[Reader-list] more leaks

[Vivek Narayanan]

While we continue to process the question of leaks and the differential 
ways in which understandings of the Abu Ghraib images have splintered, 
here, compiled and annotated by Sekhar Ramakrishnan to the foil list, 
are more leaks and more images, more food for thought. 

V.

-------- Original Message --------
Subject: 	[foil] US lawless in Gitmo, CIA's ghost prisoners
Date: 	Mon, 25 Oct 2004 03:39:15 -0400
From: 	Sekhar Ramakrishnan <rr6 at columbia.edu>
Reply-To: 	rr6 at columbia.edu
Organization: 	Columbia University
To: 	foil-l at insaf.net



http://www.washingtonpost.com/wp-srv/mmedia/nation/052104-1v.htm
has link to a video showing torture at Abu Ghraib. The Post says:
            Videos Amplify Picture of Violence
            Friday, May. 21, 2004; 7:00 AM

Editor's Note: Images in this video may be disturbing because of
their violent or graphic nature.

The edited video excerpt is from a collection of short digital video
files obtained by The Washington Post. The videos appear to show
U.S. soldiers abusing detainees last fall in Abu Ghraib prison.

In this video, soldiers are shown apparently attempting to arrange a
human pyramid with naked Iraqi prisoners -- a scene similar to
those also shown in previously obtained photographs.

The video, which was originally recorded sideways, has been
edited to display vertically here and certain body parts have been
obscured. The brightness of the video, which appeared to have
been recorded in low light, was increased as well.

            Washington Post Sunday, October 24, 2004

            Memo Lets CIA Take Detainees Out of Iraq
            Practice Is Called Serious Breach of Geneva Conventions

            By Dana Priest

At the request of the CIA, the Justice Department drafted a
confidential memo that authorizes the agency to transfer detainees
out of Iraq for interrogation -- a practice that international legal
specialists say contravenes the Geneva Conventions.

One intelligence official familiar with the operation said the CIA has
used the March draft memo as legal support for secretly
transporting as many as a dozen detainees out of Iraq in the last
six months. The agency has concealed the detainees from the
International Committee of the Red Cross and other authorities, the
official said.

The draft opinion, written by the Justice Department's Office of
Legal Counsel and dated March 19, 2004, refers to both Iraqi
citizens and foreigners in Iraq, who the memo says are protected
by the treaty. It permits the CIA to take Iraqis out of the country to
be interrogated for a "brief but not indefinite period." It also says the
CIA can permanently remove persons deemed to be "illegal aliens"
under "local immigration law."

Some specialists in international law say the opinion amounts to a
reinterpretation of one of the most basic rights of Article 49 of the
Fourth Geneva Convention, which protects civilians during wartime
and occupation, including insurgents who were not part of Iraq's
military.

The treaty prohibits the "[i]ndividual or mass forcible transfers, as
well as deportations of protected persons from occupied territory . .
. regardless of their motive."

The 1949 treaty notes that a violation of this particular provision
constitutes a "grave breach" of the accord, and thus a "war crime"
under U.S. federal law, according to a footnote in the Justice
Department draft. "For these reasons," the footnote reads, "we
recommend that any contemplated relocations of 'protected
persons' from Iraq to facilitate interrogation be carefully evaluated
for compliance with Article 49 on a case by case basis." It says that
even persons removed from Iraq retain the treaty's protections,
which would include humane treatment and access to international
monitors.

During the war in Afghanistan, the administration ruled that al
Qaeda fighters were not considered "protected persons" under the
convention. Many of them were transferred out of the country to the
naval base in Guantanamo Bay, Cuba, and elsewhere for
interrogations. By contrast, the U.S. government deems former
members of Saddam Hussein's Baath Party and military, as well as
insurgents and other civilians in Iraq, to be protected by the
Geneva Conventions.

International law experts contacted for this article described the
legal reasoning contained in the Justice Department memo as
unconventional and disturbing.

"The overall thrust of the Convention is to keep from moving people
out of the country and out of the protection of the Convention," said
former senior military attorney Scott Silliman, executive director of
Duke University's Center on Law, Ethics and National Security.
"The memorandum seeks to create a legal regime justifying
conduct that the international community clearly considers in
violation of international law and the Convention." Silliman reviewed
the document at The Post's request.

The CIA, Justice Department and the author of the draft opinion,
Jack L. Goldsmith, former director of the Office of Legal Counsel,
declined to comment for this article.

CIA officials have not disclosed the identities or locations of its Iraq
detainees to congressional oversight committees, the Defense
Department or CIA investigators who are reviewing detention
policy, according to two informed U.S. government officials and a
confidential e-mail on the subject shown to The Washington Post.

White House officials disputed the notion that Goldsmith's
interpretation of the treaty was unusual, although they did not
explain why. "The Geneva Conventions are applicable to the
conflict in Iraq, and our policy is to comply with the Geneva
Conventions," White House spokesman Sean McCormick said.

The Office of Legal Counsel also wrote the Aug. 1, 2002, memo on
torture that advised the CIA and White House that torturing al
Qaeda terrorists in captivity abroad "may be justified," and that
international laws against torture "may be unconstitutional if applied
to interrogations" conducted in the war on terrorism. President
Bush's aides repudiated that memo once it became public this
June.

The Office of Legal Counsel writes legal opinions considered
binding on federal agencies and departments. The March 19
document obtained by The Post is stamped "draft" and was not
finalized, said one U.S. official involved in the legal deliberations.
However, the memo was sent to the general counsels at the
National Security Council, the CIA and the departments of State
and Defense.

"The memo was a green light," an intelligence official said. "The
CIA used the memo to remove other people from Iraq."

Since the Sept. 11, 2001, attacks, the CIA has used broad authority
granted in a series of legal opinions and guidance from the Office of
Legal Counsel and its own general counsel's office to transfer,
interrogate and detain individuals suspected of terrorist activities at
a series of undisclosed locations around the world.

According to current and former agency officials, the CIA has a
rendition policy that has permitted the agency to transfer an
unknown number of suspected terrorists captured in one country
into the hands of security services in other countries whose record
of human rights abuse is well documented. These individuals, as
well as those at CIA detention facilities, have no access to any
recognized legal process or rights.

The scandal at Abu Ghraib, and the investigations and
congressional hearings that followed, forced the disclosure of the
Pentagon's behind-closed-doors debate and classified rules for
detentions and interrogations at Guantanamo Bay and in
Afghanistan and Iraq. Senior defense leaders have repeatedly been
called to explain and defend their policies before Congress. But the
CIA's policies and practices remain shrouded in secrecy.

