History > 2008 > USA > Terrorism (VII)

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Seeking the Truth About Torture

NYT

20.12.2008

http://www.nytimes.com/2008/12/20/opinion/l20torture.html

Letters

Seeking the Truth About Torture

December 20, 2008
The New York Times

To the Editor:

Re “The Torture Report” (editorial, Dec. 18):

If we are to comply with the Geneva Conventions, political considerations will not relieve the president of his obligation to undertake prosecutions of top officials for the authorization of torture. The conventions themselves require adherents to hold such prosecutions.

This is a question of law, not politics; and those who try to politicize it are rightly dismissed as outlaws.

If defendants have legal defenses, they can raise them. Our legal system will address them, as it does all defenses raised by the accused. The country and the world can then judge the validity of those defenses and our judiciary’s decisions on them.

This is the only way to restore our reputation as law-abiding citizens of the world. It has the added virtue of being the right way.

Vincent J. Canzoneri
Newton, Mass., Dec. 18, 2008

The writer is a lawyer.

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To the Editor:

The new president could try a different approach: a Truth and Reconciliation Commission, like South Africa’s. Officials like former Defense Secretary Donald H. Rumsfeld could come forward and tell the whole truth in exchange for amnesty, or face prosecution. For the future of our country, the whole truth is far more valuable than vengeance. And such a commission would fit President-elect Barack Obama’s style.

Nancy Ellen Abrams
Santa Cruz, Calif., Dec. 18, 2008

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To the Editor:

Any investigations of the government’s authorization of torture and abuse must include the “extraordinary rendition” program, in which foreign nationals were abducted and flown to foreign or United States-run prisons overseas where they were tortured and abused.

In the case of Khaled El-Masri, our client, the government grabbed the wrong person, devastating an innocent man’s life.

Unfortunately, any hope of meaningful accountability for rendition and other abuses could be dashed if the departing president issues pardons to protect officials from future prosecution. This would be an unprecedented misuse of the pardon power and send an intolerable message.

Pre-emptive pardons would violate the fundamental American value that no one — no matter how powerful — is above the law.

Jamil Dakwar
New York, Dec. 18, 2008

The writer is director of the A.C.L.U. Human Rights Program.

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To the Editor:

Re “Out of Sight” (Op-Ed, Dec. 14):

Reuel Marc Gerecht’s defense of torture as appropriate national policy starts off by assuming the answer (torture will save thousands of civilian lives) and then goes on with flawless logic from there.

He avoids practical questions like “Is it the president of the United States who will personally determine with complete certainty that torturing a particular person will produce the information that will save the lives? Or will it be a C.I.A. field officer at the operational level who determines torture’s expediency?” “Did torture ever produce misleading information that in fact cost lives?” “Were innocent persons ever tortured in the reasonable but erroneous belief they had information that would save lives?” I think questions like these demonstrate some of the practical flaws in Mr. Gerecht’s argument.

Isn’t it further possible that, aside from the damage to what we consider our values as a free, democratic society, the disclosure of some of our actual practices (Guantánamo, waterboarding and so on) has done more to promote sympathy for anti-American terrorism than whatever the net gain, if any, has been in valuable intelligence information?

Carroll D. French
Langdon, N.H., Dec. 14, 2008

The writer served with United States Army Counterintelligence in the Korean War.

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To the Editor:

Reuel Marc Gerecht presents extraordinary rendition as a “satisfactory compromise.” He suggests, incredibly, that “deniable torturous interrogations by foreigners acting on behalf of the United States” are preferable to acting within the bounds of American and international law.

Not so. Extraordinary rendition is not the “sensible, moral thing to do.” It is an illegal and immoral practice that has real costs on real people, including my client, Maher Arar.

Mr. Arar, a Canadian citizen, was rendered to Syria, where he was detained in a grave-like cell for 10 months and tortured. He has suffered physically and mentally. He lost one year of his life, a year without his wife and his children, because United States officials opted not to employ traditional law enforcement techniques to assess claims of a purported link to terrorism.

Mr. Arar’s name has been cleared in Canada, while the Bush administration refuses to acknowledge its “mistake,” continues to keep Mr. Arar on a watch list and rebuffs his calls for justice. The only way to ensure that this does not happen to anyone else is for the United States to renounce this failed, flawed, illegal practice once and for all.

Katherine Gallagher
New York, Dec. 17, 2008

The writer, a staff attorney at the Center for Constitutional Rights, is on the legal team representing Maher Arar in Arar v. Ashcroft.

    Seeking the Truth About Torture, NYT, 20.12.2008, http://www.nytimes.com/2008/12/20/opinion/l20torture.html

Editorial

The Torture Report

December 18, 2008
The New York Times

Most Americans have long known that the horrors of Abu Ghraib were not the work of a few low-ranking sociopaths. All but President Bush’s most unquestioning supporters recognized the chain of unprincipled decisions that led to the abuse, torture and death in prisons run by the American military and intelligence services.

Now, a bipartisan report by the Senate Armed Services Committee has made what amounts to a strong case for bringing criminal charges against former Defense Secretary Donald Rumsfeld; his legal counsel, William J. Haynes; and potentially other top officials, including the former White House counsel Alberto Gonzales and David Addington, Vice President Dick Cheney’s former chief of staff.

The report shows how actions by these men “led directly” to what happened at Abu Ghraib, in Afghanistan, in Guantánamo Bay, Cuba, and in secret C.I.A. prisons.

It said these top officials, charged with defending the Constitution and America’s standing in the world, methodically introduced interrogation practices based on illegal tortures devised by Chinese agents during the Korean War. Until the Bush administration, their only use in the United States was to train soldiers to resist what might be done to them if they were captured by a lawless enemy.

The officials then issued legally and morally bankrupt documents to justify their actions, starting with a presidential order saying that the Geneva Conventions did not apply to prisoners of the “war on terror” — the first time any democratic nation had unilaterally reinterpreted the conventions.

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That order set the stage for the infamous redefinition of torture at the Justice Department, and then Mr. Rumsfeld’s authorization of “aggressive” interrogation methods. Some of those methods were torture by any rational definition and many of them violate laws and treaties against abusive and degrading treatment.

These top officials ignored warnings from lawyers in every branch of the armed forces that they were breaking the law, subjecting uniformed soldiers to possible criminal charges and authorizing abuses that were not only considered by experts to be ineffective, but were actually counterproductive.

One page of the report lists the repeated objections that President Bush and his aides so blithely and arrogantly ignored: The Air Force had “serious concerns regarding the legality of many of the proposed techniques”; the chief legal adviser to the military’s criminal investigative task force said they were of dubious value and may subject soldiers to prosecution; one of the Army’s top lawyers said some techniques that stopped well short of the horrifying practice of waterboarding “may violate the torture statute.” The Marines said they “arguably violate federal law.” The Navy pleaded for a real review.

The legal counsel to the chairman of the Joint Chiefs of Staff at the time started that review but told the Senate committee that her boss, Gen. Richard Myers, ordered her to stop on the instructions of Mr. Rumsfeld’s legal counsel, Mr. Haynes.

The report indicates that Mr. Haynes was an early proponent of the idea of using the agency that trains soldiers to withstand torture to devise plans for the interrogation of prisoners held by the American military. These trainers — who are not interrogators but experts only on how physical and mental pain is inflicted and may be endured — were sent to work with interrogators in Afghanistan, in Guantánamo and in Iraq.

On Dec. 2, 2002, Mr. Rumsfeld authorized the interrogators at Guantánamo to use a range of abusive techniques that were already widespread in Afghanistan, enshrining them as official policy. Instead of a painstaking legal review, Mr. Rumsfeld based that authorization on a one-page memo from Mr. Haynes. The Senate panel noted that senior military lawyers considered the memo “ ‘legally insufficient’ and ‘woefully inadequate.’ ”

Mr. Rumsfeld rescinded his order a month later, and narrowed the number of “aggressive techniques” that could be used at Guantánamo. But he did so only after the Navy’s chief lawyer threatened to formally protest the illegal treatment of prisoners. By then, at least one prisoner, Mohammed al-Qahtani, had been threatened with military dogs, deprived of sleep for weeks, stripped naked and made to wear a leash and perform dog tricks. This year, a military tribunal at Guantánamo dismissed the charges against Mr. Qahtani.

The abuse and torture of prisoners continued at prisons run by the C.I.A. and specialists from the torture-resistance program remained involved in the military detention system until 2004. Some of the practices Mr. Rumsfeld left in place seem illegal, like prolonged sleep deprivation.

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These policies have deeply harmed America’s image as a nation of laws and may make it impossible to bring dangerous men to real justice. The report said the interrogation techniques were ineffective, despite the administration’s repeated claims to the contrary.

Alberto Mora, the former Navy general counsel who protested the abuses, told the Senate committee that “there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq — as judged by their effectiveness in recruiting insurgent fighters into combat — are, respectively, the symbols of Abu Ghraib and Guantánamo.”

We can understand that Americans may be eager to put these dark chapters behind them, but it would be irresponsible for the nation and a new administration to ignore what has happened — and may still be happening in secret C.I.A. prisons that are not covered by the military’s current ban on activities like waterboarding.

A prosecutor should be appointed to consider criminal charges against top officials at the Pentagon and others involved in planning the abuse.

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Given his other problems — and how far he has moved from the powerful stands he took on these issues early in the campaign — we do not hold out real hope that Barack Obama, as president, will take such a politically fraught step.

At the least, Mr. Obama should, as the organization Human Rights First suggested, order his attorney general to review more than two dozen prisoner-abuse cases that reportedly were referred to the Justice Department by the Pentagon and the C.I.A. — and declined by Mr. Bush’s lawyers.

Mr. Obama should consider proposals from groups like Human Rights Watch and the Brennan Center for Justice to appoint an independent panel to look into these and other egregious violations of the law. Like the 9/11 commission, it would examine in depth the decisions on prisoner treatment, as well as warrantless wiretapping, that eroded the rule of law and violated Americans’ most basic rights. Unless the nation and its leaders know precisely what went wrong in the last seven years, it will be impossible to fix it and make sure those terrible mistakes are not repeated.

We expect Mr. Obama to keep the promise he made over and over in the campaign — to cheering crowds at campaign rallies and in other places, including our office in New York. He said one of his first acts as president would be to order a review of all of Mr. Bush’s executive orders and reverse those that eroded civil liberties and the rule of law.

That job will fall to Eric Holder, a veteran prosecutor who has been chosen as attorney general, and Gregory Craig, a lawyer with extensive national security experience who has been selected as Mr. Obama’s White House counsel.

A good place for them to start would be to reverse Mr. Bush’s disastrous order of Feb. 7, 2002, declaring that the United States was no longer legally committed to comply with the Geneva Conventions.

    The Torture Report, NYT, 18.12.2008, http://www.nytimes.com/2008/12/18/opinion/18thu1.html

Alleged 9/11 Plotters Offer to Confess at Guantánamo

December 9, 2008
The New York Times
By WILLIAM GLABERSON

GUANTÁNAMO BAY, Cuba — All five of the Guantánamo detainees charged with planning and coordinating the Sept. 11 attacks have asked a military judge to accept their confessions in full. The request appeared to be intended to cut short any effort to try them, and to challenge the United States government to put them to death.

