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Context of 'March 11-16, 2004: OLC Clarifies Stance on Classified Foreign Intelligence Activities'

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All the alleged 9/11 hijackers reportedly check in at the airports from where they board Flights 11, 175, 77, and 93. [9/11 Commission, 7/24/2004, pp. 1-4; 9/11 Commission, 8/26/2004, pp. 27, 89, 93] Since 1998, the FAA has required air carriers to implement a program called the Computer Assisted Passenger Prescreening System (CAPPS). This identifies those passengers who might be a security risk, based upon suspicious behavior such as buying one-way tickets or paying with cash. CAPPS also randomly assigns some passengers to receive additional security scrutiny. If a particular passenger has been designated as a “selectee,” this information is transmitted to the airport’s check-in counter, where a code is printed on their boarding pass. At the airport’s security checkpoints, selectees are subjected to additional security measures. [US News and World Report, 4/1/2002; 9/11 Commission, 1/27/2004; US Congress, 3/17/2004; 9/11 Commission, 8/26/2004, pp. 2, 85] Their baggage is to be screened for explosives or held off the plane until they have boarded. Supposedly, the thinking behind this is that someone smuggling a bomb onto a plane won’t get onto that same flight. According to the 9/11 Commission, nine of the 19 hijackers are flagged by the CAPPS system before boarding Flights 11, 175, 77, and 93. [Washington Post, 1/28/2004; 9/11 Commission, 7/24/2004, pp. 84; United States of America v. Zacarias Moussaoui, a/k/a Shaqil, a/k/a Abu Khalid al Sahrawi, Defendant, 3/6/2006] In addition, Mohamed Atta was selected when he checked in at the airport in Portland, for his earlier connecting flight to Boston (see 5:33 a.m.-5:40 a.m. September 11, 2001). All of the hijackers subsequently pass through security checkpoints before boarding their flights. [9/11 Commission, 7/24/2004, pp. 1-4]

Entity Tags: Federal Aviation Administration, Computer Assisted Passenger Prescreening System

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

National Security Adviser Condoleezza Rice enters the underground tunnel leading to the Presidential Emergency Operations Center (PEOC)—the bunker below the White House—where she encounters Vice President Dick Cheney, and then heads into the PEOC. Rice has been escorted down from the White House Situation Room by Carl Truscott, the Secret Service special agent in charge of the presidential protective division, who told her she had to go to the PEOC (see (9:45 a.m.) September 11, 2001). [United States Secret Service, 10/1/2001; White House, 8/6/2002] Before she left the Situation Room, Rice briefly talked on the phone with President Bush (see (9:45 a.m.) September 11, 2001). [White House, 8/2/2002; White House, 8/6/2002]
Rice Meets Cheney in Underground Tunnel - When Rice and Truscott enter the underground tunnel that leads to the PEOC, they encounter Cheney and his wife, Lynne Cheney, along with one of Cheney’s Secret Service agents. [United States Secret Service, 10/1/2001] Cheney was being taken to the PEOC by his Secret Service agents (see (9:36 a.m.) September 11, 2001, but stopped in an area of the underground tunnel where there is a secure telephone, in order to speak to Bush (see (9:37 a.m.) September 11, 2001 and (9:45 a.m.-9:56 a.m.) September 11, 2001). Lynne Cheney joined him there after she arrived at the White House (see (9:55 a.m.) September 11, 2001). [9/11 Commission, 7/24/2004, pp. 39-40] Cheney is still on the phone with Bush when Truscott and Rice meet him. Truscott advises the group assembled in the tunnel to move on to the PEOC. [United States Secret Service, 10/1/2001]
Rice Heads into the PEOC - Rice subsequently goes from the tunnel into the PEOC, although the exact time when she does so is unclear. She enters the PEOC “shortly after the vice president,” according to the 9/11 Commission Report, which will state that Cheney arrives in the PEOC at around 9:58 a.m. (see (9:58 a.m.) September 11, 2001). [9/11 Commission, 7/24/2004, pp. 40] Rice must enter the PEOC before 9:59 a.m., since she is there at the time the South Tower of the World Trade Center collapses, as will be confirmed by a photo taken at that time (see 9:59 a.m. September 11, 2001). [Newsweek, 12/30/2001; Bumiller, 2007, pp. xiii; Washington Post, 6/24/2007]
Rice Calls Relatives in Alabama - In the PEOC, Rice takes a seat next to Cheney. [9/11 Commission, 7/24/2004, pp. 40; Bumiller, 2007, pp. xiii] The first thing she does after arriving, according to some accounts, is call her aunt and uncle in Birmingham, Alabama, to tell them to inform her family that she is okay. [White House, 10/24/2001; O, the Oprah Magazine, 2/1/2002; White House, 8/2/2002; New York Times, 9/11/2002] But other accounts will say she called them just before she headed out from the Situation Room. [White House, 11/1/2001; White House, 8/7/2002; Associated Press, 9/9/2002; Bumiller, 2007, pp. xiii]

Entity Tags: Richard (“Dick”) Cheney, Carl Truscott, Lynne Cheney, Condoleezza Rice

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Dick Cheney and senior staff witness the collapse of the WTC South Tower. Directly behind Cheney are Norman Mineta and I. Lewis ‘Scooter’ Libby. National Security Advisor Condoleezza Rice stands behind Cheney’s left shoulder.Dick Cheney and senior staff witness the collapse of the WTC South Tower. Directly behind Cheney are Norman Mineta and I. Lewis ‘Scooter’ Libby. National Security Advisor Condoleezza Rice stands behind Cheney’s left shoulder. [Source: David Bohrer / White House]In the conference room of the Presidential Emergency Operations Center (PEOC), Vice President Cheney, National Security Adviser Condoleezza Rice, and their aides watch the South Tower collapsing on television. [Newsweek, 12/31/2001] Cheney will later say that the WTC coming down “was a shock to everybody—it certainly was to me.” [PBS, 9/9/2002] However, if he is indeed shocked, this is not how Cheney appears to others in the room. One witness who is present will later recall that, as the South Tower collapses, there is “a groan in the room that I won’t forget, ever. It seemed like one groan from everyone.” However, Cheney makes no sound, but closes his eyes for a long, slow blink. The witness says, “I remember turning my head and looking at the vice president, and his expression never changed.” [Washington Post, 6/24/2007] According to Mary Matalin, a counselor to the vice president, Cheney says nothing in response to the collapse, but “he emoted in a way that he emotes, which was to stop.” [CNN, 9/11/2002; CNN, 9/11/2002] When he is told that a casualty estimate ranges well into the thousands, the vice president reportedly just nods grimly. [Newsweek, 12/31/2001] According to the Washington Post, three people who are present say they see no sign now or later “of the profound psychological transformation that has often been imputed to Cheney.” What they see is “extraordinary self-containment and a rapid shift of focus to the machinery of power. While others assessed casualties and the work of ‘first responders,’ Cheney began planning for a conflict that would call upon lawyers as often as soldiers and spies.” He will promptly begin assembling the legal team that subsequently assists him in expanding presidential power (see (After 10:00 a.m.) September 11, 2001). [Washington Post, 6/24/2007]

Entity Tags: Mary Matalin, Richard (“Dick”) Cheney, Condoleezza Rice, World Trade Center

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

David Addington.David Addington. [Source: David Bohrer / White House]According to an in-depth examination by the Washington Post, within hours of the 9/11 attacks, Vice President Dick Cheney begins working to secure additional powers for the White House. Cheney had plans in place to begin acquiring these powers for the executive branch before the attacks, but had not begun to execute them.
Gathering the Team - David Addington, Cheney’s general counsel and legal adviser, had been walking home after having to leave the now-evacuated Eisenhower Executive Office Building. He receives a message from the White House telling him to turn around, because the vice president needs him. After Addington joins Cheney in the Presidential Emergency Operations Center (PEOC) below the East Wing of the White House, the pair reportedly begin “contemplating the founding question of the legal revolution to come: What extraordinary powers will the president need for his response?” Later in the day, Addington connects by secure video with Timothy Flanigan, the deputy White House counsel, who is in the White House Situation Room. John Yoo, the deputy chief of the Office of Legal Counsel, is also patched in from the Justice Department’s command center. White House counsel Alberto Gonzales joins them later. This forms the core legal team that Cheney will oversee after the terrorist attacks. Associate White House counsel Bradford Berenson will later recall: “Addington, Flanigan and Gonzales were really a triumvirate. [Yoo] was a supporting player.” Addington dominates the group. Gonzales is there primarily because of his relationship with President Bush. He is not, Yoo will later recall, “a law-of-war expert and [doesn’t] have very developed views.” Along with these allies, Cheney will provide what the Washington Post calls “the rationale and political muscle to drive far-reaching legal changes through the White House, the Justice Department, and the Pentagon,” which will free the president to fight the war on terror, “as he saw fit.”
Drafting the AUMF - The team begins drafting the document that will become the Authorization to Use Military Force (AUMF—see October 10, 2002) passed by Congress for the assault on Afghanistan. In the words of the group, the president is authorized “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States.”
Extraordinarily Broad Language - The language is extraordinarily broad; Yoo will later explain that they chose such sweeping language because “this war was so different, you can’t predict what might come up.” The AUMF draft is the first of numerous attempts to secure broad powers for the presidency, most justified by the 9/11 attacks. The Washington Post will later report, “In fact, the triumvirate knew very well what would come next: the interception—without a warrant—of communications to and from the United States” (see September 25, 2001). [CNN, 9/11/2001; CNN, 9/12/2001; Unger, 2007, pp. 220-221; Washington Post, 6/24/2007]

Entity Tags: Richard (“Dick”) Cheney, John C. Yoo, Timothy E. Flanigan, Craig Unger, Bradford Berenson, David S. Addington, Alberto R. Gonzales

Timeline Tags: Complete 911 Timeline, 9/11 Timeline, Civil Liberties

President Bush (below television screen) meeting with the National Security Council in a bunker below the White House. In the far row from left to right, are Attorney General Ashcroft, President Bush, Chief of Staff Card, CIA Director Tenet, and counterterrorism “tsar” Ckarke. In the near row, Secretary of State Powell can be seen waving his hand, and National Security Advisor Rice sits to his right.President Bush (below television screen) meeting with the National Security Council in a bunker below the White House. In the far row from left to right, are Attorney General Ashcroft, President Bush, Chief of Staff Card, CIA Director Tenet, and counterterrorism “tsar” Ckarke. In the near row, Secretary of State Powell can be seen waving his hand, and National Security Advisor Rice sits to his right. [Source: Eric Draper/ White House]President Bush meets with his full National Security Council. According to journalist Bob Woodward, this meeting turns out to be “unwieldy.” So at 9:30 p.m., Bush follows it with a meeting with a smaller group of his most senior principal national security advisers in the Presidential Emergency Operations Center (PEOC) beneath the White House. Bush and his advisers have already decided bin Laden is behind the attacks. As the president later recalls, in these meetings, “That’s when we first got the indication… we’ve identified, we think it’s al-Qaeda.” He says the FBI now thinks that “it’s al-Qaeda, and we start to develop our plans to get them. I mean, there wasn’t any hesitation. We’re starting the process of coalition-building and how to get ‘em.” (According to other accounts, though, the CIA had informed Bush hours earlier that it was virtually certain al-Qaeda was to blame for the attacks (see (3:15 p.m.) September 11, 2001).) CIA Director George Tenet says that al-Qaeda and the Taliban in Afghanistan are essentially one and the same. Tenet says, “Tell the Taliban we’re finished with them.” [Sammon, 2002, pp. 133; Woodward, 2002, pp. 31-33; Washington Post, 1/27/2002] The president says, “I want you all to understand that we are at war and we will stay at war until this is done. Nothing else matters. Everything is available for the pursuit of this war. Any barriers in your way, they’re gone. Any money you need, you have it. This is our only agenda.” When, later in the discussion, Defense Secretary Donald Rumsfeld points out that international law only allows force to prevent future attacks and not for retribution, Bush yells, “No. I don’t care what the international lawyers say, we are going to kick some ass.” [Clarke, 2004, pp. 23-24] Bush will subsequently announce a new US doctrine of preemptive attack the following June (see June 1, 2002). [Time, 6/23/2002] During the meeting, the president refers to the present political situation as a “great opportunity” (see (Between 9:30 p.m. and 10:00 p.m.) September 11, 2001). By the time the meeting ends, it is after 10 p.m. [Sammon, 2002, pp. 133]

Entity Tags: Osama bin Laden, Taliban, National Security Council, Richard A. Clarke, George W. Bush, Donald Rumsfeld, Al-Qaeda, George J. Tenet, Condoleezza Rice

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

The FBI dramatically escalates its warrantless wiretaps of US citizens, most without the proper paperwork or oversight. The public will not learn of the FBI wiretapping program until October 2005, when classified documents will be made available to the Electronic Privacy Information Center (EPIC), an advocacy group that will sue the Justice Department for records relating to the Patriot Act. According to those documents, which are heavily redacted, the FBI conducts clandestine surveillance on some US residents for 18 months and even longer. The FBI will also internally investigate at least 287 violations of its use of secret surveillance against US citizens. One target will be kept under surveillance for over five years, including a 15-month stretch where the FBI fails to notify Justice Department lawyers after the subject moves from New York to Detroit. According to an FBI investigation, that delay is a violation of department guidelines and will prevent the department “from exercising its responsibility for oversight and approval of an ongoing foreign counterintelligence investigation of a US person.” Other cases involve agents obtaining e-mails after warrants expire, seizing bank records without authorization, and conducting improper “unconsented physical search(es).” EPIC’s general counsel, David Sobel, will say in October 2005 that the classified documents indicate possible misconduct by the FBI in counterintelligence investigations, and highlight the need for greater congressional oversight of clandestine surveillance within the United States. “We’re seeing what might be the tip of the iceberg at the FBI and across the intelligence community,” Sobel will say. “It indicates that the existing mechanisms do not appear adequate to prevent abuses or to ensure the public that abuses that are identified are treated seriously and remedied.” The FBI will counter by insisting that all of the infractions are minor, mostly what it calls administrative errors, and that any information obtained improperly is quarantined and eventually destroyed. One senior FBI official will say, “Every investigator wants to make sure that their investigation is handled appropriately, because they’re not going to be allowed to keep information that they didn’t have the proper authority to obtain. But that is a relatively uncommon occurrence. The vast majority of the potential [violations] reported have to do with administrative timelines and time frames for renewing orders.” Catherine Lotrionte, the counsel for the President’s Foreign Intelligence Advisory Board, which is tasked with overseeing the FBI’s domestic surveillance operations, will refuse to disclose any details of any of the FBI violations, saying most of its work is classified and covered by executive privilege. The surveillance operations are conducted under the aegis of the Foreign Intelligence Surveillance Act (see 1978), whose threshold for such surveillance is lower than for criminal warrants. In 2004 alone, over 1,700 new cases will be opened by the secret Foreign Intelligence Surveillance Court. [Washington Post, 10/24/2005] Though Bush officials eventually admit to beginning surveillance of US citizens after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: Issuetsdeah, Federal Bureau of Investigation, Catherine Lotrionte, Electronic Privacy Information Center, David Sobel, US Department of Justice, Foreign Intelligence Surveillance Court

Timeline Tags: Civil Liberties

NSA director Michael Hayden addresses the NSA in a global videoconference, saying that the NSA, like other government agencies, will have to do more to protect the country from further terrorist attacks. The challenge, he says, is to balance Americans’ security with civil liberties, “to keep America free by making Americans feel safe again.” Hayden will say in a 2006 speech reflecting on that videoconference (see January 23, 2006) that US citizens operate under misconceptions about the NSA’s capabilities—that while citizens believe the NSA has a global electronic surveillance network that can, and does, spy on citizens willy-nilly, in reality the NSA is understaffed and unprepared to handle the technological advances of the last decade. Hayden will say that with more extensive domestic surveillance of US citizens and foreign visitors, the NSA could have caught some of the 9/11 hijackers before they were able to put their plan into motion. The standards by which US citizens and foreign visitors are monitored must change, Hayden believes.
Expansion of NSA Surveillance Powers - Using Ronald Reagan’s 1981 executive order 12333 (see December 4, 1981), Hayden expands the NSA’s domestic surveillance practices to eavesdrop, sometimes without court approval, on selected international calls made by US citizens. Though Hayden’s expansion of NSA surveillance is not directly authorized by President Bush, and is not the same program as authorized by Bush’s secret executive order of 2002 (see Early 2002), Hayden will later say that this expansion is based on the intelligence community’s assessment “of a serious and continuing threat to the homeland.” Hayden’s program is reviewed and approved by lawyers at the NSA, the Justice Department, and the White House, as well as Attorney General John Ashcroft. [Michael Hayden, 1/23/2006]
Domestic Surveillance Began Before 9/11? - Though Bush officials admit to beginning surveillance of US citizens only after the 9/11 attacks, some evidence indicates that the domestic surveillance program began some time before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: Terrorist Surveillance Program, US Department of Justice, National Security Agency, John Ashcroft, George W. Bush, Bush administration (43), Ronald Reagan, Michael Hayden

Timeline Tags: Civil Liberties

The US Congress adopts a joint resolution, the Authorization for Use of Military Force (AUMF), that determines that “the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Congress also states that the “grave acts of violence” committed on the US “continue to pose an unusual and extraordinary threat to [its] national security and foreign policy.” [US Congress, 9/14/2001] President Bush signs the resolution into law on September 18. [White House, 9/18/2001] The passage of the AUMF served another purpose: to extend presidential power. While the Defense Department and the Joint Chiefs of Staff intended the AUMF to define the conflict in narrow terms, and authorize the US to move militarily against al-Qaeda and its confederates, and the Taliban, Vice President Dick Cheney and his chief of staff, David Addington, had a larger goal. Attorney Scott Horton, who has written two major studies on interrogation of terrorism suspects for the New York City Bar Association, says in 2005 that Cheney and Addington “really wanted [the AUMF defined more broadly], because it provided the trigger for this radical redefinition of presidential power.” Addington helped draft a Justice Department opinion in late 2001, written by lawyer John Yoo (see Late September 2001), that asserted Congress cannot “place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” [US News and World Report, 5/21/2006]

Entity Tags: US Department of Defense, Taliban, Scott Horton, Joint Chiefs of Staff, Richard (“Dick”) Cheney, David S. Addington, George W. Bush, John C. Yoo, Al-Qaeda, Authorization to Use Military Force (AUMF)

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

A self-styled White House “war council” begins meeting shortly after the 9/11 attacks, to discuss the administration’s response to the attacks and the methods it will use (see (After 10:00 a.m.) September 11, 2001). The ad hoc group is composed of White House counsel Alberto Gonzales, Justice Department lawyer John Yoo, Pentagon chief counsel William J. Haynes, and the chief aide to Vice President Dick Cheney, David Addington. According to Jack Goldsmith, who will become head of the Justice Department’s Office of Legal Counsel (OLC) in 2003 (see October 6, 2003), the four believe that the administration’s biggest obstacle to responding properly to the 9/11 attacks is the body of domestic and international law that arose in the 1970s to constrain the president’s powers after the criminal excesses of Richard Nixon’s White House. Chief among these restraints is the Foreign Intelligence Surveillance Act (FISA) of 1978 (see 1978). Though Addington tends to dominate the meetings with his imposing physical presence and aggressive personality, Yoo is particularly useful to the group; the head of the OLC, Jay Bybee (whom Goldsmith will replace) has little experience with national security issues, and delegates much of the responsibility for that subject to Yoo, even giving him the authority to draft opinions that are binding on the entire executive branch. Yoo agrees wholeheartedly with Addington, Gonzales, and Cheney about the need for vastly broadened presidential powers. According to Goldsmith, Yoo is seen as a “godsend” for the White House because he is eager to draft legal opinions that would protect Bush and his senior officials from any possible war crimes charges. However, Yoo’s direct access to Gonzales angers Attorney General John Ashcroft, who feels that the “war council” is usurping legal and policy decision-making powers that are legally his own. [New York Times Magazine, 9/9/2007] In 2009, Goldsmith will say, “[I]it was almost as if they [Cheney and Addington] were interested in expanding executive power for its own sake.” [Vanity Fair, 2/2009]

Entity Tags: Richard (“Dick”) Cheney, William J. Haynes, Richard M. Nixon, Office of Legal Counsel (DOJ), Jay S. Bybee, Jack Goldsmith, John C. Yoo, Bush administration (43), Foreign Intelligence Surveillance Act, Alberto R. Gonzales, David S. Addington

Timeline Tags: Civil Liberties

In a television interview, Vice President Cheney is asked how the US will respond to the 9/11 attacks. He first replies that there will be a military response. But he adds an oblique comment indicating the secrecy in which he and the administration intend to operate after the 9/11 attacks: “We also have to work, though, sort of the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.” [Meet the Press, 9/16/2001; Unger, 2007, pp. 221] In 2006, former CIA official Gary Schroen will be asked about Cheney’s comment, and he replies: “My impression at the time was that the administration was trying to send a message, and certainly CIA leadership was trying to send a message, that the gloves were off. I think what [Cheney] was probably saying was, we’re going to do things like assassination operations; we were going to go into places and not try to capture these guys, but just kill them, and that… there would be a lot of people who would object to those kind of tactics.” [PBS Frontline, 1/20/2006] In 2007, author and reporter Charlie Savage will write, “Many interpreted Cheney’s vague remarks to have been a reference to brutal interrogation techniques.” [Savage, 2007, pp. 154]

Entity Tags: Charlie Savage, Gary C. Schroen, Richard (“Dick”) Cheney

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

President Bush signs a directive giving the CIA the authority to kill or capture suspected al-Qaeda members and to set up a global network of secret detention facilities—“black sites”—for imprisoning and interrogating them. [Truthout (.org), 8/27/2004]
Secret Prison System - The International Committee of the Red Cross (ICRC) will later call the sites a “hidden global internment network” designed for secret detentions, interrogations, and ultimately, torture. At least 100 prisoners will be remanded to this secret system of “extraordinary rendition.” The network will have its own fleet of aircraft (see October 4, 2001) and relatively standardized transfer procedures. [New York Review of Books, 3/15/2009] The directive, known as a memorandum of notification, will become the foundation for the CIA’s secret prison system. The directive does not spell out specific guidelines for interrogations. [New York Times, 9/10/2006]
Secret Assassination List - Bush also approves a secret “high-value target list” containing about two dozen names, giving the CIA executive and legal authority to either kill or capture those on the list (see Shortly After September 17, 2001). The president is not required to approve each name added to the list and the CIA does not need presidential approval for specific attacks. Further, a presidential finding gives the CIA broad authority to capture or kill terrorists not on the list; the list is merely the CIA’s primary focus. The CIA will use these authorities to hunt for al-Qaeda leaders in Afghanistan and elsewhere. [New York Times, 12/15/2002]

Entity Tags: Central Intelligence Agency, George W. Bush, International Committee of the Red Cross, Al-Qaeda

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties, War in Afghanistan

At some point after 9/11, the US government begins compiling a list of “high-value” al-Qaeda linked militant leaders to be killed or captured. President Bush authorizes the assassination of high-value targets on September 17, 2001 (see September 17, 2001), so the creation of the list presumably takes place shortly after that. US intelligence agencies typically propose a name for the list, and prepare a dossier that explains who the target is and why that person deserves to be on the list. Then, a committee of bureaucrats and lawyers from the Justice Department, CIA, Pentagon, and other agencies reviews the dossier. If it finds the evidence convincing, the name is included on the “high-value target” list, which means the person cannot only be captured by US forces, but is legally allowed to be killed. At any one time, there are between 10 and 30 people on the list. Top al-Qaeda leaders Osama bin Laden and Ayman al-Zawahiri are on the list from the very beginning. In 2002, Defense Secretary Donald Rumsfeld will secretly authorize the killing of top targets anywhere in the world (see July 22, 2002), increasing the danger of being named on the list. In 2010, Anwar al-Awlaki will be added to the list. This will be the first time a US citizen is added. [Reuters, 5/12/2011] The CIA already had prepared a list of high-value targets it thought deserved to be assassinated before 9/11 (see Shortly After September 11, 2001).

Entity Tags: George W. Bush, Al-Qaeda, Central Intelligence Agency, Osama bin Laden, US Military, Ayman al-Zawahiri, US Department of Justice

Timeline Tags: Complete 911 Timeline, War in Afghanistan

On September 19, 2001, Cofer Black, head of the CIA’s Counterterrorist Center, speaks to Gary Berntsen, a CIA officer who is about to lead the first unit of CIA operatives into Afghanistan. Black tells Berntsen that President Bush has signed a new intelligence order. As Black will put it in 2002, the gloves are off (see September 26, 2002). Black orders Berntsen: “You have one mission. Go find the al-Qaeda and kill them. We’re going to eliminate them. Get bin Laden, find him. I want his head in a box.… I want to take it down and show the president.” Berntsen replies, “Well, that couldn’t be any clearer.” [Washington Post, 11/18/2002] Indeed, two days before Bush, signed new orders giving the CIA broad new powers (see September 17, 2001 and September 17, 2001). Bernsten and his team arrive in Afghanistan on September 26 (see September 26, 2001).

Entity Tags: Cofer Black, Gary Berntsen, Central Intelligence Agency, Counterterrorist Center

Timeline Tags: Complete 911 Timeline, War in Afghanistan

In a memo, responding to a request from Deputy White House Counsel Timothy E. Flanigan, Justice Department lawyer John C. Yoo provides legal advice on “the legality of the use of military force to prevent or deter terrorist activity inside the United States.” He addresses the question of how the Fourth Amendment to the US Constitution applies to the use of “deadly force” by the military “in a manner that endangered the lives of United States citizens.” The Fourth Amendment requires the government to have some objective suspicion of criminal activity before it can infringe on an individual’s liberties, such as the right to privacy or the freedom of movement. Yoo writes that in light of highly destructive terrorist attacks, “the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.” If the president determines the threat of terrorism high enough to deploy the military inside US territory, then, Yoo writes, “we think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection.” [New York Times, 10/24/2004] A month later, the Justice Department will issue a similar memo (see October 23, 2001).

