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Jose Padilla (see June 10, 2002)‘s public prosecutors file a document with the District Court for the Southern District in Lower Manhattan, which says Padilla had been declared an “enemy combatant” on grounds that “Citizens who associate themselves with the enemy and with its aid, guidance, and direction, enter this country bent on hostile acts, are enemy belligerents.” [CNN, 6/27/2002]
John Yoo, a lawyer with the Office of Legal Counsel (OLC), sends a classified memo to Daniel J. Bryant, another OLC lawyer. Yoo concludes that the Constitution “vests full control of the military operations of the United States to the president,” and denies Congress any role in overseeing or influencing such operations. The memo is consisent with an earlier Justice Department memo (see April 8, 2002). 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`, 6/27/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ] The memo ignores the Non-Detention Act, which states, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.” [ProPublica, 4/16/2009] It will be made public in early 2009 (see March 2, 2009).
A new interrogation unit arrives at the Bagram Collection Point (BCP), the improvised interrogation and holding facility at Bagram Air Force Base (see October 2001). The unit is headed by Lieutenant Carolyn Wood (see January 22, 2003-May 8, 2003), who leads a 13-man unit from the 525th Military Intelligence Brigade at Fort Bragg, NC. Wood’s unit is augmented by six Arabic-speaking reservists from the Utah National Guard. Many in the group, consolidated under Company A of the 519th Military Intelligence Battalion, are counterintelligence specialists with no background in interrogation. Only two of the soldiers have ever questioned actual prisoners. The training they receive is ad hoc and minimal. The noncommissioned officer in charge of the interrogators, Staff Sergeant Steven Loring, will later tell investigators, “There was nothing that prepared us for running an interrogation operation” like the one at Bagram. Nor are the rules of engagement clear. The platoon uses the standard interrogations guide, Section 34-52 of the Army Fleld Manual, and an order from Defense Secretary Rumsfeld to treat prisoners “humanely” and, when possible, within the strictures of the Geneva Conventions. But when President Bush determines in February 2002 that the Conventions do not apply to Taliban and al-Qaeda captives (see February 7, 2002), the interrogators decide they “could deviate slightly from the rules,” in the words of Utah reservist Sergeant James Leahy. “There was the Geneva Conventions for enemy prisoners of war, but nothing for terrorists,” Leahy will tell Army investigators. And the detainees, senior intelligence officers say, are to be considered terrorists until proved otherwise. One group of soldiers is later dubbed “the Testosterone Gang”; they decorate their tent with a Confederate flag, spend large amounts of time bodybuilding, and quickly earn a reputation as some of the most brutal of the soldiers at Bagram. [New York Times, 5/20/2005]
Military lawyers for a detainee believed to be Abu Zubaida (see March 28, 2002) lodge numerous complaints with unidentified White House officials over the torture of their client. Zubaida has been subjected to waterboarding and other abuses by CIA interrogators (see March 28, 2002-Mid-2004, March 28-August 1, 2002, Mid-April-May 2002, Mid-April 2002, and Mid-May 2002 and After). The complaints trigger a hastily arranged meeting between Vice President Cheney, White House counsel Alberto Gonzales, Cheney’s chief counsel David Addington, National Security Adviser Condoleezza Rice, and a number of officials from the Defense and State Departments. The discussion centers on the production of a legal memo specifically for the CIA that would provide retroactive legal immunity for the use of waterboarding and other illegal interrogation methods. According to a subsequent investigation by the Justice Department (see February 22, 2009), the participants in the discussion believe that the methods used against Zubaida are legal because on February 7, 2002, President Bush signed an executive order stating that terrorists were not entitled to protections under the Geneva Conventions (see February 7, 2002). Nevertheless, the participants agree that methods such as waterboarding probably violate international and domestic laws against torture, and therefore the CIA and the Bush administration would both benefit from a legal opinion stating what techniques are legal, and why they do not fit the legal definition of torture. The meeting results in the production of the so-called “Golden Shield” memo (see August 1, 2002). [Public Record, 2/22/2009]
Entity Tags: US Department of State, Bush administration (43), Alberto R. Gonzales, Abu Zubaida, Central Intelligence Agency, US Department of Justice, Condoleezza Rice, Geneva Conventions, David S. Addington, Richard (“Dick”) Cheney, George W. Bush, US Department of Defense
Timeline Tags: Civil Liberties
Kamal Bourgass, a radical who will go on to be involved in an alleged ricin plot and kill a policeman (see January 5, 2003), is arrested for stealing two pairs of jeans in East London. He is taken to a police station, interviewed, charged, and fined £70 (about $110) by a magistrate. However, according to authors Sean O’Neill and Daniel McGrory, “His immigration status as an illegal overstayer [is] not discovered, because on the night he [is] detained there [are] no immigration officers on duty in London with whom his name could [be] cross-referenced.” The jeans were apparently stolen as a part of a terrorism fundraising racket run out of London’s Finsbury Park mosque; members of the racket steal clothes and then sell them on a market stall. British authorities are aware of various illegal financial activities at the mosque (see 1995-April 21, 2000), but what they know of Bourgass at this point is unclear. [O'Neill and McGrory, 2006, pp. 243]
US military instructor Joseph Witsch, who is helping craft “extreme” methods of interrogation—torture—for use against captured terror suspects, acknowledges that some of the techniques being developed come from torture inflicted on captured US servicemen in previous conflicts, including those used by Chinese interrogators against US soldiers captured during the Korean War (see December 2001). “We can provide the ability to exploit personnel based on how our enemies have done this type of thing over the last five decades,” Witsch writes in a classified memo. [Washington Post, 4/22/2009]
Joint Personnel Recovery Agency logo. [Source: US Air Force]The Joint Personnel Recovery Agency (JPRA), the Pentagon agency tasked with advising the Defense Department on the use of harsh interrogation techniques—torture—against suspected terrorists in US custody (see December 2001), sends an unsigned memo to the Pentagon’s chief counsel, William Haynes, advising him that the use of such methods would constitute “torture,” and would produce “unreliable information” from torture victims.
Memo Warned of Torture Would Produce Bad Information - “The requirement to obtain information from an uncooperative source as quickly as possible—in time to prevent, for example, an impending terrorist attack that could result in loss of life—has been forwarded as a compelling argument for the use of torture,” the document reads. “In essence, physical and/or psychological duress are viewed as an alternative to the more time-consuming conventional interrogation process. The error inherent in this line of thinking is the assumption that, through torture, the interrogator can extract reliable and accurate information. History and a consideration of human behavior would appear to refute this assumption.” The key deficiency of physical or psychological duress is the reliability and accuracy of the information gained, the memo says. “A subject in pain may provide an answer, any answer, or many answers in order to get the pain to stop.” The memo also warns that the use of torture by the US could influence US enemies to torture American captives: “The unintended consequence of a US policy that provides for the torture of prisoners is that it could be used by our adversaries as justification for the torture of captured US personnel.” It concludes that “the application of extreme physical and/or psychological duress (torture) has some serious operational deficits, most notably the potential to result in unreliable information.” The word “extreme” is underlined.
Also Sent to CIA - Besides Haynes, the memo is forwarded to the Pentagon’s Office of the General Counsel, and apparently to CIA chief counsel John Rizzo and the Justice Department. It is unclear whether high-ranking White House officials will see the document.
One of Many Warnings - JPRA chief of staff Daniel Baumgartner will later say that the agency “sent a lot of cautionary notes” regarding harsh techniques. “There is a difference between what we do in training and what the administration wanted the information for,” Baumgartner will tell a reporter in 2009. “What the administration decided to do or not to do was up to the guys dealing with offensive prisoner operations.… We train our own people for the worst possible outcome… and obviously the United States government does not torture its own people.”-
Senator Says Memo Suppressed - After the memo becomes public knowledge as part of a Senate report on Bush administration torture decisions (see April 21, 2009), Senator Carl Levin (D-MI), the chairman of the Armed Services Committee, will say that he believes the memo was deliberately ignored and perhaps suppressed. Levin will call the memo’s treatment “part of a pattern of squelching dissent.” A Bush administration official will later say of the memo: “That information was not brought to the attention of the principals. That would have been relevant. The CIA did not present with pros and cons, or points of concern. They said this was safe and effective, and there was no alternative.” The memo conflicts with proposals from two JPRA psychologists heavily involved in creating a program of harsh interrogation tactics (see January 2002 and After). [Joint Personnel Recovery Agency, 7/2002 ; Washington Post, 4/25/2009]
Instructors from the Joint Personnel Recovery Agency (JPRA), which oversees the military’s Survival, Evasion, Resistance, and Escape (SERE) training program, conduct a training seminar for intelligence officials. JPRA officials, including senior psychologist Bruce Jessen, have proposed a set of interrogation procedures that amounts to torture (see January 2002 and After and April 16, 2002), and the JPRA instructors are now training CIA and other agency officials in those procedures. Two JPRA legal advisers tell the group that such harsh interrogation methodologies are already deemed acceptable, even though the Justice Department has not yet issued such approval (see August 1, 2002). The lawyers tell the seminar participants, “They [interrogators] could use all forms of psychological pressure discussed, and all the physiological pressures with the exception of the ‘water board.’” The lawyers say that waterboarding might also be permitted, but interrogators “would need prior approval.” [Washington Post, 4/22/2009] During the seminar, CIA agents are given two days of training in waterboarding (see July 1-2, 2002). In 2009, the media learns that Jessen and his partner, James Mitchell, are paid $1,000 a day for the training (see April 30, 2009).
Dr. Michael Podell, a medical researcher with Ohio State University, gives up his tenured position and a $1.7 million research project after being targeted for harassment by activists with the animal rights group People for the Ethical Treatment of Animals (PETA). Podell used cats in his research, which focused on why drug users succumb more quickly to AIDS. After PETA put Podell on its “action alert” list, PETA activists sent Podell almost a dozen death threats, including a photograph of a British scientist whose car had been bombed with the words, “You’re next,” scrawled across the top. [Southern Poverty Law Center, 9/2002]
Pfizer attorney Malcolm Wheeler calls FDA chief counsel Daniel E. Troy requesting that the agency intervene in a lawsuit filed against the company. The lawsuit alleges that Zoloft, an antidepressant drug manufactured by Pfizer, caused Victor Motus of California to kill himself on November 12, 1998. It also says that the drug company should have warned physicians that Zoloft might cause suicidal thoughts in some people. On September 3, the FDA files a brief stating that the agency’s scientists have found no evidence that antidepressants cause suicidal thoughts. Furthermore, the FDA argues, if Pfizer had warned doctors of such a link, it would have been a violation of the law because all warnings must first be vetted by the FDA. According to Troy, the agency has “absolute control over the label.” This position, notes one of the plaintiff attorneys in the Pfizer case, contradicts arguments that Troy made when he was practicing in the private sector. Before he had argued that the agency’s rulings were arbitrary and capricious. [Boston Globe, 12/22/2002]
Officials from the Pentagon’s Joint Personnel Recovery Agency (JPRA) conduct a two-day seminar with select CIA interrogators and other agents on the methodologies of waterboarding. The JPRA officials are instructors in the SERE (Survival, Evasion, Resistance, and Evasion) program, which teaches US soldiers how to resist torture. SERE instructors are not trained interrogators, and the SERE techniques, originally based on Chinese Communist methods used to force false confessions from American prisoners during the Korean War (see Mid-April 2002 and July 2002), have never been shown to produce reliable information from their victims. [Agence France-Presse, 4/22/2009]
The Justice Department announces that only 74 of the 752 people detained on immigration charges after 9/11 are still in US custody. By December, only six of them will remain in custody (see December 11, 2002). Hundreds more were detained on other charges or as material witnesses, but no numbers pertaining to them have been released. 611 were subject to secret hearings. Senator Carl Levin (D-MI), who had requested the figures, says, “It took the Justice Department more than three months to produce a partial response to my letter.” But the answers raise “a number of additional questions, including why closed hearings were necessary for so many people.” Though many were held for months, “the vast majority were never charged with anything other than overstaying a visa.” [New York Times, 7/11/2002] All the deportation hearings for these people have been held in secret as well. Some say the government is cloaking its activities out of embarrassment, because none of these people have turned out to have any ties to terrorism. [New York Times, 7/11/2002; Detroit Free Press, 7/18/2002]
After much debate, the UN Security Council adopts Resolution 1422 under pressure from the United States. The resolution delays, for a period of twelve months, the prosecution and investigation by the International Criminal Court (ICC) of any UN peacekeeping personnel accused of war crimes. After one year, the delay can be extended with the passage of another resolution. The privilege applies only to personnel from states that are not party to the Rome Statute. [United Nations, 7/12/2002; New York Times, 7/13/2002] The US had previously demanded a permanent exemption (see June 2002), which was strongly opposed by the other members. The US proposed Resolution 1422 as a compromise and threatened to block future resolutions extending UN peacekeeping missions, beginning with ones in Bosnia and the Croatian peninsula of Prevlaka, if the Security Council did not adopt it. [New York Times, 7/11/2002; New York Times, 7/12/2002; New York Times, 7/13/2002] Immediately after adopting Resolution 1422, the council extends the mandates for the two UN peacekeeping missions. [New York Times, 7/13/2002] Afterwards, John Negroponte states: “Should the ICC eventually seek to detain any American, the United States would regard this as illegitimate—and it would have serious consequences. No nation should underestimate our commitment to protect our citizens.” [New York Times, 7/13/2002]
The Court of Appeals for the Fourth Circuit decides in favor of the government, refusing to uphold a district court’s order (see May 29, 2002) that “enemy combatant” Yaser Esam Hamdi be allowed access to his lawyer. The appeals court argues that the district court ordered access “without adequately considering [its] implications.” It states that it “has long been established that if Hamdi is indeed an ‘enemy combatant’ who was captured during hostilities in Afghanistan, the government’s present detention of him is a lawful one.” In deference to the government, the court states that the “executive is best prepared to exercise the military judgment attending the capture of alleged combatants,” adding that the “political branches are best positioned to comprehend this global war in its full context and it is the president who has been charged to use force against those ‘nations, organizations, or persons he determines’ were responsible for the September 11 terrorist attacks.” The court asserts that the “Constitution’s commitment of the conduct of war to the political branches of American government requires the court’s respect at every step.” [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 6/24/2002] The unanimous three-judge ruling is written by Judge Harvey Wilkinson IV, appointed to the bench by President Reagan in 1984 and often touted as a potential Supreme Court nominee by Bush administration officials and supporters. [Savage, 2007, pp. 153]
CIA attorneys meet with White House Counsel Alberto Gonzales, the Justice Department’s head of its criminal division, Michael Chertoff, and aides and lawyers from the National Security Council, Justice Department, and FBI. The meeting provides participants with an overview of the proposed interrogation plan for captured Islamist militant Abu Zubaida (see Mid-May, 2002). [Senate Intelligence Committee, 4/22/2009 ] The CIA has already begun torturing Zubaida (see April - June 2002, Mid-May, 2002, Mid-May 2002 and After, Mid-May 2002 and After, and June 2002).
