags: US Department of Defense, Dallas Lawrence, Fox News, FrontPage Magazine, Gordon Cucullu, Jay W. Hood

Timeline Tags: US Military, Torture of US Captives, Iraq under US Occupation, Domestic Propaganda

The Pentagon, tracking every bit of media coverage provided by the “independent military analysts” who are part of its Iraq propaganda program (see April 20, 2008 and Early 2002 and Beyond), is particularly pleased with the results of its half-day tour of Guantanamo for selected analysts (see June 24-25, 2005). Its tracking (see 2005 and Beyond) finds that Lieutenant Colonel Gordon Cucullu (see June 27, 2005) receives the most coverage during the almost two weeks after the tour, followed by Major General Donald Shepperd (see June 24-27, 2005). In all, the analysts made 37 media appearances. They emphasized the following talking points:
Prisoner/Guard Abuse -
bullet “Most abuse is either toward US military personnel and/or between prisoners.”
bullet “US military guards are regularly threatened by prisoners.”
bullet “Some analysts stated there may have been past abuses at Gitmo but not now.”
'Prisoner Interrogations' -
bullet “Interrogators are building relationships with prisoners, not torturing them.”
bullet “We are still gaining valuable information from prisoners.”
bullet Interrogations are very professionally run.”
'Quality of Prisoner Care' -
bullet “Prisoners are given excellent treatment, including provision of any and all religious paraphernalia.”
bullet “Special dietary requests are routinely granted.”
'Closing Gitmo' -
bullet “Gitmo exceeds Geneva Convention requirements.”
bullet “We should not close this facility and let dangerous terrorists out.” [Salon, 5/9/2008]

Entity Tags: Gordon Cucullu, Geneva Conventions, Donald Shepperd, US Department of Defense

Timeline Tags: US Military, Torture of US Captives, Iraq under US Occupation, Domestic Propaganda

The Bagram escapees, clockwise from top left: Muhammad Jafar Jamal al-Kahtani, Abdullah Hashimi, Omar al-Faruq, and Sheikh Abu Yahia al-Libi.The Bagram escapees, clockwise from top left: Muhammad Jafar Jamal al-Kahtani, Abdullah Hashimi, Omar al-Faruq, and Sheikh Abu Yahia al-Libi. [Source: Ahmad Masood / Reuters]Four al-Qaeda operatives escape the high-security US-controlled prison in Bagram, Afghanistan. The four men—Omar al-Faruq, Muhammad Jafar Jamal al-Kahtani, Abdullah Hashimi, and Sheikh Abu Yahia al-Libi (a.k.a. Mahmoud Ahmad Muhammad)—were all being held in a remote cell for troublesome prisoners. They allegedly pick the lock on their cell, take off their bright orange uniforms, walk through the prison under the cover of darkness, and then crawl over a faulty wall to where a getaway car is waiting for them. One US official later says: “It is embarrassing and amazing at the same time. It was a disaster.” [New York Times, 12/4/2005] The Independent will later comment: “The escape was so remarkable that serious doubts have been raised over whether it can possibly have happened the way it is described. At the very least, analysts have suggested, the four escapees must have had help on the inside, in order to know about the gap in the fence, and to find their way there so easily through a maze of buildings.” [Independent, 9/27/2006] Al-Faruq is considered an important al-Qaeda leader who served as a link between al-Qaeda and Jemaah Islamiyah in Southeast Asia until he was captured in 2002 (see June 5, 2002). Al-Kahtani is also considered an important al-Qaeda operative, but not on the same level as al-Faruq. Both of them were scheduled to be transported to Guantanamo.
Deliberately Let Go? - In late 2005, former Bagram prisoner Moazzam Begg will claim that he heard in Bagram that US intelligence officers had proposed staging an escape to release a detainee who would act as a double agent against al-Qaeda. US officials strongly deny that that happened with this escape.
US Hides Identities of Some Escapees - The US soon releases pictures of the four escapees, but strangely does not identify which escapees match which prisoners. Furthermore, as the New York Times will later note, “For reasons they have not explained, the military authorities gave different names for [al-Faruq and al-Kahtani] in announcing the escape.” [New York Times, 12/4/2005] The fact that al-Faruq was one of the escapees only comes out during a November 2005 US military trial of a sergeant who had been accused of mistreating him in 2002.
Fates of Escapees - Al-Faruq will later release a video on the Internet boasting of his role in the escape. He will be killed in Iraq in 2006 (see September 25, 2006). [New York Times, 9/26/2006] Al-Kahtani will be recaptured by US forces in Khost, Afghanistan, in December 2006. He is a Saudi and will be extradited to Saudi Arabia in May 2007. [Agence France-Presse, 5/7/2007] Sheikh Abu Yahia al-Libi will have what the New York Times later will call a “meteoric ascent within the leadership of al-Qaeda” in the three years after his escape. He will become very popular within Islamist militant circles for his propaganda videos. In 2008, Jarret Brachman, a former CIA analyst, will say of him: “He’s a warrior. He’s a poet. He’s a scholar. He’s a pundit. He’s a military commander. And he’s a very charismatic, young, brash rising star within [al-Qaeda], and I think he has become the heir apparent to Osama bin Laden in terms of taking over the entire global jihadist movement.” As of 2008, he and Abdullah Hashimi apparently remain free. [New York Times, 4/4/2008]

Entity Tags: Sheikh Abu Yahia al-Libi, Muhammad Jafar Jamal al-Kahtani, Jarret Brachman, Abdullah Hashimi, Omar al-Faruq, Moazzam Begg

Timeline Tags: Torture of US Captives, Complete 911 Timeline, War in Afghanistan

Senator John McCain (R-AZ) introduces an amendment to the annual legislation to fund the Defense Department. McCain’s amendment, co-sponsored by Senate Armed Services Committee chairman John Warner (R-VA) and Senator Lindsey Graham (R-SC), a former military lawyer, states that military interrogators cannot exceed the limits on detainee treatment set forth in the US Army Field Manual. In essence, the amendment would prohibit the use of harsh interrogation techniques that many, including McCain, feel constitute torture. The Field Manual limits were specifically written to comply with the Geneva Conventions. The amendment also prohibits US officials, including CIA agents, from inflicting not just torture but any form of “cruel, inhuman, and degrading treatment” on anyone in their custody, no matter where in the world the prisoner is being kept. The amendment, later known as the McCain Amendment or the McCain Torture Ban, becomes the subject of fierce, largely private negotiations between McCain and the White House. Vice President Cheney quickly lobbies friendly Republicans in Congress to oppose the amendment, and has private meetings with Warner and McCain. At Cheney’s behest, Senate Majority Leader Bill Frist (R-TN) withdraws the entire bill from consideration rather than allow it to pass with the McCain amendment attached. [Savage, 2007, pp. 220-221]

Entity Tags: Geneva Conventions, Bill Frist, Central Intelligence Agency, Detainee Treatment Act, Richard (“Dick”) Cheney, John McCain, US Department of Defense, Lindsey Graham, John W. Warner