Entity Tags: John C. Yoo, Timothy E. Flanigan, US Department of Justice

Timeline Tags: Torture of US Captives, Civil Liberties

Less than two weeks after 9/11, White House counsel Alberto Gonzales sets up an interagency group to design a strategy for prosecuting terrorists, and specifically asks it to suggest military commissions as one viable option for prosecution of suspected terrorists.
Membership - The initial participants include Gonzales; White House lawyer Timothy Flanigan; Pentagon general counsel William Haynes; the vice president’s chief counsel, David Addington; National Security Council lawyer John Bellinger; and State Department lawyer Pierre-Richard Prosper, a former career prosecutor who now serves as State’s ambassador at large for war crimes issues and who will head the group.
Various Options - The group spends a month in a windowless conference room at State, bringing in experts from around the government, including military lawyers and Justice Department lawyers. The Justice Department advocates regular trials in civilian courts, such as the trials of the 1993 World Trade Center bombers (see February 26, 1993). However, many in the group object, noting that terrorist trials in regular courthouses on US soil pose security risks. The military lawyers propose courts-martial, which can take place anywhere in the world and would have military protection. A third option, military commissions, would offer the security of courts-martial without the established rules of evidence and procedure courts-martial have; setting up such a system might offer more flexibility in trying suspected terrorists, but many in the group wonder if President Bush would require Congressional authorization. Prosper will later recall, “We were going to go after the people responsible for the attacks, and the operating assumption was that we would capture a significant number of al-Qaeda operatives.” In addition to the use of military commissions, the group begins to work out three other options: ordinary criminal trials, military courts-martial, and tribunals with a mixed membership of civilians and military personnel. The option of a criminal trial by an ordinary federal court is quickly brushed aside for logistical reasons, according to Prosper. “The towers were still smoking, literally. I remember asking: Can the federal courts in New York handle this? It wasn’t a legal question so much as it was logistical. You had 300 al-Qaeda members, potentially. And did we want to put the judges and juries in harm’s way?” Despite the interagency group’s willingness to study the option of military commissions, lawyers at the White House, according to reporter Tim Golden, grow impatient with the group. Some of its members are seen to have “cold feet.” [New York Times, 10/24/2004; Savage, 2007, pp. 135]
Parallel Process at White House - Unbeknownst to Prosper’s group, the White House is crafting its own version of military commissions or tribunals (see Late October 2001). When President Bush issues his executive order creating military tribunals (see November 13, 2001), Prosper and his group will first learn about it by watching the nightly news. [Savage, 2007, pp. 138]

Entity Tags: US Department of Justice, US Department of State, William J. Haynes, Timothy E. Flanigan, Pierre-Richard Prosper, John Bellinger, Beth Nolan, Alberto R. Gonzales, Scott McClellan, Jay S. Bybee, John Ashcroft, David S. Addington

Timeline Tags: Torture of US Captives, Civil Liberties

John Yoo, a deputy assistant attorney general in the Department of Justice (DOJ) Office of Legal Counsel (OLC), issues a legal opinion that says the US can conduct electronic surveillance against its citizens without probable cause or warrants. According to the memo, the opinion was drafted in response to questions about whether it would be constitutional to amend the Foreign Intelligence Surveillance Act (FISA) to state that searches may be approved when foreign intelligence collection is “a purpose” of the search, rather than “the purpose.” Yoo finds this would be constitutional, but goes further. He asserts that FISA is potentially in conflict with the Constitution, stating, “FISA itself is not required by the Constitution, nor is it necessarily the case that its current standards match exactly to Fourth Amendment standards.” Citing Vernonia School Dist. 47J v. Acton, in which the Supreme Court found that warrantless searches of students were permissible, Yoo argues that “reasonableness” and “special needs” are also the standards according to which warrantless monitoring of the private communications of US persons is permissible. According to Yoo, the Fourth Amendment requirement for probable cause and warrants prior to conducting a search pertain primarily to criminal investigations, and in any case cannot be construed to restrict presidential responsibility and authority concerning national security. Yoo further argues that in the context of the post-9/11 world, with the threat posed by terrorism and the military nature of the fight against terrorism, warrantless monitoring of communications is reasonable. Some information indicates the NSA began a broad program involving domestic surveillance prior to the 9/11 attacks, which contradicts the claim that the program began after, and in response to, the attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [US Department of Justice, 9/25/2001 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file; New York Times, 3/2/2009; Inspectors General, 7/10/2009]
Yoo Memo Used to Support Legality of Warrantless Surveillance - Yoo’s memo will be cited to justify the legality of the warrantless domestic surveillance program authorized by President Bush in October 2001 (see October 4, 2001). NSA Director General Michael Hayden, in public remarks on January 23, 2006, will refer to a presidential authorization for monitoring domestic calls having been given prior to “early October 2001.” Hayden will also say, “The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general.” The various post-9/11 NSA surveillance activities authorized by Bush will come to be referred to as the President’s Surveillance Program (PSP), and the first memo directly supporting the program’s legality will be issued by Yoo on November 2, 2001, after the program has been initiated (see November 2, 2001). Many constitutional authorities will reject Yoo’s legal rationale. [Michael Hayden, 1/23/2006]
Yoo Memo Kept Secret from Bush Officials Who Might Object - According to a report by Barton Gellman and Jo Becker in the Washington Post, the memo’s “authors kept it secret from officials who were likely to object,” including ranking White House national security counsel John Bellinger, who reports to National Security Adviser Condoleezza Rice. Bellinger’s deputy, Bryan Cunningham, will tell the Post that Bellinger would have recommended having the program vetted by the Foreign Intelligence Surveillance Court, which oversees surveillance under FISA. Gellman and Becker quote a “senior government lawyer” as saying that Vice President Dick Cheney’s attorney, David Addington, had “open contempt” for Bellinger, and write that “more than once he accused Bellinger, to his face, of selling out presidential authority for good ‘public relations’ or bureaucratic consensus.” [Washington Post, 6/24/2007]

Entity Tags: US Department of Justice, John Bellinger, National Security Agency, Bryan Cunningham, Condoleezza Rice, David S. Addington, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Office of Legal Counsel (DOJ), John C. Yoo, George W. Bush, Richard (“Dick”) Cheney

Timeline Tags: Civil Liberties

Mohamed Abdi, a 44-year-old Somali immigrant whose phone number was found in a car belonging to one the 9/11 hijackers, is detained without bail in Alexandria, Va. On September 12, 2001, FBI investigators discovered a car registered to 9/11 hijacker Nawaf Alhazmi at Dulles Airport (see September 11-13, 2001). In the car, they found a Washington-area map with the name “Mohumad” and a Virginia phone number belonging to Mohamed Abdi. At the court hearing, an FBI investigator says that Abdi has not explained the finding and is suspected of being linked to the hijackers. FBI Special Agent Kevin W. Ashby also testifies that an article on Ahmed Ressam was found in Abdi’s clothing. Ressam was convicted of trying to bomb Los Angeles Airport in 2000 (see December 14, 1999). According to press reports, Abdi is not cooperating with police. He came to the United States in 1993 as a refugee. He later brought his wife and four children to the US and obtained US citizenship. Shortly after his arrival, Abdi worked for Caterair, a food service company at Reagan National Airport. At the time of his arrest, Abdi had been working as a low-paid security guard for Burns Security for seven years. Burns does not provide airport security services, however, a Burns subsidiary called Globe Aviation Services provides screening services at several US airports, including the American Airlines concourse at Boston’s Logan Airport, from which one of the hijacked flights took off (see October 10, 2001). Abdi, who has had financial difficulties for some time, is charged with check forgery. He is accused of forging his landlord’s signature to obtain a government housing subsidy. No terrorism charges are filed. [US District Court Eastern District of Virginia, 9/23/2001 pdf file; Washington Post, 9/27/2001 pdf file; Human Events, 10/15/2001; Human Events, 10/15/2001] In January 2002, Abdi will receive a four-month sentence for forgery. Any link he may have had with the hijackers will remain unclear. [Washington Post, 1/12/2002]

Entity Tags: Washington Dulles International Airport, Ronald Reagan Washington National Airport, Nawaf Alhazmi, Logan International Airport, Mohamed Abdi, Globe Aviation Services Corp., Federal Bureau of Investigation, Burns Security

Timeline Tags: Complete 911 Timeline

Lt. Col. Stuart Couch.Lt. Col. Stuart Couch. [Source: Wall Street Journal]Mohamedou Ould Slahi, a Mauritanian businessman and alleged liaison between Islamic radicals in Hamburg and Osama bin Laden with foreknowledge of the 9/11 plot (see 1999 and January-April 2000), is arrested in Mauritania by secret police, his family says. By December, he will be in US custody. He will later be housed at a secret CIA facility within Camp Echo at the Guantanamo Bay Naval Station. [Washington Post, 12/17/2004] In 2007, it will be reported that one of Slahi’s prosecutors, Lt. Col. Stuart Couch, has refused to continue to prosecute Slahi after learning details of Slahi’s tortures at Guantanamo. [Wall Street Journal, 3/31/2007] The Nation will later report, “Aside from the beatings, waterboarding, stress positions, and sexual degradation that have been the norm at Guantanamo, Slahi was taunted with details of his mother’s incarceration and rape in an elaborate hoax by an officer who claimed to be representing the White House.” While Couch believes Slahi is a high-level al-Qaeda operative, he also believes the much of the evidence against him is not credible because of the methods used to obtain it. [Nation, 4/4/2007]

Entity Tags: Stuart Couch, Mohamedou Ould Slahi

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Bradford Berenson.Bradford Berenson. [Source: PBS]In the weeks following 9/11, government lawyers begin to formulate a legal response to the newly perceived threat of terrorism. Four related issues are at hand: forceful prevention, detention, prosecution, and interrogation. What degree of force can the government employ to prevent acts of terrorism or apprehend suspected terrorists? How and where can it best detain terrorists if captured? How can it best bring them to trial? And how can it best obtain information from them on terrorist organizations and plots? These questions are handled in a new atmosphere that is more tolerant towards flexible interpretations of the law. Bradford Berenson, an associate White House counsel at this time, later recalls: “Legally, the watchword became ‘forward-leaning’ by which everybody meant: ‘We want to be aggressive. We want to take risks.’” [New York Times, 10/24/2004] This attitude is seemingly in line with the president’s thinking. Counterterrorism “tsar” Richard Clarke will later recall President Bush saying, “I don’t care what the international lawyers say. We are going to kick some ass” (see (9:00 p.m.-10:00 p.m.) September 11, 2001). [Clarke, 2004, pp. 23-24] At the center of legal reconstruction work are Alberto R. Gonzales, the White House counsel, his deputy Timothy E. Flanigan, and David S. Addington, legal counsel to Vice President Cheney. [New York Times, 12/19/2004] They will find a helpful hand in the Justice Department’s Office of Legal Counsel (OLC), most notably its head, Assistant Attorney General Jay S. Bybee [Los Angeles Times, 6/10/2004] and his deputies John C. Yoo [New York Times, 8/15/2004] and Patrick F. Philbin. Most of the top government lawyers dwell in fairly conservative circles, with many being a member of the Federalist Society, a conservative legal fraternity. Some have clerked for conservative Supreme Court Justices Antonin Scalia and Clarence Thomas, whose ruling effectively lead to the presidency being awarded to George W. Bush after the 2000 presidential election. [New York Times, 10/24/2004] Others worked for Judge Lawrence H. Silberman, who set up secret contacts with the Iranian government under President Reagan leading to the Iran-Contra scandal, and who advised on pursuing allegations of sexual misconduct by President Clinton. [Inter Press Service, 2/6/2004]

Entity Tags: Patrick F. Philbin, Richard A. Clarke, John C. Yoo, Joan Claybrook, Alberto R. Gonzales, Bradford Berenson, Jay S. Bybee, Alan M. Dershowitz, Rena Steinzor

Timeline Tags: Torture of US Captives, Civil Liberties

Former AT&T employee Mark Klein.Former AT&T employee Mark Klein. [Source: PBS]The National Security Agency, as part of its huge, covert, and possibly illegal wiretapping program directed at US citizens (see Spring 2001 and After September 11, 2001), begins collecting telephone records of tens of millions of Americans, using data provided by telecommunications firms such as AT&T, Verizon, and BellSouth (see February 5, 2006). The media will not report on this database until May 2006 (see May 11, 2006). The program collects information on US citizens not suspected of any crime or any terrorist connections. Although informed sources say the NSA is not listening to or recording actual conversations, the agency is using the data to analyze calling patterns in an effort to detect terrorist activity. “It’s the largest database ever assembled in the world,” says one anonymous source. The NSA intends “to create a database of every call ever made.” As a result, the NSA has detailed records of the phone activities of tens of millions of US citizens, from local calls to family and friends to international calls. The three telecommunications companies are working with the NSA in part under the Communications Assistance Act for Law Enforcement (CALEA) (see January 1, 1995 and June 13, 2006) and in part under contract to the agency.
Surveillance Much More Extensive Than Acknowledged - The wiretapping program, which features electronic surveillance of US citizens without court warrants or judicial oversight, is far more extensive than anything the White House or the NSA has ever publicly acknowledged. President Bush will repeatedly insist that the NSA focuses exclusively on monitoring international calls where one of the call participants is a known terrorist suspect or has a connection to terrorist groups (see December 17, 2005 and May 11, 2006), and he and other officials always insist that domestic calls are not monitored. This will be proven false. The NSA has become expert at “data mining,” sifting through reams of information in search of patterns. The warrantless wiretapping database is one source of information for the NSA’s data mining. As long as the NSA does not collect “personal identifiers”—names, Social Security numbers, street addresses, and the like—such data mining is legal. But the actual efficacy of the wiretapping program in learning about terrorists and possibly preventing terrorist attacks is unclear at best. And many wonder if the NSA is not repeating its activities from the 1950s and 1960s, when it conducted “Operation Shamrock” (see 1945-1975), a 20-year program of warrantless wiretaps of international phone calls at the behest of the CIA and other intelligence agencies. Operation Shamrock, among other things, led to the 1978 passage of the Foreign Intelligence Surveillance Act (see 1978). [USA Today, 5/11/2006] In May 2006, former NSA director Bobby Ray Inman will say, “[T]his activity is not authorized” (see May 12, 2006). [Democracy Now!, 5/12/2006]
Secret Data Mining Center - In May 2006, retired AT&T technician Mark Klein, a 22-year veteran of the firm, will file a court affidavit saying that he saw the firm construct a secret data-mining center in its San Francisco switching center that would let the NSA monitor domestic and international communications (see January 2003). And former AT&T workers say that, as early as 2002, AT&T has maintained a secret area in its Bridgeton, Missouri, facility that is likely being used for NSA surveillance (see Late 2002-Early 2003).
Domestic Surveillance Possibly Began Before 9/11 - Though Bush officials admit to beginning surveillance of US citizens only after the 9/11 attacks, some evidence indicates that the domestic surveillance program began some time before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: Terrorist Surveillance Program, Verizon Communications, Mark Klein, George W. Bush, AT&T, BellSouth, Central Intelligence Agency, Communications Assistance for Law Enforcement Act (CALEA), Foreign Intelligence Surveillance Act, Qwest, National Security Agency

Timeline Tags: Civil Liberties

The Justice Department’s John Yoo, an official in the Office of Legal Counsel (OLC), issues a secret opinion regarding legal statutes governing the use of certain interrogation techniques. The opinion will not be made public; its existence will not be revealed until October 18, 2007, when future OLC head Steven Bradbury will note its existence as part of an American Civil Liberties Union (ACLU) lawsuit. [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: US Department of Justice, American Civil Liberties Union, John C. Yoo, Office of Legal Counsel (DOJ), Steven Bradbury

Timeline Tags: Civil Liberties

Bensayah Belkacem at Guantanamo.Bensayah Belkacem at Guantanamo. [Source: US Defense Department]US intelligence intercepts numerous phone calls between Abu Zubaida and other al-Qaeda leaders and Bensayah Belkacem, an operative living in Bosnia. The New York Times will later report that shortly after 9/11, “American intelligence agencies, working closely with the government of neighboring Croatia, listened in as Mr. Belkacem and others discussed plans for attacks.” One US official says, “He was apparently on the phone constantly to Afghanistan, with Zubaida and others. There were dozens of calls to Afghanistan.” Belkacem, an Algerian, had moved to Bosnia to fight in the early 1990s war there, then obtained Bosnian citizenship and settled in Zenica, working for an Islamic charity. [New York Times, 1/23/2002] On October 8, 2001, Bosnian police detain Belkacem. While searching his home, they find a piece of note listing the name “Abu Zubeida” and Zubaida’s phone number. [Washington Post, 8/21/2006] It is later revealed that Belkacem made 70 calls to Zubaida between 9/11 and his arrest and more calls before then. He had repeatedly sought a visa to leave Bosnia for Germany just before 9/11. Phone transcripts show Zubaida and Belkacem discussed procuring passports. [Time, 11/12/2001] A US official will later claim that it was believed Zubaida was in Afghanistan with bin Laden at the time of Belkacem’s arrest. [New York Times, 1/23/2002] It has not been explained why this knowledge was not used to capture or kill Zubaida and/or bin Laden. It appears that Western intelligence agencies had been monitoring Zubaida’s calls as far back as 1996 (see (Mid-1996) and October 1998 and After). Belkacem and five of his associates will be renditioned to Guantanamo Bay prison in 2002 and remain imprisoned there (see January 18, 2002).

Entity Tags: Abu Zubaida, Bensayah Belkacem, US intelligence

Timeline Tags: Complete 911 Timeline

The FBI releases a list of its 22 most wanted terrorists. The US government offers up to $5 million for information leading to the capture of anyone of the list. The men are:
bullet Al-Qaeda leaders Osama bin Laden, who was indicted by a grand jury in 1998 (see June 8, 1998), Ayman al-Zawahiri, linked to a 1995 bombing in Pakistan (see November 19, 1995), and Mohammed Atef, who provided training to Somali fighters before the Black Hawk Down incident (see Late 1992-October 1993);
bullet Khalid Shaikh Mohammed (KSM), for his role in the 1995 Bojinka plot (see January 6, 1995). KSM is actually the mastermind of 9/11, although the US intelligence community has allegedly not yet pieced this information together (see (November 7, 2001));
bullet Several other operatives suspected of involvement in the 1998 US embassy bombings in Africa (see 10:35-10:39 a.m., August 7, 1998): Fazul Abdullah Mohammed (see August 2, 2008), Mustafa Fadhil, Usama al-Kini (a.k.a. Fahid Muhammad Ally Msalam (see August 6-7, 1998)), Ahmed Khalfan Ghailani (see July 25-29, 2004), Sheikh Ahmed Salim Swedan (see July 11, 2002), Abdullah Ahmed Abdullah (see September 10, 2002), Anas al-Liby (see January 20, 2002- March 20, 2002), Saif al-Adel (see Spring 2002), Ahmed Mohammed Hamed Ali, and Mushin Musa Matwalli Atwah (see April 12, 2006);
bullet Abdul Rahman Yasin, a US-Iraqi involved in the 1993 World Trade Center bombing (see March 4-5,1993);
bullet Ahmed Ibrahim Al-Mughassil, Ali Saed Bin Ali El-Houri, Ibrahim Salih Mohammed Al-Yacoub, and Abdelkarim Hussein Mohamed Al-Nasser, for their alleged part in the 1996 Khobar Towers bombing in Saudi Arabia (see June 25, 1996);
bullet Imad Mugniyah, Hassan Izz-Al-Din, and Ali Atwa for the hijacking of TWA Flight 847 in June 1985. [CNN, 10/10/2001]

Entity Tags: Mohammed Atef, Mushin Musa Matwalli Atwah, Mustafa Fadhil, Osama bin Laden, Saif al-Adel, Khalid Shaikh Mohammed, Usama al-Kini, Sheikh Ahmed Salim Swedan, Imad Mugniyah, Mohammed Hamed Ali, Hassan Izz-Al-Din, Abdullah Ahmed Abdullah, Abdul Rahman Yasin, Abdelkarim Hussein Mohamed Al-Nasser, Ahmed Ibrahim Al-Mughassil, Ahmed Khalfan Ghailani, Ibrahim Salih Mohammed Al-Yacoub, Ali Saed Bin Ali El-Houri, Fazul Abdullah Mohammed, Federal Bureau of Investigation, Ali Atwa, Ayman al-Zawahiri, Anas al-Liby

Timeline Tags: Complete 911 Timeline

Nancy Pelosi.Nancy Pelosi. [Source: US Congress]House Minority Leader Nancy Pelosi (D-CA) writes to NSA Director Michael Hayden questioning the nature and extent of the apparently illegal warrantless wiretapping of US citizens by the agency. Pelosi and other members of the House Intelligence Committee were briefed on October 1, 2001, by Hayden, whose agency began conducting surveillance against US citizens after the 9/11 attacks (see After September 11, 2001). Pelosi will release the letter on January 6, 2006, three weeks after the New York Times revealed that the NSA had been conducting electronic surveillance of US citizens without warrants since at least 2002 (see December 15, 2005.) Pelosi’s office will also release Hayden’s response, but almost the entire letter from Hayden is redacted.
Letter to Hayden - Pelosi writes in part, “[Y]ou indicated [in the briefing] that you had been operating since the September 11 attacks with an expansive view of your authorities with respect to the conduct of electronic surveillance under the Foreign Intelligence Surveillance Act and related statutes, orders, regulations, and guidelines.… For several reasons, including what I consider to be an overly broad interpretation of President Bush’s directive of October 5 on sharing with Congress ‘classified or sensitive law enforcement information’ it has not been possible to get answers to my questions. Without those answers, the concerns I have about what you said on the First can not be resolved, and I wanted to bring them to your attention directly. You indicated that you were treating as a matter of first impression, [redacted ] being of foreign intelligence interest. As a result, you were forwarding the intercepts, and any information [redacted ] without first receiving a request for that identifying information to the Federal Bureau of Investigation. Although I may be persuaded by the strength of your analysis [redacted ] I believe you have a much more difficult case to make [redacted ] Therefore, I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting. Until I understand better the legal analysis regarding the sufficiency of the authority which underlies your decision on the appropriate way to proceed on this matter, I will continue to be concerned.” The only portion of Hayden’s October 18 reply regarding Pelosi’s concerns that has not been redacted reads, “In my briefing, I was attempting to emphasize that I used my authorities to adjust NSA’s collection and reporting.” In January 2006, an NSA official will say that Pelosi’s concerns were adequately addressed in Hayden’s reply, and in a private briefing shortly thereafter. [Washington Post, 1/4/2006; Nancy Pelosi, 1/6/2006]
Pelosi Unaware of Pre-9/11 Surveillance - Though Bush officials eventually admit to beginning surveillance of US citizens only after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). Pelosi is apparently unaware of any of this.