At the start of what had been expected to be routine proceedings Monday, the military judge, Col. Steven Henley, disclosed that he had received a written statement from the five men. The statement said the five planned to stop filing written motions and instead “to announce our confessions to plea in full.”

As he questioned one of the men, Khalid Sheikh Mohammed, who has described himself as the mastermind of the 2001 attacks, Judge Henley of the United States Army asked whether Mr. Mohammmed was prepared to enter pleas to the charges against him today. “Yes,” Mr. Mohammed answered brusquely.

“We don’t want to waste our time with motions,” Mr. Mohammed said. “All of you are paid by the U.S. government. I’m not trusting any American.”

Military prosecutors have sought the death penalty against all five men.

Judge Henley began methodically questioning each of the five men to determine if they agreed with the joint statement, which was written after lengthy meetings among them that military officials had permitted them to hold in recent weeks.

“We the brothers, all of us, would like to submit our confession,” Ramzi bin al Shibh, another oft the detainees, said in response to questions from the judge. Mr. bin al Shibh is charged with being the primary contact with the Sept. 11 hijackers.

The judge said that even if he agreed on Monday to accept the pleas, he would hold a later session to examine the full facts behind the detainees’ decisions to plead guilty.

The unusual events were not a complete surprise. There had been indications for months that the detainees were resisting working with the military lawyers assigned to represent them. In addition, a move to cut short the proceedings had been seen by some lawyers working in the system here as a way Mr. Mohammed and the other men could draw maximum public attention to their cases and, potentially, to make statements about their political views without the government having the opportunity to detail their acts, including the specifics of the plot that caused the deaths of nearly 3,000 people, in court.

The American political calendar may also be a factor. Many people inside and outside the government expect President-elect Obama to close down the military commissions that have been used by the Bush administration, and to direct that many detainees now held in Guantánamo Bay be prosecuted instead in the civilian American legal system.

If that indeed happens in the first days of the Obama administration, then Monday’s proceedings will have been the detainees’ last opportunity to challenge the widely criticized system here with guilty pleas that could yield them the opportunity for what they see as martyrdom.

    Alleged 9/11 Plotters Offer to Confess at Guantánamo, NYT, 9.12.2008, http://www.nytimes.com/2008/12/09/us/09gitmo.html?hp

Editorial

Tortured Justice

December 8, 2008
The New York Times

The nation’s courts continue to grapple with the abuses committed by President Bush’s administration in the name of fighting terrorism. The extent of the damage to American liberties, and how lasting it will be, will be told in part by the outcome of two cases that are to be heard by the federal courts.

On Friday, the Supreme Court agreed to hear a case that turns on Mr. Bush’s claim that he can order people living in the United States to be detained by the military indefinitely without charges. The case involves Ali al-Marri, a citizen of Qatar who was in the United States legally. He was declared an enemy combatant in mid-2003 and has been held in a Navy brig since then.

The detention was upheld by an appeals court panel, which should be quickly and definitively reversed by the Supreme Court. This intolerable reading of the law would leave a president free to suspend the rights of anyone, including American citizens.

The other, equally notorious case is being heard on Tuesday by the United States Court of Appeals for the Second Circuit, in Manhattan. It involves Maher Arar, a Syrian-born Canadian with no ties to terrorism who became a victim of the Bush team’s lawless policy of “extraordinary rendition” — the outsourcing of interrogations to foreign governments known to torture prisoners.

Mr. Arar’s ordeal began in 2002, when he was seized by federal agents as he tried to change planes on his way home to Canada from a family vacation. After being held incommunicado in solitary confinement and subjected to harsh interrogation without proper access to a lawyer, he was “rendered” to Syria, where he was tortured. He was locked up for almost a year in a dank underground cell the size of a grave before he was finally let go.

The Canadian government later declared that it had provided erroneous information about Mr. Arar to American authorities. It apologized to him in 2007 and agreed to pay him $10 million. Last June, the Homeland Security Department’s inspector general, Richard Skinner, and its former inspector general, Clark Ervin, said at a Congressional hearing that officials may have violated federal criminal laws in sending Mr. Arar to Syria, knowing he was likely to be tortured.

Yet that same month, a three-judge federal appeals panel dismissed Mr. Arar’s civil rights lawsuit on flimsy national security grounds and, absurdly, his failure to seek court review of his rendition within the time period specified in immigration law. In essence, the 2-to-1 ruling rewarded the administration’s egregiously bad behavior in denying Mr. Arar’s initial requests to see a lawyer, and then lying to his attorney about his whereabouts, which obstructed his access to the courts.

In addition, by treating this as an immigration case, the ruling overlooked reality. The salient issue is the improper and unconstitutional tactics used by United States officials to obtain information they wrongly thought Mr. Arar possessed. That point was emphasized by Judge Robert Sack in his cogent dissenting opinion from the first appeals court ruling.

We took it as an encouraging sign when the appellate court took the rare step of scheduling Tuesday’s rehearing before its entire bench before an appeal was filed. A decision allowing Mr. Arar’s case to proceed would recognize the court’s essential role in protecting constitutional rights. It also would firmly reject the Bush administration’s seamy efforts to frustrate accountability for executive branch excesses.

The Obama administration will then have to decide whether to defend the indefensible when the case comes to trial. That will provide an interesting test of the new Justice Department’s commitment to due process.

    Tortured Justice, NYT, 8.12.2008, http://www.nytimes.com/2008/12/08/opinion/08mon1.html

US Jewish, Meditation Groups' Members Die in India

November 29, 2008
Filed at 2:32 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

NEW YORK (AP) -- A New York couple who recognized the threat of terrorism in India but believed their mission of spreading Jewish pride was greater than the potential danger were slain in a series of attacks across Mumbai that have killed at least five Americans.

Rabbi Gavriel Noach Holtzberg, 29, and his wife, Rivkah, 28, died in the attack on the ultra-Orthodox Chabad-Lubavitch movement's center in Mumbai, Rabbi Zalman Shmotkin said in New York. Elite commandos who stormed the center found six hostages dead.

The group said three other victims in the building apparently had been visiting there. Shmotkin said the dead included Bentzion Chroman, an Israeli with dual U.S. citizenship; Rabbi Leibish Teitlebaum, an American from Brooklyn; and an Israeli woman whose name was not released. The Israeli Foreign Ministry said the body of a sixth victim, an unidentified woman, was also found inside the five-story building.

Some of the victims had been bound.

The Holtzbergs' toddler son, Moshe, was rescued by an employee and taken to his grandparents.

More than 150 people had been killed since gunmen attacked 10 sites across India's financial capital, Mumbai, also known as Bombay, starting Wednesday night, officials said.

Also killed were a man and his teenage daughter from a Virginia community that promotes a form of meditation, a colleague said Friday. Alan Scherr, 58, and daughter Naomi, 13, died in a cafe Wednesday night, said Bobbie Garvey, a spokeswoman for the Synchronicity Foundation.

The U.S. State Department confirmed their deaths.

Mayor Michael Bloomberg said the deaths of the three victims from New York were ''tragic losses'' for the city. He said Teitlebaum, a Brooklyn native who moved to Jerusalem several years ago, was a kosher food supervisor.

''Our hearts go out to these families and to the many New Yorkers of all different religions and ethnicities who have been affected by the attacks,'' Bloomberg said.

Members of the Chabad-Lubavitch movement gathered at the group's headquarters Friday to pray for the families of the dead.

''Gabi and Rivky Holtzberg made the ultimate sacrifice,'' said Rabbi Moshe Kotlarsky, vice chairman of the educational arm of Chabad-Lubavitch.

''As emissaries to Mumbai, Gabi and Rivky gave up the comforts of the West in order to spread Jewish pride in a corner of the world that was a frequent stop for throngs of Israeli tourists,'' he said.

Shmotkin said at least three of the victims at the center held U.S. citizenship: Teitlebaum was an American from Brooklyn, while the Israeli-born rabbi, who moved to the U.S. as a child, and Chroman both had dual Israeli-U.S. citizenship. Officials were not sure whether Rivkah Holtzberg, also born in Israel, had obtained dual citizenship.

Twelve hours after gunmen stormed the center Wednesday, Sandra Samuel, a cook at the center, heard little Moshe's cries outside the room in which she had barricaded herself. She opened the door, grabbed the toddler and ran outside with another center worker. The little boy's pants were soaked with blood, and Samuel said she saw four people lying on the floor as she fled.

Kotlarsky said Holtzberg's last known call was to the Israeli consulate. He said that ''the situation is not good'' before the phone went dead, according to Kotlarsky.

The Holtzbergs arrived in Mumbai in 2003 to run a synagogue, provide religious instruction and help people dealing with drug addiction and poverty, Kotlarsky said.

Hillary Lewin, a New Yorker met the Holtzbergs last summer at the center in India, said both the rabbi and his wife were aware of possible terrorism, but believed their mission was greater than the potential danger.

Their attitude was ''If I don't do it, who's going to do it?'', Lewin said.

Rabbi Yehuda Krinsky said Moshe will turn 2 on Saturday. ''Today, he became an orphan,'' he said. A second son, who has been ailing, was with relatives in Israel when the attack happened. A third child died earlier this year of a genetic disease, the group said.

The Scherrs were among 25 foundation participants in a spiritual program in Mumbai. Four others on the mission were injured in the cafe attack in the luxury Oberoi hotel, Garvey said, including two women from Tennessee.

''I would call them bright stars,'' Garvey said of the Scherrs. ''Extraordinary, bright, very positive -- examples to the world.''

Scherr was a former college professor who lived at the Synchronicity sanctuary about 15 miles southwest of Charlottesville. His wife, Kia, and her two sons did not travel with them to India.

According to the foundation's Web site, the community is led by Master Charles, a former leading disciple of Swami Paramahansa Muktananda. He is described as ''one of the most popular spiritual teachers from India to build a following the West in the 1970s.'' He taught a form of yoga.

Garvey identified the Synchronicity injured as Helen Connolly of Toronto, who was grazed by a bullet; Rudrani Devi and Linda Ragsdale, both of Nashville, who both underwent surgery for bullet wounds; and Michael Rudder of Montreal, who remains in intensive care after being shot three times. Other members of the mission narrowly escaped the attack.

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Associated Press writers Steve Szkotak in Richmond, Va., Tom Hays in New York and Ravi Nessman in Mumbai, India, contributed to this report.

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On the Web:

Chabad-Lubavitch Media Center: http://www.chabad.org/

Synchronicity Foundation: http://www.synchronicity.org/

    US Jewish, Meditation Groups' Members Die in India, NYT, 29.11.2008, http://www.nytimes.com/aponline/us/AP-India-Shooting-US-Victims.html

Qaeda's Zawahri Says U.S. Wars Behind Financial Crisis

November 28, 2008
Filed at 8:51 a.m. ET
The New York Times
By REUTERS

DUBAI (Reuters) - Al Qaeda's second-in-command said in an Internet video the U.S. financial crisis was caused by Washington's military campaigns in Iraq and Afghanistan and taxpayers were paying the price.

