In interviews, dozens of high-level military, intelligence and law-enforcement officials in the United States, Europe and the Middle East said that contrary to the repeated assertions of senior administration officials, none of the detainees at the United States Naval Base at Guantánamo Bay ranked as leaders or senior operatives of Al Qaeda. They said only a relative handful ?- some put the number at about a dozen, others more than two dozen ?- were sworn Qaeda members or other militants able to elucidate the organization's inner workings.
Bush claimed right to waive prisoner abuse laws
Associated Press
Tuesday, Jun 22, 2004
Washington ?- U.S. President George W. Bush claimed the right to waive anti-torture laws and treaties covering prisoners of war after the invasion of Afghanistan, and U.S. Defense Secretary Donald Rumsfeld authorized guards to strip detainees and threaten them with dogs, according to documents released Tuesday.
The documents were handed out by the White House in an effort to blunt allegations that the administration had authorized torture against al-Qaeda prisoners from Afghanistan and Iraq. "I have never ordered torture," Mr. Bush said a few hours before the release.
The Justice Department, meanwhile, disavowed a memo written in 2002 that appeared to justify the use of torture in the war on terror. The memo also argued that the president's wartime powers superseded anti-torture laws and treaties.
That 50-page document, dated Aug. 1, 2002, will be replaced, senior Justice Department officials said, speaking on condition of anonymity. A new memo will instead narrowly address the question of proper interrogation techniques for al-Qaeda and Taliban detainees, the officials said.
Mr. Bush outlined his own views in a Feb. 7. 2002, document regarding treatment of al-Qaeda detainees from Afghanistan. He said the war against terrorism had ushered in a "new paradigm" and that terrorist attacks required "new thinking in the law of war." Still, he said prisoners must be treated humanely and in accordance with the Geneva Convention.
"I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time," the President said in the memo, entitled Humane Treatment of al-Qaeda and Taliban Detainees.
In a separate memo, dated Nov. 27, 2002, the Defense Department's chief lawyer, William Haynes, recommended that Defense Secretary Donald Rumsfeld approve the use of 14 interrogation techniques on detainees at Guantanamo Bay, such as yelling at a prisoner during questioning and using "stress positions," like standing, for up to four hours.
Mr. Haynes also recommended approval of one technique among harsher methods requested by U.S. military authorities at Guantanamo: use of "mild, non-injurious physical contact such as grabbing, poking in the chest with the finger and light pushing."
Among the techniques that Mr. Rumsfeld approved Dec. 2, 2002, in addition to that one, the yelling and the stress positions:
?- Use of 20-hour interrogations.
?- Removal of all comfort items, including religious items.
?- Removal of clothing.
?- Using detainees' "individual phobias such as fear of dogs to induce stress."
In a Jan. 15, 2003, note, Mr. Rumsfeld rescinded his approval and said that a review would be conducted to consider legal, policy and operational issues relating to interrogations of detainees held by the U.S. military in the war on terrorism.
Mr. Rumsfeld's decision was prompted at least in part by objections raised by some military lawyers who felt that the techniques approved for use at Guantanamo Bay might go too far, officials said earlier this year.
The review was completed in April 2003, and on that basis Mr. Rumsfeld reissued his guidance April 16, 2003. He approved 24 interrogation techniques, to be used in a manner consistent with the Geneva Convention, but said that any use of four of those methods would have to be approved by him in advance. Those four were use of rewards or removal of privileges from detainees; attacking or insulting the ego of a detainee; alternating the use of friendly and harsh interrogators, and isolation.
The April 2003 review said that removing a detainees' clothing would raise legal issues because it could be construed as degrading, which is against the international convention on torture. The removal of clothing, while approved by Mr. Rumsfeld for use at Guantanamo Bay in late 2002, was not among the authorized techniques in his revised guidelines issued in April 2003.
At the Justice Department, senior officials said that the 50-page memo issued to the White House on Aug. 1, 2002, would be repudiated and replaced because it contained what they called overbroad and irrelevant advice.
The memo, signed by former assistant attorney-eneral Jay Bybee, included lengthy sections that appeared to justify use of torture in the war on terrorism and it contended that U.S. personnel could be immune from prosecution for torture. The memo also argued that the president's powers as commander in chief allow him to override U.S. laws and international treaties banning torture.
Critics on Capitol Hill and elsewhere have said that memo provided the legal underpinnings for subsequent abuses of prisoners in Afghanistan and Iraq.
Reacting to the White House release, Vermont Senator Patrick Leahy, the senior Democrat on the Judiciary Committee, accused the administration of continuing to withhold information.