Timeline Tags: Civil Liberties

Lawyers refile a civil suit against Secretary of Defense Donald Rumsfeld on behalf of “enemy combatant” Ali Saleh Kahlah al-Marri, who has been in US custody since late 2001 (see December 12, 2001) and was designated as an enemy combatant a year and a half later (see June 23, 2003). Al-Marri is asking the federal district court in South Carolina to declare unconstitutional what he, through his lawyers, calls the severe and unnecessary deprivations and restrictions to which he has been subjected since he was placed in military custody. Al-Marri had already filed a suit challenging the legality of his detention on habeas corpus grounds, a lawsuit that was ultimately dismissed (see October 4, 2004). Human Rights Watch director Jamie Fellner says: “It is bad enough that al-Marri has been held indefinitely without charges and incommunicado. Now we learn that his life in the brig has also been one of cruelty and petty vindictiveness.” [Human Rights Watch, 8/8/2005]
Allegations of Cruel Treatment - Al-Marri is currently the only known person designated as an enemy combatant still in legal limbo. He has been in solitary confinement since his December 2001 arrest, and in Guantanamo since mid-2003. Al-Marri was sent to the Charleston, South Carolina Naval brig once he was designated as an enemy combatant, isolated in a lightless cell hardly larger than a closet, and since then, his lawyers say, he has been subjected to deprivations of the most basic kinds, including shoes, socks, blankets, toilet paper, toothpaste, and sunlight. Sometimes he is denied water. During the day his mattress is removed. His captors often turn the temperature down in his cell to near-freezing conditions, but do not give him extra clothes or blankets. He is provided three short “recreation” sessions a week—in handcuffs and leg irons—but those are often denied him. He is allowed three showers a week, again in handcuffs and leg irons. He has been denied access to medical care. A devout Muslim, he is not given the basic necessities for religious observances—his captors even refuse to tell him which way to face towards Mecca, an essential element of daily devotions. Letters from his wife and children are heavily censored. Privileged notes he has written to his lawyer have been confiscated and not returned. He is subjected to constant video surveillance. He was repeatedly interrogated, his lawyers say, but has not been interrogated for a year. His captors have repeatedly threatened his family, telling him that he would be sent to Egypt or Saudi Arabia, where he would be tortured and sodomized and his wife raped in front of him. According to the lawsuit, his captors falsely told him that, because of him, his father and four of his brothers were in jail, and that if he cooperated, they would be released.
Commentary - “Mr. al-Marri has been detained at a naval brig for two-and-a-half years in cell that is 9 feet by 6 feet,” says law professor Jonathan Hafetz, who will become one of al-Marri’s lawyers. “During that time he has long been denied books, news, any contact with the outside world other than his attorneys, including his wife and five children, who he has neither seen nor spoken to. I mean things that we don’t even do to people who’ve been convicted of crimes.” Fellner says: “It’s the combination of restrictions imposed on al-Marri that offends basic norms of decency. There is no security justification for them. The Pentagon apparently believes it can hold him under any conditions they choose for as long as they choose.” [Human Rights Watch, 8/8/2005; Associated Press, 8/9/2005; Al-Marri v. Rumsfeld, 8/9/2005 pdf file; CNN, 12/13/2005]
Military Denies Mistreatment - The military denies that al-Marri has been mistreated. [CNN, 12/13/2005] Defense spokesman Navy Lieutenant Commander J. D. Gordon says in 2007, “The government in the strongest terms denies allegations of torture, allegations made without support and without citing a shred of record evidence. It is our policy to treat all detainees humanely.” [Progressive, 3/2007]

Entity Tags: Jamie Fellner, Bush administration (43), Ali Saleh Kahlah al-Marri, Donald Rumsfeld, J.D. Gordon, US Department of Defense, Mohammed al-Marri, Human Rights Watch, Jonathan Hafetz

Timeline Tags: Torture of US Captives, Civil Liberties

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

Entity Tags: Patrick F. Philbin, Jack Goldsmith, Charlie Savage, US Department of Justice, James B. Comey Jr.

Timeline Tags: Civil Liberties

Senator Pete Domenici (R-NM) contacts Attorney General Alberto Gonzales (see February 14, 2005), by conference call, to complain about the “job performance” of New Mexico’s US Attorney, David Iglesias (see October 18, 2001). Meeting participants include Domenici, Gonzales’s deputy chief of staff Kyle Sampson, and Assistant Attorney General William Moschella. According to Moschella’s day planner, Gonzales will call Domenici, apparently after the telephone call. Domenici cites “public corruption cases” as part of his concerns with Iglesias’s performance. [US Department of Justice, 3/13/2007 pdf file; US Department of Justice, 3/23/2007 pdf file; US Department of Justice, Office of the Inspector General, 9/29/2008; Talking Points Memo, 2011] It is not known if previous complaints regarding Iglesias from New Mexico’s Republican Party chairman Allen Weh (see May 6, 2005 and After) are part of the reason why Domenici is complaining about Iglesias. Domenici has received at least one complaint Weh sent to the White House (see August 9, 2005).

Entity Tags: D. Kyle Sampson, Alberto R. Gonzales, David C. Iglesias, Pietro V. (“Pete”) Domenici, William E. Moschella, Allen Weh

Timeline Tags: Civil Liberties

John Roberts.John Roberts. [Source: In These Times]John Roberts is approved by the Senate to become the new chief justice of the US Supreme Court, replacing the recently deceased William Rehnquist (see September 5, 2005). Roberts, who once clerked for Rehnquist while Rehnquist was an associate justice, also served in the Reagan Justice Department and as an associate counsel to then-President Reagan. He was deputy solicitor general in the first Bush administration. George W. Bush appointed him to the DC Circuit Court in 2001. [White House, 9/29/2005] Roberts was originally nominated to succeed the retiring Sandra Day O’Connor, but when Rehnquist died, Bush quickly withdrew the nomination for associate justice and refiled Roberts’s name for chief justice.
Characteristics and History - Roberts appeals to conservatives for a number of reasons; he has a powerful legal intellect, is soft-spoken, personable, and telegenic, and has not been outspoken about his views on issues like abortion and the right to privacy. Law professor Stephen Wermiel, who knows Roberts well, said in July that Roberts is not “somebody who… comes off as gruff or overbearing, which some people will recall was a factor in the [Robert] Bork hearings in 1987” (see July 1-October 23, 1987). Wermiel called Roberts’s nomination “a stroke of brilliance on the White House’s part.” One area of controversy surrounds Roberts’s work with Governor Jeb Bush of Florida during the bitterly contested 2000 presidential election, where Roberts helped construct the strategies used in the Bush v. Gore case that awarded George W. Bush the presidency. Another is Roberts’s membership in the Federalist Society, an organization of conservative activist judges, lawyers, and legal thinkers. A third is his advocacy, during his time with the first Bush administration, for scrapping decades of law providing for the separation of church and state in order to allow prayer in public schools. [National Public Radio, 7/20/2005] Four days before President Bush nominated him to the Court, Roberts voted in favor of upholding the Bush administration’s assertions about its wartime powers in the case of Hamdan v. Rumsfeld (see June 30, 2006), ruling that Bush need not consult Congress before setting up military commissions, and ruling that Bush is not bound by the strictures of the Geneva Convention. Liberals are unhappy with his stance against abortion, his representation as a private attorney of corporate mining interests seeking to dodge environmental regulations and of businesses trying to evade affirmative action requirements, as well as his attempts to curb environmentalists’ efforts to save endangered species. In 2007, reporter Charlie Savage will write that while progressives and liberals busily attacked Roberts for his positions on various “hot-button” issues, “[a]lmost lost amid the hubbub was” Roberts’s “unwavering commitment to the [expansion of] presidential power,” dating back to his 1980-81 clerkship under Rehnquist and his tenure as a White House lawyer under Ronald Reagan (see June-July 1983, October 1983, February 13, 1984, and May 16, 1984). [Savage, 2007, pp. 251-255]
Quick Confirmation - The Senate agreed to expedite Roberts’s confirmation process in order to allow him to preside over the next session of the Supreme Court in October, and so gave its members little time to peruse his record. Roberts sailed through the Senate Judiciary Committee hearings, and is confirmed by a 78-22 vote. Roberts hit a brief snag when he divulged that he had met with Attorney General Alberto Gonzales just six days before hearing oral arguments in the Hamdan case, had met with Vice President Cheney and a select coterie of top White House officials while considering his verdict, and had met with Bush for the president’s final approval on the Court nomination the same day that he handed down his favorable ruling. Though 22 Democrats vote against his confirmation, because Roberts’s ascension to the Court does not change the ideological balance among the nine justices (Roberts is replacing the equally conservative Rehnquist), Senate Democrats decided not to filibuster his nomination. [Dean, 2007, pp. 154-155; Savage, 2007, pp. 252]

Entity Tags: US Department of Justice, Stephen Wermiel, Senate Judiciary Committee, Federalist Society, George W. Bush, Charlie Savage, John G. Roberts, Jr, US Supreme Court