The only public account of CIA detainee treatment comes from
soldier testimony and Defense Department investigations of military
conduct. For instance, Army Maj. Gen. Antonio M. Taguba's report
on Abu Ghraib criticized the CIA practice of maintaining "ghost
detainees" -- prisoners who were not officially registered and were
moved around inside the prison to hide them from Red Cross
teams. Taguba called the practice "deceptive, contrary to Army
doctrine and in violation of international law."

Gen. Paul J. Kern, who oversaw another Army inquiry, told
Congress that the number of CIA ghost detainees "is in the dozens,
to perhaps up to 100."

The March 19, 2004, Justice Department memo by Goldsmith
deals with a previously unknown class of people -- those removed
from Iraq.

It is not clear why the CIA would feel the need to remove detainees
from Iraq for interrogation. A U.S. government official who has been
briefed on the CIA's detention practices said some detainees are
probably taken to other countries because "that's where the agency
has the people, expertise and interrogation facilities, where their
people and programs are in place."

The origin of the Justice Department memo is directly related to the
only publicly acknowledged ghost detainee, Hiwa Abdul Rahman
Rashul, nicknamed "Triple X" by CIA and military officials.

Rashul, a suspected member of the Iraqi Al-Ansar terrorist group,
was captured by Kurdish soldiers in June or July of 2003 and
turned over to the CIA, which whisked him to Afghanistan for
interrogation.

In October, White House counsel Alberto R. Gonzales asked the
Office of Legal Counsel to write an opinion on "protected persons"
in Iraq and rule on the status of Rashul, according to another U.S.
government official involved in the deliberations.

Goldsmith, then head of the office, ruled that Rashul was a
"protected person" under the Fourth Geneva Convention and
therefore had to be brought back to Iraq, several intelligence and
defense officials said.

The CIA was not happy with the decision, according to two
intelligence officials. It promptly brought Rashul back and
suspended any other transfers out of the country.

At the same time, when transferring Rashul back to Iraq, then-CIA
Director George J. Tenet asked Defense Secretary Donald H.
Rumsfeld not to give Rashul a prisoner number and to hide him
from International Red Cross officials, according to an account
provided by Rumsfeld during a June 17 Pentagon news
conference. Rumsfeld complied.

As a "ghost detainee," Rashul became lost in the prison system for
seven months.

Rumsfeld did not fully explain the reason he had complied with
Tenet's request or under what legal authority he could have kept
Rashul hidden for so long. "We know from our knowledge that
[Tenet] has the authority to do this," he said.

Rashul, defense and intelligence officials noted, had not once been
interrogated since he was returned to Iraq. His current status is
unknown.

In the one-page October 2003 interim ruling that directed Rashul's
return, Goldsmith also created a new category of persons in Iraq
whom he said did not qualify for protection under the Geneva
Conventions. They are non-Iraqis who are not members of the
former Baath Party and who went to Iraq after the invasion.

After Goldsmith's ruling, the CIA and Gonzales asked the Office of
Legal Counsel for a more complete legal opinion on "protected
persons" in Iraq and on the legality of transferring people out of Iraq
for interrogation. "That case started the CIA yammering to Justice
to get a better memo," said one intelligence officer familiar with the
interagency discussion.

Michael Byers, a professor and international law expert at the
University of British Columbia, said that creating a legal justification
for removing protected persons from Iraq "is extraordinarily
disturbing."

"What they are doing is interpreting an exception into an all-
encompassing right, in one of the most fundamental treaties in
history," Byers said. The Geneva Convention "is as close as you
get to protecting human rights in times of chaos. There's no
ambiguity here."

            Washington Post Monday, October 25, 2004

            Abu Ghraib Guards Kept a Log
            Of Prison Conditions, Practices

            By Josh White

The military police soldiers who ran the high-security wing of the
Abu Ghraib prison in Iraq kept an unofficial log of their daily
activities, a diary of sorts that documents the conditions that
gripped the prison during the months that detainees were abused in
what would later erupt into an international scandal.

>From Oct. 19, 2003, to Jan. 18, 2004 -- just days after digital
photographs of soldiers mistreating prisoners were turned in to
Army criminal investigators -- the members of the 372nd Military
Police Company who ran tiers 1A and 1B at Abu Ghraib jotted their
experiences in a light green ledger kept in a prison office. On the
log's cover is printed in large, handwritten letters: "MI Wing." A copy
of the log was obtained by The Washington Post.

Day after day, the log's more than 50 pages of handwritten notes
and observations describe a spartan prison where some inmates
inexplicably vomited after meals, a detainee regularly covered
himself in his own feces, and others sharpened toothbrushes into
makeshift weapons. There were fights, attacks on soldiers and
riots.

"Note: No power. No water. Prison in state of lockdown," a soldier
wrote on Nov. 17, 2003.

The Army soldiers, some of whom have been charged by the
military with crimes for the abuses, logged a stream of mysterious
and unregistered inmates held by unnamed U.S. government
agents, a group of "ghost detainees" who were locked behind a row
of 10 solid iron doors.

References to "OGA," for Other Government Agency, appear
throughout the logbook, meaning agencies such as the CIA and
FBI, which had operatives in Iraq looking for the highest-value
targets. "We didn't know anything about them," said one MP from
the 372nd, speaking on the condition of anonymity because of
ongoing investigations. "We called them X-Men. They were there,
but they weren't there."

The soldiers also wrote about unclear orders being passed down
orally from military intelligence officials to "put pressure" on
detainees of high intelligence value -- though none of the entries
referred directly to the abuses made internationally infamous in
digital photographs and in reports arising from multiple military
investigations.

"MI handlers will be turning on heat to this one," reads an entry at
2:30 a.m. on Nov. 12, referring to inmate No. 152529, identified in
investigative documents as Asad Hamza Hanfosh. In a statement,
Hanfosh alleged that soldiers stripped him, beat him and left him
shackled naked to his bed overnight. "Sleep management program
was requested but paperwork has not been approved yet," the
entry reads.

The Post obtained a digital copy of the logbook by e-mail and took
several steps to verify its authenticity. Pentagon officials said the
Criminal Investigations Division evidence tag on the log's back
cover, dated Jan. 19, matches the tag placed on the original
logbook. Army officials who reviewed a copy of the logbook said its
contents appeared to be consistent with what investigators have
learned about the prison.

