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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 ]
Jesselyn Radack. [Source: Whistleblower (.org)]Justice Department legal ethics adviser Jesselyn Radack is subjected to intensive harassment and scrutiny by her employer after she consulted with a Criminal Division lawyer over the John Walker Lindh (“American Taliban”) case (see December 7, 2001).
Suddenly Fired - After Radack contradicts the department’s story on Lindh and his supposed failure to request legal counsel, she is suddenly fired when an unscheduled performance evaluation gives her poor ratings. Less than a year before, her performance evaluation had earned her a promotion and a merit bonus.
Leaks E-Mails to Reporter, Lindh Case Derailed - When she learns that the Justice Department has failed to turn over a number of e-mails concerning Lindh to a federal judge as requested, Radack turns over the e-mails to reporter Michael Isikoff of Newsweek. “I wasn’t in my mind saying, ‘Gee, I want to be a whistle-blower,’” she will later say. “I was just trying to correct the wrong, just trying to set something straight.” The resulting article prompts questions about the Justice Department’s honesty in discussing the Lindh case, and prompts a surprising turn of events: the department announces that it will end the Lindh case rather than hold an evidence-suppression hearing that would have probed the facts surrounding his interrogations. The government drops the worst of the charges against Lindh, and he pleads guilty to lesser charges (see July 15, 2002) and October 4, 2002).
Unspecified Allegations of 'Criminal' Behavior, Secret Reports Alleging Unfitness - As for Radack, even though the e-mails she released are not classified and she has broken no laws in making them public, the Bush administration wanted that information kept secret. She loses her job at a private law firm after the administration informs the firm that she is a “criminal” who cannot be trusted. She is subjected to a yearlong criminal investigation by the Justice Department; no charges are ever filed. “My attorneys asked what I was being investigated for and never got an answer,” Radack will later say. “There is no law against leaking. This was nonclassified stuff. I think they were just trying to get me to slip into making a false statement. Beyond that, it never seemed like they were really going to bring charges. This was just to harass me.” The administration files a secret report with the bar associations in the states she is licensed to practice law, alleging that she is unfit to practice law and recommending “discipline” against her. Because the report is secret, Radack finds it difficult to challenge the unspecified charges. (Most of the complaints against her will eventually be dismissed.)
No-Fly List - And Radack is placed on the administration’s “no-fly” list, ostensibly reserved for suspected terrorists and other criminals, forcing her to endure intensive and invasive searches every time she attempts to board an airplane.
Making an Example - In 2007, reporter and author Charlie Savage will note that Radack gained no protection from the various whistleblower protection laws on the books, mostly because those laws have no enforcement mechanisms and rely “on the willingness of high-ranking executive branch officials to obey a statute.” Savage will observe: “The whistleblower laws did nothing to help Radack when the Bush-Cheney administration decided to make an example of her, sending a clear warning to other officials who might be inclined to bring secret executive branch wrongdoing to light. And Radack would not be the last.” [Reporters Committee for Freedom of the Press, 6/2003; Savage, 2007, pp. 107-110]
The FBI and Defense Department begin paying ChoicePoint, a private data-collection company, for access to its data-searching system. Neither agency is legally permitted to keep database records on US citizens, but they are effectively able to circumvent this law by contracting the task to ChoicePoint. Both agencies have steadily expanded their relationship with the company. Exactly what kind of data is being accessed and the legality of doing so remain murky. [Government Executive, 11/11/2005]
David Iglesias, the newly installed US Attorney for New Mexico (see October 18, 2001), does well in his first Evaluation and Review Staff (EARS) evaluation by the Justice Department. His evaluation states: “The United States Attorney was well respected by the client agencies, judiciary, and [his office] staff. He provided good leadership… and was appropriately engaged in the operations of the office.” The EARS report contains no criticisms or concerns about his performance. [US Department of Justice, Office of the Inspector General, 9/29/2008] A follow-up report lauds Iglesias and his office for effectively implementing the department’s national priorities, praises their work on the Anti-Terrorism Advisory Council, and compliments Iglesias on pursuing white-collar corruption, fraud, drugs, and firearms cases. The report concludes: “In addition to pursuing national priorities, the district priorities you have set illustrate your district’s firm grasp on its issues and crime problems. The complex issues arising from the Indian Country in your district present challenges which you have met with vigor.… The management principles applied in your district promote high quality work from your personnel, allow for flexibility, yet ensure that cases are being handled appropriately.” [US House of Representatives, Committee on the Judiciary, 5/21/2007]
In late 2001 or early 2002, Defense Secretary Donald Rumsfeld creates Operation Copper Green, which is a “special access program” with “blanket advance approval to kill or capture and, if possible, interrogate ‘high value’ targets.” especially al-Qaeda leaders (see Late 2001-Early 2002). According to a Pentagon counterterrorism consultant involved in the operation, the authorizations are “very calibrated” and vague in order to minimize political risk. “The CIA never got the exact language it wanted.” According to a high-level CIA official involved in the operation, the White House would hint to the CIA that the CIA should operate outside official guidelines to do what it wants to do. The CIA will later deny this, but CIA Director George Tenet will later acknowledge that there had been a struggle “to get clear guidance” in terms of how far to go during detainee interrogations. Slowly, official authorizations are expanded, and according to journalist Seymour Hersh, they turn “several nations in North Africa, the Middle East, and Asia into free-fire zones with regard to high-value targets.” But Copper Green has top-level secrecy and runs outside normal bureaucracies and rules. According to Hersh, “In special cases, the task forces could bypass the chain of command and deal directly with Rumsfeld’s office.” One CIA officer tells Hersh that the task-force teams “had full authority to whack—to go in and conduct ‘executive action,’” meaning political assassination. The officer adds, “It was surrealistic what these guys were doing. They were running around the world without clearing their operations with the ambassador or the chief of station.” [New Yorker, 6/17/2007] Another former intelligence official tells Hersh, “The rules are ‘Grab whom you must. Do what you want.’” [Guardian, 9/13/2004] The above-mentioned high-level CIA official will claim, “The dirt and secrets are in the back channel. All this open business—sitting in staff meetings, etc…, etc…—is the Potemkin Village stuff.” Over time, people with reservations about the program get weeded out. The official claims that by 2006, “the good guys… are gone.” [New Yorker, 6/17/2007]
The New York Times will later report that in 2002 and 2003, Michael Chertoff repeatedly advises the CIA about legality of some aggressive interrogation procedures. Chertoff is head of the Justice Department’s criminal division at the time, and will later become the homeland security secretary. Chertoff advises that the CIA can use waterboarding. And the Times will claim he approves techniques “that did not involve the infliction of pain, like tricking a subject into believing he was being questioned by a member of a security service from another country.” [New York Times, 1/29/2005] It will later be reported that the CIA tricked al-Qaeda leader Abu Zubaida into believing he was in the custody of the Saudis when in fact several US officials were merely pretending to be Saudis (see Early April 2002). Furthermore, Chertoff seems to have been advising on the legality of techniques used against Zubaida, strengthening allegations that ‘false flag’ trickery was used on him. “In interviews, former senior intelligence officials said CIA lawyers went to extraordinary lengths beginning in March 2002 to get a clear answer from the Justice Department about which interrogation techniques were permissible in questioning Abu Zubaida and other important detainees. ‘Nothing that was done was not explicitly authorized,’ a former senior intelligence said. ‘These guys were extraordinarily careful.’” Chertoff also opposed one technique that “appeared to violate a ban in the law against using a ‘threat of imminent death.’” [New York Times, 1/29/2005] This appears to match claims that the CIA proposed but did not implement a plan to place Zubaida into a coffin to convince him he was about to die (see Between Mid-April and Mid-May 2002).
Adel al-Nusairi, a Saudi Arabian police officer, is captured in Afghanistan and eventually sent to the US detention facility at Guantanamo. Al-Nusairi will recall that he is interrogated for hours on end, but only after being injected with some form of drug. “I’d fall asleep” after the shots, he will tell his attorney, Anant Raut, in 2005. After he is awakened, he is interrogated in marathon questioning sessions, where, he later claims, he gives false information in order to be left alone. “I was completely gone,” he will recall. “I said, ‘Let me go. I want to go to sleep. If it takes saying I’m a member of al-Qaeda, I will.’” After years of captivity, al-Nusairi is eventually returned to Saudi Arabia without being charged with a crime; he never learns what kind of drugs he was subjected to while in US custody. He believes he was given drugs in order to coerce him into making statements that would implicate him in terrorist activity. Raut will later recall: “They thought he was hiding something. He was injected in the arm with something that made him tired—that made his brain cloudy. When he would try to read the Koran, his brain would not focus. He had unusual lethargy and would drool on himself.” Al-Nusairi will recall one interrogation session in an ice-cold room where he is so cold and desperate for sleep that he signs a confession testifying to his involvement in al-Qaeda. According to al-Nusairi, the interrogator watched him sign his name, and “then he smiled and turned off the air conditioner. And I went to sleep.” Al-Nusairi is held for three years more until he is abruptly returned to Saudi custody and released. Raut will later muse, “He signed the statement, and they declared him an enemy combatant, yet they released him anyway with no explanation.” [Washington Post, 4/22/2008]
For 13 years, Texas Republicans have complained that Texas Democrats have “gerrymandered” the state’s electoral district to give Democrats an undue representation in the state’s US House delegation (see 1990 - 1991 and 2000-2002). Now, with Republicans in control of both houses of the state legislature, they decide to redistrict the state to favor Republican representation in Congress. In 2002, Democrats hold a 17-15 edge in US Representatives. The decision is unusual inasmuch as states usually only redraw their district boundaries once a decade, in concurrence with the federal census. Democrats wage a bitter battle against the Republican redistricting efforts, even fleeing the state for a time to prevent the legislature from reaching a quorum (see May 12-15, 2003), but Republicans, led by House Majority Leader Tom DeLay (R-TX), eventually win out, and the Texas legislature enacts a new redistricting plan, Plan 1347C, that concentrates large numbers of Democrats, including minority voters, in a relatively small number of districts and gives Republicans a majority of prospective voters in a much larger number of more sparsely populated districts. In the November 2004 elections, the plan works as envisioned: Republicans have a 21-11 majority in the US Congressional delegation, and obtain a 58 percent to 41 percent edge in statewide voting results. Even before the elections, a number of organizations and individuals file a lawsuit challenging the legality of the redistricting map under the Voting Rights Act (VRA—see August 6, 1965, 1970, 1975, April 22, 1980, and June 29, 1989), charging that the plan unlawfully dilutes racial minority voting strength and is designed to maximize partisan advantage at the voting booths, in essence gerrymandering the state’s electoral districts. A district court finds the redistricting plan is essentially legal, but the Supreme Court vacates that decision and remands the case for reconsideration; the court again finds in favor of the plaintiffs, affirming the map as lawful. [Austin American-Statesman, 5/14/2003; Washington Post, 12/2/2005; FindLaw, 6/28/2006; Oyez (.org), 2012] That decision will be substantially affirmed by the Supreme Court (see June 28, 2006). DeLay says that President Bush, the former governor of Texas, is squarely behind the redistricting efforts. After a Congressional leadership breakfast in May 2003, DeLay says he spoke briefly with Bush: “As I was walking out, I said, you know, that redistricting is ongoing. And he said, ‘Well, good, I’d like to see that happen.’” [Dallas Morning News, 5/14/2003] During the battle over the redistricting, Texas Democrats insist that the new districts will not only illegally protect Republican majorities, but will dilute the impact of votes from outside cities and suburban areas. US Representative Max Sandlin (D-TX) tells a reporter: “This plan doesn’t just destroy Democratic representation… it destroys rural representation. East Texas has had tremendous battles with Dallas over water rights. It is absolutely ridiculous to have a Dallas Congress member represent East Texans concerning water rights. And you can go issue by issue.” Republicans from rural districts say they have no such worries. [Austin American-Statesman, 5/14/2003]
The American branch of the animal rights organization Stop Huntingdon Animal Cruelty (SHAC—see 1998), flush with its recent success against Stephens Inc (see 2001-2002), begins targeting other US companies that do business with the British research firm Huntingdon Life Sciences (HLS). The SHAC Web site explains, “Rather than protesting [HLS] itself, the SHAC campaign targets secondary targets—those companies that HLS needs so desperately to operate, but that don’t need HLS or the pressure that comes with doing business with them.” SHAC focuses on Marsh Inc, the firm that insures HLS. A February 2002 email to US SHAC members notes that British SHAC members have aggressively targeted Marsh, and reads in part, “Let’s show them that the US is no different and let Marsh know that… we are about to raise the premium on pain.” The email contains a list of March offices, phone and fax numbers, and email and home addresses of employees. The Web site provides maps to Marsh’s 60 American offices, along with a statement announcing that by “hitting” Marsh the group hopes to “attack HLS in a way they could never have predicted nor defend themselves against.” Soon thereafter, Marsh employees are harassed. One receives a letter saying: “You have been targeted for terrorist attack.… If you bail out now, you, your business, and your family will be spared great hassle and humility.” A Marsh executive’s home is doused with red paint. Another executive’s home is emblazoned with the slogans “Puppy Killer” and “We’ll Be Back.” In April 2002, SHAC activists escalate their activities, with a number of them gathering at a Marsh employee’s home in Boston, chanting, “[W]hat comes around goes around… burn his house to the ground,” while a message on the group’s Web site calls the employee, his wife, and two-year-old son “scum.” Twelve SHAC activists are arrested and charged with a variety of crimes, including extortion, stalking, threatening, and conspiracy (all charges will eventually be dropped). In July 2002, SHAC activists smoke-bomb two Seattle high-rises housing Marsh offices, forcing their evacuation. By the end of the year, Marsh drops HLS as a client, and SHAC proclaims victory; on its Web site, SHAC credits “those who smashed windows” as well as “those who held vocal protests outside Marsh offices and homes of executives.… No lawsuit, private investigator, or criminal prosecution prevented this victory. Until HLS is closed we will not apologize, we will not compromise, and we will not relent.” Later, other companies will also stop doing business with HLS after being pressured by SHAC. [Southern Poverty Law Center, 9/2002; Anti-Defamation League, 2005]
American al-Qaeda member Jose Padilla (see September-October 2000) and an unidentified associate approach an al-Qaeda operations chief to propose detonating a nuclear bomb in the US. The plan is considered too far-fetched, and the idea of a radioactive “dirty bomb” is floated instead. Al-Qaeda leaders consider Padilla an incompetent who has virtually no chance of pulling off such an attack (see Mid-April 2002). [Associated Press, 6/2004]
Ali Soufan, an experienced FBI interrogator with an extensive knowledge of both Arab culture and al-Qaeda (see Late December 1999, Late October-Late November 2000, November 11, 2000, Early December 2000, and Late March through Early June, 2002), goes to Guantanamo to conduct training on non-coercive interrogation methods for the interrogators stationed there. Soufan says that not only are these methods the most effective, but they are critical to maintaining the US image in the Middle East and elsewhere. “The whole world is watching what we do here,” Soufan says. “We’re going to win or lose this war depending on how we do this.” According to Robert McFadden, a US naval criminal investigator who worked with Soufan on the USS Cole investigation, the interrogators from law enforcement nod in agreement, while the military intelligence officers just sit and look at Soufan “with blank stares.” McFadden will later recall: “It’s like they were thinking, ‘This is bullcrap.’ Their attitude was, ‘You guys are cops; we don’t have time for this.’” [Newsweek, 4/25/2009]
Vice President Dick Cheney continues to battle the General Accounting Office (GAO)‘s request for the records of his energy task force (see January 29, 2001 and April 17, 2001 and After) in the broadcast media (see July 26, 2001). On Fox News, he reiterates his insistence that he will not turn over any records from the task force unless compelled to do so by the courts, and says indignantly, “They’ve demanded of me that I give Henry Waxman [the California Democratic representative who originated the demand for task force records] a list of everybody I met with, of everything that was discussed, any advice that was revealed, notes and memos of these meetings.” Cheney is lying. The GAO only asked for the minutes from the meetings and the names of the participants (see July 31, 2001 and February 22, 2002), and soon the GAO will scale back its request to nothing more than the names and schedules of the participants and the meetings, not the contents of the meetings themselves. Four years later, when the court case has long been settled in Cheney’s favor (see February 7, 2003), Cheney will still mischaracterize the issue as an improper demand from Congress for an executive branch official to disclose the contents of private conversations and meetings, and therefore destroy “the ability of the president and the vice president to receive unvarnished advice.” Former Justice Department official Bruce Fein will call the argument “bogus, specious, [and] absurd.” [Dubose and Bernstein, 2006, pp. 12-13] GAO officials call Cheney’s statement a “critical and highly material misrepresentation” of the facts. [National Review, 2/20/2002]
In the first months after 9/11, the FBI is generally in charge of captured al-Qaeda detainees and the assumption is that these detainees will be sent to the US for criminal prosecutions. However, beginning in January 2002, this policy begins to change. The highest ranking al-Qaeda detainee in US custody at the time, Ibn al-Shaykh al-Libi, is transfered from FBI to CIA custody and then flown to Egypt to be tortured by the Egyptian government (see January 2002 and After).
