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October 1st, 2006 - Detainee Memo Created Divide in White House

News article by the New York Times

News article by Bahrain Daily News

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Detainee Memo Created Divide in White House


By Tim Golden

New York Times

October 1, 2006


In June 2005, two senior national security officials in the Bush administration came together to propose a sweeping new approach to the growing problems the United States was facing with the detention, interrogation and prosecution of terrorism suspects.


In a nine-page memorandum, the two officials, Gordon R. England, the acting deputy secretary of defense, and Philip D. Zelikow, the counselor of the State Department, urged the administration to seek Congressional approval for its detention policies.


They called for a return to the minimum standards of treatment in the Geneva Conventions and for eventually closing the detention center at Guantánamo Bay, Cuba. The time had come, they said, for suspects in the 9/11 plot to be taken out of their secret prison cells and tried before military tribunals.


The recommendations of the paper, which has not previously been disclosed, included several of the major policy shifts that President Bush laid out in a White House address on Sept. 6, five officials who read the document said. But the memorandum’s fate underscores the deep, long-running conflicts over detention policy that continued to divide the administration even as it pushed new legislation through Congress last week on the handling of terrorism suspects.


When the paper first circulated in the upper reaches of the administration, two of those officials said, it so angered Defense Secretary Donald H. Rumsfeld that his aides gathered up copies of the document and had at least some of them shredded.


“It was not in step with the secretary of defense or the president,” said one Defense Department official who, like many others, would discuss the internal deliberations only on condition of anonymity. “It was clear that Rumsfeld was very unhappy.”


The internal debate over detention issues that began within weeks after the terrorist attacks of Sept. 11, 2001, has come to light before. But interviews show that the struggle, pitting top officials against one another, intensified behind the scenes over the last year as criticism of the administration’s approach grew in the United States and abroad. Crucial elements of that approach were struck down by the Supreme Court on June 29, forcing a resolution of disputes that had gone on for months.


On one side of the fight were officials, often led by Vice President Dick Cheney, who said the terrorism threat required that the president have wide power to decide who could be held and how they should be treated. On the other side were officials, primarily in the State Department and the Pentagon, who portrayed their disagreement as pragmatic. They said the administration had claimed more authority than it needed, drawing widespread criticism and challenges in the courts.


Those officials initially hailed the president’s Sept. 6 announcement. Mr. Bush publicly discussed the Central Intelligence Agency’s secret detention program for the first time, saying he had ordered its remaining 14 prisoners sent to Guantánamo and tried before military tribunals. The same day, Pentagon officials presented new directives that effectively renounced military use of highly coercive interrogation methods.


But even as the White House negotiated with Congress in recent weeks, administration forces led by the vice president’s office reasserted themselves. Officials said Mr. Cheney’s staff and its bureaucratic allies - having agreed reluctantly to the disclosure of the C.I.A. operation and other changes - were closely involved in guiding the talks with Republican senators. Their adversaries in the administration, meanwhile, had to scramble just to keep up with details of the bargaining.


“Basically, they were left to get back whatever they could from Congress,” one senior administration official said of the Cheney group. “And they did.”


In the end, the White House pressed Republican senators to accept a broad definition of “unlawful enemy combatants” whom the government can hold indefinitely, to maintain some of the president’s control over C.I.A. interrogation methods and to allow the government to present some evidence in military tribunals that is based on hearsay or has been coerced from witnesses.


The administration did concede to the senators on some rules for military commissions, as the tribunals are called. It also backed off its effort to limit its obligations under the Geneva Conventions, but fought to ensure that government personnel would be immunized from prosecution for any treatment of detainees before the end of 2005 that was cruel, inhuman or degrading.


Still, several officials said privately that the detainee legislation might fail to meet a primary goal of those inside the administration who had advocated change: quelling domestic and international criticism and moving past the federal lawsuits that have tied up parts of the detention apparatus since 2002.


“There have been so many times when we thought we had broken through and turned things around, and then the forces on the other side kept charging back,” said one administration lawyer who has supported such changes. Now, the official added, “even after what was supposed to be this major legislation to resolve these issues, we are going to be back at it.”