Sgt. Hydrue S. Joyner, who testified in a preliminary court hearing
that he started the logbook on Oct. 19, 2003, reviewed The Post's
copy and said it appeared to be complete and accurate. Joyner
declined to discuss the entries but pointed out his own handwriting
and said he last saw the book when he gave it to a military Criminal
Investigations Division agent Jan. 19.

The book shows that soldiers repeatedly counted the detainees,
worked to get prisoners better food and clothing, and made sure
those who were ill got to see the facility's medics. The MPs noted
that some detainees had problems urinating, suffered from
constipation or lacked proper medication.

"Inmate #20092 continues to refuse to eat anything," Joyner wrote.
"He will have to receive another I.V. from medical."

These guard duties were performed by a unit untrained in detention
operations, at a facility that came under frequent enemy attack. The
soldiers were forced to improvise. Detainees who were hard to
control or had mental problems were handcuffed to their beds or
fully restrained.

One detainee kept trying to kiss the guards. One ate chicken
bones. Some would secret away weapons, such as sharpened
toothbrushes, razors, medical needles and guns.

"Conducted bed check and prisoner count," begins a Dec. 18 entry.
"Note: Inmate #116451 was placed into isolation quiet room
because night shift passed on that he attempted to burn the wood
blocking his window. Once I came on shift I spoke to the inmate
about the incident and he admitted to trying to commit suicide. . . .
Note: After last night's incident, NO MATCHES are to be given to
inmates."

None of the entries clearly states that military intelligence officials
were asking the MPs to do anything abusive, as attorneys for some
of the MPs have alleged. Numerous entries refer to military
intelligence asking MPs to help keep detainees awake for long
periods to break them down for questioning.

"The logbook certainly validates what Army investigators
subsequently found about the environmental conditions inside the
prison, the combat conditions outside the facility and the challenges
the soldiers faced," said Col. Joseph G. Curtin, an Army
spokesman. "It also validates that the behavior of these soldiers
was unacceptable."

The logbook for the first time shows Cpl. Charles A. Graner Jr.
noting in his own words that he was unhappy receiving oral
instructions from military intelligence personnel. Graner and six
other MPs have been charged in the abuse. Two MPs have
pleaded guilty, and the most senior of the soldiers, Staff Sgt. Ivan L.
"Chip" Frederick, was sentenced to eight years in prison last week.

"Per MI . . . unless told to put pressure on an MI inmate do not do
so," reads an entry that bears Graner's name on Oct. 25, 2003, at a
time when some of the most serious abuses were occurring. "I will
now request everything to be in writting [sic] since it seems one MI
handler does not know what the other one is requesting with verbal
orders."

In an entry from Graner on Oct. 26, writing about three mysterious
inmates brought in by U.S. agents: "It has been over three days
since OGA inmates were placed in cells 8 and 13. When subjects
were first placed on block verbal instructions were that both would
be placed on a sleep plan of 20 hours up and 4 hours down. No
paperwork has been issued to verify this. Until this is put down on
paper, the sleep plan is stopping at this point."

Some Army officials said Graner's entries could very well be the
work of someone covering their inappropriate behavior. There are
omissions of events, such as the sexual humiliation that was
captured on the soldiers' cameras. Graner did not return e-mail
requests for comment, and Graner's civilian attorney did not return
several calls to his office in Texas and to his cell phone.

Members of the 372nd have said privately that they were asked to
put detainees through physical training to keep them awake during
these sleep management programs, but that they were not told
specifically what they could and could not do.

"Those who knew the rules and knew how to act, we just had them
do things we would have done in basic training, like running and
push-ups," said the soldier from the 372nd. "I could see how
someone could misinterpret that into thinking they could do
whatever they wanted."

Whatever the sleep programs encompassed, they were abruptly
altered in January after the photographs surfaced, according to the
logbook. A series of entries shows that standards for sleep
programs "will be revised" and that such programs for three
inmates would be suspended immediately. On Jan. 16, the log
shows that all of the ghost detainees would be "taken out of their
cells, processed, and given numbers."

Some of the ghost detainees were put on disruptive sleep
programs and interrogated in a shower room and in a stairwell --
locations where some of the photographs of abuse also were
taken.

Pentagon officials, including Defense Secretary Donald H.
Rumsfeld, initially said there were only one or two such secret
holds. Subsequent investigations revealed numerous such
detainees, and the logbook shows that there were consistently
three to 10 ghost detainees at Abu Ghraib from mid-October into
January.

The inspectors general of the Pentagon and CIA "are working
together to look into that specific issue," said Bryan Whitman, a
Pentagon spokesman.

The final entry in the logbook, by Joyner on Jan. 18, shows that the
prison leadership wanted things to change, and fast. Joyner,
praised by inmates in investigative reports for helping them, has not
been charged with a crime.

"The new directive for the Tier 1 Wing is as follows: We count the
inmates and feed them," he wrote. "No more sleep management,
etc."

           NY Times October 24, 2004

           After Terror, a Secret Rewriting of Military Law

           By TIM GOLDEN

WASHINGTON - In early November 2001, with Americans still
staggered by the Sept. 11 attacks, a small group of White House
officials worked in great secrecy to devise a new system of justice
for the new war they had declared on terrorism.

Determined to deal aggressively with the terrorists they expected to
capture, the officials bypassed the federal courts and their
constitutional guarantees, giving the military the authority to detain
foreign suspects indefinitely and prosecute them in tribunals not
used since World War II.

The plan was considered so sensitive that senior White House
officials kept its final details hidden from the president's national
security adviser, Condoleezza Rice, and the secretary of state,
Colin L. Powell, officials said. It was so urgent, some of those
involved said, that they hardly thought of consulting Congress.

White House officials said their use of extraordinary powers would
allow the Pentagon to collect crucial intelligence and mete out swift,
unmerciful justice. "We think it guarantees that we'll have the kind
of treatment of these individuals that we believe they deserve," said
Vice President Dick Cheney, who was a driving force behind the
policy.

But three years later, not a single terrorist has been prosecuted. Of
the roughly 560 men being held at the United States naval base at
Guantánamo Bay, Cuba, only 4 have been formally charged.
Preliminary hearings for those suspects brought such a barrage of
procedural challenges and public criticism that verdicts could still
be months away. And since a Supreme Court decision in June that
gave the detainees the right to challenge their imprisonment in
federal court, the Pentagon has stepped up efforts to send home
hundreds of men whom it once branded as dangerous terrorists.

"We've cleared whole forests of paper developing procedures for
these tribunals, and no one has been tried yet," said Richard L.
Shiffrin, who worked on the issue as the Pentagon's deputy general
counsel for intelligence matters. "They just ended up in this
Kafkaesque sort of purgatory."