]]). Also in January, the CIA, not the FBI, begins secretly flying detainees to the US-controlled prison in Guantanamo, Cuba (see January 14, 2002-2005).
Journalist James Risen will later comment, “By choosing the CIA over the FBI, [President] Bush was rejecting the law enforcement approach to fighting terrorism that had been favored during the Clinton era. Bush had decided that al-Qaeda was a national security threat, not a law enforcement problem, and he did not want al-Qaeda operatives brought back to face trial in the United States, where they would come under the strict rules of the American legal system.” [Risen, 2006, pp. 28] This change of policy culminates in the arrest of Abu Zubaida (see March 28, 2002). The Washington Post will later report, “In March 2002, Abu Zubaida was captured, and the interrogation debate between the CIA and FBI began anew. This time, when FBI Director Robert S. Mueller III decided to withhold FBI involvement, it was a signal that the tug of war was over. ‘Once the CIA was given the green light… they had the lead role,’ said a senior FBI counterterrorism official.” [Washington Post, 6/27/2004] The CIA decides that Guantanamo is too public and involves too many US agencies to hold important al-Qaeda detainees. By the time Zubaida is captured the CIA has already set up a secret prison in Thailand, and Zubaida is flown there just days after his capture (see March 2002). Risen will comment, “The CIA wanted secret locations where it could have complete control over the interrogations and debriefings, free from the prying eyes of the international media, free from monitoring by human rights groups, and most important, far from the jurisdiction of the American legal system.” [Risen, 2006, pp. 29-30]
In November 2001, US police called Nabil al-Marabh one of their top five suspects in the 9/11 attacks. [Toronto Sun, 11/23/2001] In mid-January 2002, Canadian police call him “the real thing.” [Toronto Sun, 11/23/2001] In late January 2002, it is reported that in Chicago, “Federal agents say criminal charges spelling out his role [in 9/11 and other plots] are likely within a few weeks.” [ABC News 7 (Chicago), 1/31/2002] Yet, shortly after this, there seems to be a dramatic change of opinion at Justice Department headquarters about al-Marabh. US Attorney Patrick Fitzgerald in Chicago drafts an indictment against Nabil al-Marabh, charging him with multiple counts of making false statements in his interviews with FBI agents. Fitzgerald already has several successful al-Qaeda prosecutions. However, the indictments are rejected by Justice Department headquarters in the name of protecting intelligence. In December 2002, Fitzgerald tracks down a Jordanian informant who had spent time with al-Marabh in a federal detention cell earlier in the year because of minor immigration problems. Fitzgerald has the man flown to Chicago and oversees his debriefing. The man reveals numerous criminal acts that al-Marabh confessed to him in prison, and the information fits with what is already known of al-Marabh’s history (see December 2002). However, Fitzgerald is still not allowed to indict al-Marabh. Another prosecutor in Detroit, trying some associates of al-Marabh in an ultimately unsuccessful case there, also expresses a desire to indict al-Marabh, but is not allowed to do so (see Early 2003). [Associated Press, 6/3/2004] Al-Marabh will ultimately be deported to Syria after serving a short sentence on minor charges (see January 2004).
Two psychologists, James Mitchell and Bruce Jessen, draft a paper on the use of harsh interrogations to break suspected al-Qaeda terrorists. Mitchell, a retired Air Force psychologist, and Jessen, the senior psychologist in charge of the Joint Personnel Recovery Agency (JPRA)‘s Survival, Evasion, Resistance, and Escape (SERE) training program, will soon begin consulting for both the Pentagon and a variety of US intelligence agencies on the harsh methods—torture—they advocate. Jessen proposes an interrogation program similar to those later adopted by the CIA and Pentagon. His proposal recommends creating what he calls an “exploitation facility,” off-limits to outside observers including journalists and representatives of the International Committee of the Red Cross, the agency detailed to ensure that captives in the custody of other nations are being treated properly in accordance with the Geneva Conventions. In the “exploitation facility,” interrogators would use such tactics as sleep deprivation, physical violence, and waterboarding to break the resistance of captured terrorism suspects. JPRA officials will later add their own suggestions to Jessen’s initial list, including sexually provocative acts by female interrogators and the use of military dogs. Most of these techniques are considered torture under the Geneva Conventions and the Convention Against Torture. [Washington Post, 4/22/2009]
Attorney Michael Barasch tells the Associated Press that he has filed legal notices on behalf of 700 firefighters and 300 police officers, fire marshals and emergency medical technicians, who have developed respiratory conditions after working at the World Trade Center disaster site. The legal notices are meant to preserve the plaintiffs’ right to sue the City of New York at a later date on the premise that the city failed to follow federal regulations and provide the appropriate respirators to the rescue workers at the disaster site. [Associated Press, 1/13/2002; Nordgren, Goldstein, and Izeman, 2/2002 ]
Walid al-Qadasi, a 22-year-old Yemeni, is captured in Iran and transferred to US custody, where he is soon transferred to an Afghan prison. Like another captive, Wisam Ahmed (see December 2001 and After), al-Qadasi calls the site the “Dark Prison.” (Civil rights activist Andy Worthington later writes that he believes Ahmed and al-Qadasi were kept at different sites.) Al-Qadasi will later recall: “The Americans interrogated us on our first night which we coined as ‘the black night.’ They cut our clothes with scissors, left us naked, and took photos of us before they gave us Afghan clothes to wear. They then handcuffed our hands behind our backs, blindfolded us, and started interrogating us.… They threatened me with death, accusing me of belonging to al-Qaeda.” After the initial interrogation, he recalls: “They put us in an underground cell measuring approximately two meters by three meters. There were 10 of us in the cell. We spent three months in the cell. There was no room for us to sleep so we had to alternate.… It was too hot in the cell, despite the fact that outside the temperature was freezing (there was snow), because the cell was overcrowded.” He will recall being fed only once a day, tormented by ear-splittingly loud music, and will say that one of his fellow detainees “went insane.” According to his later statement, when Red Cross representatives come to visit, the most severely disturbed prisoners are secretly moved to another cell that is off limits. Al-Qadasi will be transferred to Guantanamo, and in 2004 will be remanded into Yemeni custody. [Future of Freedom Foundation, 4/27/2009]
Michael Edward Smith, a well-dressed young man wearing sunglasses and surgical gloves, sits in a parked car across from the Sherith Israel Congregation synagogue in Nashville, Tennessee. Smith has an AR-15 assault rifle, and plans on shooting someone either entering or exiting the building. A passing motorist sees Smith and his rifle and calls the police. When police confront Smith outside his apartment, he refuses to surrender, and manages to break away to his car, where he proceeds to flee down Interstate 65 while holding a gun to his own head. The chase ends in a parking lot outside a pharmacy, where the police find the AR-15, a handgun, ammunition, and surgical gloves in Smith’s car. After learning of the incident, Deborah Lauter of the Anti-Defamation League tells reporters: “The sight of a man pointing an assault rifle at a synagogue is chilling. We are thankful to the person who reported the incident and to law enforcement for their swift actions in apprehending the suspect.” Smith, a member of the violent, neo-Nazi National Alliance (see 1970-1974), has been influenced by two books, both published by Alliance founder William Pierce: The Turner Diaries, which tells of a genocidal race war in a near-future America (see 1978), and Hunter, a novel depicting a lone assassin gunning down Jews and African-Americans (see 1988). Three days later, he is charged with multiple felonies after divulging his ties to the National Alliance and the existence of a small arsenal in his apartment, in a storage facility, and buried on his parents’ land in the country. Authorities find, among other items: an anti-tank rocket; eight firearms, including a sniper rifle; 13 grenades; 13 pipe bombs; over 2,000 rounds of armor-piercing ammunition; smoke bombs; dynamite fuses; and two duffel bags filled with chemicals. They also find copies of both novels and other materials from the Alliance and the Ku Klux Klan, to which he also admits membership. The FBI classifies Smith as a “domestic terrorist.” James Cavanaugh of the Bureau of Alcohol, Tobacco and Firearms (BATF) says: “Basically, we’ve got hand grenades, we’ve got assault rifles, and we’ve got a mind full of hate and a recipe for disaster.… Anybody who would stockpile that stuff is certainly on the precipice of using them.” Smith readily admits his admiration for the fictional main chacter of Hunter, Oscar Yeager, who in the first scene of the book assassinates an interracial couple from a vantage point inside his car. And, he says, the National Alliance and the KKK gave him training in “how to make and how to use explosives, [and gave him] sniper and combat training.” Smith tells questioners that he “dislike[s] Jews.” Local activists later tell the FBI that Smith took part in a November 2001 National Alliance rally outside the Israeli embassy in Washington, DC. Authorities later find an email from Smith stating Jews “perhaps” should be “stuffed head first into an oven.” [Center for New Community, 8/2002 ; Anti-Defamation League, 5/27/2003; Southern Poverty Law Center, 6/2005] Smith will later plead guilty to four weapons-related offenses. [Anti-Defamation League, 5/27/2003]
Entity Tags: National Alliance, James Cavanaugh, Federal Bureau of Investigation, Deborah Lauter, Ku Klux Klan, Michael Edward Smith, US Bureau of Alcohol, Tobacco, Firearms and Explosives, Sherith Israel Congregation, William Luther Pierce
Timeline Tags: US Domestic Terrorism
The Justice Department’s Patrick Philbin sends a classified memo to Attorney General John Ashcroft. The memo’s contents will not be divulged, but the American Civil Liberties Union (ACLU) will later learn that it regards Ashcroft’s review of the Terrorist Surveillance Program (TSP—see March 2002). [American Civil Liberties Union [PDF], 1/28/2009 ] The memo contains a legal review by Ashcroft of President Bush’s order authorizing the TSP, the Bush administration’s name for its warrantless wiretapping program. The review is requested before one of the 45-day reauthorizations by the president as required by law. [ProPublica, 4/16/2009]
Bud Cummins. [Source: Arkansas Times]H.E. “Bud” Cummins III is sworn in as the US Attorney for the Eastern District of Arkansas. [Talking Points Memo, 2011] He actually took office on December 20, 2001. Cummins is not an experienced prosecutor, but is primarily a private law practitioner. He has clerked for several judges, and was the senior legal counsel for Governor Mike Huckabee (R-AR) between 1997 and 1998. In 2000, he served as a counsel for the Bush-Cheney presidential campaign. He was recommended for the position of US Attorney by Senator Tim Hutchinson (R-AR). [US Department of Justice, Office of the Inspector General, 9/29/2008] There are 93 US Attorneys serving in the 50 states as well as in Puerto Rico, Guam, the Virgin Islands, and the Northern Marianas. All US Attorneys are appointed by the president with the advice and consent of the Senate, and serve under the supervision of the Office of the Attorney General in the Justice Department. They are the chief law enforcement officers for their districts. They serve at the pleasure of the president, and can be terminated for any reason at any time. Typically, US Attorneys serve a four-year term, though they often serve for longer unless they leave or there is a change in presidential administrations. [US Department of Justice, Office of the Inspector General, 9/29/2008]
White House counsel Alberto Gonzales issues a letter stating that the administration’s refusal to turn over documents about possible FBI malfeasance to Dan Burton (R-IN), the chairman of the House Government Reform Committee, is consistent with long-standing Justice Department policy. Gonzales’s assertion will be disputed by the Committee, based on an assessment by law Professor Charles Tiefer of the University of Baltimore (see December 13, 2001). [Dean, 2004, pp. 87]
EPA National Ombudsman Robert Martin and the Government Accountability Project (GAP) file a lawsuit challenging EPA Administrator Christie Whitman’s plan to relocate the ombudsman’s office to the EPA Office of Inspector General (OIG) (see Morning November 27, 2001). [Associated Press, 1/10/2002]
