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.”

Davis: DoD General Counsel ‘Leaned On’ Me To Rush Detainee’s Trial Ahead Of Australian Elections

In March 2007, Australian native David Hicks, who was a detainee at Guantanamo Bay, became the first person to be sentenced by a military commission convened under the Military Commissions Act of 2006. At the time, critics charged that Hicks’ sudden plea bargain appeared to be the result of a political deal between Vice President Cheney and then-Australian Prime Minister John Howard.

A month before Hicks’ sentence was announced, Cheney visited Howard in Australia, where the Australian PM lobbied for the trial to “be brought on as soon as humanly possible and with no further delay.” At the time, Howard was in a tough re-election fight and Hicks’ fate was an issue in the campaign.

Yesterday, Col. Morris Davis — who was the lead prosecutor in Hicks’ trial — told Australia’s Herald Sun that he was “leaned on” by the Pentagon in a manner that “only made sense in political context“:

On the end of the line was the Pentagon’s general counsel, William “Jim” Haynes. He asked Colonel Davis how soon he could charge Hicks. The Australian had been held in custody without a hearing for five years after being picked up in Afghanistan in late 2001. […]

The only way Colonel Davis could make sense of what he was hearing from Mr Haynes was in the context of what he was reading about the political environment in Australia. […]

Colonel Davis says the phone calls he got from Mr Haynes and the timeline in Australia in which a “loyal ally” in Mr Howard was eyeing a difficult election and wanted to get the Hicks matter put to rest, means the nine-month sentence deal that got Hicks home has a “bad odour”..”

Davis, who has previously said that he “felt pressure to pursue high-profile convictions ahead of the 2008 elections, resigned from his position in October 2007 after he was placed under Haynes in the chain of command. Last week, Davis told the Nation that Haynes had insisted to him in 2005 that the Pentagon “can’t have acquittals” at Guantanamo because they’d “been holding these guys for so long” and it would be difficult to “explain letting them get off.”

Haynes announced yesterday that he is resigning in order to return “to private life next month.”

Torture advocate William Haynes resigns

Defense Department General Counsel William Haynes, who was a “prime mover” in the Bush administration’s efforts to bypass the Geneva Convention, announced today that he “is returning to private life next month.” Already a controversial figure due to his torture advocacy, the negative spotlight on Haynes increased last week when former Gitmo prosecutor Col. Morris Davis told The Nation that Haynes had insisted that the administration “can’t have acquittals” at Guantanamo Bay. More on Haynes’ role in the Bush administration here.

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."

Waterboarding Focus of Inquiry by Justice Dept.

WASHINGTON — The Justice Department revealed Friday that its internal ethics office was investigating the department’s legal approval for waterboarding of Qaeda suspects by the Central Intelligence Agency and was likely to make public an unclassified version of its report.

The disclosure by H. Marshall Jarrett, the head of the department’s Office of Professional Responsibility, was the first official acknowledgment of an internal review of the legal memorandums the department has issued since 2002 that authorized waterboarding and other harsh interrogation methods.

Mr. Jarrett’s report could become the first public accounting for legal advice that endorsed methods widely denounced as torture by human rights groups and legal authorities. His office can refer matters for criminal prosecution; legal experts said the most likely outcome was a public critique of the legal opinions on interrogation, noting that Mr. Jarrett had the power to reprimand or to seek the disbarment of current or former Justice Department lawyers.

The cloak of secrecy that long concealed the C.I.A.’s secret interrogation program and its legal underpinnings has gradually broken down.

The C.I.A. director, Gen. Michael V. Hayden, publicly admitted for the first time two weeks ago that the agency used waterboarding in 2002 and 2003 in the interrogation of three Qaeda suspects but said that the technique was no longer used, and its legality under current law is uncertain. The technique, which has been used since the Spanish Inquisition and has been found illegal in the past by American courts, involves water poured into the nose and mouth to create a feeling of drowning.

After General Hayden’s acknowledgment, Attorney General Michael B. Mukasey rebuffed demands for a criminal investigation of interrogators who used waterboarding or of their superiors, saying C.I.A. officers could not be prosecuted for actions the Justice Department had advised them were legal. Mr. Jarrett’s review focuses on the government lawyers who gave that advice.

Mr. Jarrett’s disclosure came as prosecutors and F.B.I. agents conduct a criminal investigation of the C.I.A.’s destruction in 2005 of videotapes of harsh interrogations and a week after Congress passed a ban on coercive interrogations, which President Bush has said he will veto.

Mr. Jarrett did not say when his investigation might conclude. He did not respond to a request on Friday for an interview.

In a letter to two Democratic senators, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island, Mr. Jarrett wrote that the legal advice approving waterboarding was one subject of an investigation into “the circumstances surrounding the drafting” of a Justice legal memorandum dated Aug. 1, 2002.