The story of how Guantánamo and the new military justice system
became an intractable legacy of Sept. 11 has been largely hidden
from public view.

But extensive interviews with current and former officials and a
review of confidential documents reveal that the legal strategy took
shape as the ambition of a small core of conservative
administration officials whose political influence and bureaucratic
skill gave them remarkable power in the aftermath of the attacks.

The strategy became a source of sharp conflict within the Bush
administration, eventually pitting the highest-profile cabinet
secretaries - including Ms. Rice and Defense Secretary Donald H.
Rumsfeld - against one another over issues of due process,
intelligence-gathering and international law.

In fact, many officials contend, some of the most serious problems
with the military justice system are rooted in the secretive and
contentious process from which it emerged.

Military lawyers were largely excluded from that process in the days
after Sept. 11. They have since waged a long struggle to ensure
that terrorist prosecutions meet what they say are basic standards
of fairness. Uniformed lawyers now assigned to defend
Guantánamo detainees have become among the most forceful
critics of the Pentagon's own system.

Foreign policy officials voiced concerns about the legal and
diplomatic ramifications, but had little influence. Increasingly, the
administration's plan has come under criticism even from close
allies, complicating efforts to transfer scores of Guantánamo
prisoners back to their home governments.

To the policy's architects, the attacks on the World Trade Center
and the Pentagon represented a stinging challenge to American
power and an imperative to consider measures that might have
been unimaginable in less threatening times. Yet some officials
said the strategy was also shaped by longstanding political
agendas that had relatively little to do with fighting terrorism.

The administration's claim of authority to set up military
commissions, as the tribunals are formally known, was guided by a
desire to strengthen executive power, officials said. Its legal
approach, including the decision not to apply the Geneva
Conventions, reflected the determination of some influential officials
to halt what they viewed as the United States' reflexive submission
to international law.

In devising the new system, many officials said they had Osama
bin Laden and other leaders of Al Qaeda in mind. But in picking
through the hundreds of detainees at Guantánamo Bay, military
investigators have struggled to find more than a dozen they can tie
directly to significant terrorist acts, officials said. While important
Qaeda figures have been captured and held by the C.I.A.,
administration officials said they were reluctant to bring those
prisoners before tribunals they still consider unreliable.

Some administration officials involved in the policy declined to be
interviewed, or would do so only on the condition they not be
identified. Others defended it strongly, saying the administration
had a responsibility to consider extraordinary measures to protect
the country from a terrifying enemy.

"Everybody who was involved in this process had, in my mind, a
white hat on," Timothy E. Flanigan, the former deputy White House
counsel, said in an interview. "They were not out to be cowboys or
create a radical new legal regime. What they wanted to do was to
use existing legal models to assist in the process of saving lives, to
get information. And the war on terror is all about information."

As the policy has faltered, other current and former officials have
criticized it on pragmatic grounds, arguing that many of the
problems could have been avoided. But some of the criticism also
has a moral tone.

"What several of us were concerned about was due process," said
John A. Gordon, a retired Air Force general and former deputy
C.I.A. director who served as both the senior counterterrorism
official and homeland security adviser on President Bush's National
Security Council staff. "There was great concern that we were
setting up a process that was contrary to our own ideals."

                An Aggressive Approach

The administration's legal approach to terrorism began to emerge
in the first turbulent days after Sept. 11, as the officials in charge of
key agencies exhorted their aides to confront Al Qaeda's threat with
bold imagination.

"Legally, the watchword became 'forward-leaning,' '' said a former
associate White House counsel, Bradford Berenson, "by which
everybody meant: 'We want to be aggressive. We want to take
risks.' ''

That challenge resounded among young lawyers who were settling
into important posts at the White House, the Justice Department
and other agencies. Many of them were members of the Federalist
Society, a conservative legal fraternity. Some had clerked for
Supreme Court justices, Clarence Thomas and Antonin Scalia in
particular. A striking number had clerked for a prominent Reagan
appointee, Lawrence H. Silberman of the United States Court of
Appeals for the District of Columbia Circuit.

One young lawyer recalled looking around the room during a
meeting with Attorney General John Ashcroft. "Of 10 people, 7 of
us were former Silberman clerks," he said.

Mr. Berenson, then 36, had been consumed with the nomination of
federal judges until he was suddenly reassigned to terrorism issues
and thrown into intense, 15-hour workdays, filled with competing
urgencies and intermittent new alerts.

"All of a sudden, the curtain was lifted on this incredibly frightening
world," he said. "You were spending every day looking at the
dossiers of the world's leading terrorists. There was a palpable
sense of threat."

As generals prepared for war in Afghanistan, lawyers scrambled to
understand how the new campaign against terrorism could be
waged within the confines of old laws.

Mr. Flanigan was at the center of the administration's legal
counteroffensive. A personable, soft-spoken father of 14 children,
his easy manner sometimes belied the force of his beliefs. He had
arrived at the White House after distinguishing himself as an agile
legal thinker and a Republican stalwart: During the Clinton
scandals, he defended the independent counsel, Kenneth W. Starr,
saying he had conducted his investigation "in a moderate and
appropriate fashion." In 2000, he played an important role on the
Bush campaign's legal team in the Florida recount.

In the days after the Sept. 11 attacks, Mr. Flanigan sought advice
from the Justice Department's Office of Legal Counsel on "the
legality of the use of military force to prevent or deter terrorist
activity inside the United States,'' according to a previously
undisclosed department memorandum that was reviewed by The
New York Times.

The 20-page response came from John C. Yoo, a 34-year-old Bush
appointee with a glittering résumé and a reputation as perhaps the
most intellectually aggressive among a small group of legal
scholars who had challenged what they saw as the United States'
excessive deference to international law. On Sept. 21, 2001, Mr.
Yoo wrote that the question was how the Constitution's Fourth
Amendment rights against unreasonable search and seizure might
apply if the military used "deadly force in a manner that endangered
the lives of United States citizens."

Mr. Yoo listed an inventory of possible operations: shooting down a
civilian airliner hijacked by terrorists; setting up military checkpoints
inside an American city; employing surveillance methods more
sophisticated than those available to law enforcement; or using
military forces "to raid or attack dwellings where terrorists were
thought to be, despite risks that third parties could be killed or
injured by exchanges of fire."

Mr. Yoo noted that those actions could raise constitutional issues,
but said that in the face of devastating terrorist attacks, "the
government may be justified in taking measures which in less
troubled conditions could be seen as infringements of individual
liberties." If the president decided the threat justified deploying the
military inside the country, he wrote, then "we think that the Fourth
Amendment should be no more relevant than it would be in cases
of invasion or insurrection."