John Walker Lindh’s trial comes to a sudden and unexpected end when prosecutors and defense attorneys strike a plea agreement. Lindh agrees to plead guilty to serving the Taliban. He also admits that while serving under the Taliban he carried a gun and grenades. This adds ten years imprisonment for the use of a firearm in the commission of a felony. [CBS News, 7/15/2002; Guardian, 7/15/2002; Associated Press, 7/15/2002; Plea Agreement. United States of America v. John Walker Lindh, 7/15/2002] The nine other counts, including the charges of conspiracy to murder Americans and providing material support to terrorists, are dismissed. In return, his defense withdraws the claim that Lindh has been abused or tortured at American hands. According to the agreement, Lindh “puts to rest his claims of mistreatment by the United States military, and all claims of mistreatment are withdrawn.” [Amnesty International, 10/20/2003] Defense attorney Jim Brosnahan tells journalist Seymour Hersh that “the Department of Defense insists that we state that there was ‘no deliberate’ mistreatment of John.” [New Yorker, 5/17/2004] And thus, in a formal statement, Lindh says, “that he was not intentionally mistreated by the US military.” [Mercury News (San Jose), 5/20/2004] Lindh’s other attorney, George Harris, tells the World Socialist Web Site, “I think that one thing that motivated the government to resolve the case was certainly their reluctance to have the evidence presented about how John Lindh was treated while he was in US military custody.” Another motive for the prosecutors to agree to a plea bargain, Harris suggests, is the expected disclosure during a public trial of the government’s own ties to the Taliban. [World Socialist Web Site, 10/7/2002] Harris explains that there was good reason to assume that if the trial would go in favor of Lindh, the government would declare him an “enemy combatant” and detain him indefinitely, perhaps in solitary incommunicado confinement, without charges, access to lawyers or relatives, like it had done only recently, on June 9 (see June 9, 2002), to another US citizen Jose Padilla. “It was the government’s position,” Harris says, “that even if John Lindh had been acquitted, or had been convicted and served his time, that it still would have been within the government’s power to declare him an enemy combatant and continue to detain him.” [World Socialist Web Site, 10/7/2002] Lindh was therefore in a no-win-situation. Even after release following his twenty-year sentence, he will not be certain of his freedom. The plea agreement says that “for the rest of the defendant’s natural life, should the Government determine that the defendant has engaged in [proscribed] conduct […] the United States may immediately invoke any right it has at that time to capture and detain the defendant as an unlawful enemy combatant.” [Plea Agreement. United States of America v. John Walker Lindh, 7/15/2002]
After nearly two years of legal wrangling, the Bush administration releases financial and other records from the November-December 2000 campaign to the Internal Revenue Service. Those records include hundreds of pages of documents regarding the Bush campaign’s efforts to win the Florida recounts (see 9:00 a.m. and after, November 22, 2000). The George W. Bush recount committee spent $13.8 million on its efforts to influence the recount, while long-available documents from the Al Gore recount operation show that Gore spent about a quarter of that amount, $3.2 million. The Bush campaign spent more than that on lawyers—$4.4 million. The Bush records document some 250 paid staffers, payouts of $1.2 million to fly operatives to and from Florida, and about $1 million in hotel bills. Additionally, a fleet of corporate jets was provided to the recount operation, many of them paid for by Enron Corporation and its CEO Kenneth Lay, a prominent Bush backer. Other jets were provided by Halliburton, where Vice President Dick Cheney had served as chairman and CEO. [Consortium News, 8/5/2002]
More questions emerge in British newspapers about the conviction of Saeed Sheikh for reporter Daniel Pearl’s murder in the days immediately after the verdict. Pakistani police have secretly arrested two men who many believe are the real masterminds of Pearl’s murder, and official confirmation of these crucial arrests could have ended Saeed’s trial. [Guardian, 7/18/2002] On May 16, Pearl’s body was found and identified, but the FBI does not officially release the DNA results because official confirmation of the body would also have meant a new trial. [Independent, 7/16/2002] Pakistani officials admit they waited to release the results until after the verdict. [Guardian, 7/18/2002] After the trial ends, Pakistani officials admit that the key testimony of a taxi driver is doubtful. The “taxi driver” turns out to be a head constable policeman. [Guardian, 7/18/2002] One of the co-defendants turns out to be working for the Special Branch. [Independent, 7/21/2002] According to Pakistani law, the trial needed to be completed in a week, but in fact it took three months. The trial judge and the venue were changed three times. [BBC, 7/16/2002] The trial was held in a bunker underneath a prison, and no reporters were allowed to attend. When all the appeals are done, it is doubtful that Saeed will be extradited to the US, “because Mr. Sheikh might tell the Americans about the links between al-Qaeda and Pakistan’s own intelligence organization.” [Independent, 7/16/2002] Meanwhile, at least seven more suspects remain at large. All have ties to the ISI, and as one investigator remarks, “It seems inconceivable that there isn’t someone in the ISI who knows where they’re hiding.” [Time, 5/6/2002]
CIA Director George Tenet meets with National Security Adviser Condoleezza Rice. Rice tells Tenet that the CIA can begin its proposed interrogation plan for captured alleged al-Qaeda operative Abu Zubaida (see March 28, 2002 and July 13, 2002), advising him “that the CIA could proceed with its proposed interrogation” of Zubaida. Rice’s authorization is subject to a determination of legality by the Justice Department’s Office of Legal Counsel (see August 1, 2002). [Senate Intelligence Committee, 4/22/2009 ; BBC, 4/23/2009] The CIA has already begun torturing Zubaida (see April - June 2002, Mid-May, 2002, Mid-May 2002 and After, Mid-May 2002 and After, and June 2002).
The district court for the Eastern District of Virginia holds a hearing in the case of “enemy combatant” Yaser Hamdi and questions the government’s arguments for keeping Hamdi detained. Questions raised by the district judge are: “With whom is the war I should suggest that we’re fighting?” and “Will the war never be over as long as there is any member [or] any person who might feel that they want to attack the United States of America or the citizens of the United States of America?” The court orders the government to include answers to these and other questions in a response to Hamdi’s habeas petition by July 25 (see July 25, 2002). [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 1/8/2003 ]
Terror suspect Binyam Mohamed (see May-September, 2001) is flown from Pakistan to Morocco as part of a joint British-American attempt to force him to divulge information about possible nuclear devices owned by Islamist militants (see May 17 - July 21, 2002). He is flown—trussed, gagged, blindfolded, and diapered (see October 4, 2001)—to Rabat, Morocco, a flight later confirmed by the CIA’s own flight logs. He remains in Moroccan custody for 15 months.
Beaten, Slashed with Scalpels - As he will later recall, he is introduced to Moroccan detention practices by an interrogator named Marwan, who gives him thorough and repeated beatings. When Mohamed has been softened up: “[T]hey cut off my clothes with some kind of doctor’s scalpel. I was totally naked.… They took the scalpel to my right chest. It was only a small cut. Maybe an inch. Then they cut my left chest. One of them took my penis in his hand and began to make cuts. He did it once, and they stood still for maybe a minute, watching my reaction. I was in agony, crying, trying desperately to suppress myself, but I was screaming. I remember Marwan seemed to smoke half a cigarette, throw it down, and start another. They must have done this 20 to 30 times in maybe two hours. There was blood all over. They cut all over my private parts. One of them said it would be better just to cut it off, as I would only breed terrorists.” This happens time and again over the next 15 months.
British Complicity in CIA, Moroccan Interrogations - Documents disclosed for Mohamed’s later lawsuit against the US (see February 4, 2009) show that British MI5 agents are aware of the entirety of Mohamed’s treatment, and are in collusion with the Moroccans and the US in Mohamed’s treatment; on September 30, MI5 and CIA officials hold a conference where Mohamed’s treatment and interrogation are discussed. During much of Mohamed’s detention in Morocco, MI5 passes questions and photographs to the CIA for use in Mohamed’s interrogations (see February 24, 2009). Mohamed will later recall: “They started bringing British files to the interrogations—thick binders, some of them containing sheaves of photos of people who lived in London and places there like mosques. It was obvious the British were feeding them questions about people in London. When I realized that the British were co-operating with the people torturing me, I felt completely naked. It was when they started asking the questions supplied by the British that my situation worsened. They sold me out.”
Elaborate Confessions - By this time, as Mohamed will recall, he is willing to confess to anything to make the torture stop. “They had fed me enough through their questions for me to make up what they wanted to hear,” he will recall. “I confessed to it all. There was the plot to build a dirty nuclear bomb, and another to blow up apartments in New York with their gas pipes.” The “gas pipe” plot connects Mohamed to 9/11 plotter Khalid Shaikh Mohammed, who supposedly conceived of the idea. “I said Khalid Shaikh Mohammed had given me a false passport after I was stopped the first time in Karachi and that I had met Osama bin Laden 30 times,” Mohamed will recall. “None of it was true. The British could have stopped the torture because they knew I had tried to use the same passport at Karachi both times (see September 2001 - April 9, 2002). That should have told them that what I was saying under torture wasn’t true. But so far as I know, they did nothing.”
'Rendered' to Afghanistan - Fifteen months after being “rendered” to Morocco, Mohamed is “rendered” to Afghanistan by the CIA (see January-September 2004). [Daily Mail, 3/8/2009]
John Yoo, a lawyer with the Office of Legal Counsel (OLC), sends a classified memo to White House counsel Alberto Gonzales. The memo’s contents will remain secret, but the American Civil Liberties Union (ACLU) will learn that the memo regards the 1984 Convention Against Torture. According to the memo, the first fifteen articles of the Convention, ratified by the United States almost a decade before, “are non-self executing and place no affirmative obligations on the executive branch.” Furthermore, international law in general “lacks domestic legal effect, and in any event can be overridden by the president,” the memo states. In essence, Yoo concludes that the Convention can be ignored by the president. Yoo will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [United Nations High Commissioner for Human Rights, 12/10/1984; American Civil Liberties Union [PDF], 1/28/2009 ; ProPublica, 4/16/2009]
Wreckage left behind where a missile struck Qaed Salim Sinan al-Harethi’s truck in Yemen. [Source: Associated Press]Defense Secretary Donald Rumsfeld issue a secret directive ordering commander of Special Operations Air Force General Charles Holland “to develop a plan to find and deal with members of terrorist organizations” anywhere in the world (see July 22, 2002). The directive says, “The objective is to capture terrorists for interrogation or, if necessary, to kill them, not simply to arrest them in a law-enforcement exercise.” Holland is to cut through the Pentagon bureaucracy and process deployment orders “in minutes and hours, not days and weeks.” In internal Defense Department memos, Rumsfeld and the civilian officials close to him lay out the case for a new approach to the war on terrorism, one that would partly rely on the killing of individuals outside war zones. [New Yorker, 12/16/2002] The first public manifestation of this new policy will be the November 2002 assassination of al-Qaeda leader Qaed Salim Sinan al-Harethi in Yemen with a Predator missile strike (see November 3, 2002).
The government files a response in the District Court for the Eastern District of Virginia to the petition for a writ of habeas corpus for “enemy combatant” Yaser Hamdi (see July 18, 2002) and motions for the petition to be dismissed. The response, a two-page declaration of facts written by Special Adviser to the Under Secretary of Defense for Policy Michael H. Mobbs and known as the “Mobbs Declaration,” asserts that because Hamdi was “affiliated” with the Taliban and was carrying a rifle at the time of his surrender, the US military has designated him as an “enemy combatant.” It does not say that Hamdi actually fought with the Taliban against US forces. [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 1/8/2003 ; Washington Post, 1/9/2003]
Passaic County Sheriff Jerry Speziale. [Source: Triborochamber]A business owned by Mohamed el-Atriss, who supplied the 9/11 hijackers with fake IDs (see (July-August 2001)), is raided by the Passaic County Sheriff’s Department. The raids are carried out in a blaze of publicity and are strongly opposed by the US attorney’s office for New Jersey and the FBI, which has a relationship with el-Atriss (see July 31, 2002 and After, September 13, 2001-Mid 2002). [Bergen Record, 8/7/2002] The sheriff is suspicious of el-Atriss and raids his business because, in addition to providing hijackers Abdulaziz Alomari and Khalid Almihdhar with at least two pieces of fake ID, el-Atriss:
Talked repeatedly on the phone to another hijacker (see (July-August 2001));
Is an associate of an unindicted co-conspirator in the 1993 ‘Landmarks’ bomb plot (see Before September 11, 2001);
Wired $29,000 to the Arab National Bank in Mecca in 2002; [Washington Post, 1/3/2003]
Made inquiries to a parts manufacturer about navigational systems for commercial jetliners to be shipped to Egypt in 1999; [Newark Star-Ledger, 10/20/2003]
Downloaded a list of the 9/11 hijackers from the Internet after 9/11, underlined some names, and circled Khalid Almihdhar’s. [Newark Star-Ledger, 10/20/2003]
El-Atriss is not present during the raid, having traveled to Egypt a short time before, but later returns to the US and is arrested at JFK airport in New York. [CBS News, 7/31/2002; BBC, 8/21/2002] He will later say that he came back to the US to clear his name after learning of the raid while in Egypt. He will be charged with over two dozen counts of selling false documents. [Newark Star-Ledger, 10/20/2003] Secret evidence will be used against him at the trial. He will plead guilty to one of charges, while the rest will be dropped. (see November 2002-June 2003).
Judge Robert Doumar of the US District Court of Eastern Virginia orders the US government to provide the court with copies of all of “enemy combatant” Yaser Esam Hamdi’s statements, a list of all interrogators who have questioned him, and copies of any statements by members of the Northern Alliance that relate to Hamdi by August 6. A hearing will then be held on August 8. Access to the documents will be restricted to the court and will not be shared with Federal Public Defender Frank Dunham. [Order. Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 7/31/2002 ; Washington Post, 1/9/2003] The US government refuses to comply with the order. [Respondents memorandum in support of motion for relief of this court's production order of July 31, 2002. Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/5/2002 ; Washington Post, 1/9/2003]
US attorney for New Jersey Christopher Christie opposed a raid on an associate of the 9/11 hijackers. [Source: Public domain]Both the FBI and the US attorney’s office for New Jersey are highly critical of a raid by the Passaic County sheriff’s office on the business of Mohamed el-Atriss, who supplied the 9/11 hijackers with false IDs (see (July-August 2001) and July 31, 2002). El-Atriss is later arrested and will plead guilty to selling fake IDs (see November 2002-June 2003). According to the sheriff, when US attorney for New Jersey Christopher Christie learns the sheriff intends to hold a news conference about the raid, he tells the sheriff that “he [will] be arrested and the US attorney [will] come down and shut down the Sheriff’s Department.” However, a spokesman for Christie will deny this. [Newark Star-Ledger, 10/20/2003] The FBI also hammers the sheriff in the media after the arrest, calling the raid, in which officers were accompanied by several press representatives, a “shameful media grab” and saying that the sheriff killed an FBI investigation. The Bergen County Record will point out that this is unusual, as “the feds don’t make a habit of lambasting other law enforcement officials publicly or of confirming the existence of secret investigations.” [Bergen Record, 8/7/2002] Federal officials then tell the sheriff’s department not to proceed with any investigations related to el-Atriss until they get clearance from the FBI. [Newark Star-Ledger, 10/20/2003] El-Atriss cooperated with the FBI after 9/11 and promised to “keep his eyes and ears open” for other terrorists (see September 13, 2001-Mid 2002).
Former FBI translator Sibel Edmonds hires attorney David Colapinto of the Washington firm Kohn, Kohn and Calapinto, who sues the FBI under the Freedom of Information Act for full disclosure of all documents related to her allegations against Melek Can Dickerson (see December 4, 2001 and Afternoon February 12, 2002) and her dismissal from the FBI (see March 22, 2002). [Vanity Fair, 9/2005]
While the Bush White House publicly denies any desire for war with Iraq, and says it is committed to working with the United Nations to find a diplomatic course of action, behind the scenes the administration’s lawyers are working on a legal justification for war. White House counsel Timothy Flanigan develops a legal position that argues the president needs no Congressional authorization to attack Iraq. Flanigan’s superior, chief White House counsel Alberto Gonzales, presents Flanigan’s legal rationale to President Bush. Flanigan’s chief argument is that the president’s “inherent power as commander in chief” (see 1901-1909 and June 2, 1952) gives him the right to unilaterally take the country to war. Flanigan’s backup position is invoking the 1991 Congressional authorization for the Persian Gulf War (see January 9-13, 1991), and the UN Security Council’s resolutions from that time period (see November 29, 1990). Nevertheless, the White House will demand an authorization for war from Congress (see October 11, 2002)—an authorization White House officials say Bush has no intention of using except as a means of bringing diplomatic pressure against Iraq. [Savage, 2007, pp. 156]
Military interrogators at Guantanamo begin inquiring about the lengths to which they can go to question suspected terrorists. They are particularly interested in Mohamed al-Khatani, a Saudi captured in the Afghan-Pakistan border region in December 2001 (see December 2001). When they learn that al-Khatani was denied entry to the US in 2001 (see August 4, 2001), they decide he may be the so-called “20th hijacker” for the 9/11 attacks, especially after the FBI cajoles him into confessing to being an al-Qaeda operative (see July 2002). But al-Khatani will not, or cannot, divulge information about upcoming terror attacks, and interrogators want to increase the pressure on him (see August 8, 2002-January 15, 2003). They also wonder if, since they have found one apparently high-level al-Qaeda operative among the crowd of low-level prisoners shipped from Afghanistan, there might be others lurking in the group and pretending to be ordinary peasants. [Savage, 2007, pp. 177-178]
Justice Department lawyer John Yoo, of the Office of Legal Counsel (OLC), signs off on a secret opinion that approves a long, disturbing list of harsh interrogation techniques proposed by the CIA. The list includes waterboarding, a form of near-drowning that some consider mock execution, and which has been prosecuted as a war crime in the US since at least 1901. The list only forbids one proposed technique: burying a prisoner alive (see February 4-5, 2004). Yoo concludes that such harsh tactics do not fall under the 1984 Convention Against Torture (see October 21, 1994 and July 22, 2002) because they will not be employed with “specific intent” to torture. Also, the methods do not fall under the jurisdiction of the International Criminal Court because “a state cannot be bound by treaties to which it has not consented”; also, since the interrogations do not constitute a “widespread and systematic” attack on civilian populations, and since neither Taliban nor al-Qaeda detainees are considered prisoners of war (see February 7, 2002), the ICC has no purview. The same day that Yoo sends his memo, Yoo’s boss, OLC chief Jay Bybee, sends a classified memo to the CIA regarding the interrogation of al-Qaeda members and including information detailing “potential interrogation methods and the context in which their use was contemplated” (see August 1, 2002). [US Department of Justice, 8/1/2002; Washington Post, 6/25/2007; American Civil Liberties Union [PDF], 1/28/2009 ] Yoo will later claim that he warns White House lawyers, as well as Vice President Cheney and Defense Secretary Donald Rumsfeld, that it would be dangerous to allow military interrogators to use the harshest interrogation techniques, because the military might overuse the techniques or exceed the limitations. “I always thought that only the CIA should do this, but people at the White House and at [the Defense Department] felt differently,” Yoo will later say. Yoo’s words are prophetic: such excessively harsh techniques will be used by military interrogators at Guantanamo, Abu Ghraib, and elsewhere. [Washington Post, 6/25/2007]
Jay Bybee, the head of the Justice Department’s Office of Legal Counsel (OLC), writes a secret memo to John Rizzo, the acting general counsel of the CIA. The memo is entitled: “Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency: Interrogation of al-Qaeda Operative.” It will be released seven years later, after prolonged litigation by the American Civil Liberties Union (ACLU—see April 16, 2009). It parallels another secret memo written by OLC lawyer John Yoo for White House counsel Alberto Gonzales (see August 1, 2002). The memo, written at the request of CIA officials, finds that the use of the interrogation techniques proposed for use on captured Islamist extremist Abu Zubaida are consistent with federal law (see Mid-May, 2002 and July 17, 2002). The OLC has determined that the only federal law governing the interrogation of a non-citizen detained outside the US is the federal anti-torture statute, Section 2340A of Title 18 of the US Code. Bybee’s memo goes into detail about 10 torture techniques, and explains why they are all legal to use on Abu Zubaida (see March 28, 2002), currently being held in a secret CIA “black site” in Thailand (see April - June 2002). Bybee writes that Zubaida will enter a new, “increased pressure phase” of interrogation, and will be dealt with by a “Survival, Evasion, Resistance, and Escape (‘SERE’) training psychologist, who has been involved with the interrogations since they began.” [Office of Legal Counsel, 8/1/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ; Senate Intelligence Committee, 4/22/2009 ]
Lack of Intent Equates Legality - As long as there is no intent to cause “severe pain or suffering,” Bybee writes, none of these techniques violate US law. “To violate the statute, an individual must have the specific intent to inflict severe pain or suffering,” Bybee writes. “Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture.… We have further found that if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent.” [Office of Legal Counsel, 8/1/2002 ; CNN, 4/17/2009]
Ten Techniques of Authorized Torture - Bybee explains the 10 techniques that can be used on Zubaida:
Attention grasp: “The attention grasp consists of grasping the individual with both hands, one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the individual is drawn toward the interrogator.”