Entity Tags: Michael Hayden, House Intelligence Committee, Nancy Pelosi

Timeline Tags: Civil Liberties

Italy’s military intelligence service (SISMI) provides Jeff Castelli, the CIA station chief in Rome, with papers documenting an alleged uranium deal between Iraq and Niger. Castelli, who is not permitted to duplicate the papers, writes a summary of them and sends the report to Langley. [New Yorker, 10/27/2003; Knight Ridder, 11/4/2005; La Repubblica (Rome), 11/11/2005]
The allegations - The report includes four allegations:
bullet The report states that Iraq first communicated its interest in purchasing uranium from Niger at least as early as 1999. [US Congress, 7/7/2004] As blogger ERiposte will conclude through his analysis at TheLeftCoaster.Org [ERiposte, 10/31/2005] , none of the documents that are later provided to the US as the basis for this allegation include actual proof of uranium negotiations in 1999. Two of the source documents for this allegation do mention a 1999 visit by Wissam Al-Zahawi to Niger; however, no evidence has ever surfaced suggesting that there were any discussions about uranium during that visit (see February 1999). The first document (possibly authentic) is a letter, dated February 1, 1999, from the Niger embassy in Rome to Adamou Chekou, the Minister of Foreign Affairs in Niger, announcing Zahawie’s trip. It does not mention uranium. (Note that the SISMI report does not mention Al-Zahawi’s trip, it only states that uranium negotiations between the two countries began by at least 1999.) The second document is a letter dated July 30, 1999 from the Niger Ministry of Foreign Affairs to his ambassador in Rome requesting that he contact Zahawie, concerning an agreement signed June 28, 2000 to sell uranium to Iraq. The letter is an obvious forgery because it refers to an event that it describes as taking place 11 months later. [Unknown, n.d.; La Repubblica (Rome), 7/16/2003]
bullet The SISMI report states that in “late 2000,” the State Court of Niger approved an agreement with Iraq whereby Niger would sell Iraq a large quantity of uranium. This allegation appears to be based on a forged document titled “Annex 1,” which was possibly an annex to the alleged uranium agreement. It is evident that this document was forged because it says that the state court “met in the chamber of the council in the palace… on Wednesday, July 7, 2000.” But July 7, 2000 was, in fact, a Friday, not a Wednesday. One of SISMI’s reports to the US, possibly this one, actually reproduces this error. [Unknown, n.d.; La Repubblica (Rome), 7/16/2003; ERiposte, 10/31/2005]
bullet According to the report, Nigerien President Mamadou Tandja approved the agreement and communicated this decision to Iraqi President Saddam Hussein. The source for this is apparently a forged letter from the president of Niger to Saddam Hussein, in which the president refers to his authority under the country’s obsolete 1966 constitution. At the time the letter was presumed to have been written, the constitution in effect would have been that of December 26, 1992, which was subsequently revised by national referendum on May 12, 1996 and again by referendum on July 18, 1999. [Unknown, n.d.; Reuters, 3/26/2003; La Repubblica (Rome), 7/16/2003; US Department of State, 9/2005]
bullet The report also alleges that in October 2000, Nigerien Minister of Foreign Affairs Nassirou Sabo informed one of his ambassadors in Europe that Niger had agreed to provide several tons of uranium to Iraq. [Unknown, n.d.; La Repubblica (Rome), 7/16/2003] This is seemingly based on a forged letter that accompanied the alleged uranium sales agreement. The letter, dated October 10, 2000, is stamped as being received in Rome on September 28, 2000—nearly two weeks before the letter was presumably written. Furthermore, there is a problem with the signature. Unlike what is reported in the SISMI papers provided to the CIA, the actual letter is signed by Allele Elhadj Habibou, who left office in 1989. This indicates that someone must have corrected this information, replacing the name of Allele Elhadj Habibou with that of Nassirou Sabo (the minister in October 2000), before the letter was included in this report. [ERiposte, 10/31/2005]
Distribution within US Intelligence Community - After receiving the report from its Rome station, the CIA distributes it to other US intelligence agencies. According to a later Senate investigation, the “CIA, Defense Intelligence Agency (DIA), and Department of Energy (DOE) analysts considered the reporting to be ‘possible’ while the Department of State’s Bureau of Intelligence and Research (INR) regarded the report as ‘highly suspect,’ primarily because INR analysts did not believe that Niger would be likely to engage in such a transaction and did not believe Niger would be able to transfer uranium to Iraq because a French consortium maintained control of the Nigerien uranium industry.” [US Congress, 7/7/2004] Sources later interviewed by New Yorker’s Seymour Hersh portray US intelligence analysts’ assessment of the report in slightly harsher terms, saying that they “dismissed [it] as amateurish and unsubstantiated.” [New Yorker, 10/27/2003] “I can fully believe that SISMI would put out a piece of intelligence like that,” a CIA consultant later tells Hersh, “but why anybody would put credibility in it is beyond me.” [New Yorker, 5/17/2004, pp. 227] Langley asks for further clarification from Rome and receives a response three days later (see October 18, 2001). [La Repubblica (Rome), 11/11/2005]
Repeated Dissemination - The documents and reports based on the documents are sent to the CIA at least three separate times. They are also sent to the White House, the US embassy in Rome, British and French intelligence, and Italian journalist Elisabetta Burba of the news magazine Panorama. Each recipient in turn shares the documents, or their contents, with others, creating what author Craig Unger later calls “an echo chamber that gives the illusion that several independent sources had corroborated an Iraq-Niger uranium deal.” [Unger, 2007, pp. 237]

Entity Tags: Bureau of Intelligence and Research, Central Intelligence Agency, Craig Unger, Defense Intelligence Agency, Mamadou Tandja, SISMI, Elisabetta Burba, Nassirou Sabo, Wissam al-Zahawie, Saddam Hussein, Jeff Castelli, US Department of Energy

Timeline Tags: Niger Uranium and Plame Outing

NSA Director Michael Hayden responds to an October 11 letter from Representative Nancy Pelosi (see October 11, 2001), expressing concerns about the NSA’s post-9/11 surveillance expansion (see After September 11, 2001) that Hayden outlined for the House Intelligence Committee on October 1 (see October 1, 2001), and asking whether the president authorized it. The substance of Hayden’s October 18 reply will be redacted, except for this statement: “In my briefing, I was attempting to emphasize that I used my authorities to adjust NSA’s collection and reporting.” [Nancy Pelosi, 1/6/2006] A January 4, 2006 report in the Washington Post will cite “intelligence official close to Hayden” as saying that “[Hayden’s] appearance on Oct. 1, 2001, before the House committee had been to discuss Executive Order 12333, and not the new NSA program,” and that “Pelosi’s concerns had been answered in writing and again several weeks later during a private briefing.” [Washington Post, 1/4/2006] In a January 23, 2006 public briefing, Hayden will say, “September 2001, I asked to update the Congress on what NSA had been doing, and I briefed the entire House Intelligence Committee on the 1st of October on what we had done under our previously existing authorities,” and, “These decisions were easily within my authorities as the director of NSA under and [sic] executive order; known as Executive Order 12333.” [Michael Hayden, 1/23/2006]
Nature of Hayden's EO 12333 Surveillance Program - The full scope of Hayden’s surveillance program is unclear, but some sources indicate it includes the wholesale collection and data-mining of phone records provided by telecom companies and placement of pen registers (call trackers) on domestic phone numbers (see After September 11, 2001, October 11, 2001, After September 11, 2001, Late September, 2001, October 2001), and October 31, 2001). Some sources indicate the NSA began large-scale domestic surveillance activities prior to the 9/11 attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: Michael Hayden, House Intelligence Committee, Nancy Pelosi, National Security Agency

Timeline Tags: Civil Liberties

Serhane Abdelmajid Fakhet.Serhane Abdelmajid Fakhet. [Source: Spanish Interior Ministry]Serhane Abdelmajid Fakhet, later considered one of about three masterminds of the 2004 Madrid train bombings (see 7:37-7:42 a.m., March 11, 2004), is already being monitored by Spanish intelligence. On this day, he is photographed with Barakat Yarkas, leader of al-Qaeda’s main cell in Spain. Yarkas will be arrested for an alleged role in the 9/11 attacks less than a month later (see November 13, 2001). [El Mundo (Madrid), 8/16/2005] Fakhet had been under surveillance since 2000. [Irujo, 2005, pp. 182-186] He will allegedly blow himself up not long after the bombings (see 9:05 p.m., April 3, 2004). There are allegations that he was an informant at least by 2003 (see Shortly After October 2003). Also seen in the pictures are Yusuf Galan, another member of Yarkas’s cell who will be arrested with Yarkas and later convicted (see September 26, 2005), and Mouhannad Almallah, who has been under surveillance since at least 1998. Almallah will later be sentenced to 12 years in prison for a role in the Madrid bombings (see October 31, 2007). [El Mundo (Madrid), 10/27/2004]

Entity Tags: Serhane Abdelmajid Fakhet, Centro Nacional de Inteligencia, Barakat Yarkas, Mouhannad Almallah, Yusuf Galan

Timeline Tags: Complete 911 Timeline

The Justice Department’s John Yoo and Robert Delahunty issue a memo to White House counsel Alberto Gonzales claiming President Bush has sweeping powers in wartime that essentially void large portions of the Constitution. The memo, which says that Bush can order military operations inside the US (see October 23, 2001), also says that Bush can suspend First Amendment freedoms: “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It adds that “the current campaign against terrorism may require even broader exercises of federal power domestically.” [American Civil Liberties Union [PDF], 1/28/2009 pdf file; New York Times, 3/2/2009]

Entity Tags: John C. Yoo, George W. Bush, Robert J. Delahunty, US Department of Justice, Alberto R. Gonzales

Timeline Tags: Civil Liberties

Vice President Dick Cheney summons the chairmen and ranking members of the Senate and House Intelligence Committees to the White House for a classified briefing on the secret NSA warrantless wiretapping program (see Early 2002). Cheney makes it clear to the lawmakers that he is merely informing them about the program, and not seeking their approval. [Washington Post, 12/18/2005] Officials later say that under any of the previous presidents, such a meeting of this import would involve the president. But the four lawmakers are hustled away from the Oval Office. Instead, “[w]e met in the vice president’s office,” Bob Graham (D-FL), the chairman of the Senate Intelligence Committee, later recalls. President Bush has already told Graham that “the vice president should be your point of contact in the White House.” Cheney, according to the president, “has the portfolio for intelligence activities.” [Washington Post, 6/24/2007] The leaders are briefed by Cheney, CIA Director George Tenet, and NSA Director Michael Hayden. The Congressional leaders will later mostly refuse to comment publicly about what they do and do not learn about the program, even after it is revealed to the public (see December 15, 2005). In 2003, when Senator John D. Rockefeller ascends to the Democratic leadership of the Senate committee, and is himself briefed on the program, he will write to Cheney expressing his concerns over it (see July 17, 2003). [New York Times, 12/15/2005]
'No Discussion about Expanding' NSA Wiretapping - In December 2005, after the program is revealed to the public, one of the Congressmen present at the briefings, Graham, the then-chairman of the Senate Intelligence Committee, will discuss his knowledge of the program. In contradiction to the characterizations of Bush and other White House officials, Graham will say that he recalls “no discussion about expanding [NSA eavesdropping] to include conversations of US citizens or conversations that originated or ended in the United States,” and knew nothing of Bush’s intention to ignore the Foreign Intelligence Surveillance Court (also known as the FISA court). “I came out of the room with the full sense that we were dealing with a change in technology but not policy,” Graham will recall, using new methodologies to intercept overseas calls that passed through US switches. He thought that NSA eavesdropping would continue to be limited to “calls that initiated outside the United States, had a destination outside the United States but that transferred through a US-based communications system.” Instead, Graham will say, it now seems that Bush decided to go “beyond foreign communications to using this as a pretext for listening to US citizens’ communications. There was no discussion of anything like that in the meeting with Cheney.” A senior intelligence official, who refuses to reveal his identity but says he is speaking with the permission of the White House, will accuse Graham of “misremembering the briefings,” which he will call “very, very comprehensive.” The official will refuse to discuss the briefings in any but the most general terms, but will say they were intended “to make sure the Hill knows this program in its entirety, in order to never, ever be faced with the circumstance that someone says, ‘I was briefed on this but I had no idea that—’ and you can fill in the rest.” Graham will characterize the official’s description as saying: “[W]e held a briefing to say that nothing is different.… Why would we have a meeting in the vice president’s office to talk about a change and then tell the members of Congress there is no change?” House Minority Leader Nancy Pelosi (D-CA), who was also present at the meeting as the ranking Democrat on the House Intelligence Committee, will say the briefing described “President Bush’s decision to provide authority to the National Security Agency to conduct unspecified activities.” She will note that she “expressed my strong concerns” but did not go into detail. [Washington Post, 12/18/2005]
Lawmakers Unaware of Pre-9/11 Surveillance - Though Bush officials eventually admit to beginning surveillance of US citizens only after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). In the briefing, Cheney informs the lawmakers of none of this.

Entity Tags: Richard (“Dick”) Cheney, Senate Intelligence Committee, Nancy Pelosi, John D. Rockefeller, House Intelligence Committee, Daniel Robert (“Bob”) Graham, George J. Tenet, George W. Bush, Michael Hayden, National Security Agency

Timeline Tags: Civil Liberties

October 26, 2001: USA Patriot Act Becomes Law

President Bush signs the Patriot Act into law.President Bush signs the Patriot Act into law. [Source: White House]President Bush signs the USA Patriot Act (see October 2, 2001) into law. The act’s provisions include:
bullet 1) Non-citizens can be detained and deported if they provide “assistance” for lawful activities of any group the government chooses to call a terrorist organization. Under this provision the secretary of state can designate any group that has ever engaged in violent activity as a terrorist organization. Representative Patsy Mink (D-HI) notes that in theory supporters of Greenpeace could now be convicted for supporting terrorism. [San Francisco Chronicle, 11/12/2001]
bullet 2) Immigrants can be detained indefinitely, even if they are found not to have any links to terrorism. They can be detained indefinitely for immigration violations or if the attorney general decides their activities pose a danger to national security. They need never be given a trial or even a hearing on their status. [San Francisco Chronicle, 9/8/2002]
bullet 3) Internet service providers can be ordered to reveal the websites and e-mail addresses that a suspect has communicated to or visited. The FBI need only inform a judge that the information is relevant to an investigation. [Village Voice, 11/26/2001; San Francisco Chronicle, 9/8/2002]
bullet 4) The act “lays the foundation for a domestic intelligence-gathering system of unprecedented scale and technological prowess.” [Washington Post, 11/4/2001] It allows the government to access confidential credit reports, school records, and other records, without consent or notification. [San Francisco Chronicle, 9/8/2002] All of this information can now be given to the CIA, in violation of the CIA’s mandate prohibiting it from spying within the US. [Village Voice, 11/26/2001]
bullet 5) Financial institutions are encouraged to disclose possible violations of law or “suspicious activities” by any client. The institution is prohibited from notifying the person involved that it made such a report. The term “suspicious” is not defined, so it is up to the financial institutions to determine when to send such a report.
bullet 6) Federal agents can easily obtain warrants to review a library patron’s reading and computer habits (see January 2002). [Village Voice, 2/22/2002] Section 215 allows the FBI to ask the Foreign Intelligence Surveillance Court (FISC) for an order to obtain documents relating to counterterrorism investigations without meeting the usual standard of legal “probable cause” that a crime may have been committed. Senator Russ Feingold (D-WI—see October 9, 2001) says that Section 215 can allow the FBI to “go on a fishing expedition and collect information on virtually anyone.” Librarians will make Section 215 the centerpiece of their objections to the Patriot Act, arguing that the government can now “sweep up vast amounts of information about people who are not suspected of a crime.” In 2005, one librarian will say, “It reminds me of the Red Scare of the 1950s.” However, some FBI officials find it easier to use provisions of Section 505, which expands the usage of so-called “national security letters” (see November 28, 2001). [Roberts, 2008, pp. 39-40]
bullet 7) The government can refuse to reveal how evidence is collected against a suspected terrorist defendant. [Tampa Tribune, 4/6/2003]
Passes with No Public Debate - The law passes without public debate. [Village Voice, 11/9/2001; Village Voice, 11/26/2001] Even though it ultimately took six weeks to pass the law, there were no hearings or congressional debates. [Salon, 3/24/2003] Congressman Barney Frank (D-MA) says: “This was the least democratic process for debating questions fundamental to democracy I have ever seen. A bill drafted by a handful of people in secret, subject to no committee process, comes before us immune from amendment” (see October 2-4, 2001 and October 24, 2001). [Village Voice, 11/9/2001] Only 66 congresspeople, and one senator, Feingold, vote against it. Few in Congress are able to read summaries, let alone the fine print, before voting on it. [Los Angeles Times, 10/30/2001] Feingold says, “The new law goes into a lot of areas that have nothing to do with terrorism and have a lot to do with the government and the FBI having a wish list of things they want to do.” [Village Voice, 11/9/2001] Supporters of the act point out that some of its provisions will expire in four years, but in fact most provisions will not expire. [Chicago Tribune, 11/1/2001]
Mounting Opposition - One year later, criticism of the law will grow. [San Francisco Chronicle, 9/8/2002] Dozens of cities will later pass resolutions criticizing the Patriot Act (see January 12, 2003).

Entity Tags: George W. Bush, USA Patriot Act, Foreign Intelligence Surveillance Court, US Congress, Patsy Mink, Russell D. Feingold, Barney Frank

Timeline Tags: Complete 911 Timeline, Civil Liberties

Deputy White House counsel Timothy Flanigan presents his subordinate, associate counsel Bradford Berenson, with a draft presidential order he has written establishing military tribunals for suspected terrorists. The draft order declares that President Bush is invoking his wartime powers as commander in chief to establish a system of military tribunals, sometimes called military commissions.
Commissions More 'Flexible' - In the White House’s view, military tribunals offer several advantages over either civilian court trials or military courts-martial, as is being discussed in the interagency working group on prosecuting terrorists at the State Department (see Shortly Before September 23, 2001). Civilian trials would be subject to public scrutiny and media spectacle, and would pose a problem of security risks. Military courts-martial are quite rigid in their procedures and rules of evidence. Military commissions, as envisioned by Flanigan and the two other White House lawyers who put together the scheme—Berenson and David Addington, the chief counsel for Vice President Cheney—would offer more “flexibility” for the use of evidence gathered either under battlefield conditions or in interrogations, evidence that might not meet the standards of either a court-martial or a civilian trial. And, as author Charlie Savage will later note, “commissions enhanced presidential power by concentrating the process in the executive branch alone.”
A 'Relic' - Savage will explain: “Under normal trials, Congress defines a crime and sets the sentence for it; the executive branch investigates and prosecutes people who are accused of committing the crime; and the judicial branch runs the trial, decides whether to admit evidence, determines whether the defendant is guilty or innocent, and hears any appeal. With a military commission, all these powers were collapsed into the hands of the armed forces and, ultimately, their commander in chief. Although fairly common in nineteenth-century conflicts, military commissions were a relic: They had not been used by the United States since World War II.”
Support from Justice Department Lawyer - Their work will be bolstered when Justice Department lawyer Patrick Philbin issues a secret memo declaring that the president has the inherent authority to order military commissions (see November 6, 2001). Flanigan, Berenson, and Addington never inform the interagency working group of their own work, although they made use of the working group’s research. Flanigan, Berenson, and Addington cite Philbin’s memo as the definitive word on the president’s authority. When President Bush announces the order establishing the commissions (see November 13, 2001), the order abruptly short-circuits the interagency working group and renders its work irrelevant. [Savage, 2007, pp. 134-135]

Entity Tags: Patrick F. Philbin, Bush administration (43), Bradford Berenson, Charlie Savage, George W. Bush, US Department of State, David S. Addington, Richard (“Dick”) Cheney, Timothy E. Flanigan

Timeline Tags: Civil Liberties

When investigators search the home of Amer el-Azizi, a known al-Qaeda operative, they find an e-mail address that connects him to 9/11 mastermind Khalid Shaikh Mohammed (KSM). El-Azizi helped arrange a meeting between lead hijacker Mohamed Atta and an associate, Ramzi bin al-Shibh, in the run-up to 9/11 (see July 8-19, 2001), although he was monitored by Spanish authorities at the time (see Before July 8, 2001) and arrested in Turkey in 2000 (see October 10, 2000). His arrest shortly after 9/11 will be frustrated by Spanish intelligence (see October 2001 and Shortly After November 21, 2001) and he will go on to be involved in the 2004 Madrid bombings (see Before March 11, 2004 and 7:37-7:42 a.m., March 11, 2004). An indictment released in 2004 will say, “A fundamental document… connects Amer el-Azizi directly with those responsible for the terrorist attacks of Sept. 11, 2001, and concretely with Khalid Shaikh Mohammed via the e-mail address identified as Safar86@usa.net.” The e-mail address “was being used by an individual who facilitated trips for al-Qaeda members in direct connection with [KSM], organizer of the attacks.” A detainee will also later say that el-Azizi was in contact with the 9/11 plotters via e-mail. [Los Angeles Times, 4/29/2004] After 9/11, however, when the Spanish want to indict el-Azizi, the US will be reluctant to turn the information over to them, and it will take six months to get it. Despite this, problems persist in information sharing between the US and Spain and this has an impact on prosecutions (see Mid-2002-June 1, 2006). [Wall Street Journal, 5/4/2004]

Entity Tags: Amer el-Azizi, Khalid Shaikh Mohammed

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

John Yoo, the Justice Department’s (DOJ) Office of Legal Counsel (OLC) deputy assistant attorney general, sends a classified memo to Attorney General John Ashcroft justifying warrantless surveillance of US persons. The National Security Agency (NSA)‘s domestic surveillance authorized by President Bush (see October 4, 2001, Early 2002, and December 15, 2005) will come to be publicly referred to as the President’s Surveillance Program (PSP). This is not the first Yoo memo supporting warrantless surveillance (see September 25, 2001), but a 2009 report on the PSP jointly issued by the inspectors general (IGs) of the Department of Defense (DOD), DOJ, CIA, National Security Agency (NSA), and Office of the Director of National Intelligence (ODNI) will refer to it as “[t]he first OLC opinion directly supporting the legality of the PSP.” The IGs’ report will quote from and comment on the memo, noting that “deficiencies in Yoo’s memorandum identified by his successors in the Office of Legal Counsel and the Office of the Deputy Attorney General later became critical to DOJ’s decision to reassess the legality of the program in 2003.” According to the IGs’ report, Yoo asserts that warrantless surveillance is constitutional as long as it is “reasonable” under the Fourth Amendment, which only protects against “unreasonable searches and siezures.” On this point, the IGs’ report will note that Yoo’s successors were troubled by his failure to discuss the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), which found the president’s wartime authority to be limited. His memo does acknowledge that the Foreign Intelligence Surveillance Act (FISA) “purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence,” but asserts that it is only a “safe harbor for electronic surveillance” because it cannot “restrict the president’s ability to engage in warrantless searches that protect the national security.” Yoo also writes that Congress has not “made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area.” The IGs’ report will state that Yoo’s successors considered this problematic because Yoo has omitted discussion of the fact that FISA explicitly authorizes the president to conduct warrantless surveillance during the first 15 days following a declaration of war by Congress, which they considered an expression of Congress’s intent to restrict warrantless surveillance to a limited period of time and specific circumstances. The IGs’ report will also state that Yoo’s memo discusses “the legal rationale for Other Intelligence Activities authorized as part of the PSP,” and that Yoo concludes, “[W]e do not believe that Congress may restrict the president’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.” The IGs’ report will say that “Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities,” and that Yoo’s successors considered his discussion of these other activities to be “insufficient and presenting a serious impediment to recertification of the program as to form and legality.” [Inspectors General, 7/10/2009, pp. pp. 11-13]
Memo's Existence Revealed by ACLU Lawsuit - On December 15, 2005, the New York Times will report that Bush authorized an NSA warrantless domestic surveillance program after the 9/11 attacks (see December 15, 2005). The American Civil Liberties Union (ACLU) will request records pertaining to the program under the Freedom of Information Act (FOIA) and then sue the Justice Department for the release of records. The existence of Yoo’s November 2 memo will first be revealed in an October 19, 2007 deposition filed by then head of the OLC Steven Bradbury in response to the ACLU lawsuit, which says that it “[concerns] the legality of certain communications intelligence activities.” After the 2009 release of the IGs’ report the ACLU will notify the court and the government will agree to reprocess four OLC memos, including Yoo’s November 2 memo. This memo and a May 6, 2004 memo by Yoo’s OLC successor Jack Goldsmith that disputes many of Yoo’s conclusions will be released in heavily redacted form on March 18, 2011. [ACLU.org, 2/7/2006; United States District Court of DC, 10/19/2007; American Civil Liberties Union, 3/19/2011]
Constitutional Experts Dispute Yoo's Legal Rationale - Numerous authorities on the law will question or reject the legal bases for warrantless domestic surveillance. In 2003, Yoo will leave the OLC. Goldsmith will begin a review of the PSP, after which he will conclude it is probably illegal in some respects and protest, within the executive branch, its continuation (see Late 2003-Early 2004 and December 2003-June 2004). Following the public disclosure of its existence, a January 5, 2006 report by the Congressional Research Service will find it to be of dubious legality (see January 5, 2006). On January 19, 2006, the DOJ will issue a 42-page white paper laying out the legal bases for the program (see January 19, 2006). These bases will be reviewed and rejected by 14 constitutional scholars and former government officials in a joint letter to Congress on February 2, 2006. [al [PDF], 2/2/2006 pdf file] The American Bar Association will adopt a resolution on February 13, 2006 that rejects DOJ’s arguments and calls on Congress to investigate the program. [Delegates, 2/13/2006 pdf file] On August 17, 2006, in the case ACLU v. NSA, US district judge Anna Diggs Taylor will reject the government’s invocation of the “state secrets privilege” and its argument that plaintiffs’ lack standing due to their being unable to prove they were surveilled, and will rule that warrantless surveillance is in violation of “the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA, and Title III” (see August 17, 2006). Taylor’s ruling will be overturned on appeal, on the grounds that the plaintiffs lack standing as they cannot prove that surveillance has occurred. In another case, Al Haramain v. Barack Obama, the government will make the same arguments, but US district judge Vaughn Walker will reject these and conclude in 2010 that illegal surveillance occurred (see March 31, 2010). [Al-Haramain v. Obama, 3/31/2010]

Entity Tags: Steven Bradbury, Vaughn Walker, Ronald Dworkin, George W. Bush, John C. Yoo, American Bar Association, Office of Legal Counsel (DOJ), American Civil Liberties Union, John Ashcroft, Anna Diggs Taylor, US Department of Justice

Timeline Tags: Civil Liberties

In conjunction with the Federalist Society, the Heritage Foundation publishes a legal paper that appears to reflect much of the thinking at this time of prominent White House and Justice Department lawyers. The paper espouses the use of military commissions, arguing that this will offer the government several advantages. “In particular,” the paper’s authors argue, “trials before military tribunals need not be open to the general public and they may be conducted on an expedited basis, permitting the quick resolution of individual cases and avoiding the disclosure of highly sensitive intelligence material, which would have to be made public in an ordinary criminal trial.” The disadvantage of a normal trial would be that they would be limited by constitutional rules with regard to “what can be done to protect classified information.” In addition, in “federal district courts, the government has an obligation under Article III and the Sixth Amendment to conduct a ‘public trial’ and present to the jury, in open court, the facts on which it is relying to establish a defendant’s guilt.” But the authors do acknowledge that “[t]he use of military commissions with respect to individuals not regularly enrolled in a military force, represents a clear departure from normal legal processes and some of America’s most fundamental judicial traditions.” Surprisingly, the Geneva Conventions of 1949 are not mentioned even once. Almost in passing, the authors suggest an option that is to become reality. “[I]t is likely,” they write, “that the Supreme Court would allow the trial overseas by military commission of al-Qaeda members captured in Afghanistan, regardless of how it would treat defendants in this country.” [Rivkin, Casey, and Bartram, 11/5/2001; Rivkin, Casey, and Bartram, 11/5/2001] It is an indication that by this time the government contemplates using the US Naval Station at Guantanamo Bay, which is formally on Cuban soil, to accommodate suspected al-Qaeda and Taliban detainees.