The prospect of such military action at home was mostly
hypothetical at that point, but with the government taking the fight
against terrorism to Afghanistan and elsewhere around the world,
lawyers in the administration took the same "forward-leaning"
approach to making plans for the terrorists they thought would be
captured.

The idea of using military commissions to try suspected terrorists
first came to Mr. Flanigan, he said, in a phone call a couple of days
after the attacks from William P. Barr, the former attorney general
under whom Mr. Flanigan had served as head of the Justice
Department's Office of Legal Counsel during the first Bush
administration.

Mr. Barr had first suggested the use of military tribunals a decade
before, to try suspects in the bombing of Pan Am Flight 103 over
Lockerbie, Scotland. Although the idea made little headway at the
time, Mr. Barr said he reminded Mr. Flanigan that the Legal
Counsel's Office had done considerable research on the question.
Mr. Flanigan had an aide call for the files.

"I thought it was a great idea," he recalled.

Military commissions, he thought, would give the government wide
latitude to hold, interrogate and prosecute the sort of suspects who
might be silenced by lawyers in criminal courts. They would also
put the control over prosecutions squarely in the hands of the
president.

The same ideas were taking hold in the office of Vice President
Cheney, championed by his 44-year-old counsel, David S.
Addington. At the time, Mr. Addington, a longtime Cheney aide with
an indistinct portfolio and no real staff, was not well-known even in
the government. But he would become legendary as a voraciously
hard-working official with strongly conservative views, an unusually
sharp pen and wide influence over military, intelligence and other
matters. In a matter of months, he would make a mark as one of
the most important architects of the administration's legal strategy
against foreign terrorism.

Beyond the prosecutorial benefits of military commissions, the two
lawyers saw a less tangible, but perhaps equally important
advantage. "From a political standpoint," Mr. Flanigan said, "it
communicated the message that we were at war, that this was not
going to be business as usual."

                Changing the Rules

In fact, very little about how the tribunal policy came about
resembled business as usual. For half a century, since the end of
World War II, most major national-security initiatives had been
forged through interagency debate. But some senior Bush
administration officials felt that process placed undue power in the
hands of cautious, slow-moving foreign policy bureaucrats. The
sense of urgency after Sept. 11 brought that attitude to the surface.

Little more than a week after the attacks, officials said, the White
House counsel, Alberto F. Gonzales, set up an interagency group
to draw up options for prosecuting terrorists. They came together
with high expectations.

"We were going to go after the people responsible for the attacks,
and the operating assumption was that we would capture a
significant number of Al Qaeda operatives," said Pierre-Richard
Prosper, the State Department official assigned to lead the group.
"We were thinking hundreds."

Mr. Prosper, then 37, had just been sworn in as the department's
ambassador-at-large for war crimes issues. As a prosecutor, he
had taken on street gangs and drug Mafias and had won the first
genocide conviction before the International Criminal Tribunal for
Rwanda. Even so, some administration lawyers eyed him
suspiciously - as more diplomat than crime-fighter.

Mr. Gonzales had made it clear that he wanted Mr. Prosper's group
to put forward military commissions as a viable option, officials said.
The group laid out three others - criminal trials, military courts-
martial and tribunals with both civilian and military members, like
those used for Nazi war criminals at Nuremberg.

Representatives of the Justice Department's criminal division,
which had prosecuted a string of Qaeda defendants in federal
district court over the previous decade, argued that the federal
courts could do the job again. The option of toughening criminal
laws or adapting the courts, as several European countries had
done, was discussed, but only briefly, two officials said.

"The towers were still smoking, literally," Mr. Prosper said. "I
remember asking: Can the federal courts in New York handle this?
It wasn't a legal question so much as it was logistical. You had 300
Al Qaeda members, potentially. And did we want to put the judges
and juries in harm's way?"

Lawyers at the White House saw criminal courts as a minefield,
several officials said.

Much of the evidence against terror suspects would be classified
intelligence that would be difficult to air in court or too sketchy to
meet federal standards, the lawyers warned. Another issue was
security: Was it safe to try Osama bin Laden in Manhattan, where
he was facing federal charges for the 1998 bombings of American
Embassies in East Africa?

Then there was a tactical question. To act pre-emptively against Al
Qaeda, the authorities would need information that defense lawyers
and due-process rules might discourage suspects from giving up.

Mr. Flanigan framed the choice starkly: "Are we going to go with a
system that is really guaranteed to prevent us from getting
information in every case or are we going to go another route?"

Military commissions had no statutory rules of their own. In past
American wars, when such tribunals had been used to carry out
battlefield justice against spies, saboteurs and others accused of
violating the laws of war, they had generally hewed to prevailing
standards of military justice. But the advocates for commissions in
the Bush administration saw no reason they could not adapt the
rules, officials said. Standards of proof could be lowered. Secrecy
provisions could be expanded. The death penalty could be more
liberally applied.

But some members of the interagency group saw it as more
complicated. Terrorism had not been clearly established as a war
crime under international law. Writing new law for a military tribunal
might end up being more difficult than prosecuting terrorism cases
in existing courts.

By late October 2001, the White House lawyers had grown
impatient with what they saw as the dithering of Mr. Prosper's
group and what one former official called the "cold feet" of some of
its members. Mr. Flanigan said he thought the government needed
to move urgently in case a major terrorist linked to the attacks was
apprehended.

He gathered up the research that the Prosper group had completed
on military commissions and took charge of the matter himself.
Suddenly, the other options were off the table and the Prosper
group was out of business.

"Prosper is a thoughtful, gentle, process-oriented guy," the former
official said. "At that time, gentle was not an adjective that anybody
wanted."

                A Secretive Circle

With the White House in charge, officials said, the planning for
tribunals moved forward more quickly, and more secretly. Whole
agencies were left out of the discussion. So were most of the
government's experts in military and international law.

The legal basis for the administration's approach was laid out on
Nov. 6 in a confidential 35-page memorandum sent to Mr.
Gonzales from Patrick F. Philbin, a deputy in the Legal Counsel's
office. (Attorney General Ashcroft has refused recent
Congressional requests for the document, but a copy was reviewed
by The Times.)

The memorandum's plain legalese belied its bold assertions.

It said that the president, as commander in chief, has "inherent
authority'' to establish military commissions without Congressional
authorization. It concluded that the Sept. 11 attacks were "plainly
sufficient" to warrant applying the laws of war.