"Though this is a self-serving selection, at least it is a beginning," Mr. Leahy said. "But for the Judiciary Committee and the Senate to find the whole truth, we will need much more co-operation and extensive hearings."
President Bush speaks with forked tongue; it's a wonder the right-wingers continue to support this creep.
I guess it's a good thing they are American detainees and not international detainees.
Court: Terror suspects can challenge detentions
Guantanamo Bay ruling is blow to administration policy on terrorism
MSNBC staff and news service reports
Updated: 4:22 p.m. ET June 28, 2004
WASHINGTON - The Supreme Court dealt a setback to the Bush administration on Monday, ruling that both U.S. citizens and foreign nationals seized as potential terrorists can challenge their treatment in U.S. courts.
The court refused to endorse a central claim of the White House since the terrorist attacks of Sept. 11, 2001: That the government has authority to seize and hold suspected terrorists or their protectors and indefinitely deny them access to courts or lawyers while interrogating them.
The court did back the administration in one important respect, ruling that Congress gave President Bush the authority to seize and hold a U.S. citizen, in this case Louisiana-born Yaser Esam Hamdi, as an alleged enemy combatant.
Foreigners gain access to U.S. courts
That bright spot for the administration was almost eclipsed, however, by the court's ruling that Hamdi can use American courts to argue that he is being held illegally. Foreigners held at a Navy prison camp at Guantanamo Bay, Cuba, can also have their day in U.S. courts, the justices said.
Ruling in the Hamdi case, Justice Sandra Day O'Connor said the court has "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."
Steven Shapiro, legal director of the ACLU, called the rulings "a strong repudiation of the administration's argument that its actions in the war on terrorism are beyond the rule of law and unreviewable by American courts."
The vote in the Guantanamo case was 6-3, with the court's three most conservative members dissenting.
The justices splintered in the Hamdi case, with a different lineup of six justices voting to throw out a lower court ruling in the government's favor and allow Hamdi another chance to air his claims. Three justices disagreed with that outcome for varying reasons.
Perhaps more significantly, eight of the nine justices sided against the Bush administration on some grounds. Only Justice Clarence Thomas, by many measures the court's staunchest conservative, found no fault with the administration.
The court sidestepped a third major terrorism case, dismissing a lawsuit filed on behalf of American detainee Jose Padilla on a technicality.
The court, in a 5-4 ruling, said that Padilla petitioned for a writ of habeas corpus ?- asking a judge to determine whether or not he was imprisoned lawfully ?- in New York, but was no longer in the state by the time the court considered his case. The justices said he should have brought the case instead in South Carolina, where he has been held in a U.S. military jail as an "enemy combatant."
Dissenters: ?'Essence of a free society' at stake
The four dissenters said they would have decided the heart of the case. "At stake in this case is nothing less than the essence of a free society," wrote Justice John Paul Stevens.
The court left hard questions unanswered in all three cases.
The administration had fought any suggestion that Hamdi or another U.S.-born terrorism suspect could go to court, saying that such a legal fight posed a threat to the president's power to wage war as he sees fit.
"We have no reason to doubt that courts, faced with these sensitive matters, will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns," Justice Sandra Day O'Connor wrote in the Hamdi case.
O'Connor said that Hamdi "unquestionably has the right to access to counsel."
The court threw out a lower court ruling that supported the government's position fully, and Hamdi's case now returns to a lower court.
O'Connor was joined by Chief Justice William Rehnquist and Justices Anthony Kennedy and Stephen Breyer in her view that Congress had authorized detentions such as Hamdi's in what she called very limited circumstances.
Lawyers rush to get access
Lawyers for foreign terrorism suspects at the U.S. military base in Cuba plan to ask this week for access to their clients, armed with the Supreme Court ruling that the prisoners can fight their detention in court.
Lawyers from the Center for Constitutional Rights, which brought the case to the high court, said they would seek access to their clients within the week.
"We will be asking for access to our clients and for information about their mental and physical health," said attorney Joseph Margulies. "We will move very quickly to seek access to our clients, something that has been denied them from the beginning of this litigation."
The center wants to talk to the two prisoners it represented in the Supreme Court case. Dozens of others have also asked the center act on their behalf, and lawyers will file requests for access to them as well.
Margulies said the government now has the responsibility of giving specific reasons for the detention of each prisoner. "At a minimum, they must now come forward with some evidence," he said. "You don't simply hold people in a lawless void based on nothing more than executive say-so."