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]
US Federal District Court Judge Richard W. Roberts issues a temporary restraining order preventing EPA Administrator Christie Whitman from implementing a plan (see Morning November 27, 2001) to transfer the ombudsman’s office and investigative files to the EPA’s Office of Inspector General (OIG). The restraining order will expire in early April (see April 6, 2002). [Salon, 1/14/2002; US Congress, 6/25/2002]
Jay Bybee, the chief of the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to White House counsel Alberto Gonzales. The contents will never be divulged, but the American Civil Liberties Union (ACLU) will later learn that it regards the authority of the OLC, the attorney general, the Justice Department, and the State Department in interpreting treaties and international law. [American Civil Liberties Union [PDF], 1/28/2009 ]
An aerial shot of Camp X-Ray. [Source: Public domain]The US prison camp at Guantanamo receives its first 20 prisoners from the Afghan battlefield. [Reuters, 1/11/2002] The prisoners are flown on a C-141 Starlifter cargo plane, escorted during the final leg of the journey by a Navy assault helicopter and a naval patrol boat. The prisoners, hooded, shackled, wearing blackout goggles and orange jumpsuits, and possibly drugged, are escorted one by one off the plane by scores of Marines in full battle gear. They are interred in what reporter Charlie Savage will later call “kennel-like outdoor cages” in the makeshift containment facility dubbed Camp X-Ray. [Guardian, 1/11/2002; Savage, 2007, pp. 142-143]
Leaked Photos of Transfer Cause International Outcry - Pictures of prisoners being transferred in conditions clearly in violation of international law are later leaked, prompting an outcry. But rather than investigating the inhumane transfer, the Pentagon will begin investigating how the pictures were leaked. [Associated Press, 11/9/2002]
Guantanamo Chosen to Keep Prisoners out of US Jurisdiction - The prisoners are sent to this base—leased by Cuba to the US—because it is on foreign territory and therefore beyond the jurisdiction of US law (see December 28, 2001). [Globe and Mail, 9/5/2002] It was once a coaling station used by the US Navy, and in recent years had been used by Coast Guard helicopters searching for drug runners and refugees trying to make it across the Florida Straits to US soil. In 1998, the Clinton administration had briefly considered and then rejected a plan to bring some prisoners from Kosovo to Guantanamo. Guantanamo was chosen as an interim prison for Afghanis who survived the uprising at Mazar-e Sharif prison (see 11:25 a.m. November 25, 2001) by an interagency working group (see Shortly Before September 23, 2001), who considered and rejected facilities in Germany and other European countries. Group leader Pierre-Richard Prosper will later recall: “We looked at our military bases in Europe and ruled that out because (a), we’d have to get approval from a European government, and (b), we’d have to deal with the European Court of Human Rights and we didn’t know how they’d react. We didn’t want to lose control over it and have it become a European process because it was on European soil. And so we kept looking around and around, and basically someone said, ‘What about Guantanamo?’” The base may well have not been the final choice of Prosper’s group; it was still researching a Clinton-era attempt to house Haitian and Cuban refugees there that had been challenged in court when Rumsfeld unilaterally made the decision to begin transferring prisoners to the naval base. [Savage, 2007, pp. 143-144]
No Geneva Convention Strictures Apply to 'Unlawful Combatants' - Rumsfeld, acting on the advice of the Justice Department’s Office of Legal Counsel, publicly declares the detainees “unlawful combatants” and thereby not entitled to the rights of the Geneva Conventions. “Unlawful combatants do not have any rights under the Geneva Convention,” Rumsfeld says. Though, according to Rumsfeld, the government will “for the most part treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate.” [Reuters, 1/11/2002] There is no reason to feel sorry for these detainees, says Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff. He states, “These are people who would gnaw through hydraulic lines at the back of a C-17 to bring it down.” [New York Times, 6/21/2004]
British Officials: 'Scandalous' - Senior British officials privately call the treatment of prisoners “scandalous,” and one calls the refusal to follow the Geneva Convention “not benchmarks of a civilized society.” [Guardian, 6/13/2002]
Entity Tags: US Department of the Navy, United States, US Department of Defense, Pierre-Richard Prosper, Richard B. Myers, Clinton administration, Donald Rumsfeld, Charlie Savage, Guantanamo Bay Naval Base, Office of Legal Counsel (DOJ), Geneva Conventions
Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties
Egyptian national Abdallah Higazy (see December 17, 2001), who has falsely confessed to owning a transceiver that may connect him to the 9/11 plot in order to save his family from being tortured (see December 27, 2001), is charged with making false statements connected to the 9/11 attacks. Higazy has given three different versions of how he obtained the radio; the FBI is sure he is lying about not being complicit in the plot. Three days after Higazy is charged, an airline pilot from Ohio claims the suspect transceiver as his own, and unknowingly vindicates Higazy. Higazy is released two days later, and a hotel security guard is eventually charged with lying to the FBI about the location of the radio. Higazy’s lawyer, Jonathan Abady, later says: “What if that pilot had not walked into the Millennium Hotel? We know that Mr. Higazy could have spent the rest of his life in prison.” In 2007, Higazy will say that he chose to confess to the ownership of the suspect transceiver because he knew the FBI could have his family turned over to Egyptian intelligence agents for torture. “I knew I couldn’t prove my innocence, and I knew my family was in danger,” he will recall. “If I say this device is mine, I’m screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And [FBI] Agent [Michael] Templeton made it quite clear that ‘cooperate’ had to mean saying something else other than this device is not mine.” Higazy’s subsequent lawsuit against the hotel (prompted by a hotel employee lying to the FBI about him) will eventually be settled out of court; his suit against the FBI will still be pending in October 2007 (see October 18, 2007). [Washington Post, 10/25/2007]
Justice Department lawyers John Yoo and Robert Delahunty send a classified memo to the chief legal adviser for the State Department, William Howard Taft IV. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the Justice Department’s interpretation of the War Crimes Act. According to Yoo and Delahunty, the War Crimes Act does not allow the prosecution of accused al-Qaeda and Taliban suspects. Yoo will cite this memo in a 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [American Civil Liberties Union [PDF], 1/28/2009 ]
After three months, none of the allegations that the US made against the six men arrested in Bosnia in October 2001 (see January 18, 2002) have been proven, and the Supreme Court of the Muslim-Croat Federation orders their release. The US refused to provide evidence in court that the men were tied to al-Qaeda, as alleged. After the Supreme Court’s ruling, the Human Rights Chamber for Bosnia-Herzegovina (BiH) says that four of the six men cannot be expelled from the country until it has ruled on their appeal against the retraction of their citizenship. A hearing is scheduled for February 11. [BBC, 1/22/2002; CNN, 1/18/2004; Washington Post, 5/11/2004] At least some of the six figures do seem to have ties to al-Qaeda. For instance, Saber Lahmar was convicted in Bosnia of attempting to blow up the US embassy there in 1997 (see 1996 and After). But the evidence against them is based on communications intercepts, and the US is unwilling to release any details about that information. The hearing never takes place, because the US takes custody of the men as they are released and renditions them to the Guantanamo prison (see January 18, 2002).
Saber Lahmar. [Source: US Defense Department]The US renditions six suspects to Guantanamo, even though their cases are under appeal in Bosnia. On October 8, 2001, Bosnian police arrested Bensayah Belkacem, an Algerian given Bosnian citizenship and living in Bosnia. US intelligence intercepted numerous phone calls between Abu Zubaida and other al-Qaeda leaders and Belkacem (see October 8, 2001). On October 16, a conversation was overheard in which US and British targets in Bosnia are mentioned, and a Bosnian associate of Belkacem’s named Saber Lahmar said to another associate, “Tomorrow we will start.” US and British embassies were shut down that night, and Lahmar and four associates - Al-Hajj Boudella, Lakhdar Boumediene, Mustafa Ait Idir, and Mohamed Nechle - were quickly arrested. Lahmar worked for the Saudi High Commission. In 1997 he was arrested and convicted of plotting to bomb the US embassy in Sarajevo, but then pardoned and released by the Bosnian government (see 1996 and After). Boudella was an elite al-Qaeda training camp trainer in Afghanistan and Bosnia, then worked at the Benevolence International Foundation, which the US declared a terrorism financier after 9/11 (see 1993). Belkacem’s other associates worked for other charities such as the Red Crescent society and Taibah International. [Time, 11/12/2001] On January 18, 2002, the Bosnian government determines they don’t have enough evidence to charge the six men since the US will not share details of its communications intercepts. A high court rules that the men are not allowed to be deported until their appeals are heard. [BBC, 1/22/2002] But the men are nonetheless released directly into the custody of US soldiers, who immediately fly them to the Guantanamo Bay prison. The handover is denounced as illegal by human rights groups. It is believed the US put intense pressure on Bosnia to hand them over. [BBC, 1/22/2002; New York Times, 1/23/2002] The Bosnian government, still not privy to the intercepts, will later clear them of all charges, but the US will continue to hold them in Guantanamo without revealing any of the evidence said to justify their detention. [Washington Post, 8/21/2006]
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
John Bellinger, the White House’s chief national security counsel, sends his supervisor, National Security Adviser Condoleezza Rice, what he thinks is a private memo with a blunt warning about the legality of the proposal to ignore the Geneva Conventions in interrogating terror suspects (see January 18-25, 2002). The proposal, Bellinger writes, will place Bush in direct breach of international law and threaten the most fundamental cooperation from allied governments. Faxes from other governments, even Britain, have been pouring into the State Department warning that they cannot turn over suspects to the US if the Bush administration withdraws from accepted legal norms. The Bellinger memo quickly finds its way into Vice President Cheney’s office, to Bellinger’s chagrin; Cheney is reportedly “concerned” about Belliger’s advice. Bellinger does not know until now that any documents prepared for Rice are always “routed outside the formal process” to Cheney. The reverse does not apply. Bellinger is unaware of just how systematically he is being cut out of the decision-making process. [Ledger (Lakeland FL), 10/24/2004; Washington Post, 6/24/2007]
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 ; American Civil Liberties Union [PDF], 1/28/2009 ]
Justice Department lawyer John Yoo sends a classified memo to White House counsel Alberto Gonzales. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo regards the application of international law to the United States (see January 22, 2002). [American Civil Liberties Union [PDF], 1/28/2009 ]
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 ]
The first court hearing concerning John Walker Lindh, takes place in Alexandria, Virginia. Lindh is allowed to meet with his lawyers for the first time. [Associated Press, 1/25/2002; CNN, 1/26/2002] The Christian Science Monitor will comment: “The court’s reputation for speedy trials, no-nonsense judges, and tough-on-crime jurors has earned it the nickname the ‘rocket docket.’ It’s one reason the US Justice Department chose this Virginia venue as the site to prosecute… Lindh, who is scheduled to appear in court here today for a bail hearing, and Zacarias Moussaoui, the alleged 20th Sept. 11 hijacker.” [Christian Science Monitor, 2/6/2002] In addition, the court is close to the home of the Spann family, related to CIA officer Johnny Spann, responsibility for whose death, according to some, is attributed to Lindh. [San Francisco Chronicle, 12/22/2001]
Secretary of State Colin Powell asks for a meeting with President Bush, hoping to dissuade him from abandoning the Geneva Conventions in the interrogation procedures involving terror suspects (see January 18-25, 2002). Powell is unaware that he and the State Department have been deliberately cut out of the decision-making process by the Office of the Vice President.