"This crisis is one of ... the series of American economic hemorrhages after the strikes of September 11... And these ... will continue as long as the foolish American policy of wading in Muslim blood continues," Ayman al-Zawahri said on the video, posted on Islamist websites on Friday.

"The ones shouldering the burden are taxpayers, whose money was spent to rescue senior capitalists and to protect the fraudulent interest-based system from collapse," Zawahri said.

Asked by an off-camera interviewer whether Washington would be able to resolve the crisis, Zawahri said: "They might be able to lighten their losses if they were to stop the insane hemorrhaging of funds which they are spending on wars against Muslims."

Zawahri said U.S. military action against militant tribal forces in Pakistan, who are allied with al Qaeda, would fail despite more troops being sent by President George W. Bush to neighboring Afghanistan.

"I challenge you (Bush), if you are really a man, to send the entire American army to Pakistan and the tribal regions for it to end up in hell," Zawahri said on the video, which carried English subtitles.

Calls for talks to end the war in Afghanistan showed the failure of U.S.-led forces in defeating the Taliban, he said.

"All this is proof of the failure of their crusade," Zawahri said on the 80-minute video, referring to efforts to start a dialogue between the Afghan government and some moderate figures from among Taliban insurgents.

With the Taliban insurgency spreading seven years after the hardline Islamists were forced from power, the possibility of talks with more moderate Taliban leaders is increasingly being considered, both in Afghanistan and among its allies.

Zawahri called for a general strike in Egypt to pressure the government to open the Gaza border to defeat an Israeli siege of the area ruled by militant Palestinian Islamist group Hamas.

"What is the problem if students, employees and workers were to refuse to study and work until the siege is lifted on Gaza?" the Egyptian militant leader said. "Are we unable to carry out such a peaceful strike?"

The video appeared to have been made earlier than an audio recording issued on November 19, in which Zawahri criticized U.S. president-elect Barack Obama for vowing to back Israel during his campaign, and warned he would fail if he follows the policies of Bush.

(Reporting by Firouz Sedarat; Editing by Samia Nakhoul)

    Qaeda's Zawahri Says U.S. Wars Behind Financial Crisis, NYT, 28.11.2008, http://www.nytimes.com/reuters/world/international-us-qaeda-zawahri-crisis.html

Bin Laden’s Driver to Be Returned to Yemen

November 26, 2008
The New York Times
By ROBERT F. WORTH

BEIRUT, Lebanon — The United States military has decided to release from its prison at Guantánamo Bay a former driver for Osama bin Laden whose trial became a test case for the Bush administration’s system of military commissions.

Salim Ahmed Hamdan, who was captured in Afghanistan in 2001, will be released in the coming days and transferred to his native Yemen, where he will serve the month-long remainder of his sentence, Yemeni officials said.

Once considered a dangerous terrorist by the Bush administration, Mr. Hamdan was convicted only on lesser charges and given what amounted to a four-month sentence by a military jury in August. The verdict was a sharp setback for Pentagon officials, who had contended they could detain him indefinitely.

“The Yemeni government is very pleased by the announcement to transfer the Yemeni detainee Saleh Ahmed bin Hamdan,” said Mohammed al Basha, a spokesman for the Yemeni Embassy in Washington. “We hope that this will be a positive first step to the transfer of the remaining detainees.”

The decision avoids what could have been a difficult issue for President-elect Barack Obama, who has said he wants to close the U.S. military prison in Cuba. Mr. Hamdan’s lawyers were preparing to fight the Pentagon’s assertion that he could be detained indefinitely, and Mr. Hamdan’s case could have been brought before the Supreme Court for a second time.

Instead, Mr. Hamdan, who is about 40, will be held in a prison in Sana, the Yemeni capital, until Dec. 27 and then released to his wife and children under supervision, Mr. al Basha said. Of the 250 remaining detainees at Guantánamo, 101 are Yemeni, including Mr. Hamdan. The U.S. government has had concerns about sending them home to Yemen, because of that country’s detention policies and track record with terrorism.

    Bin Laden’s Driver to Be Returned to Yemen, NYT, 26.11.2008, http://www.nytimes.com/2008/11/26/washington/26gitmo.html?hp

Five Convicted in Terrorism Financing Trial

November 25, 2008
The New York Times
By GRETEL C. KOVACH

DALLAS — On their second try, federal prosecutors won sweeping convictions Monday against five leaders of a Muslim charity in a retrial of the largest terrorism-financing case in the United States since the attacks of Sept. 11, 2001.

The five defendants, all leaders of the Holy Land Foundation for Relief and Development, based in Richardson, a Dallas suburb, were convicted on all 108 criminal counts against them, including support of terrorism, money laundering and tax fraud. The group was accused of funneling millions of dollars to the Palestinian militant group Hamas, an Islamist organization the government declared to be a terrorist group in 1995.

“Money is the lifeblood of terrorism,” Richard B. Roper, the United States attorney whose office prosecuted the case, said Monday in a statement. “The jury’s decision demonstrates that U.S. citizens will not tolerate those who provide financial support to terrorist organizations.”

The defendants argued that the Holy Land Foundation, once the largest Muslim charity in the United States, was engaged in legitimate humanitarian aid for community welfare programs and Palestinian orphans.

The jury, which deliberated for eight days, reached a starkly different result than the jury in the first trial, which ended in a mistrial on most charges in October 2007, after nearly two months of testimony and 19 days of deliberations.

The government shuttered the Holy Land Foundation in December 2001 and seized its assets, a move President Bush heralded at the time as “another step in the war on terrorism.”

The charity’s leaders — Ghassan Elashi, Shukri Abu-Baker, Mufid Abdulqader, Abdulrahman Odeh and Mohammad El-Mezain — were not accused in the 2004 indictment of directly financing suicide bombings or terrorist violence. Instead, they accused of illegally contributing to Hamas after the United States designated it a terrorist group.

The defendants could be sentenced to 15 years on each count of supporting a terrorist group, and 20 years on each count of money laundering. Leaders of the foundation, which is now defunct, might also have to forfeit millions of dollars.

Khalil Meek, a longtime spokesman for a coalition of Holy Land Foundation supporters called Hungry for Justice, which includes national Muslim and civil rights groups, said supporters were “devastated” by the verdict.

“We respect the jury’s decision, but we disagree and we think the defendants are completely innocent,” Mr. Meek said. “For the last two years we’ve watched this trial unfold, and we have yet to see any evidence of a criminal act introduced to a jury. This jury found that humanitarian aid is a crime.”

He added, “We intend to appeal the verdict, and we remain convinced that we will win.”

The prosecutor, Barry Jonas, told jurors in closing arguments last week that they should not be deceived by the foundation’s cover of humanitarian work, describing the charities it financed as terrorist recruitment centers that were part of a “womb to the tomb” cycle.

After the mistrial last year, critics said the government had offered a weak, complicated case and had failed to recognize that juries were not as quick to convict Muslim defendants accused of supporting terrorism as they had once been. Prosecutors spent more time in the second trial explaining the complexities of the case and painting a clearer picture of the money trail. They also dropped many of the original charges.

“Today’s verdicts are important milestones in America’s efforts against financiers of terrorism,” Patrick Rowan, assistant attorney general for national security, said in a statement. Mr. Rowan added that the prosecution “demonstrates our resolve to ensure that humanitarian relief efforts are not used as a mechanism to disguise and enable support for terrorist groups.”

Nancy Hollander, a lawyer from Albuquerque who represented Mr. Abu-Baker, said the defendants would appeal based on a number of issues, including the anonymous testimony of an expert, which she said was a first.

“Our clients were not even allowed to review their own statements because they were classified — statements that they made over the course of many years that the government wiretapped,” Ms. Hollander said. “They were not allowed to go back and review them. There were statements from alleged co-conspirators that included handwritten notes. Nobody knew who wrote them; nobody knew when they were written. There are a plethora of issues.”

Noor Elashi, a 23-year-old writer who is the daughter of Ghassan Elashi, said she was “heartbroken” that jurors had accepted what she called the fear-mongering of the prosecution.

“I am utterly shocked at this outcome,” Ms. Elashi said. “This is a truly low point for the United States of America.” She said supporters would not rest until the verdict was overturned.

“My dad is a law-abiding citizen who was persecuted for his humanitarian work in Palestine and his political beliefs,” Ms. Elashi said. “Today I did not shed a single tear. My dad’s smile was radiant. That’s because he saved lives, and now he’s paying the price.”

According to freedomtogive.com, a Web site that calls itself the voice of the defendants’ relatives and friends, the foundation “simply provided food, clothes, shelter, medical supplies and education to the suffering people in Palestine and other countries.”

    Five Convicted in Terrorism Financing Trial, NYT, 25.11.2008, http://www.nytimes.com/2008/11/25/us/25charity.html?hp

Appeals Court Backs Warrantless Searches Abroad

November 25, 2008
The New York Times
By BENJAMIN WEISER

A federal appeals court in Manhattan upheld the convictions on Monday of three Al Qaeda operatives in a ruling that bolsters the government’s power to investigate terrorism by holding that a key Constitutional protection afforded to Americans does not apply overseas.

The unanimous decision by a three-judge panel of the United States Court of Appeals for the Second Circuit holds for the first time that government agents may obtain admissible evidence against United States citizens through warrantless searches abroad.

The searches must still be reasonable, as the Constitution requires, Judge José A. Cabranes wrote, adding that the government had met that standard in its search of the home and monitoring of the telephone of one defendant, Wadih El-Hage, a close aide to Osama bin Laden, who was a naturalized American citizen living in Nairobi, Kenya.

“The Fourth Amendment’s requirement of reasonableness — but not the Warrant Clause — applies to extraterritorial searches and seizures of U.S. citizens,” the judge wrote.

Mr. El-Hage and two other defendants had appealed their convictions for participating in a terrorism conspiracy, led by Mr. bin Laden, to kill Americans around the world. The conspiracy included the 1998 bombings of two American embassies, in Nairobi, Kenya, and Dar es Salaam, Tanzania, which killed 224 people and wounded thousands. They were convicted in Manhattan federal court in 2001 in the last major terrorism trial in the United States before the Sept. 11 attacks.

The two other defendants whose convictions were upheld were Mohamed Rashed Daoud al-’Owhali and Mohammed Saddiq Odeh. A fourth defendant, Khalfan Khamis Mohamed, did not appeal his conviction. The men were convicted in a federal trial in Manhattan in early 2001. All four men are serving life sentences in the so-called Super Max prison in Florence, Colo.

The ruling, joined by Judges Jon O. Newman and Wilfred Feinberg, is divided into three separate opinions, which total 178 pages.

“This criminal case presents issues of great importance, many of which are complex and novel,” Judge Cabranes wrote, noting that the case had been in the courts for a decade.

