Attorney general tells law grads that attorneys shouldn't be punished for protecting country

Attorney General Michael Mukasey is defending former government lawyers who drew up the legal basis of the Bush administration's use of harsh interrogation methods against terror suspects.

Mukasey told Boston College Law School graduates Friday that lawyers doing their part to protect the country in the aftermath of the Sept. 11 attacks should not now be held liable or face criminal charges for doing so.

Mukasey did not mention any specific lawyers by name.

Former Deputy Assistant Attorney General John Yoo is facing at least one civil lawsuit and demands for his firing from Berkeley Law School. Yoo worked in the Justice Department's Office of Legal Counsel from 2001 to 2003.

While there, he wrote several memos legally defending the use of harsh interrogation tactics which are now under criticism by human rights groups and members of Congress. Yoo's memos concluded that President Bush has broad, unfettered wartime authority that cannot be limited by domestic law or international bans on torture.

One memo defined torture, as recognized by U.S. law, as covering "only extreme acts" causing pain similar in intensity to that caused by organ failure or accompanying death.

An internal Justice Department investigation is now considering whether such advice was improper.

At the Friday ceremony, Mukasey lambasted critics seeking to bring lawsuits or charges against the lawyers. "The rhetoric of these discussions is hostile and unforgiving," Mukasey said in his prepared remarks.

Mukasey's confirmation as attorney general briefly stalled over the issue of waterboarding, an interrogation method simulating drowning that critics call torture. He has since refused to say whether waterboarding is illegal since it is no longer used by the CIA or military interrogators.

Top Bush aides pushed for Guantánamo torture

Senior officials bypassed army chief to introduce interrogation methods

America's most senior general was "hoodwinked" by top Bush administration officials determined to push through aggressive interrogation techniques of terror suspects held at Guantánamo Bay, leading to the US military abandoning its age-old ban on the cruel and inhumane treatment of prisoners, the Guardian reveals today.

General Richard Myers, chairman of the US joint chiefs of staff from 2001 to 2005, wrongly believed that inmates at Guantánamo and other prisons were protected by the Geneva conventions and from abuse tantamount to torture.

The way he was duped by senior officials in Washington, who believed the Geneva conventions and other traditional safeguards were out of date, is disclosed in a devastating account of their role, extracts of which appear in today's Guardian.

In his new book, Torture Team, Philippe Sands QC, professor of law at University College London, reveals that:

· Senior Bush administration figures pushed through previously outlawed measures with the aid of inexperienced military officials at Guantánamo.

· Myers believes he was a victim of "intrigue" by top lawyers at the department of justice, the office of vice-president Dick Cheney, and at Donald Rumsfeld's defence department.

· The Guantánamo lawyers charged with devising interrogation techniques were inspired by the exploits of Jack Bauer in the American TV series 24.

· Myers wrongly believed interrogation techniques had been taken from the army's field manual.

The lawyers, all political appointees, who pushed through the interrogation techniques were Alberto Gonzales, David Addington and William Haynes. Also involved were Doug Feith, Rumsfeld's under-secretary for policy, and Jay Bybee and John Yoo, two assistant attorney generals.

The revelations have sparked a fierce response in the US from those familiar with the contents of the book, and who are determined to establish accountability for the way the Bush administration violated international and domestic law by sanctioning prisoner abuse and torture.

The Bush administration has tried to explain away the ill-treatment of detainees at Guantánamo Bay and Abu Ghraib prison in Iraq by blaming junior officials. Sands' book establishes that pressure for aggressive and cruel treatment of detainees came from the top and was sanctioned by the most senior lawyers.

Myers was one top official who did not understand the implications of what was being done. Sands, who spent three hours with the former general, says he was "confused" about the decisions that were taken.

Myers mistakenly believed that new techniques recommended by Haynes and authorised by Rumsfeld in December 2002 for use by the military at Guantánamo had been taken from the US army field manual. They included hooding, sensory deprivation, and physical and mental abuse.

"As we worked through the list of techniques, Myers became increasingly hesitant and troubled," writes Sands. "Haynes and Rumsfeld had been able to run rings around him."

Myers and his closest advisers were cut out of the decision-making process. He did not know that Bush administration officials were changing the rules allowing interrogation techniques, including the use of dogs, amounting to torture.

"We never authorised torture, we just didn't, not what we would do," Myers said. Sands comments: "He really had taken his eye off the ball ... he didn't ask too many questions ... and kept his distance from the decision-making process."

Larry Wilkerson, a former army officer and chief of staff to Colin Powell, US secretary of state at the time, told the Guardian: "I do know that Rumsfeld had neutralised the chairman [Myers] in many significant ways.

"The secretary did this by cutting [Myers] out of important communications, meetings, deliberations and plans.

"At the end of the day, however, Dick Myers was not a very powerful chairman in the first place, one reason Rumsfeld recommended him for the job".

He added: "Haynes, Feith, Yoo, Bybee, Gonzalez and - at the apex - Addington, should never travel outside the US, except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In future, some government may build the case necessary to prosecute them in a foreign court, or in an international court."

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."

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.

New roadblocks delay tribunals at Guantánamo

GUANTÁNAMO BAY, Cuba: When military officials announced war crimes charges against six detainees for the Sept. 11 attacks two months ago, the move was part of an effort to accelerate the Bush administration's sluggish military commission system, which has yet to hold a single trial.

But the Sept. 11 case immediately hit a snag. Military defense lawyers were in short supply, and even now, two months later, not one of the six detainees has met his military lawyer.
The delay in getting lawyers to those detainees, which largely grew out of a struggle within the Pentagon over legal resources, is indicative of the confounding obstacles facing this latest effort to expedite the military tribunals.

Since fall, when charges had been lodged against just three detainees, military officials have charged 12 more terrorism suspects. Yet there is a growing consensus among lawyers inside and outside the military that few of those cases are likely to actually come to trial before the end of the Bush administration.

"Speed is going to be very, very difficult to accomplish here," said Stephen Saltzburg, a military law expert at George Washington University. "They may be overconfident that if they just push ahead, all the ducks will end up in a row. I don't think that's going to happen."

The road to a trial is difficult in some cases partly because they involve potential death penalties and claims of torture by interrogators, issues that raise thorny legal questions that could take months or longer to sort out. But even comparatively simple cases without capital penalty issues are proceeding slowly.

In addition, just as the Pentagon is pushing to try cases in part to show the viability of the tribunal system, some civil liberties groups and defense lawyers are working to slow the pace, partly to keep the system from gaining legitimacy by eliciting testimony against terrorism suspects that could inflame Americans. They say they plan a dizzying array of challenges to try to prevent any significant number of what they call political trials.

They are particularly focused on the Sept. 11 case, which for more than six years has been expected to be the centerpiece of the Bush administration's military commission system.
"The government can be assured that this will not be a quick show trial," said Anthony Romero, executive director of the American Civil Liberties Union. "Not if we can help it."

The ACLU and the National Association of Criminal Defense Lawyers announced a plan last week to provide experienced defense lawyers for some detainees.

The standoff over the military lawyers for the Sept. 11 suspects grew out of a long-running dispute over legal resources at the Pentagon. The chief military defense lawyer for Guantánamo, Colonel Steven David, said in an interview that he lacked enough experienced lawyers and other staff members.

Guantánamo military defense lawyers have long said they are not given resources by the Pentagon to match the investigative capability of the military prosecution, which draws on the Federal Bureau of Investigation, Central Intelligence Agency and other agencies. Until a handful of new military lawyers were appointed this week to represent Sept. 11 defendants, the military defense office was sharply outnumbered, with 15 defense lawyers to battle 31 prosecutors.

But Brigadier General Thomas Hartmann, an official of the Office of Military Commissions at the Pentagon, argued that the defense office was staffed well enough to have begun to defend the Sept. 11 case the day it was announced.

In a recent interview, Hartmann, who has been pressing to move more quickly on the Guantánamo cases, made clear that he was impatient. "You have to get the train moving so you can get to a destination," he said. "And the train hadn't been moving."

But even with enough lawyers, David said, there were countless impediments to quick trials, including questions about how the tribunals are to deal with detainees' claims of torture. Lacking precedents and clear rules, he said, "there are issues within issues within issues."

At a news conference here on Wednesday, the deputy chief military prosecutor, Colonel Bruce Pagel, said that while the government wanted quick trials, the pace would largely be determined by military judges.

"There is just no predicting that," Pagel said. "There are just too many variables."
Each of the 14 cases now pending presents legal tangles. In one, the morass grew so thick that the judge scheduled pretrial proceedings after the date he had set for the trial, evidently realizing that there were too many unresolved issues to rush the case. In another, a detainee refused to leave his cell for an arraignment and had to be forcibly extracted.