At the time the England-Zelikow memorandum was written, in mid-June 2005, several officials said they saw little enthusiasm for reconsidering the detention system that had been set up after 9/11, primarily by a small group of lawyers in the White House, the Justice Department and the Defense Department.


That system had begun to come under increasing attack. An erroneous item in Newsweek magazine, about a Koran being flushed down a toilet at Guantánamo, led to violent demonstrations overseas. Criticism of the detention camp grew sharper in Europe. Some influential Republicans in Congress began to voice complaints as well.


Mr. Zelikow, who served as staff director for the national commission that investigated the 9/11 attacks, joined the State Department in early 2005 with strong views on the detention issue, other officials said. Early on, he began to push the idea that high-level C.I.A. captives held in connection with the 9/11 attacks should be brought to justice, these officials said.


Mr. England took over as Mr. Rumsfeld’s acting deputy in April 2005 while continuing to serve as secretary of the Navy. (He was confirmed as deputy secretary in April 2006.) He, too, had experience with the detainee issue, having spent months working to overhaul what many military officers saw as a flawed screening process for prisoners at Guantánamo.


Two other officials who had worked extensively on detention issues during Mr. Bush’s first term also participated in the drafting of the memorandum, officials said. One of them, Matthew C. Waxman, was Mr. Rumsfeld’s chief aide for detainee issues. The other, John B. Bellinger III, was the State Department’s legal counsel.


The proposals in the paper were not entirely new. But what was different, one administration official said, was an effort at “a big-bang solution,” to persuade senior officials or the president himself to adopt a comprehensive new approach to the detention problems of the policy. Failing that, officials said, the authors hoped to foster new debate about how to shape a strategy that would be more sustainable diplomatically, politically and in the federal courts.


Three years after Mr. Bush had determined he would not apply the Geneva Conventions in fighting terrorists, the memorandum urged a return to the conventions’ minimum standards, including the ban on “humiliating and degrading treatment” contained in the provision known as Common Article 3. The authors advocated that move not because they believed it was required by international law, officials said, but to win broader support from American allies and make court intervention less likely.


The paper did not advocate abandoning the covert interrogation program, but restricting it to the shorter-term questioning of more important suspects, officials said. After repatriating many of the Guantánamo detainees, the authors argued, the detention center could be shut down and the remaining prisoners transferred to a long-term detention facility in the United States. They did not specify what kind of facility it should be, two of the officials who read the paper said.


In a passage that underscored the views of Mr. Zelikow, one official said, the paper argued that efforts to bring to justice the perpetrators of the 9/11 attacks must produce more than the chaotic trial of Zacarias Moussaoui, the French-born militant who remains the only person to have been charged in an American court with involvement in the attacks.


The paper specifically called for taking Khalid Shaikh Mohammed and others held by the C.I.A. before military commissions, officials said, arguing that much of the information that would be disclosed by their trials was already widely known.


Officials said the memorandum was well received by Secretary of State Condoleezza Rice, who forwarded it to senior officials at the National Security Council. But the hope that it would lead to a broader discussion of options within the administration was quashed by Mr. Rumsfeld, they said.


Some of the defense secretary’s ire over the paper appeared to be substantive, several Pentagon officials said. At various times, Mr. Rumsfeld raised objections to taking over responsibility for the C.I.A. detainees, and he was reluctant to consider closing Guantánamo without a viable alternative in sight, the officials said.


Most important, they said, Mr. Rumsfeld was angered that his new deputy, Mr. England, had worked on the memorandum with officials outside the Pentagon without his authorization. “England’s wings got clipped after that,” one Defense Department aide said.


A spokesman for the department, Col. Gary L. Keck, said it would not discuss its deliberations on detainee policy or any “predecisional documents.” But he denied that Mr. Rumsfeld was ever angered by those deliberations or instructed anyone to destroy documents.


“This is a difficult and complex issue that has profound operational, diplomatic, legal and political implications not only for the Department of Defense, but for many other executive agencies,” Colonel Keck said in a statement. “In any discussion on such an important topic there will be differences of opinion - this is to be expected.”