Timeline Tags: Civil Liberties

Senator John McCain (R-AZ), an ardent opponent of torture by US officials (see November 21, 2005), continues to press an amendment to a $440 billion defense appropriations bill that prohibits cruel, inhuman, and degrading treatment of prisoners held in US captivity (see July 24, 2005 and After). The bill also posits the US Army Field Manual as the uniform standard for interrogations by any Defense Department personnel. The Field Manual is being revised, and Pentagon sources have claimed the revisions will include a section on the importance of following the Geneva Conventions. The amendment is facing stiff opposition from the White House, which asserts that it would encroach on the power of the president as the commander in chief, and would threaten national security by reducing the ability of military interrogators to obtain critical intelligence from prisoners. On the floor of the Senate, McCain reads a letter from former Secretary of State Colin Powell, who had opposed Vice President Cheney on the issue of torture. Powell writes: “Our troops need to hear from Congress. The world will note that America is making a clear statement with respect to the expected future behavior of our soldiers.” McCain himself calls the White House’s legal theories on torture “strange,” and warns that enemies could use America’s justifications of torture as justifications for the torture of US captives. “We are Americans and we hold ourselves to humane standards of treatment of people no matter how evil or terrible they may be,” he says. Terrorists “don’t deserve our sympathy. But this isn’t about who they are. This is about who we are. These are the values that distinguish us from our enemies.” The White House continues to oppose the amendment. President Bush threatens to veto the entire bill, and Cheney circulates pro-torture talking points to friendly Congressional Republicans. Cheney, with CIA Director Porter Goss in tow, asks McCain to exempt CIA officials from the anti-torture amendment at the discretion of the president; McCain refuses. McCain is bolstered by a letter signed by over two dozen retired generals urging Congress to pass the amendment, including Powell and former Joint Chiefs chairman General John Shalikashvili. The amendment passes the Senate 90 to nine. However, the House leadership, steered by Speaker Dennis Hastert (R-IL), refuses to allow the amendment into the House version by refusing to let the House vote on it at all. It will take a House-Senate conference committee to decide the fate of the amendment. [Dubose and Bernstein, 2006, pp. 195; Savage, 2007, pp. 221]

Entity Tags: George W. Bush, Bush administration (43), Colin Powell, Dennis Hastert, US Department of Defense, Richard (“Dick”) Cheney, John McCain, Porter J. Goss, John M. Shalikashvili

Timeline Tags: Civil Liberties

In a speech, President Bush lists ten terrorist plots the US has supposedly foiled since 9/11, as well as five “casings and infiltrations.” Here are the plots, exactly as they are described in a White House press release, rearranged into a rough chronological order:
West Coast Airliner Plot - In mid-2002 the US disrupted a plot to attack targets on the West Coast of the United States using hijacked airplanes. The plotters included at least one major operational planner involved in planning the events of 9/11.
Jose Padilla Plot - In May 2002 the US disrupted a plot that involved blowing up apartment buildings in the United States. One of the plotters, Jose Padilla, also discussed the possibility of using a “dirty bomb” in the US.
2002 Straits of Hormuz Plot - In 2002 the US and partners disrupted a plot to attack ships transiting the Straits of Hormuz.
2002 Arabian Gulf Shipping Plot - In late 2002 and 2003 the US and a partner nation disrupted a plot by al-Qaeda operatives to attack ships in the Arabian Gulf.
2003 Karachi Plot - In the spring of 2003 the US and a partner disrupted a plot to attack Westerners at several targets in Karachi, Pakistan.
East Coast Airliner Plot - In mid-2003 the US and a partner disrupted a plot to attack targets on the East Coast of the United States using hijacked commercial airplanes.
2003 Tourist Site Plot - In 2003 the US and a partner nation disrupted a plot to attack a tourist site outside the United States.
Heathrow Airport Plot - In 2003 the US and several partners disrupted a plot to attack Heathrow Airport using hijacked commercial airliners. The planning for this attack was undertaken by a major 9/11 operational figure.
2004 UK Plot - In the spring of 2004 the US and partners, using a combination of law enforcement and intelligence resources, disrupted a plot to conduct large-scale bombings in [Britain].
2004 [British] Urban Targets Plot - In mid-2004 the US and partners disrupted a plot that involved urban targets in [Britain]. These plots involved using explosives against a variety of sites.
Here are the five additional “casings and infiltrations”:
2001 Tasking - In 2001, al-Qaeda sent an individual to facilitate post-September 11 attacks in the US. US law enforcement authorities arrested the individual.
2003 Tasking - In 2003, an individual was tasked by an al-Qaeda leader to conduct reconnaissance on populated areas in the US.
Gas Station Tasking - In approximately 2003, an individual was tasked to collect targeting information on US gas stations and their support mechanisms on behalf of a senior al-Qaeda planner.
Iyman Faris and the Brooklyn Bridge - In 2003, and in conjunction with a partner nation, the US government arrested and prosecuted Iyman Faris, who was exploring the destruction of the Brooklyn Bridge in New York. Faris ultimately pleaded guilty to providing material support to al-Qaeda and is now in a federal correctional institution.
US Government & Tourist Sites Tasking - In 2003 and 2004, an individual was tasked by al-Qaeda to case important US Government and tourist targets within the United States. [White House, 10/6/2005]
However, later in the month the Washington Post publishes a story questioning the importance of most of these plots. The article states that the plot list “has confused counterterrorism experts and officials, who say they cannot distinguish between the importance of some incidents on the list and others that were left off. Intelligence officials who spoke on the condition of anonymity said the White House overstated the gravity of the plots by saying that they had been foiled, when most were far from ready to be executed. Others noted that the nation’s color-coded threat index was not raised from yellow, or ‘elevated’ risk of attack, to orange, or ‘high’ risk, for most of the time covered by the incidents on the list.” An anonymous former CIA counterterrorism official tells the Post that Bush made it “sound like well-hatched plans… I don’t think they fall into that category.” Another anonymous counterterrorism official says, “We don’t know how they came to the conclusions they came to… It’s safe to say that most of the [intelligence] community doesn’t think [the list is] worth very much.” [Washington Post, 10/23/2005]

Entity Tags: Al-Qaeda, Bush administration (43), George W. Bush

Timeline Tags: Complete 911 Timeline

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

Entity Tags: Jose Padilla, J. Michael Luttig

Timeline Tags: Civil Liberties

The Justice Department decides not to prosecute in most cases where detainees were abused and killed by the CIA. The cases, of which there are apparently eight, had been referred to the department by the CIA’s inspector general (see (August 2004)) and were investigated primarily by the US Attorneys Office for the Eastern District of Virginia, although officials at department headquarters in Washington are also involved in the decision not to prosecute. Although some of the cases are still technically under review at this time, the department indicates it does not intend to bring charges. [New York Times, 10/23/2005] The cases include:
bullet The death of Iraqi prisoner Manadel al-Jamadi in CIA custody in November 2003 (see Between 4:30 a.m. and 5:30 a.m. November 4, 2003 and (7:00 a.m.) November 4, 2003);
bullet The asphyxiation of Major General Abed Hamed Mowhoush in Iraq, also in November 2003 (see November 24 or 25, 2003 and November 26, 2003). This incident involved the military, as well as at least one CIA contractor; [New York Times, 10/23/2005]
bullet The intimidation of al-Qaeda leader Abd al-Rahim al-Nashiri by a CIA officer named “Albert” using a gun and drill (see September 11, 2003).
bullet The death of detainee Gul Rahman, who froze to death at the Salt Pit prison in Afghanistan (see November 20, 2002). The case was examined by prosecutors, but, in the end, a recommendation not to prosecute the officer who caused the detainee to die is made. [Washington Post, 9/19/2009] The officer’s first name is not known, although his last name is Zirbel. [Mahoney and Johnson, 10/9/2009, pp. 29 pdf file] The decision is made because prosecutors conclude that the prison was outside the reach of US law; although the CIA funded it and vetted its Afghan guards, it was technically an Afghan prison. In addition, it is unclear whether Rahman, who was captured in Pakistan and then taken to Afghanistan, would have died from injuries sustained during his capture, rather than by freezing. Although hypothermia was listed as the cause of death in the autopsy, the body was not available to investigators. According to the Washington Post, “questions remain whether hypothermia was used as a cover story in part to protect people who had beaten the captive.” However, according to a “senior official who took part in the review,” the decision not to prosecute in this case is not initially that clear, and an indictment is considered. However, the prosecutors decide not to press charges against Zirbel and a memo explaining this decision is drafted. An official involved in the review will later say there is “absolutely no pressure” from the Justice Department’s management to decide not to prosecute. However, a later report by the Post will indicate there may be a split among prosecutors over the decision, and that a political appointee, US Attorney for the Eastern District of Virginia Paul McNulty, assesses the case. McNulty will be nominated for the position of deputy attorney general around this time (see October 21, 2005). [Washington Post, 9/19/2009]
However, one CIA employee, a contractor named David Passaro, has been charged with detainee abuse (see June 18-21, 2003). [New York Times, 10/23/2005] The department will begin a second review of some or all of these cases in 2009 (see August 24, 2009).