    Appeals Court Backs Warrantless Searches Abroad, NYT, 25.11.2008, http://www.nytimes.com/2008/11/25/nyregion/25embassy.html?hp

Judge Declares Five Detainees Held Illegally

November 21, 2008
The New York Times
By WILLIAM GLABERSON

A federal judge issued the Bush administration a sharp setback on Thursday, ruling that five Algerian men have been held unlawfully at the Guantánamo Bay detention camp for nearly seven years and ordering their release.

It was the first hearing on the government’s evidence for holding detainees at Guantánamo. The judge, Richard J. Leon of Federal District Court in Washington, said the government’s secret evidence in the case had been weak: what he described as “a classified document from an unnamed source” for its central claim against the men, with little way to measure credibility.

“To rest on so thin a reed would be inconsistent with this court’s obligation,” Judge Leon said. He urged the government not to appeal and said the men should be released “forthwith.”

The habeas corpus case was an important test of the administration’s detention policies, which critics have long argued swept up innocent men and low-level foot soldiers along with hardened fighters and terrorist commanders.

The judge also ruled that a sixth Algerian man was being lawfully detained because he was a facilitator for Al Qaeda, arranging travel for others to fight the United States, and planned to become a fighter himself.

The six men are among a group of Guantánamo inmates who won a 5-to-4 Supreme Court ruling in June that the detainees had a constitutional right to seek their release in federal court. The decision said a 2006 law unconstitutionally stripped them of their right to contest their imprisonment in habeas corpus lawsuits.

A weeklong hearing for the Algerians, in which all of the evidence was heard in proceedings that were closed to the public, was the first in which the Justice Department was required to present its full justification for holding specific detainees since the Supreme Court ruling.

Judge Leon, in a ruling from the bench, said the information gathered on the men had been sufficient for intelligence purposes but not for the court.

He said the government’s case, which contended that the five men planned to travel to Afghanistan and take up arms against the United States, relied exclusively on information obtained from the single unnamed source.

Judge Leon, who was appointed by President Bush, ruled in 2005 that the men had no habeas corpus rights, and he had been expected to be sympathetic to the government in the current case.

As he read his decision in a quiet courtroom, he seemed to bridle at the Supreme Court’s ruling, saying its effect was “to superimpose the habeas corpus process into the world of intelligence gathering.”

He said his decision, which involved men first detained in Bosnia far from the war in Afghanistan, should not be read as a reflection on the strength of the cases against other detainees, more than 200 of whom have filed habeas corpus cases. “This is a unique case,” he said.

Still, there was a buzz in the gallery when he announced that the government had not proved its case against the five men. In urging the government not to continue to fight the case, he noted that an appeal could take as long as two years.

“Seven years of waiting for our legal system to give them an answer to a question so important is, in my judgment, more than plenty,” he said.

The men listened to the proceedings over a phone line from Guantánamo. If the government appeals they could remain there indefinitely. If it does not, one of their lawyers, Stephen H. Oleskey, said he expected that they would return to Bosnia, where they would be freed.

In a statement, the Justice Department did not say whether it would appeal, only that it was reviewing the case. It added that the ruling was “perhaps an understandable consequence of the fact that neither the Supreme Court nor Congress has provided rules on how these habeas corpus cases should proceed in this unprecedented context.”

Robert C. Kirsch, one of the six detainees’ lawyers from the law firm Wilmer Hale, said the case showed “the human cost of what can happen when mistakes are made at the highest levels of our government, and no one has the courage to acknowledge those mistakes.”

Lawyers for other detainees said the decision was a repudiation of the Bush administration’s effort to use the detention center at the American naval base at Guantánamo Bay, Cuba, to avoid scrutiny by American judges. President-elect Barack Obama has promised to close the prison.

“The decision by Judge Leon lays bare the scandalous basis on which Guantánamo has been based — slim evidence of dubious quality,” said Zachary Katznelson, legal director at Reprieve, a British legal group that represents detainees.

But Andrew C. McCarthy, a former federal terrorism prosecutor, said the decision highlighted the difficulties of courts’ reviewing wartime decisions about who qualifies as an enemy combatant. Mr. McCarthy said those were decisions “our system of divided powers consigns to military professionals in the executive branch, not judges.”

The five men who were ordered freed included Lakhdar Boumediene, for whom the landmark Supreme Court ruling in June was named. The one detainee Judge Leon found to be lawfully held, Bensayah Belkacem, has been described by intelligence agencies as the leading Qaeda operative in Bosnia.

Judge Leon said there had been some corroborating evidence that linked Mr. Bensayah to a “senior Al Qaeda facilitator.”

The case against the six men has become an example of the Bush administration’s pattern of changing strategy in its legal defense of Guantánamo.

In 2002, Mr. Bush made the accusations against the six men a showcase. He said in his State of the Union address that they had been planning a bomb attack on the American Embassy in Sarajevo, Bosnia. But last month, Justice Department lawyers said they were no longer relying on those accusations.

The Guantánamo habeas corpus cases have moved slowly despite a directive by the Supreme Court that judges should act quickly after nearly seven years of detention for many of the 250 men still held in Guantánamo.

J. Wells Dixon, a detainees’ lawyer at the Center for Constitutional Rights, said the ruling made clear that Guantánamo had failed. But, he said, “Justice comes too late for these five men.”

This week, the Justice Department filed motions seeking to stop more than 100 of the other Guantánamo habeas corpus cases from proceeding. Department lawyers argued that there were flaws in the ground rules for the Guantánamo cases that would require the government to reveal classified evidence.

Last month, another federal judge in Washington, Ricardo M. Urbina, ordered the release of 17 ethnic Uighur detainees from China. But Judge Urbina did not hold a hearing on the evidence because the government conceded that the men were not enemy combatants, and said it was continuing to hold the Uighurs because it could not find a country willing to accept them.

The Justice Department is appealing Judge Urbina’s ruling. Arguments are scheduled for Monday in the United States Courts of Appeals in Washington.
 

Bernie Becker contributed reporting.

    Judge Declares Five Detainees Held Illegally, NYT, 21.11.2008, http://www.nytimes.com/2008/11/21/us/21guantanamo.html?hp

Qaeda Deputy Notes Obama Victory, With Insult

November 20, 2008
The New York Times
By MARK MAZZETTI and SCOTT SHANE

WASHINGTON — In a propaganda salvo by Al Qaeda aimed at undercutting the enthusiastic response of Muslims worldwide to the recent American election, Osama bin Laden’s top deputy condemned President-elect Barack Obama as a “house Negro” who would continue a campaign against Islam begun by President Bush.

Appealing to the “weak and oppressed” around the world, the Qaeda deputy, Ayman al-Zawahri, sought to dampen enthusiasm for Mr. Obama’s election around the globe by saying that the “new face” of America only masked a “heart full of hate.”

The Qaeda leader described the victory by Mr. Obama, who has called for a troop withdrawal from Iraq, as the American people’s “admission of defeat in Iraq.” But he warned Mr. Obama that United States risked a reprise of the Soviet Union’s failures in Afghanistan if the president-elect followed through on pledges o deploy thousands more troops to that country.

And in a blunt personal attack on the new president, Mr. Zawahri painted Mr. Obama as a hypocrite and traitor to his race, unfavorably comparing him to “honorable black Americans” like Malcolm X, the 1960s black Muslim leader.

The Qaeda video drew extensively on archival footage of Malcolm X, and much of the message juxtaposes a still picture of Mr. Obama wearing a yarmulke during a visit to the Wailing Wall in Jerusalem with a photo of Malcolm X kneeling in prayer at a mosque.

The video shows Malcolm X speaking about the docile “house Negro,” who he said “always looked out for his master,” and the “field Negro,” who was abused by whites and was more rebellious. And the message sharply insults Mr. Obama, along with two prominent black diplomats, the former and current secretaries of state, Colin Powell and Condoleezza Rice.

“And in you and in Colin Powell, Rice and your likes, the worlds of Malcolm X (may Allah have mercy on him) concerning ‘House Negroes’ are concerned,” the voiceover says, in a English-language transcript that Site said was provided by As-Sabbah. In the original Arabic, Site said, the words used are “house slave.”

The video by Mr. Zawahri, an Egyptian physician who has long been Al Qaeda’s second ranking operative, contains no specific warning of an attack against the United States. But the Qaeda leader tells his followers that America “continues to be the same as ever, so we must continue to harm it, in order for it to come to its senses.”

American officials dismissed the new video as a desperate tactic by a terror group that suffered a defeat in the global war of ideas when the United States elected a black president with a Muslin name,

“Al Qaeda’s way of dealing with the change that the election of black American president represented is to insist that nothing has changed,” said one counterterrorism official in Washington, speaking on condition of anonymity.

The video bears the logo of As-Sahab, Al Qaeda’s media arm, and American officials said they believed that the video was authentic.

Lawrence Wright, the author of a book on Al Qaeda, “The Looming Tower,” called the tape an attempt by Al Qaeda at “spin control” as it struggles to assimilate an election that challenges its worldview.

Mr. Wright said both radical and mainstream Muslim commentators had predicted that Senator John McCain would win the presidential election and that little would change.

“I’m sure Al Qaeda has been struggling over how to react to the Obama election, and this is the result,” he said.

Mr. Wright said that for more than a year, messages from Qaeda leaders have included positive messages about Malcolm X in what he described as “a desperate and ineffective strategy” to appeal to African-American Muslims.

Mr. Wright, who has long followed the career of Mr. Zawahri, an Egyptian, said that Qaeda leaders closely followed Western news and polling, and that he believed they might be reacting to a Pew Research Center poll last year showing that African-American Muslims are the subset of American Muslims least hostile to Al Qaeda. The poll showed that 63 percent of foreign-born Muslims in this country had a “very unfavorable” view of Al Qaeda, compared to 36 percent of African-American Muslims.

The high quality of the English subtitles and the references to Malcolm X in the tape may reflect the influence of Adam Gadahn, an American-born Qaeda spokesman who has appeared in past productions of As-Sahab under the name “Azzam the American.”

Ronald Walters, a political scientist at the University of Maryland, said he wondered whether Al Qaeda was responding to the aggressive tone of Mr. Obama’s campaign pledges to go after the terrorist network and kill Mr. bin Laden.

Dr. Walters said that if the tape was an attempt to reach black Americans or the Third World, it was “ham-handed” and futile.

“You’re talking about someone who looks like the rest of the world, and that’s got to be threatening to them,” he said. “On 9/11, Al Qaeda didn’t make any racial distinctions in who it killed, and people remember that.”

    Qaeda Deputy Notes Obama Victory, With Insult, NYT, 20.11.2008, http://www.nytimes.com/2008/11/20/world/middleeast/20qaeda.html

Secret Order Lets U.S. Raid Al Qaeda in Many Countries

November 10, 2008
The New York Times
By ERIC SCHMITT and MARK MAZZETTI

WASHINGTON — The United States military since 2004 has used broad, secret authority to carry out nearly a dozen previously undisclosed attacks against Al Qaeda and other militants in Syria, Pakistan and elsewhere, according to senior American officials.