Entity Tags: US Department of Justice, Geneva Conventions, Heritage Foundation, Federalist Society, Bush administration (43)

Timeline Tags: Torture of US Captives

The Geneva Conventions are mentioned in a memo issued the day after the publication of the Heritage Foundation paper (see November 5, 2001), but only to suggest that suspected terrorists should not be entitled to the rights enclosed in them. Patrick F. Philbin, a deputy in the OLC, sends a confidential 35-page memo to the White House legal counsel Gonzales, arguing that the president, as Commander-in-Chief, has “inherent authority” to establish military commissions without authorization from the US Congress. The 9/11 attacks are themselves “plainly sufficient” to justify the application of the laws of war. Furthermore, putting terrorists on trial under the laws of war, “does not mean,” according to Philbin, “that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants.” The Philbin memo will serve as a basis for a Presidential order (see November 13, 2001) establishing the option of military commissions, which will be drafted by Deputy White House Counsel Timothy E. Flanigan and David S. Addington, the legal counsel to Vice President Cheney. [New York Times, 10/24/2004]

Entity Tags: Patrick F. Philbin, Alberto R. Gonzales

Timeline Tags: Torture of US Captives

Nine Republican senators, led by conservatives Jesse Helms (R-NC), Trent Lott (R-MS), and Jon Kyl (R-AZ), send a letter to President Bush urging him to withdraw from the 1972 Anti-Ballistic Missile Treaty (see May 26, 1972, May 1, 2001, and June 2001). They explain their position by arguing that the ABM Treaty has become “the most significant obstacle to improved relations between the United States and Russia.” This argument is a complete reversal of conservatives’ earlier positions: that arms control agreements such as the ABM Treaty did nothing to stabilize relations between the US and its nuclear-armed opponents. The argument also flies in the face of public and private statements by Russian leaders, who consider the treaty one of the key elements of stable US-Russian relations. Russian President Vladimir Putin has repeatedly stressed the importance of the treaty in maintaining nuclear parity between the two nations (see July 2001), even as Russia seeks to reduce its nuclear arsenal from 6,000 to 1,500 deployed missiles. In 2008, author J. Peter Scoblic will speculate as to why conservatives wish to withdraw from the treaty: “For isolationists, missile defense renewed the dream of Fortress America, allowing us to retreat even further from crises abroad. For nationalists and moralists, missile defense was a shield against engagement and detente in the event that, say, North Korea was to develop a nuclear-armed ICBM (see August 31, 1998). For neoconservatives, missile defense was a necessary adjunct to their proactive vision of changing regimes and democratizing the world” (see March 12, 2001). [Scoblic, 2008, pp. 174-176]

Entity Tags: Vladimir Putin, George W. Bush, J. Peter Scoblic, Trent Lott, Jon Kyl, Jesse Helms

Timeline Tags: US International Relations

The Army’s Judge Advocate General, Major General Thomas J. Romig, hastily meets with JAG lawyers Colonel Lawrence Morris and Brigadier General Scott Black to prepare suggestions for improving a draft presidential order establishing military commissions (see Late October 2001 and November 9, 2001), with an eye on bringing the order closer to existing military legal standards. The order is modeled on a single World War II military commission (see 1942), and ignores the body of relevant law that came after that commission, including the Uniform Code of Military Justice and the Geneva Conventions (see November 6, 2001). In their view, the Bush administration seems determined to ignore 60 years of law and go back to a rough system of justice that, Romig will later say, “was going to be perceived as unfair because it was unnecessarily archaic.” The three work through the Veterans’ Day weekend on a number of suggestions that would bring the order closer to existing military legal standards. The final order, however, will include none of the lawyer’s recommendations. “They hadn’t changed a thing,” a military official will later recall. [New York Times, 10/24/2004; Savage, 2007, pp. 137-138]

Entity Tags: Thomas J. Romig, Lawrence J. Morris, Scott Black, Bush administration (43)

Timeline Tags: Torture of US Captives, Civil Liberties

At a private lunch meeting, Vice President Cheney presents President Bush with a four-page memo, written in strict secrecy by lawyer John Yoo of the Justice Department’s Office of Legal Counsel (see November 6-10, 2001), and a draft executive order that establishes military commissions for the trial of suspected terrorists (see November 10, 2001). The legal brief mandates that foreign terrorism suspects held in US custody have no access to any courts whatsoever, civil, criminal, military, domestic, or foreign. They can be detained indefinitely without charges. If they are to be tried, they can be tried in closed “military commissions.” [White House, 11/13/2001; Savage, 2007, pp. 138; Washington Post, 6/24/2007]
Military Commissions Suitable to 'Unitary Executive' Agenda - According to author Craig Unger, military commissions are a key element of Cheney’s drive towards a “unitary executive,” the accretion of governmental powers to the presidency at the expense of the legislative and judicial branches. Federal trials for terror suspects would put them under all the legal procedures provided under the US judicial system, an unacceptable alternative. Military courts-martial would give them the rights granted by the Geneva Conventions. Military commissions, however, are essentially tribunals operating outside of both civilian and military law. Defendants have few rights. Secret evidence can be admitted without being disclosed to the defendants. Hearsay and coerced testimony are admissible. Prisoners can be held indefinitely. [Unger, 2007, pp. 221-222]
No Bureaucratic Footprints - After Bush peruses the memo and the draft order, Cheney takes them back with him to his office. After leaving Bush, Cheney takes extraordinary steps to ensure that no evidence of his involvement remains. The order passes from Cheney to his chief counsel David Addington, and then to associate White House counsel Bradford Berenson. At Berenson, the provenance of the order breaks, as no one tells him of its origin. Berenson rushes the order to deputy staff secretary Stuart Bowen with instructions to prepare it for signature immediately, without advance distribution to Bush’s top advisers. Bowen objects, saying that he had handled thousands of presidential documents without ever sidestepping the strict procedures governing coordination and review. Bowen relents only after being subjected to what he will later recall as “rapid, urgent persuasion” that Bush is standing by to sign and that the order is too sensitive to delay. Berenson will later say he understood that “someone had briefed” Bush “and gone over it” already. “I don’t know who that was.” When it is returned to Bush’s office later in the day, Bush signs it immediately (see November 13, 2001). Virtually no one else has seen the text of the memo. The Cheney/Yoo proposal has become a military order from the commander in chief.
Dodging Proper Channels - The government has had an interagency working group, headed by Pierre Prosper, the ambassador at large for war crimes, working on the same question (see Shortly Before September 23, 2001). But Cheney and Addington have refused to have any contact with Prosper’s group; one of Cheney’s team later says, “The interagency [group] was just constipated.” Cheney leapfrogged over Prosper’s group with their own proposal, performing an adroit bureaucratic move that puts their proposal in place without any oversight whatsoever, and cutting Prosper’s group entirely out of the process. When the news of the order is broadcast on CNN, Secretary of State Colin Powell demands, “What the hell just happened?” An angry Condoleezza Rice, the president’s national security adviser, sends an aide to find out. Virtually no one, even witnesses to the presidential signing, know that Cheney promulgated the order. In 2007, Washington Post reporters Barton Gellman and Jo Becker will call the episode “a defining moment in Cheney’s tenure” as vice president. Cheney has little Constitutional power, but his deft behind-the-scenes manuevering and skilled bureaucratic gamesmanship enable him to pull off coups like this one, often leaving even the highest White House officials none the wiser. “[H]e has found a ready patron in George W. Bush for edge-of-the-envelope views on executive supremacy that previous presidents did not assert,” the reporters write. [White House, 11/13/2001; Unger, 2007, pp. 221-222; Washington Post, 6/24/2007]
Quiet Contravening of US Law - Six years later, Unger will observe that few inside or outside Washington realize that Cheney has, within a matter of days, contravened and discarded two centuries of American law. He has given the president, in the words of former Justice Department lawyer Bruce Fein, “the functions of judge, jury, and prosecutor in the trial of war crimes [and] the authority to detain American citizens as enemy combatants indefinitely… a frightening power indistinguishable from King Louis XIV’s execrated lettres de cachet that occasioned the storming of the Bastille.” [Unger, 2007, pp. 223-224]

Entity Tags: Stuart W. Bowen, Office of Legal Counsel (DOJ), Richard (“Dick”) Cheney, US Department of Justice, John C. Yoo, David S. Addington, George W. Bush, Barton Gellman, Bradford Berenson, Jo Becker, Bruce Fein, Condoleezza Rice, Craig Unger, Colin Powell, Pierre-Richard Prosper

Timeline Tags: Civil Liberties

President Bush issues a three-page executive order authorizing the creation of military commissions to try non-citizens alleged to be involved in international terrorism (see November 10, 2001). The president will decide which defendants will be tried by military commissions. Defense Secretary Rumsfeld will appoint each panel and set its rules and procedures, including the level of proof needed for a conviction. A two-thirds vote is needed to convict a defendant and impose a sentence, including life imprisonment or death. Only the president or the secretary of defense has the authority to overturn a decision. There is no provision for an appeal to US civil courts, foreign courts, or international tribunals. Nor does the order specify how many judges are to preside on a tribunal or what qualifications they must have. [US Department of Defense, 11/13/2001; Washington Post, 11/14/2001; New York Times, 10/24/2004]
Questionable Rule of Evidence Adopted - The order also adopts a rule of evidence stemming from the 1942 Supreme Court case of United States v. Quirin that says evidence shall be admitted “as would… have probative value to a reasonable person.” This rule, according to Judge Evan J. Wallach, “was repeatedly used [in World War II and in the post-war tribunals] to admit evidence of a quality or obtained in a manner which would make it inadmissible under the rules of evidence in both courts of the United States or courts-martial conducted by the armed forces of the United States.” [Wallach, 9/29/2004] Evidence derived from torture, for example, could theoretically be admitted. It should be noted that the order is unprecedented among presidential directives in that it takes away some individuals’ most basic rights, while claiming to have the power of law, with the US Congress not having been so much as consulted.
Specifics Left to Rumsfeld - Bush’s executive order contains few specifics about how the commissions will actually function. Bush will delegate that task to Rumsfeld, although, as with the order itself, White House lawyers will actually make the decision to put Rumsfeld in charge, and Bush will merely sign off on the decision (see March 21, 2002). [Savage, 2007, pp. 138]
Dispute over Trial Procedures - During the next few years, lawyers will battle over the exact proceedings of the trials before military commissions, with many of the military lawyers arguing for more rights for the defendants and with Defense Department chief counsel William J. Haynes, and Justice Department and White House lawyers (including White House counsel Alberto Gonzales, vice presidential counsel David Addington, and Gonzales’ deputy Timothy Flanigan) taking a more restrictive line. [New York Times, 10/24/2004]
Out of the Loop - Both National Security Adviser Condoleezza Rice and Secretary of State Colin Powell were left outside of the circle during the drafting of this directive (see November 6, 2001 and November 9, 2001). Rice is reportedly angry about not being informed. [New York Times, 10/24/2004]
Serious 'Process Failure' - National Security Council legal adviser John Bellinger will later call the authorization a “process failure” with serious long-term consequences (see February 2009).

Entity Tags: George W. Bush, John Bellinger, Donald Rumsfeld, Colin Powell, Condoleezza Rice, David S. Addington, Alberto R. Gonzales, William J. Haynes, Timothy E. Flanigan

Timeline Tags: Torture of US Captives, Civil Liberties

In a speech to the US Chamber of Commerce, Vice President Cheney tells his audience that terror suspects do not deserve to be treated as prisoners of war. Cheney is laying the groundwork for the general acceptance of President Bush’s order that terror suspects are to be denied access to the US judicial system (see November 13, 2001). Asked about Bush’s proposed military tribunals for dealing with charges against suspected terrorists, Cheney says that according to Bush’s order, he and he alone will decide whether a suspect is tried in a military tribunal. Cheney continues: “Now some people say, ‘Well, gee, that’s a dramatic departure from traditional jurisprudence in the United States.’ It is, but there’s precedents for it.… The basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans, men, women, and children, is not a lawful combatant. They don’t deserve to be treated as a prisoner of war. They don’t deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process. This—they will have a fair trial, but it’ll be under the procedures of a military tribunal and rules and regulations to be established in connection with that. We think it’s the appropriate way to go. We think it’s—guarantees that we’ll have the kind of treatment of these individuals that we believe they deserve.” [White House, 11/14/2001] Many in the administration are disturbed at Cheney’s remarks, as Bush has not yet publicly made this decision (see November 13, 2001). [Washington Post, 6/24/2007]

Entity Tags: George W. Bush, Richard (“Dick”) Cheney, Bush administration (43)

Timeline Tags: Torture of US Captives

John Yoo and Robert Delahunty of the Justice Department’s Office of Legal Counsel (OLC) write a classified memo to John Bellinger, the senior legal counsel to the National Security Council. Yoo and Delahunty claim that President Bush has the unilateral authority to “suspend certain articles” of the Anti-Ballistic Missile Treaty between the US and Russia (see May 26, 1972). Six months later, President Bush will withdraw the US from the treaty (see December 13, 2001). [US Department of Justice, 11/15/2001 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file] The memo will not be released until two months after the Bush administration leaves the White House (see March 2, 2009).

Entity Tags: National Security Council, John Bellinger, John C. Yoo, US Department of Justice, Robert J. Delahunty, Office of Legal Counsel (DOJ)

Timeline Tags: US International Relations

The UN Special Rapporteur on the Independence of Judges and Lawyers, Param Cumaraswamy, sends an urgent appeal to Washington regarding President Bush’s November 13 military order (see November 13, 2001). [BBC Radio 4, 7/13/2003]

Entity Tags: Param Cumaraswamy, Colin Powell, George W. Bush

Timeline Tags: Torture of US Captives

Scorching criticism of President Bush’s Executive Order (see November 13, 2001) comes from the Center for National Security Studies, which says it “violates separation of powers as the creation of military commissions has not been authorized by the Congress and is outside the president’s constitutional powers.” The order is also an “unconstitutional attempt to suspend the writ of habeas corpus.” [Center for National Security Studies, 11/19/2001] Law professor Kathleen Clark similarly states: “These military tribunals are troubling in many respects, particularly in their denial of basic due process protection for defendants. But even apart from this question of civil liberties, this presidential order is unconstitutional because the president lacks the authority under the constitution and statutory law to create this kind of court.” [Center for Democracy and Technology, 11/19/2001]

Entity Tags: Kathleen Clark, Center for National Security Studies

Timeline Tags: Torture of US Captives, Civil Liberties

Justice Department lawyer John Yoo, an official with the Office of Legal Counsel (OLC), issues a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but its existence will be revealed in a June 2007 deposition filed in the course of an American Civil Liberties Union (ACLU) lawsuit. The memo is known to cover the War Crimes Act, the Hague Convention, the Geneva Conventions, the federal criminal code, and detainee treatment. [American Civil Liberties Union [PDF], 1/28/2009 pdf file] It is co-authored by OLC special counsel Robert Delahunty. [ProPublica, 4/16/2009]

Entity Tags: Robert J. Delahunty, American Civil Liberties Union, Office of Legal Counsel (DOJ), John C. Yoo, US Department of Justice

Timeline Tags: Civil Liberties

The Spanish intelligence agency CESID (later renamed CNI) frustrates the arrest of a senior member of al-Qaeda in Europe, Amer el-Azizi, by Spanish police. Most members of the cell of which el-Azizi was a member were arrested shortly before, but el-Azizi had avoided the round-up by fleeing abroad (see October 2001). After returning to Spain, he again falls under police surveillance, but, according to Spanish police union head Jose Manuel Sanchez Fornet, his arrest is prevented by “interference” from CESID. Fornet will later say that a police recording made at this time shows two CESID agents going to el-Azizi’s house. This alerts el-Azizi that he is under surveillance and he flees his home. [El Mundo (Madrid), 4/29/2004] El-Azizi then remains in Spain for some weeks, selling his car to an associate. When his apartment is searched, police find more than a dozen bags with radical Islamic books and videos. They also find videos of bin Laden on his computer and pamphlets from groups like Hamas. [Wall Street Journal, 3/19/2004; Wall Street Journal, 4/7/2004; Los Angeles Times, 4/29/2004] El-Azizi was arrested and released twice before (see October 10, 2000). He helped plan a meeting for Mohamed Atta just before 9/11 (see Before July 8, 2001 and July 8-19, 2001), and will go on to be involved in the Madrid train bombings (see Before March 11, 2004 and 7:37-7:42 a.m., March 11, 2004).

Entity Tags: Centro Nacional de Inteligencia, Amer el-Azizi, Jose Manuel Sanchez Fornet

Timeline Tags: Complete 911 Timeline

Salim Hamdan is captured in Afghanistan. [Guantanamo Military Commissions, 11/20/2007 pdf file] Hamdan is an Arab who has lived in Afghanistan for some time and has some knowledge about al-Qaeda and its operations there. He will later become well known after he is transferred to Guantanamo and engages in a series of legal battles to gain his freedom (see November 8, 2004 and June 30, 2006). [USA Today, 7/24/2008; Reuters, 7/24/2008] At some point, he is handed over to the FBI. However, agents for the bureau do not read him his Miranda rights. “Our policy at the time was not to read Miranda rights,” FBI special agent Robert Fuller will say in testimony at a US military commission hearing for Hamdan. Reuters will later write, “Similar warnings must be given to suspects in US military custody, and suspects overseas who may face US charges commonly receive warnings.” FBI special agent Stewart Kelley will say, “If they are a suspect, and they are detained, a Miranda is usually given.” [Reuters, 7/24/2008]

Entity Tags: Federal Bureau of Investigation, Salim Ahmed Hamdan, Stewart Kelley, Robert Fuller

Timeline Tags: Torture of US Captives

Salim Hamdan, a detainee with some knowledge about al-Qaeda who was captured in late November, takes FBI agents on two tours of facilities associated with al-Qaeda in Afghanistan. Hamdan and the agents twice drive around Kandahar in the months after his capture and he points out compounds owned by Osama bin Laden, including Tarnak Farms, and guest houses where al-Qaeda members could safely stay, which the agents take pictures of. Robert Fuller, one of the agents who accompanies Hamdan, will later say: “The first compound, when we arrived to it, it was destroyed. No roof was left.” The second compound is intact, and “in great shape,” according to Fuller. Hamdan also tells the FBI of his time at a training camp, but says he only stayed for a month and then returned to a guest house to be with his family. In addition, he identifies several high-ranking al-Qaeda officials and describes visits by bin Laden and other al-Qaeda figures to the camp. They gave speeches and “offered words of encouragement,” according to FBI agent Craig Donnachie. [USA Today, 7/24/2008; Reuters, 7/24/2008] Despite this co-operation, Hamdan will be transferred to Guantanamo, held there for years, and prosecuted in a military commission (see June 30, 2006).

Entity Tags: Robert Fuller, Craig Donnachie, Salim Ahmed Hamdan, Federal Bureau of Investigation

Timeline Tags: Torture of US Captives

Yaser Esam Hamdi in Afghanistan shortly after being captured there.Yaser Esam Hamdi in Afghanistan shortly after being captured there. [Source: Virginian Pilot]Yaser Esam Hamdi, who holds dual Saudi and US citizenship, is captured in Afghanistan by the Northern Alliance and handed over to US forces. According to the US government, at the time of his arrest, Hamdi carries a Kalashnikov assault rifle and is traveling with a Taliban military unit. The following month he will be transferred to Guantanamo. In April 2002, it will be discovered he is a US citizen. He will be officially be declared an “enemy combatant” and transferred to a Navy brig in Norfolk, Virginia (see April 2002). [CNN, 10/14/2004]

Entity Tags: Yaser Esam Hamdi

Timeline Tags: Torture of US Captives, Complete 911 Timeline, War in Afghanistan

Qatari citizen Ali Saleh Kahlah al-Marri, a computer science graduate student at Illinois’s Bradley University, is arrested as a material witness to the 9/11 attacks. [Peoria Journal Star, 12/19/2001; CNN, 12/13/2005] Al-Marri was interviewed twice by the FBI, once on October 2 and again on December 11. Both times, according to the FBI, he lied in response to their questions. Al-Marri claimed to have entered the US on September 10, 2001, his first visit to the country since 1991, when he earned his undergraduate degree at Bradley. [CBS News, 6/23/2003; CNN, 12/13/2005]
Connections to 9/11 Terrorists Alleged - The FBI says al-Marri has been in the US since 2000. Al-Marri denied calling the United Arab Emirates phone number of Mustafa Ahmed al-Hawsawi, an unindicted co-conspirator in the trial of suspected “20th hijacker” Zacarias Moussaoui. Prosecutors say al-Hawsawi provided financial backing to Moussaoui and the 9/11 hijackers, and allegedly helped some of the hijackers travel from Pakistan to the United Arab Emirates and then to the US in preparation for the attacks. [CBS News, 6/23/2003; Progressive, 3/2007] (Al-Hawsawi will be captured in Pakistan in March 2003, and detained in an undisclosed location somewhere outside the US. See Early-Late June, 2001) [CNN, 12/13/2005] The government also alleges that the phone number was a contact number for Ramzi Bin al-Shibh, another unindicted co-conspirator in the Moussaoui indictment. The government says that two calling cards were used to call the number, which was also listed as a contact number on a package it believes was sent by 9/11 hijacker Mohamed Atta to the UAE on September 8, 2001. The cards were allegedly used to place phone calls from al-Marri’s residence, from his cellphone, and from the Marriott hotel room he was staying in on September 11. However, none of the three calls to the UAE number were made from phones registered to Al-Marri, though, nor is there proof he placed them. Some of the calls made from the card to the UAE were placed to relatives of al-Marri. [Bradley Scout, 3/29/2002] In March 2002, Justice Department official Alice Fisher will say that an unnamed al-Qaeda detainee “in a position to know… positively identified al-Marri as an al-Qaeda sleeper operative who was tasked to help new al-Qaeda operatives get settled in the United States for follow-on attacks after 9/11.” That unidentified tipster brought al-Marri to the attention of federal law enforcement shortly after the attacks. FBI officials have said that al-Marri is not considered to have played any part in the attacks, but is still considered a danger to the US. [Knight Ridder, 6/23/2003] In 2003, the FBI adds that it found “an almanac with bookmarks in pages that provided information about major US dams, reservoirs, waterways and railroads.” [Knight Ridder, 6/24/2003] He is believed to be a relative of Saudi national and future Guantanamo detainee Mohamed al-Khatani, who is said to be an intended 9/11 hijacker (see July 2002). [New York Times, 6/21/2004]
Bank and Credit Card Fraud - According to the FBI, al-Marri obtained a bank account under a false name, rented a motel room under a false name to create a mailing address, and formed a fake company, AAA Carpet, using the motel’s address. The FBI also says al-Marri used a fake Social Security number to open three other bank accounts. Al-Marri was carrying well over 15 fake credit card numbers on him when he was interviewed yesterday, says the US Attorney’s office in Illinois. [CBS News, 6/23/2003; Progressive, 3/2007] There are also allegedly over 1,000 more in his personal computer files. He has missed so many classes, the FBI says, that he is on the verge of flunking out. The FBI says al-Marri’s computer also contains Arabic lectures by Osama bin Laden, photographs of the 9/11 attacks, and a cartoon of planes crashing into the World Trade Center. The computer has a folder labeled “jihad arena,” and another labeled “chem,” which, government officials say, contains industrial chemical distributor websites used by al-Marri to obtain information about hydrogen cyanide, a poisonous gas used in chemical weapons. [CNN, 12/13/2005] Al-Marri consents to the search and the seizure of his computer and other possessions. [Bradley Scout, 3/29/2002] Al-Marri will be charged with financial crimes in 2002 (see February 8, 2002), charges that later will be dropped (see June 23, 2003). [CBS News, 6/23/2003]

Entity Tags: US Department of Justice, Mustafa Ahmed al-Hawsawi, Zacarias Moussaoui, Mohamed al-Khatani, Alice Fisher, Federal Bureau of Investigation, Mohamed Atta, Al-Qaeda, Bradley University, Osama bin Laden, Ali Saleh Kahlah al-Marri

Timeline Tags: Torture of US Captives, Complete 911 Timeline

US nuclear missiles such as this one will no longer be restricted under the ABM treaty.US nuclear missiles such as this one will no longer be restricted under the ABM treaty. [Source: Associated Press / CNN]President Bush announces that the US is unilaterally withdrawing from the 1972 Anti-Ballistic Missile (ABM) Treaty (see May 26, 1972). The treaty, negotiated with the former Soviet Union in 1972, sets strict limitations on missile and missile defense developments by both Russia and the US. After the six-month withdrawal period is concluded in mid-2002, the US will begin developing an anti-missile defense system, an outgrowth and extension of the old “Star Wars” system (see March 23, 1983). Bush tells reporters: “Today I am giving formal notice to Russia that the United States of America is withdrawing from this almost 30-year-old treaty.… I have concluded the ABM treaty hinders our government’s ability to develop ways to protect our people from future terrorist or rogue state missile attacks.” Bush explains: “The 1972 ABM treaty was signed by the United States and the Soviet Union at a much different time, in a vastly different world. One of the signatories, the Soviet Union, no longer exists and neither does the hostility that once led both our countries to keep thousands of nuclear weapons on hair-trigger alert, pointed at each other.… Today, as the events of September 11 made all too clear, the greatest threats to both our countries come not from each other, or from other big powers in the world, but from terrorists who strike without warning or rogue states who seek weapons of mass destruction.” Defense Secretary Donald Rumsfeld calls the treaty “outdated.” [White House, 12/13/2001; CNN, 12/14/2001]
Follows Failure to Persuade Russia to Drop Treaty - The decision follows months of talks in which Bush officials attempted without success to persuade Russia to set the treaty aside and negotiate a new one more favorable to US interests. Bush says that he and Russian President Vladimir Putin “have also agreed that my decision to withdraw from the treaty will not in any way undermine our new relationship or Russian security.” Putin calls Bush’s decision a “mistake,” and says the two nations should move quickly to create a “new framework of our strategic relationship.” Putin says on Russian television that the US decision “presents no threat to the security of the Russian Federation.” He also says that the US and Russia should decrease their present stockpiles of nuclear weapons. He wants what he calls “radical, non-reversible and verifiable reductions in offensive weapons”; in turn, the Bush administration is against any sort of legally binding agreements. Putin says, “Today, when the world has been faced with new threats, one cannot allow a legal vacuum in the sphere of strategic stability.” [CNN, 12/14/2001; CNN, 12/14/2001]
'Abdication of Responsibility' - Senate Democrats (see December 13-14, 2001) and non-proliferation experts (see December 13, 2001) strongly question the decision to withdraw. Singapore’s New Straits Times writes: “History will one day judge the US decision to withdraw from the Anti-Ballistic Missile Treaty in the same way it views the US failure in 1919 to join the League of Nations—as an abdication of responsibility, a betrayal of humankind’s best hopes, an act of folly. By announcing the decision now, in the midst of a war on terrorism that commands worldwide support, the Bush administration has also displayed a cynicism that will adversely affect the mood of cooperation that has characterized international relations since September 11.” [Carter, 2004, pp. 272-273] Sweden’s foreign ministry warns of possibly “serious consequences for the future of international disarmament.” [BBC, 12/13/2001]
Seizure of Presidential Power - Regardless of the wisdom of withdrawing from the treaty, Bush’s decision has another effect that is subjected to far less public scrutiny: by unilaterally withdrawing the US from the treaty on his own authority, Bush, in the words of author Charlie Savage, “seized for the presidency the power to pull the United States out of any treaty without obtaining the consent of Congress.” Savage, writing in 2007, will note that the Constitution does not provide a clear method of withdrawing the US from an international treaty. However, he will write, judging from the fact that the US Senate must vote to ratify a treaty before it becomes binding, it can be inferred that the Founders intended for the legislature, not the executive branch, to have the power to pull out of a treaty. In Volume 70 of the Federalist Papers, Alexander Hamilton wrote that treaties are far too important to entrust to the decision of one person who will be in office for as few as four years. Hamilton wrote, “The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a president of the United States.” [Savage, 2007, pp. 140]

Entity Tags: Vladimir Putin, Charlie Savage, George W. Bush, Singapore Straits Times, Bush administration (43)

Timeline Tags: US International Relations

Ibn al-Shaykh al-Libi, captured by Pakistani forces six weeks earlier (see November 11, 2001), is handed over to US authorities at the Bagram air base in Afghanistan. Two FBI agents from New York are tasked with interrogating him. One of the agents, Russell Fincher, spends more than 80 hours with al-Libi discussing religion and prayer in an effort to establish a close bond. It works, and al-Libi opens up to Fincher, giving him information about Zacarias Moussaoui and the so-called shoe bomber, Richard Reid (see December 22, 2001). [Isikoff and Corn, 2006, pp. 120] But despite this progress, he will soon be transferred to Egypt and tortured there into making some false confessions (see January 2002 and After).

