Internal Justice Dept. Investigation Includes Yoo Torture Memo

Just how bad were John Yoo's now-infamous torture memos?

After numerous calls from Congress for the DoJ to get digging, the Justice Department's Office of Professional Responsibility told Congress in February that it is busy investigating Yoo's infamous August, 2002 torture memo. That one, signed by then Office of Legal Counsel chief Jay Bybee, limited the definition of torture to physical pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." It was the administration's so-called "golden shield" which permitted the CIA to use its most aggressive interrogation techniques, such as waterboarding.

And then in March of 2003 came Yoo's memo broadly authorizing the use of torture by military interrogators on unlawful combatants. Now OPR has told Sen. Sheldon Whitehouse (D-RI) that it will be investigating that memo, too.

It is far short of a criminal investigation. OPR's job is to police whether the Department's lawyers behave professionally, and so in this case, OPR's chief Marshall Jarrett has informed Congress that the investigation will be covering "whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys."

So the question for OPR will be whether Yoo came to his roundly-denounced conclusions in a professional, ethical manner. OPR's investigations are usually not publicly released, but Jarrett wrote that "OPR will consider releasing to Congress and the public a non-classified summary of our final report." There's no telling when that would be.

There are plenty of grumbles that the limited scope and independence of OPR's investigation (OPR reports to the attorney general) mean that it won't tell us enough and won't result in any changes. And Attorney General Michael Mukasey has already made it clear that no matter how deeply flawed an Office of Legal Counsel memo might have been (or be), anyone who relied on it "could not be the subject of a prosecution."

U.S. to televise Guantanamo trials to 9-11 families

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - The U.S. military will televise the Guantanamo trial of accused September 11 mastermind Khalid Sheikh Mohammed and five other suspects so relatives of those killed in the attacks can watch on the U.S. mainland.

"We're going to broadcast in real time to several locations that will be available just to victim families," Army Col. Lawrence Morris, chief prosecutor for the controversial war crimes court, said at the naval base recently.

In February, military prosecutors charged Mohammed and five other captives with murder and conspiracy and asked that they be executed if convicted of plotting to crash hijacked planes into New York's World Trade Center and the Pentagon in 2001.

No trial date has been set but they are the first Guantanamo prisoners charged with direct involvement in the attacks that killed nearly 3,000 people.

Morris said several of the victims' relatives asked to watch the trials at the detention center set up in Guantanamo Bay naval base to try foreign terrorism suspects.

The base sits on a dusty patch of the island of Cuba and does not have many flights, beds or courtroom seats to accommodate spectators.

The trials will be beamed to closed-circuit television viewing sites on military bases at Fort Hamilton in New York, Fort Monmouth in New Jersey, Fort Meade in Maryland and Fort Devens in Massachusetts, Morris said.

The military is borrowing a page from the civilian court sentencing hearing of Zacarias Moussaoui, a flight school student who is the only person convicted in the United States in connection with the September 11 plot. He pleaded guilty to conspiring with al Qaeda and was sentenced to life in prison.

U.S. federal courts normally ban cameras. But through an act of Congress, Moussaoui's 2006 court hearing in Virginia was shown by closed-circuit television to victims' families at courthouses in Boston, New York, New Jersey and Pennsylvania.

"We got much more information from those hearings than we ever got from the 9-11 Commission," said Lorie Van Auken, whose husband Kenneth died in the World Trade Center, referring to the investigation the U.S. Congress launched into the attacks.

FAIR TRIALS OR SHOW TRIALS?

Some of the victims' relatives praised the U.S. military for ensuring they had access to the Guantanamo proceedings.

Hamilton Peterson, whose father and stepmother, Donald and Jean Peterson, died on the plane that crashed in Pennsylvania, called the prosecutors "true patriots," and said he was grateful for "the ability to see justice being fulfilled in one of the most significant attacks on America's heartland."

Others urged the trials be televised nationwide without restriction because of the sweeping impact of the attacks.