These military raids, typically carried out by Special Operations forces, were authorized by a classified order that Defense Secretary Donald H. Rumsfeld signed in the spring of 2004 with the approval of President Bush, the officials said. The secret order gave the military new authority to attack the Qaeda terrorist network anywhere in the world, and a more sweeping mandate to conduct operations in countries not at war with the United States.

In 2006, for example, a Navy Seal team raided a suspected militants’ compound in the Bajaur region of Pakistan, according to a former top official of the Central Intelligence Agency. Officials watched the entire mission — captured by the video camera of a remotely piloted Predator aircraft — in real time in the C.I.A.’s Counterterrorist Center at the agency’s headquarters in Virginia 7,000 miles away.

Some of the military missions have been conducted in close coordination with the C.I.A., according to senior American officials, who said that in others, like the Special Operations raid in Syria on Oct. 26 of this year, the military commandos acted in support of C.I.A.-directed operations.

But as many as a dozen additional operations have been canceled in the past four years, often to the dismay of military commanders, senior military officials said. They said senior administration officials had decided in these cases that the missions were too risky, were too diplomatically explosive or relied on insufficient evidence.

More than a half-dozen officials, including current and former military and intelligence officials as well as senior Bush administration policy makers, described details of the 2004 military order on the condition of anonymity because of its politically delicate nature. Spokesmen for the White House, the Defense Department and the military declined to comment.

Apart from the 2006 raid into Pakistan, the American officials refused to describe in detail what they said had been nearly a dozen previously undisclosed attacks, except to say they had been carried out in Syria, Pakistan and other countries. They made clear that there had been no raids into Iran using that authority, but they suggested that American forces had carried out reconnaissance missions in Iran using other classified directives.

According to a senior administration official, the new authority was spelled out in a classified document called “Al Qaeda Network Exord,” or execute order, that streamlined the approval process for the military to act outside officially declared war zones. Where in the past the Pentagon needed to get approval for missions on a case-by-case basis, which could take days when there were only hours to act, the new order specified a way for Pentagon planners to get the green light for a mission far more quickly, the official said.

It also allowed senior officials to think through how the United States would respond if a mission went badly. “If that helicopter goes down in Syria en route to a target,” a former senior military official said, “the American response would not have to be worked out on the fly.”

The 2004 order was a step in the evolution of how the American government sought to kill or capture Qaeda terrorists around the world. It was issued after the Bush administration had already granted America’s intelligence agencies sweeping power to secretly detain and interrogate terrorism suspects in overseas prisons and to conduct warrantless eavesdropping on telephone and electronic communications.

Shortly after the Sept. 11 attacks, Mr. Bush issued a classified order authorizing the C.I.A. to kill or capture Qaeda militants around the globe. By 2003, American intelligence agencies and the military had developed a much deeper understanding of Al Qaeda’s extensive global network, and Mr. Rumsfeld pressed hard to unleash the military’s vast firepower against militants outside the combat zones of Iraq and Afghanistan.

The 2004 order identifies 15 to 20 countries, including Syria, Pakistan, Yemen, Saudi Arabia and several other Persian Gulf states, where Qaeda militants were believed to be operating or to have sought sanctuary, a senior administration official said.

Even with the order, each specific mission requires high-level government approval. Targets in Somalia, for instance, need at least the approval of the defense secretary, the administration official said, while targets in a handful of countries, including Pakistan and Syria, require presidential approval.

The Pentagon has exercised its authority frequently, dispatching commandos to countries including Pakistan and Somalia. Details of a few of these strikes have previously been reported.

For example, shortly after Ethiopian troops crossed into Somalia in late 2006 to dislodge an Islamist regime in Mogadishu, the Pentagon’s Joint Special Operations Command quietly sent operatives and AC-130 gunships to an airstrip near the Ethiopian town of Dire Dawa. From there, members of a classified unit called Task Force 88 crossed repeatedly into Somalia to hunt senior members of a Qaeda cell believed to be responsible for the 1998 American Embassy bombings in Kenya and Tanzania.

At the time, American officials said Special Operations troops were operating under a classified directive authorizing the military to kill or capture Qaeda operatives if failure to act quickly would mean the United States had lost a “fleeting opportunity” to neutralize the enemy.

Occasionally, the officials said, Special Operations troops would land in Somalia to assess the strikes’ results. On Jan. 7, 2007, an AC-130 struck an isolated fishing village near the Kenyan border, and within hours, American commandos and Ethiopian troops were examining the rubble to determine whether any Qaeda operatives had been killed.

But even with the new authority, proposed Pentagon missions were sometimes scrubbed because of bad intelligence or bureaucratic entanglements, senior administration officials said.

The details of one of those aborted operations, in early 2005, were reported by The New York Times last June. In that case, an operation to send a team of the Navy Seals and the Army Rangers into Pakistan to capture Ayman al-Zawahri, Osama bin Laden’s top deputy, was aborted at the last minute.

Mr. Zawahri was believed by intelligence officials to be attending a meeting in Bajaur, in Pakistan’s tribal areas, and the Pentagon’s Joint Special Operations Command hastily put together a plan to capture him. There were strong disagreements inside the Pentagon and the C.I.A. about the quality of the intelligence, however, and some in the military expressed concern that the mission was unnecessarily risky.

Porter J. Goss, the C.I.A. director at the time, urged the military to carry out the mission, and some in the C.I.A. even wanted to execute it without informing Ryan C. Crocker, then the American ambassador to Pakistan. Mr. Rumsfeld ultimately refused to authorize the mission.

Former military and intelligence officials said that Lt. Gen. Stanley A. McChrystal, who recently completed his tour as head of the Joint Special Operations Command, had pressed for years to win approval for commando missions into Pakistan. But the missions were frequently rejected because officials in Washington determined that the risks to American troops and the alliance with Pakistan were too great.

Capt. John Kirby, a spokesman for General McChrystal, who is now director of the military’s Joint Staff, declined to comment.

The recent raid into Syria was not the first time that Special Operations forces had operated in that country, according to a senior military official and an outside adviser to the Pentagon.

Since the Iraq war began, the official and the outside adviser said, Special Operations forces have several times made cross-border raids aimed at militants and infrastructure aiding the flow of foreign fighters into Iraq.

The raid in late October, however, was much more noticeable than the previous raids, military officials said, which helps explain why it drew a sharp protest from the Syrian government.

Negotiations to hammer out the 2004 order took place over nearly a year and involved wrangling between the Pentagon and the C.I.A. and the State Department about the military’s proper role around the world, several administration officials said.

American officials said there had been debate over whether to include Iran in the 2004 order, but ultimately Iran was set aside, possibly to be dealt with under a separate authorization.

Senior officials of the State Department and the C.I.A. voiced fears that military commandos would encroach on their turf, conducting operations that historically the C.I.A. had carried out, and running missions without an ambassador’s knowledge or approval.

Mr. Rumsfeld had pushed in the years after the Sept. 11 attacks to expand the mission of Special Operations troops to include intelligence gathering and counterterrorism operations in countries where American commandos had not operated before.

Bush administration officials have shown a determination to operate under an expansive definition of self-defense that provides a legal rationale for strikes on militant targets in sovereign nations without those countries’ consent.

Several officials said the negotiations over the 2004 order resulted in closer coordination among the Pentagon, the State Department and the C.I.A., and set a very high standard for the quality of intelligence necessary to gain approval for an attack.

The 2004 order also provided a foundation for the orders that Mr. Bush approved in July allowing the military to conduct raids into the Pakistani tribal areas, including the Sept. 3 operation by Special Operations forces that killed about 20 militants, American officials said.

Administration officials said that Mr. Bush’s approval had paved the way for Defense Secretary Robert M. Gates to sign an order — separate from the 2004 order — that specifically directed the military to plan a series of operations, in cooperation with the C.I.A., on the Qaeda network and other militant groups linked to it in Pakistan.

Unlike the 2004 order, in which Special Operations commanders nominated targets for approval by senior government officials, the order in July was more of a top-down approach, directing the military to work with the C.I.A. to find targets in the tribal areas, administration officials said. They said each target still needed to be approved by the group of Mr. Bush’s top national security and foreign policy advisers, called the Principals Committee.

    Secret Order Lets U.S. Raid Al Qaeda in Many Countries, NYT, 10.11.2008, http://www.nytimes.com/2008/11/10/washington/10military.html?hp

Letters

Guantánamo Bay, After Jan. 20, 2009

November 9, 2008
The New York Times

To the Editor:

Re “Next President Will Face Test on Detainees” (front page, Nov. 3):

While it is likely that the Guantánamo prison camp contains some very dangerous people, the American public and the rest of world may never know the real truth. After years of torture and abuse, the confessions of anyone still held at Guantánamo Bay are highly suspect, and the unconstitutional military commissions set up to try them make achieving justice impossible in any real sense of the word.

No responsible person who is calling for Guantánamo’s closure would argue that those suspected of terrorist activities should be automatically set free if Guantánamo is closed down.

What we’re demanding is that the Guantánamo prison camp be closed, the flawed military commissions be shut down and a real system of justice, based on the Constitution, be used to determine the guilt or innocence of those held there. Such a system will not rely on torture, secret evidence and hearsay.

Only by closing Guantánamo and trying detainees in civilian courts or in military courts, governed by the Uniform Code of Military Justice, will justice prevail. Guantánamo can be shut down with the stroke of a president’s pen through executive order on his first day in office.

Anthony D. Romero
Executive Director
American Civil Liberties Union
New York, Nov. 3, 2008

•

To the Editor:

Although the Bush administration has long misled the public about the dangerousness of many Guantánamo detainees, there is little doubt that some have committed serious crimes. The question is what to do with them.

Detaining them endlessly without trial has marred America’s reputation, providing a boon to terrorist recruiters and discouraging cooperation with international law-enforcement efforts, particularly by those most likely to learn of suspicious activity.

It has also allowed the detainees to glorify themselves as combatants rather than bear the opprobrium of being labeled convicted criminals.

The best solution is to close Guantánamo and provide suspects fair trials in regular federal courts, not the discredited military commissions that allow convictions based on coerced testimony.

Under the Classified Information Procedures Act, federal courts have long experience striking the proper balance between a suspect’s due process rights and the need to safeguard intelligence sources and methods.

Such criminal prosecutions are the best way to neutralize dangerous suspects while allowing America to regain the moral high ground so necessary for the long-term success of the fight against terrorism.

Kenneth Roth
Executive Director
Human Rights Watch
New York, Nov. 3, 2008

•

To the Editor:

I almost always agree with what Nicholas D. Kristof has to say, and that includes his contention that the prison at Guantánamo Bay, Cuba, should be closed (“Rejoin the World,” column, Nov. 2).

May I suggest, however, that rather than turning it into “an international center for research on tropical diseases that affect poor countries,” it would be more appropriate — and a clear repudiation of the policies of the Bush administration — to convert the base into an international center for human rights.