The document declared that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. The memorandum, drafted by a Justice Department lawyer, John Yoo, and signed by Jay S. Bybee, then head of the department’s Office of Legal Counsel, was withdrawn in 2004.

Mr. Jarrett said the investigation was also covering “related” legal memorandums prepared by the Office of Legal Counsel since 2002. That suggested the investigation would address still-secret legal opinions written in 2005 by Steven G. Bradbury, then and now the acting head of the Office of Legal Counsel, that gave legal approval for waterboarding and other tough methods, even when used in combination.

Mr. Jarrett said his office was “examining whether the legal advice in these memoranda was consistent with the professional standards that apply to Department of Justice attorneys.”

“Because of the significant public interest in this matter, O.P.R. will consider releasing to Congress and the public a nonclassified summary of our final report,” Mr. Jarrett wrote, using the initials for the Office of Professional Responsibility.

Justice Department officials said that the O.P.R. inquiry began more than three years ago and noted that it was mentioned in a Newsweek article in December 2004. It has since been expanded, the officials said, to cover more recent legal opinions on interrogation.

Mr. Jarrett’s letter, dated Monday, came in reply to a Feb. 12 letter from Mr. Durbin and Mr. Whitehouse to him and the Justice Department’s inspector general, Glenn A. Fine, seeking an investigation into the department’s legal approval of waterboarding.

“Despite the virtually unanimous consensus of legal scholars and the overwhelming weight of legal precedent that waterboarding is illegal,” the senators wrote, “certain Justice Department officials, operating behind a veil of secrecy, concluded that the use of waterboarding is lawful. We believe it is appropriate for you to investigate the conduct of these Justice Department officials.”

Mr. Fine replied in a letter this week that the law gave Mr. Jarrett’s office responsibility for reviewing the actions of department lawyers providing legal advice. Mr. Jarrett confirmed that his office was investigating.

Mr. Jarrett reports to the attorney general and oversees only the professional conduct of Justice Department attorneys. He does not enjoy the independence or authority of Mr. Fine, who covers all aspects of Justice operations and also reports to Congress.

In 2006, when Mr. Jarrett tried to look into the Justice Department’s role in approving the National Security Agency’s domestic surveillance program, Mr. Bush blocked the investigation by denying Mr. Jarrett’s investigators the necessary security clearances. Mr. Fine’s office subsequently obtained the necessary clearances and began such an investigation.

Last November, days after Mr. Mukasey was confirmed as attorney general, Mr. Bush reversed course and granted clearances to Mr. Jarrett’s staffers, who began a delayed review of the legal authorization for the N.S.A. program.

Mr. Durbin and Mr. Whitehouse have been among the most outspoken critics in Congress of harsh interrogation methods. They have called on Mr. Bush to withdraw the nomination of Mr. Bradbury, author of the 2005 interrogation memorandums, as chief of the Office of Legal Counsel; he has filled the job on an acting basis since 2005.

In 2004, Mr. Durbin first proposed a ban on cruel, inhuman and degrading treatment that Congress passed in 2005, when it was sponsored by Senator John McCain, Republican of Arizona.

Mr. Whitehouse, a former United States attorney, said in an interview that he believed the August 2002 memo on torture, as well as classified opinions he had reviewed, fell far short of the Justice Department’s standards for scholarship. He said that in approving waterboarding, the opinions ignored both American military prosecutors’ cases against Japanese officers for waterboarding American prisoners during World War II and a federal appeals court’s decision that upheld the 1983 conviction of a Texas sheriff for using “water torture” on jail inmates.

“I’m very, very pleased that the Office of Professional Responsibility is looking into this,” Mr. Whitehouse said.

Jose Padilla, the American sympathizer of Al Qaeda serving a 17-year sentence for conspiring to help violent Muslim extremists abroad, filed a lawsuit in January against Mr. Yoo, who left Justice in 2003 to return to his job as a law professor at the University of California, Berkeley. The lawsuit claims Mr. Yoo’s legal opinions permitted the designation of Mr. Padilla as an enemy combatant and his interrogation using methods that amounted to torture.

Mr. Yoo, who asserted that a president during wartime has extraordinarily broad powers, was a highly influential figure in the Justice Department in the first year after the Sept. 11, 2001, terrorist attacks. His views found favor with Vice President Dick Cheney and his legal adviser, David S. Addington, who shared his views of presidential power.

But some of Mr. Yoo’s opinions, including the August 2002 memo on torture, were withdrawn in 2004 after Jack L. Goldsmith took over as head of the Office of Legal Counsel. Mr. Yoo could not be reached for comment Friday.

Top Gitmo lawyer: ‘We can’t have acquittals.’

Col. Morris Davis resigned his position as chief prosecutor for Guantánamo Bay’s military commissions after being placed under the command of torture advocate William J. Haynes. As a result of a conversation he had with Haynes in 2005, Davis tells The Nation that he doesn’t believe “the men at Guantánamo could receive a fair trial“:

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals, we’ve got to have convictions.’”

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.