The broadcasts will mark the first time a Guantanamo detainee's face has been shown publicly. The U.S. military prohibits journalists and other visitors from taking photographs or video that shows faces, citing a provision of the Geneva Conventions that aims to protect war captives from "insults and public curiosity."

The U.S. military lawyer assigned to defend Mohammed, Navy Capt. Prescott Prince, said if the trials are truly fair, then broadcasting them widely would prove that to the world. But he worried about setting a precedent by televising what he suspects will be show trials.

"I can just imagine American soldiers and sailors and airmen being subjected to similar show trials worldwide," he said.

He said he doubts the defendants can get a fair trial in the Guantanamo court because it accepts hearsay evidence that may have been obtained through cruel and dehumanizing means. The Geneva provision cited in shielding prisoners' faces also bans "acts of violence or intimidation," he noted.

The CIA held Mohammed in a secret prison for years and acknowledged interrogating him with methods that included the simulated drowning technique known as waterboarding.

Some of the victims' relatives also said they thought the trials should be held in a regular court, open to the public and using only "evidence that's above reproach."

"This is not about revenge, it's about justice," said Valerie Lucznikowska, a New Yorker whose nephew Adam Arias died in the World Trade Center.

"I don't want it to be a lynching. I'm concerned that people like Khalid Sheikh Mohammed, we won't be able to find them guilty because of what we've done with them. It's a horrible conundrum."

Pentagon Records Detail Prisoner Abuse

WASHINGTON - Military interrogators assaulted Afghan detainees in 2003, using investigation methods they learned during self-defense training, Pentagon documents released April 16 show.

Detainees at the Gardez Detention Facility in southeastern Afghanistan reported being made to kneel outside in wet clothing and being kicked and punched in the kidneys, nose and knees if they moved, according to the documents.

A 2006 Army review concluded that the detainees were not abused but that the incident revealed "misconduct that warrants further action."

The documents, which were turned over April 16 to the American Civil Liberties Union, focus on the 2003 death of Afghan detainee Jamal Nasser, who died in U.S. custody at the Gardez facility.

The documents detail interrogation techniques used on eight detainees, including Nasser, who were suspected of weapons trafficking.

The Army review found that abuse did not cause Nasser's death. But the documents include interviews with some interrogators who acknowledged slapping the detainees - a technique they learned during survival training at the Army's SERE school. SERE stands for Survive, Evade, Resist and Escape.

"You say you gave permission for (redacted) to hit detainees during interrogations; did you have a memorandum or order from your higher headquarters authorizing that?" a military criminal investigator asked one of the interrogators, according to a November 2004 transcript among the more than 300 pages of documents.

"No, I did not have a memorandum and had not seen one," the interrogator answered, according to the transcript. "I used tactics that were used in SERE."

The investigator continued: "Did you see (redacted) hit detainees during the interviews?"

"Yes, open or closed slaps, not punches," the interrogator answered.

In another interview that day, according to the documents, the Army investigator asks whether "you ever heard of a tactic of pouring cold water or a water and snow mix on persons captured?"

"They do spray cold water on prisoners," the interrogator answered, referring to SERE lessons. That interrogator was unaware, however, of men in his unit pouring cold water over the detainees, as the Afghans later complained.

ACLU attorney Amrit Singh said such interrogation techniques are taught at SERE schools only to show Soldiers how to withstand them from enemy captors. She called the methods, when used together, a form of torture.

"They were intended to be defensive methods, not offensive methods," Singh said. "This raises serious questions about the interrogation methods that were being applied in Afghanistan."

SERE methods were also used on detainees by military interrogators in Iraq and at Guantanamo Bay, Cuba, Singh said.

The Pentagon and the Army did not immediately respond to requests for comment April 16.

The 2004 criminal inquiry of Nasser's death was among a string of probes into alleged abuse of prisoners in U.S. jails in Afghanistan.

Trying to deflect the kind of scandal that followed the abuse of prisoners at the Abu Ghraib prison in Iraq, the commander of U.S. forces in Afghanistan ordered a review of their secretive network of about 20 jails at bases across Afghanistan.