Memo Released to Undermine Powell - Before Powell can meet with the president, White House counsel Alberto Gonzales releases a memo that paints Geneva as “quaint” (see January 25, 2002) to the administration, in an attempt to anticipate and undermine Powell’s objections. Following up on the argument that the Geneva Conventions are “quaint,” Vice President Cheney’s chief counsel, David Addington, portrays Powell as a defender of “obsolete” rules devised for an earlier time. If Bush follows Powell’s lead, Addington warns, US forces would be obliged to provide athletic gear and commissary privileges to captured terrorists. State Department lawyer David Bowker later says that Powell never argued that al-Qaeda and Taliban detainees deserve the full privileges of prisoners of war; while each captive deserves a status review under Geneva, he believes few will qualify because the suspects do not wear uniforms on the battlefield or obey a lawful chain of command. Bowker recalls, “We said, ‘If you give legal process and you follow the rules, you’re going to reach substantially the same result and the courts will defer to you.’” The upshot of Bush’s decision to go with Gonzales’s opinion over Powell’s has the effect of relegating the State Department to the sidelines. A senior administration official will later recall: “State was cut out of a lot of this activity from February of 2002 on. These were treaties that we were dealing with; they are meant to know about that.” State’s senior legal adviser, William H. Taft IV, is shunned by the lawyers who dominated the detainee policy, officials say; some Bush conservatives privately call Taft too “squishy and suspect” to adequately fight terrorists, according to a former White House official. “People did not take him very seriously.” [Ledger (Lakeland FL), 10/24/2004; Washington Post, 6/24/2007]
Memo Prompts Media Criticism of Powell - As Gonzales’s memo begins to circulate around the government, Addington says to White House lawyer Timothy Flanigan, “It’ll leak in 10 minutes.” He is correct: on January 26, the conservative Washington Times prints a front-page article that features administration sources accusing Powell of “bowing to pressure from the political left” and advocating that terrorists be given “all sorts of amenities, including exercise rooms and canteens.” The article implies that Powell is soft on the nation’s enemies. Addington blames the State Department for leaking the memo, and says that the leak proves Taft cannot be trusted. Taft later recalls, “I was off the team.” Addington had marked him as an enemy, Taft will recall, but Taft had no idea he was at war. “Which, of course, is why you’re ripe for the taking, isn’t it?” he adds. [Alberto R. Gonzales, 1/25/2002 ; Washington Post, 6/24/2007]
Entity Tags: Timothy E. Flanigan, Geneva Conventions, David S. Addington, David Bowker, Colin Powell, Alberto R. Gonzales, Al-Qaeda, George W. Bush, Taliban, William Howard Taft IV, US Department of State, Office of the Vice President, Washington Times
Timeline Tags: Torture of US Captives, Civil Liberties
Vice President Cheney gives one of the first public indications that he and his office have a keen and active interest in expanding the power of the presidency (see January 21, 2001). Interviewed by ABC’s Cokie Roberts, Cheney openly discusses his interest in reversing the restraints placed on the presidency after Watergate and the Vietnam War. He calls the restraints “unwise compromises” that serve to “weaken the presidency and the vice presidency.” His job, he explains, is to reverse the “erosion of [presidential] powers and the ability of the president of the United States to do his job.” Cheney says he has laid out his case to President Bush, who agrees with his rationale and his agenda. “One of the things that I feel an obligation on—and I know the president does, too, because we talked about it—is to pass on our offices in better shape than we found them to our successors.” [Savage, 2007, pp. 75-76]
James Ho, an attorney-adviser to the Office of Legal Counsel (OLC), sends a classified memo to the OLC’s John Yoo. The memo, entitled “RE: Possible interpretation of Common Article 3 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War,” will remain secret, but according to the American Civil Liberties Union (ACLU), it is likely a legal interpretation of Common Article 3 of the Geneva Convention, the section addressing the treatment of prisoners of war. The ACLU believes the memo interprets the scope of prohibited conduct under Common Artlcle 3, and gives specificity to the phrases “outrages upon personal dignity” and “humiliating and degrading treatment.” It also believes that the memo determines that Geneva does not apply to conflicts with terrorist organizations. Yoo will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [American Civil Liberties Union [PDF], 1/28/2009 ; ProPublica, 4/16/2009]
Mark Crutcher. [Source: Life Dynamics]Members of the anti-abortion organization Life Dynamics call Planned Parenthood clinics in 49 states, pretending to be teenaged girls pregnant by older men, and use the clinics’ promises of confidentiality to accuse them of covering up sexual abuse. The group secretly records telephone conversations with some 800 receptionists and staff members, and then uses selectively edited snippets of the taped conversations in a national publicity campaign against Planned Parenthood. The intent of the organization is to discredit Planned Parenthood and other abortion providers, and to encourage lawsuits against them, according to information published on the organization’s Web site. Life Dynamics, based in Denton, Texas, claims that the tapes are “evidence” that Planned Parenthood and other women’s clinics are complicit in child sex abuse. The organization’s founder, Mark Crutcher, releases a report called “Child Predators,” which is picked up by, among other news outlets, Newsday and Fox News. The organization’s evidence fails to hold up under scrutiny by law enforcement officials and media outlets, and pro-choice attorneys and advocates raise questions about the legality of Life Dynamics’s tactics. The organization bills itself as a “political marketing agency” whose stated goal is to prevent women from obtaining abortions, even if they are legally entitled to them. Crutcher and the group have previously attempted to claim that abortions cause breast cancer, and that Planned Parenthood trafficked in human body parts; both claims have been solidly debunked. Roger Evans of Planned Parenthood notes: “No one has an obligation to report or to conduct an inquisition based on a phone call, because you have no idea who is on the other end and what the truth is. And in this case, [the] Life Dynamics hoax caller was scrupulously careful not to give a name.” He goes on to say that law enforcement officials who have investigated the Life Dynamics charges “have been satisfied that people are conscientiously complying with the law as it’s written, and that people are reporting when kids are in danger.” Life Dynamics denies that its covert recording of the conversations is a violation of any state or federal laws (though 13 states targeted by the organization have anti-wiretapping laws), and is working diligently to spread its story throughout the press, starting with right-wing advocacy groups. The magazine Citizen, published by James Dobson’s Christian group Focus on the Family, says in a cover story that the tapes will “bring down Planned Parenthood.” And Neal Horsley’s far-right Nuremberg Files Web site features a story by Massachusetts attorney Greg Hession that outlines a strategy for “pro-life attorneys” to pursue in filing criminal and civil charges against Planned Parenthood. [Womens ENEws, 11/10/2002] (Horsley is an acknowledged advocate for the murder of abortion providers—see January 1997.) [Feminist Women's Health Center News, 2010] Evans says that if Life Dynamics achieves its stated objective of forcing medical providers to report all instances of teenagers’ sexual activity, “The system would be deluged,” and, in the absence of confidentiality, he predicts “teenagers would stop coming in.” [Womens ENEws, 11/10/2002]
In a memo concurrent with the presidential declaration that the Geneva Convention does not apply to Taliban or al-Qaeda fighters (see February 7, 2002), Jay Bybee, the head of the Justice Department’s Office of Legal Counsel, sends a memo to White House counsel Alberto Gonzales. Bybee concludes that President Bush has the legal authority to conclude that Taliban fighters have no rights to prisoner of war status as defined under the Geneva Conventions, because the Taliban lack an organized command structure, do not wear uniforms, and do not consider themselves bound by Geneva. It also concludes that there is no need for the US to convene Article 5 tribunals under Geneva to determine the status of the Taliban, as Bush’s presidential determination of their status eliminates any doubt under domestic law. [US Department of Justice, 2/7/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ]
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 ; 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]
Accused al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri (see December 12, 2001) is charged with one count of credit card fraud. He has already been arrested on a material witness warrant pertaining to the investigation of the 9/11 attacks; since January, he has been in detention in New York City, where most of the investigations are centered. [Bradley Scout, 3/29/2002] According to the FBI, phone records link al-Marri with a phone number in the United Arab Emirates that was used by 9/11 hijacker Mohamed Atta and one of his associates, Ramzi bin Al-Shibh. Al-Marri’s lawyer, Richard Jasper, says there is no evidence linking al-Marri to the phone calls by Atta and bin al-Shibh, al-Marri merely attempted three phone calls to the same number. “Attempted—I don’t know what that means, do you?” Jasper says. “It’s the thinnest of inferences, actually. If you read the affidavit carefully there’s no direct or indirect evidence he made the calls. How do we know there wasn’t some kind of mistaken call or some flaw in recovering the numbers?” Al-Marri has family members in the UAE. [Chicago Sun-Times, 3/21/2002]
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).
The US Senate refuses to pass an amendment to the Voting Rights Act (VRA—see August 6, 1965, 1970, 1975, April 22, 1980, and June 29, 1989) that would restore voting rights to convicted felons who have completed their sentences throughout the nation. The amendment was strongly opposed by senators from former Confederate states, who voted 18-4 against the measure, and the amendment fails on a floor vote, 63-31. [US Senate, 2/14/2002 ; ProCon, 10/19/2010]
A memorandum sent by the Justice Department to Department of Defense General Counsel William J. Haynes states that the military commissions intended to try enemy combatants are “entirely creatures of the president’s authority as commander in chief… and are part and parcel of the conduct of a military campaign.” [Office of Assistant Attorney General, 2/26/2002 ] This raises questions regarding the independence of the commissions. The US government will try the detainees itself, which is why Human Rights Watch later concludes, “Under the rules, the president, through his designees, serves as prosecutor, judge, jury, and, potentially, executioner.” [Human Rights Watch, 1/9/2004] Amnesty International will similarly criticize the fact that “the commissions will lack independence.” [Amnesty International, 10/27/2004] Trial by a court that is not in complete independence from a government acting as a prosecutor is a violation of the defendants’ human rights. Article 14(1) ICCPR [International Covenant on Civil and Political Rights] states: “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law.” Article 14(5) ICCPR furthermore grants “[e]verybody convicted of a crime… the right to his conviction and sentence being reviewed by a higher tribunal according to law.” But in the plans of the US government such a right is not foreseen. According to Human Rights Watch, “There is no appeal to an independent civilian court, violating a fundamental precept of international law as well as settled practice in the US military justice system.” [Human Rights Watch, 1/9/2004] The Justice Department memorandum advises that “incriminating statements may be admitted in proceedings before military commissions even if the interrogating officers do not abide by the requirements of Miranda.” The “Miranda warnings” are normally a prerequisite for allowing incriminating declarations by a defendant to the proceedings of a criminal trial.
Vice President Dick Cheney’s office refuses to disclose information about trips taken by its employees that are paid for by private financiers. The rationale is that since the Office of the Vice President (OVP) is not strictly part of the executive branch (see 2003), it need not disclose the information under the laws applying to that branch of the federal government. From this time forward, Cheney’s office repeatedly responds to inquiries by the Office of Government Ethics with letters stating “that it is not obligated to file such disclosure forms for travel funded by non-federal sources,” Kate Sheppard and Bob Williams of the Center for Public Integrity will write in 2005. “The letters were signed by then-Counsel to the Vice President David Addington…. Addington writes that the Office of the Vice President is not classified as an agency of the executive branch and is therefore not required to issue reports on travel, lodging and related expenses funded by non-federal sources.” Judicial Watch’s Tom Fitton will say that Cheney and his staff believe “the vice president is a constitutional office that is not subject to the laws that others in the executive branch are.” [Center for Public Integrity, 11/16/2005]
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).
Newly appointed US Attorney Todd Graves of Missouri (see October 11, 2001), already a co-chair of the Child Exploitation Subcommittee of the Attorney General’s Advisory Committee, and his office are subjected to a periodic Evaluation and Review Staff (EARS) evaluation by the Justice Department, and do very well. The EARS report finds that Graves is well regarded and respected by community leaders, agency personnel, and a majority of the federal judges in the district. The report finds that “the perception of the USAO [US Attorney’s Office] staff as to his performance is positive, even in this early stage of his tenure.” Graves is not slated for another review for four years, but by that point he will have been fired (see March 10, 2006). [US Department of Justice, Office of the Inspector General, 9/29/2008]
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 ] 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]
Pakistani President Pervez Musharraf says Saeed Sheikh, chief suspect in the killing of reporter Daniel Pearl, will not be extradited to the US, at least not until after he is tried by Pakistan. [Guardian, 3/15/2002] The US ambassador later reports to Washington that Musharraf privately said, “I’d rather hang him myself” than extradite Saeed. [Washington Post, 3/28/2002] Musharraf even brazenly states, “Perhaps Daniel Pearl was over-intrusive. A media person should be aware of the dangers of getting into dangerous areas. Unfortunately, he got over-involved.” [Hindu, 3/8/2002] He also says Pearl was caught up in “intelligence games.” [Washington Post, 5/3/2002] In early April, Musharraf apparently says he wants to see Saeed sentenced to death. Defense lawyers are appalled, saying Musharraf is effectively telling the courts what to do. [BBC, 4/12/2002] The Washington Post reports in early March that Pakistani “police alternately fabricate and destroy evidence, depending on pressure from above” [Washington Post, 3/10/2002] , and in fact Saeed’s trial will be plagued with problems.
A newspaper reports that the DEA study on Israeli “art students” determined the “students” all had “recently served in the Israeli military, the majority in intelligence, electronic signal intercept, or explosive ordnance units.” [Palm Beach Post, 3/11/2002]
President Bush refuses to allow DHS chief Tom Ridge to testify before Congress regarding the agency’s efforts to protect the nation. Bush’s rationale is that Ridge was on the White House staff before the department was created. Bush tells reporters, “Well, he’s not—he doesn’t have to testify; he’s a part of my staff, and that’s part of the prerogative of the Executive Branch of government. And we hold that very dear.… I’m not going to let Congress erode the power of the Executive Branch. I have a duty to protect the Executive Branch from legislative encroachment. I mean, for example, when the GAO [Government Accountability Office] demands documents from us, we’re not going to give them to them. These were privileged conversations. These were conversations when people come into our offices and brief us. Can you imagine having to give up every single transcript of what is—advised me or the Vice President? Our advice wouldn’t be good and honest and open. And so I viewed that as an encroachment on the power of the Executive Branch. I have an obligation to make sure that the presidency remains robust and the Legislative Branch doesn’t end up running the Executive Branch.” [White House, 3/13/2002; Dean, 2004, pp. 180]
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 ; Savage, 2007, pp. 148; American Civil Liberties Union [PDF], 1/28/2009 ; 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]
Attorney General Ashcroft announces a second US criminal indictment of Saeed Sheikh, this time for his role in the kidnapping and murder of Daniel Pearl. The amount of background information given about Saeed is very brief, with only scant reference to his involvement with Islamic militant groups after his release from prison in 1999. It only mentions is that he fought in Afghanistan with al-Qaeda in September and October 2001. The indictment and Ashcroft fail to mention Saeed’s financing of the 9/11 attacks, and no reporters ask Ashcroft about this either. [CNN, 3/14/2002; Los Angeles Times, 3/15/2002]
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:
The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.