On Wednesday, proceedings were delayed when a detainee complained that the tribunal translation was flawed. After that was resolved, the detainee, Ahmed Mohammed Ahmed Haza al Darbi, declared the proceeding political and refused to participate, adding, "History will record these trials as a scandal against you."

Prosecutors planned this week to arraign two suspects, one who they say was a Qaeda paymaster and the other, they say, a propaganda chief. But that rudimentary step is not to go off as they had hoped. The case of the propaganda chief had to be postponed because his military lawyer had recently left the defense office, taking that case back to its starting point.

By chance, the alleged paymaster and the alleged propaganda chief were the first ones identified for war crimes trials by the Pentagon back in 2004. Yet all Guantánamo cases were derailed in 2006 when the Supreme Court struck down the Bush administration's first war crimes system.

The first trial of a detainee under the new system is now scheduled for May 28. But defense lawyers for that defendant, Salim Ahmed Hamdan, who was a driver for Osama bin Laden, have filed nearly 30 legal motions, raising questions that included procedural issues and basic challenges to the Guantánamo system itself.

Andrea Prasow, one of Hamdan's lawyers, said her experience in a comparatively simple Guantánamo case showed the extraordinary complexities that seem certain to entangle all of the battles here.

It may be possible, Prasow said, for one or two cases to be tried by the fall. But, she said, "I don't see how it is remotely possible for the others to get under way."

Some of the defense requests in Hamdan's case show the kinds of issues that are tying prosecutors in knots. His lawyers have accused Pentagon officials of improperly influencing the prosecution by directing that charges be filed for political reasons and, the lawyers said, demanding "sexy" cases to attract public attention. They also claim that Hamdan is so psychologically damaged by the conditions under which he has been held that he is incapable of assisting his lawyers.

The Hamdan defense has worried prosecutors by winning the right to submit written questions to four detainees who were formerly held in secret CIA prisons.

The request to question prisoners like Khalid Shaikh Mohammed, the self-proclaimed mastermind of the Sept. 11 attack, brought strong objections from prosecutors who said it could be a national security threat.

When a military judge allowed very limited written questions, the prosecutors pleaded with him to reconsider. The judge stuck with his ruling.

But a major battle is expected if, as seems likely, Hamdan's defense follows that request with a demand that those former CIA detainees be called to testify in public.

J. Wells Dixon, a lawyer at the Center for Constitutional Rights, said the charges, which seek the death penalty against the six men charged with the 2001 attack, are so complex that defense teams in those cases will need months, if not years, to prepare. The center represented one of the six men in a case challenging his detention before the war crimes charges were filed.

"There is no possibility," Dixon said, "that these cases are going to proceed to trial any time soon."

Hartmann said trials in any system could be subject to delays. But he said he had told military prosecutors and court officials not to get distracted as problems cropped up.

"My guidance to people," he said, "is 'keep moving' and when the rocks start to fall on you, you move a little faster."

Pentagon Releases DOJ Torture Memo

WASHINGTON - The Pentagon made public a now-defunct legal memo that approved the use of harsh interrogation techniques against terror suspects, saying that President Bush's wartime authority trumps any international ban on torture.

The Justice Department memo, dated March 14, 2003, outlines legal justification for military interrogators to use harsh tactics against al-Qaida and Taliban detainees overseas - so long as they did not specifically intend to torture their captives.

Even so, the memo noted, the president's wartime power as commander in chief would not be limited by the U.N. treaties against torture.

"Our previous opinions make clear that customary international law is not federal law and that the president is free to override it at his discretion," said the memo written by John Yoo, who was then deputy assistant attorney general for the Office of Legal Counsel.

The memo also offered a defense in case any interrogator was charged with violating U.S. or international laws.

"Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate those prohibitions, necessity or self-defense could provide justifications for any criminal liability," the memo concluded.

The memo was rescinded in December 2003, a mere nine months after Yoo sent it to the Pentagon's top lawyer, William J. Haynes. Though its existence has been known for years, its release Tuesday marked the first time its contents in full have been made public.

Haynes, the Defense Department's longest-serving general counsel, resigned in late February to return to the private sector. He has been hotly criticized for his role in crafting Bush administration policies for detaining and trying suspected terrorists that some argue led to prisoner abuses at the detention center in Guantanamo Bay, Cuba.

Yoo's memo became part of a debate among the Pentagon's civilian and military leaders about what interrogation tactics to allow at overseas facilities and whether U.S. troops might face legal problems domestically or in international courts.

Also of concern was whether techniques used by U.S. interrogators might someday be used as justification for harsh treatment of Americans captured by opposing forces.

The Justice Department has opened an internal investigation into whether its top officials improperly authorized or reviewed the CIA's use of waterboarding, which simulates drowning, when interrogating terror suspects. It was unclear whether the Yoo memo, which focuses only on military interrogators, will be part of that inquiry.

The declassified memo was released as part of an American Civil Liberties Union lawsuit to force the Bush administration to turn over documents about the government's war on terror. The document also was turned over to lawmakers.

Justice Department spokesman Brian Roehrkasse said its release "represents an accommodation of Congress' oversight interest in the area of wartime interrogations."

Jameel Jaffer, director of the ACLU's national security project, said Yoo's legal reasoning puts "literally no limit at all to the kinds of interrogation methods that the president can authorize."

"The whole point of the memo is obviously to nullify every possible legal restraint on the president's wartime authority," Jaffer said. "The memo was meant to allow torture, and that's exactly what it did."

The 81-page legal analysis largely centers on whether interrogators can be held responsible for torture if torture is not the intent of the questioning. And it defines torture as the intended sum of a variety of acts, which could include acid scalding, severe mental pain and suffering, threat of imminent death and physical pain resulting in impaired body functions, organ failure or death.

The "definition of torture must be read as a sum of these component parts," the memo said.

The memo also includes past legal defenses of interrogations that Yoo wrote are not considered torture, such as sleep deprivation, hooding detainees and "frog crouching," which forces prisoners to crouch while standing on the tips of their toes.

"This standard permits some physical contact," the memo said. "Employing a shove or slap as part of an interrogation would not run afoul of this standard."

The memo concludes that foreign enemy combatants held overseas do not have defendants' rights or protections from cruel and unusual punishment that U.S. citizens have under the Constitution. It also says that Congress "cannot interfere with the president's exercise of his authority as commander in chief to control the conduct of operations during a war."

Senate Judiciary Committee Chairman Patrick Leahy said the memo "reflects the expansive view of executive power that has been the hallmark of this administration." He called for its release four months ago.

"It is no wonder that this memo ... could not withstand scrutiny and had to be withdrawn," said Leahy, D-Vt. "This memo seeks to find ways to avoid legal restrictions and accountability on torture and threatens our country's status as a beacon of human rights around the world."

Gitmo Prisoner Charged in ’98 Embassy Attack

SAN JUAN, Puerto Rico - A Guantanamo detainee who allegedly helped plan the 1998 bombing of the U.S. Embassy in Tanzania that killed 11 people was charged Monday with war crimes that carry a possible death penalty.

Ahmed Kalfan Ghailani - who was held in secret CIA custody before being transferred in 2006 to the U.S. military prison in Cuba - also allegedly purchased and transported the explosives used in the attack and scouted the embassy with a suicide bomber.

Al-Qaida's twin suicide truck-bomb attacks on the U.S. Embassies in Tanzania and Kenya on Aug. 7, 1998, killed some 236 people, including 12 Americans, and injured more than 4,000. No Americans died in the attack in Dar Es Salaam, Tanzania.

U.S. Air Force Brig. Gen. Thomas Hartmann told a Washington news conference that Ghailani, a Tanzanian, faces charges that include murder, attacking civilians and terrorism. The attack on the embassy in Tanzania was not as devastating as the one in Kenya because an embassy water tanker apparently prevented the suicide bomber from penetrating the perimeter.

Ghailani, who was captured after a gunbattle in Gujrat in eastern Pakistan in July 2004, told a military panel at Guantanamo in March 2007 that he unwittingly delivered the explosives for the attack, didn't know about it beforehand and was sorry.

"It was without my knowledge what they were doing, but I helped them," he told the panel, according to a transcript released by the Pentagon. "So I apologize to the United States government for what I did. And I'm sorry for what happened to those families who lost, who lost their friends and their beloved ones."

A senior Pentagon legal official, Susan Crawford, must review and approve the filed charges before any legal proceedings can begin against Ghailani.

The U.S. has so far filed charges against 15 prisoners at Guantanamo and convicted one, Australian David Hicks, in a March 2007 plea bargain. Several detainees have appeared before the tribunal for arraignments or pretrial hearings. The first actual trials are expected to begin in late spring or early summer.