Opening a debate that would later divide the administration, the
memorandum also suggested that the White House could apply
international law selectively. It stated specifically that trying
terrorists under the laws of war "does not mean that terrorists will
receive the protections of the Geneva Conventions or the rights
that laws of war accord to lawful combatants."

The central legal precedent cited in the memorandum was a 1942
case in which the Supreme Court upheld President Franklin D.
Roosevelt's use of a military commission to try eight Nazi saboteurs
who had sneaked into the United States aboard submarines. Since
that ruling, revolutions had taken place in both international and
military law, with the adoption of the Geneva Conventions in 1949
and the Uniform Code of Military Justice in 1951. Even so, the
Justice memorandum said the 1942 ruling had "set a clear
constitutional analysis" under which due process rights do not apply
to military commissions.

Roosevelt, too, created his military commission without new and
explicit Congressional approval, and authorized the military to
fashion its own procedural rules. He also established himself,
rather than a military judge, as the "final reviewing authority'' for the
case.

Mr. Addington seized on the Roosevelt precedent as a model, two
people involved in the process said, despite vast differences.
Roosevelt acted against enemy agents in a traditional war among
nations. Mr. Bush would be asserting the same power to take on a
shadowy network of adversaries with no geographic boundaries, in
a conflict with no foreseeable end.

Mr. Addington, who drafted the order with Mr. Flanigan, was
particularly influential, several officials said, because he
represented Mr. Cheney and brought formidable experience in
national-security law to a small circle of senior officials. Mr.
Addington turned down several requests for interviews and a
spokesman for the vice president's office declined to comment.

"He was probably the only one there who would know what an
order would look like, what it would say," a former Justice
Department official said, noting Mr. Addington's work at the
Defense Department, the C.I.A., and Congressional intelligence
committees. "He didn't have authority over anyone. But he's a
persuasive guy."

To many officials outside the circle, the secrecy was remarkable.

While Mr. Ashcroft and his deputy, Larry D. Thompson, were
closely consulted, the head of the Justice Department's criminal
division, Michael Chertoff, who had argued for trying terror
suspects in federal court, saw the military order only when it was
published, officials said. Mr. Rumsfeld was kept informed of the
plan mainly through his general counsel, William J. Haynes II,
several Pentagon officials said.

Many of the Pentagon's experts on military justice, uniformed
lawyers who had spent their careers working on such issues, were
mostly kept in the dark. "I can't tell you how compartmented things
were," said retired Rear Adm. Donald J. Guter, who was then the
Navy's senior military lawyer, or judge advocate general. "This was
a closed administration."

A group of experienced Army lawyers had been meeting with Mr.
Haynes repeatedly on the process, but began to suspect that what
they said did not resonate outside the Pentagon, several of them
said.

On Friday, Nov. 9, Defense Department officials said, Mr. Haynes
called the head of the team, Col. Lawrence J. Morris, into his office
to review a draft of the presidential order. He was given 30 minutes
to study it but was not allowed to keep a copy or even take notes.

The following day, the Army's judge advocate general, Maj. Gen.
Thomas J. Romig, hurriedly convened a meeting of senior military
lawyers to discuss a response. The group worked through the
Veterans Day weekend to prepare suggestions that would have
moved the tribunals closer to existing military justice. But when the
final document was issued that Tuesday, it reflected none of the
officers' ideas, several military officials said. "They hadn't changed
a thing," one official said.

In fact, while the military lawyers were pulling together their
response, they were unaware that senior administration officials
were already at the White House putting finishing touches on the
plan. At a meeting that Saturday in the Roosevelt Room, Mr.
Cheney led a discussion among Attorney General Ashcroft, Mr.
Haynes of the Defense Department, the White House lawyers and
a few other aides.

Senior officials of the State Department and the National Security
Council staff were excluded from final discussions of the policy,
even at a time when they were meeting daily about Afghanistan
with the officials who were drafting the order. According to two
people involved in the process, Mr. Cheney advocated withholding
the draft from Ms. Rice and Secretary Powell.

When the two cabinet members found out about the military order -
upon its public release - Ms. Rice was particularly angry, several
senior officials said. Spokesmen for both officials declined to
comment.

Mr. Bush played only a modest role in the debate, senior
administration officials said. In an initial discussion, he agreed that
military commissions should be an option, the officials said. Later,
Mr. Cheney discussed a draft of the order with Mr. Bush over lunch,
one former official said. The president signed the three-page order
on Nov. 13.

No ceremony accompanied the signing, and the order was
released to the public that day without so much as a press briefing.
But its historic significance was unmistakable.

The military could detain and prosecute any foreigner whom the
president or his representative determined to have "engaged in,
aided or abetted, or conspired to commit" terrorism. Echoing the
Roosevelt order, the Bush document promised "free and fair"
tribunals but offered few guarantees: There was no promise of
public trials, no right to remain silent, no presumption of innocence.
As in 1942, guilt did not necessarily have to be proven beyond a
reasonable doubt and a death sentence could be imposed even
with a divided verdict.

Despite those similarities, some military and international lawyers
were struck by the differences.

"The Roosevelt order referred specifically to eight people, the eight
Nazi saboteurs," said Mr. Shiffrin, who was then the Defense
Department's deputy general counsel for intelligence matters and
had studied the Nazi saboteurs' case. "Here we were putting in
place a parallel system of justice for a universe of people who we
had no idea about - who they would be, how many of them there
would be. It was a very dramatic measure."

                Mounting Criticism

The White House did its best to play down the drama, but criticism
of the order was immediate and widespread.

Civil libertarians and some Congressional leaders saw an attempt
to supplant the criminal justice system. Critics also worried about
the concentration of power: The president or his proxies would
define the crimes (often after an act had been committed); set the 
rules for trial; and choose the judges, juries and appellate panels.

Senator Patrick J. Leahy, the Vermont Democrat who was then
chairman of the Senate Judiciary Committee, was among a handful
of legislators who argued that the administration's plan required
explicit Congressional authorization. The Congress had just passed
the Patriot Act by a huge margin, and Mr. Leahy proposed
authorizing military commissions, but with some important changes,
including a presumption of innocence for defendants and appellate
review by the Supreme Court.

Critics seized on complaints from abroad, including an
announcement from the Spanish authorities that they would not
extradite some terrorist suspects to the United States if they would
face the tribunals. "We are the most powerful nation on earth," Mr.
Leahy said. "But in the struggle against terrorism, we don't have the
option of going it alone. Would these military tribunals be worth
jeopardizing the cooperation we expect and need from our allies?"

