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October 1st, 2006 - Detainee Memo
Created Divide in White House News article by the New York Times |
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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. External link:
http://www.nytimes.com/2006/10/01/washington/01detain.html 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 External link:
http://www.gulf-daily-news.com/Story.asp?Article=157234&Sn=BNEW&IssueID=29195 |