Walling: “For walling, a flexible false wall will be constructed. The individual is placed with his heels touching the wall. The interrogator pulls the individual forward and then quickly and firmly pushes the individual into the wall. It is the individual’s shoulder blades that hit the wall. During this motion, the head and neck are supported with a rolled hood or towel that provides a c-collar effect to help prevent whiplash. To further reduce the probability of injury, the individual is allowed to rebound from the flexible wall. You have orally informed us that the false wall is in part constructed to create a loud sound when the individual hits it, which will further shock or surprise in the individual. In part, the idea is to create a sound that will make the impact seem far worse than it is and that will be far worse than any injury that might result from the action.”
Facial hold: “The facial hold is used to hold the head immobile. One open palm is placed on either side of the individual’s face. The fingertips are kept well away from the individual’s eyes.”
Facial slap (insult slap): “With the facial slap or insult slap, the interrogator slaps the individual’s face with fingers slightly spread. The hand makes contact with the area directly between the tip of the individual’s chin and the bottom of the corresponding earlobe. The interrogator invades the individual’s personal space. The goal of the facial slap is not to inflict physical pain that is severe or lasting. Instead, the purpose of the facial slap is to induce shock, surprise, and/or humiliation.”
Cramped confinement: “Cramped confmement involves the placement of the individual in a confined space, the dimensions of which restrict the individual’s movement. The confined space is usually dark. The duration of confinement varies based upon the size of the container. For the larger confined space, the individual can stand up or sit down; the smaller space is large enough for the subject to sit down. Confinement in the larger space can last up to 18 hours; for the smaller space, confinement lasts for no more than two hours.”
Wall standing: “Wall standing is used to induce muscle fatigue. The individual stands about four to five feet from a wall with his feet spread approximately to shoulder width. His arms are stretched out in front of him, with his fingers resting on the wall. His fingers support all of his body weight. The individual is not permitted to move or reposition his hands or feet.”
Stress positions: “A variety of stress positions may be used. You have informed us that these positions are not designed to produce the pain associated with contortions or twisting of the body. Rather, somewhat like walling, they are designed to produce the physical discomfort associated with muscle fatigue. Two particular stress positions are likely to be used on [Zubaida]: (1) sitting on the floor with legs extended straight out in front of him with his arms raised above his head; and (2) kneeling on the floor while leaning back at a 45 degree angle. You have also orally informed us that through observing Zubaydah in captivity, you have noted that he appears to be quite flexible despite his wound.”
Sleep deprivation: “You have indicated that your purpose in using this technique is to reduce the individual’s ability to think on his feet and, through the discomfort associated with lack of sleep, to motivate him to cooperate. The effect of such sleep deprivation will generally remit after one or two nights of uninterrupted sleep. You have informed us that your research has revealed that, in rare instances, some individuals who are already predisposed to psychological problems may experience abnormal reactions to sleep deprivation. Even in those cases, however, reactions abate after the individual is permitted to sleep. Moreover, personnel with medical training are available to and will intervene in the unlikely event of an abnormal reaction. You have orally informed us that you would not deprive [Zubaida] of sleep for more than 11 days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.”
Insect confinement: “You would like to place [Zubaida] in a cramped confinement box with an insect. You have informed us he has a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him. You would, however, place a harmless insect in the box. You have orally informed us that you would in fact place a caterpillar in the box. [REDACTED]”
Waterboarding: “Finally, you would like to use a technique called the “water-board.” In this procedure, the individual is bound securely on an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air now is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of ‘suffocation and incipient panic,’ i.e.,the perception of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a beight of 12 to 24 inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout. You have orally informed us that this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning. You have also orally infomed us that it is likely that this procedure would not last more than 20 minutes in any one application.… You have informed us that this procedure does not inflict actual physical harm.… The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view, inflict ‘severe pain and suffering.’”
Techniques Can Be Used in Conjunction with One Another - Bybee writes: “You have informed us that the use of these techniques would be on an as-needed basis and that not all of these techniques will necessarily be used. The interrogation team would use these techniques in some combination to convince [Zubaida] that the only way he can influence his surrounding environment is through cooperation. You have, however, informed us that you expect these techniques to be used in some sort of escalating fashion, culminating with the waterboard, though not necessarily ending with this technique. Moreover, you have also orally informed us that although some of these teclmiques may be used with more than once, that repetition wllI not be substantial because the techniques generally lose their effectiveness after several repetitions.” [Office of Legal Counsel, 8/1/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ; Senate Intelligence Committee, 4/22/2009 ]
Factual Background for Analysis - The opinion also gives the factual background for the legal analysis, including CIA research findings on the proposed techniques and their possible effect on Zubaida’s mental health. Much of those findings uses as a touchstone the results gleaned from the military’s SERE training, which uses stressful interrogation techniques, including a form of waterboarding, against US soldiers as part of their counterterrorism training. As the Senate Intelligence Committee will later write, Bybee’s “opinion discussed inquiries and statistics relating to possible adverse psychological reactions to SERE training.” The law clearly prohibits an interrogation method “specifically intended” to inflict “severe physical or mental pain or suffering.”
No Technique Constitutes Torture, Bybee Concludes - Bybee’s opinion considers whether each of the proposed interrogation techniques, individually or in combination, might inflict “severe physical pain or suffering” or “severe mental pain or suffering” on Zubaida or other detainees. The opinion also considers whether interrogators using the technique would have the mental state necessary to violate the statute. Bybee concludes that none of the techniques used individually would inflict “severe physical pain or suffering.” Waterboarding would not inflict such harm, Bybee writes, because it inflicts neither physical damage or physical pain. Nor would it inflict extensive “physical suffering,” because the “suffering” would not extend for the period of time required by the legal definition of the term. None of the techniques, including waterboarding, would inflict “severe mental pain or suffering” as defined in the federal statute, Bybee writes. He bases this conclusion on reports from SERE training, where US soldiers are subjected to brief, strictly supervised sessions of waterboarding as part of their anti-torture training. And, Bybee writes, since the techniques individually do not constitute physical suffering, neither will they constitute such suffering in conbination, because they will not be combined in such a way as to reach that threshold. Bybee writes that the OLC lacks the information necessary to conclude whether combinations of those techniques would inflict severe mental suffering; however, because no evidence exists to suggest that a combination of the techniques would inflict an excessive level of mental harm, using the techniques in combination is not precluded. Bybee also concludes that any interrogator using these techniques would not have a specific intent to inflict severe mental or physical pain or suffering, because the circumstances surrounding the use of the techniques would preclude such intent. Therefore, Bybee concludes, none of these techniques violate the federal anti-torture statute. [American Civil Liberties Union [PDF], 1/28/2009 ; Senate Intelligence Committee, 4/22/2009 ]
Entity Tags: John Rizzo, Central Intelligence Agency, Bush administration (43), Office of Legal Counsel (DOJ), Jay S. Bybee, American Civil Liberties Union, John C. Yoo, US Department of Justice, Senate Intelligence Committee, Abu Zubaida, Alberto R. Gonzales
Timeline Tags: Torture of US Captives
More than 50 countries sign “Article 98” agreements with the US under threat of losing US military aid. Article 98 agreements, so called because the US claims they have a legal basis in Article 98 of the Rome Statute (see July 17, 1998), are bilateral immunity agreements (BIA) that prohibit both parties from extraditing the other’s current or former government officials, military and other personnel to the International Criminal Court (ICC) . With the exception of a few close allies, countries that are party to the ICC (see July 17, 1998) and have not signed the agreements will become ineligible for US military aid when on July 1, 2003 (see July 1, 2003) Section 2007 of the American Servicemembers’ Protection Act (see August 2, 2002) goes into effect. The Bush administration hopes that the “Article 98” agreements will protect US troops and officials from being prosecuted by the International Criminal Court (ICC) for any alleged war crimes committed in a country that is party to the court. Critics say the BIAs are inexcusable attempts to gain impunity from war crimes. Some countries sign the agreement despite popular opposition and ask the Bush administration not to make the agreements public. [CNS News, 8/5/2002; New York Times, 8/7/2002; New York Times, 8/10/2002; Coalition for the International Court, 9/2003 ]
A federal judge rules that the Bush administration must reveal the identities of the hundreds of people secretly arrested after the 9/11 attacks within 15 days. [Washington Post, 8/3/2002] The judge calls the secret arrests “odious to a democratic society.” The New York Times applauds the decision and notes that the government’s argument that terrorist groups could exploit the release of the names makes no sense, because the detainees were allowed a phone call to notify anyone that they were being held. [New York Times, 8/6/2002] Two weeks later, the same judge agrees to postpone the release of the names until an appeals court can rule on the matter. [New York Times, 8/16/2002]
US President George Bush signs the American Servicemembers’ Protection Act (HR 4775), making it Public Law 107-206. Section 2007, written by Representative Tom DeLay of Texas, prohibits the United States from providing military assistance to any nation that is party to the International Criminal Court (see July 17, 1998). Only countries that receive a special waiver from the president or that sign so-called “Article 98” agreements (see August 2002-July 1, 2003) will be exempt from the prohibition. The exemption is also extended to a select few other counties (Taiwan, NATO members, and “major non-NATO allies” like Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea, and New Zealand). Section 2007 will go into effect on July 1, 2003, one year after the Rome Statute entered into force. Section 2008 of HR 4775 gives the president authority to use “all means necessary and appropriate to bring about the release of any person… being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” [US Congress, 7/24/2002; New York Times, 8/10/2002]
District Court Judge Emmet Sullivan rules that if Vice President Dick Cheney wants to have him dismiss a lawsuit brought by the watchdog organization Judicial Watch (see June 25, 2001), Cheney must show him the task force documents so that he can make an informed decision. No one else would see the documents, Sullivan says, and he cites a 1993 ruling forcing the Clinton health care task force to reveal its source documents and allow a judge to decide whether that task force had had outside lobbyists directly participating in its work. Judicial Watch’s director of investigations, Chris Farrell, is jubilant over Sullivan’s ruling. “It was very encouraging,” he will later recall. “It looked like the judge had the intellectual honesty and courage to at least give it an evaluation and a fair look. If, in fact, everything the administration was saying was true, then the judge would look at it and draw that conclusion. At least then the public would have some sense of confidence and trust that the right thing was being done, because a fresh set of eyes had looked at it. Without that check, you don’t know.” But Cheney refuses to comply with the order, and instead appeals Sullivan’s decision, asking an appeals court to summarily dismiss Sullivan’s ruling without first making Cheney show the documents to a judge. The appeals court will turn Cheney down, paving the way for a Supreme Court hearing (see December 15, 2003). [Savage, 2007, pp. 160-161]
According to Sen. Bob Graham (D-FL), the 9/11 Congressional Inquiry he co-chairs later will uncover a CIA memo written on this date. The author of the memo writes about hijackers Khalid Almihdhar and Nawaf Alhazmi and concludes that there is “incontrovertible evidence that there is support for these terrorists within the Saudi government.” [Graham and Nussbaum, 2004, pp. 169] Apparently, this memo will be discussed in the completely censored section of the Inquiry’s final report that deals with foreign government involvement in the 9/11 plot (see August 1-3, 2003). Osama Basnan, one of the key players in a suspected transfer of funds from the Saudi government to these two hijackers, is arrested in the US a few weeks after this memo is written, but he will be deported two months after that (see August 22-November 2002).
Kevin Ryan. [Source: Health Web Summit]Kevin Ryan is sworn in as the US Attorney for the Northern District of California. A former deputy district attorney, Ryan has served as a municipal court judge in San Francisco and a California Superior Court judge. [CBS News, 2007; US Department of Justice, Office of the Inspector General, 9/29/2008; Talking Points Memo, 2011] Ryan comes in after the strong but contentious tenure of his predecessor, Robert Mueller, who left in 2001 to head the FBI. Mueller was succeeded for a year by interim US Attorney David Shapiro. Mueller came to the Northern District in 1998, after his predecessor, Michael Yamaguchi, resigned under fire for letting the office’s morale sink and the caseload dwindle. Mueller fired a dozen supervisors in his first six months on the job and pushed his staff to file more cases. His critics termed Mueller a dictator, but “Main Justice” in Washington considered him a star. He revamped the office and refurbished its reputation, and successfully prosecuted several high-profile cases. When Mueller left to join the FBI, the Justice Department wanted to find someone equally capable to replace him. Ryan is not only a respected judge, but a devoted Republican who routinely listens to Rush Limbaugh in his court chambers. Former federal prosecutor Rory Little says of Ryan: “He’s a real Boy Scout. He believes in the work.” Yamaguchi’s predecessor, Joseph Russoniello, chaired the search committee that selected Ryan for the job. Russoniello said that although Ryan lacks federal court experience, that deficiency should not hinder his ability to head the office. In 2002, he told a reporter, “What is important is the capacity to manage a lot of people who do have a deep understanding of the rules.” [SF Weekly, 10/4/2006] 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]
The interrogation and abuse of suspect Mohamed al-Khatani (sometimes spelled “al-Qahtani”—see February 11, 2008) at Guantanamo Bay begins. He is alleged to have tried to enter the US to participate in the 9/11 plot as the twentieth hijacker. He is classified as “Detainee 063.” He is subjected to 160 days of isolation in a pen flooded 24 hours a day with bright artificial light, that treatment starting well before harsher interrogation tactics begin six weeks later (see November 23, 2002). The tactics include:
He is interrogated for 48 of 54 days, for 18 to 20 hours at a stretch.
He is stripped naked and straddled by taunting female guards, in an exercise called “invasion of space by a female.”
He is forced to wear women’s underwear on his head and to put on a bra.
He is threatened by dogs, placed on a leash, and told that his mother was a whore.
He is stripped naked, shaved, and forced to bark like a dog.
He is forced to listen to American pop music at ear-splitting volume. He is subjected to a phony kidnapping (see Mid-2003).
He is forced to live in a cell deprived of heat
He is given large quantities of intravenous liquids and denied access to a toilet
He is deprived of sleep for days on end.
He is forcibly given enemas, and is hospitalized multiple time for hypothermia.