In early August 2005, after a long internal debate, new rules for the Guantánamo military tribunals were published which did not include changes that many military lawyers had advocated. Officials said David S. Addington, who was then Mr. Cheney’s counsel and is now his chief of staff, was prominent among those who opposed modifications like an explicit ban on evidence obtained by torture, contending that it would wrongly hint that the government had sanctioned torture at all.


At the Pentagon, Mr. England continued to pursue the idea of adopting Common Article 3 of the Geneva Conventions in a directive that would set guidelines for prisoner treatment and interrogations. In late August, he called a meeting with some of the vice chiefs of staff of the armed forces and senior uniformed and civilian lawyers to consider the matter.


According to officials who attended the meeting, several of those present spoke in favor of the Geneva provision, including the senior Army lawyer, Maj. Gen. Thomas J. Romig. In an unusual move, Mr. England called for a show of hands. All but two of those present endorsed the provision. But those two officials were among the most influential in the room: the department’s under secretary for intelligence, Stephen A. Cambone, and its general counsel, William J. Haynes II.


Their concerns, which were later echoed by aides to Mr. Cheney, started with the fact that the president had explicitly rejected the Geneva standard in February 2002. They also disputed the idea that Article 3 would necessarily give clear guidance to soldiers, citing what they called its vague prohibition on “outrages upon personal dignity.”


Debate over both the proposed prisoner-treatment directive and an Army field manual for interrogations would go on for another year. For the time being, though, the idea of adopting Common Article 3 directly as the standard of treatment went no further.


There was little high-level discussion of alternatives to Guantánamo, several officials said. But the C.I.A.’s secret prisons had been a subject of rising concern since at least 2004, when unease over the open-ended detentions became evident within the agency and the Supreme Court ruled that detainees held by the United States at Guantánamo - and, by implication, elsewhere around the world - could challenge their detention in American courts.


By late 2005, as reports in The Washington Post and other news media about the secret prisons raised a storm of complaints among foreign governments, the C.I.A. began to move more quickly to transfer some captives to the custody of their own and other foreign governments, officials familiar with the program said.


By the end of 2005, military lawyers also began to review the C.I.A.’s evidentiary files on the high-value detainees to consider their possible prosecution by the military commissions at Guantánamo. Ultimately, military officials concluded that they could make solid cases against the C.I.A. prisoners without unduly exposing the agency’s covert program or even having to depend heavily on statements that had been obtained during highly coercive interrogations, several officials said.


There was also new pressure for action from within the C.I.A. Intelligence officers involved in detention and interrogations were increasingly worried about the legal implications of the program, officials said. Some foreign governments had declined to house covert detention centers, and the furor over those sites created friction with other intelligence agencies, the officials said.


Still, some senior figures in the administration, including Mr. Cheney and his chief of staff, Mr. Addington, remained unconvinced that the C.I.A. program could be made public and its prisoners taken before military commissions while continuing to protect what they saw as a vital intelligence asset, several officials said.


A spokeswoman for Mr. Cheney, Lea Anne McBride, said his office would have no comment on its role in policy deliberations, as did spokesmen for the State Department and the National Security Council.


“The problem fell for some period of time into the too-hard category,” one senior administration official said. “It fell so far into the too-hard category that it was lost from view.”


Interagency meetings on the detention issue with officials just below the cabinet level went around and around for months, officials said. In the late spring, they added, the president’s national security adviser, Stephen J. Hadley, began pushing senior officials to agree on options they could present to the president.


Many officials said the most important factor in forcing a new approach was the Supreme Court’s ruling in June that the military commissions set up by the administration could not proceed. That decision, which also upheld the minimum Geneva standards of prisoner treatment as binding law, led the administration to seek Congressional authorization for new tribunals and, some officials said, left the C.I.A.’s interrogation program on even more tenuous ground.


In late July, two officials said, Mr. Rumsfeld and his aides dropped their longstanding concerns about taking custody of the C.I.A. detainees, and Mr. Hadley moved to approve the arrangements for their transfer to Guantánamo.