Entity Tags: Zacarias Moussaoui, Richard C. Reid, Ibn al-Shaykh al-Libi, Russell Fincher

Timeline Tags: Torture of US Captives, Complete 911 Timeline, War in Afghanistan

CIA officer Richard Blee, who is now chief of the CIA’s station in Kabul, Afghanistan, objects to the FBI interviewing high-ranking al-Qaeda detainee Ibn al-Shaykh al-Libi. The FBI obtained access to al-Libi after he was handed over to the US, and is obtaining some information from him about Zacarias Moussaoui and Richard Reid, who will be prosecuted in the US (see December 19, 2001). However, according to FBI agent Jack Cloonan, “for some reason, the CIA chief of station in Kabul is taking issue with our approach.” [American Prospect, 6/19/2005] CIA Director George Tenet learns of Blee’s complaints and insists that al-Libi be turned over to the CIA (see January-April 2002), which promptly puts him on a plane to Egypt (see January 2002 and After), where he is tortured and makes false statements (see February 2002). Blee was in charge of the CIA’s bin Laden unit on 9/11 and has only recently become chief of its Kabul station. [Berntsen and Pezzullo, 2005, pp. 59-60, 297] The FBI, which has long experience interviewing suspects, will continue in its attempts to use rapport-building techniques (see Late March through Early June, 2002), whereas the CIA will employ harsher techniques, despite not having much experience with interviews (see Mid-April 2002).

Entity Tags: Federal Bureau of Investigation, Central Intelligence Agency, Richard Blee, Ibn al-Shaykh al-Libi

Timeline Tags: Torture of US Captives, Complete 911 Timeline

The Justice Department’s John Yoo sends a classified memo to the Defense Department’s general counsel, William Haynes. The contents will not be made public, but the American Civil Liberties Union (ACLU) will eventually learn that the memo concerns possible criminal charges to be brought against an American citizen who is suspected of being a member of either al-Qaeda or the Taliban. The ACLU believes the memo discusses the laws mandating that US military personnel must adhere to the Uniform Code of Military Justice, and how those laws may not apply to military personnel during a so-called “undeclared war.” [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: US Department of Justice, American Civil Liberties Union, Office of Legal Counsel (DOJ), John C. Yoo

Timeline Tags: Civil Liberties

A Jordanian suspected of involvement in the 1993 WTC bombing (see February 26, 1993) and 1995 Bojinka plot (see January 6, 1995) is arrested but apparently only charged with minor offenses. Hadi Yousef Alghoul had been arrested in the Philippines in March 1995 and accused of involvement in the Bojinka plot there. (see April 1, 1995-Early 1996). He apparently is the cousin of bomber Ramzi Yousef. [Ressa, 2003, pp. 25] On December 26, 2001, he is arrested in the Philippines again. He is found with nearly 300 sticks of dynamite and other bomb making materials. A police colonel says Alghoul had been under surveillance for years. [CNN, 12/28/2001; Contemporary Southeast Asia, 12/1/2002] Police say he is one of the United States’ 25 most wanted terrorists with a $25 million reward for his arrest in connection with the 1993 WTC bombing. His “fingerprints perfectly matched those of a terrorist tagged in the World Trade Center bombing.” He is also wanted for plotting the assassination of Americans. [Manila Bulletin, 1/6/2002] Yet despite all these accusations, he is not extradited to the US as other Bojinka suspects were, and he is merely charged in 2002 with the illegal possession of explosive devices. There have been no further news accounts about him. [Manila Sun-Star, 11/16/2002]

Entity Tags: Hadi Yousef Alghoul, Ramzi Yousef

Timeline Tags: Complete 911 Timeline

Defense Secretary Donald Rumsfeld makes a public announcement that he is planning to move Taliban and al-Qaeda suspects to the Guantanamo Bay Naval Station. The number of people in US custody and destined for Guantanamo is allegedly small. According to the Chairman of the Joint Chiefs of Staff, Air Force Gen. Richard B. Myers, they number eight individuals aboard the USS Peleliu and 37 at a US base near Kandahar airport. [Dawn (Karachi), 12/28/2001] Troops, earlier stationed at nearby Camp Rhino, where John Walker Lindh was detained, are being transferred to Guantanamo. [GlobalSecurity (.org), 1/15/2005] The reason for choosing Guantanamo for detaining suspected al-Qaeda and Taliban members is unclear. Rumsfeld says: “I would characterize Guantanamo Bay, Cuba, as the least worst place we could have selected. Its disadvantages seem to be modest relative to the alternatives.” [Dawn (Karachi), 12/28/2001] Rumsfeld does not inform reporters of the legal opinion about to be released by the Office of Legal Counsel (OLC) that he feels makes Guantanamo uniquely qualified to serve as a prisoner for terror suspects (see December 28, 2001). According to the OLC opinion, Guantanamo is outside the US itself, so US courts have no jurisdiction to oversee conditions or activities there. It is also not on soil controlled by any other court system. And, unlike other facilities considered for housing terror suspects (see January 11, 2002), Guantanamo is not on the soil of a friendly government with which the US has lease and status of force agreements, but rather on the soil of a hostile Communist government whose predecessor had signed a perpetual lease with the US. The base, therefore, is, according to the OLC, under the sole jurisdiction of the US military and its commander in chief, and not subject to any judicial or legislative review. In 2007, author and reporter Charlie Savage will write, “Guantanamo was chosen because it was the best place to set up a law-free zone.” [Savage, 2007, pp. 145]

Entity Tags: Al-Qaeda, US Department of Defense, Charlie Savage, Richard B. Myers, Taliban, Donald Rumsfeld

Timeline Tags: Torture of US Captives, War in Afghanistan

Deputy Assistant Attorney Generals Patrick Philbin and John Yoo send a memorandum to Pentagon General Counsel William J. Haynes offering the legal opinion that US courts do not have jurisdiction to review the detention of foreign prisoners at Guantanamo Bay. Therefore detentions of persons there cannot be challenged in a US court of law. The memo is endorsed by the Department of Defense and White House legal counsel Alberto Gonzales. [Newsweek, 5/24/2004] The memo addresses “the question whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the US naval base at Guantanamo Bay, Cuba.” The conclusion of Philbin and Yoo is that it cannot, based primarily on their interpretation of a decision by the US Supreme Court in the 1950 Eisentrager case, in which the Supreme Court determined that no habeas petition should be honored if the prisoners concerned are seized, tried, and held in territory that is outside of the sovereignty of the US and outside the territorial jurisdiction of any court of the US. Both conditions apply to Guantanamo according to Philbin and Yoo. Approvingly, they quote the US Attorney General in 1929, who stated that Guantanamo is “a mere governmental outpost beyond our borders.” A number of cases, quoted by the authors, “demonstrate that the United States has consistently taken the position that [Guantanamo Bay] remains foreign territory, not subject to US sovereignty.” Guantanamo is indeed land leased from the state of Cuba, and therefore in terms of legal possession and formal sovereignty still part of Cuba. But Philbin and Yoo acknowledge a problem with the other condition: namely that the territory is outside the US’s jurisdiction. They claim with certainty that Guantanamo “is also outside the ‘territorial jurisdiction of any court of the United States.’” However, the Supreme Court should not have made a distinction between jurisdiction and sovereignty here; the wording of the decision is really, Philbin and Yoo believe, an inaccurate reflection of its intent: “an arguable imprecision in the Supreme Court’s language.” For that reason, they call for caution. “A non-frivolous argument might be constructed, however, that [Guantanamo Bay], while not be part of sovereign territory of the United States, is within the territorial jurisdiction of a federal court.” [US Department of Justice, 12/28/2001 pdf file]

Entity Tags: John C. Yoo, Alberto R. Gonzales, Patrick F. Philbin, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

Sometime in early 2002, President Bush signs a secret executive order authorizing the National Security Agency (NSA) to wiretap phone conversations and read e-mails to and from US citizens. The order extends an operation set into motion at least as early as October 2001 to begin wiretapping US citizens’ phones in a response to the 9/11 attacks. When the program is revealed by the US media in late 2005 (see December 15, 2005), Bush and his officials will say the program is completely legal, though it ignores the requirements of the Foreign Intelligence Surveillance Act (FISA) that requires the government to obtain court-issued warrants to mount surveillance against US citizens. They will insist that only those suspected of having ties to al-Qaeda are monitored, and only when those individuals make or receive international communications. [New York Times, 12/15/2005; Washington Post, 12/22/2005; Newsweek, 12/22/2008] Bush’s order authorizes the NSA to monitor international telephone conversations and international e-mails of hundreds, and perhaps thousands, of US citizens without court warrants, in an effort to track what officials call “dirty numbers” linked to al-Qaeda. When the program is finally revealed by the New York Times over three years later (see December 15, 2005), officials will say that the NSA still seeks warrants to monitor domestic communications. But there is little evidence of this (see, for example, Spring 2001). The presidential order is a radical shift in US surveillance and intelligence-gathering policies, and a major realignment for the NSA, which is mandated to only conduct surveillance abroad. Some officials believe that the NSA’s domestic eavesdropping crosses constitutional limits on legal searches. “This is really a sea change,” a former senior official who specializes in national security law will say in December 2005. “It’s almost a mainstay of this country that the NSA only does foreign searches.” [New York Times, 12/15/2005] Some sources indicate that NSA domestic surveillance activities, such as data-mining, the use of information concerning US persons intercepted in foreign call monitoring, and possibly direct surveillance of US persons, took place prior to 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: George W. Bush, Al-Qaeda, Foreign Intelligence Surveillance Court, National Security Agency

Timeline Tags: Civil Liberties

John Yoo, a neoconservative lawyer in the Justice Department’s Office of Legal Counsel serving as deputy assistant attorney general, writes a classified memo to senior Pentagon counsel William J. Haynes, titled “Application of Treaties and Law to al-Qaeda and Taliban Detainees.” [New York Times, 5/21/2004]
Yoo: Geneva Conventions Do Not Apply in War on Terror - Yoo’s memo, written in conjunction with fellow Justice Department lawyer Robert Delahunty, echoes arguments by another Justice Department lawyer, Patrick Philbin, two months earlier (see November 6, 2001). Yoo states that, in his view, the laws of war, including the Geneva Conventions, do not apply to captured Taliban or al-Qaeda prisoners, nor do they apply to the military commissions set up to try such prisoners.
Geneva Superseded by Presidential Authority - Yoo’s memo goes even farther, arguing that no international laws apply to the US whatsoever, because they do not have any status under US federal law. “As a result,” Yoo and Delahunty write, “any customary international law of armed conflict in no way binds, as a legal matter, the president or the US armed forces concerning the detention or trial of members of al-Qaeda and the Taliban.” In essence, Yoo and Delahunty argue that President Bush and the US military have carte blanche to conduct the global war on terrorism in any manner they see fit, without the restrictions of law or treaty. However, the memo says that while the US need not follow the rules of war, it can and should prosecute al-Qaeda and Taliban detainees for violating those same laws—a legal double standard that provokes sharp criticism when the memo comes to light in May 2004 (see May 21, 2004). Yoo and Delahunty write that while this double standard may seem “at first glance, counter-intuitive,” such expansive legal powers are a product of the president’s constitutional authority “to prosecute the war effectively.” The memo continues, “Restricting the president’s plenary power over military operations (including the treatment of prisoners)” would be “constitutionally dubious.” [Mother Jones, 1/9/2002; US Department of Justice, 6/9/2002 pdf file; Newsweek, 5/21/2004; New York Times, 5/21/2004]
Overriding International Legal Concerns - Yoo warns in the memo that international law experts may not accept his reasoning, as there is no legal precedent giving any country the right to unilaterally ignore its commitment to Geneva or any other such treaty, but Yoo writes that Bush, by invoking “the president’s commander in chief and chief executive powers to prosecute the war effectively,” can simply override any objections. “Importing customary international law notions concerning armed conflict would represent a direct infringement on the president’s discretion as commander in chief and chief executive to determine how best to conduct the nation’s military affairs.” [Savage, 2007, pp. 146] The essence of Yoo’s argument, a Bush official later says, is that the law “applies to them, but it doesn’t apply to us.” [Newsweek, 5/21/2004] Navy general counsel Alberto Mora later says of the memo that it “espoused an extreme and virtually unlimited theory of the extent of the president’s commander-in-chief authority.” [Savage, 2007, pp. 181]
White House Approval - White House counsel and future Attorney General Alberto Gonzales agrees (see January 25, 2002), saying, “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” [Mother Jones, 1/9/2002]
Spark for Prisoner Abuses - Many observers believe that Yoo’s memo is the spark for the torture and prisoner abuses later reported from Iraq’s Abu Ghraib prison (see Evening November 7, 2003), Guantanamo Bay (see December 28, 2001), and other clandestine prisoner detention centers (see March 2, 2007). The rationale is that since Afghanistan is what Yoo considers a “failed state,” with no recognizable sovereignity, its militias do not have any status under any international treaties. [Newsweek, 5/21/2004; Newsweek, 5/24/2004]
Resistance from Inside, Outside Government - Within days, the State Department will vehemently protest the memo, but to no practical effect (see January 25, 2002).

Entity Tags: Patrick F. Philbin, Robert J. Delahunty, US Department of Justice, Office of Legal Counsel (DOJ), Taliban, John C. Yoo, Colin Powell, Geneva Conventions, Al-Qaeda, George W. Bush, Alberto Mora, US Department of State, Alberto R. Gonzales, William J. Haynes

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

William Howard Taft IV.William Howard Taft IV. [Source: PBS]William Howard Taft IV, the State Department’s chief legal adviser, responds to John Yoo’s January 9,2002, memo (see January 9, 2002) saying that Yoo’s analysis is “seriously flawed.” Taft writes: “In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the [Geneva] Conventions. I have no doubt we can do so here, where a relative handful of persons is involved.” [Newsweek, 5/24/2004] Applying the Geneva Conventions, according to Taft, would demonstrate that the United States “bases its conduct on its international legal obligations and the rule of law, not just on its policy preferences.” Taft ends with a scorching criticism. “Your position is, at this point, erroneous in its substance and untenable in practice. Your conclusions are as wrong as they are incomplete. Let’s talk.” [Le Monde (Paris), 10/25/2004]

Entity Tags: William Howard Taft IV, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

The second batch of prisoners from Afghanistan arrives at Guantanamo. It includes Asif Iqbal, Shafiq Rasul (see January 12 or 13, 2002), and about 40 others. Rasul is told: “You are now the property of the US Marine Corps.” According to Rasul, the heat is “boiling,” but “for about six or seven hours” the prisoners are forced to take a squatting position outside in the sun, still shackled, and still wearing mittens, ear muffs, goggles, and masks. They are not given water, although occasionally someone will come by and wet their lips. When Rasul asks for water, a soldier starts kicking him in the back. Dogs are barking “very close” to him. After a few hours, Iqbal goes into a fit, is removed on a stretcher and has an IV put into his arm. He is then stripped, given a brief shower and rectally examined. Apparently all prisoners are given this treatment, and Rasul believes there can have been no purpose to the cavity search other than to humiliate them, since the same had been done before leaving Kandahar. Rasul is questioned by a woman while naked. [Rasul, Iqbal, and Ahmed, 7/26/2004 pdf file]

Entity Tags: Rhuhel Ahmed, Shafiq Rasul, Asif Iqbal

Timeline Tags: Torture of US Captives

Prisoners being flown to Guantanamo.Prisoners being flown to Guantanamo. [Source: Public domain]Beginning in January 2002, when the US-controlled Guantanamo prison opens in Cuba, until at least 2005, over 700 suspects are secretly flown by the CIA to Guantanamo over the territories of European countries. Most prisoners come from Afghanistan or other places in the Middle East and change planes at the Incirlik US military airbase in Turkey. Then they fly over Greek, Italian, and Portuguese airspace. About 170 other prisoners fly over or land in Spain. The first flight apparently takes place on January 14, and carries three British citizens known as the “Tipton Three” as well as others (see January 13, 2002). In 2007, the Council of Europe, Europe’s leading watchdog on human rights, will claim that European countries had breached the international Convention against Torture (see October 21, 1994) by giving the US secret permission to use its airspace. Moazzam Begg, a British prisoner at Guantanamo until 2005, will later recall his flight to Guantanamo. “Inside the plane there was a chain around our waist, and it connected to cuffs around my wrists, which were tied in the back, and to my ankles. We were seated but it was so painful not being able to speak, to hear, to breathe properly, to look, to turn left or right, to move your hands, stretch your legs, or anything.” [London Times, 11/25/2007] All the member countries of NATO signed a secret agreement in late 2001 allowing blanket overflight clearances for any flight relating to terrorism (see October 4, 2001).

Entity Tags: Central Intelligence Agency, Moazzam Begg

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Siding with the Pentagon and Justice Department against the State Department, President Bush declares the Geneva Conventions invalid with regard to conflicts with al-Qaeda and the Taliban. Secretary of State Colin Powell urges Bush to reconsider, saying that while Geneva does not apply to al-Qaeda terrorists, making such a decision for the Taliban—the putative government of Afghanistan—is a different matter. Such a decision could put US troops at risk. Both Defense Secretary Donald Rumsfeld and Joint Chiefs chairman General Richard B. Myers support Powell’s position. Yet another voice carries more weight with Bush: John Yoo, a deputy in the Justice Department’s Office of Legal Counsel (OLC—see October 23, 2001). Yoo says that Afghanistan is a “failed state” without a functional government, and Taliban fighters are not members of an army as such, but members of a “militant, terrorist-like group” (see January 9, 2002). White House counsel Alberto Gonzales agrees with Yoo in a January 25 memo, calling Yoo’s opinion “definitive.” The Gonzales memo concludes that the “new kind of war” Bush wants to fight should not be equated with Geneva’s “quaint” privileges granted to prisoners of war, or the “strict limitations” they impose on interrogations (see January 25, 2002). Military lawyers dispute the idea that Geneva limits interrogations to recitals of name, rank, and serial number, but their objections are ignored. For an OLC lawyer to override the judgment of senior Cabinet officials is unprecedented. OLC lawyers usually render opinions on questions that have already been deliberated by the legal staffs of the agencies involved. But, perhaps because OLC lawyers like Yoo give Bush the legal opinions he wants, Bush grants that agency the first and last say in matters such as these. “OLC was definitely running the show legally, and John Yoo in particular,” a former Pentagon lawyer will recall. “Even though he was quite young, he exercised disproportionate authority because of his personality and his strong opinions.” Yoo is also very close to senior officials in the office of the vice president and in the Pentagon’s legal office. [Ledger (Lakeland FL), 10/24/2004]
Undermining, Cutting out Top Advisers - Cheney deliberately cuts out the president’s national security counsel, John Bellinger, because, as the Washington Post will later report, Cheney’s top adviser, David Addington, holds Bellinger in “open contempt” and does not trust him to adequately push for expanded presidential authority (see January 18-25, 2002). Cheney and his office will also move to exclude Secretary of State Colin Powell from the decision-making process, and, when the media learns of the decision, will manage to shift some of the blame onto Powell (see January 25, 2002). [Washington Post, 6/24/2007]
Final Decision - Bush will make his formal final declaration three weeks later (see February 7, 2002).