The U.S. now holds about 275 men at Guantanamo and military officials say they expect to file war crimes charges against about 80.

Lawyer: Gitmo trials pegged to '08 campaign

The Navy lawyer for Osama bin Laden's driver argues in a Guantánamo military commissions motion that senior Pentagon officials are orchestrating war crimes prosecutions for the 2008 campaign.

The Pentagon declined late Friday to address the defense lawyer's allegations, noting that the matter is under litigation.

The brief filed Thursday by Navy Lt. Cmdr. Brian Mizer directly challenged the integrity of President Bush's war court.

Notably, it describes a Sept. 29, 2006, meeting at the Pentagon in which Deputy Defense Secretary Gordon England, a veteran White House appointee, asked lawyers to consider Sept. 11, 2001, prosecutions in light of the campaign.

''We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election,'' England is quoted as saying.

A senior Pentagon spokesman, Bryan Whitman, declined to address the specifics, saying ``the trial process will surface the facts in this case.''

''It has always been everybody's desire to move as swiftly and deliberately as possible to conduct military commissions,'' he added. ``But I can tell you emphatically that leadership has always been extraordinarily careful to guard against any unlawful command influence.''

The brief quotes England as a stipulation of fact and cites other examples of alleged political interference, which Mizer argues makes it impossible for Salim Hamdan, 37, to have a fair trial.

It asks the judge, Navy Capt. Keith Allred, to dismiss the case against Hamdan as an alleged 9/11 co-conspirator on the grounds that Bush administration leadership exercises ``unlawful command influence.''

Allred has set hearings at Guantánamo for April 30.

Hamdan is the former Afghanistan driver of al Qaeda leader Osama bin Laden whose lawyers challenged an earlier war court format to the U.S. Supreme Court, which struck down the war court as unconstitutional.

Pentagon prosecutors call him a war criminal for driving bin Laden in Afghanistan before and during the 9/11 attacks and allegedly working as his sometimes bodyguard. Even if he didn't help plot the suicide attacks, they argue, he is an al Qaeda co-conspirator.

As described the Hamdan brief, the England meeting came three weeks after President Bush disclosed in a live address that he had ordered the CIA to transfer ''high-value detainees'' from years of secret custody to Guantánamo for trial.

Bush also disclosed that the CIA used ''an alternative set of procedures'' to interrogate the men into confessing -- since revealed by the CIA director, Air Force Gen. Michael V. Hayden, to include waterboarding.

They included reputed 9/11 mastermind Khalid Sheik Mohammed and four other men against whom the Pentagon prosecutor swore out death-penalty charges in a complex Sept. 11, 2001, conspiracy case on Feb. 11.

The proposed 90-page charge sheets list the names of 2,973 victims of the 9/11 attacks. The men have not been formally charged. Instead they are in the control of a White House appointee, Susan J. Crawford, whose title is the war court's convening authority, and her legal advisor, Brig. Gen. Thomas Hartmann.

Under the law governing the commissions, the alleged 9/11 conspirators would formally be charged 30 days after Crawford approves them.

That currently leaves a seven-month window during the 2008 election campaign.

An expert on military justice, attorney Eugene Fidell, said the Hamdan motion brings into sharp relief the problem of Pentagon appointees' supervisory relationship to the war court.

''It scrambles relationships that ought to be kept clear,'' said Fidell, president of the National Institute of Military Justice.

The quote attributed to England is ``enough that you'd want to hold an evidentiary hearing about it, with live witnesses. It does strike me as disturbing for there to be even a whiff of political considerations in what should be a quasi-judicial determination.''

England is a two-term White House appointee. He joined the Bush administration in 2001 as Navy secretary, briefly served as deputy Homeland Security secretary and then returned to the Pentagon, where he supervised the prison camps' administrative processes.

Crawford was a Republican attorney appointee in the Pentagon when Vice President Dick Cheney was defense secretary.

Hamdan's military lawyer argues that standard military justice has barriers that separate various functions, which he contends Pentagon appointees have crossed in the war court.

In April the defense team plans to call the former chief prosecutor, Air Force Col. Morris Davis, who recounted the England remark since submitting his resignation, claiming political interference.

Davis, who had approved charges against Hamdan, served as former chief Pentagon prosecutor until he resigned over what he called political interference by general counsel William J. Haynes.

Haynes has since quit.

They also want to call as a witness the deputy chief defense counsel, a retired Army lawyer named Michael Berrigan, who, according to the filing, was mistakingly sent a draft copy of 9/11 conspiracy charges being prepared by the prosecution.

In the filing, Hartmann, the legal advisor, orders Berrigan to return it, which the defense team claims illustrates the muddied role of the legal advisor.

He supervised the prosecution, announced the 9/11 conspiracy charges on Feb. 11, then said he would evaluate them independently and recommend to Crawford how to proceed.

The Mizer motion is also the latest attack on the legitimacy of war-court prosecutions by a variety of feisty uniformed defense attorneys, who have doggedly used civilian courts and courted public opinion against the process since the earliest days.

Mizer sent the brief directly to reporters for major news organizations, rather than leave it to the Office of Military Commissions to post it on a Pentagon website.

The Pentagon has been releasing motions for the public to read after they have been argued -- and ruled on by the judge.

With delays in other cases, the Hamdan case is now on track to be the first full-blown U.S. war-crimes tribunal since World War II.

The current time frame would put the trial before the Supreme Court rules on an overarching detainee rights case in June.

Military judge rules for driver's defense

For a third time, a military judge has authorized lawyers for Osama bin Laden's driver to send questions to alleged al Qaeda kingpins in segregation at Guantánamo.

The ruling by Navy Capt. Keith Allred rejected national security arguments raised by Pentagon prosecutors. The military judge also sounded dismissive of a government argument that the driver could have conspired in the Sept. 11, 2001, attacks without knowing about the suicide plot.

Specifically, Allred authorized the lawyers to ask reputed mastermind Khalid Sheik Mohammed whether the driver was a part of the 9/11 suicide plot and other al Qaeda attacks.

'The issue of whether the accused was `merely a driver,' or knew the unlawful purpose and was actively engaged in the unlawful work of al Qaeda seems to be very much at issue,'' Allred wrote in the four-page ruling, dated Friday.

The Pentagon made it public on Wednesday, intact, with no portions blacked out. Earlier judges' rulings have been censored.

It was the latest setback to Pentagon prosecution efforts to limit the discovery phase before the separate military trials of the driver, Salim Ahmed Hamdan of Yemen, and Canadian captive Omar Khadr. Both are slated to face military commissions this summer.

Pentagon prosecutors had three times resisted the judge's plan to let Hamdan's lawyers ask questions of seven former CIA captives. They have been at Guantánamo since September 2006 and are now held as ''Task Force Platinum'' prisoners,at a segregated site set up secretly by the military, called Camp 7.

Under the scheme, devised by Allred, defense lawyers submit questions for Mohammed and the others to an independent security officer who works for the judge, not the prosecution.

The judge limited the substance to the time before Hamdan's capture in November 2001 in Afghanistan, and before the men were held and interrogated secretly by the CIA overseas -- meaning they cannot divulge U.S. interrogation techniques.

The security officer will have the questions translated, as well as the answers -- and then black out any responses that don't cover that time period.

Allred said in his ruling that national security could be safeguarded by the special security review.

Even before the Pentagon made the ruling public, defense lawyers had on Tuesday already submitted written questions for four of the men, chief among them the man known in CIA circles as KSM, Mohammed.

Navy Lt. Cmdr. Brian Mizer, Hamdan's Pentagon appointed defense counsel, called Allred's ruling ``a real rebuke of the government's dragnet theory of conspiracy as well as granting us access to these detainees.''

The questions for Mohammed specifically ask, ''What was Hamdan's involvement in Sept. 11,'' said Mizer.

Based on their research, he said, the answer should be, ``nothing.''

Hamdan, 36, is accused of being a driver and sometime bodyguard for Bin Laden prior to the 9/11 attacks in Afghanistan. He is broadly charged as a co-conspirator in the terror plot and other al Qaeda attacks. Conviction carries life in prison.

Hamdan has admitted that he worked for bin Laden, and earned $200 a month as a driver. But he says he never joined al Qaeda and did not plot any attacks.

Allred wrote: ``It is not unfair to permit the Defense to seek to show that while he may have been a bodyguard and driver, he knew little or nothing about the inner workings of this conspiracy, or that was not a party to it, if they can.''

The Pentagon has yet to release the prosecutor's brief opposing access.

But Allred seemed to hint at government concerns in fashioning the question-and-answer format. If the security officer detects one captive trying to send a message to another ''colleague or a confederate,'' the judge wrote, the security officer can delete the answer, or summarize it.