Impact - Towards the end of the extended interrogation session, Al-Khatani’s heart rate drops so precipitously (to 35 beats a minute) that he is placed under cardiac monitoring. Interrogators meticulously note his reactions to his treatment, and make the following notes at various times: “Detainee began to cry. Visibly shaken. Very emotional. Detainee cried. Disturbed. Detainee began to cry. Detainee bit the IV tube completely in two. Started moaning. Uncomfortable. Moaning. Began crying hard spontaneously. Crying and praying. Very agitated. Yelled. Agitated and violent. Detainee spat. Detainee proclaimed his innocence. Whining. Dizzy. Forgetting things. Angry. Upset. Yelled for Allah. Urinated on himself. Began to cry. Asked God for forgiveness. Cried. Cried. Became violent. Began to cry. Broke down and cried. Began to pray and openly cried. Cried out to Allah several times. Trembled uncontrollably.” In November 2002, an FBI agent describes al-Khatani’s condition, writing that he “was talking to non-existent people, reporting hearing voices, [and] crouching in a corner of the cell covered with a sheet for hours on end.” Al-Khatani confesses to an array of terrorist activities and then recants them; he begs his interrogators to be allowed to commit suicide. The last days of al-Khatani’s interrogation session is particularly intense, since interrogators know that their authorization to use harsh techniques may be rescinded at any time. They get no useful information from him. By the end of the last interrogation, an Army investigator observes that al-Khatani has “black coals for eyes.” [New Yorker, 2/27/2006; Vanity Fair, 5/2008]
Reaching the Threshold - In the summer of 2007, Dr. Abigail Seltzer, a psychiatrist who specializes in trauma victims, reviews the logs of al-Khatani’s interrogations. Seltzer notes that while torture is not a medical concept: “[O]ver the period of 54 days there is enough evidence of distress to indicate that it would be very surprising indeed if it had not reached the threshold of severe mental pain…. If you put 12 clinicians in a room and asked them about this interrogation log, you might get different views about the effect and long-term consequences of these interrogation techniques. But I doubt that any one of them would claim that this individual had not suffered severe mental distress at the time of his interrogation, and possibly also severe physical distress.” Everything that is done to al-Khatani is part of the repertoire of interrogation techniques approved by Secretary of Defense Donald Rumsfeld (see December 2, 2002).
Fundamental Violation of Human Rights - In 2008, law professor Phillippe Sands will write: “Whatever he may have done, Mohammed al-Khatani was entitled to the protections afforded by international law, including Geneva and the torture convention. His interrogation violated those conventions. There can be no doubt that he was treated cruelly and degraded, that the standards of Common Article 3 were violated, and that his treatment amounts to a war crime. If he suffered the degree of severe mental distress prohibited by the torture convention, then his treatment crosses the line into outright torture. These acts resulted from a policy decision made right at the top, not simply from ground-level requests in Guantanamo, and they were supported by legal advice from the president’s own circle.” [Vanity Fair, 5/2008]
Activists with the Earth Liberation Front (ELF—see 1997) claim responsibility for an arson attack on a US Forest Service research facility in Irvine, Pennsylvania, that causes over $700,000 in damages. ELF issues a statement suggesting that it is willing to take even more drastic measures to force the US government to stop its depredations against the environment. The statement says, “While innocent life will never be harmed in any action we undertake, where it is necessary, we will no longer hesitate to pick up the gun to implement justice, and provide the needed protection for our planet that decades of legal battles, pleading, protest, and economic sabotage have failed so drastically to achieve.” [Anti-Defamation League, 2005; Anarchist News, 9/11/2008]
US Attorney Bud Cummins of the Eastern District of Arkansas writes a letter of appreciation to Timothy Griffin, the research director and deputy communications director of the Republican National Committee. Griffin recently served as a Special Assistant US Attorney in Cummins’s office. Cummins writes that “you performed at the highest level of excellence during your time here… served the office extremely well,” and “indicted more people during your time here than any other AUSA. You were a real workhorse, and the quality of your work was excellent.” He praises Griffin for planning, organizing, and implementing “an awesome” Project Safe Neighborhoods (PSN) program, a Justice Department initiative focused on reducing gun violence in American communities. “I am not aware of a better PSN program in the country,” he writes. “You should be pleased to know that our PSN program was highly recognized and commended in a recent department evaluation” (see April or August 2002). [US House of Representatives, Committee on the Judiciary, 5/21/2007 ]
Deena Burnett, wife of Flight 93 passenger Tom Burnett, speaks on behalf of the victims’ relatives suing the Saudis. [Source: Associated Press]More than 600 relatives of victims of the 9/11 attacks file a 15-count, $1 trillion lawsuit against various parties they accuse of financing al-Qaeda and Afghanistan’s former Taliban regime. The number of plaintiffs will quickly increase to 2,500 after the suit is widely publicized. Up to 10,000 were eligible to join this suit. The lawsuit does not allege that Saudi defendants directly participated in the 9/11 attacks, or approved them. Instead, it is alleged they helped fund and sustain al-Qaeda, which enabled the attacks to occur. [Washington Post, 8/16/2002; Newsweek, 9/13/2002] Defendants named include:
The Saudi Binladin Group, the conglomerate owned by the bin Laden family. [CNN, 8/15/2002]
The National Commercial Bank, one of the largest banks in Saudi Arabia. [Associated Press, 8/15/2002]
The government of Sudan, for letting bin Laden live in that country until 1996. [Washington Post, 8/16/2002]
The World Assembly of Muslim Youth (WAMY). [Washington Post, 8/16/2002]
The SAAR Foundation. [Washington Post, 8/16/2002]
Al-Rajhi Banking & Investment Corp., which the plaintiffs contend is the primary bank for a number of charities that funnel money to terrorists. (This bank will later be dismissed from the suit (see November 14, 2003-September 28, 2005).) [Washington Post, 8/16/2002]
The Benevolence International Foundation. [Washington Post, 8/16/2002]
The International Islamic Relief Organization (IIRO) and its parent organization, the Muslim World League (MWL). The suit claims that the IIRO gave more than $60 million to the Taliban. [Washington Post, 8/16/2002]
Khalid bin Mahfouz, one-time prominent investor in the Bank of Credit and Commerce International (BCCI) who had to pay a $225 million fine following the collapse of that bank. It is claimed he later operated a bank that funneled millions of dollars to charities controlled by al-Qaeda. (Mahfouz denies supporting terrorism and has filed a motion to dismiss the complaint.) [Washington Post, 8/16/2002]
Mohammed al Faisal al Saud, a Saudi prince. (His name will later be dismissed from the suit because of diplomatic immunity (see November 14, 2003-September 28, 2005).) [Washington Post, 8/16/2002]
Saudi Defense Minister Prince Sultan. (His name will later be dismissed from the suit because of diplomatic immunity (see November 14, 2003-September 28, 2005).) [Washington Post, 8/16/2002]
Prince Turki al-Faisal, former chief of Saudi intelligence. (His name will later be dismissed from the suit because of diplomatic immunity (see November 14, 2003-September 28, 2005).) [Washington Post, 8/16/2002] “The attorneys and investigators were able to obtain, through French intelligence, the translation of a secretly recorded meeting between representatives of bin Laden and three Saudi princes in which they sought to pay him hush money to keep him from attacking their enterprises in Saudi Arabia.” [CNN, 8/15/2002] The plaintiffs also accuse the US government of failing to pursue such institutions thoroughly enough because of lucrative oil interests. [BBC, 8/15/2002] Ron Motley, the lead lawyer in the suit, says the case is being aided by intelligence services from France and four other foreign governments, but no help has come from the Justice Department. [Star-Tribune (Minneapolis), 8/16/2002] The plaintiffs acknowledge the chance of ever winning any money is slim, but hope the lawsuit will help bring to light the role of Saudi Arabia in the 9/11 attacks. [BBC, 8/15/2002] A number of rich Saudis respond by threatening to withdraw hundreds of billions of dollars in US investments if the lawsuit goes forward (see August 20, 2002). More defendants will be added to the suit later in the year (see November 22, 2002). [Daily Telegraph, 8/20/2002]
Entity Tags: Saudi Binladin Group, Sudan, Taliban, SAAR Foundation, Sultan bin Abdul Aziz Al Saud, Ron Motley, International Islamic Relief Organization, Khalid bin Mahfouz, Al-Qaeda, National Commercial Bank, Al-Rajhi Banking & Investment Corp., Turki al-Faisal, World Assembly of Muslim Youth, Benevolence International Foundation
Timeline Tags: Complete 911 Timeline, 9/11 Timeline
The district court at Norfolk finds that the Mobbs declaration (see July 25, 2002) “falls far short” of providing a basis for the continuing detention of “enemy combatant” Yaser Esam Hamdi without due process of law. “If the Court were to accept the Mobbs Declaration as sufficient justification for detaining Hamdi…, this Court would be acting as little more than a rubber stamp,” judge Robert Doumar writes in his ruling. He again orders the government to produce additional evidence, including copies of Hamdi’s statements, notes by his interrogators, statements by members of the Northern Alliance and relevant names, dates, and locations. [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/16/2002 ; Washington Post, 1/9/2003] Doumar says the government’s arguments lead “to more questions than answers.” For example:
The Mobbs Declaration does not say what authority Mobbs has, as “Special Advisor” to the Undersecretary of Defense for Policy, to determine the classification of a detainee. He says that during the August 13 hearing (see August 13, 2002), the government’s attorney was unable to do so. [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/16/2002 ]
The government has provided no reason “for Hamdi to be in solitary confinement, incommunicado for over four months and being held some eight-to-ten months without any charges of any kind.” [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/16/2002 ]
Though it is claimed that Hamdi was “affiliated with a Taliban military unit and received weapons training,” the declaration makes no attempt to explain the nature of this “affiliation” or why the “affiliation” warrants the classification of Hamdi as an enemy combatant. Furthermore, the declaration “never claims that Hamdi was fighting for the Taliban, nor that he was a member of the Taliban.” [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/16/2002 ]
Assertions in the document concerning statements made by Hamdi appear to be paraphrased. Hamdi’s actual statements are not provided. “Due to the ease with which such statements may be taken out of context, the Court is understandably suspicious of the Respondent’s assertions regarding statements that Hamdi is alleged to have made,” the court ruling says. [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/16/2002 ]
The envelope mailed to the Connecticut State Attorney’s Office. [Source: FBI]The Connecticut State Attorney’s Office receives a threatening letter containing a white powdery substance. The letter, addressed to US Attorney John A. Danaher, mentions anthrax, and references Osama bin Laden. Laboratory analysis will confirm that the white powder does not contain anthrax or any other toxins. The office will be closed for two days. The letter is later found to have been mailed from a prison in Cheshire, Connecticut, and the mailer is soon identified as inmate Noel Davila. Davila will confess to preparing and mailing the letter. He will be convicted of threatening to use weapons of mass destruction, and will be sentenced to 35 years in prison. [Associated Press, 9/23/2002; Federal Bureau of Investigation, 2009]
Judge Robert Doumar of the US District Court in Norfolk stays proceedings in the case of “enemy combatant” Yaser Esam Hamdi and issues a request to the Fourth Circuit to respond to the question “whether the Mobbs Declaration, standing alone, is sufficient as a matter of law to allow a meaningful judicial review of Yaser Esam Hamdi’s classification as an enemy combatant.” [Certification Order and Stay. Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/21/2002 ]
The Sixth US Court of Appeals in Cincinnati unanimously rejects the Bush administration’s claim for blanket secrecy regarding immigration court proceedings (see September 21, 2001). In a 3-0 ruling, the court rules in Detroit Free Press v. Ashcroft that the administration’s secret deportation-hearing policy goes too far in restricting the public’s right to know what the government is doing. Selectively closing individual deportation hearings for national security reasons might be justifiable, the court rules, but the government cannot simply sequester all such hearings. Appeals court judge Damon Keith, a Carter appointee, writes: “In an area such as immigration, where the government has nearly unlimited authority… the press and the public serve as perhaps the only check on abusive government practices.… The executive branch seeks to uproot people’s lives, outside the public eye and behind a closed door. Democracies die behind closed doors. The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When the government begins closing doors, it selectively controls information rightly belonging to the people. Selective information is misinformation. The Framers of the First Amendment did not trust any government to separate the true from the false for us. They protected us against secret government.” Keith is well known for his widely cited ruling of 30 years before against a government program of warrantless wiretapping (see June 19, 1972). [Savage, 2007, pp. 95] Another appeals court will rule in favor of the Bush administration in a separate lawsuit on the same issue (see October 2, 2002).
Michael H. Mobbs, the special adviser to the undersecretary of defense for policy, files a six-page document asserting that “enemy combatant” Jose Padilla (see June 9, 2002) “has been closely associated with known members and leaders of the al-Qaeda terrorist network”; that he trained at al-Qaeda camps and “met with senior Osama Bin Laden lieutenant Abu Zubaida,” whom he approached “with [a] proposal to conduct terrorist operations within the United States”; and that he talked about a plan “to build and detonate a ‘radiological dispersal device…’ within the United States, possibly in Washington, D.C.” But the document also acknowledges that the “plan” was “still in the initial planning stages.” Finally, the declaration states that “it is believed that al-Qaeda members directed Padilla to return to the United States to conduct reconnaissance and/or other attacks on behalf of al-Qaeda.” The declaration concedes that the evidence on which its assertions are based are not entirely solid, noting that its intelligence sources “have not been completely candid about their association with al-Qaeda and their terrorist activities” and that “some information provided by the sources remains uncorroborated and may be part of an effort to mislead or confuse US officials.” [Fox News, 8/28/2002; Washington Post, 9/1/2002; Newsweek, 6/9/2004]
German authorities charge Mounir El Motassadeq with complicity in the 9/11 attacks. He was arrested in Germany two months after 9/11 (see November 28, 2001). He is only the second person in the world to be charged with any crime related to the 9/11 attacks (after Zacarias Moussaoui). He is charged with helping finance hijacker Mohamed Atta and others in the Hamburg al-Qaeda cell. [Agence France-Presse, 8/29/2002; New York Times, 8/29/2002]
The state of Florida settles a voter discrimination suit filed by the National Association for the Advancement of Colored People (NAACP) in the wake of allegations of massive and widespread discrimination during the November 2000 elections (see November 7, 2000 and April 24, 2001). The class-action suit charged Database Technologies (DBT), a private firm hired by the Florida government, and Florida Secretary of State Katherine Harris with deliberately attempting to disenfranchise black voters. Florida agrees to provisions that nominally settle the problem, but by 2004 will have implemented virtually none of the corrective procedures mandated by the settlement. Miami-Dade, Broward, Leon, Volusia, and Duval Counties settled earlier rather than face trial. [Center for American Progress, 12/9/2010]
As Bush administration lawyers warn that Vice President Cheney and his Pentagon allies are setting the government up for defeat in the courts with their hardline advice on interrogation techniques (see Late 2001-Early 2002, January 25, 2002, April 2002 and After, and August 1, 2002) and indefinite detentions (see After September 11, 2001 and December 2001-January 2002), one of the uneasiest of Justice Department lawyers is Solicitor General Theodore Olson. Cheney and Olson have similar views on the expansion of presidential powers, but his job in the administration is to win court cases. Olson is not sure that Cheney’s legal arguments are tenable. Olson is particularly worried about two pending cases, those of US citizens Jose Padilla (see June 10, 2002) and Yaser Esam Hamdi (see December 2001 and August 16, 2002). Both have been declared enemy combatants and denied access to lawyers. Olson warns that federal courts will not go along with that provision, but he finds himself opposed by CIA and Pentagon officials. When Olson and other lawyers propose that Padilla and Hamdi be granted lawyers, Cheney’s chief lawyer, David Addington, beats back their proposal because, says deputy White House counsel Timothy Flanigan, “that was the position of his client, the vice president.” The issue comes to a head in the West Wing office of Alberto Gonzales, the White House’s chief legal counsel. Four officials with direct knowledge of the meeting later recall the chain of events. Olson has the support of associate White House counsel Bradford Berenson, a former law clerk to Supreme Court Justice Anthony Kennedy. Berenson says that Kennedy, the Court’s swing vote, will never accept absolute presidential authority to declare a US citizen an enemy and lock him away without benefit of counsel. Another former Kennedy law clerk, White House lawyer Brett Kavanaugh, had made the same argument earlier. Addington, representing Cheney in the meeting, accuses Berenson of surrendering presidential authority on what he calls a fool’s prophecy about the Court; Berenson retorts by accusing Addington of “know-nothingness.” Gonzales listens quietly as the Justice Department and his own staff line up against Addington. He finally makes a decision: in favor of Cheney and Addington. [Washington Post, 6/25/2007]
Entity Tags: US Department of Defense, Brett Kavanaugh, Bradford Berenson, Alberto R. Gonzales, Central Intelligence Agency, Theodore (“Ted”) Olson, David S. Addington, Richard (“Dick”) Cheney, US Department of Justice, Jose Padilla, Yaser Esam Hamdi, Timothy E. Flanigan
Timeline Tags: Civil Liberties
In 2008, Scott McClellan, the current White House deputy press secretary, will write of President Bush’s lowering of accepted standards to allow for a pre-emptive war. McClellan will write: “Bush was now lowering the bar for engaging in pre-emptive war, a step that might have been more widely viewed as radical had it occurred prior to 9/11. The [Bush] doctrine (see 8:30 p.m. September 11, 2001) unambiguously stated that while the United States would always proceed deliberately and carefully weigh the consequences of actions, it would not hesitate to use force if necessary to preempt not just an ‘imminent’ threat but a ‘grave and gathering’ one if need be (see September 16, 2002). It was based on the assumption that waiting for a threat to become imminent before acting would likely mean that we would respond too late. And this new principle encoded in our new national security strategy was clearly aimed in part in paving the way to removing Saddam Hussein from power by force.” [McClellan, 2008, pp. 134]
According to the later recollections of senior AT&T technician Mark Klein (see July 7, 2009), rumors are swirling throughout AT&T regarding a “secret room” being built at the company’s facility at 611 Folsom Street in San Francisco (see Summer 2002). (At this time, Klein works at another AT&T facility located on San Francisco’s Geary Street; he will later begin working at the Folsom Street facility.) In January 2003, Klein will learn that the rumors are true, and that the room is to be used by the National Security Agency (NSA) (see January 2003). [Klein, 2009, pp. 26-28]
A CIA analyst visits Guantanamo and returns convinced that war crimes are being committed there. According to a former White House official, the analyst concludes that “if we captured some people who weren’t terrorists when we got them, they are now.” The CIA agent estimates at least more than half of the prisoners at Guantanamo do not belong there. [Guardian, 9/13/2004] John A. Gordon, Deputy National Security Adviser for combating terrorism, a former deputy director of the CIA and a retired four-star general, reads the highly critical report on Guantanamo by the CIA analyst in the early autumn of 2002. The analyst’s account of US activities at Guantanamo, he says, is “totally out of character with the American value system.” He says he also believes “that if the actions at Guantanamo ever became public, it’d be damaging to the president.” He is convinced the report is important material. “We got it up to Condi [National Security Adviser Condoleezza Rice],” he recalls. Gordon is most concerned about whether many of the prisoners at Guantanamo are not in fact innocent. “It was about how many more people are being held there that shouldn’t be,” a former White House official tells Seymour Hersh. “Have we really got the right people?” The briefing for Rice does not center on the treatment of the prisoners, but on questions of practicality: “Are we getting any intelligence? What is the process for sorting these people?” The concerns are serious enough for Rice to call a meeting at the White House with Gordon and Defense Secretary Rumsfeld. Rice allegedly says, “Let’s get the story right.” Rumsfeld seems to be agreeing and looks willing to deal with the problem. However, according to the disappointed White House official, “The Pentagon went into a full-court stall.” He says, “I was naive enough to believe that when a cabinet member says he’s going to take action, he will.” [Guardian, 9/13/2004]
A memo prepared for Colonel Brittain Mallow, the commander of the Army’s Criminal Investigation Task Force (CITF), documents objections raised by Mallow to the harsh interrogation methods—torture—being used at Guantanamo Bay. Mallow’s memo cites “unacceptable methods” involving “threats,” “discomfort,” and “sensory deprivation,” and provides guidance to CITF agents on permissible interrogation methods for use on detainees. Mallow instructs his unit not to take part in “any questionable” interrogation techniques at the prison. In 2008, the American Civil Liberties Union (ACLU) will observe, “The memo suggests that CITF expressed disapproval of abusive methods used at Guantanamo as far back as September 2002.” [American Civil Liberties Union, 5/14/2008]
In early September 2002, a group of senior Bush administration officials gathers for a secret videoconference to decide what to do with the “Lackawanna Six,” the six Yemeni-Americans living in Lackawanna, New York, who had attended an al-Qaeda training camp before 9/11. Vice President Dick Cheney and Defense Secretary Donald Rumsfeld argue that the men should be locked up indefinitely as “enemy combatants,” and thrown into a military brig with no right to trial or even to see a lawyer. The US has already done this with two other US citizens, Yaser Hamdi and Jose Padilla. According to a participant in the meeting, Cheney argues, “They are the enemy, and they’re right here in the country.” However, all six men left their basic training course early and there is no evidence any of them had carried out or even planned any terrorist acts (see April-August 2001). Attorney General John Ashcroft insists he can bring a tough criminal case against them for providing “material support” to al-Qaeda. Ashcroft wins the argument and the six men are formally charged several days later (see September 13, 2002). [Newsweek, 10/10/2007] The six men will all eventually strike plea bargains and plead guilty, saying they were essentially forced to because the government made clear that if they fought the charges they would be declared enemy combatants (see May 19, 2003).