Entity Tags: US Department of Defense, US Department of Justice, Richard B. Myers, US Department of State, Taliban, Office of Legal Counsel (DOJ), John C. Yoo, Alberto R. Gonzales, Richard (“Dick”) Cheney, Colin Powell, Al-Qaeda, Condoleezza Rice, Donald Rumsfeld, John Bellinger, George W. Bush, Geneva Conventions, David S. Addington

Timeline Tags: Torture of US Captives, Civil Liberties

Defense Secretary Rumsfeld sends a memo to Joint Chiefs of Staff Chairman General Richard Myers informing him that Bush has declared the Geneva Conventions invalid with regard to conflicts with al-Qaeda and the Taliban (see January 18-25, 2002). In this “Memorandum for Chairman of the Joint Chiefs of Staff,” Rumsfeld states: “The United States has determined that al-Qaeda and Taliban individuals under the control of the Department of Defense are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.” Nevertheless, “[t]he Combatant Commanders shall, in detaining al-Qaeda and Taliban individuals under the control of the Department of Defense, treat them humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949.” [US Department of Defense, 1/19/2002 pdf file] The same day, the memorandum is disseminated as an order by the Joint Chiefs of Staff. [Chairman of the Joint Chiefs of Staff, 1/19/2002 pdf file]

Entity Tags: Richard B. Myers, Donald Rumsfeld

Timeline Tags: Torture of US Captives

Attorney General John Ashcroft publicly defends the president’s decision (see January 18-25, 2002) to deny detainees the protections of Geneva Conventions. He calls the detainees “terrorists” who “are uniquely dangerous.” [CNN, 1/22/2002]

Entity Tags: John Ashcroft

Timeline Tags: Torture of US Captives

White House lawyers Alberto Gonzales and David Addington visit Guantanamo Bay. On the flight back, Gonzales agrees with Addington that all Guantanamo detainees should be designated eligible for trial by military commission under the president’s November 13 Military Order (see January 20, 2002). [New York Times, 10/24/2004]

Entity Tags: David S. Addington, Alberto R. Gonzales

Timeline Tags: Torture of US Captives

Jay Bybee, the head of the Justice Department’s Office of Legal Counsel (OLC), and OLC lawyer John Yoo send a memo to White House counsel Alberto Gonzales and Defense Department chief counsel William Haynes. Known as the “Treaties and Laws Memorandum,” the document addresses the treatment of detainees captured in Afghanistan, and their eventual incarceration at Guantanamo and possible trial by military commissions. The memo asserts that the Geneva Conventions do not apply to al-Qaeda detainees, and the president has the authority to deny Taliban members POW status. The document goes on to assert that the president is not bound by international laws such as the Geneva Conventions because they are neither treaties nor federal laws. [US Department of Justice, 1/22/2002 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: Office of Legal Counsel (DOJ), John C. Yoo, Jay S. Bybee, US Department of Justice

Timeline Tags: Torture of US Captives, Civil Liberties, War in Afghanistan

John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo is about the Geneva Conventions and is applicable to prisoners of war. Yoo’s boss, OLC head Jay Bybee, sends another secret memo about the Geneva Conventions to Deputy Attorney General Larry Thompson. [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: Jay S. Bybee, American Civil Liberties Union, Geneva Conventions, US Department of Justice, John C. Yoo, Office of Legal Counsel (DOJ), Larry D. Thompson

Timeline Tags: Civil Liberties

White House lawyer Alberto Gonzales completes a draft memorandum to the president advising him not to reconsider his decision (see January 18-25, 2002) declaring Taliban and al-Qaeda fighters ineligible for prisoner of war status as Colin Powell has apparently recommended. [US Department of Justice, 1/25/2004 pdf file; Newsweek, 5/24/2004] The memo recommends that President Bush accept a recent Office of Legal Counsel (OLC) memo saying that the president has the authority to set aside the Geneva Conventions as the basis of his policy (see January 9, 2002). [Savage, 2007, pp. 146]
Geneva No Longer Applies, Says Gonzales - Gonzales writes to Bush that Powell “has asked that you conclude that GPW [Third Geneva Convention] does apply to both al-Qaeda and the Taliban. I understand, however, that he would agree that al-Qaeda and the Taliban fighters could be determined not to be prisoners of war (POWs) but only on a case-by-case basis following individual hearings before a military board.” Powell believes that US troops will be put at risk if the US renounces the Geneva Conventions in relation to the Taliban. Rumsfeld and his chairman of the Joint Chiefs of Staff, Gen. Richard B. Myers, allegedly agree with Powell’s argument. [New York Times, 10/24/2004] But Gonzales says that he agrees with the Justice Department’s Office of Legal Counsel, which has determined that the president had the authority to make this declaration on the premise that “the war against terrorism is a new kind of war” and “not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW [Geneva Convention on the treatment of prisoners of war].” Gonzales thus states, “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” [Newsweek, 5/24/2004] Gonzales also says that by declaring the war in Afghanistan exempt from the Geneva Conventions, the president would “[s]ubstantially [reduce] the threat of domestic criminal prosecution under the War Crimes Act [of 1996]” (see August 21, 1996). The president and other officials in the administration would then be protected from any future “prosecutors and independent counsels who may in the future decide to pursue unwarranted charges.” [New York Times, 5/21/2004; Newsweek, 5/24/2004]
Memo Actually Written by Cheney's Lawyer - Though the memo is released under Gonzales’s signature, many inside the White House do not believe the memo was written by him; it has an unorthodox format and a subtly mocking tone that does not go with Gonzales’s usual style. A White House lawyer with direct knowledge of the memo later says it was written by Cheney’s chief lawyer, David Addington. Deputy White House counsel Timothy Flanigan passed it to Gonzales, who signed it as “my judgment” and sent it to Bush. Addington’s memo quotes Bush’s own words: “the war against terrorism is a new kind of war.” [Washington Post, 6/24/2007]
Powell 'Hits the Roof' over Memo - When Powell reads the memo (see January 26, 2002), he reportedly “hit[s] the roof” and immediately arranges for a meeting with the president (see January 25, 2002). [Newsweek, 5/24/2004]

Entity Tags: George W. Bush, Office of Legal Counsel (DOJ), Geneva Conventions, Alberto R. Gonzales, Colin Powell, David S. Addington, Al-Qaeda, Taliban, Richard B. Myers

Timeline Tags: Torture of US Captives, Civil Liberties

US Secretary of State Colin Powell responds to Alberto Gonzales’ January 25 draft memo to the president (see January 25, 2002). He argues that it does not provide the president with a balanced view on the issue of whether or not to apply the Geneva Conventions to the conflict in Afghanistan. Powell lists several problems that could potentially result from exempting the conflict from the Conventions as Gonzales recommends. For example, he notes that it would “reverse over a century of US policy and practice in supporting the Geneva conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.” The decision will furthermore have “a high cost in terms of negative international reaction.” It will “undermine public support among critical allies, making military cooperation more difficult to sustain,” and other states would “likely have legal problems with extradition or other forms of cooperation in law enforcement, including in bringing terrorists to justice.” But perhaps most ominously, Powell charges that the proposed decision “may provoke some individual foreign prosecutors to investigate and prosecute our officials and troops” and “make us more vulnerable to domestic and legal challenge.” The end of the memo consists of several rebuttals to points that Gonzales made in his memo. [US Department of State, 1/26/2004 pdf file; New York Times, 5/21/2004; Newsweek, 5/24/2004]

Entity Tags: Geneva Conventions, Alberto R. Gonzales, Colin Powell

Timeline Tags: Torture of US Captives, Civil Liberties

The Defense Intelligence Agency issues a four-page Defense Intelligence Terrorism Summary (DITSUM No. 044-02) stating that it is probable that prisoner Ibn al-Shaykh al-Libi intentionally misled debriefers when he claimed Iraq was supporting al-Qaeda in working with illicit weapons. During interviews with al-Libi, the DIA noted the Libyan al-Qaeda operative could not name any Iraqis involved, any chemical or biological material used, or where the alleged training took place. “It is possible he does not know any further details; it is more likely this individual is intentionally misleading the debriefers,” the report says. “Ibn al-Shaykh has been undergoing debriefs for several weeks and may be describing scenarios to the debriefers that he knows will retain their interest.” The DIA report is presumably circulated widely within the government, and is available to the CIA, the White House, the Pentagon, the National Security Council, and other agencies.
No Evidence of Connections between Iraq, al-Qaeda - On the general subject of Iraq’s alleged ties to al-Qaeda, the DIA report notes: “Saddam [Hussein]‘s regime is intensely secular and is wary of Islamic revolutionary movements. Moreover, Baghdad is unlikely to provide assistance to a group it cannot control.” The report also questions the reliability of information provided by high-value al-Qaeda detainees being held in secret CIA facilities or who have been “rendered” to foreign countries where they are believed to undergo harsh interrogation tactics.
Using al-Libi's Information to Bolster Case for War - Information supplied by al-Libi will be the basis for a claim included in an October 2002 speech (see October 7, 2002) by President Bush, in which he states, “[W]e’ve learned that Iraq has trained al-Qaeda members in bomb making and poisons and gases.” Intelligence provided by al-Libi will also be included in Colin Powell’s February speech (see February 5, 2003) to the UN. In that speech, Powell will cite “the story of a senior terrorist operative telling how Iraq provided training in these weapons to al-Qaeda.” [New York Times, 11/6/2005; Washington Post, 11/6/2005; Los Angeles Times, 11/7/2005; Newsweek, 11/10/2005]
Report Released as Proof of Administration's Reliance on Poor Intelligence Sources - Declassified portions of the DIA report will be issued on November 6, 2005 by two senators, Carl Levin (D-MI) and John D. Rockefeller (D-WV). Rockefeller will tell CNN that al-Libi is “an entirely unreliable individual upon whom the White House was placing a substantial intelligence trust.” The situation was, Rockefeller will say, “a classic example of a lack of accountability to the American people.” [Los Angeles Times, 11/7/2005]

Entity Tags: Ibn al-Shaykh al-Libi, US Department of Defense, National Security Council, George W. Bush, Saddam Hussein, Colin Powell, Al-Qaeda, Defense Intelligence Agency, Bush administration (43), John D. Rockefeller, Carl Levin, Central Intelligence Agency

Timeline Tags: Complete 911 Timeline, Events Leading to Iraq Invasion

In a reply to White House Counsel Alberto Gonzales (see January 25, 2002), the State Department’s Legal Director, William Howard Taft IV, tries again (see January 11, 2002) to put his view forward supporting obeying the Geneva Conventions. He writes: “The president should know that a decision that the Conventions do apply is consistent with the plain language of the Conventions and the unvaried practice of the United States in introducing its forces into conflict over fifty years.” [US Attorney General, 2/1/2002]

Entity Tags: William Howard Taft IV, Alberto R. Gonzales

Timeline Tags: Torture of US Captives, Civil Liberties

The CIA Directorate of Operations issues a second intelligence report from SISMI, Italy’s military intelligence service, on Iraq’s alleged agreement with Niger to purchase 500 tons of uranium annually. This report provides details that were not included in Italy’s October 15 report (see October 15, 2001), including a “verbatim text” of the accord. (It is not clear what the source is for the “verbatim text”. [ERiposte, 3/6/2006] ) According to the report, the purported agreement was signed by Iraqi and Niger officials during meetings held July 5-6, 2000. [US Congress, 7/7/2004; Knight Ridder, 11/4/2005] The SISMI report also draws attention to a 1999 trip to Niger made by Wissam al-Zahawie (see February 1999), Iraq’s former ambassador to the Vatican, and alleges that its mission was to discuss the future purchase of uranium. This is the first report from SISMI that names al-Zahawie and refers directly to his 1999 trip. (SISMI’s previous report had only stated that negotiations had begun by at least 1999.) This report, as well as the previous report, is based on the forged Niger documents. [New Yorker, 10/27/2003; US Congress, 7/7/2004; ERiposte, 11/3/2005] Analysts at the CIA and the DIA are more impressed with the detail and substance of this second report, but analysts at the Department of State’s Bureau of Intelligence and Research (INR) remain skeptical of the report’s allegations noting that it was unlikely that Niger would sell uranium to Iraq because the Nigeriens would have considered the risk of being caught too great. An INR analyst asks the CIA if the source of the report would submit to a polygraph. A CIA analyst who also asks about the source is told by the DO that the source is “very credible.” [US Congress, 7/7/2004]

Entity Tags: Central Intelligence Agency, Bureau of Intelligence and Research, Defense Intelligence Agency

Timeline Tags: Events Leading to Iraq Invasion, Niger Uranium and Plame Outing

The White House declares that the United States will apply the Geneva Conventions to the conflict in Afghanistan, but will not grant prisoner-of-war status to captured Taliban and al-Qaeda fighters. Though Afghanistan was party to the 1949 treaty, Taliban fighters are not protected by the Conventions, the directive states, because the Taliban is not recognized by the US as Afghanistan’s legitimate government. Likewise, al-Qaeda fighters are not eligible to be protected under the treaty’s provisions because they do not represent a state that is party to the Conventions either.
Administration Will Treat Detainees Humanely 'Consistent' with Geneva - In the memo, President Bush writes that even though al-Qaeda detainees do not qualify as prisoners of war under Geneva, “as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The presidential directive is apparently based on Alberto Gonzales’s January 25 memo (see January 25, 2002) and a memo from Vice President Cheney’s chief of staff, David Addington (see January 25, 2002).
Bush Chooses Not to Suspend Geneva between US and Afghanistan - The directive also concludes that Bush, as commander in chief of the United States, has the authority to suspend the Geneva Conventions regarding the conflict in Afghanistan, should he feel necessary: Bush writes, “I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.” Though not scheduled for declassification until 2012, the directive will be released by the White House in June 2004 to demonstrate that the president never authorized torture against detainees from the wars in Afghanistan and Iraq. [George W. Bush, 2/7/2002 pdf file; CNN, 2/7/2002; Newsweek, 5/24/2004; Truthout (.org), 1/19/2005; Dubose and Bernstein, 2006, pp. 191]
Overriding State Department Objections - Bush apparently ignores or overrides objections from the State Department, including Secretary of State Colin Powell (see January 25, 2002) and the department’s chief legal counsel, William Howard Taft IV (see January 25, 2002). Both Powell and Taft strenuously objected to the new policy. [Savage, 2007, pp. 147]
Ignoring Promises of Humane Treatment - The reality will be somewhat different. Gonzales laid out the arguments for and against complying with Geneva in an earlier memo (see January 18-25, 2002), and argued that if the administration dispensed with Geneva, no one could later be charged with war crimes. Yet, according to Colin Powell’s chief of staff, Lawrence Wilkerson, sometime after the Bush memo is issued, Vice President Cheney and Defense Secretary Rumsfeld decide to ignore the portions promising humane treatment for prisoners. “In going back and looking at the deliberations,” Wilkerson later recalls, “it was clear to me that what the president had decided was one thing and what was implemented was quite another thing.” [Dubose and Bernstein, 2006, pp. 190-191]

Entity Tags: Geneva Conventions, George W. Bush, Colin Powell, Lawrence Wilkerson, William Howard Taft IV, Richard (“Dick”) Cheney, Bush administration (43)

Timeline Tags: Torture of US Captives, Civil Liberties

The Salt Pit, a secret CIA prison near Kabul, Afghanistan.The Salt Pit, a secret CIA prison near Kabul, Afghanistan. [Source: Space Imaging Middle East]President George Bush signs a secret order authorizing the CIA to set up a network of secret detention and interrogation centers outside the United States where high value prisoners can be interrogated “with unprecedented harshness.” [Newsweek, 5/24/2004] This takes place shortly after February 7, 2002, when Bush declared that al-Qaeda and Taliban prisoners were not subject to the Geneva Convention (see February 7, 2002). The first secret CIA prison will begin operating in Thailand in March 2002 (see March 2002).

Entity Tags: George W. Bush, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Former CIA Director James Woolsey telephones Deputy Assistant Defense Secretary Linton Wells to arrange a meeting between Defense Intelligence Agency (DIA) analysts and Mohammad Harith, an Iraqi defector being supplied by the Iraqi exile group, the Iraqi National Congress. [Knight Ridder, 7/16/2004 Sources: Classified Pentagon report] After the phone call, Wells issues an “executive referral,” requesting that the Iraqi National Congress (INC) introduce Harith to the Pentagon’s Defense Intelligence Agency (DIA). [Knight Ridder, 7/16/2004] Later in the day, two DIA officers meet with Ahmed Chalabi to arrange an interview with Harith. In an email to Knight Ridder Newspapers, Wells will later recall, “I discussed the issue of an individual with information on Iraq[i] weapons of mass destruction with intelligence community members. They said they would follow up. I never met with any member of the INC.” [Knight Ridder, 7/16/2004]

Entity Tags: Mohammad Harith, Linton Wells, Iraqi National Congress, James Woolsey

Timeline Tags: Events Leading to Iraq Invasion, Neoconservative Influence

Valerie Plame Wilson.Valerie Plame Wilson. [Source: PEP]In response to questions from Vice President Dick Cheney (see (February 13, 2002)), CIA operative Valerie Plame Wilson and officials from the CIA’s DO counterproliferation division (CPD) meet to discuss what the agency should do to determine the validity of recent Italian intelligence reports (see October 15, 2001 and February 5, 2002) alleging that Iraq had sought to purchase uranium from Niger. During the meeting, Plame Wilson suggests sending her husband, Joseph Wilson, an Africa expert and former US diplomat, to Niger to investigate the reports. [US Congress, 7/7/2004] The meeting is chronicled in an internal agency memo obtained by the Wall Street Journal in October 2003. [Wall Street Journal, 10/17/2003] Intelligence officials subsequently will not deny that Plame Wilson was involved in the decision to send Wilson to Niger, but will say she was not “responsible” for the decision. [Wall Street Journal, 10/17/2003]
CIA Alerted to Cheney's Concerns - In her 2007 book Fair Game, Plame Wilson recalls that shortly after Cheney’s initial questions, a young officer rushes into her CPD office and tells her “someone from the vice president’s office” just called the officer on her secure telephone line. The caller, apparently a member of Cheney’s staff, wants information about an intelligence report that the Italian government has passed to the US, alleging that in 1999 Iraq attempted to buy yellowcake uranium from Niger. Cheney is, according to the staffer, “interested and want[s] more information.” Plame Wilson will write, “If the report was true at all, I knew that it would be damning evidence indeed that Iraq was seeking to restart its nuclear program.”
'Nonplussed' at White House Contact - “I was momentarily nonplussed that someone from the vice president’s office had reached down into the junior working levels of the agency to discuss or find an answer to an intelligence report,” she will write. “In my experience, I had never known that to happen. There were strict protocols and procedures for funneling intelligence to policy makers or fielding their questions. Whole offices within the agency were set up and devoted to doing just that. A call to a random desk officer might get the policy maker a quick answer in the heat of the moment, but it was also a recipe for trouble. Handing a senior policy maker ‘raw’ intelligence that had not been properly vetted, placed into context, or appropriately caveated by intelligence professionals usually led to misinterpretation—at a minimum.” She adds that at the time, she is “not aware of the unprecedented number of visits the vice president had made to our headquarters to meet with analysts and look for any available evidence to support the Iraq WMD claims the administration was beginning to make.… I was still blissfully ignorant of any special visits or pressure from the administration vis-a-vis Iraq. I just wanted to get some answers.”
Decision to Ask Wilson Originates with Records Officer, Not Plame Wilson - Plame Wilson tables her concerns about the unusual contact, and begins pondering how best to find answers to Cheney’s questions. The “first and most obvious choice,” she will write, “would be to contact our [REDACTED] office in Niger and ask them to investigate these allegations using local sources available on the ground.” But the budget cuts of the mid-1990s had forced the closing of numerous CIA offices in Africa, including its station in Niamey, Niger. Plame Wilson will recall, “A midlevel reports officer who had joined the discussion in the hallway enthusiastically suggested, ‘What about talking to Joe about it?’” The reports officer is referring to Plame Wilson’s husband, former ambassador Joseph Wilson. “He knew of Joe’s history and role in the first Gulf War (see September 5, 1988 and After and September 20, 1990), his extensive experience in Africa, and also that in 1999 the CIA had sent Joe on a sensitive mission to Africa on uranium issues. Of course, none of us imagined the firestorm this sincere suggestion would ignite. At the moment, the only thought that flashed through my mind was that if Joe were out of the country for an extended period of time I would be left to wrestle two squirmy toddlers into bed each evening.… So I was far from keen on the idea, but we needed to respond to the vice president’s office with something other than a lame and obviously unacceptable, ‘We don’t know, sorry.’” Plame Wilson and the reports officer make the suggestion to send Wilson to Niger; her supervisor decides to meet with Wilson “and the appropriate agency and State [Department] officials.” At her supervisor’s behest, Plame Wilson sends an e-mail to her division chief (whom she will only identify as “Scott”), informing him of the decision and noting that “my husband has good relations with both the PM [prime minister] and the former minister of mines (not to mention lots of French contacts), both of whom could possibly shed some light on this sort of activity.” Plame Wilson will write that her words are intended to “gently remind [her division chief] of Joe’s credentials to support why my boss thought he should come into headquarters in the first place.” She will note: “Months later, those words would be ripped out of that e-mail and cited as proof that I had recommended Joe for the trip (see February 13, 2002). But at the time, I simply hit the ‘send’ button and moved on to the other tasks that were demanding my attention.” That night, Plame Wilson broaches the subject of going to Niger with her husband; he agrees to meet with her superiors at the CPD. [US Congress, 7/7/2004; Wilson, 2007, pp. 108-110]
Cheney Later Denies Knowledge of Iraq-Niger Claims - During the investigation of the Plame Wilson leak (see September 26, 2003), Cheney will repeatedly deny any knowledge that the CIA was following up on his request for more information. This is a lie. Among other refutations, the Senate Intelligence Committee will report in 2004 that he was told on February 14 that CIA officers were working with clandestine sources to find out the truth behind the Niger allegations (see July 9, 2004). [Wilson, 2007, pp. 368]

Entity Tags: Joseph C. Wilson, Central Intelligence Agency, Counterproliferation Division, Valerie Plame Wilson, Richard (“Dick”) Cheney

Timeline Tags: Events Leading to Iraq Invasion, Niger Uranium and Plame Outing

Joseph Wilson and Valerie Plame Wilson.Joseph Wilson and Valerie Plame Wilson. [Source: Haraz N. Ghanbari / Associated Press]Officials in the CIA’s Directorate of Operations (DO) Counterproliferation Division (CPD) decide to send former ambassador Joseph Wilson to Niger to investigate allegations that Iraq sought to procure uranium from that country. Wilson’s wife, Valerie Plame Wilson, a senior CPD officer (see April 2001 and After), relays the request to him explaining that “there’s this crazy report” asserting that Iraq made a deal with Niger on the sale of a large quantity of uranium. [US Congress, 7/7/2004] Shortly afterwards, she sends an overseas cable requesting concurrence with the agency’s decision to send her husband to Niger (see February 13, 2002). She writes, “[B]oth State and [the Department of Defense] have requested additional clarification and indeed, the vice president’s office just asked for background information” (see (February 13, 2002)). [US Congress, 7/7/2004]

Entity Tags: Counterproliferation Division, Central Intelligence Agency, Joseph C. Wilson, Valerie Plame Wilson

Timeline Tags: Events Leading to Iraq Invasion, Niger Uranium and Plame Outing

Joseph Wilson.Joseph Wilson. [Source: public domain]The CIA sends Joseph C. Wilson, a retired US diplomat, to Niger to investigate claims that Iraq had sought to purchase uranium from that country (see February 13, 2002). The CIA pays Wilson’s expenses for the trip, but does not pay him in any other respect. The identity of the party who requests the mission is later disputed. While Wilson will claim the trip was requested directly by Dick Cheney’s office, other sources will indicate that the CIA had decided (see February 19, 2002) that a delegation to Niger was needed in order to investigate questions raised by one of Dick Cheney’s aides (see (February 13, 2002)). [New York Times, 5/6/2003; Washington Post, 6/12/2003 pdf file; Independent, 6/29/2003; New York Times, 7/6/2003; US Congress, 7/7/2004]
Reason behind Request - Former CIA analyst Melvin Goodman will later note that “Wilson was asked to go to Niger for one specific purpose. It was the CIA’s idea to get Cheney off their backs. Cheney would not get off their backs about the yellowcake documents. They couldn’t get Cheney to stop pressing the issue. He insisted that was the proof of reconstitution of [Iraq’s nuclear] program.” [Dubose and Bernstein, 2006, pp. 214]
Normal Skepticism - Wilson goes into the situation with a healthy dose of skepticism. “My skepticism was the same as it would have been with any unverified intelligence report, because there is a lot of stuff that comes over the transom every day,” he will recall in 2006. Wilson knows nothing of the influence of the Pentagon neoconservatives (see July 8, 1996, January 26, 1998, July 1998, September 2000, Late December 2000 and Early January 2001, Shortly after January 20, 2001, and Shortly After September 11, 2001) or the growing rift in the intelligence community over the reports: “I was aware that the neocons had a growing role in government and that they were interested in Iraq,” he will recall. “But the administration had not articulated a policy at this stage.” He is not given a copy of the Niger documents before leaving for Africa, nor is he told of their history. “To the best of my knowledge, the documents were not in the possession of the [CIA] at the time I was briefed,” he will recall. “The discussion was whether or not this report could be accurate. During this discussion, everyone who knew something shared stuff about how the uranium business worked, and I laid out what I knew about the government in Niger, what information they could provide.” With this rather sketchy preparation, Wilson leaves for Niger. [Unger, 2007, pp. 240; Wilson, 2007, pp. 113] Wilson’s wife, senior CIA case officer Valerie Plame Wilson, will later write, “He figured that if the vice president had asked a serious and legitimate question, it deserved a serious answer and he would try to help find it.” [Wilson, 2007, pp. 111]
No Trouble Finding Information - Wilson, who knows the Nigerien government and many of its officials, has little trouble finding the information he needs in the following week. In 2006, he will recall: “Niger has a simplistic government structure. Both the minister of mines and the prime minister had gone through the mines. The French were managing partners of the international consortium [which handles Niger’s uranium]. The French mining company actually had its hands on the project. Nobody else in the consortium had operators on the ground.” Wilson also personally knows Wissam al-Zahawie, Iraq’s ambassador to the Vatican who supposedly negotiated the uranium deal with Niger (see February 1999). Wilson will later observe: “Wissam al-Zahawie was a world-class opera singer, and he went to the Vatican as his last post so he could be near the great European opera houses in Rome. He was not in the Ba’athist inner circle. He was not in Saddam [Hussein]‘s tribe. The idea that he would be entrusted with the super-secret mission to buy 500 tons of uranium from Niger is out of the question.” [Unger, 2007, pp. 240-241] Wilson meets with, among other officials, Niger’s former minister of mines, Mai Manga. As later reported by the Senate Intelligence Committee (see July 9, 2004), Manga tells Wilson “there were no sales outside of International Atomic Energy Agency (IAEA) channels since the mid-1980s,” and he “knew of no contracts signed between Niger and any rogue states for the sale of uranium.” Manga says a “French mining consortium controls Nigerien uranium mining and keeps the uranium very tightly controlled from the time it is mined until the time it is loaded onto ships in Benin for transport overseas,” and, “it would be difficult, if not impossible, to arrange a special shipment of uranium to a pariah state given these controls.” [CounterPunch, 11/9/2005]
Meeting with US Ambassador - Wilson arrives in Niger on February 26, two days after Marine General Carlton W. Fulford Jr.‘s meeting (see February 24, 2002) with Nigerien officials. Wilson first meets with US Ambassador to Niger Barbro Owens-Kirkpatrick, a veteran Foreign Service official, whom Wilson will later describe as “crisp” and well-informed. Over tea in the US Embassy offices in Niamey, Niger’s capital, Owens-Kirkpatrick tells Wilson that she has already concluded that the allegations of uranium sales to Iraq are unfounded. “She had already debunked them in her reports to Washington,” Wilson will later recall. “She said, yeah, she knew a lot about this particular report. She thought she had debunked it—and, oh, by the way, a four-star Marine Corps general had been down there as well—Carlton Fulford. And he had left satisfied there was nothing to report.” [Wilson, 2004, pp. 20-22]
Details of Alleged Uranium Production - Niger extracts uranium from two mines, both located in remote locations in the Sahara Desert. It takes well over a day to drive from the mines to Niamey. The mines are owned by a consortium of foreign companies and the Nigerien government, and managed by a French mining company, COGEMA. Because of a recent upswing in the production of Canadian uranium, Niger’s uranium is mined at a net loss, and its only customers are consortium members. Wilson will later write, “[T]he Nigerien government has sold no uranium outside the consortium for two decades.” If Iraq had bought 500 tons of uranium, as the story is told, that would have represented a 40 percent production increase. “There is no doubt,” Wilson will later write, “that such a significant shift from historic production schedules would have been absolutely impossible to hide from the other partners, and most certainly from the managing partner, COGEMA. Everyone involved would have known about it.” Any Nigerien government decision to produce such an amount of uranium would have involved numerous government officials and many well-documented meetings. Because the transaction would have been to a foreign country, Niger’s Foreign Ministry would also have been involved in the decision. To sell Iraq uranium during that time would have been a violation of international law and of UN sanctions against Iraq, a weighty decision that would have ultimately been made by the president of Niger in conjuction with the foreign minister and the minister of mines. Such a decision would have been published in the Nigerien equivalent of the Federal Register and would have dramatic tax and revenue implications. The unexpected huge infusion of cash from the sale would have had a strong impact on the Nigerien economy, and would have been much anticipated and talked about throughout the Nigerien business community. [Wilson, 2004, pp. 22-25]
Off-the-Books Production Virtually Impossible - It is conceivable that such an enormous operation could have been conducted entirely “off the books,” Wilson will write, but virtually impossible to pull off. True, a military junta was in power at the time of the alleged sale, one that felt no responsibility or accountability to the Nigerien people. But even a secret transaction would have been impossible to conceal. Such a transaction would have involved thousands of barrels of clandestinely shipped uranium, extensive and complex adjustments to shipping schedules, and other ramifications. “It simply could not have happened without a great many people knowing about it, and secrets widely known do not remain hidden for long. And again, COGEMA, as the managing partner, would have had to know and be complicit.” Add to that Niger’s dependence on US foreign economic aid and its unwillingness to threaten the loss of that aid by secretly shipping uranium to a country that the US considers a dangerous rogue nation. All told, Wilson concludes, the possibility of such a clandestine operation is remote in the extreme. [Wilson, 2004; Wilson, 2004]
1999 Meeting with Iraqi Official - While speaking with a US Embassy official, Wilson learns about a 1999 meeting between the embassy official and an Iraqi representative in Algiers, perhaps in concert with a similar meeting between Iraqi officials and Niger’s prime minister (see June 1999). [Wilson, 2004, pp. 27-28]
Confirmation that Allegations are Unrealistic - After spending several days talking with current government officials, former government officials, and people associated with the country’s uranium business, Wilson concludes the rumors are completely false. He will later call the allegations “bogus and unrealistic.” [Washington Post, 6/12/2003 pdf file; Knight Ridder, 6/13/2003; Independent, 6/29/2003; New York Times, 7/6/2003; CBS News, 7/11/2003; Vanity Fair, 1/2004; Wilson, 2004, pp. 20-28, 424; Vanity Fair, 5/2004, pp. 282; Wilson, 2007, pp. 113]

Entity Tags: Barbro Owens-Kirkpatrick, Wissam al-Zahawie, Carlton W. Fulford, COGEMA, Mai Manga, Valerie Plame Wilson, Muhammad Saeed al-Sahhaf, Melvin A. Goodman, Central Intelligence Agency, Richard (“Dick”) Cheney, Joseph C. Wilson

Timeline Tags: Events Leading to Iraq Invasion, Niger Uranium and Plame Outing

An al-Qaeda operations leader gives American al-Qaeda member Jose Padilla (see September-October 2000) an assignment: target high-rise buildings in the US that use natural gas. Padilla and al-Qaeda leaders consider buildings in Florida, Washington, DC, and New York City as potential targets. Though al-Qaeda leaders consider Padilla an incompetent (see Mid-April 2002), they give him $15,000 to begin putting together a plan. [Associated Press, 6/2004] Instead, Padilla will be captured by FBI agents as he comes into Chicago (see May 8, 2002).