That kind of a Guantánamo would not only represent an affirmation by the United States against torture, it would also make Guantánamo a very different kind of thorn in the side of Cuba than it has been over most of the last 100 years, and might be what brings human rights to the Cuban people.

It could be a place for cultural exchange, academic study and conferences, and stand as a beacon for people all over the world who are or have been victims of torture and other violations of human rights. It would stand as a reminder to all governments that torture is a violation of international law and is not to be tolerated anywhere.

Bruce L. Wilder
Pittsburgh, Nov. 2, 2008

•

To the Editor:

I disagree with the first of Nicholas D. Kristof’s three ways for the United States to “rejoin the world.”

After the necessary closure of the Guantánamo prison, all of Guantánamo should be returned to Cuba as a gesture of friendship and reconciliation after more than 40 years of hostility. Our continued presence there is militarily unjustifiable and politically stupid.

If the place were to be turned into “an international center for research on tropical diseases,” the Cubans could do that themselves. Their expertise in tropical medicine is internationally respected, and the United States could learn much from them.

Robert Skloot
Madison, Wis., Nov. 3, 2008

    Guantánamo Bay, After Jan. 20, 2009, NYT, 9.11.2008, http://www.nytimes.com/2008/11/09/opinion/l09gitmo.html

Judge Opens First Habeas Corpus Hearing on Guantánamo Detainees

November 7, 2008
The New York Times
By WILLIAM GLABERSON

WASHINGTON — After years of legal clashes over whether detainees have the right to contest their detention in court, a federal judge on Thursday opened the first hearing into the government’s justification for holding suspects at the naval base at Guantánamo Bay, Cuba.

But after opening statements that did not detail the evidence, the judge, Richard J. Leon of Federal District Court here, closed the courtroom, saying the evidence was classified. The government says the six men whose cases are being heard were planning to go to Afghanistan to fight the United States and that one of them was a member of Al Qaeda.

“The discussion of these issues will have to take place in a closed courtroom outside the presence of the public and the detainees,” Judge Leon said. The hearing is expected to last a week.

If the men testify, that “will also have to be behind closed doors because of the sensitivity of whatever it is they might say,” he said.

In addition, the detainees’ lawyers have not been permitted to discuss the classified evidence with their clients, six Algerian former residents of Bosnia who have been held since 2002.

Their case was the first to reach a factual hearing since the Supreme Court ruled in June that detainees at Guantánamo are entitled to seek their freedom through federal habeas corpus cases. The justices’ ruling, which was named for one of the six Algerians, Lakhdar Boumediene, opened the door for more than 200 habeas corpus claims.

Judge Leon, who was appointed by President Bush, initially ruled in 2005 that the men had no habeas corpus rights.

The six detainees had been scheduled to listen to opening statements from Guantánamo by way of a telephone hookup, but a technical problem left them with a silent line, court officials said. If they testify, it is to be with a video feed from Guantánamo.

After they were detained in 2002, Mr. Bush said the six men had been planning a bomb attack on the United States Embassy in Sarajevo, Bosnia. But last month Department of Justice lawyers said they were no longer relying on those accusations to justify the men’s detention.

In an opening statement before the courtroom was closed, Nicholas A. Oldham, a Department of Justice lawyer, said “the United States has reliable information” about the dangers posed by the men. But Mr. Oldham said, “I cannot talk about the evidence here,” in the open courtroom.

Stephen H. Oleskey, one of the detainees’ lawyers, said the men were “victims of a terrible mistake that the government has refused even today to correct.”

Mr. Oleskey said the government’s accusations were based on what he described as ethnic profiling of Muslim men. He said the government could not prove that the men considered going to Afghanistan. But he added, “Even loose talk about plans to travel to Afghanistan would be just that: loose talk.”

Mr. Oleskey declined to discuss the plan to close the courtroom.

But Ramzi Kassem, a lawyer who represents other detainees and who teaches at Yale Law School, said the use of classified evidence was an effort to keep the public from being able to assess the evidence the government has used to imprison hundreds of men.

“I think what is happening here,” Mr. Kassem said, “is that the government lost its battle to avoid judicial scrutiny, so they have shifted strategy to avoid public scrutiny.”

A Justice Department spokesman said lawyers in the case had no role in classifying evidence, adding that it had been classified by intelligence agencies “for valid national security reasons — well before preparation for this case even began.”

Judge Leon, wearing a red and white bow tie set against a blue shirt that peeked through his robes, was the first federal judge to hold a full habeas corpus hearing on a Guantánamo case since the Supreme Court ruling in June.

Another federal judge, Ricardo M. Urbina, last month ordered 17 ethnic Uighur detainees released. But in that case, no hearing was needed to establish the reason for their detention because the government conceded that the men were not enemy combatants. A federal appeals court stayed Judge Urbina’s ruling pending an appeal.

In the case that began Thursday, government lawyers appear to be taking few chances that the men will be freed.

They have filed a sealed envelope of evidence with Judge Leon, which the detainees’ lawyers have not been permitted to see. In court filings the government lawyers said that if the evidence in the closed hearings was not enough to justify the detention, then the judge should open the envelope.

Judge Leon, the filing said, “may very well ultimately face the circumstance where the information justifying detention is too sensitive” to share not only with the detainees but also with their lawyers.

    Judge Opens First Habeas Corpus Hearing on Guantánamo Detainees, NYT, 7.11.2008, http://www.nytimes.com/2008/11/07/washington/07gitmo.html

Jury Convicts Yemeni in 2nd Guantánamo Trial

November 3, 2008
Filed at 10:09 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

GUANTANAMO BAY NAVAL BASE, Cuba (AP) -- A jury of U.S. military officers announced Monday it has convicted an alleged aide to Osama bin Laden of terrorism-related charges, and he faced a possible sentence of life in prison following the second Guantanamo war crimes trial.

The voted to convict Ali Hamza al-Bahlul of Yemen of multiple counts of conspiracy, solicitation to commit murder and providing material support to terrorism following a lopsided weeklong trial in which the prisoner did not mount a defense.

Al-Bahlul, 39, showed no emotion, sitting calmly at the defense table as the verdict was read at the isolated U.S. military base in eastern Cuba.

Al-Bahlul was convicted of 17 counts of conspiracy, eight counts of solicitation to commit murder and 10 counts of providing material support for terrorism. Each count could bring life in prison.

The jury dismissed one count of conspiracy and one count of providing material support for terrorism.

Sentencing was to follow a post-trial hearing that included testimony from the father of a sailor killed in the 2000 attack on the USS Cole -- which was featured in a video that the military says al-Bahlul produced to train and inspire al-Qaida terrorists in Afghanistan.

Al-Bahlul, who was brought to Guantanamo in 2002, is the second prisoner to go through a war crimes trial under the special military commissions system. The first, former bin Laden driver Salim Hamdan, was convicted in August and sentenced to 5 1/2 years in prison.

Prosecutors say al-Bahlul acknowledged to interrogators that he was al-Qaida's media chief and made propaganda videos for bin Laden. Al-Bahlul doesn't consider his actions criminal.

In a pretrial hearing, al-Bahlul called the military tribunal a ''legal farce'' and refused to mount a defense. His Pentagon-appointed lawyer stayed silent during the trial, refusing to even answer questions from the judge.

    Jury Convicts Yemeni in 2nd Guantánamo Trial, NYT, 3.11.2008, http://www.nytimes.com/aponline/world/AP-CB-Guantanamo-Military-Trial.html

Next President Will Face Test on Detainees

November 3, 2008
The New York Times
By WILLIAM GLABERSON and MARGOT WILLIAMS

They were called the Dirty 30 — bodyguards for Osama bin Laden captured early in the Afghanistan war — and many of them are still being held at Guantánamo Bay, Cuba. Others still at the much-criticized detention camp there include prisoners who the government says were trained in assassination and the use of poisons and disguises.

One detainee is said to have been schooled in making detonators out of Sega game cartridges. A Yemeni who has received little public attention was originally selected by Mr. bin Laden as a potential Sept. 11 hijacker, intelligence officials say.

As the Bush administration enters its final months with no apparent plan to close the Guantánamo Bay camp, an extensive review of the government’s military tribunal files suggests that dozens of the roughly 255 prisoners remaining in detention are said by military and intelligence agencies to have been captured with important terrorism suspects, to have connections to top leaders of Al Qaeda or to have other serious terrorism credentials.

Senators John McCain and Barack Obama have said they would close the detention camp, but the review of the government’s public files underscores the challenges of fulfilling that promise. The next president will have to contend with sobering intelligence claims against many of the remaining detainees.

“It would be very difficult for a new president to come in and say, ‘I don’t believe what the C.I.A. is saying about these guys,’ ” said Daniel Marcus, a Democrat who was general counsel of the 9/11 Commission and held senior positions in the Carter and Clinton administrations.

The strength of the evidence is difficult to assess, because the government has kept much of it secret and because of questions about whether some was gathered through torture.

When the administration has had to defend its accusations in court, government lawyers in several cases have retreated from the most serious claims. As a result, critics have raised doubts about the danger of Guantánamo’s prisoners beyond a handful of the camp’s most notorious ones.

But as a new administration begins to sort through the government’s dossiers on the men, the analysis shows, officials are likely to face tough choices in deciding how many of Guantánamo’s hard cases should be sent home, how many should be charged and what to do with the rest.

The Pentagon has declined to provide a list of the detainees now being held or even to specify how many there are beyond offering a figure of “about 255.” But by reviewing thousands of pages of government documents released in recent years, as well as court records and news reports from around the world, The New York Times was able to compile its own list and construct a picture of the population still held at Guantánamo Bay.

Much of the analysis is based on records of Guantánamo hearings for individual detainees, which have been made public since 2006 as a result of a lawsuit by The Associated Press. The Times has posted those documents on its Web site arranged by detainee name.

The analysis shows that about 34 of the remaining detainees were seized in raids in Pakistan that netted three men the government calls major Qaeda operatives: Abu Zubaydah, Ramzi bin al-Shibh and Al Hajj Abdu Ali Sharqawi. Sixteen detainees are accused of some of the most significant terrorist attacks in the last decade, including the 1998 bombings at American Embassies in Kenya and Tanzania, the 2000 attack on the destroyer Cole in Yemen, and the Sept. 11 attacks. Twenty others were called Mr. bin Laden’s bodyguards.

The analysis also shows that 13 of the original 23 detainees who arrived at Guantánamo on Jan. 11, 2002, remain there nearly seven years later. Of the roughly 255 men now being held, more than 60 have been cleared for release or transfer, according to the Pentagon, but remain at Guantánamo because of difficulties negotiating transfer agreements between the United States and other countries.

Two of those still held, government documents show, were seen by Mr. bin Laden as potential Sept. 11 hijackers. The case of Mohammed al-Qahtani, whom the government has labeled a potential “20th hijacker,” has drawn wide notice because he was subjected to interrogation tactics that included sleep deprivation, isolation and being put on a leash and forced to perform dog tricks.