Over 1,400 relatives of 9/11 attack victims sue Iraq for more than $1 trillion, claiming there is evidence Iraq conspired with al-Qaeda on the 9/11 attacks. [CBS News, 9/5/2002] One of the key pieces of evidence cited is an article in a small town Iraqi newspaper written by Naeem Abd Muhalhal on July 21, 2001. He describes bin Laden thinking “seriously, with the seriousness of the Bedouin of the desert, about the way he will try to bomb the Pentagon after he destroys the White House.” He adds that bin Laden is “insisting very convincingly that he will strike America on the arm that is already hurting,” which has been interpreted as a possible reference to the 1993 bombing of the WTC. Iraqi leader Saddam Hussein apparently praised this writer on September 1, 2001. The lawsuit is based largely on the idea that “Iraqi officials were aware of plans to attack American landmarks,” yet did not warn their archenemy, the US. [Associated Press, 9/4/2002] Former CIA agent and terrorism consultant Robert Baer is hired by the prosecuting legal team to find evidence of a meeting between Mohamed Atta and Iraqi agents on April 8, 2001, but despite the help of the CIA, he is unable find any evidence of such a meeting. [CBS News, 9/5/2002]
A US and European operation to crack down on the trafficking of women in Europe for the sex trade has mixed success. Authorities conduct 20,558 raids between September 7 and September 16, 2002 across Central and Eastern Europe, arresting 293 traffickers and netting 237 victims. National and international police officers mount 71 raids on Bosnia nightclubs, hotels, and other locations and arrest seven trafficking suspects. In Bulgaria, 2,079 individual raids are conducted with 258 people identified as traffickers and 64 women as trafficking victims. Romania reports 2,597 raids, identifying 47 traffickers and 37 women classified as sex slaves. Other countries conducting raids include Albania, Croatia, Macedonia, Yugoslavia, Greece, Hungary, Moldova, Romania, Turkey, and Ukraine. [New York Times, 10/20/2002]
Right before the expiration of a one-year legal deadline, the Port Authority, the government body that owns the WTC complex, is sued by five insurance companies, one utility and 700 relatives of the WTC victims. The insurance companies and utility are suing because of safety violations connected to the installation of diesel fuel tanks in 1999 that many blame for the collapse of WTC Building 7. [Dow Jones Business News, 9/10/2002] The relatives’ lawsuit is much more encompassing, and even blames the Port Authority for the Flight 93 hijacking (the Port Authority owns Newark airport, where the flight originated). The relatives’ lawsuit is likely to lie dormant for at least six months as evidence is collected. Relatives are also considering suing the airlines, security companies, and other entities. [Newsweek, 9/13/2002]
The FBI arrests six US citizens with a Yemeni background, on information provided by the CIA: Sahim Alwan, Mukhtar al-Bakri, Faysal Galab, Yahya Goba, Shafel Mosed and Yaseinn Taher. Five are arrested in their hometown Lackawanna, a suburb of Buffalo, New York. The sixth, who is connected to the other five, is arrested in Bahrain and then transferred to the US. [CBS News, 11/9/2002] They are hereafter nicknamed “the Lackawanna Six.” They reportedly traveled to Afghanistan in April and May 2001 to join in Islamic jihad and receive military training at the Al Farooq training camp run by al-Qaeda (see April-August 2001). They also allegedly met with Osama bin Laden (see (June 2001)). They are believed to have been encouraged to go to Afghanistan by two American veteran mujaheddin, Juma al-Dosari and Kamal Derwish, who fought in the war in Bosnia and who visited Lackawanna in early 2001. [Washington Post, 7/29/2003] One month later, a federal jury indicts the Lackawanna Six on two counts of providing material support to terrorism. They are charged with supporting terrorism. If found guilty, they could face up to 15 years in prison. All of them plead not guilty. [CBS News, 10/22/2002]
A group of nineteen House Democrats form a coalition against war in Iraq and draft a resolution advocating multilateral diplomacy. [Washington Times, 9/20/2002] Representative Barbara Lee of California introduces a resolution advocating that “the United States… work through the United Nations to seek to resolve the matter of ensuring that Iraq is not developing weapons of mass destruction, through mechanisms such as the resumption of weapons inspections, negotiation, enquiry, mediation, regional arrangements, and other peaceful means.” The resolution has twenty-six co-sponsors. [US Congress, 9/19/2002 ] The resolution dies in the House Committee on International Relations.
Several high-level Bush administration lawyers arrive in Guantanamo. The group includes White House counsel Alberto Gonzales; Vice President Cheney’s chief of staff David Addington, who had helped the Justice Department craft its “torture memo” (see August 1, 2002); CIA legal counsel John Rizzo, who had asked the Justice Department for details about how interrogation methods could be implemented (see June 22, 2004); and the Pentagon’s general counsel, William J. Haynes. They are at Guantanamo to discuss the case of suspected “20th hijacker” Mohamed al-Khatani (see August 8, 2002-January 15, 2003).
Pressure from Washington - The commander of the Guantanamo facility, Major General Michael Dunlavey, will recall: “They wanted to know what we were doing to get to this guy, and Addington was interested in how we were managing it… They brought ideas with them which had been given from sources in DC. They came down to observe and talk.” Dunlavey will say that he was pressured by Defense Secretary Donald Rumsfeld himself to expedite the interrogation and use extraordinary means to squeeze information from the suspect. “I’ve got a short fuse on this to get it up the chain,” Dunlavey recalls. “I was on a timeline. This guy may have been the key to the survival of the US.” Asked how high up the pressure was from, Dunlavey will say, “It must have been all the way to the White House.” Rumsfeld is “directly and regularly involved” in all the discussions of interrogations.
'Do Whatever Needed to Be Done' - Staff judge advocate Lieutenant Colonel Diane Beaver will recall that Addington is “definitely the guy in charge,” taking control of the discussions. Gonzales is quiet. Haynes, a close friend and colleague of Addington’s, seems most interested in how the military commissions would function to try and convict detainees. The lawyers meet with intelligence officials and themselves witness several interrogations. Beaver will recall that the message from Addington and his group is “Do whatever needed to be done.” In essence, the Guantanamo interrogators and commanders are given a green light from the administration’s top lawyers, representing President Bush, Vice President Cheney, Rumsfeld, and the CIA. [Vanity Fair, 5/2008]
Entity Tags: William J. Haynes, US Department of Justice, Mohamed al-Khatani, Michael E. Dunlavey, David S. Addington, Diane E. Beaver, Central Intelligence Agency, Alberto R. Gonzales, Bush administration (43), Richard (“Dick”) Cheney, Donald Rumsfeld, John Rizzo, George W. Bush
Timeline Tags: Torture of US Captives, Civil Liberties
Habib Souaidia. [Source: Public domain]Algerian general Khaled Nezzar loses a libel suit in France against Habib Souaidia, a former lieutenant in the Algerian army. Souaidia claimed in a 2001 book that in the 1990s the Algerian army frequently massacred Algerian civilians and then blamed Islamic militants for the killings. The French court rules that the contents of Souaidia’s book are “legitimate.” The court declares that it could not judge Algeria’s history but Souaidia had acted in good faith in making his allegations. [Agence France-Presse, 9/27/2002; Inter Press Service, 9/30/2002] Souaidia served in the Algerian army until 1996 and took part in operations against Islamic militants. Nezzar is considered the real power in Algeria, still ruling behind a facade of civilian rule ever since the early 1990s. Several former Algerian officers living in exile testified in court and corroborated Souaidia’s statements. For instance:
Souaidia told the French court, “In the beginning we spoke about restoring order in the country. But very soon the generals made of us an army of wild murderers.… We had permission to kill whoever we wanted to for nothing at all.” He pointed to Nezzar in the courtroom and said that “at the same time they were counting the millions of dollars they had stolen from the people.”
Former colonel Mohammed Samraoui testified that “the Algerian army used all means to attack the Islamic rebellion: blackmail, corruption, threats, killings…we used terrorist methods to attack terrorism even before it had appeared.”
Former officer Ahmed Chouchene said that soldiers were told they could kill civilians as much as they liked as long as they could “produce a false explanation for the killings.” They were taught that “their role was not to apply law, but to circumvent it.” [Inter Press Service, 9/30/2002]
On the second day of his detention, Maher Arar, a Canadian, is questioned for eight hours. At the end of his interrogation, a US immigration agent enters the room and asks Arar if he would like to go to Syria. “No way,” Arar recalls saying. “I wanted to go home. He said you are a special interest. They asked me to sign a form. They would not let me read it, but I just signed it. I was exhausted and confused.” [Washington Post, 11/12/2003] He has not slept since coming off an airplane 27 hours ago. He is then taken to the New York Metropolitan Detention Center (MDC), where he is strip-searched. A doctor gives him injection, which he is told is a vaccination. But the doctor refuses to explain what the injected fluid is. “My arm was red for almost two weeks from that,” Arar will later remember. For the first few days, Arar is interrogated several times and he is granted neither a hearing nor provided the opportunity to contact family, friends, or a lawyer. He is shown a document that says he is accused of being a member of al-Qaeda. On October 2, six days after his arrest, Arar is allowed to make a two-minute phone call. He contacts his mother-in-law and asks her to get him a lawyer. The next day or the day after, he fills out a form saying he prefers to be sent to Canada, not Syria. On October 4, he receives a visit from Canadian consul Maureen Girvan, whom he tells of his fear of being deported to Syria. That won’t happen, she assures him. A lawyer finally visits Arar on October 5, who tells him not to sign anything without her being present. [Maher Arar, 1/15/2005] The following night of October 6, guards take Arar out of his cell, saying his lawyer is waiting to see him. He is led into a room with seven or eight people, but his lawyer is not present. He is then informed that “he”—the lawyer—has refused to come. His lawyer, however, is female. The theme of the subsequent questioning is Syria and why he does not want to go there. “I told them,” Arar recalls, “I would be tortured there. I told them I had not done my military service; I am a Sunni Muslim; my mother’s cousin had been accused of being a member of the Muslim Brotherhood and was put in prison for nine years.” He is again asked to sign a document and he refuses. At 3 a.m. he is returned to his cell. [Maher Arar, 1/15/2005]
Shabbir Khan, an executive for the Saudi conglomerate Tamimi Global Co, throws a lavish birthday party for KBR procurement manager Stephen Seamans at a Tamimi “party house” near Camp Arifjan, a Kuwaiti base near the border. Khan gives Seamans the use of a prostitute as one of his birthday presents. Driving Seamans back home, Khan offers Seamans $130,000 in kickbacks. Five days after the party, with Seamans and Khan driving the deal, KBR awards Tamimi a $14.4 million mess hall subcontract for the upcoming invasion of Iraq. This and other information about KBR war profiteering in Iraq comes from a federal investigation that will begin in late 2007 (see October 2006 and Beyond). [Chicago Tribune, 2/20/2008; Chicago Tribune, 2/21/2008]
Congressional Republicans thwart an attempt to expand the Environmental Protection Agency (EPA)‘s ability to compel chemical facilities to prepare contingency plans for terrorist attacks (see December 1999 and Late September 2001). The 1990 Clean Air Act (CAA) allows the agency to force plants to plan for potentially calamitous accidents, and environmentalists and national security advocates argue that the CAA could easily be used in regards to having plants prepare for terrorist attacks. However, Republicans in Congress resist the idea. The EPA is unpopular among conservatives—Senator James Inhofe (R-OK) has called the agency a “Gestapo bureaucracy,” and House Majority Leader Tom DeLay (R-TX) has called it “the Gestapo of government”—and, along with industry representatives and lobbyists, the Republicans successfully persuade the EPA not to, in the agency’s words, “push the envelope” in interpreting the CAA. [Roberts, 2008, pp. 93]
The Third US Court of Appeals in Philadelphia rules 2-1 to uphold the Bush administration’s claim of blanket secrecy regarding immigration deportation hearings (see September 21, 2001). The ruling directly contradicts a ruling by the Sixth Appeals Court on the same issue (see August 26, 2002). Chief Judge Edward Becker, a Reagan appointee, rules that if a president or his top advisers decide that blanket closure of immigration deportation hearings is needed to protect national security, then the courts should defer to their judgment. “We are quite hesitant to conduct a judicial inquiry into the credibility of these security concerns, as national security is an area where courts have traditionally extended great deference to executive expertise.” Usually when two appellate courts conflict in their rulings, the Supreme Court settles the issue. However, the Bush administration does not appeal the loss in the other case, as the 9/11-related immigration sweeps are already concluded. In 2007, author Charlie Savage will write, “As a result, even though four of the six appeals court judges who reviewed the… directive rejected it as unconstitutional, the administration managed to create a precedent for a presidential power to impose blanket secrecy over immigration hearings that stands in forty-six states—everywhere except the Sixth Circuit’s Kentucky, Michigan, Ohio, and Tennessee.” [Savage, 2007, pp. 95-96]
The Army’s senior SERE psychologist, Lieutenant Colonel Morgan Banks, warns interrogators at Guantanamo against using SERE techniques in their questioning of detainees. The SERE program, which trains US soldiers to resist torture, has had its tactics “reverse-engineered” to be used against suspected terrorists (see December 2001, January 2002 and After, and July 2002). In an e-mail, Banks writes: “[T]he use of physical pressures brings with it a large number of potential negative side effects.… When individuals are gradually exposed to increasing levels of discomfort, it is more common for them to resist harder.… If individuals are put under enough discomfort, i.e. pain, they will eventually do whatever it takes to stop the pain. This will increase the amount of information they tell the interrogator, but it does not mean the information is accurate. In fact, it usually decreases the reliability of the information because the person will say whatever he believes will stop the pain.… Bottom line: the likelihood that the use of physical pressures will increase the delivery of accurate information from a detainee is very low. The likelihood that the use of physical pressures will increase the level of resistance in a detainee is very high.” [Huffington Post, 4/21/2009]
Judge Thomas S. Ellis III sentences John Walker Lindh, as expected (see July 15, 2002), to 20 years in a federal penitentiary. With a 15 percent credit for good behavior and time served, he could be released in 16 years and two months. [CBS News, 10/4/2002; CBS News, 10/4/2002]
British Attorney-General Lord Goldsmith and Solicitor-General Harriet Harman warn British Prime Minister Tony Blair that a preemptive war against Iraq, without UN backing, would violate international law and could potentially result in Britain being hauled before the International Criminal Court. [Financial Times, 10/7/2002]
Deputy Attorney General Larry Thompson, in his capacity as acting attorney general, signs an order to transfer Maher Arar from the US to Syria, stating, according to officials speaking on condition of anonymity, that sending him to Canada would be “prejudicial to the interests of the United States.” Arar has dual Canadian and Syrian citizenship and has expressed his fear of being tortured once extradited to Syria. One year later, Imad Moustafa, Syria’s charge d’affaires in Washington says Syria had no reason to detain Arar, but that his country has agreed to take him as a favor to the US and to win its goodwill. He also says US intelligence officials have told their Syrian counterparts that Arar is a member of al-Qaeda. [Washington Post, 11/19/2003]
FBI agent Robert Fuller interrogates Canadian citizen Omar Khadr at Bagram Air Base in Afghanistan. Fuller is an FBI agent who failed to locate the 9/11 hijackers in the US before 9/11 (see September 4, 2001, September 4-5, 2001, and September 4-5, 2001), while Khadr is a minor accused of throwing a hand grenade that killed a US soldier in Afghanistan. The interrogation lasts from October 7 to October 22. On the first day, Fuller shows Khadr a black-and-white photograph provided by the FBI in Massachusetts of Maher Arar, a Canadian terror suspect the US has been holding in New York (see September 26, 2002). Fuller will later say that Khadr identifies Arar as someone he has seen in a safe house run by al-Qaeda in Afghanistan and that he also “may have” seen Arar at a terror training camp near Kabul. However, at the time Khadr says he saw Arar in Afghanistan—September and October 2001—Arar was first in the US and then in Canada under surveillance by the local authorities, according to Walter Ruiz, a lawyer who will later represent Khadr. Ruiz will also point out that it takes Khadr several minutes to identify Arar. Another of Khadr’s lawyers, Lieutenant Commander Bill Kuebler, will say that Khadr repeatedly lies to his interrogators to avoid being abused. Deputy Attorney General Larry Thompson decides that Arar will be deported to Syria on this day (see October 7, 2002), and the deportation is soon carried out (see October 8, 2002). However, it is unclear whether Thompson’s decision is motivated by Fuller’s interrogation of Khadr or other factors. [CBC News, 1/20/2009; Canwest News Service, 1/20/2009] Fuller will testify about the identification at a Guantanamo hearing (see January 19, 2009), but facts calling it into question will emerge under cross-examination (see January 20, 2009).