Senators called for Mr. Rumsfeld and Mr. Ashcroft to testify about
the tribunals plan. Instead, the administration sent Mr. Prosper from
the State Department and Mr. Chertoff of the Justice Department -
both of whom had questioned the use of commissions and were
later excluded from the administration's final deliberations.

But the Congressional opposition melted in the face of opinion polls
showing strong support for the president's measures against
terrorism.

There was another reason fears were allayed. With the order
signed, the Pentagon was writing rules for exactly how the
commissions would be conducted, and an early draft that was
leaked to the news media suggested defendants' rights would be
expanded. Mr. Rumsfeld, who assembled a group of outside legal
experts - including some who had worked on World War II-era
tribunals - to consult on the rules, said critics' concerns would be
taken into account.

But all of the critics were not outside the administration.

Many of the Pentagon's uniformed lawyers were angered by the
implication that the military would be used to deliver "rough justice"
for the terrorists. The Uniform Code of Military Justice had moved
steadily into line with the due-process standards of the federal
courts, and senior military lawyers were proud and protective of
their system. They generally supported using commissions for
terrorists, but argued that the system would not be fair without
greater rights for defendants.

"The military lawyers would from time to time remind the civilians
that there was a Constitution that we had to pay attention to," said
Admiral Guter, who, after retiring as the Navy judge advocate
general, signed a "friend of the court" brief on behalf of plaintiffs in
the Guantánamo Supreme Court case.

Even as uniformed lawyers were given a greater role in writing
rules for the commissions, they still felt out of the loop.

In early 2002, Admiral Guter said, during a weekly lunch with Mr.
Haynes and the top lawyers for the military branches, he raised the
issue with Mr. Haynes directly: "We need more information."

Mr. Haynes looked at him coldly. "No, you don't," he quoted Mr.
Haynes as saying.

Mr. Haynes declined to comment on the exchange.

Lt. Col. William K. Lietzau, a Yale-trained Marine lawyer on Mr.
Haynes's staff, often found himself in the middle. "I could see how
the JAGs were frustrated that the task of setting up the
commissions hadn't been delegated to them,'' he said, referring to
the senior military lawyers. "On the other hand, I could see how
some of their recommendations frustrated the leadership because
they didn't always appear to embrace the paradigm shift needed to
deal with terrorism."

Some Justice Department officials also urged changes in the
commission rules, current and former officials said. While Attorney
General Ashcroft staunchly defended the policy in public, in a
private meeting with Pentagon officials, he said some of the
proposed commission rules would be seen as "draconian," two
officials said.

On nearly every issue, interviews and documents show, the harder
line was staked out by White House lawyers: Mr. Addington, Mr.
Gonzales and Mr. Flanigan. They opposed allowing civilian lawyers
to assist the tribunal defendants, as military courts-martial permit,
or allowing civilians to serve on the appellate panel that would
oversee the commissions. They also opposed granting defendants
a presumption of innocence.

In the end, Mr. Rumsfeld compromised. He granted defendants a
presumption of innocence and set "beyond a reasonable doubt" as
a standard for proving guilt. He also allowed the defendants to hire
civilian lawyers, but restricted the lawyers' access to case
information. And he gave the presiding officer at a tribunal license
to admit any evidence he thought might be convincing to a
"reasonable person.''

One right the administration sought to deny the prisoners was the
ability to appeal the legality of their detentions in federal court. The
administration had done its best to decide the question when
searching for a place to detain hundreds of prisoners captured in
Afghanistan. Every location it seriously considered - including an
American military base in Germany and islands in the South Pacific
- was outside the United States and, the administration believed,
beyond the reach of the federal judiciary.

On Dec. 28, 2001, after officials settled on Guantánamo Bay, Mr.
Philbin and Mr. Yoo told the Pentagon in a memorandum that it
could make a "very strong" claim that prisoners there would be
outside the purview of American courts. But the memorandum
cautioned that a reasonable argument could also be made that
Guantánamo "while not part of the sovereign territory of the United
States, is within the territorial jurisdiction of a federal court." That
warning would come back to haunt the administration.

                A Shift in Power

Some of the officials who helped design the new system of justice
would later explain the influence they exercised in the chaotic days
after Sept. 11 as a response to a crisis. But a more enduring shift of
power within the administration was taking place - one that became
apparent in a decision that would have significant consequences
for how terror suspects were interrogated and detained.

At issue was whether the administration would apply the Geneva
Conventions to the conflicts with Al Qaeda and the Taliban and
whether those enemies would be treated as prisoners of war.

Based on the advice of White House and Justice Department
lawyers, Mr. Bush initially decided on Jan. 18, 2002, that the
conventions would not apply to either conflict. But at a meeting of
senior national security officials several days later, Secretary of
State Powell asked him to reconsider.

Mr. Powell agreed that the conventions did not apply to the global
fight against Al Qaeda. But he said troops could be put at risk if the
United States disavowed the conventions in dealing with the
Taliban - the de facto government of Afghanistan. Both Mr.
Rumsfeld and the chairman of the Joint Chiefs of Staff, Gen.
Richard B. Myers, supported his position, Pentagon officials said.

In a debate that included the administration's most experienced
national-security officials, a voice heard belonged to Mr. Yoo, only a
deputy in the Office of Legal Counsel. He cast Afghanistan as a
"failed state," and said its fighters should not be considered a real
army but a "militant, terrorist-like group." In a Jan. 25
memorandum, the White House counsel, Mr. Gonzales,
characterized that opinion as "definitive," although it was not the
final basis for the president's decision.

The Gonzales memorandum suggested that the "new kind of war"
Mr. Bush wanted to fight could hardly be reconciled with the
"quaint" privileges that the Geneva Conventions gave to prisoners
of war, or the "strict limitations" they imposed on interrogations.

Military lawyers disputed the idea that applying the conventions
would necessarily limit interrogators to the name, rank and serial
number of their captives. "There were very good reasons not to
designate the detainees as prisoners of war, but the claim that they
couldn't be interrogated was not one of them," Colonel Lietzau said.
Again, though, such questions were scarcely heard, officials
involved in the discussions said.

Mr. Yoo's rise reflected a different approach by the Bush
administration to sensitive legal questions concerning foreign
affairs, defense and intelligence.

In past administrations, officials said, the Office of Legal Counsel
usually weighed in with opinions on questions that had already
been deliberated by the legal staffs of the agencies involved. Under
Mr. Bush, the office frequently had a first and final say. "O.L.C. was
definitely running the show legally, and John Yoo in particular," a
former Pentagon lawyer said. "He's kind of fun to be around, and
he has an opinion on everything. Even though he was quite young,
he exercised disproportionate authority because of his personality
and his strong opinions."