Entity Tags: Matthew Zirbel, Paul J. McNulty, Gul Rahman, Central Intelligence Agency, Abed Hamed Mowhoush, Manadel al-Jamadi, US Department of Justice

Timeline Tags: Torture of US Captives

Congress passes a law requiring the Customs and Border Patrol to relocate its illegal immigrant checkpoints near Tucson, Arizona, every seven days in order to prevent smugglers from being able to avoid those checkpoints. President Bush signs the law, then issues a signing statement saying that the Border Patrol should view the “relocation provision as advisory rather than mandatory” because, in his view, only the president has the constitutional authority to decide how to deploy law enforcement officers. As a result of Bush’s signing statement, Border Patrol authorities disobey the law, and explain to investigators from the Government Accountability Office that the law is not mandatory, but “advisory.” White House spokesman Tony Fratto later says in response to the Border Patrol’s refusal to obey the law: “The signing statements certainly do and should have an impact. They are real.” [Savage, 2007, pp. 242-243; Boston Globe, 6/19/2007]

Entity Tags: US Customs and Border Protection, George W. Bush, Tony Fratto, Government Accountability Office

Timeline Tags: Civil Liberties

The White House announces that President Bush will nominate Paul McNulty to be the next deputy attorney general. McNulty is currently the US Attorney for the Eastern District of Virginia, which the Washington Post will describe as the “central legal front in the Bush administration’s anti-terrorism strategy.” He was involved in the prosecutions of “American Taliban” John Walker Lindh and Zacarias Moussaoui, sometimes referred to as a candidate for the “20th hijacker” on 9/11. McNulty’s nomination comes after the previous nominee, Timothy E. Flanigan, withdrew his name from consideration at the start of the month due to opposition in the Senate. McNulty will keep his current job and serve as acting deputy attorney general until confirmed by the Senate. [Washington Post, 10/22/2005] McNulty recently took a decision not to prosecute CIA officers who abused and killed detainees in some cases referred to his office by the agency’s inspector general (see (August 2004) and Mid-October 2005).

Entity Tags: Paul J. McNulty, US Department of Justice

Timeline Tags: Civil Liberties

The American Civil Liberties Union (ACLU) releases a report that documents the death of 44 detainees in Iraq and Afghanistan while in US custody. Most died during interrogation. The report, based on government reports (including autopsy reports, death reports, and other documents turned over to the ACLU through a Freedom of Information Act request), finds that “detainees were hooded, gagged, strangled, beaten with blunt objects, subjected to sleep deprivation, and to hot and cold environmental conditions.” ACLU director Anthony Romero says: “There is no question that US interrogations have resulted in deaths. High-ranking officials who knew about the torture and sat on their hands and those who created and endorsed these policies must be held accountable. America must stop putting its head in the sand and deal with the torture scandal that has rocked our military.” The detainees died during or after interrogations by Navy SEALs, military intelligence officials, and “OGA” (Other Governmental Agency) personnel, a designation the ACLU says is usually used to refer to the CIA. Twenty-one of the 44 deaths were homicides, the ACLU says. Eight died from abusive techniques; autopsy reports show the causes of death were “strangulation,” “asphyxiation,” and “blunt force injuries.” Most of the “natural deaths” were attributed to what government doctors termed “Arteriosclerotic Cardiovascular Disease.” The ACLU notes that the report proves that detainees died not only at the hands of CIA personnel, but from abuse and maltreatment by Navy SEALs and military intelligence officials as well. The report cites, among other deaths, an Iraqi prisoner who died from hypothermia (see April 5, 2004), an Iraqi prisoner who was strangled and beaten to death (see January 9, 2004), an Iraqi general who died from smothering and “chest compressions” (see November 26, 2003), an Iraqi prisoner beaten and smothered to death (see Between 4:30 a.m. and 5:30 a.m. November 4, 2003), two Afghani civilians beaten to death by US soldiers (see November 6, 2003 and December 10, 2002), and an older Iraqi man strangled to death while in US custody (see June 5, 2003). ACLU lawyer Amrit Singh says: “These documents present irrefutable evidence that US operatives tortured detainees to death during interrogations. The public has a right to know who authorized the use of torture techniques and why these deaths have been covered up.” [American Civil Liberties Union, 10/24/2005]

Entity Tags: US Department of Defense, American Civil Liberties Union, Amrit Singh, Anthony D. Romero, Central Intelligence Agency

Timeline Tags: Torture of US Captives

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

Entity Tags: Saddam Hussein, US Department of State, Theodore (“Ted”) Olson, US Department of Justice, US Department of Defense, Ronald Reagan, Lewis (“Scooter”) Libby, National Security Council, Bruce Fein, Bradford Berenson, 9/11 Commission, Richard (“Dick”) Cheney, David S. Addington, John Bellinger, Jack Goldsmith, Lawrence Wilkerson, John C. Yoo, Valerie Plame Wilson

Timeline Tags: Civil Liberties, Niger Uranium and Plame Outing

The Central Intelligence Agency destroys videotapes of the interrogations of two high-ranking detainees, Abu Zubaida and Abd al-Rahim al-Nashiri, which were made in 2002 (see Spring-Late 2002). One anonymous senior intelligence official later claims that “Several hundred hours” of videotapes are destroyed. [Washington Post, 12/18/2007] The tapes are destroyed at the CIA station in Thailand by station chief Michael Winograd, as Zubaida and al-Nashiri apparently were tortured at a secret CIA prison in that country. [Newsweek, 6/28/2008; Associated Press, 7/26/2010] The decision to destroy the tapes is apparently made by Jose Rodriguez, chief of the CIA’s Directorate of Operations, despite previous advice not to destroy them (see November 2005). However, some accounts will suggest that Rodriguez received clearance to destroy the tapes (see December 7, 2007). [New York Times, 12/8/2007] The CIA’s treatment of detainees has recently come under increased scrutiny. As the Wall Street Journal will later remark, “the Abu Ghraib prison pictures were still fresh, the existence of secret CIA prisons had just been revealed, and politicians on Capitol Hill were talking about curtailing ‘extreme techniques,’ including the Central Intelligence Agency’s own interrogation tactics.” [Wall Street Journal, 12/10/2007] Beginning on November 2, 2005, there are some pivotal articles revealing details about the CIA’s handling of detainees, suggesting that some of them were illegally tortured (see November 2-18, 2005). According to a 2007 statement by future CIA Director Michael Hayden, the tapes are destroyed “in the absence of any legal or internal reason to keep them” and because they apparently pose “a serious security risk”; if they were leaked, they could be used for retaliation by al-Qaeda and its sympathizers. [Central Intelligence Agency, 12/6/2007] However, this rationale will be questioned when the destruction is revealed in late 2007 (see December 6, 2007). Senator Carl Levin (D-MI) will call this “a pathetic excuse.… You’d have to burn every document at the CIA that has the identity of an agent on it under that theory.” CBS News will offer an alternative explanation, saying that the tapes are destroyed “to protect CIA officers from criminal prosecution.” [CBS News, 12/7/2007] CIA Director Porter Goss and the CIA’s top lawyer, John Rizzo, are allegedly not notified of the destruction in advance, and Rizzo will reportedly be angry at this failure. [New York Times, 12/8/2007] But Newsweek will later claim that Goss and Rizzo were involved in extensive discussions with the White House over what to do with the tapes. Goss supposedly thought there was an understanding the tapes would be saved and is upset to learn they have been destroyed (see Between 2003-Late 2005 and Before November 2005). [Newsweek, 12/11/2007] Congressional officials responsible for oversight are not informed for a year (see March 14, 2007). A White House spokeswoman will say that President Bush has “no recollection” of being made aware of the tapes’ destruction before 2007 (see December 11, 2007). It is also unclear whether the Justice Department is notified in advance or not. [New York Times, 12/8/2007] The CIA still retains tapes of interrogations of at least one detainee (see September 19 and October 18, 2007).