Entity Tags: Al-Qaeda, Federal Bureau of Investigation, Jose Padilla

Timeline Tags: Torture of US Captives, Complete 911 Timeline

A few days after the State Department determines that the reported secret uranium deal between Iraq and Niger is “unlikely” (see March 1, 2002), former ambassador Joseph Wilson returns from his fact-finding trip to Niger (see February 21, 2002-March 4, 2002). Wilson tells CIA officials that he found no evidence to show that any such deal ever took place. [Unger, 2007, pp. 241] Wilson’s wife, senior CIA case officer Valerie Plame Wilson, will later write that the debriefing actually begins shortly after Wilson’s arrival in the US, with “two clean-cut CIA officers, one of whom was the reports officer who had suggested sending Joe to Niger in the first place” (see February 13, 2002), arriving at the Wilson home, “clearly eager to debrief Joe so they could immediately write up an intelligence report on his trip.” Plame Wilson deliberately absents herself from the debriefing taking place in her living room, though she joins her husband and the two CIA officers for a late dinner of takeout Chinese food, where they discuss general subjects. [Wilson, 2004, pp. 29; Wilson, 2007, pp. 112] Based on Wilson’s information, the CIA’s Directorate of Operations (DO)‘s case officer writes a draft intelligence report and sends it to the DO reports officer, who adds additional relevant information from his notes. [US Congress, 7/7/2004] The report will be distributed by March 8, 2002 (see March 8, 2002). [Wilson, 2007, pp. 370]

Entity Tags: Valerie Plame Wilson, Joseph C. Wilson, Central Intelligence Agency

Timeline Tags: Events Leading to Iraq Invasion, Niger Uranium and Plame Outing

Deputy Assistant Attorney General Joan Larsen and Gregory Jacob, an attorney-adviser to the Office of Legal Counsel (OLC), send a classified memo to lawyers in the Justice Department’s civil division. The memo will remain secret, but the American Civil Liberties Union (ACLU) will learn that it regards the availability of habeas corpus protections to detainees captured in the US’s “war on terror.” [American Civil Liberties Union [PDF], 1/28/2009 pdf file] The memo asserts that detainees have no habeas corpus protections, and therefore cannot challenge their detentions in US courts, despite multiple Supreme Court rulings to the contrary. [ProPublica, 4/16/2009]

Entity Tags: US Supreme Court, Joan Larsen, Office of Legal Counsel (DOJ), American Civil Liberties Union, Gregory Jacob, US Department of Justice

Timeline Tags: Civil Liberties

Senior CIA case officer Valerie Plame Wilson (see April 2001 and After), whose husband, former ambassador Joseph Wilson, has recently returned from a trip to Africa to find out the facts behind the allegation that Iraq had attempted to buy uranium from Niger (see February 13, 2002), receives a copy of the final intelligence report written about her husband’s trip (see March 4-5, 2002). In her 2007 book Fair Game, Plame Wilson says she receives the report “as a simple courtesy [from] the reports officer” who had suggested Wilson journey to Niger and investigate the allegations. Plame Wilson will recall the report as being “a couple of pages long and fairly straightforward, in the typical bland style of such reports.” She reads the report, makes “no changes,” and gives it back to the reports officer. [Wilson, 2007, pp. 113]

Entity Tags: Central Intelligence Agency, Valerie Plame Wilson

Timeline Tags: Niger Uranium and Plame Outing

The Washington Post reveals that the US government has secretly transported “dozens of people” suspected of links to terrorists to foreign countries with poor human rights records “where they can be subjected to interrogation tactics—including torture and threats to families—that are illegal in the United States.” The program is known as “rendition” (see 1993) (see After September 11, 2001). [Washington Post, 3/11/2002]

Entity Tags: Washington Post, Bush administration (43)

Timeline Tags: Torture of US Captives

Jay Bybee, the chief of the Justice Department’s Office of Legal Counsel (OLC), issues a classified memo to William Howard Taft IV, the chief counsel of the State Department, titled “The President’s Power as Commander in Chief to Transfer Captive Terrorists to the Control and Custody of Foreign Nations.” The memo, actually written by Bybee’s deputy John Yoo, says Congress has no authority to block the president’s power to unilaterally transfer detainees in US custody to other countries. In essence, the memo grants President Bush the power to “rendition” terror suspects to countries without regard to the law or to Congressional legislation, as long as there is no explicit agreement between the US and the other nations to torture the detainees. [US Department of Justice, 3/12/2002 pdf file; Savage, 2007, pp. 148; American Civil Liberties Union [PDF], 1/28/2009 pdf file; New York Times, 3/2/2009] The memo directly contradicts the 1988 Convention Against Torture (see October 21, 1994), which specifically forbids the transfer of prisoners in the custody of a signatory country to a nation which practices torture. Once the treaty was ratified by Congress in 1994, it became binding law. But Yoo and Bybee argue that the president has the authority as commander in chief to ignore treaties and laws that supposedly interfere with his power to conduct wartime activities. [Savage, 2007, pp. 148-149] In 2009, when the memos are made public (see March 2, 2009), Jennifer Daskal of Human Rights Watch says she is shocked at the memo: “That is [the Office of Legal Counsel] telling people how to get away with sending someone to a nation to be tortured. The idea that the legal counsel’s office would be essentially telling the president how to violate the law is completely contrary to the purpose and the role of what a legal adviser is supposed to do.” [Washington Post, 3/3/2009]

Entity Tags: John C. Yoo, Jay S. Bybee, Office of Legal Counsel (DOJ), US Department of Justice

Timeline Tags: Civil Liberties

The CIA comes up with a list of 10 “Enhanced Interrogation Techniques” that it will allow to be used on captured high-ranking al-Qaeda detainees. In 2005, ABC News will reveal six of the techniques on the list and describe them as follows:
bullet The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.
bullet The Attention Slap: An open-handed slap aimed at causing pain and triggering fear.
bullet The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
bullet Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
bullet The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
bullet Waterboarding: The prisoner is bound to an inclined board, feet raised, and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt. [ABC News, 11/18/2005]
The New York Times will later reveal that there are actually four more techniques on the list, but will not detail what they are. [New York Times, 11/9/2005]
Waterboarding Most Controversial Technique - Waterboarding will be the most controversial technique used. In centuries past, it was considered by some to be the most extreme form of torture, more so than thumbscrews or use of the rack. [Harper's, 12/15/2007] “The person believes they are being killed, and as such, it really amounts to a mock execution, which is illegal under international law,” says John Sifton of Human Rights Watch. CIA officials who allowed themselves to be waterboarded lasted, on average, 14 seconds before caving in. In addition, such confessions are dubious at best. “This is the problem with using the waterboard. They get so desperate that they begin telling you what they think you want to hear,” says one of the CIA sources. [ABC News, 11/18/2005]
List Compiled with Help from Egypt, Saudi Arabia - The list is secretly drawn up by a team including senior CIA officials, and officials from the Justice Department and the National Security Council. The CIA got help in making the list from governments like Egypt and Saudi Arabia that are notorious for their widespread use of torture (see Late 2001-Mid-March 2002). [New York Times, 11/9/2005] Apparently, “only a handful” of CIA interrogators are trained and authorized to use these techniques. Later this month, al-Qaeda leader Abu Zubaida will be captured and the CIA will begin using all of these techniques on him (see March 28, 2002). However, the White House will not give the CIA clear legal authority to do so until months after the CIA starts using these techniques on Zubaida (see March 28-August 1, 2002).
Techniques 'Cruel, Inhuman, and Degrading' under Treaty - In 2004, CIA Inspector General John Helgerson will determine in a classified report that these techniques appear to constitute cruel, inhuman, and degrading treatment under the Convention Against Torture, an international treaty signed by the US (see October 21, 1994 and May 7, 2004). Former CIA officer Robert Baer calls the use of such techniques “bad interrogation,” and notes, “[Y]ou can get anyone to confess to anything if the torture’s bad enough.” [ABC News, 11/18/2005]

Entity Tags: John Sifton, John Helgerson, Abu Zubaida, ABC News, Central Intelligence Agency, Robert Baer

Timeline Tags: Torture of US Captives, Civil Liberties

A suspected Taliban member named Abdullah is taken into US custody, together with 34 other members of the Taliban army. According to Abdullah, the men have their heads hooded and their hands tied behind their backs with plastic zip ties. They are then taken to the US base in Kandahar where for several hours they are ordered to lie down on the stony ground. During this time, Abdullah is kicked in the ribs. The men are shaved of all their facial and body hair. Abdullah later complains that he was shaved by a woman. [Amnesty International, 8/19/2003] This means that the technique of “forced grooming,” authorized by Defense Secretary Donald Rumsfeld for use at Guantanamo between December 2, 2002 and January 15, 2003 (see December 2, 2002), is allegedly already being used in Afghanistan in the spring of 2002. This technique is considered extremely humiliating for Muslim males.

Entity Tags: Donald Rumsfeld

Timeline Tags: Torture of US Captives, War in Afghanistan

Secretary of Defense Donald Rumsfeld signs Military Commission Order No. 1 prescribing the procedures of the military commission trials (see November 10, 2001). The order says a two-third majority is required to determine a sentence and unanimity for applying the death penalty. It fails to provide for the possibility of appeals. It also says evidence submitted before a commission “shall” be declared admissible if the presiding officer or a majority of the commission members consider that it “would have probative value to a reasonable person.” [US Department of Defense, 3/21/2002 pdf file]
Fundamental Violations of Defendant Rights - Thus, if the presiding member or a majority considers a statement made under any form of coercion, including torture, to have some “probative value,” it “shall” be admitted. Professor Neal Katyal of Georgetown University later says this is a break with standard proceedings in civil courts and courts-martial and calls it “clearly at odds with American military justice.” [Los Angeles Times, 8/18/2004] Under the rules, the “Accused” is assigned a military officer to conduct his defense, but may select another officer. He may also retain a civilian attorney; however, he may only choose a lawyer who is vetted by the military. Unlike a military attorney, the civilian lawyer can be excluded from the trial if the presiding member of the commission decides to hold closed proceedings. This prompts Amnesty International to observe that the commissions “will restrict the right of defendants to choose their own counsel and to an effective defense.” [Amnesty International, 10/27/2004] Under the rules of the military commissions the military is allowed to monitor private conversations between defense lawyers and their clients. This violates, as Human Rights Watch remarks, “the fundamental notion of attorney-client confidentiality.” [Human Rights Watch, 1/9/2004]
Extraordinary Procedures for a 'Special Breed of Person' - In a discussion of the new rules, Deputy Secretary of Defense Paul Wolfowitz, in an appearance on the PBS NewsHour with Jim Lehrer, explains that the detainees being held in Guantanamo are “dangerous people, whether or not they go before a military commission.” He adds, “We’re dealing with a special breed of person here” and thusly new and far more draconian rules must be applied. [PBS, 3/21/2002]
Battle with JAG Lawyers - Rumsfeld worked with lawyers from the Pentagon’s Judge Advocate General (JAG) office to create the procedures for the commissions. The JAG lawyers viewed the commissions as well outside the established rule of law, both in due process as mandated by the Constitution and in the protections mandated by the Geneva Conventions. But Rumsfeld and his group of political appointees considered the JAGs too closed-minded, and insisted on procedures that horrified the military lawyers—low standards for convictions, denial of civilian attorneys, imposition of the death penalty without unanimous consent of the panel of officers judging the case, and other proposed procedures. The JAGs argued that some of the proposals floated by Rumsfeld and his staff would violate their own ethical standards and put them at risk for later prosecution for war crimes if adopted. One top JAG official threatened to resign if the procedures were not brought more in line with established military law. The final version is a compromise between the two camps. Major General Thomas Romig, the head of JAG, later says that the final version still is not what the JAGs would have created on their own. As reporter and author Charlie Savage will later write, based on Romig’s comments: “While less draconian than the political appointees’ initial plans, the military commissions were still legally objectionable in several respects. The commission rules, for example, allowed secret evidence that would be kept hidden from a defendant and allowed the admission of evidence obtained through coercive interrogations [torture]. Moreover, the special trials still had no explicit congressional authorization.” [Savage, 2007, pp. 138-139]

Entity Tags: Thomas J. Romig, US Department of Defense, Neal Katyal, Donald Rumsfeld, Human Rights Watch, Judge Advocate General Corps, Charlie Savage, Geneva Conventions, Paul Wolfowitz

Timeline Tags: Torture of US Captives, Civil Liberties

When al-Qaeda logistics manager Abu Zubaida is arrested in late March 2002 (see March 28, 2002), his computer is searched. According to the Washington Post: “When agents found Zubaida’s laptop computer, a senior law enforcement source said, they discovered that the vast majority of people he had been communicating with were being monitored under FISA warrants or international spying efforts. ‘Finally, we got some comfort’ that surveillance efforts were working, said a government official familiar with Zubaida’s arrest.” The fact some of his contacts are monitored under FISA warrants indicates that they are in the US, as FISA warrants are only used for US targets (see 1978). The monitoring of Abu Zubaida’s communications began in the mid-1990s, at the latest (see (Mid-1996) and October 1998 and After), and continued after 9/11 (see October 8, 2001). [Washington Post, 2/9/2006] Some will later suggest that Zubaida may have had mental problems (see Shortly After March 28, 2002), but this apparently did not stop him from being a key al-Qaeda contact point. FBI agent Dan Coleman, an expert on al-Qaeda, will later say that the FBI “all knew he was crazy, and they knew he was always on the damn phone.” [Washington Post, 12/18/2007] Vincent Cannistraro, former head of the CIA’s Counter Terrorism Center, says of Zubaida shortly after Zubaida’s capture, “He was the guy that had the direct contact with prominent al-Qaeda cell leaders abroad, and he knew where they all were. He would have been the guy co-ordinating new attacks.” [Observer, 4/7/2002]

Entity Tags: Dan Coleman, Vincent Cannistraro, Abu Zubaida

Timeline Tags: Complete 911 Timeline

Abu Zubaida injured, shortly after his arrest. (Note: this picture is from a video presentation on prisoners the Pakistani government gave to BBC filmmakers. It has been adjusted to remove some blue tinge.)Abu Zubaida injured, shortly after his arrest. (Note: this picture is from a video presentation on prisoners the Pakistani government gave to BBC filmmakers. It has been adjusted to remove some blue tinge.) [Source: BBC's "The New Al-Qaeda."]After al-Qaeda leader Abu Zubaida is captured on March 28, 2002 (see March 28, 2002), the CIA takes control of his detention and interrogation, but there is no legal clarity over just how aggressive his interrogation can be for several months. [Tenet, 2007, pp. 241] Thereforem the CIA asks the White House “what the legal limits of interrogation are,” according to Justice Department lawyer John Yoo. [Washington Post, 6/25/2007] CIA Director George Tenet will write in his 2007 book: “Now that we had an undoubted resource in our hands—the highest-ranking al-Qaeda official captured to date—we opened discussions within the National Security Council as to how to handle him, since holding and interrogating large numbers of al-Qaeda operatives had never been part of our plan.… We wondered what we could legitimately do to get that information. Despite what Hollywood might have you believe, in situations like this you don’t call in the tough guys, you call in the lawyers. It took until August to get clear guidance on what Agency officers could legally do.” [Tenet, 2007, pp. 241] This is a reference to an August 1, 2002 Justice Department memo legally justifying the use of some interrogations generally deemed to be torture (see August 1, 2002). But it appears Zubaida was subjected to the most extreme interrogation methods the US used, such as waterboarding, well before August 2002 (see Mid-May 2002 and After). However, during this period of uncertainty and into 2003, the CIA gets advice from Michael Chertoff, head of the Justice Department’s criminal division at the time, about which techniques are likely legal and which ones are not (see 2002-2003).

Entity Tags: Michael Chertoff, Abu Zubaida, George J. Tenet, Central Intelligence Agency, John C. Yoo

Timeline Tags: Torture of US Captives, Complete 911 Timeline

In the wake of al-Qaeda leader Abu Zubaida’s arrest (see March 28, 2002), the FBI discovers much useful information (see Shortly After March 28, 2002). FBI agent Dan Coleman leads a team to sort through Zubaida’s computer files and documents. However, at the same time, some US officials come to believe that Zubaida’s prominence in al-Qaeda’s hierarchy has been overestimated. Many FBI officials conclude that he was used as little more than a travel agent for training camp attendees because he was mentally ill. [Suskind, 2006, pp. 94-96, 100]
FBI Agent Coleman: Zubaida Is Mentally Crippled - FBI counterterrorist operative Dan Coleman will go through Zubaida’s journals and other materials seized from his Faisalabad safe house. Coleman will say: “Abu Zubaydah was like a receptionist, like the guy at the front desk [of a hotel]. He takes their papers, he sends them out. It’s an important position, but he’s not recruiting or planning.” Because Zubaida is not conversant with al-Qaeda security methods, “[t]hat was why his name had been cropping up for years.” Of Zubaida’s diaries, Coleman will say: “There’s nothing in there that refers to anything outside his head, not even when he saw something on the news, not about any al-Qaeda attack, not even 9/11. All it does is reveal someone in torment. [Zubaida is physically and mentally crippled from wounds suffered fighting in Afghanistan in the early 1990s.] Based on what I saw of his personality, he could not be what they say he was.” [Vanity Fair, 12/16/2008] Coleman will add: “He knew very little about real operations, or strategy. He was expendable.” Zubaida’s diary evidences his apparent schizophrenia; he wrote it in three different personas, or voices, each with a different and distinctive personality. [Suskind, 2006, pp. 94-96, 100]
Islamist Al-Deen: Importance Overstated? - Noor al-Deen, a Syrian teenager, was captured along with Zubaida. The terrified al-Deen will readily answer questions from his captors, and will describe Zubaida as a well-known functionary with little knowledge of al-Qaeda operations. Al-Deen will be sent to a detention facility in Morocco and later to Syria; his subsequent whereabouts and status will remain unknown to the public. [Washington Post, 3/29/2009]
Informant Says Zubaida Behaved Oddly - Other accounts back up this assessment. For instance, Omar Nasiri, a former informant for European intelligence agencies who met Zubaida in the 1990s, will later describe Zubaida’s odd behavior, saying he “shuffled around his home in near-total darkness, carrying a gas lantern from room to room. He barely spoke and would often communicate by pointing.” [New Yorker, 1/22/2007]
CIA Officer Scheuer: Zubaida Served as Key Hub - Michael Scheuer, who previously ran the CIA’s bin Laden unit (see February 1996), will later say of Zubaida’s importance: “I’d followed him for a decade. If there was one guy you could call a ‘hub,’ he was it.” Scheuer will describe Zubaida not as an actual al-Qaeda member, but “the main cog in the way they organized,” a point of contact for Islamists from many parts of the globe seeking combat training in the Afghan camps. Scheuer will say that Zubaida, a Palestinian, “never swore bayat [al-Qaeda’s oath of allegiance] to bin Laden,” and he was bent on causing damage to Israel, not the US. [Vanity Fair, 12/16/2008]
Involvement in Pre-9/11 Plots - However, Zubaida does appear to have been involved in numerous plots before 9/11 (see for instance November 30, 1999 and Early September 2001). Al-Qaeda operative Ahmed Ressam cooperated with US investigators after being arrested. He worked with Zubaida and suggested Zubaida was of some importance, but not one of al-Qaeda’s highest leaders. According to Ressam, Zubaida “is the person in charge of the [training] camps. He receives young men from all countries. He accepts you or rejects you. He takes care of the expenses of the camps. He makes arrangements for you when you travel coming in or leaving.” [Gunaratna, 2003, pp. 133] Furthermore, when Zubaida was caught, apparently he and several others staying with him were in the middle of building a bomb. According to one of the CIA officers who helped capture him, the soldering iron used in making the bomb was still hot when he was captured (see Shortly After March 28, 2002). [Senate Intelligence Committee, 4/22/2009 pdf file]
CIA Chief Tenet Rejects Diagnosis of Schizophrenia - In a 2007 book, former CIA Director George Tenet will claim that the reports that Zubaida was mentally unstable were “[b]aloney.… Apparently, the source of the rumor that Abu Zubaida was unbalanced was his personal diary, in which he adopted various personas. From that shaky perch, some junior Freudians leapt to the conclusion that Zubaida had multiple personalities. In fact, agency psychiatrists eventually determined that in his diary he was using a sophisticated literary device to express himself.” [Tenet, 2007, pp. 243]
Zubaida Touted as High-Level Terror Chief - Regardless, despite being briefed otherwise, President Bush and others in his administration will repeatedly tout the importance of capturing Zubaida and no hint of any doubts about his importance or sanity will be publicly expressed (see April 9, 2002 and After). [Suskind, 2006, pp. 94-96, 100]

Entity Tags: Ron Suskind, George J. Tenet, Dan Coleman, Bush administration (43), George W. Bush, Abu Zubaida, Ahmed Ressam, Omar Nasiri, Noor al-Deen