Extent of presidential authority at issue
Congress voted shortly after the Sept. 11 attacks to give the president significant authority to pursue terrorists, but Hamdi's lawyers said that authority did not extend to the indefinite detention of an American citizen without charges or trial.
Two other justices, David Souter and Ruth Bader Ginsburg, would have gone further and declared Hamdi's detention improper.
Still, they joined O'Connor and the others to say that Hamdi, and by extension others who may be in his position, are entitled to their day in court. Only Justice Clarence Thomas dissented on that point.
Hamdi and Padilla are in military custody at a Navy brig in South Carolina. They have been interrogated repeatedly without lawyers present.
In the Guantanamo case, the court said the Cuban base is not beyond the reach of American courts even though it is outside the country. Lawyers for the detainees there had said to rule otherwise would be to declare the Cuban base a legal no-man's land.
Ruling applies only to Guantanamo detainees
The high court's ruling applies only to Guantanamo detainees, although the United States holds foreign prisoners elsewhere.
The Bush administration contends that as "enemy combatants," the men are not entitled to the usual rights of prisoners of war set out in the Geneva Conventions. Enemy combatants are also outside the constitutional protections for ordinary criminal suspects, the government has claimed.
The administration argued that the president alone has authority to order their detention, and that courts have no business second-guessing that decision.
The case has additional resonance because of recent revelations that U.S. soldiers abused Iraqi prisoners and used harsh interrogation methods at a prison outside Baghdad.
For some critics of the administration's security measures, the pictures of abuse at Abu Ghraib prison illustrated what might go wrong if the military and White House have unchecked authority over prisoners.
At oral arguments in the Padilla case in April, an administration lawyer assured the court that Americans would abide by international treaties against torture, and that the president or the military would not allow even mild torture as a means to get information.
Q Larry, is the Pentagon considering moving prisoners from Gitmo back to the United States in response to the Supreme Court decision, in order to make them more available to U.S. courts, U.S. --
MR. DIRITA: The impact of the decision is being examined. It's not just by the Pentagon. There's work being done in the interagency process with the Department of Justice. Certainly the Department of Defense is involved to determine what -- how best to comply with the Supreme Court rulings, how -- to understand them first and foremost, and see what the intent of the rulings was.
Certainly the ability to detain enemy combatants at Guantanamo is not in question. What's in question is how -- what process is established to ensure proper treatment. We've established certain processes already. There are some number of detainees down there, and Secretary England was down here this last week talking about this, who may in fact be, after review, the types of individuals that can be repatriated wherever they may come from. So I don't think anybody has a desire to see that process -- I mean, if there are people that can be released after some due process of review that we've established, it's worth considering whether that's the right and next thing to do, and we can do that and remain consistent with the Supreme Court ruling. But the fact is no decisions have been made in that regard.
Q But that process doesn't give them lawyers or provide them with access to civilian courts.
MR. DIRITA: Right.
Q Is the building perhaps considering bringing them back to the country to give them access to U.S. civilian courts?
MR. DIRITA: [..] in answer to your question, there's a range of things that are under examination to determine what is the best way to ensure that we're operating consistent with the ruling in the case of Guantanamo, but on the other side of the equation is everybody has a desire not to hold people that need not be held. And it's conceivable -- and I'm not saying this is the way it will end up -- it is conceivable that people who can be determined no longer needing to be held need not necessarily be part of a judicial process if we can make that determination short of a judicial process. That's all I'm saying, and those are the kinds of questions that are being evaluated right now. There have been no decisions as far as I know, and it's going to take time to sort through this.
July 4, 2004
DETAINEES
Officials Detail a Detainee Deal by 3 Countries
By DON VAN NATTA Jr. and TIM GOLDEN
LONDON, July 3 ?- American officials agreed to return five terrorism suspects to Saudi Arabia from Guantánamo Bay, Cuba, last year as part of a secret three-way deal intended to satisfy important allies in the invasion of Iraq, according to senior American and British officials.
Under the arrangement, Saudi officials later released five Britons and two others who had been convicted of terrorist attacks in Saudi Arabia, the officials said. British diplomats said they believed that the men had been tortured by Saudi security police officers into confessing falsely.
Officials involved in the deliberations said the transfer of the Saudis from Guantánamo initially met with objections from officials at the Pentagon, the Central Intelligence Agency and the Justice Department. Those officials questioned whether some detainees were too dangerous to send back and whether the United States could trust Saudi promises to keep the men imprisoned.
"To get people to take a chance on detainees who posed a threat was a new endeavor, so everyone moved cautiously," said one senior American official who supported the releases. "It was the first time we were doing this, and people did not want to do it."