Entity Tags: Abd al-Rahim al-Nashiri, Abu Zubaida, Jose Rodriguez, Jr., CIA Bangkok Station, John Rizzo, Porter J. Goss, Michael K. Winograd, Central Intelligence Agency

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

Following a request that the CIA be exempted from a US ban on torture, claims about alleged CIA mistreatment of prisoners begin to appear in the media, apparently fueled by CIA employees unhappy with the practices the CIA is employing. On November 2, the Washington Post reveals information about the CIA’s network of secret prisons, including facilities in Europe, which is kept secret from “nearly all members of Congress charged with overseeing the CIA’s covert actions.” The rationale for the policy is that the CIA apparently needs to hold people without the restrictions imposed by the US legal system, in order to keep the country safe. Detainees are said to be tortured, and this is not only questionable under US law, but, in some cases, against the law of the host country. [Washington Post, 11/2/2005] On November 9, the New York Times reveals that in 2004, the CIA’s Inspector General secretly concluded that the CIA’s aggressive interrogation techniques in use up until that time were likely in violation of a 1994 international treaty against torture signed by the US (see May 7, 2004). [New York Times, 11/9/2005] After the network is revealed, there is much interest in what actually goes on in it and more important details are uncovered by ABC News on November 18. Apparently, the CIA’s interrogation techniques have led to the death of one detainee and include sleep deprivation, physical violence, waterboarding, and leaving prisoners in cold cells (see Mid-March 2002). The intelligence generated by these techniques is said to be questionable, and one source says: “This is the problem with using the waterboard. They get so desperate that they begin telling you what they think you want to hear.” [ABC News, 11/18/2005] Some videotapes of CIA interrogations of detainees are destroyed this same month, although what date this happens exactly is unclear (see November 2005). The CIA is also so alarmed by these revelations that it immediately closes its secret prisons in Eastern Europe and opens a new one in a remote section of the Sahara desert (see November 2005).

Entity Tags: Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Larry Wilkerson, the former chief of staff to former Secretary of State Colin Powell, says that he has seen documents that show a “visible audit trail” that links the practice of abuse and torture of prisoners by US soldiers directly back to the office of Vice President Dick Cheney. “There’s no question in my mind,” he says, “where the philosophical guidance and the flexibility in order to [torture prisoners] originated—in the vice president of the United States’ office.” Wilkerson, while in Powell’s office, had access to a raft of documents concerning the allegations of prisoner abuse. He says that Cheney and Defense Secretary Donald Rumsfeld led a quiet push to deny prisoners Geneva Convention protections. According to Wilkerson, Cheney’s then-chief counsel, David Addington (now Cheney’s chief of staff—see October 28, 2005), helped begin the process. Addington “was a staunch advocate of allowing the president in his capacity as commander in chief to deviate from the Geneva Conventions.” Cheney, Rumsfeld, Addington, and others “began to authorize procedures within the armed forces that led to, in my view, what we’ve seen,” Wilkerson says. The Pentagon’s contentions that such prisoner abuses, particularly at Abu Ghraib, were limited to a few soldiers of low rank are false, he says: “I’m privy to the paperwork, both classified and unclassified, that the secretary of state asked me to assemble on how this all got started, what the audit trail was, and when I began to assemble this paperwork, which I no longer have access to, it was clear to me that there was a visible audit trail from the vice president’s office through the secretary of defense down to the commanders in the field that in carefully couched terms—I’ll give you that—that to a soldier in the field meant two things: We’re not getting enough good intelligence and you need to get that evidence, and, oh, by the way, here’s some ways you probably can get it. And even some of the ways that they detailed were not in accordance with the spirit of the Geneva Conventions and the law of war. You just—if you’re a military man, you know that you just don’t do these sorts of things because once you give just the slightest bit of leeway, there are those in the armed forces who will take advantage of that.” [Washington Post, 11/4/2005; Savage, 2007, pp. 220]

Entity Tags: Geneva Conventions, Lawrence Wilkerson, Richard (“Dick”) Cheney, Colin Powell, Donald Rumsfeld, David S. Addington

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

New York Post editorial writer Deborah Orin echoes charges made by previous columnists in the Wall Street Journal that special counsel Patrick Fitzgerald is conducting a partisan political prosecution of former White House official Lewis Libby (see October 29, 2005 and October 31, 2005), and repeats charges by former Reagan Justice Department official Victoria Toensing that the CIA is behind the exposure of Valerie Plame Wilson’s covert identity (see November 3, 2005). Orin repeats previously made assertions that the CIA allowed Plame Wilson’s exposure by allowing her to send her husband, former ambassador Joseph Wilson, to Niger (see February 13, 2002, February 19, 2002, July 22, 2003, October 17, 2003, and July 20, 2005), failed to have Wilson sign “the usual confidentiality agreement,” and failed to require him to write a written report (see March 4-5, 2002, (March 6, 2002), and March 8, 2002). Orin accuses Wilson of only voicing his public criticism of the Bush administration’s Iraq invasion after he “joined” the presidential campaign of John Kerry (D-MA) in May 2003, even though he began publicly criticizing the administration a year earlier (see May 2002, October 13, 2002, November 2002, December 9, 2002, January 28-29, 2003, February 13, 2003, February 28, 2003, March 3, 2003, March 5, 2003, and March 8, 2003), and the White House began its retaliatory attack against his criticisms in March 2003 (see March 9, 2003 and After). Orin also repeats Toensing’s sourceless assertion that Wilson’s New York Times op-ed about his findings in Niger (see July 6, 2003) “sharply conflicted with what he’d told the CIA.” It was the CIA’s actions, not the White House’s, that led to Plame Wilson’s exposure, Orin avers (see June 13, 2003, June 23, 2003, July 7, 2003, 8:30 a.m. July 8, 2003, July 8, 2003, 11:00 a.m. July 11, 2003, 8:00 a.m. July 11, 2003, Late Afternoon, July 12, 2003, 1:26 p.m. July 12, 2003, and July 12, 2003). Orin quotes Toensing, who said: “It [the Plame Wilson exposure] was a planned CIA covert action against the White House. It was too clever by half.” The reason, Orin says, was to divert attention from its intelligence failures surrounding the US failure to find WMD in Iraq: “Having Wilson go public was very useful to the CIA, especially the division where his wife worked—because it served to shift blame for failed ‘slam dunk’ intelligence claims away from the agency. To say that Bush ‘twisted’ intelligence was to presume—falsely—that the CIA had gotten it right.” The White House was merely defending itself from the CIA’s propaganda onslaught, Orin writes, adding that since Plame Wilson was not a covert agent (see Fall 1992 - 1996), the agency was “dishonest” in claiming that its intelligence operations had been damaged by her exposure (see Before September 16, 2003, October 3, 2003, October 11, 2003, October 22-24, 2003, October 23-24, 2003, October 29, 2005, and February 13, 2006). [New York Post, 11/7/2005]

Entity Tags: Lewis (“Scooter”) Libby, Central Intelligence Agency, Bush administration (43), Deborah Orin, John Kerry, Joseph C. Wilson, Victoria Toensing, Valerie Plame Wilson, New York Post, Patrick J. Fitzgerald, Wall Street Journal

Timeline Tags: Domestic Propaganda, Niger Uranium and Plame Outing

Assistant Attorney General William Moschella writes to Michael Battle, the director of the Justice Department’s Executive Office for US Attorneys, and others. In his letter, Moschella recommends that “we support eliminating the court’s role” in appointing interim US Attorneys, “and believe the AG [attorney general] should have that authority alone.” Essentially, Moschella is recommending that Attorney General Alberto Gonzales (see February 14, 2005) be the only person with the authority to appoint interim US Attorneys. Language will be inserted into the USA Patriot Act reauthorization (see July 2005 - March 2006 and March 9, 2006) giving Gonzales this power. Moschella also includes Senate Judiciary Committee official Brett Tolman, who will later become the US Attorney for Utah, in the email exchange, along with Justice Department aide Monica Goodling and Battle’s aide Natalie Voris. [US Department of Justice, 3/23/2007 pdf file; Talking Points Memo, 2011] It is unclear if Moschella knows that the language inserted in the USA Patriot Act reauthorization was first drafted almost six months before his communication with Battle (see July 2005 - March 2006).