Nasser was among eight detainees who were held at Gardez for between 18 and 20 days. The Army concluded he died of a stomach ailment.

Idaho attorneys to assist alleged al Qaeda kingpin

WASHINGTON -- The Navy officer assigned to defend reputed al Qaeda kingpin Khalid Sheik Mohammed said Monday he is assembling a four-attorney team to stave off the alleged 9/11 mastermind's death-penalty charges -- two military JAG officers and two lawyers from Boise, Idaho, who have defended an alleged terrorist before.

Navy Capt. Prescott ''Scott'' Prince was detailed to the case last week. He has yet to see Mohammed, a U.S.-educated Pakistani citizen known in intelligence circles as ``KSM.''

On Feb. 11, the Pentagon prosecutor identified Mohammed as the lead defendant in a proposed prosecution to try six detainees at the U.S. Navy base at Guantánamo Bay, Cuba, on capital murder conspiracy charges in the Sept. 11, 2001 attacks.

Prince said Boise law partners David Z. Nevin and Scott McKay have agreed to work as volunteer civilian defense counsel under a program sponsored by the American Civil Liberties Union and the National Association of Criminal Defense Lawyers.

In 2004, McKay and Nevin secured a federal court acquittal for a Saudi man, Sami al-Hussayen, 34, who was a doctoral candidate at the University of Idaho.

In U.S. anti-terror sweeps following the 9/11 attacks, Hussayen was accused of ''providing material support for terror,'' for allegedly serving as webmaster for a Muslim charity that the U.S. government called an al Qaeda front. He was cleared of all charges and returned to his native Saudi Arabia.

No stranger to unpopular cases, Nevin also won an acquittal for Kevin Harris, a friend of Randy Weaver's, accused of killing a U.S. marshall in the 1993 Ruby Ridge case.

In addition, the Pentagon's chief defense counsel for military commissions, Army Reserves Col. Steve David, was in the process of assigning another U.S. military lawyer or JAG, short for judge advocate general, to the KSM case.

Prince said in an interview that he would also add a paralegal, a translator and intelligence analyst to his team. Additionally, he was seeking Pentagon approval for a so-called ''mitigation expert'' on the case.

Prince said he anticipated ''a very complex documentary case,'' with lots of evidence to sift through in light of U.S. government disclosures that Mohammed had been held four years incommunicado, never seen a lawyer and was subjected to White House approved ``enhanced interrogation techniques.''

The CIA has confirmed that Mohammed was among three war-on-terror captives who was waterboarded in U.S. custody, a simulated drowning technique that Prince flatly labeled ``torture.''

Ultimately, under military commissions rules, it will be up to Mohammed to decide whether he will accept any of the attorneys.

In recent, non-capital cases brought before to the military commissions, three alleged al Qaeda foot soldiers have fired their Pentagon-paid defense lawyers, and said they would boycott their trials.

In those cases, conviction carries life in prison. Acquittal likewise means likely continued detention as the U.S. government argues that ''enemy combatants'' can be held at Guantánamo until the end of hostilities in the global war on terror.

In capital cases, conviction could carry execution although no system for carrying out the death penalty has been established at Guantánamo.

Prince said he hoped to introduce himself to Mohammed in coming weeks, after getting special security clearances governing former CIA held detainees at the remote U.S. Navy base.

Nevin and McKay need the same clearances and would meet him later, if Mohammed agrees to their volunteering to work on the case. It is believed that neither have ever visited the offshore detention center.

Both men declined through an assistant to comment on Monday.

An ACLU news release had earlier listed Nevin and McKay among leading national criminal defense lawyers whom the civil liberties group had enlisted for a nascent Guantánamo death-penalty defense program, to be called The John Adams project.

'Extraordinary-rendition' procedure unreliable, says CIA vet who created it

DURHAM, N.C. — The creator of the CIA's "extraordinary-rendition" program says he has always distrusted interrogation intelligence flowing from the controversial practice, given that the admissions it produced were usually "very tainted" by foreign agencies who jailed suspects at the behest of the United States.