Last week, an Army judge in the Khadr case also ruled five times for the defense on discovery issues.

In one instance, Army Col. Peter Brownback ordered the Pentagon to let defense attorneys take a deposition from the battalion commander at Khadr's July 2002 capture in Afghanistan.

Prosecutors had argued that Khadr's lawyers should only be allowed to question the officer at the trial. He has been identified in court only as ``Lt. Col. W.''

One issue is why ''Lt. Col. W'' rewrote a portion of a battlefield account of Khadr's capture, two months after the fact, which could help convict him.

In the case of access to the so-called high-value detainees, Allred had agreed to the defense request in early February at a hearing at Guantánamo.

Then, the prosecutor, Army Lt. Col. Will Britt, objected in court -- and told the judge that military commission guidelines forbid him from ruling wholesale on the question of access. Rather, Britt told the judge, he needed to consider access piecemeal, on a case-by-case basis.

Allred then issued a written ruling in mid February, laying out the terms of access and ordering the government to establish an independent Security Officer who does not work for the prosecution.

The prosecution immediately filed for reconsideration.

It was not immediately clear Wednesday whether the prosecution would be appealing Allred's latest decision.

C.I.A. Secretly Held Qaeda Suspect, Officials Say

WASHINGTON — The Central Intelligence Agency secretly detained a suspected member of Al Qaeda for at least six months beginning last summer as part of a program in which C.I.A. officers have been authorized by President Bush to use harsh interrogation techniques, American officials said Friday.

The suspect, Muhammad Rahim, is the first Qaeda prisoner in nearly a year who intelligence officials have acknowledged has been in C.I.A. detention. The C.I.A. emptied its secret prisons in the fall of 2006, when it moved 14 prisoners to Guantánamo Bay, Cuba, but made clear that the facilities could be used in the future to house high-level terrorism suspects.

Mr. Bush has defended the use of the secret prisons as a vital tool in American counterterrorism efforts, and last July he signed an executive order that formally reiterated the C.I.A.’s authority to use interrogation techniques more coercive than those permitted by the Pentagon.

Mr. Bush used his veto power last weekend to block legislation that would have prohibited the agency from using the techniques, and this week the House of Representatives failed to override the veto.

Military and intelligence officials said that Mr. Rahim was transferred earlier this week to the military prison at Guantánamo Bay. In a message to agency employees on Friday, Gen. Michael V. Hayden, the C.I.A. director, said Mr. Rahim had been put into the C.I.A. program because of “his past and the continuing threat he presented to American interests.”

Intelligence officials would not say whether the C.I.A. had used any of what it calls an approved list of “enhanced” interrogation techniques against Mr. Rahim during his months in secret detention.

“This detention, like others, was conducted in accordance with U.S. law,” said Paul Gimigliano, a C.I.A. spokesman. He declined to say whether the C.I.A. currently had custody of any other prisoners.

Government officials described Mr. Rahim, an Afghan who has fought battles for two decades, as a Qaeda planner and facilitator who at times in recent years had been a translator for Osama bin Laden.

They said he was captured and detained by local forces last summer in a country they would not name before being transferred to C.I.A. custody. Pakistani newspapers reported last summer that Pakistani operatives arrested Mr. Rahim in Lahore in August.

Before Mr. Rahim, the last prisoner the C.I.A. acknowledged it had detained was Abd al-Hadi al-Iraqi, an Iraqi Kurd held by the agency for six months before being transferred to Guantánamo last April.

In his message to C.I.A. employees on Friday, General Hayden called Mr. Rahim a “tough, seasoned jihadist” with “high-level contacts” who at times had served as a personal translator for Mr. bin Laden. The message said that in 2001, Mr. Rahim helped prepare the Afghan cave complex of Tora Bora as a hideout for Qaeda fighters fleeing the American-led offensive.

According to an American counterterrorism official, Mr. Rahim is in his 40s and is a native of Nangarhar Province in Afghanistan, a rugged mountain territory that has long been a hive of jihadi activity.

The counterterrorism official, who spoke on the condition of anonymity because he was not authorized to speak publicly, said that Mr. Rahim had attended radical madrasas, or religious schools, in Pakistan.

The Bush administration last month formally charged six Qaeda operatives said to have been involved in plotting the Sept. 11 attacks. Five of the six detainees, including Khalid Sheikh Mohammed, the alleged mastermind of the attacks, had been in C.I.A. custody until September 2006, when they were among the 14 prisoners moved to Guantánamo.

Military prosecutors have decided to seek the death penalty against the six men, government officials have said. During a speech on Friday in London, Attorney General Michael B. Mukasey said he hoped that the six men would not receive the death penalty. If they were to be executed, he said, “they would see themselves as martyrs.”

Also on Friday, a lawyer representing Majid Khan, who had spent more than three years in the C.I.A.’s secret prisons, briefed Senate Intelligence Committee staff members on her client’s description of his treatment there as torture. The lawyer, Gitanjali Gutierrez of the Center for Constitutional Rights, is the first lawyer to speak to Congress after meeting with a prisoner who was in the C.I.A. program.

The 90-minute meeting was closed, and Ms. Gutierrez said that she could not reveal what Mr. Khan had said about his treatment because the government declared prisoners’ statements to be classified.

Ms. Gutierrez said her testimony was aimed at giving Congress independent information on the C.I.A. program, which she said “is operating criminally, shamefully and dangerously.” C.I.A. officials say all of the agency’s interrogation techniques were lawful at the time they were used.

Cheney may have leaked secret video in Gitmo case

Lawyers for Guantanamo Bay detainee Omar Khadr have alleged that Vice President Dick Cheney’s office leaked a secret video of Khadr in Afghanistan to CBS’ 60 Minutes after a judge denied a prosecution request to play the video in court. Former Gitmo chief prosecutor Col. Morris Davis told Lt. Cmdr. William Kuebler — Khadr’s lawyer — that Cheney’s office may have been involved. Kuebler said that if proven, the leak is a “clear violation of the protective orders that are in place” in the case.

Former chief prosecutor at Guantánamo Bay becomes a chief critic

Until four months ago, Colonel Morris Davis was the chief prosecutor at Guantánamo Bay and the most colorful champion of the Bush administration’s military commission system. He once said sympathy for detainees was nauseating and compared putting them on trial to dragging “Dracula out into the sunlight.”

Then in October he had a dispute with his boss, a general. Ever since, he has been one of those critics who will not go away: a former top insider, with broad shoulders and a well-pressed uniform, willing to turn on the system he helped run.

Still in the military, he has irritated the administration, asserting in articles and interviews that Pentagon officials interfered with prosecutors, exerted political pressure and approved the use of evidence obtained by torture.

Now, Davis has taken his most provocative step, completing his transformation from Guantánamo’s chief prosecutor to its new chief critic. He has agreed to testify at Guantánamo on behalf of one of the detainees, Salim Ahmed Hamdan, a driver for Osama bin Laden.

Davis, a career military lawyer nearing retirement at 49, said that he would never argue that Hamdan was innocent but that he was ready to try to put the commission system itself on trial by questioning its fairness.

He said that there was “a potential for rigged outcomes” and that he had “significant doubts about whether it will deliver full, fair and open hearings.”

“I’m in a unique position where I can raise the flag and aggravate the Pentagon and try to get this fixed,” he said, acknowledging that he was enjoying some aspects of his new role.

He was replaced as chief Guantánamo prosecutor after he stepped down but is still a senior legal official for the air force.

Among detainees’ advocates, there has been something of a gasp since it was announced last week that Davis would be taking the witness stand in April.

Hamdan’s chief military lawyer, Lieutenant Commander Brian Mizer, said he would offer Davis to argue that charges against Hamdan should be dismissed because of improper influence by Pentagon officials over the commission process. Prosecutors may object, and it is unclear how military judges may rule.

But whatever happens, some detainee advocates say, officials are likely to have difficulty erasing the image of a uniformed former Guantánamo champion challenging them so directly - particularly, some of them said, one who was known for scorched-earth attacks on adversaries, be they terror suspects or lawyers.

“He was the attack dog for the military commission system,” said Zachary Katznelson, a lawyer for Guantánamo detainees.

Last year as chief prosecutor, Davis publicly suggested that a Marine defense lawyer for a detainee might be guilty of a crime for using “contemptuous words” about the president when the marine questioned the fairness of the Guantánamo system.

At the time, critics ridiculed “Moe” as an administration apologist. But in recent weeks, some of them have described him in nearly heroic terms.

Jennifer Daskal of Human Rights Watch called him the most significant insider to tell what he knows about Guantánamo.

“He has put his career on the line,” she said.