Entity Tags: Michael A. Battle, Executive Office for US Attorneys (DOJ), Senate Judiciary Committee, Monica M. Goodling, Alberto R. Gonzales, William E. Moschella

Timeline Tags: Civil Liberties

McCain speaking against torture on Fox News.McCain speaking against torture on Fox News. [Source: Daily Gadfly (.com)]Senator John McCain (R-AZ), a former prisoner of war during the Vietnam War and a victim of torture, writes an impassioned op-ed for Newsweek exhorting the US not to resort to torture in its interrogations of terror suspects. He writes: “I do, respectfully, take issue with the position that the demands of this war require us to accord a lower station to the moral imperatives that should govern our conduct in war and peace when they come in conflict with the unyielding inhumanity of our vicious enemy.… We should not torture or treat inhumanely terrorists we have captured. The abuse of prisoners harms, not helps, our war effort.”
Produces False Information - He gives numerous reasons: abusing prisoners does not produce reliable information, but instead “often produces bad intelligence because under torture a person will say anything he thinks his captors want to hear—whether it is true or false—if he believes it will relieve his suffering.” McCain recounts his own example of providing false information under torture, giving his captors the names of the Green Bay Packers’ offensive line instead of the names of his flight squadron. “It seems probable to me that the terrorists we interrogate under less than humane standards of treatment are also likely to resort to deceptive answers that are perhaps less provably false than that which I once offered.”
Betrays America's 'Commitment to Basic Humanitarian Values' - Moreover, McCain writes, America’s “commitment to basic humanitarian values affects—in part—the willingness of other nations to do the same. Mistreatment of enemy prisoners endangers our own troops who might someday be held captive.” We cannot expect al-Qaeda and other such enemies to be “bound by the principle of reciprocity,” but “we should have concern for those Americans captured by more traditional enemies, if not in this war then in the next.” Global public criticism of North Vietnam’s brutality towards US prisoners resulted in a substantial decrease in their abuse of POWs. The war against terrorism is “a war of ideas,” he writes, “a struggle to advance freedom in the face of terror in places where oppressive rule has bred the malevolence that creates terrorists. Prisoner abuses exact a terrible toll on us in this war of ideas. They inevitably become public, and when they do they threaten our moral standing, and expose us to false but widely disseminated charges that democracies are no more inherently idealistic and moral than other regimes.” To defeat the idea of terrorism, “we must prevail in our defense of American political values as well. The mistreatment of prisoners greatly injures that effort.”
'We Are Different and Better than Our Enemies' - McCain writes that while he does not “mourn the loss of any terrorist’s life… [w]hat I do mourn is what we lose when by official policy or official neglect we allow, confuse, or encourage our soldiers to forget that best sense of ourselves, that which is our greatest strength—that we are different and better than our enemies, that we fight for an idea, not a tribe, not a land, not a king, not a twisted interpretation of an ancient religion, but for an idea that all men are created equal and endowed by their Creator with inalienable rights.”
Waterboarding Is Torture - McCain states flatly that any interrogation technique that simulates an execution, including waterboarding, is torture. “[I]f you gave people who have suffered abuse as prisoners a choice between a beating and a mock execution, many, including me, would choose a beating. The effects of most beatings heal. The memory of an execution will haunt someone for a very long time and damage his or her psyche in ways that may never heal. In my view, to make someone believe that you are killing him by drowning is no different than holding a pistol to his head and firing a blank. I believe that it is torture, very exquisite torture.”
Exceptions Do Not Require New Laws - There is always the extreme circumstance bandied about in discussions: what should be done with a terror suspect who holds critical information about an imminent terrorist attack? While such an extreme circumstance may well require extreme interrogation methods, McCain writes, “I don’t believe this scenario requires us to write into law an exception to our treaty and moral obligations that would permit cruel, inhumane, and degrading treatment. To carve out legal exemptions to this basic principle of human rights risks opening the door to abuse as a matter of course, rather than a standard violated truly in extremis. It is far better to embrace a standard that might be violated in extraordinary circumstances than to lower our standards to accommodate a remote contingency, confusing personnel in the field and sending precisely the wrong message abroad about America’s purposes and practices.” [Newsweek, 11/21/2005]

Entity Tags: John McCain

Timeline Tags: Torture of US Captives

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

Entity Tags: Jenny Martinez, Jose Padilla, US Supreme Court, Jack Cloonan, Eric Freedman, Alberto R. Gonzales, Bush administration (43), Al-Qaeda, Aziz Huq, Central Intelligence Agency

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

Deputy Defense Secretary Gordon England, who for a year has advocated that the US issue clear rules about detention and interrogation of terror suspects (see Summer 2005), calls a meeting of three dozen Pentagon officials, including the vice chief and top uniformed lawyer for each military branch. England wants to discuss a proposed new directive defining the US military’s detention policies. The secretaries of the Army, Navy, and Air Force are present, as are generals from each branch of service and a number of military lawyers, including Naval General Counsel Alberto Mora. The agenda is set by Matthew Waxman, the deputy assistant secretary for detainee affairs. Waxman says that the president’s general statement that detainees should be treated humanely “subject to military necessity” (see February 7, 2002) has left US military interrogators and others unsure about how to proceed with detainees. Waxman has proposed making it official Pentagon policy to treat detainees in accordance with Common Article III of the Geneva Conventions, which bars cruel, inhuman, and degrading treatment, as well as “outrages against human dignity.” The standard has already been in effect since the Geneva Conventions were first put into place over 50 years ago, and US military personnel are trained to follow it. In 2007, the Washington Post will observe, “That was exactly the language… that [Vice President] Cheney had spent three years expunging from US policy.” Mora will later recall of the meeting, “Every vice chief came out strongly in favor, as did every JAG,” or Judge Advocate General.
Opposition - Every military officer supports the Waxman standard, but two civilians oppose it: Stephen Cambone, the undersecretary of defense for intelligence, and William Haynes, the Pentagon’s general counsel and a close associate of Cheney’s chief counsel, David Addington. Cambone and Haynes argue that the standard will limit the US’s “flexibility” in handling terror suspects, and it might expose administration officials to charges of war crimes. If Common Article III becomes the standard for treatment, then it might become a crime to violate it.
War Crimes Questions - An exasperated Mora points out that whether the proposal is adopted or not, the Geneva Conventions are already solidly part of both US and international law. Any serious breach is in legal fact a war crime. Mora reads from a copy of the US War Crimes Act, which already forbids the violation of Common Article III. It is already the law, Mora emphasizes, and no one is free to ignore it. Waxman believes his opponents are isolated, and issues a draft of DOD Directive 2310, incorporating the Geneva-based language.
Browbeating Waxman - Within a few days, Addington and Lewis “Scooter” Libby, Cheney’s chief of staff, bring Waxman in for a meeting. The meeting goes poorly for Waxman. Addington ridicules the vagueness of the Geneva ban on “outrages upon personal dignity,” saying it leaves US troops timid in the face of unpredictable legal risk. Waxman replies that the White House policy is far more opaque, and Addington accuses him of trying to replace the president’s decision with his own. Mora later says, “The impact of that meeting is that Directive 2310 died.” Shortly thereafter, Waxman will leave the Pentagon for a post at the State Department. [New Yorker, 2/27/2006; Washington Post, 6/25/2007]

Entity Tags: Alberto Mora, David S. Addington, Lewis (“Scooter”) Libby, William J. Haynes, War Crimes Act, Matthew Waxman, Gordon England, Richard (“Dick”) Cheney, US Department of Defense, Geneva Conventions, Stephen A. Cambone

Timeline Tags: Torture of US Captives, Civil Liberties

The Army adopts a new, classified set of interrogation methods that some feel may change the nature of the debate over cruel and inhuman treatment of detainees in US custody. The Detainee Treatment Act (DTA—see December 30, 2005), which bases its definition of torture in part on Army standards, is currently wending its way through Congress. The new set of instructions are being added to the revised Army Field Manual, after they are approved by undersecretary of defense Stephen Cambone. The addendum provides exact details on what kinds of interrogation procedures can and cannot be used, and under what circumstances, pushing the legal limit of what interrogations can be used in ways that the Army has never done before. Some military observers believe that the new guidelines are an attempt by the Army to undercut the DTA, and many believe the bill’s sponsor, Senator John McCain (R-AZ) will be unhappy with the addendum. “This is a stick in McCain’s eye,” one official says. “It goes right up to the edge. He’s not going to be comfortable with this.” McCain has not yet been briefed on the contents of the new guidelines. McCain spokesman Mark Salter says, “This is politically obtuse and damaging. The Pentagon hasn’t done one molecule of political due diligence on this.” One Army officer says that the core of the definition of torture—what is and is not “cruel, inhumane, and degrading” treatment—“is at the crux of the problem, but we’ve never defined that.” The new Army Field Manual specifically prohibits such tactics as stress positioning, stripping prisoners, imposing dietary restrictions, using police dogs to intimidate prisoners, and sleep deprivation. The new manual is expected to be issued before the end of the year. [New York Times, 12/14/2005] The day after this is reported, President Bush agrees not to veto the DTA (see December 15, 2005).