At 3 o’clock in the morning, Maher Arar is woken up in his cell in New York and taken to another room where he is stripped, searched, shackled, and chained. Two officials read him a decision by the director of the INS, saying that he will be deported to Syria and, as Arar recalls it, “that INS was not the body that deals with Geneva Convention regarding torture.” There is no such convention, but this is probably a reference to the Convention Against Torture (CAT—see October 21, 1994). However, Article 3 of the CAT states: “No State Party shall expel… a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” In addition, the US immigration law cited to justify Arar’s deportation prohibits sending individuals to a country where “it is more likely than not that they will be tortured.” A Justice Department spokesman nevertheless maintains that “the removal of Mr. Arar was accomplished after interagency consultation and in full compliance with the law and with all relevant international treaties and conventions.” [Washington Post, 11/19/2003] On that early morning of October 8, Arar is put on a small jet. After a landing in Washington, a “special removal unit,” a term Arar overheard, boards the plane and is at this point in custody of the CIA. [Washington Post, 11/12/2003; Washington Post, 5/11/2004] “They said Syria was refusing to take me directly,” Arar will later recall, “and I would have to fly to Jordan.” Torture is again his prime thought. “At that time I was thinking of what would happen once I arrived in Syria and how am I to avoid torture.” Via Portland, Maine, and Rome, the jet lands in Amman, Jordan, where six or seven Jordanians are waiting for him. Without a word being spoken Arar is handed over. Blindfolded and chained, he is put in a van, and “right away,… they started beating me,” Arar recalls. Half an hour later inside a building, he is subjected to more questioning. [CBC News, 11/26/2004]
Visa applications for the 15 Saudi Arabian hijackers are made public, and six separate experts agree: “All of them should have been denied entry [into the US].” Joel Mowbray, who first breaks the story for the conservative National Review, says he is shocked by what he saw: “I really was expecting al-Qaeda to have trained their operatives well, to beat the system. They didn’t have to beat the system, the system was rigged in their favor from the get-go.” A former US consular officer says the visas show a pattern of criminal negligence. Some examples: “Abdulaziz Alomari claimed to be a student but didn’t name a school; claimed to be married but didn’t name a spouse; under nationality and gender, he didn’t list anything.”
“Khalid Almihdhar… simply listed ‘Hotel’ as his US destination—no name, no city, no state but no problem getting a visa.” Only one actually gave a US destination, and one stated his destination as “no.” Only Hani Hanjour had a slight delay in acquiring his visa. His first application was flagged because he wrote he wanted to visit for three years when the legal limit is two. When he returned two weeks later, he simply changed the form to read “one year” and was accepted. The experts agree that even allowing for chance, incompetence, and human error, the odds were that only a few should have been approved. [National Review, 10/9/2002; New York Post, 10/9/2002; ABC News, 10/23/2002] In response to the revelation, the State Department says, “The fact is that with 20/20 hindsight, I’m sure one can always find a reason that you might have turned down a visa.” [Nation Review Online, 10/10/2002; State Department, 10/10/2002]
San Diego FBI agent Steven Butler reportedly gives “explosive” testimony to the 9/11 Congressional Inquiry. Butler, recently retired, has been unable to speak to the media, but he was the handler for Abdussattar Shaikh, an FBI informant who rented a room to 9/11 hijackers Nawaf Alhazmi and Khalid Almihdhar. Butler claims he might have uncovered the 9/11 plot if the CIA had provided the FBI with more information earlier about Alhazmi and Almihdhar. [US News and World Report, 12/1/2002] He says, “It would have made a huge difference.” He suggests they would have quickly found the two hijackers because they were “very, very close.… We would have immediately opened… investigations. We would have given them the full court press. We would… have done everything—physical surveillance, technical surveillance, and other assets.” [US Congress, 7/24/2003 ; San Diego Union-Tribune, 7/25/2003] Butler discloses that he had been monitoring a flow of Saudi Arabian money that wound up in the hands of two of the 9/11 hijackers, but his supervisors failed to take any action on the warnings. It is not known when Butler started investigating the money flow, or when he warned his supervisors. [US News and World Report, 12/1/2002] The FBI had tried to prevent Butler from testifying, but was unsuccessful. [Washington Post, 10/11/2002] Following Butler’s testimony, Staff Director Eleanor Hill “detail[s] his statements in a memo to the Justice Department.” The Justice Department will decline comment on the matter, saying Butler’s testimony is classified. [US News and World Report, 12/1/2002] This testimony doesn’t stop the US government from deporting Basnan to Saudi Arabia several weeks later. [Washington Post, 11/24/2002]
The House votes to give President Bush sweeping authorization to use military force against Iraq, on an overwhelming 296-133 vote. One hundred and twenty-six Democrats vote against the bill even though House Minority Leader Richard Gephardt (D-MO) co-authored it. House Majority Leader Dick Armey (R-TX) issues a veiled warning to the president to use his newly granted powers judiciously: “Mr. President, we are about to give you a great trust.” After the bill passes the House, Bush says, “The days of Iraq acting as an outlaw state are coming to an end… [t]he gathering threat of Iraq must be confronted fully and finally.” One of the opponents of the House bill, John Spratt (D-SC), says that without an international diplomatic approach, “this will be the United States versus Iraq and in some quarters the US versus the Arab and the Muslim world.” Commenting on the passing of the resolution, the Washington Post reports: “Yesterday’s debate often lacked the passion and unpredictability of the 1991 affair, when members sat late into the night listening attentively to a war of words. By contrast, the House chamber was largely empty most of yesterday: the arguments familiar, the outcome certain, the conclusion anticlimactic.” [White House, 10/2/2002; PBS, 10/10/2002; Washington Post, 10/11/2002] Bush calls on the Senate to pass the bill (see October 11, 2002) so it can be signed into law as soon as possible (see October 16, 2002). The Senate overwhelmingly approves the resolution the next day. [PBS, 10/10/2002; US Senate, 10/11/2002] The AUMF contains a caveat in the authorization that conditions Congress’s authorization of military force on a formal determination by Bush that Iraq poses a threat to the US that cannot be contained diplomatically, and that any military action against Iraq must be consistent with the war against those who attacked the US on 9/11 (see March 18, 2003). The US media virtually ignores this condition, and therefore the Bush administration does not feel particularly bound by it. Congress asks for the formal declaration either before launching an attack or within 48 hours of the attack, and insists that the declaration contain solid evidence of the impossibility of further diplomacy, and of Iraq’s connection to the 9/11 terrorists. [Dean, 2004, pp. 143-148]
The German government arrests Abdelghani Mzoudi in Hamburg as part of its investigation into the 9/11 attacks. Mzoudi, a Moroccan, lived openly in Germany after 9/11. He was held for questioning in July but was later released. Prosecutors say he knew al-Qaeda’s “goals of launching terrorist attacks and supported it logistically.” [CNN, 10/10/2002] Mzoudi is the second person arrested in Germany on charges related to the 9/11 attacks, after Mounir El Motassadeq (see November 28, 2001). He will be charged in May 2003 (see May 9, 2003).
Lieutenant Colonel Diane Beaver, the top legal adviser to the Army’s interrogation unit at Guantanamo, JTF-170, writes a legal analysis of the extreme interrogation techniques being used on detainees. Beaver notes that some of the more savage “counter-resistance” techniques being considered for use, such as waterboarding (the use of which has resulted in courts-martials for users in the past) might present legal problems. She acknowledges that US military personnel at Guantanamo are bound by the Uniform Code of Military Justice, which characterizes “cruelty,” “maltreatment,” “threats,” and “assaults” as felonies. However, she reasons, if interrogators can obtain “permission,” or perhaps “immunity,” from higher authorities “in advance,” they might not be legally culpable. In 2006, a senior Defense Department official calls Beaver’s legal arguments “inventive,” saying: “Normally, you grant immunity after the fact, to someone who has already committed a crime, in exchange for an order to get that person to testify. I don’t know whether we’ve ever faced the question of immunity in advance before.” The official praises Beaver “for trying to think outside the box. I would credit Diane as raising that as a way to think about it.” Beaver will later be promoted to the staff of the Pentagon’s Office of General Counsel, where she will specialize in detainee issues. But Naval General Counsel Alberto Mora is less impressed. When he reads Beaver’s legal analysis two months later (see December 17-18, 2002), he calls it “a wholly inadequate analysis of the law.” According to Mora, the Beaver memo held that “cruel, inhuman, or degrading treatment could be inflicted on the Guantanamo detainees with near impunity.” Such acts are blatantly illegal, Mora believes. Mora will note that Defense Secretary Donald Rumsfeld bases his decision to approve such harsh “counter-resistance” techniques (see December 2, 2002) in part on Beaver’s memo. He will write that Rumsfeld’s decision “was fatally grounded on these serious failures of legal analysis.” Neither Beaver nor Rumsfeld will draw any “bright line” prohibiting the combination of these techniques, or defining any limits for their use. As such, this vagueness of language “could produce effects reaching the level of torture,” which is prohibited without exception both in the US and under international law. [New Yorker, 2/27/2006]
Written under Difficult Circumstances - Beaver later tells a more complete story of her creation of the memo. She insists on a paper trail showing that the authorization of extreme interrogation techniques came from above, not from “the dirt on the ground,” as she describes herself. The Guantanamo commander, Major General Michael Dunlavey, only gives her four days to whip up a legal analysis, which she sees as a starting point for a legal review of the interrogation policies. She has few books and materials, and more experienced lawyers at the US Southern Command, the Judge Advocate General School, the Joint Chiefs of Staff, and the DIA refuse to help her write the analysis. She is forced to write her analysis based on her own knowledge of the law and what she could find on the Internet. She bases her analysis on the previous presidential decision to ignore the Geneva Conventions, later recalling, “It was not my job to second-guess the president.” Knowing little of international law, she ignores that body of law altogether. She fully expects her analysis to be dissected and portions of it overridden, but she is later astonished that her analysis will be used as a legal underpinning for the administration’s policies. She has no idea that her analysis is to be used to provide legal cover for much more senior White House officials (see June 22, 2004). She goes through each of the 18 approved interrogation techniques (see December 2, 2002), assessing them against the standards set by US law, including the Eighth Amendment, which proscribes “cruel and unusual punishment,” the federal torture statutes, and the Uniform Code of Military Justice. Beaver finds that each of the 18 techniques are acceptable “so long as the force used could plausibly have been thought necessary in a particular situation to achieve a legitimate government objective, and it was applied in a good faith effort and not maliciously or sadistically for the very purpose of causing harm.” Law professor Phillippe Sands later observes: “That is to say, the techniques are legal if the motivation is pure. National security justifies anything.” The interrogators must be properly trained, Beaver notes, and any interrogations involving the more severe techniques must “undergo a legal, medical, behavioral science, and intelligence review prior to their commencement.” However, if all of the criteria are met, she “agree[s] that the proposed strategies do not violate applicable federal law.” Sands points out that her use of the word “agree” indicates that she “seems to be confirming a policy decision that she knows has already been made.”