Timeline Tags: Complete 911 Timeline

FBI senior interrogator and al-Qaeda expert Ali Soufan, in conjunction with FBI agent Steve Gaudin, interrogate suspected al-Qaeda operative Abu Zubaida (see March 28, 2002) using traditional non-coercive interrogation methods, while Zubaida is under guard in a secret CIA prison in Thailand. A CIA interrogation team is expected but has not yet arrived, so Soufan and Gaudin who have been nursing his wounds are initially leading his questioning using its typical rapport-building techniques. “We kept him alive,” Soufan will later recall. “It wasn’t easy, he couldn’t drink, he had a fever. I was holding ice to his lips.” At the beginning, Zubaida denies even his identity, calling himself “Daoud;” Soufan, who has pored over the FBI’s files on Zubaida, stuns him by calling him “Hani,” the nickname his mother called him. Soufan and Gaudin, with CIA officials present, elicit what he will later call “important actionable intelligence” from Zubaida. To help get him to talk, the agents bring in a box of audiotapes and claim they contain recordings of his phone conversations. He begins to confess.
Zubaida Reveals KSM Is 9/11 Mastermind - Zubaida tells Soufan that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks, and confirms that Mohammed’s alias is “Mukhtar,” a vital fact US intelligence discovered shortly before 9/11 (see August 28, 2001). Soufan shows Zubaida a sheaf of pictures of terror suspects; Zubaida points at Mohammed’s photo and says, “That’s Mukhtar… the one behind 9/11” (see April 2002). Zubaida also tells Soufan about American al-Qaeda operative Jose Padilla (see March 2002 and Mid-April 2002). In 2009, Soufan will write of his interrogations of Zubaida (see April 22, 2009): “This experience fit what I had found throughout my counterterrorism career: traditional interrogation techniques are successful in identifying operatives, uncovering plots and saving lives.” When the CIA begins subjecting Zubaida to “enhanced interrogation tactics” (see Mid-April 2002), Soufan will note that they learn nothing from using those tactics “that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions… The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process.” [Vanity Fair, 7/17/2007; Mayer, 2008, pp. 155; New York Times, 4/22/2009; Newsweek, 4/25/2009]
Standing Up to the CIA - The CIA interrogation team members, which includes several private contractors, want to begin using “harsh interrogation tactics” on Zubaida almost as soon as they arrive. The techniques they have in mind include nakedness, exposure to freezing temperatures, and loud music. Soufan objects. He yells at one contractor (whom other sources will later identify as psychologist James Mitchell—see Late 2001-Mid-March 2002, January 2002 and After and Between Mid-April and Mid-May 2002), telling him that what he is doing is wrong, ineffective, and an offense to American values. “I asked [the contractor] if he’d ever interrogated anyone, and he said no,” Soufan will later say. But, Mitchell retorts that his inexperience does not matter. “Science is science,” he says. “This is a behavioral issue.” Instead, Mitchell says, Soufan is the inexperienced one. As Soufan will later recall, “He told me he’s a psychologist and he knows how the human mind works.” During the interrogation process, Soufan finds a dark wooden “confinement box” that the contractor has built for Zubaida. Soufan will later recall that it looked “like a coffin.” (Other sources later say that Mitchell had the box constructed for a “mock burial.”) An enraged Soufan calls Pasquale D’Amuro, the FBI assistant director for counterterrorism. “I swear to God,” he shouts, “I’m going to arrest these guys!” Soufan challenges one CIA official over the agency’s legal authority to torture Zubaida, saying, “We’re the United States of America, and we don’t do that kind of thing.” But the official counters with the assertion that the agency has received approval from the “highest levels” in Washington to use such techniques. The official even shows Soufan a document that the official claims was approved by White House counsel Alberto Gonzales. It is unclear what document the official is referring to.
Ordered Home - In Washington, D’Amuro is disturbed by Soufan’s reports, and tells FBI director Robert Mueller, “Someday, people are going to be sitting in front of green felt tables having to testify about all of this.” Mueller orders Soufan and then Gaudin to return to the US, and later forbids the FBI from taking part in CIA interrogations (see May 13, 2004). [New York Times, 9/10/2006; Newsweek, 4/25/2009]
Disputed Claims of Effectiveness - The New York Times will later note that officials aligned with the FBI tend to think the FBI’s techniques were effective while officials aligned with the CIA tend to think the CIA’s techniques were more effective. [New York Times, 9/10/2006] In 2007, former CIA officer John Kiriakou will make the opposite claim, that FBI techniques were slow and ineffective and CIA techniques were immediately effective. However, Kiriakou led the team that captured Zubaida in Pakistan and does not appear to have traveled with him to Thailand (see December 10, 2007). [ABC News, 12/10/2007; ABC News, 12/10/2007 pdf file]
Press Investigation Finds that FBI Interrogations Effective - In 2007, Vanity Fair will conclude a 10 month investigation comprising 70 interviews, and conclude that the FBI techniques were effective. The writers will later note, “America learned the truth of how 9/11 was organized because a detainee had come to trust his captors after they treated him humanely.” CIA Director George Tenet reportedly is infuriated that the FBI and not the CIA obtained the information and he demands that the CIA team get there immediately. But once the CIA team arrives, they immediately put a stop to the rapport building techniques and instead begin implementing a controversial “psychic demolition” using legally questionable interrogation techniques. Zubaida immediately stops cooperating (see Mid-April 2002). [Vanity Fair, 7/17/2007]

Entity Tags: Steve Gaudin, Vanity Fair, Robert S. Mueller III, James Elmer Mitchell, Jose Padilla, Abu Zubaida, Ali Soufan, Khalid Shaikh Mohammed, Central Intelligence Agency, George J. Tenet, John Kiriakou, Federal Bureau of Investigation, Pasquale D’Amuro

Timeline Tags: Torture of US Captives, Complete 911 Timeline

In the days following the capture of al-Qaeda operative Abu Zubaida (see March 28, 2002), a group of top White House officials, the National Security Council’s Principals Committee, begins a series of meetings that result in the authorization of specific torture methods against Zubaida and other detainees. The top secret talks and meetings eventually approve such methods to be used by CIA agents against high-value terrorism suspects. The US media will not learn of this until six years later (see April 9, 2008). The Principals Committee meetings are chaired by National Security Adviser Condoleezza Rice, and attendees include Vice President Dick Cheney, CIA Director George Tenet, Secretary of Defense Donald Rumsfeld, Secretary of State Colin Powell, and Attorney General John Ashcroft. Tenet’s successor, Porter Goss, will also participate in the meetings. Sometimes deputies attend in place of their superiors. Rice’s group not only discusses and approves specific “harsh” methods of interrogation, but also approves the use of “combined” interrogation techniques on suspects who prove recalcitrant. The approved techniques include slapping and shoving prisoners, sleep deprivation, and waterboarding, or simulated drowning, a technique banned for decades by the US military. Some of the discussions of the interrogation sessions are so detailed that the Principals Committee virtually choreographs the sessions down to the number of times CIA agents can use specific tactics. [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008] The Principals Committee also ensures that President Bush is not involved in the meetings, thereby granting him “deniability” over the decisions, though Bush will eventually admit to being aware of the decisions (see April 11, 2008). The Principals Committee, particularly Cheney, is described by a senior intelligence official as “deeply immersed” in the specifics of the decisions, often viewing demonstrations of how specific tactics work. [Associated Press, 4/10/2008]
Imminent Threat Calls for Extreme Measures - The move towards using harsh and likely illegal interrogation tactics begins shortly after the capture of Zubaida in late March 2002 (see Late March through Early June, 2002 and March 28, 2002). Zubaida is seen as a potentially critical source of information about potential attacks similar to 9/11. He is kept in a secret CIA prison where he recovers from the wounds suffered during his capture, and where he is repeatedly questioned. However, he is allegedly uncooperative with his inquisitors, and CIA officials want to use more physical and aggressive techniques to force him to talk (see March 28, 2002-Mid-2004 and April - June 2002). The CIA briefs the Principals Committee, chaired by Rice, and the committee signs off on the agency’s plan to use more extreme interrogation methods on Zubaida. After Zubaida is waterboarded (see April - June 2002), CIA officials tell the White House that he provided information leading to the capture of two other high-level al-Qaeda operatives, Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003) and Ramzi bin al-Shibh (see Late 2002 and May 2002-2003). The committee approves of waterboarding as well as a number of “combined” interrogation methods, basically a combination of harsh techniques to use against recalcitrant prisoners.
The 'Golden Shield' - The committee asks the Justice Department to determine whether using such methods would violate domestic or international laws. “No one at the agency wanted to operate under a notion of winks and nods and assumptions that everyone understood what was being talked about,” a second senior intelligence official will recall in 2008. “People wanted to be assured that everything that was conducted was understood and approved by the folks in the chain of command.” In August 2002, Justice Department lawyers in the Office of Legal Counsel will write a memo that gives formal legal authority to government interrogators to use harsh, abusive methods on detainees (see August 1, 2002). The memo is called the “Golden Shield” for CIA agents who worry that they could be held criminally liable if the harsh, perhaps tortuous interrogations ever become public knowledge. CIA veterans remember how everything from the Vietnam-era “Phoenix Program” of assassinations to the Iran-Contra arms sales of the 1980s were portrayed as actions of a “rogue,” “out-of-control” CIA; this time, they intend to ensure that the White House and not the agency is given ultimate responsibility for authorizing extreme techniques against terror suspects. Tenet demands White House approval for the use of the methods, even after the Justice Department issues its so-called “Golden Shield” memo explicitly authorizing government interrogators to torture suspected terrorists (see August 1, 2002). Press sources will reveal that Tenet, and later Goss, convey requests for specific techniques to be used against detainees to the committee (see Summer 2003). One high-ranking official will recall: “It kept coming up. CIA wanted us to sign off on each one every time. They’d say: ‘We’ve got so and so. This is the plan.’” The committee approves every request. One source will say of the discussions: “These discussions weren’t adding value. Once you make a policy decision to go beyond what you used to do and conclude it’s legal, [you should] just tell them to implement it.” [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008] In April 2008, law professor Jonathan Turley will say: “[H]ere you have the CIA, which is basically saying, ‘We’re not going to have a repeat of the 1970s, where you guys have us go exploding cigars and trying to take out leaders and then you say you didn’t know about it.’ So the CIA has learned a lot. So these meetings certainly cover them in that respect.” [MSNBC, 4/10/2008] A former senior intelligence official will say, “If you looked at the timing of the meetings and the memos you’d see a correlation.” Those who attended the dozens of meetings decided “there’d need to be a legal opinion on the legality of these tactics” before using them on detainees. [Associated Press, 4/10/2008]
Ashcroft Uneasy at White House Involvement - Ashcroft in particular is uncomfortable with the discussions of harsh interrogation methods that sometimes cross the line into torture, though his objections seem more focused on White House involvement than on any moral, ethical, or legal problems. After one meeting, Ashcroft reportedly asks: “Why are we talking about this in the White House? History will not judge this kindly.” However, others in the discussions, particularly Rice, continue to support the torture program. Even after Jack Goldsmith, the chief of the Justice Department’s Office of Legal Counsel (OLC), withdraws the “Golden Shield” memo and after Powell begins arguing that the torture program is harming the image of the US abroad, when CIA officials ask to continue using particular torture techniques, Rice responds: “This is your baby. Go do it.”
Reaction after Press Learns of Meetings - After the press learns of the meetings (see April 9, 2008), the only person involved who will comment will be Powell, who will say through an assistant that there were “hundreds of [Principals Committee] meetings” on a wide variety of topics and that he is “not at liberty to discuss private meetings.” [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008]

Entity Tags: Office of Legal Counsel (DOJ), Porter J. Goss, US Department of Justice, Ramzi bin al-Shibh, Richard (“Dick”) Cheney, Principals Committee, Khalid Shaikh Mohammed, Jack Goldsmith, John Ashcroft, Bush administration (43), Al-Qaeda, Abu Zubaida, Central Intelligence Agency, Colin Powell, Condoleezza Rice, George W. Bush, George J. Tenet, Donald Rumsfeld, Jonathan Turley, National Security Council

Timeline Tags: Torture of US Captives, Civil Liberties

Justice Department lawyer Patrick Philbin sends a classified memo to Daniel Bryant, a lawyer with the Justice Department’s Office of Legal Counsel, concerning the “Swift Justice Authorization Act.” The memo states that Congress has no power to interfere with President Bush’s authority to act as commander in chief to control US actions during wartime, including Bush’s authority to promulgate military commissions to try and sentence suspected terrorists and other detainees taken by the US as part of its “war on terror.” Philbin’s colleague, OLC lawyer John Yoo, will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [US Department of Justice, 4/8/2002 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file] The memo will be made public in early 2009 (see March 2, 2009).

Entity Tags: Office of Legal Counsel (DOJ), Patrick F. Philbin, US Department of Justice, Daniel Bryant, John C. Yoo

Timeline Tags: Civil Liberties

The POW-style treatment of detainees at Guantanamo by MP commander Gen. Rick Baccus (see March 28, 2002) does not resonate well with Pentagon and White House policymakers. [Newsweek, 5/24/2004] Pentagon officials complain that Baccus is “too nice” to the prisoners and makes it difficult for interrogators to extract information from them. Maj. Gen. Michael E. Dunlavey, head of the interrogators’ unit JTF-170, is reportedly irritated by Baccus’ decision allowing the International Committee of the Red Cross (ICRC) to put up posters informing detainees they need only provide interrogators with their name, rank, and number. [Guardian, 10/16/2002] Irritation with Baccus’s attitude towards detains will culminate in his dismissal (see October 9, 2002) on October 9.

Entity Tags: Rick Baccus, Michael E. Dunlavey

Timeline Tags: Torture of US Captives

Around mid-April 2002, the CIA begins using aggressive interrogation techniques on al-Qaeda leader Abu Zubaida. A new CIA team led by psychologist James Elmer Mitchell arrives and takes control of Zubaida’s interrogation from the FBI (see Mid-April 2002). This team soon begins using techniques commonly described as torture, such as waterboarding (see April - June 2002, May 2002-2003 and Mid-May 2002 and After). Journalist James Risen will write in a 2006 book: “The assertions that the CIA’s tactics stopped short of torture were undercut by the fact that the FBI decided that the tactics were so severe that the bureau wanted no part of them, and FBI agents were ordered to stay away from the CIA-run interrogations. FBI agents did briefly see Abu Zubaida in custody, and at least one agent came away convinced that Zubaida was being tortured, according to an FBI source.” [Risen, 2006, pp. 32] Newsweek will similarly report in 2007 that Zubaida’s interrogation “sparked an internal battle within the US intelligence community after FBI agents angrily protested the aggressive methods that were used. In addition to waterboarding, Zubaida was subjected to sleep deprivation and bombarded with blaring rock music by the Red Hot Chili Peppers. One agent was so offended he threatened to arrest the CIA interrogators, according to two former government officials directly familiar with the dispute.” [Newsweek, 12/12/2007] The FBI completely withdraws its personnel, wanting to avoid legal entanglements with the dubious methods. The CIA then is able to use even more aggressive methods on Zubaida (see Mid-May 2002 and After). [New York Times, 9/10/2006] The CIA torture of Zubaida produces a raft of almost useless information (see Mid-April 2002 and June 2002). Zubaida, already mentally unstable (see Shortly After March 28, 2002), says yes to every question asked of him: if al-Qaeda is planning on bombing shopping malls, banks, supermarkets, nuclear plants, apartment buildings, and water systems. After each “confession,” the CIA cables Washington with the “intelligence,” and much of it is given to President Bush. White House officials will use Zubaida’s dubious admissions to issue many groundless terror warnings and alerts. [Savage, 2007, pp. 220]

Entity Tags: Abu Zubaida, Al-Qaeda, Central Intelligence Agency, Federal Bureau of Investigation

Timeline Tags: Torture of US Captives, Complete 911 Timeline

The law offices of Mitchell, Jessen and Associates are in this American Legion Building in Spokane, Washington.The law offices of Mitchell, Jessen and Associates are in this American Legion Building in Spokane, Washington. [Source: Brian Plonka / Spokesman-Review]The FBI has been interrogating captured al-Qaeda leader Abu Zubaida at a secret CIA prison in Thailand and learning valuable intelligence information (see Late March through Early June, 2002). However, the prison is controlled by the CIA and the FBI is only in control until a team of CIA interrogators arrives, which apparently happens around mid-April 2002. The FBI has been using humane rapport-building techniques, but the new CIA team immediately abandons this approach. The team is lead by psychologist James Mitchell, who runs a consulting business in Washington State with psychologist Bruce Jessen (see January 2002 and After). Both worked in SERE (Survival, Evasion, Resistance, Escape), a classified US military training program which trains soldiers to endure being tortured by the enemy. Mitchell and Jessen reverse-engineered the techniques inflicted in the SERE training so they could be used on Zubaida and other detainees. [Vanity Fair, 7/17/2007] SERE trainees are subjected to “waterboarding (simulated drowning), sleep deprivation, isolation, exposure to temperature extremes, enclosure in tiny spaces, bombardment with agonizing sounds, and religious and sexual humiliation.” One European official knowledgeable about the SERE program will say of Mitchell and Jessen: “They were very arrogant, and pro-torture.… They sought to render the detainees vulnerable—to break down all of their senses.” The use of these psychologists also helps to put a veneer of scientific respectability over the torture techniques favored by top officials. One former US intelligence community adviser will later say: “Clearly, some senior people felt they needed a theory to justify what they were doing. You can’t just say, ‘We want to do what Egypt’s doing.’ When the lawyers asked what their basis was, they could say, ‘We have PhD’s who have these theories.’” [New Yorker, 8/6/2007] But Mitchell and Jessen have no experience in conducting interrogations and have no proof that their techniques are effective. In fact, the SERE techniques are based on Communist interrogation techniques from the Korean War, designed not to get valuable intelligence but to generate propaganda by getting US prisoners to make statements denouncing the US (see December 2001). Air Force Reserve colonel Steve Kleinman, an expert in human intelligence operations, will later say he finds it astonishing the CIA “chose two clinical psychologists who had no intelligence background whatsoever, who had never conducted an interrogation… to do something that had never been proven in the real world.” FBI official Michael Rolince calls their techniques “voodoo science.” In 2006, a report by the best-known interrogation experts in the US will conclude that there is no evidence that reverse-engineered SERE tactics are effective in obtaining useful intelligence. But nonetheless, from this time forward Zubaida’s interrogations will be based on these techniques. [Vanity Fair, 7/17/2007]

Entity Tags: James Elmer Mitchell, Abu Zubaida, Steve Kleinman, Michael Rolince, Bruce Jessen, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline

R. Scott Shumate.R. Scott Shumate. [Source: American Psychological Association]Held in a secret CIA prison in Thailand, al-Qaeda leader Abu Zubaida is interrogated by a new team of CIA interrogators led by James Elmer Mitchell and Dr. R. Scott Shumate. Mitchell is a psychologist contracted to the CIA, while Shumate is the chief operational psychologist for the CIA’s Counterterrorist Center. Mitchell wants to use torture techniques based on reverse-engineering SERE (Survival, Evasion, Resistance, Escape), a class he has taught that trains US soldiers to resist torture by the enemy. But the techniques have never been tried before and studies will later determine they are not effective in obtaining good intelligence (see Mid-April 2002). Zubaida is resistant to Mitchell’s new aggressive techniques and refuses to talk. Mitchell concludes Zubaida will only talk when he has been rendered completely helpless and dependent, so the CIA begins building a coffin to bury Zubaida alive in but not actually kill him. This creates an intense controversy over the legality of such a technique, and ultimately it appears the burying alive is never carried out. Both domestic and international law clearly prohibits death threats and simulated killings. However, a number of aggressive techniques have just been approved at the highest political level (see Mid-March 2002), so opponents to these techniques are mostly powerless. Shumate is so strongly opposed to these techniques that he leaves in disgust. He will later tell his associates that it was a mistake for the CIA to hire Mitchell. But with Shumate gone, Mitchell is now free to use more extreme methods, and the torture of Zubaida begins in earnest around the middle of May. [Vanity Fair, 7/17/2007] Around this time, the FBI also washes its hands of the controversial techniques and withdraws its personnel from the secret prison (see Mid-April-May 2002).

Entity Tags: R. Scott Shumate, Counterterrorist Center, Abu Zubaida, Central Intelligence Agency, James Elmer Mitchell

Timeline Tags: Torture of US Captives, Complete 911 Timeline

This picture of US soldiers supervising the waterboarding of North Vietnamese prisoners was published in a US newspaper in 1968, resulting in an investigation and convictions.This picture of US soldiers supervising the waterboarding of North Vietnamese prisoners was published in a US newspaper in 1968, resulting in an investigation and convictions. [Source: Bettmann / Corbis]In 2007, it will be reported that the CIA used the controversial interrogation technique of waterboarding on at least three detainees. The Associated Press will claim the detainees are:
bullet Abu Zubaida, who is captured in March 2002 and tortured around May 2002 (see March 28, 2002 and Mid-May 2002 and After).
bullet Abd al-Rahim al-Nashiri, who is captured in November 2002 (see Early October 2002 and (November 2002)).
bullet Khalid Shaikh Mohammed (KSM), who is allegedly captured in early 2003 (see February 29 or March 1, 2003 and Shortly After February 29 or March 1, 2003). [Associated Press, 12/11/2007]
bullet NBC News will report a list of three that includes Hambali, who is captured in August 2003 (see August 12, 2003 and Shortly After August 12, 2003). NBC’s list also mentions KSM and Zubaida, but does not mention al-Nashiri. [MSNBC, 9/13/2007] In a 2007 book, former CIA Director George Tenet will hint that slightly more than three may have been waterboarded, writing, “The most aggressive interrogation techniques conducted by CIA personnel were applied to only a handful of the worst terrorists on the planet, including people who had planned the 9/11 attacks…” [Tenet, 2007, pp. 242] ABC News will claim in September 2007, “It is believed that waterboarding was used on fewer than five ‘high-value’ terrorist subjects…” [ABC News, 9/14/2007] Prior to 2002, waterboarding was classified by the US government as a form of torture, and treated as a serious criminal offense. US soldiers were court-martialled for waterboarding captives as recently as the Vietnam War. The technique is said to simulate death by drowning. [New Yorker, 8/6/2007] In the 1600s, King James I of England wrote about the torture his government was using and stated that waterboarding was the most extreme form of torture used, worse than the rack and thumbscrews. [Harper's, 12/15/2007] In 2007, it will be revealed that at least some of the interrogations of Zubaida and al-Nashiri were videotaped, and it is suspected by some that their waterboarding may have been taped (see Spring-Late 2002). These tapes will later be destroyed under controversial circumstances (see November 2005). A government official will later claim that waterboarding is no longer used after 2003. The CIA and US military will prohibit the use of waterboarding in 2006. [Associated Press, 12/11/2007]

Entity Tags: George J. Tenet, Central Intelligence Agency, Abd al-Rahim al-Nashiri, Hambali, Khalid Shaikh Mohammed, Abu Zubaida

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Coming from Pakistan, Jose Padilla steps off the plane at Chicago’s O’Hare International Airport and is arrested by FBI agents. Padilla is carrying $10,526, a cell phone, the names and phone numbers of his al-Qaeda training camp sponsor and recruiter, and e-mail addresses of other al-Qaeda operatives. The FBI takes him to New York and holds him in federal criminal custody on the basis of a material witness warrant in connection to a grand jury investigation into the 9/11 attacks. Padilla is a Muslim convert and also goes by the name of Abdullah Al-Muhajir. [Associated Press, 6/2004; Supreme Court opinion on writ of certiorari to the United States Court of Appeals for the Second Circuit. Donald Rumsfeld v. Jose Padilla, 6/28/2004]

Entity Tags: Federal Bureau of Investigation, Al-Qaeda, Jose Padilla

Timeline Tags: Torture of US Captives

Abu Zubaida.Abu Zubaida. [Source: New York Times]The CIA begins interrogating captured al-Qaeda leader Abu Zubaida (see March 28, 2002), using some aggressive techniques that are commonly considered to be torture. Zubaida was initially interrogated by the FBI using traditional rapport-building techniques, and many believe the FBI was obtaining valuable information (see Late March through Early June, 2002). But he is being held at a secret CIA prison in Thailand (see March 2002), and soon a new CIA team comes in and takes over (see Mid-April 2002). This team, led by controversial psychologist James Elmer Mitchell, uses such extreme methods that the FBI completely withdraws its personnel (see Mid-April-May 2002), and even some CIA personnel leave in disgust (see Between Mid-April and Mid-May 2002). By mid-May, Mitchell’s detractors are gone and the gunshot wounds Zubaida sustained during his capture have stabilized, so Mitchell begins applying even more aggressive interrogation techniques. [Posner, 2003, pp. 186, 191; Suskind, 2006, pp. 110-115] According to one psychologist involved in Zubaida’s interrogation, Mitchell argues that Zubaida needs to be reduced to a state of “learned helplessness.” Reserve Air Force Colonel Steve Kleinman, an experienced interrogator very familiar with Mitchell, will later say that “learned helplessness was his whole paradigm.… It starts with isolation. Then they eliminate the prisoners’ ability to forecast the future—when their next meal is, when they can go to the bathroom. It creates dread and dependency. It was the KGB model. But the KGB used it to get people who had turned against the state to confess falsely. The KGB wasn’t after intelligence.” [New Yorker, 8/6/2007] Journalist Ron Suskind will later claim: “According to CIA sources, [Zubaida] was waterboarded, a technique in which a captive’s face is covered with a towel as water is poured atop, creating the sensation of drowning. He was beaten, though not in a way to worsen his injuries. He was repeatedly threatened, and made certain of his impending death. His medication was withheld. He was bombarded with deafening, continuous noise and harsh lights.” [Suskind, 2006, pp. 115] The New York Times will later claim: “At times, Mr. Zubaida, still weak from his wounds, was stripped and placed in a cell without a bunk or blankets. He stood or lay on the bare floor, sometimes with air-conditioning adjusted so that, one official said, Mr. Zubaida seemed to turn blue. At other times, the interrogators piped in deafening blasts of music by groups like the Red Hot Chili Peppers.” [New York Times, 9/10/2006] Zubaida will reportedly later tell the Red Cross that he was also kept for a prolonged period in a cage, known as a “dog box,” so small that he unable to stand. [New Yorker, 8/6/2007] The CIA will claim that these aggressive methods are very effective, and soon it will begin using them on many other detainees. But others will later suggest that Zubaida gave up far less valuable information under torture than he did with the FBI’s rapport-building techniques (see June 2002). The legal authority to conduct these types of interrogations is unclear. The CIA is being advised by Michael Chertoff at the Justice Department, but there will be no formal legal opinion permitting the techniques until August 2002. [New York Times, 9/10/2006]

Entity Tags: Central Intelligence Agency, James Elmer Mitchell, Abu Zubaida, Steve Kleinman

Timeline Tags: Torture of US Captives, Complete 911 Timeline

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