The other detainee deemed a potential hijacker, whose presence at Guantánamo has gone virtually unmentioned in public reports, is a Yemeni called Abu Bara. The 9/11 Commission said he studied flights and airport security and participated in an important planning meeting for the 2001 attack in Malaysia in January 2000.

The Guantánamo list also includes two Saudi brothers, Hassan and Walid bin Attash. The government describes them as something like Qaeda royalty. Military officials said during Guantánamo hearings that their father, imprisoned in Saudi Arabia, was a “close contact of Osama bin Laden” and that his sons were committed jihadists.

Walid bin Attash is facing a possible death sentence as a coordinator of the Sept. 11 attacks. Hassan bin Attash was accused of having been involved in planning attacks on American oil tankers and Navy ships.

Hassan bin Attash’s lawyer, David H. Remes, said the government’s claims about the detainees were not credible. He and other detainees’ lawyers say that the government’s accusations have been ever-changing and that much of the evidence was obtained using techniques he and others have described as torture.

“You look at all of this stuff, and it looks terribly scary,” Mr. Remes said. “But how do we know any of it is true?”

The extensive use of secret evidence and information derived from aggressive interrogations has led critics around the world to conclude that many detainees were wrongly held. Nearly seven years after Guantánamo opened its metal gates, only 18 of the current detainees are facing war crimes charges.

While both presidential candidates have said they would close the detention center, they have not said in detail how they would handle the remaining detainees.

Mr. McCain has said he would move the Guantánamo detainees to the United States but has indicated that he would try them in the Pentagon’s commission system established after 9/11. After the conviction at Guantánamo last summer of a former driver for Mr. bin Laden, Mr. McCain said the verdict “demonstrated that military commissions can effectively bring very dangerous terrorists to justice.”

Mr. Obama has said that the Bush administration’s system of trying detainees “has been an enormous failure” and that the existing American legal system was strong enough to handle the trials of terrorism suspects.

But in a speech on the Senate floor in 2006, Mr. Obama suggested that the charges against many of the detainees needed to be taken seriously. “Now the majority of the folks in Guantánamo, I suspect, are there for a reason,” he said. “There are a lot of dangerous people.”

Some of the remaining prisoners have appeared determined to show how dangerous they are. “I admit to you it is my honor to be an enemy of the United States,” said a Yemeni detainee, Abdul Rahman Ahmed, a hearing record shows. Officials said Mr. Ahmed had been trained at a terrorist camp “how to dress and act at an airport” and to resist interrogation.

A Saudi detainee, Muhammed Murdi Issa al Zahrani, was described by Pentagon officials as a trained assassin who helped plan the suicide-bomb killing of Ahmed Shah Massoud, the Afghan rebel leader, on Sept. 9, 2001.

“The detainee said America is ruled by the Jews,” an officer said at a hearing after interviewing him, “therefore America and Israel are his enemies.”

One man caught with Abu Zubaydah insisted on his innocence but described a training camp outside Kabul, Afghanistan, where, according to information he gave to interrogators, men were given “lessons on how to make poisons that could be inhaled, swallowed or absorbed through the skin.”

Mr. bin al Shibh was caught with a group of six Yemenis, all of whom are still held, after a two-and-a-half-hour gun battle. The records of those detainees include allegations that some were “a special terrorist team deployed to attack targets in Karachi.” One of the men, Hail Aziz Ahmad al Maythal, was trained in the use of rocket-propelled grenade launchers, machine guns and “trench digging, disguise techniques, escape methods, evasion and map reading,” according to the military’s accusations.

The records include many of the murky cases that typify the image of Guantánamo, where detainees take issue with their own supposed confessions and, sometimes, their identities. And those doubts too are to be part of a new administration’s inheritance.

“I was forced to say all these things,” an Algerian detainee, Adil Hadi al Jazairi bin Hamlili, said at his hearing when confronted with his confession to murder and knowledge of a plot to sell uranium to Al Qaeda. “I was abused mentally and psychologically, by threatening to be raped,” he said, adding, “You would say anything.”

Abdul Hafiz, an Afghan accused of killing a Red Cross worker at a Taliban roadblock in 2003, told a military officer that he had the perfect alibi. “The detainee states again that he is not Abdul Hafiz,” the officer reported to a military tribunal.
 

Andrei Scheinkman contributed research.

    Next President Will Face Test on Detainees, NYT, 3.11.2008, http://www.nytimes.com/2008/11/03/us/03gitmo.html?hp

Inquiry Targeted 2,000 Foreign Muslims in 2004

October 31, 2008
The New York Times
By ERIC LICHTBLAU

WASHINGTON — An operation in 2004 meant to disrupt potential terrorist plots before and after that year’s presidential election focused on more than 2,000 immigrants from predominantly Muslim countries, but most were found to have done nothing wrong, according to newly disclosed government data.

The program, conducted by the Department of Homeland Security, received little public attention at the time. But details about the targets of the investigation have emerged from more than 10,000 pages of internal records obtained through a lawsuit by civil rights advocates. Parts of the documents were provided to The New York Times.

The documents show that more than 2,500 foreigners in the United States were sought as “priority leads” in the fall of 2004 because of suspicions that they could present threats to national security in the months before the presidential election and the inauguration. Some of those foreigners were detained and ultimately deported because they had overstayed their visas, but many were in this country legally, and the vast majority were not charged.

The internal reports show that immigration agents questioned the foreigners about what they thought of America, whether violence was preached at their mosques, and whether they had access to biological or chemical weapons. A sampling of 300 cases turned over by federal officials showed that none of those interrogated were charged with national security offenses. Fewer than one in five were charged, most of them with immigration violations.

A spokesman for Immigration and Customs Enforcement, Richard Rocha, would say only, “Due to ongoing litigation, ICE is not at liberty to provide any comment.”

Officials said they were not aware of any similar programs now under way.

At the time of the 2004 operation, the immigration agency said publicly that it was tracking leads in an effort to disrupt potential terrorism plots, but emphasized that its investigations were being conducted “without regard to race, ethnicity or religion.”

But the records showed that 79 percent of the suspects were from Muslim-majority countries, according to an analysis by students at the National Litigation Project at Yale Law School, who obtained the records, as did the American-Arab Anti-Discrimination Committee. Each group sued for the records under the Freedom of Information Act, and both say the operation showed that the government was using ethnic profiling to identify terrorism suspects.

“This was profiling,” said Michael Wishnie, a professor at Yale Law School who helped lead the research effort. He added that the findings raised questions about both the effectiveness and the propriety of the program.

“The resources devoted to this were enormous,” he said, “but the results clearly were not.”

The issue of ethnic profiling in counterterrorism programs has taken on added significance because of new Justice Department guidelines that go into effect Dec. 1 and give investigators even broader authority to open terrorism investigations without evidence of wrongdoing. The American Civil Liberties Union and other rights groups argue that the new guidelines will allow federal investigators to make targets of Muslims, Middle Easterners and others without evidence of links to terrorist groups.

After the attacks of Sept. 11, 2001, the administration began a series of efforts that strained relations with Muslims and Arab-Americans in particular. The detention of more than 700 illegal immigrants as terrorism suspects — often for months at a time without lawyers — generated a blistering report from the Justice Department on the “unduly harsh” treatment of the prisoners. Follow-up efforts in 2002 and 2003 led to the questioning of thousands of Muslims and Middle Easterners as well as measures requiring that immigrants from some countries register their presence with federal authorities.

The investigations conducted in the fall of 2004 were part of what federal authorities called Operation Front Line. It was unusual in that it relied on intelligence data from across the government to identify “priority leads” and then conduct interrogations in October 2004, just before Election Day.

One foreigner, in the country on a student visa, was asked his “opinion of America,” according to internal investigative reports. He responded that he was “living the American dream and cared greatly for the equal opportunities, rights and values that are afforded in America.” Another person, from South Asia, was asked about a mosque he attended and told an agent that “the mosque did not espouse any radical or fundamental form of Islam or denounce the United States in any way.” A third visa holder was asked if he owned any chemical or biological explosives. He said he did not.

The Homeland Security Department announced several hundred arrests at the time, mostly of visitors whose visas had expired, but the records obtained in the lawsuit show that the scope of the operation reached much further. More than 2,500 people were interrogated, with more than 500 arrests for immigration violations like overstaying visas.

A former immigration official, who spoke on the condition of anonymity because aspects of the program remain classified, said the operation analyzed data, gathered by the Central Intelligence Agency and other agencies, to identify people who might pose particular threats to national security. “I think the intelligence we were getting was bona fide and mineable, and we were doing the best we could to follow it up,” the former official said.

Kareem Shora, national executive director of the American-Arab Anti-Discrimination Committee, said he considered the findings a “slap in the face” because they contradicted the claims of American officials.

“It is very disappointing to see that despite all the reassurances that they were not profiling people, this comes out,” Mr. Shora said. With nearly 80 percent of the targets in the 2004 operation coming from Muslim nations, he asked, “how can you tell us you’re not focusing on people from these countries?”


Julia Preston contributed reporting from New York.

    Inquiry Targeted 2,000 Foreign Muslims in 2004, NYT, 31.10.2008, http://www.nytimes.com/2008/10/31/us/31inquire.html?hp

Bush Decides to Keep Guantánamo Open

October 21, 2008
The New York Times
By STEVEN LEE MYERS

WASHINGTON — Despite his stated desire to close the American prison at Guantánamo Bay, Cuba, President Bush has decided not to do so, and never considered proposals drafted in the State Department and the Pentagon that outlined options for transferring the detainees elsewhere, according to senior administration officials.

Mr. Bush’s top advisers held a series of meetings at the White House this summer after a Supreme Court ruling in June cast doubt on the future of the American detention center. But Mr. Bush adopted the view of his most hawkish advisers that closing Guantánamo would involve too many legal and political risks to be acceptable, now or any time soon, the officials said.

The administration is proceeding on the assumption that Guantánamo will remain open not only for the rest of Mr. Bush’s presidency but also well beyond, the officials said, as the site for military tribunals of those facing terrorism-related charges and for the long prison sentences that could follow convictions.

The effect of Mr. Bush’s stance is to leave in place a prison that has become a reviled symbol of the administration’s fight against terrorism, and to leave another contentious foreign policy decision for the next president.

Both presidential candidates, Senators John McCain and Barack Obama, have called for closing Guantánamo and could reverse Mr. Bush’s policy, though probably not quickly since neither has spelled out precisely how to deal with some of the thorniest legal consequences of shutting the prison.

Mr. Bush’s aides insist that the president’s desire is still to close Guantánamo when conditions permit, and the White House has not announced any decision. But administration officials say that even Secretary of Defense Robert M. Gates and Secretary of State Condoleezza Rice, the most powerful advocates for closing the prison, have quietly acquiesced to the arguments of more hawkish advisers, including Vice President Dick Cheney.

A senior administration official who spoke on condition of anonymity to discuss the administration’s internal deliberations said it would be much harder to fulfill a campaign promise to close the prison than either candidate has stated. “This may not be the ideal answer, but what we are trying to do is work with the system we’ve got,” the official said.