The Attention Slap: An open-handed slap aimed at causing pain and triggering fear.
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.
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.
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.
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]
White House chief of staff Andrew Card instructs government agencies to be watchful about safeguarding records that might contain any “information that could be misused to harm the security of our nation and the safety of our people.” Card’s order does not define terms, and agency heads are encouraged to define such cited information as broadly as possible. As a result, many government agencies begin refusing Freedom of Information Act (FOIA) requests under a broadly, and often crudely, applied rubric of “national security.” Card’s order precipitates a cascade of new designations for non-classified information that agencies do not want to release, including “For Official Use Only,” “Sensitive but Unclassified,” “Not for Public Dissemination,” and others. The Congressional Research Service will later estimate that some 50 to 60 new designations are created by various executive agencies to keep information away from the public. In addition, some agencies allow any official or employee, from the agency head to the lowliest clerk, to designate a document as off-limits; all 180,000 employees of the Department of Homeland Security, for example, can designate a document “For Official Use Only” and thus keep it out of public hands. Reporter and author Charlie Savage will write in 2007: “There is no system for tracking who stamped it, for what reason, and how long it should stay secret. There is no process for appealing a secrecy decision.” Websites containing reams of government information are purged and sometimes shut down entirely. Periodic reports containing information that someone deems sensitive, or perhaps merely embarrassing, are terminated. FOIA requests are routinely stalled. Even such innocuous documents as the Defense Department’s personnel directory, formerly available for sale at the Government Printing Office, is now deemed unsafe for public consumption. The Environmental Protection Agency stops publishing chemical plants’ plans for dealing with disasters, perhaps protecting the public from inquisitive terrorists but certainly easing the pressure on the plants to keep their disaster preparation plans current and effective. The Defense Department stops selling topographic charts, used by, among others, airlines for creating flight charts and biologists for mapping species distribution, for “fear” that “those intending harm” might use the charts to plot attacks on US targets. Even old press releases written specifically for public distribution are retroactively classified. [Andrew Card, 3/19/2002; Savage, 2007, pp. 101-103]
FBI translator Melek Can Dickerson has been accused by co-worker Sibel Edmonds of shielding certain individuals from FBI surveillance. On this date Dickerson undergoes a polygraph test and passes. But the questions she is asked are reportedly vague and unspecific. “The polygraph unit chief admitted that questions directly on point could have been asked but were not,” one official is quoted in a report that is later released by the Justice Department’s Office of Inspector General. [Vanity Fair, 9/2005]
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 ]
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]
After years of battling Republican filibuster efforts and other Congressional impediments, the Bipartisan Campaign Reform Act of 2002 is signed into law. Dubbed the “McCain-Feingold Act” after its two Senate sponsors, John McCain (R-AZ) and Russ Feingold (D-WI), when the law takes effect after the 2002 midterm elections, national political parties will no longer be allowed to raise so-called “soft money” (unregulated contributions) from wealthy donors. The legislation also raises “hard money” (federal money) limits, and tries, with limited success, to eliminate so-called “issue advertising,” where organizations not directly affiliated with a candidate run “issues ads” that promote or attack specific candidates. The act defines political advertising as “electioneering communication,” and prohibits advertising paid for by corporations or by an “unincorporated entity” funded by corporations or labor unions (with exceptions—see June 25, 2007). To a lesser extent, the BCRA also applies to state elections. In large part, it supplants the Federal Election Campaign Act (FECA—see February 7, 1972, 1974, May 11, 1976, and January 8, 1980). [Federal Election Commission, 2002; Center for Responsive Politics, 2002 ; Connecticut Network, 2006 ]
Bush: Bill 'Far from Perfect' - Calling the bill “far from perfect,” President Bush signs it into law, taking credit for the bill’s restrictions on “soft money,” which the White House and Congressional Republicans had long opposed. Bush says: “This legislation is the culmination of more than six years of debate among a vast array of legislators, citizens, and groups. Accordingly, it does not represent the full ideals of any one point of view. But it does represent progress in this often-contentious area of public policy debate. Taken as a whole, this bill improves the current system of financing for federal campaigns, and therefore I have signed it into law.” [Center for Responsive Politics, 2002 ; White House, 3/27/2002]
'Soft Money' Ban - The ban on so-called “soft money,” or “nonfederal contributions,” affects contributions given to political parties for purposes other than supporting specific candidates for federal office (“hard money”). In theory, soft money contributions can be used for purposes such as party building, voter outreach, and other activities. Corporations and labor unions are prohibited from giving money directly to candidates for federal office, but they can give soft money to parties. Via legal loopholes and other, sometimes questionable, methodologies, soft money contributions can be used for television ads in support of (or opposition to) a candidate, making the two kinds of monies almost indistinguishable. The BCRA bans soft money contributions to political parties. National parties are prohibited from soliciting, receiving, directing, transferring, and spending soft money. State and local parties can no longer spend soft money for any advertisements or other voter communications that identify a candidate for federal office and either promote or attack that candidate. Federal officeholders and candidates cannot solicit, receive, direct, transfer, or spend soft money in connection with any election. State officeholders and candidates cannot spend soft money on any sort of communication that identifies a candidate for federal office and either promotes or attacks that candidate. [Legal Information Institute, 12/2003; ThisNation, 2012]
Defining 'Issue Advertisements' or 'Electioneering Communications' - In a subject related to the soft money section, the BCRA addresses so-called “issue advertisements” sponsored by outside, third-party organizations and individuals—in other words, ads by people or organizations who are not candidates or campaign organizations. The BCRA defines an “issue ad,” or as the legislation calls it, “electioneering communication,” as one that is disseminated by cable, broadcast, or satellite; refers to a candidate for federal office; is disseminated in a particular time period before an election; and is targeted towards a relevant electorate with the exception of presidential or vice-presidential ads. The legislation anticipates that this definition might be overturned by a court, and provides the following “backup” definition: any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate).
Corporation and Labor Union Restrictions - The BCRA prohibits corporations and labor unions from using monies from their general treasuries for political communications. If these organizations wish to participate in a political process, they can form a PAC and allocate specific funds to that group. PAC expenditures are not limited.
Nonprofit Corporations - The BCRA provides an exception to the above for “nonprofit corporations,” allowing them to fund electioneering activities and communications from their general treasuries. These nonprofits are subject to disclosure requirements, and may not receive donations from corporations or labor unions.
Disclosure and Coordination Restrictions - This part of the BCRA amends the sections of FECA that addresses disclosure and “coordinated expenditure” issues—the idea that “independent” organizations such as PACs could coordinate their electioneering communications with those of the campaign it supports. It includes the so-called “millionaire provisions” that allow candidates to raise funds through increased contribution limits if their opponent’s self-financed personal campaign contributions exceed a certain amount.
Broadcast Restrictions - The BCRA establishes requirements for television broadcasts. All political advertisements must identify their sponsor. It also modifies an earlier law requiring broadcast stations to sell airtime at its lowest prices. Broadcast licensees must collect and disclose records of purchases made for the purpose of political advertisements.
Increased Contribution Limits - The BCRA increases contribution limits. It also bans contributions from minors, with the idea that parents would use their children as unwitting and unlawful conduits to avoid contribution limits.
Lawsuits Challenge Constitutionality - The same day that Bush signs the law into effect, Senator Mitch McConnell (R-KY) and the National Rifle Association (NRA) file lawsuits challenging the constitutionality of the BCRA (see December 10, 2003). [Legal Information Institute, 12/2003]
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).
A small team of contractors from the private security firm Blackwater is deployed inside Afghanistan, as a result of a $5 million contract between Blackwater and the CIA (see 2002 and 2002). The contractors provide security for the CIA at the agency’s station in Kabul and at “The Alamo,” a mud fortress in Shkin, along the Afghanistan-Pakistan border. In May, Blackwater founder and owner Erik Prince, a former Navy SEAL, will fly to Afghanistan to help expand operations. The Kabul and Shkin deployments are the first in a long, profitable relationship between the CIA and Blackwater. The relationship stems from a long friendship between Prince and Alvin “Buzzy” Krongard, the CIA’s executive director. Prince formed another part of the Blackwater group, Blackwater Security Consulting, in early 2002 along with former CIA operative Jamie Smith; Krongard provided the firm with one of its first government contracts. In 2006, Krongard will explain: “Blackwater got a contract because they were the first people that could get people on the ground. The only concern we had was getting the best security for our people. If we thought Martians could provide it, I guess we would have gone after them.” The relationship between Krongard and Blackwater will deepen after the first Afghanistan deployment, with Krongard making repeated visits to the Blackwater headquarters in North Carolina and even bringing his children along to use Blackwater’s firing range. Prince was denied a position with the CIA, but will maintain a close relationship with the agency, and will receive “green badge” access to most CIA stations around the world. Krongard will join Blackwater’s board of directors in 2007. [Nation, 8/20/2009]
Attorneys from the CIA’s Office of Legal Counsel meet with a legal adviser from the National Security Council (NSC) and with members of the Justice Department’s Office of Legal Counsel. The meeting concerns the CIA’s proposed interrogation plan for newly captured alleged al-Qaeda operative Abu Zubaida (see March 28, 2002, March 28-August 1, 2002, and April - June 2002). The lawyers mull over the legal restrictions surrounding the proposed interrogations. CIA records will show that the NSC’s legal counsel will brief National Security Adviser Condoleezza Rice, Deputy National Security Adviser Stephen Hadley, Counsel to the President Alberto Gonzales, Attorney General John Ashcroft, and the head of the Justice Department’s criminal division, Michael Chertoff, on the discussion. [Senate Intelligence Committee, 4/22/2009 ]
Entity Tags: John Ashcroft, Central Intelligence Agency, Alberto R. Gonzales, Abu Zubaida, Condoleezza Rice, Office of Legal Counsel (CIA), Stephen J. Hadley, Michael Chertoff, US Department of Justice, National Security Council
Timeline Tags: Torture of US Captives, Complete 911 Timeline
Bud Cummins, the newly installed US Attorney for the Eastern District of Arkansas (see January 9, 2002), does well in his first Evaluation and Review Staff (EARS) evaluation by the Justice Department. He is described as highly regarded by the judiciary in his district as well as by law enforcement, civil client agencies, and his office personnel. [US Department of Justice, Office of the Inspector General, 9/29/2008] The 2005 evaluation of Cummins and his office will indicate that the first evaluation was performed in August 2002, not April. [US House of Representatives, Committee of the Judiciary, 4/13/2007 ] A follow-up letter recognizes Cummins for effectively implementing the department’s national priorities, his office’s work in anti-terrorism initiatives, and its success in prosecuting firearms-related cases. Cummins and his office receive praise for working to combat child pornography and health care fraud. Cummins is lauded for his effective management techniques. [US House of Representatives, Committee on the Judiciary, 5/21/2007]
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
Captured al-Qaeda operative Abu Zubaida (see March 28, 2002), after recovering somewhat from three gunshot wounds inflicted during his capture, is transferred to a secret CIA prison in Thailand, presumably the revamped Vietnam War-era base in Udorn. [Weiner, 2007, pp. 297; Washington Post, 4/22/2009] In late 2006, after being transferred to Guantanamo, Zubaida will tell representatives of the International Committee of the Red Cross the story of his interrogation in Thailand (see October 6 - December 14, 2006). Zubaida becomes what CIA interrogator John Kiriakou will later call “a test case for an evolving new role… in which the agency was to act as jailer and interrogator of terrorism suspects” (see September 17, 2001).
New Tactics To Be Used - Officials from the military’s Survival, Evasion, Resistance, and Escape (SERE) program are involved in Zubaida’s interrogations. SERE officials have prepared a program of so-called “harsh interrogation methods,” many of which are classified as torture under the Geneva Conventions and the Convention Against Torture (see December 2001 and July 2002). A 2009 Senate report (see April 21, 2009) will find: “At some point in the first six months of 2002, JPRA [the Joint Personnel Recovery Agency] assisted with the preparation of a [redacted name], sent to interrogate a high-level al-Qaeda operative.” Further investigation will prove that the person whose name will be redacted is, indeed, Zubaida. According to a June 20, 2002 memo, the SERE officials’ participation in the Zubaida interrogation is “training.” JPRA psychologist Bruce Jessen, one of the authors of the JPRA torture methodology (see January 2002 and After), suggests that “exploitation strategies” be used against Zubaida. Jessen’s collaborator on the torture proposal, James Mitchell, is present for Zubaida’s torture; Mitchell plays a central role in the decision to use what the CIA calls an “increased pressure phase” against Zubaida. [Washington Post, 4/22/2009]
First Weeks Shackled and Sleep-Deprived - Zubaida will begin his narrative after his initial, and successful, interrogation by FBI agents (see Late March through Early June, 2002). He spends the first weeks of his captivity shackled to a chair, denied solid food, and kept awake. In Zubaida’s words: “I woke up, naked, strapped to a bed, in a very white room. The room measured approximately [13 feet by 13 feet]. The room had three solid walls, with the fourth wall consisting of metal bars separating it from a larger room. I am not sure how long I remained in the bed. After some time, I think it was several days, but can’t remember exactly, I was transferred to a chair where I was kept, shackled by [the] hands and feet for what I think was the next two to three weeks. During this time I developed blisters on the underside of my legs due to the constant sitting. I was only allowed to get up from the chair to go [to] the toilet, which consisted of a bucket. Water for cleaning myself was provided in a plastic bottle. I was given no solid food during the first two or three weeks, while sitting on the chair. I was only given Ensure [a nutrient supplement] and water to drink. At first the Ensure made me vomit, but this became less with time. The cell and room were air-conditioned and were very cold. Very loud, shouting type music was constantly playing. It kept repeating about every 15 minutes, 24 hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise. The guards were American, but wore masks to conceal their faces. My interrogators did not wear masks. During this first two to three week period I was questioned for about one to two hours each day. American interrogators would come to the room and speak to me through the bars of the cell. During the questioning the music was switched off, but was then put back on again afterwards. I could not sleep at all for the first two to three weeks. If I started to fall asleep one of the guards would come and spray water in my face.” In 2009, author Mark Danner will write: “One can translate these procedures into terms of art: ‘Change of Scenery Down.’ ‘Removal of Clothing.’ ‘Use of Stress Positions.’ ‘Dietary Manipulation.’ ‘Environmental Manipulation.’ ‘Sleep Adjustment.’ ‘Isolation.’ ‘Sleep Deprivation.’ ‘Use of Noise to Induce Stress.’ All these terms and many others can be found, for example, in documents associated with the debate about interrogation and ‘counter-resistance’ carried on by Pentagon and Justice Department officials beginning in 2002. Here, however, we find a different standard: the [proposed regulations say], for example, that ‘Sleep Deprivation’ is ‘not to exceed four days in succession,’ that ‘Dietary Manipulation’ should include ‘no intended deprivation of food or water,’ that ‘removal of clothing,” while ‘creating a feeling of helplessness and dependence,’ must be ‘monitored to ensure the environmental conditions are such that this technique does not injure the detainee.’ Here we are in a different place.”