Entity Tags: Stephen A. Cambone, Detainee Treatment Act, US Department of Defense, John McCain, US Department of the Army

Timeline Tags: Torture of US Captives, Civil Liberties

The Bush administration relents in its opposition to the Detainee Treatment Act (DTA), which would ban torture of prisoners by US personnel (see July 24, 2005 and After and December 30, 2005). President Bush meets with the bill’s primary sponsor, Senator John McCain (R-AZ), and John Warner (R-VA), chairman of the Senate Armed Service Committee, in a press conference to praise the bill. McCain says after the conference that the bill “is a done deal.” The bill still faces some opposition from Congressional Republicans such as House Armed Services Committee chairman Duncan Hunter (R-CA), who says he won’t vote for the bill unless it can be amended to ensure that the nation’s ability to gather intelligence is not diminished. Both the House and Senate have voted by veto-proof margins to accept the bill, which is actually an amendment to a defense appropriations bill. McCain says after the conference with Bush and Warner, “We’ve sent a message to the world that the United States is not like the terrorists. We have no grief for them, but what we are is a nation that upholds values and standards of behavior and treatment of all people, no matter how evil or bad they are.” Bush says the ban “is to make it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be here at home or abroad.” McCain has been the target of months of vilification and opposition from the White House over the bill, which argued that the bill would limit Bush’s authority to protect the US from terrorist attacks, and that the bill is unnecessary because US officials do not torture. [CNN, 12/15/2005]
Loopholes - But the bill contains key loopholes that some experts believe significantly waters down the bill’s impact. Author Alfred McCoy, an expert on the CIA, notes that the bill as revised by White House officials does not give any real specifics. Attorney General Alberto Gonzales will assert that the only restrictions on prisoner interrogations are the ban on “severe” psychological or physical pain, “the same linguistic legerdemain that had allowed the administration to start torturing back in 2002” (see August 1, 2002). Gonzales also implies that practices such as waterboarding are not prohibited. [TomDispatch (.com), 2/8/2006]
Legal Cover - A provision of the bill inserted after negotiation with White House officials says that CIA and military officials accused of torture can claim legal protection by arguing that they were simply following the orders of their superiors, or they have a reasonable belief that they are carrying out their superiors’ wishes. McCain dropped the original provision that all military personnel must follow the stringent guidelines for interrogation laid out in the Army Field Manual; the bill now follows the Uniform Code of Military Justice, which says that anyone accused of violating interrogation rules can defend themselves if a “reasonable” person could conclude they were following a lawful order. McCain resisted pressure from the White House to include language that would afford interrogators accused of torture protection from civil or criminal lawsuits. [CNN, 12/15/2005; Associated Press, 12/15/2005]
Controversial Amendment - Perhaps even more troubling is an amendment to the bill that would essentially strip the judiciary’s ability to enforce the ban. The amendment, originally crafted by senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ) and added to by Carl Levin (D-MI), denies Guantanamo detainees the right to bring legal action against US personnel who torture or abuse them—effectively denying them the fundamental legal right of habeas corpus. It also gives the Defense Department the implicit ability to consider evidence obtained through torture or inhumane treatment in assessing detainees’ status. Human Rights Watch (HRW) says that the DTA marks the first time in history that Congress would allow the use of evidence obtained through torture. HRW’s Tom Malinowski says, “With the McCain amendment, Congress has clearly said that anyone who authorizes or engages in cruel techniques like water boarding is violating the law. But the Graham-Levin amendment leaves Guantanamo detainees no legal recourse if they are, in fact, tortured or mistreated. The treatment of Guantanamo Bay detainees will be shrouded in secrecy, placing detainees at risk for future abuse.… If the McCain law demonstrates to the world that the United States really opposes torture, the Graham-Levin amendment risks telling the world the opposite.” [Human Rights Watch, 12/16/2005] Geoffrey Corn, a retired Army lieutenant colonel and Judge Advocate General lawyer, agrees. In January 2006, he will write that the “recent compromise inclusion of an ‘obedience to orders’ defense… has effectively undermined the goal Senator John McCain fought so long to achieve. Instead of sending a clear message to US forces that cruel, inhumane, or degrading treatment of detainees is never permissible, the compromise has validated President Bush’s belief that the necessities of war provide the ultimate ‘trump card’ to justify ‘whatever it takes’ in the war on terror.” [Jurist, 1/6/2006]

Entity Tags: Tom Malinowski, Lindsey Graham, US Department of Defense, Jon Kyl, Uniform Code of Military Justice, John McCain, John W. Warner, Geoffrey Corn, Alberto R. Gonzales, Bush administration (43), Alfred McCoy, Carl Levin, Detainee Treatment Act, Central Intelligence Agency, Human Rights Watch, Duncan Hunter