Pentagon officials have steamed about the extraordinary role Davis has staked out. Some people with Pentagon ties say the unusual story started as a power struggle between Davis and a Pentagon official who has broad powers over the Guantánamo legal system, Brigadier General Thomas Hartmann, who has declined to comment.

Brigadier General Thomas Hemingway, a retired military official who once supervised Davis at the Office of Military Commissions, said this week that he was surprised Davis was attacking the system he once championed.

“That’s not whistle-blowing you hear,” Hemingway said. “It’s a whine.”

In his contentious days at Guantánamo, lawyers who battled him said, Davis was known for a you’re-with-us-or-you’re-against-us style of news-conference warfare, delivered in an amiable North Carolina twang.

He is an experienced military lawyer, with years of work both in the prosecution and the defense. He is the son of a disabled veteran of World War II, and he is married with one daughter.

In interviews this week he was in his combative mode, challenging Pentagon officials to take lie-detector tests and asserting that commanders had praised him in the past.

He portrayed himself as battling political appointees. But he said he still believed that a military commission system could work.

“It’s gotten so tarnished that if we’re going to convince the world that this isn’t some rigged process we have to bend over backward,” he said.

He said the solutions were simple - giving control to military officials. But he suggested darkly that there were “people at key points in the process, that I just don’t know what their allegiance is.”

Romania Base Suspected CIA Prisoner Site

MIHAIL KOGALNICEANU AIR BASE, Romania (AP) -- It always happened at 1 a.m. In a secluded corner of this heavily guarded airfield, two snipers would creep across a rooftop and take their positions. Moments later, just below, a black minibus would arrive and wait.

Three times in 2004, and twice more in 2005, a jet landed and the black bus drove out to meet it. Large, mysterious parcels were exchanged that, according to a Romanian official who says he witnessed it, looked like bundled-up terror suspects.

The official, a high-ranking veteran with inside knowledge of operations at the base, said the planes then left for North Africa with their cargo and two CIA handlers aboard.

His descriptions, told on condition of anonymity to The Associated Press, add to suspicions surrounding Romania's involvement in "extraordinary rendition" - the beyond-the-law transfer of U.S. terror suspects from country to country by the CIA. Human rights advocates say renditions were the agency's way to outsource torture of prisoners to countries where it is permitted practice.

Romania's precise role is a little-reported part of the system that is being slowly revealed, often to the chagrin of U.S. allies. In an embarrassing reversal after years of denial, Britain admitted Thursday that its military outpost on the Indian Ocean island of Diego Garcia had twice been used as a refueling stop for the secret transport of terrorism suspects.

The European Commission on Friday accused Poland and Romania of dodging its requests to clarify their involvement. Both countries deny accusations of wrongdoing, including a report by Dick Marty, a Swiss official working for the Council of Europe, the continent's top human rights watchdog, who accused the CIA of running secret prisons in the two countries.

Prisoners typically were shackled and kept naked and in isolation, he alleged, in violation of the European Convention on Human Rights. Such treatment also would run contrary to Romania's own laws and its commitment to human rights, a key condition to the Balkan nation's 2007 accession to the European Union.

According to the Romanian official:

- U.S. pilots routinely filed bogus flight plans - or none at all - and headed to undeclared destinations.

- C-130 Hercules cargo planes and other U.S. military aircraft arriving from Iraq regularly parked in a restricted area just off the runway, where they feigned technical trouble and sat under guard for days at a time - awaiting repairs that never occurred.

- Three buildings on the military portion of the air base were strictly off-limits to Romanians but were frequented and controlled by the Americans.

"It was all set up and simulated to look like normal activity. But believe me, it was very unusual," said the official, who said he needed anonymity to protect himself.

"If you are 50 yards away, you say they are 'parcels,'" he said. "But I think people were on (the plane) and I think they were bundled up." The entire scene was completely out of character with normal aircraft arrivals or standard cargo protocol, he said.

But top Romanian authorities deny the CIA ran so-called "black sites" on their territory. While the official described a pattern of highly unusual flight maneuvers and covert American activities, he says he never saw a prisoner.

Mihail Kogalniceanu Air Base, former presidential security adviser Ioan Talpes said in an interview with the AP, had an arrangement with the CIA that gave the agency the right to use the base as needed.

"There were official arrangements of a secret and confidential nature which gave CIA planes the right to land at Romanian airports," said Talpes, who worked at the time for ex-President Ion Iliescu. "They had actions there that we didn't know about," Talpes said. He said Iliescu signed an agreement guaranteeing that Romania would secure the perimeter and otherwise not interfere.

John Sifton, who conducts independent human rights investigations, said the dates and descriptions of the flights described by the base official match the timing and routes of known CIA rendition flights recorded in Eurocontrol flight databases.

Those included an April 2004 flight from Guantanamo Bay, Cuba, that went out of its way to stop at Mihail Kogalniceanu before heading on to Casablanca, Morocco.

"It was a time when they were moving people around," Sifton told the AP. The Romania stopovers, he added, "look pretty shady to me."

Marty's report concluded that the CIA secretly held al-Qaida operatives, Taliban leaders and other "high-value detainees" in Romania and Poland between 2002 and 2005.

The report, citing unnamed intelligence officials, said five people either authorized or were aware of the Romania operation: Iliescu, Talpes, former Defense Minister Ioan Mircea Pascu, Sergiu Medar, a former head of military intelligence, and current President Traian Basescu. Detainees were subjected "to interrogation techniques tantamount to torture" and underscored "a permissive attitude on the part of the Romanian authorities."

Basescu's office refused to discuss the allegations. "What business do we have with this?" it replied. Pascu called it "a closed subject," and Medar declined a request to be interviewed.

Beyond the midnight flights and the bus, the base official who spoke with the AP said he had questions about what went on aboard larger aircraft from Iraq that arrived at the base and then parked for several days, supposedly awaiting repairs.

"They misinformed. They lied," he said. "It happened many times and there was nothing anyone could do about it."

President Bush and other administration officials have confirmed the existence of the rendition program but have not named the countries involved. They say the U.S. does not engage in torture.

Romanian officials said the U.S. military has invested about $18 million in Mihail Kogalniceanu Airport, including a $4 million perimeter fence, a new hangar and road improvements. Romania has supported and provided troops for the U.S.-led campaigns in Afghanistan and Iraq.

Talpes, the former presidential security adviser, said Romanian authorities did not intrude on the U.S. "respected zone" at Mihail Kogalniceanu, used mostly to ferry troops and supplies to Iraq and Afghanistan - because they did not want to make "an unfriendly gesture."

Pressed about whether prisoners were tortured, he said bluntly: "Even if I knew that one of my allies did something, I wouldn't tell you."

CIA chief spokesman Mark Mansfield said the agency had no comment about the black bus scenario, but he defended renditions as both legal and effective.

"They have disrupted potential attacks by taking terrorists off the streets, and they have allowed us, as well as our foreign partners, to gain invaluable intelligence on the terrorists who remain at large," Mansfield said.

Sen. Norica Nicolai, a former prosecutor who led a parliamentary investigation, said her probe found no evidence that the CIA operated a prison or conducted interrogations in Romania.

Nicolai said she was still waiting for Marty to respond to a September request to divulge his sources. "It's in our interests to try to see what happened. We are not a third-world country," she said.

But Cosmin Gusa, a leading opposition lawmaker, said a full accounting was unlikely. "Nobody wants to go deeper," he said. "They don't want to talk about this. This topic is a deadly one."

Tape Inquiry: Ex-Spymaster in the Middle

WASHINGTON — It would become known inside the Central Intelligence Agency as “the Italian job,” a snide movie reference to the bungling performance of an agency team that snatched a radical Muslim cleric from the streets of Milan in 2003 and flew him to Egypt — a case that led to criminal charges in Italy against 26 Americans.

Porter J. Goss, the C.I.A. director in 2005 when embarrassing news reports about the operation broke, asked the agency’s independent inspector general to start a review of amateurish tradecraft in the case, like operatives staying in five-star hotels and using traceable credit cards and cellphones.

But Jose A. Rodriguez Jr., now the central figure in a controversy over destroyed C.I.A. interrogation tapes, fought back. A blunt-spoken Puerto Rico native and former head of the agency’s Latin America division, he had been selected by Mr. Goss months earlier to head the agency’s troubled clandestine branch. Mr. Rodriguez told his boss that no inspector general review would be necessary — his service would investigate itself.

It was a protective instinct that ran deep inside the C.I.A.’s fabled Directorate of Operations, the agency’s most powerful branch. The same instinct would resurface months later, when Mr. Rodriguez dispatched a cable to the agency’s Bangkok station ordering the destruction of videotapes that showed C.I.A. officers carrying out harsh interrogations of operatives of Al Qaeda.