CIA Team Moves In - The first weeks of Zubaida’s captivity are maintained by a small team of FBI agents and interrogators, but soon a team from the CIA’s Counterterrorism Center takes over. As Kiriakou will later recall: “We had these trained interrogators who were sent to his location to use the enhanced techniques as necessary to get him to open up, and to report some threat information.… These enhanced techniques included everything from what was called an attention shake, where you grab the person by their lapels and shake them, all the way up to the other end, which is waterboarding.” After the initial period of captivity, Zubaida is allowed to sleep with less interruption, stretched out naked and shackled on the bare floor. He is also given solid food for the first time in weeks—rice. A female doctor examines him and asks why he is still naked; he is, he will recall, “provided with orange clothes to wear.” The clothes only last a day, though: “[G]uards came into my cell,” Zubaida will recall. “They told me to stand up and raise my arms above my head. They then cut the clothes off of me so that I was again naked and put me back on the chair for several days. I tried to sleep on the chair, but was again kept awake by the guards spraying water in my face.”
Alternating Harsh and Lenient Treatments - For the next few weeks, Zubaida’s treatment veers from abusive to almost lenient. Mostly he is kept naked and confined to his cell, often suffering from intense cold in the frigid air-conditioned environment. One official later tells the ICRC that often he “seemed to turn blue.” Clothing is provided, then taken away. Zubaida will tell ICRC officials: “When my interrogators had the impression that I was cooperating and providing the information they required, the clothes were given back to me. When they felt I was being less cooperative the clothes were again removed and I was again put back on the chair.” For a time he is given a mattress to sleep on; sometimes he is “allowed some tissue paper to use when going to toilet on the bucket.” A month goes by with no interrogations. He will recall: “My cell was still very cold and the loud music no longer played but there was a constant loud hissing or crackling noise, which played 24 hours a day. I tried to block out the noise by putting tissue in my ears.” Then, “about two and half or three months after I arrived in this place, the interrogation began again, but with more intensity than before.” Danner will write that he isn’t sure if the wild swings in procedures are intentional, meant to keep Zubaida off-guard, or, as he will write, “resulted from disputes about strategy among the interrogators, who were relying on a hastily assembled ‘alternative set of procedures’ that had been improvised from various sources, including scientists and psychiatrists within the intelligence community, experts from other, ‘friendly’ governments, and consultants who had worked with the US military and now ‘reverse-engineered’ the resistance training taught to American elite forces to help them withstand interrogation after capture.” Danner notes that some CIA documents going back to the 1960s advocate subjecting the captive to sensory deprivation and disorientation, and instilling feelings of guilt, shame, and helplessness. The old CIA documents say that captives should be kept in a state of “debility-dependence-dread.” [New York Review of Books, 3/15/2009]
Justice Department's 'Ticking Bomb' Scenario - The August 2002 “golden shield” memo from the Justice Department (see August 1, 2002) will use what is often called the “ticking bomg scenario”—the supposition that a terror attack is imminent and only torture can extract time-critical information from a terrorist detainee to give US officials a chance to stop the attack—to justify Zubaida’s torture. According to CIA reports, Zubaida has information regarding “terrorist networks in the United States” and “plans to conduct attacks within the United States or against our interests overseas.” But Brent Mickum, who later becomes one of Zubaida’s attorneys, will say that he believes the Justice Department memo retroactively approved coercive tactics that had already been used. “If torture occurred before the memo was written, it’s not worth the paper it’s written on, and the writing of the memo is potentially criminal,” Mickum will note. [Washington Post, 4/22/2009]
Interrogations Continue in June - Sometime in June, Zubaida will once again be interrogated (see June 2002).
Entity Tags: Mark Danner, John Kiriakou, James Elmer Mitchell, Bruce Jessen, Al-Qaeda, Abu Zubaida, Bush administration (43), Central Intelligence Agency, Convention Against Torture, George Brent Mickum, Geneva Conventions, Federal Bureau of Investigation, Joint Personnel Recovery Agency, International Committee of the Red Cross
Timeline Tags: Torture of US Captives, Complete 911 Timeline
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 ; American Civil Liberties Union [PDF], 1/28/2009 ] The memo will be made public in early 2009 (see March 2, 2009).
At a luncheon for Republicans in Connecticut, President Bush boasts of the recent capture of alleged al-Qaeda operative Abu Zubaida (see March 28, 2002). Bush says: “The other day we hauled in a guy named Abu Zubaida. He’s one of the top operatives plotting and planning death and destruction on the United States. He’s not plotting and planning anymore. He’s where he belongs.” [White House, 4/9/2002] Bush is presumably aware that Zubaida is being tortured in Thailand (see Late March 2002 and April - June 2002).
Binyam Mohamed, a young British Muslim detained by Pakistani authorities while attempting to fly to London (see September 2001 - April 9, 2002), remains in Pakistani custody for two weeks before he is interrogated by an American FBI agent calling himself “Chuck.”
Denied Lawyer - Mohamed asks for a lawyer and Chuck replies, according to Mohamed: “The law’s changed. There are no lawyers. Either you’re going to answer me the easy way or I get the information I need another way.” Like other American intelligence and law enforcement agents, Chuck wants information about possible radioactive bombs or weapons in the hands of Islamist militants. “Every interrogator would ask questions about it,” a former CIA officer will later say.
Spoof Website - Mohamed unwittingly sets off alarms when he mentions having seen a spoof website with instructions on how to build a nuclear device—the instructions say that one can refine bomb-grade uranium by whirling a bucket around one’s head. In 2009, Mohamed will recall: “I mentioned the website to Chuck. It was obviously a joke: it never crossed my mind that anyone would take it seriously. But that’s when he started getting all excited.” Chuck begins accusing Mohamed of being in league with Osama bin Laden to construct a nuclear weapon: “Towards the end of April he began telling me about this A-bomb I was supposed to be building, and he started on about Osama bin Laden and his top lieutenants, showing me pictures and making out I must have known them.”
Harsh Methods - “He started asking me about operations and what type I had been trained for,” Mohamed will add. It is during this time that Mohamed is subjected to harsh, abusive interrogation methods: “For at least 10 days I was deprived of sleep. Sometimes the Pakistanis chained me from the top of the gate to the cell by my wrists from the end of one interrogation to the start of the next for about 22 hours. If I shouted, sometimes I would be allowed to use a toilet. Other times, they wouldn’t let me go and I would p_ss myself. They had a thick wooden stick, like a kind of paddle, which they used to beat me while I was chained. They’d beat me for a few minutes, then stop, then start again. They also carried out a mock execution. A guard put a gun to my head and said he was going to pull the trigger. They were saying, ‘This is what the Americans want us to do.’” [Daily Mail, 3/8/2009]
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]
Pentagon psychologist Bruce Jessen, who serves as the Joint Personnel Recovery Agency (JPRA)‘s senior psychologist for its SERE (Survival, Evasion, Resistance, and Escape) training program, releases an internal draft report for reverse-engineering SERE training techniques to be used against enemy detainees. SERE training teaches soldiers to resist torture inflicted on them by enemy captors. Jessen’s report, a follow-up to a previous report authored by him and fellow military psychologist James Mitchell (see January 2002 and After), calls for the creation of a secret “exploitation facility” that would be off-limits to oversight bodies such as the International Committee of the Red Cross, and would be kept clear of reporters. Jessen’s plan also describes the fundamentals of an “enhanced interrogation” methodology. According to a 2009 press report, it advocated techniques “strikingly similar to those that later surfaced at Abu Ghraib and elsewhere: nudity, stress positions, hoods, treatment like animals, sleep disruption, loud music and flashing lights, and exposure to extreme temperatures.” The techniques also include waterboarding, used 266 times against two high-value al-Qaeda detainees (see April 16, 2009 and April 18, 2009). The report notes: “Typically, those who play the part of interrogators in SERE school neither are trained interrogators nor are they qualified to be. Their job is to train our personnel to resist providing reliable information to our enemies.” However, senior JPRA and Pentagon officials will ignore Jessen’s caveats and authorize the application of SERE methods to the interrogations of al-Qaeda detainees (see April - June 2002). Three months later, JPRA will begin training CIA agents in SERE-derived techniques (see July 2002), including a two-day session on waterboarding (see July 1-2, 2002). Shortly after the training sessions, Pentagon general counsel William Haynes will ask JPRA for more information on SERE techniques. Haynes’s deputy, Richard Shiffrin, will later confirm “that a purpose of the request was to ‘reverse engineer’ the techniques.” [Agence France-Presse, 4/22/2009] In 2009, the press learns that Mitchell and Jessen are paid $1,000 a day to train military interrogators (see April 30, 2009).
The US Supreme Court agrees to review NOW v. Scheidler (see June 1986, September 22, 1995, and March 29 - September 23, 1997) on the basis of two technical issues raised by the defendants. The Court refuses to hear the defendants’ challenge that the First Amendment was violated by earlier rulings or that speech is at issue. The Court will determine whether women victimized by the violence of the anti-abortion advocates in the lawsuit can be protected from future crimes by an injunction as opposed to merely recompensed for the losses caused by the actions (see July 16, 1999), and whether it was appropriate to use the Racketeer Influenced and Corrupt Organizations (RICO) Act against defendants who claim their actions were prompted by religious or moral motivations. [National Organization for Women, 9/2002] The Court will overturn the decision on technical grounds (see February 28, 2006).