The Saudi prisoners were transferred to Riyadh, the capital, in May 2003. The five Britons and two others were freed three months later, in August.
The releases were public-relations coups for the Saudi and British governments, which had been facing domestic criticism for their roles in the Iraq war.
At the time there was no indication the releases were related. But an American official with knowledge of the negotiations said, "There is a link," adding, "This was two courses that converged and had a mutual attractiveness to them."
On Friday, a spokesman for the National Security Council denied that the Saudi detainees had been transferred in exchange for the British prisoners. "There is no recollection here of any linkage between these two actions," said the spokesman, Sean McCormick. He described the return of the Saudis as "part of the normal policy of transferring detainees from Guantánamo for prosecution or continued detention."
But American officials involved in the Saudi case described it as highly unusual and said the backgrounds of those detainees raised greater concerns than those of others. Some officials also said the case showed how considerations other than security and intelligence could influence releases of prisoners.
Current and former American, British and Saudi officials would speak about the trade only on the condition of anonymity.
As part of the arrangement, the United States initially authorized the outright release of one of the Saudi detainees. But a senior American official said the man was kept in custody by the Saudis after a terrorist attack in the kingdom raised concerns about militants' activities.
Saudi officials gave contradictory accounts of the current whereabouts of the five men, saying at first that one or two of them had been released, then denying that any had been freed. The officials also gave contradictory accounts of the suspects' legal status, first saying they had been tried and convicted of seeking to join Taliban forces in Afghanistan, but later saying prosecutions were still pending.
Neither American nor Saudi officials would identify the five, or describe in detail the evidence on which they had been held at Guantánamo. One American official, however, said two of the former detainees had attended Al Qaeda training camps in Afghanistan.
A Debate: Whose Interest?
Several officials involved in the negotiations defended the bargain as being in the interest of all three countries.
"We acted in our national interest to reduce the Guantánamo population at a time when we were able to conclude that we had no further need to detain these individuals," said the American with knowledge of the negotiations. "It happened to serve a beneficial diplomatic purpose both with the Saudis and the Brits. But we would never have released these people if we had a further need to detain them in the first place."
But several current and former Defense Department officials challenged that assertion, saying no Saudis had even been under consideration for release prior to the arrangement's being struck.
"It didn't seem right," said one military official who was involved in the process. "The green light had not appeared on these guys in the way that it had on others" who were released. "It was clear that there was a quid pro quo to the deal that we were not aware of."
A spokesman for Prime Minister Tony Blair of Britain declined to comment. An official in the British Foreign Office said: "We were extremely relieved to get the guys out of Saudi. We worked ceaselessly to get them out."
The exchange occurred at a time of widespread mistrust among intelligence and law enforcement officials in Washington about the Saudi government's commitment to fight Islamic terrorism. One Defense Department official said a basic question hanging over the discussions was, "Why are we doing this for these guys when we haven't done this for other, better allies?" The official added, "We were just told to do it."
The Saudi government was eager to bring home even a few detainees from Guantánamo. Although Saudi leaders opposed a war with Iraq, they allowed the United States to use several military bases to launch air attacks into Iraq and as a staging ground for American troops.
"This was something that the Saudis desperately wanted, as a way to show their people that they could get something from the Americans, and that it was not just a one-way street," an American official said.
But at the time, such a transfer was unheard of. Prior to the Saudi case, the Defense Department had freed 35 Afghan detainees, including several elderly men, after concluding they posed no further threat. None had been transferred to a foreign government for continued detention or prosecution.
Since the transfer of the Saudis, the Bush administration has sent other Guantánamo detainees to their home countries, including a Spaniard, a Dane and five Britons. As in the Saudi case, the administration's decision to transfer the men was based partly on the fact that the governments involved had supported the Iraq war, according to the American official involved in talks.
The Saudis' View
The diplomatic initiative that led to the transfers began in July 2002, when a delegation of Saudi officials visited the American naval base at Guantánamo Bay, on the eastern tip of Cuba. According to several people familiar with the negotiations, the proposal was discussed at the highest levels of the American and British governments.
The Saudi officials briefly interviewed each of the roughly 130 Saudi detainees at Guantánamo, officials said. Senior Saudi officials, including Foreign Minister Saud al-Faisal, had been arguing with American diplomats for several months that many of the men at Guantánamo were innocent and had simply been in the wrong place at the wrong time.