Michael Scheuer, an outspoken anti-terrorism crusader, took part in a Duke University law-school panel on Friday. There, experts debated the future of the highly controversial snatch, jail and interrogate program that he created, and whether it should survive beyond the administration of U.S. President George W. Bush, which has often justified rendition as an intelligence gold mine.

In Canada, rendition has become synonymous with the process that resulted in Ottawa's Maher Arar spending a year in a Syrian jail, where he was beaten with electric cables during the first phases of his captivity. Canadian officials have apologized to the telecommunications engineer and compensated him with $10-million (U.S.), upholding that he was wrongly smeared in intelligence exchanges emanating from Canada, prior to the U.S. decision to render him.

The Bush administration has proven far less contrite in the Arar affair and similar cases, blocking lawsuits on the grounds that probing rendition would illegally spill state secrets.

An estimated 100 to 150 people have been rendered to foreign prisons by the U.S. program, of which Mr. Scheuer remains a big booster. Now retired, he created the program when he was a Central Intelligence Agency analyst tasked with hunting down Osama bin Laden. He said the program has been enormously valuable, at least in terms of taking high-level terrorists off the streets and seeing what documents they carried.

But he added that resulting interrogations proved dubious once suspects were sent to third-country prisons, such as Syria or Egypt. "You could bet on the testimony given to you, it was altered in a way that would serve the interests of the country that was giving it," he said. "So, it was very tainted, in the sense that if Country X or Country Y interrogated these people, you would really have some information, but it would be far from coupled with what was actually being said."

Mr. Scheuer didn't dispute that torture has occurred in foreign jails where the United States sent suspects - "You'd have to assume that 80 per cent [of prisoners rendered to Egypt] are not going to have a good time," he said - but said simply that he didn't particularly care. "I'm perfectly happy to do anything to defend the United States, so long as the lawyers sign off on it," he said.

After 9/11, the Bush administration decided to enhance Mr. Scheuer's pre-existing rendition program with international "black-site" prisons where U.S. officials would lead interrogations in secret CIA jails. "I am much less experienced in the Bush administration," Mr. Scheuer conceded. "I ran rendition operations from July '95 until June of '99."

Speaking at Duke, Mr. Scheuer did put some distance between the program he hatched in 1995 and events that occurred after 2001. "The bar was lowered after 9/11," he said.

In addition to Mr. Arar's case in Canada, high-profile renditions controversies have arisen in Germany and Italy. Mr. Scheuer made a point of saying he would personally put the German suspect back on a rendition plane, but did not say the same that about the other two cases. The program he conceived was restricted to targeting only the highest level terrorism suspects, he said.

Questioned about the Arar affair, Mr. Scheuer asserted that that rendition was not technically a CIA job, but rather an FBI initiative, by agents working in cahoots with unspecified agencies north of the border.

That prompted a response from Canadian lawyer Ron Atkey, who was in attendance to give a speech about the years he spent inside the Arar Commission battling government secrecy to reveal what Canada knew about the CIA rendition program.

Mr. Atkey pointed out Canadian agencies were found to have had no foreknowledge of the U.S. decision to put Mr. Arar on a Gulfstream jet and fly him to the Middle East, after his 2002 arrest in a New York airport.

"The biggest piece of baloney," Mr. Scheuer said. "They [the Canadians] were totally surprised like Captain Renault in Casablanca," he quipped.

The allusion referred to a scene in the 1942 film, where a duplicitous French gendarme shuts down an illegal casino operation in Morocco - saying "I'm shocked, shocked to find out that gambling is going on in here!" even as he is handed a big win from the roulette wheel.

Mr. Scheuer went on to describe certain U.S. newspaper reporters as "scurrilous" traitors for revealing details of the rendition program.

After the panel, however, he said he wasn't necessarily familiar with the domestic investigations that led to the Arar affair.