Timeline Tags: Torture of US Captives, Civil Liberties

Attorney General Alberto Gonzales and NSA chief Lieutenant General Michael Hayden conduct their own “briefing” on the recently revealed NSA wiretapping program (see December 15, 2005) with the White House press corps. Gonzales and Hayden make the following points:
bullet Gonzales says that he will not discuss the internal workings of the still-classified program, only what he calls its “legal underpinnings.”
bullet He claims that the program, which he calls “the most classified program that exists in the United States government,” is legal because President Bush authorized it, and says that the idea that “the United States is somehow spying on American citizens” is wrong: it is “[v]ery, very important to understand that one party to the communication has to be outside the United States.”
bullet He says that for the NSA to eavesdrop on a US citizen’s telephone or e-mail communications, “we have to have a reasonable basis to conclude that one party to the communication is a member of al-Qaeda, affiliated with al-Qaeda, or a member of an organization affiliated with al-Qaeda, or working in support of al-Qaeda.” The wiretapping program is an essential part of the administration’s war against terror, he says.
bullet He goes on to claim that “the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes” legal grounds for “this kind of signals intelligence.” [White House, 12/19/2005] The White House signed Congress’s Authorization to Use Military Force (AUMF) into law on September 18, 2001 (see September 14-18, 2001. [White House, 9/18/2001]
Hayden Claims Supreme Court Backing - While he admits that the Congressional authorization to use force against international terrorism does not specifically mention any kind of electronic surveillance, he refers the listeners to the Supreme Court case concerning alleged US terrorist Yaser Esam Hamdi (see June 28, 2004), in which the Court ruled that Hamdi had the legal right to challenge his detention. “[T]he United States government took the position that Congress had authorized that detention in the authorization to use force, even though the authorization to use force never mentions the word ‘detention.’ And the Supreme Court, a plurality written by Justice O’Connor agreed. She said, it was clear and unmistakable that the Congress had authorized the detention of an American citizen captured on the battlefield as an enemy combatant for the remainder—the duration of the hostilities. So even though the authorization to use force did not mention the word, ‘detention,’ she felt that detention of enemy soldiers captured on the battlefield was a fundamental incident of waging war, and therefore, had been authorized by Congress when they used the words, ‘authorize the President to use all necessary and appropriate force.’ For the same reason, we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress. And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance.”
Bush 'Very Concerned' With Protecting Civil Liberties - Gonzales insists, Bush “is very concerned about the protection of civil liberties, and that’s why we’ve got strict parameters, strict guidelines in place out at NSA to ensure that the program is operating in a way that is consistent with the President’s directives.” He adds, “[W]e feel comfortable that this surveillance is consistent with requirements of the Fourth Amendment. The touchstone of the Fourth Amendment is reasonableness, and the Supreme Court has long held that there are exceptions to the warrant requirement in—when special needs outside the law enforcement arena. And we think that that standard has been met here.”
Wiretapping Essential in Catching Terrorists - Hayden reiterates how important the wiretapping is to catching terrorists and stopping potential attacks against US targets, though he and Gonzales both refuse to say what, if any, terrorist plots or what terror suspects might have been captured through the NSA wiretapping program. Hayden does say, “This program has been successful in detecting and preventing attacks inside the United States.…I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available,” though he refuses to cite specifics. He admits that there have been some errors in surveilling innocent US citizens, though he refuses to give any details, and says those errors were quickly corrected.
Administration Not Required to Go Through FISA - Gonzales, who is the main speaker in the briefing, reiterates that while the administration continues to seek warrants from the Foreign Intelligence Surveillance (FISA) court, “we are not legally required to do, in this particular case, because the law requires that we—FISA requires that we get a court order, unless authorized by a statute, and we believe that authorization has occurred.” He justifies the administration’s refusal to use the FISA court for obtaining warrants by insisting that NSA officials “tell me that we don’t have the speed and the agility that we need, in all circumstances, to deal with this new kind of enemy. You have to remember that FISA was passed by the Congress in 1978. There have been tremendous advances in technology… since then.” Hayden adds, “I don’t think anyone could claim that FISA was envisaged as a tool to cover armed enemy combatants in preparation for attacks inside the United States. And that’s what this authorization under the President is designed to help us do.”
'Balancing' of Civil Liberties, National Security - Hayden says the warrantless wiretapping program is part of “a balancing between security and liberty,” a more “aggressive” operation “than would be traditionally available under FISA. It is also less intrusive. It deals only with international calls. It is generally for far shorter periods of time. And it is not designed to collect reams of intelligence, but to detect and warn and prevent about attacks. And, therefore, that’s where we’ve decided to draw that balance between security and liberty.”
Media Leaks Damaging to National Security - Gonzales refuses to talk about when any members of Congress were briefed on the program or what they were told, but he does imply that there will be some sort of leak investigation as to how the New York Times found out about the program: “[T]his is really hurting national security, this has really hurt our country, and we are concerned that a very valuable tool has been compromised. As to whether or not there will be a leak investigation, we’ll just have to wait and see.”
No Evidence of Compromised National Security - When asked whether he can cite any evidence that the revelation of the program’s existence has actually compromised anything—“Don’t you assume that the other side thinks we’re listening to them? I mean, come on,” one reporter says—Gonzales responds, rather confusingly, “I think the existence of this program, the confirmation of the—I mean, the fact that this program exists, in my judgment, has compromised national security, as the President indicated on Saturday.”
Easier to Sidestep FISA Instead of Seek Congressional Approval - He does admit that the administration decided to sidestep the FISA court entirely instead of attempt to work with Congress to rewrite the FISA statutes because “we were advised that that would be difficult, if not impossible” to amend the law to the White House’s satisfaction. Gonzales says those who are concerned about the program being excessively intrusive or a threat to American civil liberties simply “don’t understand the specifics of the program, they don’t understand the strict safeguards within the program.… Part of the reason for this press brief today is to have you help us educate the American people and the American Congress about what we’re doing and the legal basis for what we’re doing.” He adds that any legal experts who believe the program is illegal are basing their judgments “on very limited information.”
Tough Questioning - One reporter asks an unusually tough series of questions to Gonzales: “Do you think the government has the right to break the law?”, to which Gonzales replies, “Absolutely not. I don’t believe anyone is above the law.” The reporter then says, “You have stretched this resolution for war into giving you carte blanche to do anything you want to do,” to which Gonzales replies cryptically, “Well, one might make that same argument in connection with detention of American citizens, which is far more intrusive than listening into a conversation.” The reporter insists, “You’re never supposed to spy on Americans,” and Gonzales deflects the responsibility for the decision back onto the Supreme Court.
Administration Will Tell Nation What It Needs to Know - Gonzales says the administration has no intention of releasing any of the classified legal opinions underpinning the program, and this press briefing is one of the methods by which the administration will “educat[e] the American people…and the Congress” to give them what they need to know about the program. [White House, 12/19/2005]

Entity Tags: White House press corps, Michael Hayden, Al-Qaeda, National Security Agency, Alberto R. Gonzales, George W. Bush, Foreign Intelligence Surveillance Court

Timeline Tags: Civil Liberties

Former Senate Majority Leader Tom Daschle (D-SD) writes that Congress explicitly rejected several attempts by the Bush administration to provide him with war-making authority and the authority to wiretap and monitor US citizens “in the United States” when it approved the September 18, 2001 authorization to use military force (AUMF) against terrorists (see September 14-18, 2001). Instead, the Bush administration merely usurped that authority and launched—or expanded (see Spring 2001)—its warrantless wiretapping program, conducted by the NSA. Since then, the Bush administration and the Justice Department have both repeatedly asserted that the AUMF gave them the right to conduct the wiretapping program, an assertion that Daschle says is flatly wrong. On December 21, the Justice Department admitted in a letter that the October 2001 presidential order authorizing warrantless eavesdropping on US citizens did not comply with “the ‘procedures’ of” the law that has regulated domestic espionage since 1978, known as the Foreign Intelligence Surveillance Act (FISA). FISA established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, “except as authorized by statute.” However, the letter, signed by Assistant Attorney General William Moschella, argues that the AUMF gave the administration the authority to conduct the program. [Washington Post, 12/22/2005] The letter continues the argument that Congress gave President Bush the implict authority to create an exception to FISA’s warrant requirements, though the AUMF resolution did not mention surveillance and made no reference to the president’s intelligence-gathering authority. The Bush administration kept the program secret until it was revealed by the New York Times on December 15, 2005. Moschella argues that secret intelligence-gathering, even against US citizens, is “a fundamental incident to the use of military force” and that its absence from the resolution “cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy.” Such eavesdropping, he argued, must by necessity include conversations in which one party is in the United States. [William Moschella, 12/22/2005 pdf file] Daschle, one of the primary authors of the resolution, says that Moschella and the Bush administration are wrong in their assertions: “I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al-Qaeda did not believe that they were also voting for warrantless domestic surveillance” (see September 12-18, 2001). [Washington Post, 12/23/2005]

Entity Tags: National Security Agency, Bush administration (43), Authorization to Use Military Force (AUMF), Al-Qaeda, Foreign Intelligence Surveillance Act, George W. Bush, Osama bin Laden, US Department of Justice, Foreign Intelligence Surveillance Court, New York Times, William E. Moschella, Richard (“Dick”) Cheney, Tom Daschle

Timeline Tags: Civil Liberties

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

After months of opposition and a recent, clandestine rewriting of the bill (see Before December 30, 2005), President Bush signs the Detainee Treatment Act (DTA) into law, effectively outlawing torture by government and military officials (see December 15, 2005). However, Bush also inserts a signing statement into the record reserving for himself the right to ignore the law under his powers as commander in chief if he judges that torturing a prisoner is in the interest of national security (see December 30, 2005). Signing statements have no legal status, but serve to inform the nation as to how the president interprets a particular law. In this case, Bush writes that he will waive the restrictions on torture if he feels it is necessary to protect national security. “We consider ourselves bound by the prohibition on cruel, unusual, and degrading treatment,” says a senior administration official, but under unusual circumstances—a “ticking time bomb” scenario, for example, where a detainee is believed to have information that could prevent an imminent terrorist attack, Bush’s responsibility to protect the nation will supersede the law. Law professor David Golove is critical of the White House’s position, saying: “The signing statement is saying ‘I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it’s important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me.’ They don’t want to come out and say it directly because it doesn’t sound very nice, but it’s unmistakable to anyone who has been following what’s going on.” Bush has issued numerous signing statements signaling his intent to flaunt the law in the areas of domestic surveillance, detaining terrorist suspects without due legal process, and previous legislation forbidding the torture of prisoners. Many legal and civil rights organizations believe that Bush’s signing statement is part of his push for a “unitary executive,” where the president has virtually unlimited powers in the areas of foreign policy and national security, and neither Congress nor the courts have the right to limit his powers (see April 30, 1986). Former Justice Department official and law professor Marty Lederman says: “The whole point of the McCain Amendment was to close every loophole. The president has re-opened the loophole by asserting the constitutional authority to act in violation of the statute where it would assist in the war on terrorism.” Human Rights Watch director Elisa Massamino calls the signing statement an “in-your-face affront” to both McCain and to Congress. “The basic civics lesson that there are three co-equal branches of government that provide checks and balances on each other is being fundamentally rejected by this executive branch. Congress is trying to flex its muscle to provide those checks [on detainee abuse], and it’s being told through the signing statement that it’s impotent. It’s quite a radical view.” [Boston Globe, 1/4/2006; Boston Globe, 4/30/2006]

Entity Tags: George W. Bush, Detainee Treatment Act, Martin (“Marty”) Lederman, Bush administration (43), David Golove, Elisa Massamino

Timeline Tags: Torture of US Captives, 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

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