“He would always say, ‘I’m not going to let my people get nailed for something they were ordered to do,’ ” said Robert Richer, Mr. Rodriguez’s deputy in the clandestine branch until late 2005, who recalls many conversations with his boss about the tapes.
No Record of Punishment

With the tapes’ destruction now the subject of overlapping Congressional and criminal inquiries, investigators are trying to determine whether Mr. Rodriguez, 59, acted on his own or with at least tacit approval from superiors at the C.I.A. or the White House. Officials now say a recent review by the C.I.A. of Mr. Rodriguez’s personnel file found no record of any reprimand or punishment for his action.

The destruction of the tapes is hardly the first time that the C.I.A.’s mission to take risks and to counter threats abroad has come into conflict with American notions of justice, legality and human rights. From assassination plots in the 1960s to the Iran-contra scandal of the 1980s, American spymasters have found themselves in legal jeopardy for acts they said were lawful and necessary.

The tapes episode and Mr. Rodriguez’s role reflect the intensity of the particular tensions that have played out since the Sept. 11 attacks, a period in which the C.I.A. has been asked to play a new role in capturing, questioning and imprisoning terror suspects, and is now facing questions about whether its conduct crossed the line into illegality.

The events surrounding the tapes unfolded during one of the most tumultuous periods in the C.I.A.’s 60-year history, when the insular and proud clandestine service clashed with the strong-willed team that Mr. Goss, a former Florida congressman, brought with him to the agency. Mr. Rodriguez was “the man in the middle,” Mr. Richer said.

Mr. Rodriguez and Mr. Goss declined to be interviewed for this article.
Mr. Goss was not the first C.I.A. director to discover that operatives who were trained to destabilize foreign governments could sometimes put those same skills to work inside the agency.

In a striking metaphor for Mr. Goss’s powerlessness, as officers of the Directorate of Operations, or D.O., ignored his instructions and shunned his staff, he later told a colleague that “when he pulled a lever to make something happen in the D.O., it wasn’t just that nothing happened,” the colleague recalled. “It was that the lever came off in his hands.”

Mr. Rodriguez joined the C.I.A. in 1976, at a time when the agency was still reeling from Congressional investigations into assassination plots, coup attempts and domestic wiretapping.
With his thick accent and undergraduate and law degrees from the University of Florida, he stood out in the clandestine service, which even in the 1970s was a preserve of the Anglo-Saxon, Ivy League establishment.

But over the next two decades in a series of overseas postings, Mr. Rodriguez ascended the ranks of the directorate’s Latin America division, serving from Peru to Belize and heading the C.I.A. stations in Panama, the Dominican Republic and Mexico.

He ran the kind of espionage missions and covert operations that defined the agency, overshadowing its other task of analyzing intelligence from all sources. Clandestine officers fashioned themselves as the “fighter jocks” of the C.I.A., the swashbuckling spies who risked their lives for their country.

Dominating the Culture

The Directorate of Operations “is a really small part of C.I.A., in terms of budget and people,” said Mark M. Lowenthal, a former assistant agency director. “But in terms of culture, the D.O. dominates the place.” In mid-2005, the directorate was renamed the National Clandestine Service.

A popular boss, Mr. Rodriguez occasionally flashed the maverick spirit prized by clandestine officers. One former colleague recalls that while in Mexico he named his horse Business, instructing subordinates to tell the ambassador or the C.I.A. brass that he was “out on Business.”

By the mid-1990s, Mr. Rodriguez was head of the Latin America division. But his career was nearly cut short when the C.I.A. inspector general reprimanded him in 1997 for a “remarkable lack of judgment” after he intervened to stop jailhouse beatings by guards of a childhood friend arrested on drug charges in the Dominican Republic.

A C.I.A. officer stationed in the Dominican Republic complained to the inspector general that the intervention was improper, according to a former agency official. Mr. Rodriguez was removed as chief of the Latin America division, and later returned to run the station in Mexico.

Shortly after the Sept. 11 attacks, he was tapped to become chief operating officer of the agency’s Counterterrorism Center, based at the C.I.A. headquarters, which was ballooning to nearly 1,500 officers from 300. There was grumbling that Mr. Rodriguez, with no experience in the Muslim world, was given the job. But seven months later, he was promoted to head the center, placing him in charge of the hunt for Qaeda operatives and the interrogation of terrorist suspects in a chain of secret C.I.A. prisons.

By the time Mr. Goss was sworn in as director of central intelligence in late September 2004, the agency’s clandestine service was already embittered by finger-pointing over the Iraq war.
The arrival of the new leader and his outspoken aides, dubbed the “Gosslings” by some within the agency, made matters worse.

Many agency veterans suspected that Mr. Goss and his team were on a White House mission to clean house at the C.I.A. The two top officers of the clandestine service, Stephen R. Kappes and Michael J. Sulick, soon quit.

When Mr. Goss looked for replacements, two agency officers turned him down, fearing that accepting the job would be seen as a betrayal of the clandestine branch. In the end, Mr. Goss offered the job to Mr. Rodriguez.

According to Mary Margaret Graham, a career clandestine officer who recently retired as head of intelligence collection for the director of national intelligence, Mr. Rodriguez had similar concerns about “betraying” fellow undercover officers. He assured her that he had accepted the position “on his terms.”

“I think in hindsight they expected a much more pliable person than they got,” she said.
Mr. Rodriguez traveled to overseas stations more than many predecessors, to build morale and get a firsthand account of operations. One result was that the clandestine branch’s daily operations were often left to his chief of staff, who had worked with Mr. Rodriguez in the Counterterrorism Center. Because she is still under cover, The New York Times is not publishing her name.

Several former C.I.A. officials recall repeated clashes between Mr. Rodriguez’s chief of staff and aides to Mr. Goss on matters from the trivial to the serious.

One serious concern, in the view of Mr. Goss’s staff, was the resistance of Mr. Rodriguez and his chief of staff to outside reviews of such missteps by the clandestine service as the Italian operation. In the matter of the tapes, there was also concern that Mr. Rodriguez and others who were involved in creating them were now pushing to destroy them. “It was just that they weren’t very impartial judges,” said a former C.I.A. official.

Mr. Rodriguez, who was nearing retirement, saw the tapes as a sort of time bomb that, if leaked, threatened irreparable damage to the United States’ image in the Muslim world, his friends say, and posed physical and legal risks to C.I.A. officers on them.

People close to Mr. Goss, who knew from his Congressional years how explosive accusations of cover-up could be, insist he told Mr. Rodriguez the tapes should be preserved.

But if Mr. Goss believed Mr. Rodriguez had disobeyed him, why did he not punish the clandestine service chief? One former C.I.A. official said White House officials had complained about the news media firestorm that accompanied the departure of Mr. Kappes and Mr. Sulick a year earlier, and Mr. Goss felt he could not risk another blowup.

‘Loyal and Dedicated’

Robert S. Bennett, Mr. Rodriguez’s lawyer, said his client was never instructed to preserve the tapes and recalls no discussion of conflict of interest on his part.
“Guys like Jose are loyal and dedicated and take risks to keep the country safe from terrorism,” Mr. Bennett said. “Now, his own government is investigating him, and I think it’s shameful.”

Not long after the tapes were destroyed, Mr. Goss held a management retreat for top agency officials meant in part to soothe tensions among the agency’s dueling branches. There the deputy director for intelligence — the head of analysis — complained openly about the arrogance of the clandestine branch and said undercover officers thought they could get away with anything.

That was too much for Mr. Rodriguez. He stood up in the room, according to one participant in the meeting, and shouted in coarse language that the analysis chief should “wake up and smell the coffee,” because undercover officers were at the “pointy end of the spear.”
The clandestine branch, Mr. Rodriguez was making it clear, would do what it wanted.

Pentagon to challenge interview of 9/11 suspect

Pentagon prosecutors are challenging a military court's decision to let Osama bin Laden's driver send written questions to alleged senior al Qaeda members held incommunicado at Guantánamo.

Defense lawyers for Salim Hamdan, 36, want to ask reputed 9/11 mastermind Khalid Sheik Mohammed, known in CIA circles as ''KSM,'' and six other ''high-value detainees'' what they know about Hamdan's role in al Qaeda's organization.

Based on their answers, they will decide whether to call as defense witnesses any of the seven men, who are fellow detainees now but were held and interrogated for years by the CIA.

Last week, Navy Capt. Keith Allred, Hamdan's military commission judge, ruled that defense lawyers could submit questions to an independent security officer to give to Mohammed and the others held in a restricted prison camp on the base called Camp 7.

The judge ordered that the questions and answers be strictly limited to the time before Hamdan's capture in November 2001 in Afghanistan. Censors will black out any responses that don't cover that time period.