John McKay, the US Attorney for the Western District of Washington (see October 24, 2001), undergoes his first Evaluation and Review Staff (EARS) performance evaluation, as mandated by the Justice Department. The evaluation is positive, stating that “McKay was setting appropriate goals and priorities and was doing an outstanding job furthering interagency cooperation.… McKay was well respected by his staff, the judiciary, and all the law enforcement and civil agencies.” [US Department of Justice, Office of the Inspector General, 9/29/2008] A follow-up letter from the Executive Office for US Attorneys shows that McKay’s office garnered one of the highest cumulative scores (4.71 out of a possible 5) of all 93 US Attorneys’ offices. The letter singles out McKay’s work on border enforcement strategies and notes several areas in which McKay’s office displayed “best practices” in individual areas. McKay himself receives particular praise for his management of his office. Another follow-up letter effusively praises McKay’s work with anti-terrorism concerns, particularly his prosecution of several high-profile terrorism cases. McKay also receives recognition for outstanding work with white collar crime, firearms, child exploitation, environmental, and drug cases, and in implementing a new program to assist victims of fraud in receiving restitution. [US House of Representatives, Committee on the Judiciary, 5/21/2007]
The Bush administration formally withdraws the United States from the International Criminal Court (ICC). In a letter to Secretary-General of the UN Kofi Annan, US Undersecretary of State for Arms Control John Bolton writes: “This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.” Defense Secretary Donald Rumsfeld says, “The United States will regard as illegitimate any attempt by the court or state parties to the treaty to assert the ICC’s jurisdiction over American citizens.” The ICC dates back to the 1969 Vienna Convention on the Law of Treaties, and serves as the world’s first and most influential war crimes tribunal. The US did not become a signatory until former President Bill Clinton’s last day in office. [US Department of State, 5/6/2002; New York Times, 5/7/2002; American Forces Press Service, 5/7/2002; Carter, 2004, pp. 278; Organizations Coalition for the International Criminal Court, 1/2/2006] Bolton’s letter serves to both withdraw the US from the Rome Statute, which established the ICC, and relieves the US of its obligations under the 1969 Vienna Convention on the Law of Treaties. That agreement prohibits the signatories of international treaties from taking steps to undermine the treaties they sign, even if they have not ratified them. [New York Times, 5/7/2002]
US Will Not be 'Second-Guessed' - The Bush administration defends its action, contending that the treaty infringes on US sovereignty because, under its provisions, an international prosecutor answerable to no one could initiate politically motivated or frivolous suits against US troops, military officers or officials. [New York Times, 5/7/2002; BBC, 7/13/2002] “We do not want anything to do it,” an administration spokesman has said. The ICC is “unaccountable to the American people,” and “has no obligation to respect the constitutional rights of our citizens,” Rumsfeld says. Secretary of State Colin Powell says the ICC undermines US judicial sovereignty and the US could not be held accountable to a higher authority that might try “to second-guess the United States after we have tried somebody.… We are the leader in the world with respect to bringing people to justice.… We have supported a tribunal for Yugoslavia, the tribunal for Rwanda, we’re trying to get the tribunal for Sierra Leone set up.… We have the highest standards of accountability of any nation on the face of the Earth.” [American Forces Press Service, 5/7/2002; Carter, 2004, pp. 278]
'On the Wrong Side of History' - Others do not share the administration’s rationale. Amnesty International’s Alex Arriaga says: “It’s outrageous. The US should be championing justice. It shouldn’t be running it down.” Judge Richard Goldstone, the first chief ICC prosecutor at the war crimes trials surrounding the former Yugoslavia, adds, “The US have really isolated themselves and are putting themselves into bed with the likes of China, Yemen, and other undemocratic countries.” Kenneth Roth of Human Rights Watch says: “The administration is putting itself on the wrong side of history. Unsigning the treaty will not stop the court. It will only throw the United States into opposition against the most important new institution for enforcing human rights in fifty years. The timing… couldn’t be worse for Washington. It puts the Bush administration in the awkward position of seeking law-enforcement cooperation in tracking down terrorist suspects while opposing an historic new law-enforcement institution for comparably serious crimes.” [Carter, 2004, pp. 278]
Pim Fortuyn. [Source: GlamBoy69 (.com)]Dutch animal rights activist Volkert van der Graaf guns down Pim Fortuyn, a right-wing anti-immigration candidate for prime minister of the Netherlands, outside a radio station in Hilversum. Van der Graaf, the founder of Zeeland’s Animal Liberation Front (ALF) chapter before he moved on to found Milieu Offensief (Environment Offensive), had spent most of his activism filing lawsuits against large farming interests. A Milieu Offensief spokesman tells a reporter, “His weapon was the law.” Some officials believe that van der Graaf had become increasingly frustrated with his failures to effect change through legal avenues; documents found in his home indicate that he has connections to a recent outbreak of “release attacks” on a mink factory and a poultry farm, and has the floor plans of three of Fortuyn’s fellow List Party candidates for Parliament, apparently as part of further assassination plots. Fortuyn’s death at the hands of an “ecoterrorist” sets off a wave of angry editorials in European newspapers, most of which have been warning of such violence for years. Van der Graaf may have been unaware that Fortuyn was a dog lover whose environmental views were more moderate than his immigration stance; he was almost certainly aware of Fortuyn telling an activist, “I’m sick to death of your environmental movement.” [Southern Poverty Law Center, 9/2002]
Salon reports on the Israeli “art student spy ring.” All the “students” claim to have come from either Bezalel Academy or the University of Jerusalem. An examination of the Bezalel database shows that not a single “art student” appears to have attended school there. There is no such thing as the University of Jerusalem. In fact, the article points out that the sheer sloppiness and brazenness of the spy operation appears to be a great mystery, especially since the Mossad is renowned as one of the best spy agencies in the world. One government source suggests a theory to Salon that the “art students” were actually a smoke screen. They were meant to be caught and connected to DEA surveillance so that a smaller number of spies also posing as art students could complete other missions. One such mission could have been the monitoring of al-Qaeda operatives. [Salon, 5/7/2002] Shortly afterwards, a major Israeli newspaper publishes a story about the spy ring, but does not come to any conclusions. [Ha'aretz, 5/14/2002]
The main generating plant of the Florida Power and Light Company in Jacksonville, Florida. [Source: State Archives of Florida]US Army Specialist Derek Lawrence Peterson is arrested after a Florida police officer, D. F. Valiante, pulls him over for speeding and discovers a wide range of incriminating materials in his truck. Peterson is stopped for speeding in Jacksonville, Florida, by a local deputy sheriff. The deputy is “amazed to find the truck’s driver dressed all in black, wearing a pistol in a shoulder holster and plastic pads on his elbows and knees. In the truck also were large knives, a 12-gauge shotgun, shotgun and pistol ammunition, four ammo magazines, a six-volt battery, duct tape, speaker wire, and parts of an explosive device.” However, the officer is shocked to find the suspect is a soldier on leave from Fort Stewart, Georgia. Shortly after the arrest, the officer realizes he spotted the exact same truck 30 minutes earlier, backing up to the main gate of the nearby Florida Power and Light station. When he and fellow officers visit the power station, they discover footprints on a dirt road leading to an explosive device planted underneath some power lines. Valiante will later say that after informing Peterson of his rights while taking him into custody, Peterson “advised me that he was on the power plant property to practice recon tactics.” According to the Savannah Morning News, “Peterson allegedly told police he had placed a Hoffman explosive device, equal in power to a half-stick of dynamite. He had planned to detonate the explosive but was worried that he would be injured in the blast.” Peterson will be held on a $5 million bond and will eventually receive probation on June 9, 2002. Hank Coxe, Peterson’s attorney, will later say that his client’s case “had been blown out of proportion because police initially suspected Peterson’s acts were related to terrorism.” It remains unclear as to why Peterson would use such dangerous methods in order to practice reconnaissance tactics, or how he is able to avoid a thorough prison sentencing. [Florida Times-Union, 5/14/2002; Savannah Morning News, 5/16/2002; Florida Times-Union, 6/8/2002; Marrs, 9/1/2006, pp. 436]
The FBI takes Jose Padilla to New York where he is detained at the Metropolitan Correctional Center (MCC). The District Court for the Southern District of New York appoints Donna R. Newman as his defense attorney. [Jose Padilla v. George W. Bush et al., 12/4/2002 ]
The CIA believes that recently captured al-Qaeda operative Abu Zubaida (see March 28, 2002) is withholding “imminent threat information” from his US interrogators. To that end, the CIA sends attorneys from its Office of General Counsel to meet with Attorney General John Ashcroft, National Security Adviser Condoleezza Rice, Rice’s deputy Stephen Hadley, White House counsel Alberto Gonzales, and other senior White House aides to discuss what the Senate Intelligence Committee will later term “the possible use of alternative interrogation methods that differed from the traditional methods used by the US military and intelligence community” (see April 2002). The CIA proposes several “alternative” methods that equate to torture, including waterboarding, for Zubaida. After the meeting, the CIA asks the Justice Department’s Office of Legal Counsel (OLC) to prepare an opinion about the legality of the proposed interrogation methods. The CIA provides the OLC with, in the committee’s words, “written and oral descriptions of the proposed techniques.” The CIA also provides the OLC with information about the medical and psychological effects of the military’s Survival, Evasion, Resistance, and Escape (SERE) training, which trains soldiers how to counter and resist torture and harsh interrogation techniques (see December 2001). [Senate Intelligence Committee, 4/22/2009 ; BBC, 4/23/2009] Meanwhile, the CIA will send Zubaida to Thailand for torture (see March 2002 and April - June 2002).
A federal appeals court in San Francisco rules that anti-abortion organizations who engage in the practice of distributing posters targeting abortion providers (see 1995 and After) are illegally threatening the lives and well-being of the people they are targeting. The 6-5 verdict also rules that Web sites such as The Nuremberg Files (see January 1997), which list doctors’ names and addresses and “lines out” the names of those doctors who are murdered, also threaten the lives of the named doctors. The defendants unsuccessfully claimed they were engaging in constitutionally protected political advocacy; the plaintiffs—four doctors and two health clinics—argued that the speech in question encouraged violence against abortion providers. The verdict overturns a previous three-judge ruling by the same court and reinstates a $109 million award for the plaintiffs. Writing for the majority, Judge Pamela Ann Rymer states: “While advocating violence is protected, threatening a person with violence is not.… This is not political hyperbole. They were a true threat.” Maria Vullo, a lawyer for the plaintiffs, says the essence of the decision is rejection of threatening speech. Of the “political advocacy” practiced by the defendants, Vullo says, “It’s really terrorism.” Christopher Ferrara, a lawyer for the defendants, says his clients will appeal the decision to the Supreme Court. “This is a threat case without any identifiable threat,” he says. “We’re found liable for the format we chose.” [New York Times, 5/17/2002] In spite of the verdict, the practice will continue (see January - April 2003, Fall 2009, and September 13, 2010).
A British MI5 officer calling himself “John” visits Muslim terror suspect Binyam Mohamed while Mohamed is in Pakistani custody (see April 10-May, 2002). Mohamed has already been extensively interrogated by Americans and tortured by his Pakistani captors. John, whom later court documents show is fully aware of what has been done to Mohamed, is accompanied by another man, whom Mohamed believes is either British or American. The American interrogators have already threatened to “rendition” Mohamed “somewhere where I would be tortured far worse, like Jordan or Egypt,” he will later recall. “I was given a cup of tea and asked for one sugar. The other guy told me, ‘You’ll need more than one sugar where you’re going.’” The interrogation centers on Mohamed’s knowledge of nuclear devices that Islamist militants might have, and he is asked for more details about the “spoof” Web site he had earlier mentioned. “They asked me about the A-bomb website and I told them it was a joke,” he says. “They wanted to know everything about my life in the UK and I gave them all the information I had. Later I realized that was part of my undoing: I told them the area I lived in had 10,000 Moroccans and was known as Little Morocco. The feedback I got later from the Americans was that because the Brits told them I had lived in a Moroccan area, they thought Moroccans would be more likely to make me talk. At the same time, they thought I must know something about what Moroccans were up to in London.” It is at this time that his American and British interrogators begin threatening to send him to Morocco to be interrogated and tortured. MI5 concludes, according to its own documents later revealed in court, that Mohamed and another prisoner are both “lying to protect themselves” and “evidently holding back.” It is during this period that MI5 begins supplying the Americans with questions and information to use during interrogation (see February 24, 2009). “John told me that if I cooperated he’d tell the Americans to be more lenient with my treatment,” Mohamed will later recall. In a confidential memo written by John to his superiors, the British agent writes: “I told Mohammed [sic] that he had an opportunity to help us and help himself. The US authorities will be deciding what to do with him and this would depend to a very large degree on his cooperation—I said that I could not and would not negotiate up front, but if he persuaded me he was cooperating fully then (and only then) I would explore what could be done for him with my US colleagues.… While he appeared happy to answer any questions, he was holding back a great deal of information on who and what he knew in the UK and in Afghanistan.” In July, Mohamed will be flown to Rabat, Morocco (see July 21, 2002 -- January 2004). [Daily Mail, 3/8/2009]
Judge Robert G. Doumar of the US District Court for the Eastern District of Virginia in Norfolk, rules in favor of “enemy combatant” Yaser Esam Hamdi’s Federal Public Defender (FPD) and orders the government to grant the FPD access to Hamdi “because of fundamental justice provided under the Constitution.” Doumar orders that the meeting take place, unmonitored, on June 1, 2002. The government files a motion for stay pending appeal two days later, which is granted on June 4 by the Court of Appeals for the Fourth Circuit. [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 6/24/2002; Washington Post, 1/9/2003]
US troops raid two houses near Gardez in the village of Kirmati. Five Afghan men are arrested: Mohammad Naim and his brother Sherbat; Ahmadullah and his brother Amanullah; and Khoja Mohammad. They are tied up, blindfolded, and taken to Bagram. “They threw us in a room, face down,” Naim later recalls. After a while, they are separated and he is taken to another room and ordered to strip. “They made me take off my clothes, so that I was naked.… A man came, and he had some plastic bag, and he ran his hands through my hair, shaking my hair. And then he pulled out some of my hair, some hair from my beard, and he put it in a bag.” Human Rights Watch later says it believes this was done to build a DNA database. Mohammad Naim recalls his treatment as humiliating, especially being photographed naked. “The most awful thing about the whole experience was how they were taking our pictures, and we were completely naked. Completely naked. It was completely humiliating.” Sixteen days later, the five men are released. According to Sherbat, an American apologizes to them and promises they will be receive compensation. “But we never did,” he says a year later. An interpreter gives them the equivalent of 70 US cents to buy tea. When they return, they find their homes looted and most of their valuable possessions gone. On March 10, 2003, almost a year after his release, Ahmadullah says he suffers from continuing anxiety as a result of his experience. “When we were there [at Bagram], I was so afraid they were going to kill me. Even now, having come back, I worry they will come and kill me.… I have to take medication now just to sleep.” [Human Rights Watch, 2004]
Veteran AT&T technician Mark Klein (see July 7, 2009) is startled when he receives an email informing him and his colleagues that a representative from the National Security Agency (NSA) will soon arrive to conduct “some kind of business.” Klein works at the Geary Street facility in San Francisco, helping provide Internet, VoIP (voice over Internet Protocol), and data transport between the US and the Far East. Klein and his supervisor, Don Henry, soon learn that one of their colleagues, one of AT&T’s senior “field support specialists” whom Klein will only identify as “Ski,” is to be interviewed by the NSA for a security clearance. Ski is slated to begin working in an NSA-operated “secure facility” at AT&T’s Folsom Street facility in San Francisco. [PBS Frontline, 5/15/2007; Klein, 2009, pp. 22-25] Klein later says of the NSA visit: “That struck me as a little odd to begin with, because I remember from back in the ‘70s, the NSA is not supposed to be doing domestic spying, so what were they doing in an AT&T company office? It struck me as odd, but I didn’t know anything more about it, so I just let it lie and waited for the guy to come.” Klein will later describe the NSA representative as “closemouthed and unsmiling, and he did his business.” Klein decides that the NSA visit was a one-time affair, and he thinks no more of it for the time being. [PBS Frontline, 5/15/2007]
The Bush administration submits a proposed resolution to the UN Security Council that would grant indefinite immunity from prosecution by the International Criminal Court (ICC) (see July 17, 1998) to all UN peacekeeping military personnel who are from nations that do not accept the court’s jurisdiction. The proposal appeals to Article 16 of the Rome Statute which stipulates that the UN Security Council can grant deferrals on a temporary, case-by-case basis for nationals accused of war crimes who are from countries not party to the treaty. The US recommends that this provision for conditional immunity be universally pre-applied to all cases involving US military personnel engaged in UN peacekeeping. Immunity would be granted for a period of 12 months—but automatically and unconditionally renewed every year. As such, US troops would effectively be exempt from the jurisdiction of the ICC since it would take a UN Security Council resolution to end the automatic renewals and since the US holds veto power in the council. [New York Times, 5/7/2002; Boston Globe, 5/23/2002; Boston Globe, 7/1/2002; Independent, 7/4/2002] The US proposal is backed by threats that the US will withdraw its troops from international peacekeeping missions, starting with Bosnia (see June 30, 2002), and block funds to those missions as well. [Boston Globe, 5/23/2002; Agence France-Presse, 7/9/2002]
Former FBI translator Sibel Edmonds files a lawsuit against the Justice Department. She alleges that the government leaked confidential information about her to the media in violation of the Privacy Act, and that it also violated her free speech and due process rights when it fired her in retaliation for her having reported possible illegal activity by co-worker Melek Can Dickerson and other security and management problems in the FBI’s language department. She is suing for monetary damages and reinstatement of her contract with the Bureau. [CNN, 7/7/2004] Dickerson and her husband Douglas Dickerson are subpoenaed in the case and the Justice Department is ordered by the court not to allow the couple to leave the country. [Anti-War (.com), 7/1/2004]
Accused al-Qaeda operative Abu Zubaida, having been tortured for months in a secret CIA prison in Thailand (see April - June 2002), has had a respite from the intensive interrogations he was initially subjected to. Now, though, the interrogations begin again, being what Zubaida will later recall as “more intens[e] than before.”