Mr. Yoo's influence was amplified by friendships he developed not
just with Mr. Addington and Mr. Flanigan, but also Mr. Haynes, with
whom he played squash as often as three or four times a week at
the Pentagon Officers Athletic Club.

If the Geneva Conventions debate raised Mr. Yoo's stature, it had
the opposite effect on lawyers at the State Department, who were
later excluded from sensitive discussions on matters like the
interrogation of detainees, officials from several agencies said.

"State was cut out of a lot of this activity from February of 2002 on,"
one senior administration official said. "These were treaties that we
were dealing with; they are meant to know about that."

The State Department legal adviser, William H. Taft IV, was
shunned by the lawyers who dominated the detainee policy,
officials said. Although Mr. Taft had served as the deputy secretary
of defense during the Reagan administration, more conservative
colleagues whispered that he lacked the constitution to fight
terrorists.

"He was seen as ideologically squishy and suspect," a former
White House official said. "People did not take him very seriously."

Through a State Department spokesman, Richard A. Boucher, Mr.
Taft declined to comment.

The rivalries could be almost adolescent. When field trips to
Guantánamo Bay were arranged for administration lawyers, the
invitations were sometimes relayed last to the State Department
and National Security Council, officials said, in the hope that
lawyers there would not be able to go on short notice.

It was on the first field trip, 10 days after detainees began to arrive
there on Jan. 11, 2002, that White House lawyers made clear their
intention to move forward quickly with military commissions.

On the flight home, several officials said, Mr. Addington urged Mr.
Gonzales to seek a blanket designation of all the detainees being
sent to Guantánamo as eligible for trial under the president's order.
Mr. Gonzales agreed.

The next day, the Pentagon instructed military intelligence officers
at the base to start filling out one-page forms for each detainee,
describing their alleged offenses. Weeks later, Mr. Haynes issued
an urgent call to the military services, asking them to submit
nominations for a chief prosecutor.

The first trials, many military and administration officials believed,
were just around the corner.Next: A Policy Unravels

Jack Begg contributed research for this article.

http://www.nytimes.com/2004/10/25/international/worldspecial2/25gitmo.html
has the second part of Golden's work, but it casts Ashcroft and
Rice in such a positive light I am skeptical.

              NY Times October 22, 2004

              General Takes Three Officers Off Tribunal at Cuba Base

              By NEIL A. LEWIS

WASHINGTON, Oct. 21 - The Pentagon official overseeing the war
crimes trials in Guantánamo on Thursday dismissed three officers
on the military tribunal that is conducting the proceedings, saying
they could not judge the cases impartially.

The action appeared to create new turmoil for the first United
States military tribunals since World War II. At the initial round of
hearings in August, defense lawyers said most of the military
officers who made up the five-member tribunal along with an
alternate were unsuitable because they had served in Afghanistan
or had other factors that made them biased.

The Pentagon official in charge of the tribunals, Gen. John D.
Altenburg Jr., who is retired from the Army, ruled on Thursday that
two officers on the panel and the alternate had to step down. But
General Altenburg rejected arguments from defense lawyers to
dismiss three others. He said proceedings against the first two
defendants, scheduled to resume next month, would go forward
with the remaining three officers.

General Altenburg's actions failed, however, to stem criticism from
defense lawyers who said his decisions were illogical, inconsistent
and only made the situation more unfair for their clients.

"Although it may seem like a partial victory for us, it really puts all of
us in a worse position," said Joshua Dratel, a lawyer from New
York who is defending David Hicks, 29, an Australian charged with
being a soldier for the Taliban. Mr. Dratel said the decisions on
Thursday seemed contrived or calculated to retain an advantage
for the prosecution.

General Altenburg retained enough members for a trial to proceed,
Mr. Dratel said, but made the defense's job more difficult. Because
two-thirds of the panel is needed to convict a defendant, the
prosecution now needs two members to win. With five members,
they needed four.

General Altenburg agreed to dismiss Col. R. Thomas Bright of the
Marines, who supervised an operation that sent suspected
terrorists from Afghanistan to Guantánamo Bay, Cuba; Lt. Col.
Timothy Tooney of the Air Force, who was an intelligence officer in
Iraq, and Lt. Col. Curt Cooper of the Army, who said at the August
hearings that he could not really say what the Geneva Conventions
were.

At the same time, General Altenburg rejected challenges to Col.
Jack Sparks Jr. of the Marines, who lost one of his Marine
reservists in the attack on the World Trade Center, and to Col.
Peter S. Brownback III of the Army, presiding officer of the panel.

Colonel Brownback attracted the most vehement opposition among
defense lawyers. They said he was unsuitable because he was a
longtime close friend of General Altenburg, who would have to rule
on Colonel Brownback's decisions. Further, the lawyers suggested
that Colonel Brownback lied at the August hearings when he said
he had never told a group of lawyers that he believed the
defendants were not entitled to a speedy trial.

A defense lawyer, Lt. Cmdr. Charles Swift, introduced into evidence
an audio tape of a meeting in which Colonel Brownback appeared
to have said just that.

In his decision, General Altenburg said, "The transcripts reveal that
on occasion, as in this instance, the presiding officer was too
casual with his remarks." But he added that the remarks should not
be disqualifying as they did not show conclusively that Colonel
Brownback had decided the issue of the right to a speedy before he
had heard arguments, but was just inartful in his words.

Commander Swift, the lawyer for Salim Ahmed Hamdan, 34, a
Yemeni accused of conspiring to commit acts of terrorism, said:
"The prosecution lost absolutely nothing in this. They gained in
fact."

He added that the standards applied by General Altenburg "make
no sense" and that the reasons that disqualified Colonels Toomey
and Bright should apply equally to Colonel Brownback. Critics of
the commission procedures have also complained that Colonel
Brownback, as the sole lawyer on the panel, would have an outsize
influence over the other members on legal questions.

The proceedings against Mr. Hamdan and Mr. Hicks are to resume
on Nov. 1, focusing on other motions. The actual trials are most
likely to begin in December or January.

The Guantánamo center, with 590 detainees, has been widely
viewed by other countries and human rights organizations as a
symbol of Washington's willingness to flout international law.
Although many inmates have been released, many others have
been held for more than two years without charges.

The Supreme Court ruled in June that the detainees can bring legal
issues before American courts. On Wednesday, a federal judge
ruled that the detainees can meet lawyers in private. The
government had said national security required video and audio
monitoring of such meetings.


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