'Awful' but Understandable - Sands later calls her reasoning “awful,” but understands that she was forced to write the memo, and reasonably expected to have more senior legal officials review and rewrite her work. “She could not have anticipated that there would be no other piece of written legal advice bearing on the Guantanamo interrogations. She could not have anticipated that she would be made the scapegoat.” Beaver will recall passing Vice President Cheney’s chief of staff David Addington in a Pentagon hallway shortly after she submitted the memo. Addington smiled at her and said, “Great minds think alike.” [Vanity Fair, 5/2008]
Entity Tags: Michael E. Dunlavey, Donald Rumsfeld, Diane E. Beaver, Defense Intelligence Agency, David S. Addington, Alberto Mora, Geneva Conventions, Judge Advocate General School, US Department of Defense, US Department of the Army, Phillippe Sands, Joint Chiefs of Staff, US Southern Command
Timeline Tags: Torture of US Captives, Civil Liberties
The Office of Legal Counsel (OLC)‘s John Yoo sends a classified memo to Attorney General John Ashcroft. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo’s subject is the legality of certain communications intelligence activities. [American Civil Liberties Union [PDF], 1/28/2009 ]
Two days after General Rick Baccus has been relieved from duty as the guard commander at Guantanamo (see October 9, 2002), and almost one and a half months since the writing of the Office of Legal Counsel’s (OLC) August memo on torture (see August 1, 2002), military intelligence at Guantanamo begin suggesting new rules of interrogation. Lieutenant Colonel Jerald Phifer, Director J2, sends a memo, to Major General Michael E. Dunlavey, Commander of Joint Task Force (JTF) 170, requesting approval for more severe interrogation techniques. [US Department of Defense, 10/11/2002 ; New Yorker, 2/27/2008] In 2009, Senator Carl Levin (D-MI) will write (see April 21, 2009) that Dunlavey’s request is sparked by recent reports on the use of SERE training techniques for interrogation purposes (see January 2002 and After and April 16, 2002). [Huffington Post, 4/21/2009]
Three Categories of Techniques - The memo states, “The current guidelines for interrogation procedures at GTMO [Guantanamo] limit the ability of interrogators to counter advanced resistance.” Phifer proposes three categories of techniques. The mildest, which includes yelling and weak forms of deception, are included in category one. Category two techniques are more severe and require approval by an “interrogator group director.” They include the use of stress positions for up to four hours; use of falsified documents; isolation for up to 30 days; sensory deprivation and hooding; 20-hour interrogations; removal of comfort and religious items; replacing hot food with cold military rations; removal of clothing; forced grooming, including the shaving of beards; and playing on detainees’ phobias to induce stress, such as a fear of dogs. The harshest techniques, listed in category three, are to be reserved for a “very small percentage of the most uncooperative detainees” and only used with permission from the commander of the prison. These methods include using non-injurious physical contact like poking or grabbing; threatening a detainee with death or severe pain or threatening that a family member would be subjected to such harm; exposing him to cold weather or water; using a wet towel to “induce the misperception of suffocation.” [US Department of Defense, 10/11/2002 ; New Yorker, 2/27/2008]
Desire to Extract More Information from Detainee - The request is prompted in part by military intelligence’s belief that Guantanamo detainee Mohamed al-Khatani has more information than the FBI has managed to extract from him. “Al-Khatani is a person in… whom we have considerable interest,” Dell’Orto will explain during a 2004 press briefing at the White House. “He has resisted our techniques. And so it is concluded at Guantanamo that it may be time to inquire as to whether there may be more flexibility in the type of techniques we use on him.” [Washington File, 6/23/2004]
JAG Officer Concludes Tactics are Legal - The same day, a staff judge advocate, Lieutenant Colonel Diane E. Beaver, reviews Phifer’s proposed techniques for legality and, while making qualifications and recommending further review, concludes in a memo to Dunlavey that they are legal. Also the same day, Dunlavey sends the list of techniques to his superior, General James T. Hill, commander of the Southern Command, requesting approval for their use. Dunlavey writes: “Although [the techniques currently employed] have resulted in significant exploitable intelligence the same methods have become less effective over time. I believe the methods and techniques delineated in the accompanying J-2 memorandum will enhance our efforts to extract additional information.” [US Department of Defense, 10/11/2002 ] Beaver concludes that since President Bush had decided that all the detainees “are not protected by the Geneva Conventions” (see January 18-25, 2002, February 7, 2002), all of the desired techniques are allowable because “no international body of law directly applies.” [Savage, 2007, pp. 178]
At a Republican fundraiser, President Bush erroneously labels captured Islamic militant Abu Zubaida (see March 28, 2002) as “one of the top three leaders” of al-Qaeda. Senior government officials have long been aware that many intelligence officials believe Zubaida to be little more than a low-level “gofer” for al-Qaeda (see Shortly After March 28, 2002 and April 9, 2002 and After). Bush says, apparently boasting of the deaths of some captured suspects: “I would say we’ve hauled in—arrested, or however you want to put it—a couple of thousand of al-Qaeda. Some of them are former leaders. Abu Zubaida was one of the top three leaders in the organization. Like number weren’t as lucky, they met a different kind of fate. But they’re no longer a problem. We’re slowly but surely rounding them up. The other day we got this guy, [Ramzi b]in al-Shibh. He popped his head up. He’s not a problem (see September 11, 2002). Slowly but surely. And I’m not giving up. There’s not a calendar on my desk that says, okay, on this day, you quit. That’s just not the way I think.” [White House, 10/14/2002]
Democratic Socialists of America logo. [Source: Social Democrats]The Drudge Report and other media sources falsely accuse the Democratic Socialists of America (DSA), a leftist political organization in New York, of “sending people to MN to illegally vote for [Senator Paul] Wellstone.” Wellstone, a Democrat, is running for re-election as senator for Minnesota. Drudge’s headline links to a fundraising appeal from the DSA that asks for donations to send students to help register voters in Minnesota. The Drudge Report is one of the most popular news sites on the Internet, receiving over 100 million visits in the last month. The appeal reads in part: “DSA’s national electoral project this year is the Minnesota Senate Election. Together with YDS, DSA’s Youth Section, we are mobilizing to bring young people to Minnesota. Minnesota is one of the few states that allow same day voter registration. We will therefore focus our energy on registering young people. Wellstone will need a high percentage of young people to register and vote for him if he is to stave off the campaign that Bush, the Republicans, and the Greens are waging against him. He is the Right’s Number One electoral target. Because we are focusing on issue based voter registration this electoral work can be supported by tax-deductible contributions. The DSA FUND is soliciting tax-deductible contributions to support this project. Contributions are needed to underwrite the costs of transportation as well as providing a stipend for expenses; housing is being donated.” The appeal states that the DSA wants to send students to register voters, a perfectly legal activity, though Spinsanity’s Bryan Keefer notes that the appeal is somewhat confusing in its wording. [Spinsanity, 10/16/2002; Spinsanity, 10/18/2002] The Minneapolis Star-Tribune reports: “Minnesota, which always ranks high in voter turnout, generally is considered one of the easiest states in which to vote. Voters must reside in the state for at least 20 days before the election, a deadline that passed on the day the league issued its press release. If not preregistered, qualified people can vote if they show proof of their residency at the polling place or have a registered voter from that precinct vouch for their residency.” [Minneapolis Star-Tribune, 10/17/2002]
October 14 - The controversy begins with a press release from the Taxpayers League of Minnesota (TLM), a conservative advocacy group, that attacks the DSA’s voter registration effort as “one of the most transparent attempts to steal an election since the Daley machine ran Chicago politics.” The release mischaracterizes the DSA’s appeal as supposedly announcing the DSA’s intention to bring “ringers” in to Minnesota to vote, stating, “This is a transparent attempt to steal this election by using Minnesota’s liberal election laws to register out-of-state students to vote for Wellstone.”
October 15 - The DSA rewrites its appeal to read, “We will therefore focus our energy on registering young Minnesotans.”
October 16 - Matt Drudge puts a link to the DSA appeal on the top of his Web site, the Drudge Report, with the headline, “Socialists Sending People to MN to illegally vote for Wellstone.” Talk show host Rush Limbaugh tells his listeners: “[DSA has] been caught. ‘We are mobilizing to bring young people to Minnesota’ is what it says on the Web site. It doesn’t say ‘We are mobilizing to bring out the young people who live in Minnesota to vote,’ it doesn’t say that.… And then it says: ‘By the way, did you know Minnesota is one of the few states that allows same-day voter registration? You can go in there and register and vote and split the same day, you can go home, you don’t even have to spend the night in Minnesota and freeze if you don’t want to, you can go in there and vote and leave.’” Fox News anchor Brit Hume repeats the accusation this evening, telling viewers, “The Democratic Socialists of America, which bill themselves as the largest socialist organization in the country, is raising tax-deductible money to send young people to the state of Minnesota, where they can take advantage of same-day registration to vote for the liberal incumbent Paul Wellstone.” The DSA removes the appeal from its Web site, saying that it has received enough donations and its donation system was being abused. Keefer writes: “Criminal allegations are [a] serious matter. Drudge’s casual assertions of illegal activity are wildly irresponsible, especially since they are directly contradicted by the story itself. One would think he would at least read the stories he links to carefully before summarizing them with such potentially libelous accusations.” [Spinsanity, 10/16/2002; Spinsanity, 10/18/2002]
October 17 - A Manchester Union-Leader editorial claims, “The Democratic Socialists of America, otherwise known simply as socialists, have organized a campaign to steal the US Senate election in Minnesota.” David Strom, the head of the Taxpayers League, tries to back away from the controversy, saying: “My tongue was placed firmly in my cheek. There are so few socialists left that they could meet in a phone booth.” Strom adds that “even if they themselves [the DSA] are not plotting some grand voter fraud,” the TLM merely wishes to demonstrate that the “laws that we have make it easy to commit fraud.” (The Star-Tribune notes that Strom’s organization is “funded largely by donors to conservative Republican candidates and causes.”) DSA national director Frank Llewellyn says that the TLM’s characterization of the DSA’s voter-registration efforts constitutes a “new sophisticated form of red-baiting.” Llewellyn says his group plans to send between 10 and 20 people to Minnesota to help organize support for Wellstone, and that no one from the DSA will actually try to vote. Wellstone’s campaign issues a statement saying it knows nothing about the group and does not approve of any attempts to register illegally. It also deplores the success of the TLM in ginning up a controversy where none exists, citing extensive coverage on local radio talk shows. [Minneapolis Star-Tribune, 10/17/2002; Spinsanity, 10/18/2002]
October 18 - The Wall Street Journal joins the fray, claiming in an editorial, “The Democratic Socialists of America recently posted an ad on their Web site inviting tax-deductible contributions to ‘bring young people to Minnesota’ to vote in the close US Senate race there.” Unlike Limbaugh and Hume, the Journal provides more information about the claim, quoting Minnesota Secretary of State Mary Kiffmeyer about the concerns over voter fraud, and labeling the DSA ad “clear… advocacy.” The same day, Kiffmeyer’s office affirms that the DSA’s plans to bring in out-of-state students to register Minnesota voters is legal, but the organization needs to ensure that it does not cross the line into advocacy. Keefer writes: “While it is legitimate to ask whether the DSA’s advertisement constituted illegal advocacy, the ad was clearly intended to promote the registration of young voters likely to vote for Democratic Senator Paul Wellstone, which is perfectly legal. Even the loose wording of the original statement does not excuse the false reports of planned voter fraud propagated by Drudge, Limbaugh, Hume, and others.” [Spinsanity, 10/16/2002; Spinsanity, 10/18/2002]
'Smear' - In 2003, liberal author and columnist Eric Alterman will write that “Drudge and Limbaugh combined, together with Brit Hume of Fox News and the Wall Street Journal editorial page, to effect a smear against the Democratic Socialists of America (DSA), and by extension, the late Senator Wellstone’s re-election campaign.” (Wellstone will die in a plane crash on October 25.) Alterman will write that the incident contains “all the trademarks of the conservative echo-chamber effect, including unproven innuendo, inaccuracy, repeated cavalier use of unchecked facts, all in the service of a clear political/ideological goal.” [New York Times, 10/25/2002; Alterman, 2003, pp. 79-80]
Entity Tags: Paul Wellstone, Rush Limbaugh, Wall Street Journal, Minneapolis Star-Tribune, Matt Drudge, Taxpayers League of Minnesota, Manchester Union-Leader, Brit Hume, Mary Kiffmeyer, Bryan Keefer, Democratic Socialists of America, David Strom, Frank Llewellyn, Eric Alterman, Drudge Report
Timeline Tags: Civil Liberties
President Bush signs the congressional resolution (see October 2, 2002 and October 11, 2002) authorizing him to use military force against Iraq. He continues to maintain that he wants to avoid war if at all possible (see (March 2002)). “I have not ordered the use of force,” he says. “I hope the use of force will not become necessary,” he says shortly before signing the document. “Hopefully this can be done peacefully. Hopefully we can do this without any military action.” He says he has “carefully weighed the human cost of every option before us” and that he will only send troops “as a last resort.” [US President, 10/21/2002; Unger, 2007, pp. 267]
At the request of FBI Director Robert Mueller, Attorney General John Ashcroft files a declaration invoking the “state secrets” privilege (see March 9, 1953) to block FBI translator Sibel Edmonds’ lawsuit against the government from being heard in court. [New York Observer, 1/22/2004] The Justice Department insists that disclosing her evidence, even at a closed hearing in court, “could reasonably be expected to cause serious damage to the foreign policy and national security of the United States.” The “state secrets privilege,” derived from English common law, has never been the subject of any congressional vote or statute. Normally, the privilege is used to block the discovery of a specific piece of evidence that could put the nation’s security at risk. But Ashcroft’s declaration asserts that the very subject of her lawsuit constitutes a state secret, thus barring her from even presenting her case in court. The text of Ashcroft’s declaration is classified. [Vanity Fair, 9/2005] The Justice Department’s Director of Public Affairs, Barbara Comstock, says in a press release: “To prevent disclosure of certain classified and sensitive national security information, Attorney General Ashcroft today asserted the state secrets privilege.… The state secrets privilege is well established in federal law… and allows the Executive Branch to safeguard vital information regarding the nation’s security or diplomatic relations. In the past, this privilege has been applied many times to protect our nation’s secrets from disclosure, and to require dismissal of cases when other litigation mechanisms would be inadequate. It is an absolute privilege that renders the information unavailable in litigation.” [US Department of Justice, 10/18/2002; Siegel, 2008, pp. 201]
The General Accounting Office, the nonpartisan investigative arm of Congress, releases a report asserting that at least 13 of the 19 9/11 hijackers were never interviewed by US consular officials before being granted visas to enter the US. This contradicts previous assurances from the State Department that 12 of the hijackers had been interviewed. It also found that, for 15 hijackers whose applications could be found, none had filled in the documents properly. Records for four other hijackers (the four non-Saudis, i.e., Ziad Jarrah, Mohamed Atta, Fayez Ahmed Banihammad, and Marwan Al Shehhi) could not be checked because they were accidentally destroyed. [National Review Online, 10/21/2002; United States General Accounting Office, 10/21/2002 ; Washington Post, 10/22/2002] The State Department maintains that visa procedures were properly followed. In December 2002, Senators Jon Kyl (R-AZ) and Pat Roberts (R-KS) state in a chapter of the 9/11 Congressional Inquiry that “if State Department personnel had merely followed the law and not granted non-immigrant visas to 15 of the 19 hijackers in Saudi Arabia… 9/11 would not have happened.” [Associated Press, 12/19/2002; US Congress, 7/24/2003, pp. pp. 653-673 ]
Entity Tags: Saeed Alghamdi, Salem Alhazmi, Satam Al Suqami, US Department of State, Pat Roberts, Waleed Alshehri, Wail Alshehri, Nawaf Alhazmi, Ziad Jarrah, Mohamed Atta, Mohand Alshehri, Government Accountability Office, Ahmed Alnami, Fayez Ahmed Banihammad, 9/11 Congressional Inquiry, Abdulaziz Alomari, Marwan Alshehhi, Ahmed Alghamdi, Ahmed Alhaznawi, Hani Hanjour, Majed Moqed, Hamza Alghamdi, Khalid Almihdhar, Jon Kyl
Timeline Tags: Complete 911 Timeline, 9/11 Timeline
Governor Scott McCallum (R-WI), locked in a tight race with challenger Jim Doyle (D-WI), begins airing ads accusing Doyle, Wisconsin’s attorney general, of “bribing the mentally ill for votes.” McCallum’s ads accuse Doyle of being involved in an alleged vote-buying scheme, where a Democratic campaign volunteer at a Kenosha residential home, Frank Santapoalo, supposedly plied mentally challenged residents with bingo games, refreshments (soda and “kringle,” a type of pastry), and small cash prizes in return for their votes on absentee ballots. The ads call Doyle “crooked” and accuse the Doyle campaign of “vote-buying.” The McCallum campaign calls the allegations “Bingo-Gate,” and is joined in the allegations by state Republican chairman Rick Graber. An October 22 story by a reporter for WTMJ-TV in Milwaukee claims at least two residents of the home cast absentee ballots, and one of those two voters may have been a convicted felon (that allegation is soon withdrawn by WTMJ; there is a convicted felon living at the home, but that person did not fill out a ballot). Wisconsin law prohibits anyone from giving a voter anything worth more than $1 in value to influence their vote; according to WTMJ, the residents won an average of 75 cents in quarters as well as soda and pastries, ramping the value of their “gifts” to over the $1 limit. Video shot by WTMJ shows the home’s activity director, Tammy Nerling, telling the residents that there are absentee ballots upstairs in the home if they are interested in voting. The video also shows Santapoalo wearing a Doyle campaign sticker on his clothing. And a Democratic party worker, Angela Arrington, invited by Doyle to talk to the residents about absentee voting, is shown leaving the premises upon seeing the cameras on site. No one is seen on the videotape soliciting votes in return for money or sodas; moreover, the sodas were provided by the home, Nerling says, and not Santapoalo. Graber says: “They gave them quarters, they gave them food, and they gave them drink. [State law] says very clearly you can’t give them something of value in exchange for votes.” State Democratic Party spokesman Thad Nation says, “We haven’t seen any evidence that anything illegal was done.” Santapoalo and Nerling both say they do not recall anyone filling out ballots after the bingo game. Kenosha City Clerk Jean Morgan says that of the 33 absentee ballot forms taken to the home, about half have been returned. The ballots are not dated, she says, making it impossible to ascertain when they were completed. The residence orders absentee ballots for every election, she says. The owner of the residential home, Lee Hamdia, says no votes were bought at the bingo party, and calls reports to the contrary “misinformation and gross distortions.” Hamdia says that the two residents did cast ballots the same day as the bingo game, but were not induced to vote by the bingo game nor by any visitor to the home. The residents have denied having any “political discussion[s]” of any kind in their conversations with the volunteer. [Capital Times, 10/24/2002; Milwaukee Journal-Sentinel, 10/24/2002; Capital Times, 10/31/2002; Milwaukee Journal-Sentinel, 10/31/2002] Nerling says bingo games with small prizes are a staple of residence life, taking place several times a week, and often sponsored by outside groups, including political organizations of all persuasions. Santapoalo says he has a relative living at the home, and has been visiting there for about 12 years. Nerling and admissions director Trish O’Dell say the residents have the mental capacity to cast votes, and some of them have long-standing affiliations with political parties. [Milwaukee Journal-Sentinel, 10/24/2002]
'Character Assassination' - Three former Wisconsin governors, Tony Earl, Martin Schreiber, and Gaylord Nelson, issue a joint statement calling the ads “character assassination”; Representative David Obey (D-WI) compares McCallum’s campaign tactics with the tactics of the late Senator Joe McCarthy (R-WI) and calls the ads “despicable.” After the criticism is joined by negative observations in the national press, McCallum’s campaign begins airing “softer” versions of the ads that replace the characterization of “crooked” with the accusation that Doyle’s purported vote-buying “shames us.” The ads also continue alleging that a felon cast a vote at the home, even though Morgan says that is not the case, and continue alleging that Doyle was “caught bribing the mentally ill for votes” and “votes were bought,” charges that are not substantiated by evidence. Doyle’s campaign says McCallum toned down the ads because they were caught “red-handed” making false charges; the Doyle campaign says that the new versions of the McCallum ads are also false. McCallum’s campaign manager denies that the ads were toned down because of criticism over the earlier television ads, and McCallum says Doyle and his supporters are attacking the credibility of the allegations because “there isn’t a defense for what [Doyle has] done.… The issue is what they did to disenfranchise voters, every voter in Wisconsin. Jim Doyle ought to apologize for the national shame he has brought on the state of Wisconsin.” Wisconsin Republicans say they intend to ask for a federal investigation of the bingo party, a request that state Democrats call a “political stunt.” A state prosecutor is investigating the claims. Political science professor Ken Goldstein says: “I’ve watched a lot of ads. This one, unless I see a lot of good evidence from McCallum’s folks, is over the line.”