Navy Lt. Catheryne Pully, a military commissions spokeswoman, said on Monday that the prosecution would seek ''reconsideration'' of the judge's decision, which the prosecutors believed raised ``a lot of complicated issues.''

Intelligence officials have described as national security secrets the CIA sites where Mohammed and 14 other detainees were held before their September 2006 transfer to Guantánamo Bay, Cuba. Now they are held in Camp 7, segregated from other detainees at an undisclosed site on the remote U.S. Navy base. The prison camps' spokesman, Navy Cmdr. Rick Haupt, has not been able to say whether the location of the camp itself is a national security secret.

Allred gave the prosecution until Tuesday to find an independent security officer -- who does not work for the prosecution -- to handle the defense lawyers' questions and detainees' answers, if they choose to reply.

Hamdan attorney Andrea Prasow, a civilian on the Defense Department team, said the Pentagon prosecutors agreed to identify the security officer but notified the team on Saturday that they would ask for reconsideration of the question.

Hamdan's lawyers wanted to meet the men in person to assess their credibility as potential witnesses at Hamdan's summertime trial.

The lead defense lawyer, Navy Lt. Cmdr. Brad Mizer, said the attorneys also sought face-to-face meetings with the detainees because, after years in CIA custody, the captives might suspect written questions as an interrogation trick.

Allred's remedy to the defense lawyers mirrors a 2003 formula proposed by a federal judge at the civilian trial of Zacarias Moussaoui, who eventually pleaded guilty to providing material support for al Qaeda and is now serving a life sentence.

In that case, the Justice Department refused to let the defense send questions to Mohammed, the reputed 9/11 mastermind. At the time, he was under CIA interrogation, and the government argued his testimony would harm the war effort.

In this instance, the men Hamdan's lawyers seek to question are now among 15 former CIA detainees in military custody at Guantánamo.

• Mohammed, who according to Pentagon transcripts confessed to plotting the 9/11 attacks along with a long string of other al Qaeda suicide bombings, as well as beheading Wall Street Journal correspondent Daniel Pearl in Pakistan.

• Ramzi bin al Shib, a Yemeni and Mohammed's alleged go-between with some of the 9/11 attackers.

• Walid bin Attash, another Yemeni who supposedly trained some of the hijackers.

• Mustafa al Hawsawi, who supposedly helped get funds to the Sept. 11 suicide squads.

Those four men were identified as candidates for execution at Guantánamo as part of a complex, six-detainee prosecution the Pentagon unveiled last week. Their charge sheets await approval from a Bush administration appointee. None of them yet have lawyers.

In addition, Hamdan's lawyers asked to interview Abu Faraj al Libi, Abdul Rahim al Nashiri and Abdul Hadi al Iraqi because of their knowledge of other al Qaeda operations in Afghanistan not tied to the Sept. 11 strikes.

Camp 7 and the Torturer's Shrink

"I am proud to be a member of the American Psychological Association, proud for what APA has stood for in these troubling times, and deeply grateful to the Association for supporting me and my colleagues in our quest to ensure that all in our custody are treated with human decency and respect."
— Larry C. James,
Colonel, United States Army, June 23, 2007

"This is my second tour at Gitmo, Cuba. I was also the first psychologist at Abu Ghraib. I'm going to repeat what I said earlier. If we remove psychologists from these facilities, people are going to die. If we remove psychologists from these facilities, people are going to get hurt."
— Larry C. James,
Colonel, United States Army, June 23, 2007
---------------------------------------------------------------------------------

Sounds good Colonel James. Great sound bytes. Good enough to convince thousands of psychologists that you're the real thing, as American as Stealth bombers and pre-emptive war. Who would possibly think that psychologists in the military would engage in torture after listening to you? Good enough that you became the poster child for the American Psychological Association as they pulled out all stops in their attempts to defeat those few psychologists opposed to torture, inhuman conditions and the disappearance of habeas corpus. They brought you all the way from Guantanamo for their song and dance show. Not even most psychologists, those who are supposed to understand human behavior, saw through your charade, as you convinced them that their professional association really IS on the side of truth and goodness.

The APA used you to introduce a different resolution against torture for the second year in a row, in an attempt to deflect the dissenters and detractors. APA's use of resolutions as a means to stop torture have proven to be simply a sleight of hand to appease the multitudes and the media, but actually signifies nothing.

Perhaps you'll repeat history, Colonel James. In 2006, Surgeon General Kevin Kiley was used by APA leaders to offer the 2006 "Resolution on Torture." Remember him? He lost his job a few months after presenting THAT resolution, another military officer who was willing to overlook the inhumane treatment of people that were considered to have no value.

But you blew it this week, Colonel. One might say you fell out of role, and the truth became evident. Though you are in charge of the team of psychologists that assists interrogators at Guantanamo, when the Associated Press reported last week on the just-revealed Camp 7 at Guantanamo where detainees from CIA secret detention facilities are kept, including the detainees who HAVE been water-boarded, including Abu Zubaydah who endured water-boarding with two psychologists present, you stated you just don't want to know about it.

"I learned a long, long time ago, if I'm going to be successful in the intel community, I'm meticulously -- in a very, very dedicated way -- going to stay in my lane," he said. "So if I don't have a specific need to know about something, I don't want to know about it. I don't ask about it."

You, the military psychologist, who spoke so piously of how much you cared to protect detainees at Gitmo, who so scrupulously defended your character as patriotically humane - didn't you just sell out the fate of those detainees for the advancement of your career?

You commanded the Guantanamo Behavioral Science Consultation Teams from January 2003 to mid-May 2003, during a time when the International Committee of the Red Cross stated that the treatment of detainees at Guantanamo amounted to torture.

Under your command and supervision, psychologists from the military's Survival, Evasion Resistance, and Escape (SERE) program were instructed to apply their expertise in abusive interrogation techniques to the interrogations of detainees in Guantanamo, according to a report from the Office of the Inspector General.

According to the Standard Operating Procedure manual at the time that you were the Chief Psychologist at Guantanamo, all incoming detainees were to be held in isolation for the first 30 days "to enhance and exploit the disorientation and disorganization felt by a newly arrived detainee in the interrogation process" and were not entitled to the protections afforded by the Geneva Conventions.

So while you and the American Psychological Association continue to assert that military psychologists are necessary at Guantanamo, Abu Ghraib, Bagram and other detention sites - to build rapport, to "protect" the detainees, to stop other military personnel from harming and killing the detainees - you're telling reporters that the secret to your success is to look the other way. What else could it mean when you say, "if I'm going to be successful in the intel community . . . I'm meticulously . . . going to stay in my lane . . . I don't want to know?"

The fact is, for you and our professional organization, it's all about keeping your job. You toe the military line for your paycheck. And the APA toes the military line to curry the favor of the Department of Defense and the current administration for contracts. All the rest is window dressing, such as the APA's gratuitous letter to Attorney General Mukasey this week. The letter is a lobbyist's masterpiece, suggesting that waterboarding is legal torture in one paragraph and then asking the AG to please hurry up and render a legal ruling in the next.

But as you seem not to be motivated by considerations of ethics, Colonel James, perhaps the potential for life in prison might have more impact. At the Nuremberg Trials, it was held that merely following orders will not absolve you from criminal liability. In that rare moment of truthiness, you told us that your guilty knowledge may pose inconveniences for you: "[I]f I don't have a specific need to know about something, I don't want to know about it. I don't ask about it."

Gitmo's Makeover to Reduce Hostilities

GUANTANAMO BAY NAVAL BASE, Cuba - Seeking to ease conditions for angry and frustrated Guantanamo detainees, the commander of the prison camps has instituted language classes, a literacy program and wants to open communal areas for men held in isolation 22 hours a day.

In an exclusive interview with The Associated Press, Army Col. Bruce Vargo, commander of the military's Joint Detention Group at Guantanamo, said he hopes the changes at Guantanamo, where 275 men suspected of links to al-Qaida and the Taliban are held, will lead to fewer attacks on guards.

The makeover contrasts with the situation at this isolated base in 2006, when commanders hardened the detention camps in the wake of a guard-prisoner clash and suicides of three detainees. They converted a new medium-security jailhouse into maximum-security, eliminating communal living areas - a move which Vargo said he intends to reverse.

"Make no bones about it, these are very dangerous men," Vargo said, citing incidents in which detainees splashed guards with bodily fluids, and head-butted, kicked and bit them. "But at the same time, you have to provide them with some type of out."

Attorneys for detainees say the assaults are partly triggered by frustration among men who, more often than not, were captured far from any battlefield and have been locked up for as many as six years with no real chance to confront accusations that they are enemy combatants.

David Remes, a Washington attorney who represents 16 Guantanamo detainees, said the military should recognize it must improve its treatment of detainees and not justify these changes by saying they are aimed at reducing assaults. He said most detainees are in virtual solitary confinement, reportedly leading to mental problems.