The two officials said that Mr. Cheney was never entirely persuaded of the wisdom of emptying the C.I.A.’s detention sites and making its interrogation program public, but supported the move when Mr. Bush decided in late August to go ahead.


“The vice president knows the president has made the right decisions to make Americans safer and support the men and women on the front lines in the war on terror who are fighting this brutal enemy,” Mr. Cheney’s spokeswoman, Ms. McBride, said.


The element of the new legislation that raised the sharpest criticism among legal scholars and human rights advocates last week was the scaling back of the habeas corpus right of terrorism suspects to challenge their detention in the federal courts. But in dozens of high-level meetings on detention policy, officials said, that provision was scarcely even discussed.


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Bay Law Misery for Families


By Kanwal Tariq Hameed

Bahrain Daily News

1 October 2006


Families of Bahraini detainees at Guantanamo Bay have reacted with dismay after a law was passed in the US, which will ban inmates from contesting their detention on US soil.


The law, approved by the US Senate on Thursday and currently awaiting ratification by US President George Bush, has already drawn criticism from international human rights bodies.


United Nations (UN) special rapporteur on torture Manfred Nowak has criticised the law for preventing detainees from contesting their imprisonment in court and for failing to adequately outlaw extreme interrogation tactics.


Amnesty International (AI) officials have announced that they intend to launch a campaign against the law, saying it "put the American people through a maze that led to a faulty policy and, in the process, lost a little more of its standing with the global community and the American public".


Families of Bahraini Bay detainees have reiterated a plea to the Bahraini government to step up diplomatic measures to negotiate the release of Juma Al Dossary, 32, Salah Al Blooshi, 24, and Isa Al Murbati, 41.


New York-based lawyers for the three have said that diplomatic negotiations are the only avenue to seek their release right now.


"Really, I don't expect anything else from the US government because every now and then they come up with a new law like this," said Al Dossary's brother Khalid.


"Things are getting complicated now, but the American people are good and they are passionate - and I want the move (against this) to come from the American people and the Bahrain government.


"I don't know about the Bahraini government's negotiations on the issue, but I really urge them to work hard - now it's almost five years they have been there, this is a waste of their lives."


The law will only increase anti-American sentiments, he added. "The US government has created enemies for the American people in the world," he said.


"This is not because people hate freedom, this is because of the laws and the situation (the US government) created."


Almost one year since three Bahrainis were returned home from Guantanamo Bay during Eid last year, families of those still there say they hope for similar news.


"My mother, every time she sits for Iftar to break her fast, prays to God, so hard, to free Juma from there," said Mr Al Dossary.


"When all of his brothers and sisters sit together (in Ramadan) there is still one person missing, and this is Juma."


Al Blooshi's father Abdul Rasool echoed Mr Al Dossary's statement, adding that the new law had left the family wondering what would happen next.


"Just last night my wife was talking, saying we hadn't even heard his voice - and was really very upset," he said.


"We did not even see him.


"That law has made us worried because who knows what will happen, even though there are no charges against Salah and he has been told he was innocent for the last five years.


"The government should push more, they should work like the Kuwaitis and Saudis."


"This law is a tyranny against them," added wife of Isa Al Murbati, Elham Khalil.


"We are hopeful and we are praying, but there's really nothing else we can do."


More than two years ago, a US Supreme Court ruling cleared the way for Guantanamo Bay detainees to contest the legality of their imprisonment on US soil.


The new legislation overrides that decision and leaves the three Bahrainis, along with hundreds of others, stranded at the maximum-security facility, in Cuba, without the right to a trial in the US.


Lawyers have said they expect the US government to move to throw out cases filed on behalf of Al Murbati, Al Dossary and Al Blooshi, and that they envision a "long legal battle" ahead.


Al Murbati, Al Dossary and Al Blooshi have been imprisoned without trial for almost five years after being captured fleeing Afghanistan as it came under bombing from US and coalition troops in 2001.


© Gulf Daily News


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