Mr. Bush’s decision followed a review of the implications of the Supreme Court’s ruling in June that the 250 detainees at Guantánamo have the right to make habeas corpus appeals.

The ruling, Boumediene v. Bush, undercut a core rationale for keeping the prison off American soil, raising expectations that Mr. Bush might at last move to close it, a prospect he first raised in June 2006, when he said, “I’d like to close Guantánamo, but I also recognize that we’re holding some people that are darn dangerous, and that we better have a plan to deal with them in our courts.”

In August 2007, Mr. Bush said “it should be a goal of the nation to shut down Guantánamo,” adding, “But it is not as easy a subject as some may think on the surface.”

Mr. Bush has harshly criticized the ruling, including at least twice in fund-raising speeches for Republicans. When he met with his senior security advisers, no options for closing the prison were on the agenda, the administration officials said.

“This is an administration that believes very, very strongly in certain things it has done,” said Matthew Waxman, a professor at Columbia Law School who served in the Department of Defense overseeing detainee polices, “and Guantánamo is one that some administration officials at high levels believe was right all along.”

Mr. Cheney and his chief of staff, David S. Addington, have made it clear in the internal discussions this year that keeping Guantánamo open under a new president would validate the administration’s decisions dealing with terrorists, the officials said.

Closing Guantánamo would most likely mean abandoning prosecutions against some detainees and risking the release of others who still pose a threat to the United States and its allies.

An administration official who favors closing the prison suggested that the next president might reconsider after having access to the classified evidence that the Bush administration believes justifies the indefinite detention of dozens of detainees.

“The new president will gnash his teeth and beat his head against the wall when he realizes how complicated it is to close Guantánamo,” the official said.

Mr. McCain has suggested moving the detainees to Fort Leavenworth, Kan., home of the Army’s prison. His remarks prompted a letter in June from the two Republican senators from Kansas, Sam Brownback and Pat Roberts, objecting to the idea on a variety of grounds.

Mr. McCain’s campaign did not respond to requests for comments about Guantánamo. The Obama campaign declined to comment specifically, but in his platform, Mr. Obama promises to abolish military tribunals and conduct a review to determine which prisoners to prosecute, which to hold under the laws of war and which to release. His proposal does not specify where detainees would be held.

Other sites that have been mentioned include the United States Naval Consolidated Brig in Charleston, S.C., and the United States Penitentiary Administrative Maximum Facility, known as supermax, in Florence, Colo.

Beyond political opposition in those regions, the officials involved in the administration’s discussions said that bringing the detainees to American soil would allow additional legal challenges beyond habeas corpus and raise the prospect that judges could free them in the United States.

The prospect of that became more acute on Oct. 7, when a federal judge ordered the release of 17 Uighurs from China who were swept up in 2002 and held in Guantánamo. The administration had already dropped efforts to declare the men as enemy combatants, but refused to return them to China because of concerns about the treatment they would receive there, trying unsuccessfully to find a third country to accept them.

The judge, Ricardo M. Urbina of Federal District Court, ordered the detainees brought to his court in Washington to free them, but the Justice Department appealed and won a stay.

One official said that the Justice Department’s arguments — that the 17 men remained dangerous — complicated diplomatic efforts to find a country other than China willing to accept them.

The government’s lawyers filed the arguments for a continued stay on Thursday, and on Monday a federal appeals court refused to allow the Uighurs’ immediate release into the United States to give it time to hear the government’s full appeal.

Since the Supreme Court decision in June, Mr. Bush and his aides have remained focused on legal strategies for coping with the wave of habeas corpus appeals now flooding the federal court system and seeking new legislation that would allow the government to continue to hold foreign terrorists without charge.

A version of that legislation was introduced by Senators Lindsay Graham, Republican of South Carolina, and Joseph I. Lieberman, independent of Connecticut, two of Mr. McCain’s closest friends and advisers. But the legislation stalled and appears unlikely to be adopted during the current session of Congress.

The senior administration official involved in the deliberations said that the Supreme Court’s ruling did not grant judges the authority to release detainees in the United States, comparing it to allowing an illegal immigrant to live in the country legally without legal standing.

That official and others said that officials from the Department of Homeland Security, along with the Justice Department, have argued most vigorously for keeping Guantánamo open, largely because a ruling like the Uighur case could result in foreign fighters being freed into American communities.

“The federal courts have an absolute right to release these people, but the court didn’t say where, and what does that mean, to release them,” the senior official said.

“And in our view, the Supreme Court didn’t say, and the district courts don’t have the power, to order the United States to bring somebody from a foreign country — a foreigner — into the United States in complete disregard for our immigration law.”

Advocates for closing Guantánamo argued that Mr. Bush is still following the same flawed logic that has made it a reviled symbol, especially abroad.

Mr. Waxman, the former defense official, acknowledged the difficulties of closing the prison and the risks involved, but he argued that after seven years, a radical change was required.

“Whatever consequence they’re worried about,” he said of the administration’s concerns, “has to be weighed against the damage we continue to incur by keeping the status quo.”

    Bush Decides to Keep Guantánamo Open, NYT, 21.10.2008, http://www.nytimes.com/2008/10/21/washington/21gitmo.html?hp

Judge Orders 17 Detainees at Guantánamo Freed

October 8, 2008
The New York Times
By WILLIAM GLABERSON

WASHINGTON — A federal judge on Tuesday ordered the Bush administration to release 17 detainees at Guantánamo Bay by the end of the week, the first such ruling in nearly seven years of legal disputes over the administration’s detention policies.

The judge, Ricardo M. Urbina of Federal District Court, ordered that the 17 men be brought to his courtroom on Friday from the prison at Guantánamo Bay, Cuba, where they have been held since 2002. He indicated that he would release the men, members of the restive Uighur Muslim minority in western China, into the care of supporters in the United States, initially in the Washington area.

“I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention,” Judge Urbina said.

Saying the men had never fought the United States and were not a security threat, he tersely rejected Bush administration claims that he lacked the power to order the men set free in the United States and government requests that he stay his order to permit an immediate appeal.

The ruling was a sharp setback for the administration, which has waged a long legal battle to defend its policies of detention at the naval base at Guantánamo Bay, arguing a broad executive power in waging war. Federal courts up to the Supreme Court have waded through detention questions and in several major cases the courts have rejected administration contentions.

The government recently conceded that it would no longer try to prove that the Uighurs were enemy combatants, the classification it uses to detain people at Guantánamo, where 255 men are now held. But it has fought efforts by lawyers for the men to have them released into the United States, saying the Uighurs admitted to receiving weapons training in Taliban-controlled Afghanistan at the time of the Sept. 11, 2001, attacks.

The White House press secretary, Dana Perino, said the administration was “deeply concerned by, and strongly disagrees with” the decision. She added that the ruling, “if allowed to stand, could be used as precedent for other detainees held at Guantánamo Bay, including sworn enemies of the United States suspected of planning the attacks of 9/11, who may also seek release into our country.”

Justice Department lawyers said they were filing an emergency application on Tuesday night for a stay from the federal appeals court in Washington.

Judge Urbina’s decision came in a habeas corpus lawsuit authorized by a landmark Supreme Court ruling in June that gave detainees the right to have federal judges review the reason for their detention. Speaking from the bench in a courtroom crowded with Uighur supporters of the detainees, Judge Urbina suggested that the government was seeking a stay as a tactic to keep the men imprisoned.

“All of this means more delay,” he said with evident impatience, “and delay is the name of the game up until this point.” The centuries-old doctrine of habeas corpus permits a judge to demand production of a prisoner, a power Judge Urbina sought to exercise with his order that the men be brought to him.

“I want to see the individuals,” he said.

The Uighurs have long been at the center of contentious legal cases because they said they were swept into detention in Afghanistan in 2001 by mistake. They said they were in Afghanistan to seek refuge from China, where the Uighurs, Turkic Muslims, often bridle at Han Chinese rule.

The Bush administration has fought the Uighurs in court for years, contending that their encampment in Afghanistan had ties to a Uighur terror group. Last summer, a federal appeals court ridiculed as inadequate the government’s secret evidence for holding one of the men. In the months since, the government has said that it would “serve no useful purpose” to continue to try to prove that any of these 17 men were enemy combatants.

Lawyers for the Uighurs said the men would be persecuted or killed if they were returned to China. The administration said that since transferring five Uighur detainees to Albania in 2006, it had been unable to persuade governments to accept the other 17. Diplomats say many governments fear reprisal by China, which considers Uighur separatist groups terrorists.

The administration insisted during arguments on Tuesday that the courts did not have the power to release the men into the United States.

Judge Urbina, an appointee of President Bill Clinton, underscored the significance of his ruling with repeated references to the constitutional separation of powers and the judiciary’s role.

He rejected Justice Department arguments as assertions of executive power to detain people indefinitely without court review. He said that “is not in keeping with our system of government.”

More than 40 Uighurs, a few in native dress that included sequined velvet caps, watched in anxious silence. Only when the judge rose to leave the bench did they break into applause.

“Truth will win at the end,” said Elfidar Iltebir, one of the Uighurs, who is a computer systems manager in Virginia. Some of the men and women had come to court to describe the rooms, in the Washington suburbs, that they would offer the 17 men.

The ruling set the stage for a confrontation between the courts and the administration. John C. O’Quinn, a deputy assistant attorney general, suggested that immigration or Department of Homeland Security officials might detain the men when they were taken to the Washington area. Mr. O’Quinn argued that only the executive branch of the government, not the courts, could decide about immigration.

Mr. O’Quinn said such detainees would have no legal status in the United States. “Normally,” he added, “the law would potentially require them to be taken into some sort of protective custody.”

Judge Urbina said such arrests would not be appropriate. But he did not specify what he might do if the men were seized after being released by the Pentagon.

“I do not expect these Uighurs will be molested by any member of the United States government,” Judge Urbina said sharply. “I’m a federal judge, and I’ve issued an order.”

The Uighurs’ lawyers, Americans who have worked on the cases for years, had come to court prepared to outline a complex plan for support from community and church groups in the Washington area and in Tallahassee, Fla., where some of the men might eventually be resettled.

But Judge Urbina did not call for the testimony, saying he would hold a hearing on that matter on Oct. 16, after the men would already be free. He said he would impose conditions on their release, including appearances before him every six months. Lawyers for the Uighurs were pleased with the ruling.

P. Sabin Willett argued the case on Tuesday. In a crowd in the well of the courtroom after the judge had left the bench, Mr. Willett said there had been so many defeats over the years that he was not sure what to say at the prospect of the first federal case that might bring freedom to men in Guantánamo.

“We’ve had so many hearings where we didn’t even get half a loaf, we got a little crumb,” he said. “I’m emotionally unprepared for this.”

Judge Orders 17 Detainees at Guantánamo Freed, NYT, 8.10.2008, http://www.nytimes.com/2008/10/08/washington/08detain.html?hp