In an interview, a Saudi official described many of the men as "low-level foot soldiers or even groupies, who were working for charities and who posed no threat." But American officials characterized the Saudis as more dangerous, saying that some had clear Al Qaeda connections and that nearly all of them had been uncooperative with interrogators.
As the Saudis were urging the Americans to release the detainees, Mr. Blair was having his own prisoner problems. In the summer of 2002, the British press was criticizing him over the fate of the five British men who, with a Canadian and a Belgian, were accused of carrying out several attacks against Western targets in Riyadh. One attack, in November 2000, killed a British engineer. Two of the Britons were sentenced to death.
British diplomats said privately that some of the men were tortured, an allegation the Saudi authorities denied. The men later retracted their confessions.
The Saudis said the men had attacked rivals in a turf war for control of the lucrative bootlegging business in Saudi Arabia, where alcohol consumption is illegal. British diplomats said the attacks were carried out by Al Qaeda operatives. Mr. Blair was so intent on winning the Britons' release that he or his top aides pressed the Saudis every month for pardons, officials said. Even Prince Charles personally lobbied Crown Prince Abdullah.
While the United States also sought to use its influence with the Saudi government to press the British case, a State Department official said, "The Saudis kept making the excuse about us having the Saudi detainees at Guantánamo."
In August 2002, officials said, a diplomatic proposal was put forth by the American ambassador to Saudi Arabia, Robert Jordan, who had served as a personal lawyer for President Bush. Officials said Mr. Jordan first suggested the swap to senior State Department officials, but when Pentagon officials learned of the proposal, several objected, including the defense secretary, Donald H. Rumsfeld.
Jim Turner, a Pentagon spokesman, said he would not discuss the deliberations of Mr. Rumsfeld or other Pentagon officials related to detainees.
The Saudis initially refused to make a deal. But in February 2003, an agreement was reached in principle, people familiar with the discussions said. Prince Saud, the foreign minister, agreed to arrange pardons and release the five Britons and the two others if the United States would send home a handful of Saudi prisoners from Guantánamo, the American official with knowledge of the negotiations said.
Misgivings in Washington
One American official said the Saudi authorities put forward a list of about 15 candidates for release, which the Americans ultimately disregarded. Instead, Pentagon officials instructed military intelligence officers at Guantánamo to assemble their own list.
But even that list became the subject of controversy at an interagency meeting at the Pentagon in April 2003. Officials from the C.I.A., the Justice Department and the Defense Department ?- which had produced the list ?- all raised objections to different detainees, officials involved in the meeting said.
Although senior American foreign policy officials were eager to quicken the pace of prisoner releases from Guantánamo and entertain possible transfers to foreign governments, the Saudi case represented a departure that made many officials uncomfortable, "so everyone moved cautiously," one official said. "The problem was finding a group of people who could get through the interagency process."
Eventually, officials said, the Defense Department assistant secretary running the meeting, Marshall S. Billingslea, and the senior State Department representative, Pierre Richard Prosper, brokered a consensus among the agencies on five detainees.
For months, American negotiators had directly linked the transfer of the Saudis to the release of the British prisoners. But once the detainees were chosen, American diplomats were instructed by the State Department to avoid explicitly stating the quid pro quo in their final talks with the Saudi authorities, officials involved in the discussions said.
"We did not want to make it a clear quid pro quo swap, so we put a distance between them," one of the officials said. Referring to the Saudis' promised release of the British prisoners, he added, "We did obviously say we expected that to be resolved."
The same official said, "Everyone knew what the environment was, but diplomatically this was not a swap."
Throughout the negotiations, Defense Department officials expressed qualms, officials said. At one point, the department asked that the Saudis sign a promise to return the five prisoners if the United States ever requested it. Saudi officials immediately objected, and the request was later dropped.
"It was absurd," one person involved in the discussions said. "This was a 125-piece jigsaw puzzle. The Saudis wanted all the pieces, and the Pentagon did not want to let even a single one of those pieces loose."
In March 2003, just a few days before the American-led coalition invaded Iraq, King Fahd granted clemency to the seven Western prisoners, but did not release them. On May 14, the five Saudis from Guantánamo were flown to Riyadh ?- coincidentally just two days after three Western housing compounds were hit by car bombs in Riyadh, killing 35 people, including eight Americans.
Throughout the summer, the Saudis "dragged their feet" on releasing the Britons, one American said. Finally, in early August, the Britons, the Canadian and the Belgian flew out of Saudi Arabia.
"This presented itself as a way for the United States to help its friends, both the Brits and the Saudis," said the American with knowledge of the discussions. "It's what diplomacy is all about."