Attempt to Lower Voter Turnout? - Another political science professor, David Littig, says the ads are designed for undecided voters, using unsupported emotional appeals to either persuade them to vote for McCallum or to stay home and not vote for Doyle. “The whole tone of the [McCallum] campaign has been to suppress the turnout,” Littig says. Doyle agrees, saying: “If people vote I’m going to win this election easily. McCallum is playing a cynical game right now. He’s trying to do everything he can to keep people from going to the polls.” Former Senate candidate Ed Garvey (D-WI), who narrowly lost an election when his opponent leveled false charges that he stole $750,000 of union money, says of the McCallum campaign: “They must be completely worried that this thing is falling apart. If you are doing well, you don’t call the other guy a crook.” [Capital Times, 10/31/2002; Milwaukee Journal-Sentinel, 10/31/2002]
No Charges Filed - Two days later, the special prosecutor investigating the case refuses to file charges, saying no evidence exists of any wrongdoing (see November 2, 2002). McCallum will lose the election to Doyle. The New York Times will call the entire campaign as conducted by both parties highly negative, and will say that McCallum’s attempts to accuse Doyle of voter fraud and other allegations “appeared to backfire” with voters. [New York Times, 11/7/2002]
Entity Tags: Lee Hamdia, James E. (“Jim”) Doyle, Gaylord Nelson, Frank Santapoalo, Ed Garvey, David Littig, Angela Arrington, Ken Goldstein, Jean Morgan, Wisconsin Republican Party, Tony Earl, WTMJ-TV, Trish O’Dell, Tammy Nerling, Thad Nation, New York Times, Martin Schreiber, Rick Graber, Scott McCallum
Timeline Tags: Civil Liberties
London imam Abu Qatada is arrested at a house in South London by Scotland Yard and MI5 officials. Intelligence agencies in eight countries, including Italy, France, and Germany, have claimed that Qatada has extensive al-Qaeda links, and he is believed to be a member of al-Qaeda’s fatwa (religious) committee (see June 1996-1997). Using anti-terrorist laws passed in December 2001, he is held at the Belmarsh high security prison without charge. He “disappeared” hours before the new laws went into effect (see Early December 2001). Several days before his arrest, Qatada came out of hiding to release a new document justifying the 9/11 attacks. He posted a ten-page document on the Internet entitled “The Legal Vision for the September 11 Events.” In it, he outlined the “moral” case for the attacks and praised Osama bin Laden for challenging the US. [London Times, 10/25/2002] Another radical London imam, Sheik Omar Bakri Mohamed, tells the press that Abu Qatada was arrested after family members visited his house and one of them used a cell phone that was apparently traced by the authorities. [New York Times, 10/26/2002] Qatada worked as an MI5 informant beginning in 1996 (see June 1996-February 1997).
The US and the United Nations officially declare Jemaah Islamiyah (JI) to be a terrorist organization. JI is considered to be al-Qaeda’s main affiliate in Southeast Asia. Australia, Malaysia, New Zealand, Indonesia, and other nations support the UN declaration. The Indonesian government had previously maintained that JI did not even exist, but immediately changed its position on JI after the Bali bombings earlier in the month (see October 12, 2002). However, even though the Indonesian government supports the UN declaration, it does not actually declare JI an illegal organization within Indonesia. [New York Times, 10/24/2002; Associated Press, 10/31/2002] It will take until 2008 for an Indonesian court to officially declare JI an illegal organization (see April 21, 2008). The key breakthrough to identifying the bombers takes place on November 2, 2002. The first suspect, an alleged JI operative named Amrozi bin Nurhasyim, is arrested on November 5. [BBC, 12/3/2002] Indonesia officially declares JI the prime suspect in the bombings on November 16. [Jakarta Post, 1/3/2003]
The Justice Department provides limited information to the House Judiciary Committee about actions performed under the new Patriot Act (see October 26, 2001). Representative James Sensenbrenner (R-WI) had demanded answers to 50 questions regarding the Patriot Act from Attorney General John Ashcroft, or else he would “start blowing a fuse.” Among other things, Sensenbrenner wanted to know how many times the Justice Department had implemented wiretaps under the act, and threatened Congressional subpoenas and opposition to the act when it comes up for renewal. Sensenbrenner and the Judiciary Committee receive far less than originally requested, with the Justice Department asserting that much of the information is classified and cannot be revealed. Sensenbrenner declares himself satisfied. [Savage, 2007, pp. 114-115]
Shortly after the October 11, 2002, request by Guantanamo commander Major General Michael Dunlavey for approval of new, harsh interrogation techniques, and after Guantanamo legal counsel Diane Beaver submitted her analysis justifying the use of those techniques (see October 11, 2002), General James T. “Tom” Hill forwards everything to General Richard Myers, the chairman of the Joint Chiefs of Staff. Hill includes a letter that contains the sentence, “Our respective staffs, the Office of the Secretary of Defense, and Joint Task Force 170 [the Army unit in charge of interrogating Guantanamo detainees] have been trying to identify counter-resistant techniques that we can lawfully employ.” In the letter, Hill is clearly ambivalent about the use of severe interrogation methods. He wants the opinion of senior Pentagon lawyers, and requests that “Department of Justice lawyers review the third category [the most severe] of techniques.” But none of this happens. The Joint Chiefs should have subjected the request to a detailed legal review, including scrutiny by Myers’s own counsel, Jane Dalton, but instead, Pentagon general counsel William J. Haynes short-circuits the approval process. Navy General Counsel Alberto Mora recalls Dalton telling him: “Jim pulled this away. We never had a chance to complete the assessment.” Myers later recalls being troubled that the normal procedures had been circumvented. Looking at the “Haynes Memo,” Myers will point out, “You don’t see my initials on this.” He notes that he “discussed it,” but never signed off on it. “This was not the way this should have come about.” Myers will come to believe that there was “intrigue” going on “that I wasn’t aware of, and Jane wasn’t aware of, that was probably occurring between [William J.] Haynes, White House general counsel [Alberto Gonzales], and Justice.” Instead of going through the proper channels, the memo goes straight to Haynes, who merely signs off with a note that says, “Good to go.” [Vanity Fair, 5/2008]
Entity Tags: Joint Chiefs of Staff, US Department of Justice, Diane E. Beaver, Alberto R. Gonzales, Alberto Mora, James T. Hill, Jane Dalton, Richard B. Myers, Michael E. Dunlavey, William J. Haynes
Timeline Tags: Torture of US Captives, Civil Liberties
A group of militants thought to be linked to Afghan warlord Gulbuddin Hekmatyar and his Hezb-e-Islami organisation are captured in Pakistan. One man arrested is Gul Rahman, who will later freeze to death at a CIA-controlled prison in Afghanistan (see November 20, 2002). Another is Ghairat Baheer, a doctor and Hekmatyar’s son-in-law. Hekmatyar was a CIA ally during the Soviet-Afghan war (see (1986)), but is now linked to al-Qaeda. According to Baheer, Rahman had driven from Peshawar, Pakistan, in the northwest frontier to Islamabad for a medical checkup. He is staying with Baheer, an old friend, when US agents and Pakistani security forces storm the house and take both men, two guards, and a cook into custody. [Associated Press, 3/28/2010]
The federal government enacts the Help America Vote Act (HAVA), as signed into law by President Bush. The law provides federal funds to states to improve election administration and to replace outdated or obsolete voting systems. The law also provides minimum standards for states to follow in election administration, and creates the existence of “provisional ballots” for voters to use in disputed circumstances. [U.S. Election Assistance Commission, 2010; American Civil Liberties Union, 2012]
The deputy commander of the Pentagon’s Criminal Investigation Task Force at the Guantanamo Bay detention facility raises concerns that the SERE techniques being used against suspected terrorists (see December 2001) were “developed to better prepare US military personnel to resist interrogations and not as a means of obtaining reliable information.” Concurrently with this officer’s questions, Air Force officials cite “serious concerns regarding the legality of many of the proposed techniques.” Legal officials from other military branches agree, citing “maltreatment” that would “arguably violate federal law.” [Senate Armed Services Committee, 11/20/2008 ]
The World Church of the Creator (WCOTC—see May 1996 and After) loses a trademark infringement lawsuit brought against it by the Te-Ta-Ma Truth Foundation, which had successfully trademarked the name “Church of the Creator” years before. Federal District Court Judge Joan Humphrey Lefkow originally rules in WCOTC’s favor, but her verdict is overturned on appeal. She orders the group to stop using the name, to give up its Web addresses, and to turn over all printed material bearing the name. Group leader Matthew Hale refuses to comply, and files a lawsuit against Lefkow, claiming that she has ordered the destruction of the group’s Bibles. “If federal judges are to sit in judgment of the people, the people must be able to sit in judgment of them,” Hale says. The WCOTC’s various Web sites urge its followers to picket Lefkow’s church, and refer to her as “a white woman married to a Jew with three mixed grandchildren.” [New York Times, 1/9/2003; Anti-Defamation League, 2005] For years afterwards, Lefkow will be plagued by an incessant round of death threats, as WCOTC and other white supremacist organizations publish her name, address, and family photographs on their Web sites along with an array of violent threats. In 2003, Hale will be charged with soliciting her murder (see January 9, 2003). “Underground” radio broadcaster Hal Turner will say on his show that Lefkow is “worthy of being killed,” adding that “it wouldn’t be legal, but in my opinion it wouldn’t be wrong.” In 2005, Lefkow’s husband and mother will be murdered, possibly by Hale supporters (see February 28, 2005). [New York Times, 3/2/2005]
Judge Marilyn Clark heard the case of Mohamed el-Atriss. [Source: newjerseycourtsonline]The case of Mohamed el-Atriss, who was arrested for selling false ID cards to two of the 9/11 hijackers (see (July-August 2001)) and was an associate of an unindicted co-conspirator in the ‘Landmarks’ bomb plot trial (see Before September 11, 2001), becomes controversial when secret evidence is used against him at a series of hearings. The evidence is presented without el-Atriss or his attorney being present and such secrecy is said to be unusual even after 9/11. Based on the secret evidence, el-Atriss’ bond is set at $500,000, which the Washington Post calls “an amount consistent with a charge of capital murder—even though most of the charges against him [are] misdemeanors.” The secret evidence rule is invoked for national security reasons based on a request by the sheriff’s office, while el-Atriss is being held in prison for six months. However, the FBI, which has a relationship with el-Atriss (see September 13, 2001-Mid 2002) and does not back the use of the secret evidence, insists that el-Atriss is not connected to terrorism. An appeals judge rules that the secret evidence cannot be used on the say-so of local officials. According to the judge, the secret information is inaccurate and could have been rebutted by el-Atriss if he had seen it. Transcripts of the secret hearings are later released to the media [Washington Post, 2/5/2003; Washington Post, 6/25/2003] In January 2003 el-Atriss pleads guilty to a charge of selling false identification documents to two hijackers, Khalid Almihdhar and Abdulaziz Alomari, and is sentenced to five years’ probation, with credit for the six months in jail he has already served, and a $15,000 fine. Although he admits selling the cards not just to the two hijackers, but also to hundreds of illegal immigrants, the other 26 charges against him are dropped by prosecutors. [Washington Post, 2/5/2003; Newark Star-Ledger, 10/20/2003]
The Pentagon issues “stop-loss” orders for the National Guard. The order prevents Guardsmen whose volunteer commissions expire from leaving the Guard. Once deployed in Iraq or Afghanistan, Guardsmen will be compelled to remain for the duration of their units’ deployment. They can also be redeployed for up to 90 days after returning home from a tour of duty. [USA Today, 1/5/2004; Wilson, 2007, pp. 120]
A special prosecutor says he will not file charges in the alleged “voter fraud” by a Democratic gubernatorial candidate in Wisconsin. Governor Scott McCallum (R-WI) charged his opponent, Attorney General Jim Doyle (D-WI), with buying votes from the residents of a home for the mentally challenged in Kenosha (see October 22-31, 2002). Special prosecutor Ted Kmiec says no charges will be filed because he cannot prove beyond a reasonable doubt that any violations of state election law occurred. The residents did receive “gifts” in the aftermath of bingo games, Kmiec says—typically less than $2 in quarters and soda—but no evidence exists that votes were solicited for those gifts, no evidence of any political discussions from the Doyle volunteer hosting the games exists, and no one handed out campaign materials. The volunteer who hosted the games has been visiting the residential facility for at least 12 years, and has a family member staying there. Everyone who did cast an absentee ballot at the residence is an eligible voter, Kmiec adds. Doyle lambasts McCallum for issuing the charges and for running a spate of television ads accusing Doyle of being “crooked” and of “bribing the mentally ill for votes.” He demands an apology from McCallum and for the state news media to set the record straight. “This is a clean bill of health for my campaign and an indictment of Scott McCallum’s campaign of distortion and character assassination,” Doyle says in a statement. “No one was bribed. No one’s vote was influenced. Nothing improper took place. My campaign and I have been falsely accused.” For his part, McCallum and his campaign claim the investigation by Kmiec was tainted, because Kmiec was appointed by Kenosha County District Attorney Robert Jambois, a Doyle supporter. The McCallum campaign charges Kmiec with “a clear conflict of interest.” State Republican chairman Rick Graber says regardless of Kmiec’s findings, he still believes Doyle committed “voter fraud.” Graber says the Wisconsin Republican Party will continue with the allegations until the election on November 4. Doyle campaign director Bill Christofferson says that he now believes the reporter who made the initial allegations, WTMJ-TV’s Scott Friedman, himself asked the residence’s activities director, Tammy Nerling, to encourage residents to fill out absentee ballots. Nerling says Friedman asked her if his crew could film the residents voting, a request Christofferson says is “fishy” in retrospect. WTMJ says any allegations of complicity between Friedman and the McCallum campaign, or any suggestions that Friedman tried to encourage illicit voting behavior, are “outrageous.” [Milwaukee Journal-Sentinel, 11/2/2002]
Congress passes a law creating the Institute of Education Sciences, a subsidiary of the Department of Education. The new institute is designed to generate independent statistics about student performance. The law stipulates that the institute’s director may conduct and publish research “without the approval of the secretary [of education] or any other office of the department.” President Bush issues a signing statement indicating that contrary to the law, the director will be responsible to the secretary of education. Since the president has the power to control the actions of all executive branch officials, the statement asserts, “the director of the Institute of Education Sciences shall [be] subject to the supervision and direction of the secretary of education.” Bush’s signing statement directly contradicts the letter and the intent of Congress’s law. [Boston Globe, 4/30/2006; Savage, 2007, pp. 240]
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