There is now TV night for some of the best-behaved detainees, with DVDs of movies and TV shows shown on a high-definition Sony TV. A classroom in Camp 4, designated for the most compliant detainees, has metal desks and plastic chairs. Detainees are leg-shackled to the classroom floor.

Language courses have begun in English, Arabic and Pashto, Vargo said in the interview last week. He intends to soon offer classes on diverse subjects, perhaps including oceanography.

"If we can get them to focus on humanities programs, if we can get them to focus on recreation, then their sole focus is not going to be on the guard force," Vargo said. "It is my thought that if they are focused on those things, then the level of assaults and things of that nature will go down."

At Camp 4, dozens of birds sat on coils of barbed wire, chirping and singing, as Soldiers escorted AP journalists inside. Five detainees in loose-fitting white shirts and pants sat at tables outside their communal living area, sharing a rice dish. On the other side of a chain-link fence, a bored guard standing in the shade of a plastic tarp watched the men. White and tan prison uniforms freshly washed by the detainees hung along the fence, drying in the winter sun. Guantanamo rules prohibit journalists from talking to detainees.

"I have instituted a very strict vetting program to get into Camp 4," Vargo said. "If you abide by the rules and you get through the vetting program then we move you in there."
Living conditions in Camps 5 and 6 are far stricter. Detainees are isolated up to 22 hours a day in individual cells.

Vargo said he wants to make Camp 6 more like Camp 4, and has mock-ups of modifications that will allow detainees to use communal areas. He wants to keep guards separate from the detainees but still enable them to check on each prisoner every three minutes to prevent suicides.

"We're doing something that is probably different in that this is a high-security detention facility with the amenities of a lower security facility," Vargo said. "That's what I'm trying to achieve."
Zachary Katznelson, an attorney representing detainees, said he welcomes planned changes.

"Right now the men in Camp 6 sit in steel boxes without windows for at least 22 hours a day," he said. "They have no mental stimulation, nothing to do.
"But the real issue remains the fact that the men are being held without charge or trial," Katznelson added. "English lessons do not equal a return to American values like due process. It's just putting lipstick on a pig."

6 at Guantánamo Said to Face Trial in 9/11 Case

Military prosecutors are in the final phases of preparing the first sweeping case against suspected conspirators in the plot that led to the deaths of nearly 3,000 Americans on Sept. 11, 2001, and drew the United States into war, people who have been briefed on the case said.

The charges, to be filed in the military commission system at Guantánamo Bay, Cuba, would involve as many as six detainees held at the detention camp, including Khalid Shaikh Mohammed, the former senior aide to Osama bin Laden, who has said he was the principal planner of the plot.

The case could begin to fulfill a longtime goal of the Bush administration: establishing culpability for the terrorist attacks of 2001. It could also help the administration make its case that some detainees at Guantánamo, where 275 men remain, would pose a threat if they are not held at Guantánamo or elsewhere. Officials have long said that a half-dozen men held at Guantánamo played essential roles in the plot directed by Mr. Mohammed, from would-be hijackers to financiers.

But the case would also bring new scrutiny to the military commission system, which has a troubled history and has been criticized as a system designed to win convictions but that does not provide the legal protections of American civilian courts.

War-crimes charges against the men would almost certainly place the prosecutors in a battle over the treatment of inmates because at least two detainees tied to the 2001 terror attacks were subject to aggressive interrogation techniques that critics say amounted to torture.

One official who has been briefed on the case said the military prosecutors were considering seeking the death penalty for Mr. Mohammed, although no final decision appears to have been made. The official added that the military prosecutors had decided to focus on the Sept. 11 attacks in part as an effort to try to establish credibility for the military commission system before a new administration takes the White House next January.

“The thinking was 9/11 is the heart and soul of the whole thing. The thinking was: go for that,” the official said, speaking on the condition of anonymity because no one in the government was authorized to speak about the case. Even if the charges are released soon, it would be many months before a trial could be held, lawyers said.

A Pentagon spokesman, Bryan Whitman, declined to comment specifically. But he added that the government was preparing a case against “individuals who have been involved in some of the most grievous acts of violence and terror against the United States and our allies.”

“The prosecution team is close to moving forward on referring charges on a number of individuals,” Mr. Whitman said.

Ever since President Bush announced in 2006 that he had transferred 14 “high value” detainees to Guantánamo from a secret C.I.A. detention program, it has been expected that the Pentagon would eventually lodge charges involving several of the numerous terror plots to which officials say several of those men were tied.

Officials have said detainees now held at Guantánamo are responsible for attacks that killed thousands of people, including the United States Embassy bombings in East Africa in 1998, the attack on the destroyer Cole in 2000, and the Bali nightclub bombing in 2002.

But it has always been clear that a case involving the Sept. 11 plot would be the centerpiece of the military commissions system and its most stringent test. After the Supreme Court struck down the Bush administration’s first system for military commission trials in 2006, Congress enacted a new law.

Among other things, the Military Commissions Act provides that detainees charged with war crimes are entitled to military lawyers to defend them, a presumption of innocence and a right of appeal. But detainees’ lawyers and other critics have said that many flaws remain, including the fact that the system is under Pentagon control and even the judges are military officers.

Told of the possible charges, Carie Lemack, whose mother was killed on American Airlines Flight 11, said such a trial would be a grueling process for the families. But, Ms. Lemack said, “It is important that justice be brought to those who killed my mother and nearly 3,000 others.”
It was not clear Friday whether final decisions had been made about precise charges and which detainees are to be included.

But it is known that the prosecutors have considered charges of murder, conspiracy and providing material support for terrorism because of the Sept. 11 deaths. It is also known that a joint team of military and Department of Justice lawyers working on the case have considered charging six of the best-known Guantánamo detainees.

Lawyers have said that two of those are men whose treatment in American hands would inevitably be a focus of defense lawyers in their cases.
One of them, Mr. Mohammed, known as KSM, was subject to the simulated-drowning technique known as waterboarding while in secret C.I.A. custody, Gen. Michael V. Hayden, the director of the Central Intelligence Agency, confirmed this week

The American-educated Mr. Mohammed was described by the Sept. 11 commission as the “self-cast star, the superterrorist,” with plans for destruction on a vast scale. At a Pentagon hearing last year, he claimed responsibility for more than 30 terrorist attacks and plots.

He was explicit about his role in the 2001 attacks. “I was responsible for the 9/11 operation, from A to Z,” he said.

The other detainee whose treatment could become a focus of any trial is Mohammed al-Qahtani, who has been held at Guantánamo since 2002. Pentagon officials have said he may have been the so-called “20th hijacker.” A month before the attacks, he flew from Dubai to Orlando, Fla., but was denied entry into the United States by an immigration official.

Pentagon investigators concluded in 2005 that he had been subject to abusive treatment at Guantánamo, including sleep deprivation, being forced to wear a bra and being led around on a leash.

Gitanjali Gutierrez, one of Mr. al-Qahtani’s lawyers at the Center for Constitutional Rights, said she had no information about whether he would be charged. “But if he is,” Ms. Gutierrez said, “I can assure you that his well-documented torture and the controversy over secret trials will be the focus.”

Zacarias Moussaoui, who at one point was identified by prosecutors as a potential “20th hijacker” pleaded guilty to conspiracy in 2005, and is serving a life term. He is the only person who has been tried in a United States court for involvement in the Sept. 11 plot.
Defense lawyers are also expected to use any commission cases to challenge the prosecutors over the C.I.A.’s destruction of tapes of interrogations of two detainees, which has been acknowledged by the agency.

Among the other four potential defendants are Guantánamo detainees who intelligence officials have said played critical support roles for the hijackers.
Officials say Ramzi bin al-Shibh, who had been a roommate of the lead hijacker Mohamed Atta in Hamburg, Germany, was the main intermediary between the hijackers and Al Qaeda leaders in the months before Sept. 11.

The Pentagon has described another detainee, Ammar al-Baluchi, a nephew of Mr. Mohammed, as “a key lieutenant for KSM during the operation on 11 September” who wired $114,500 to the hijackers.

Mr. al-Baluchi’s assistant was Mustafa Ahmed al-Hawsawi, according to various accounts. The September 11 commission said that Mr. al-Hawsawi had been assigned by Mr. Mohammed to help coordinate hijackers’ travel and was so centrally involved that he was their contact for unused money to be returned in the days before the attacks.

Finally, the detainee known as Khallad, who is missing part of his right leg as a result of what officials say is a long jihadist history, is believed to have had long ties to Mr. bin Laden. Officials have said Khallad helped select and train some of the hijackers and was originally slated to have been one of them himself.