Intensified Interrogations - Zubaida will later tell officials of the International Committee of the Red Cross (ICRC): “Two black wooden boxes were brought into the room outside my cell. One was tall, slightly higher than me and narrow. Measuring perhaps in area [3 1/2 by 2 1/2 feet by 6 1/2 feet high]. The other was shorter, perhaps only [3 1/2 feet] in height. I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face.… I was then put into the tall black box for what I think was about one and a half to two hours. The box was totally black on the inside as well as the outside.… They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe. When I was let out of the box I saw that one of the walls of the room had been covered with plywood sheeting. From now on it was against this wall that I was then smashed with the towel around my neck. I think that the plywood was put there to provide some absorption of the impact of my body. The interrogators realized that smashing me against the hard wall would probably quickly result in physical injury.”
In the Box - Zubaida will give detailed recollections of his time in the box: “After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about three months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don’t know how long I remained in the small box, I think I may have slept or maybe fainted. I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress. I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me.… I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before. I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold. This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocation. During that week I was not given any solid food. I was only given Ensure to drink. My head and beard were shaved everyday. I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor. I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people.” Author Mark Danner will note that, according to the ICRC report, Zubaida’s impression of being a “guinea pig” is accurate. Some of the techniques used on him will not be reported again—the weeks of sitting in shackles, the coffin-sized boxes. Other techniques, such as the waterboarding, the permanent shackling, the “cold cell,” the incessant loud music and noise, will be used frequently on later captives, as will the constant light and the repeated beatings and physical abuse.
Everything Authorized by Senior CIA, White House Officials - Danner will remind readers that the CIA interrogators never acted alone or with any degree of independence. Everything that is done and said to Zubaida is monitored by other officials on-site—guards, interrogators, doctors—and by senior CIA officials in Washington. CIA interrogator John Kiriakou will later tell a reporter: “It wasn’t up to individual interrogators to decide, ‘Well, I’m gonna slap him. Or I’m going to shake him. Or I’m gonna make him stay up for 48 hours.’ Each one of these steps… had to have the approval of the deputy director for operations. So before you laid a hand on him, you had to send in the cable saying, ‘He’s uncooperative. Request permission to do X.’ And that permission would come.… The cable traffic back and forth was extremely specific. And the bottom line was these were very unusual authorities that the agency got after 9/11. No one wanted to mess them up. No one wanted to get in trouble by going overboard.… No one wanted to be the guy who accidentally did lasting damage to a prisoner.” Danner also notes that shortly after Zubaida’s capture, the CIA briefed top White House officials, including Vice President Dick Cheney, National Security Adviser Condoleezza Rice, and Attorney General John Ashcroft, who, ABC News will later report, “then signed off on the [interrogation] plan” (see April 2002 and After and July 2002). During this time the White House is working with Justice Department officials to produce the so-called “golden shield” memo (see August 1, 2002) that will, supposedly, protect the White House and CIA from criminal charges. Even after the memo’s adoption, CIA Director George Tenet continues to tell top White House officials about the specific procedures being used on Zubaida and other prisoners, including techniques such as waterboarding, to ensure that the White House considered them legal. As ABC will later report, the briefings of principals were so detailed and frequent that “some of the interrogation sessions were almost choreographed.” [New York Review of Books, 3/15/2009]
Saudi national Ahmed Muhammad al-Darbi flies from Dubai, United Arab Emirates, to Baku, Azerbaijan. While he is at customs at Baku airport waiting to be processed for entry, he is taken into custody by the local authorities. He will later say that when he was apprehended he did not know why the Azerbaijani authorities had taken him into custody and that he did not think beforehand that they would do so. He is held in Azerbaijani custody for about two months, later being handed over to the US (see August 2002). [al-Darbi, 7/1/2009]
Earth First! (see 1980 and After) activists Judi Bari and Darryl Cheney are acquitted of charges resulting from a pipe-bomb detonation in Bari’s Subaru station wagon. Bari and Cheney were driving to an Earth First! rally in 1990 when the pipe bomb exploded in Bari’s car. FBI agents charged them with conspiring to plant the bomb, but Bari and Cheney consistently denied any such plans or any knowledge of the bomb, saying they had been falsely painted as “ecoterrorists” (see 1970s) and in fact had been the targets of an assassination attempt. The jury finds that FBI and other law enforcement agents violated their civil rights, and frees them. [Southern Poverty Law Center, 9/2002]
A man named Mohammed Saeed is stabbed to death in Birmingham, England. The police seek two subjects for questioning about the murder. One of them is Rashid Rauf, who will later be involved in a plot to blow up transatlantic airliners (see August 10, 2006). Rauf is currently studying at Portsmouth University, but leaves there without graduating and travels to Pakistan, in an apparent attempt to avoid the police. In Pakistan, Rauf marries into the family of Maulana Masood Azhar, founder of the militant organization Jaish-e-Mohammed. Azhar is well known in Britain, and Rauf’s association with him raises his standing with potential British radicals. [BBC, 11/22/2008]
Accused murderer James Kopp, an anti-abortion advocate who allegedly shot Dr. Barnett Slepian (see October 23, 1998), is extradited by French authorities (see March 29, 2001) to the US after the American government assures them that Kopp will not face the death penalty. French law precludes suspects being extradited to foreign nations if the possibility exists that they will be executed. Kopp retains lawyer Paul Cambria to defend him, but also retains lawyer Bruce Barket because Barket, like Kopp, has strong anti-abortion views and wants to make the defense about abortion (Cambria wants to defend Kopp strictly on the evidence). Barket will not be allowed to represent Kopp in federal court. [National Abortion Federation, 2010] Months later, Kopp will confess to the murder (see November 21, 2002). He will be found guilty several months later (see March 17-18, 2003).
In an address to the nation, President Bush labels captured Islamist militant Abu Zubaida (see March 28, 2002) as “al-Qaeda’s chief of operations.” He says: “Among those we have captured is a man named Abu Zubaida, al-Qaeda’s chief of operations. From him, and from hundreds of others, we are learning more about how the terrorists plan and operate; information crucial in anticipating and preventing future attacks.” He warns, “[W]e now know that thousands of trained killers are plotting to attack us, and this terrible knowledge requires us to act differently.” [White House, 6/6/2002] This is, presumably, an oblique reference to the torture being inflicted on Zubaida and other detainees by CIA personnel (see April - June 2002). And by this time, senior government officials are aware that many intelligence officials believe that Zubaida’s importance and links to al-Qaeda have been overstated (see Shortly After March 28, 2002 and April 9, 2002 and After).
In a memo to Attorney General John Ashcroft, Jay Bybee, the head of the Justice Department’s Office of Legal Counsel (OLC), says that the US has the absolute right to detain US citizen Jose Padilla without charge and without legal representation (see May 8, 2002). Bybee also claims that the Posse Comitatus Act, which prevents the US military from operating inside the US itself, “poses no bar to the military’s operations in detaining Padilla.” [US Department of Justice, 6/8/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ] The day after this memo is issued, Padilla is classified as an “enemy combatant” and transferred to the US Naval Brig in Charleston, South Carolina (see June 9, 2002).
President George Bush designates Padilla, who has been in custody since May 8 (see May 8, 2002), an “enemy combatant” on advice from Defense Secretary Donald Rumsfeld and Attorney General John Ashcroft (see June 8, 2002), and directs Rumsfeld to see that he his taken into military custody. Padilla is taken to the Consolidated Naval Brig in Charleston, South Carolina sometime during the middle of that night. At the time of the transfer, Padilla was awaiting a judgment on a request made by his counsel to have the material witness warrant (see May 8, 2002) vacated. [CNN, 6/11/2002]
Attorney General John Ashcroft announces Padilla’s arrest (see June 9, 2002), claiming that “in apprehending [Padilla] as he sought entry into the United States,” the US government has “disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive ‘dirty bomb.’” [CBS News, 6/10/2002] Similarly, President George Bush says: “This guy, Padilla, is a bad guy. And he is where he needs to be—detained,” along with many other “would-be killers” as part of the war on terrorism. And Defense Secretary Donald Rumsfeld too, states that Padilla “was unquestionably involved in terrorist activities.” [CNN, 6/11/2002]
District Court Judge Robert Doumar determines that a separate habeas petition, filed by “enemy combatant” Yaser Esam Hamdi’s father, Esam Fouad Hamdi, has been properly filed as “next friend.” Judge Doumar appoints the Federal Public Defender (FPD) as counsel for Hamdi’s father, and orders the government to allow the public defender unmonitored access to Hamdi “for the same reasons articulated in the May 29, 2002 Order (see May 29, 2002).” The two petitions by the FPD and Hamdi Sr. are then consolidated into one. The meeting, to take place by June 14, will be “private between Hamdi, the attorney, and the interpreter, without military personnel present, and without any listening or recording devices of any kind being employed in any way.” Two days later, the government files a second motion for stay pending appeal, which is granted on June 14 by the Fourth Court of Appeals. [Order. Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 6/11/2002 ; Petition for Habeous Corpeous. Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 6/11/2002 ; Washington Post, 1/9/2003; US District Court of Eastern Virginia, 5/24/2004]
Donna R. Newman, attorney for “enemy combatant” Jose Padilla (see June 10, 2002), files a habeas corpus petition in the District Court for the Southern District of New York. Newman informs the court that she has been told by the government that she is not permitted to visit Padilla or to speak with him. She may write, but he might not receive the correspondence, she says. [Jose Padilla v. George W. Bush et al., 12/4/2002 ]
In Doha, Qatar, Defense Secretary Donald Rumsfeld says the purpose of detaining “enemy combatant” Jose Padilla (see June 10, 2002) is to obtain information from him. “Our interest, really, in this case, is not law enforcement,” he says. “It is not punishment. Because he was a terrorist or working with the terrorists, our interest at the moment is to try to find out everything he knows so hopefully we can stop other terrorist acts.” To illustrate his argument, Rumsfeld describes a recent situation in which intelligence gained from a prisoner in Kandahar, Afghanistan, led to the prevention of three terrorist attacks in Singapore (this may be a garbled reference to the killing of Mohammed Atef, see November 15, 2001 and November 15-Late December 2001). “If someone had said when we found that information or that person, ‘Well, now, let’s arrest the person and let’s start the process of punishing that person for having done what he did,’ we never would have gotten that information, and people would have died.” [American Forces Press Service, 6/11/2002]
9/11 Family Member Mindy Kleinberg speaks at the rally. [Source: 9/11: Press For Truth]Four family members of 9/11 victims collectively known as the “Jersey Girls” come to Congress to ask for an independent inquiry into the attacks. “It’s not about politics,” says one of the four, Kristen Breitweiser, as she sits in the office of Tim Roemer (D-IN), a member of the House Intelligence Committee. “It’s about doing the right thing. It’s about the safety of the nation.” President Bush has resisted the creation of an outside body, saying Congress can handle the job and suggesting that an additional investigation might interfere with national security. The Jersey Girls’ “march through… the halls of Congress,” as it is termed by the New York Times, is augmented by a rally held in Washington and attended by four busloads of relatives, friends, and supporters of the 9/11 victims. The Times reports that the Jersey Girls and other speakers at the rally say their call for an independent investigation is “nonpolitical and a matter of grave national concern.” Ellen Mariani of New Hampshire, whose husband was on the second plane to hit the World Trade Center, agrees with the Jersey Girls that an investigation is necessary. “I want a real investigation,” she says. “I don’t want lip service. I’m angry, and I’m not going away.” Jersey Girl Mindy Kleinberg, who like Mariani lost her husband in the attacks, says: “I want to be able to look into the eyes of my children, and tell them the evil is over there, that they are safe and that their country is secure. Nine months have passed and I still cannot do that. I do not have answers.” The four Jersey Girls—Breitweiser, Kleinberg, Lori Van Auken, and Patty Casazza—say they began working together about two months ago when they met one another in a local bereavement group. They say they were inspired by the example of Bob Monetti, who lost his son in the crash of Pan Am Flight 103 over Lockerbie, Scotland. Of Monetti, Van Auken remarks: “He said: ‘You’re not getting any answers. It’s time for a rally.’ We had no idea what we were doing, but we didn’t think we couldn’t do it.” Casazza says that in the last few months, they have become heavily involved in Washington politics. She says: “I hate to admit it, but before September 11, I understood politics vicariously through my husband. I have a new appreciation for the way Washington works.” Casazza says she worries about her son, who is home in the care of a babysitter. “I just want to feel safe again,” she says. [New York Times, 6/12/2002]
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