Random stuff

My stand

I will try to present my argument in more detail and I will also try to explain my argument with backup (53 pages will hopefully be enough to please even the most conservative soul, eh?), and I will not exaggerate it in favor of liberals, conservatives, radicals, activists, or other groups.

Well then, let’s start with the headlines. Some articles are shortened, abstract versions since they are Time Select which means that I would have to pay for the full version. Hopefully even these abstract versions will be enough to get the point across. These articles are either from the New York Times, or the Washington Post which are the most credible sources of news that I can find (if you can find something better, by all means do tell me).



September 22, 2003, Monday
(NYT); Editorial Desk
Late Edition - Final, Section A, Page 16, Column 1, 527 words
DISPLAYING ABSTRACT - Editorial says Bush administration's public-relations offensive to promote expanded version of Patriot Act comes at time when growing number of Americans say original act already gives government too much power; says administration is acting as if it does not have legal powers it needs to fight terrorism, when it does(FISA); says drive to roll back civil liberties is threat to freedom; calls on administration to use its energy on more effective law enforcement strategies to keep Americans safe
September 11, 2003, Thursday
By ERIC LICHTBLAU (NYT); National Desk
Late Edition - Final, Section A, Page 19, Column 1, 766 words
DISPLAYING ABSTRACT - Analysis: Pres Bush, seeking greater powers to fight terrorism, appears to believe that renewed memories of Sept 11 attacks on their second anniversary will be enough to outweigh rising concerns over civil liberties; his proposal for stronger counterterrorism laws faces hard sell in Congress; political climate has changed markedly since original Patriot Act was passed overwhelmingly soon after 9/11





August 19, 2003, Tuesday
By ERIC LICHTBLAU (NYT); National Desk
Late Edition - Final, Section A, Page 1, Column 2, 1168 words
DISPLAYING ABSTRACT - Bush administration to begin campaign to defend USA Patriot Act, as criticism grows over its terrorism policies; Atty Gen John Ashcroft will deliver more than dozen speeches around country to shore up support for prized legislation that grew out of attacks on Sept 11; campaign will take him to states that are considered central to Pres Bush's re-election effort and where administration's tough antiterrorism tactics are thought to play well; USA Patriot Act gives law enforcement agents expanded powers to identify, track and apprehend suspects; civil liberties groups are suing to have parts of law struck down as unconstitutional, and Republican-led House has voted overwhelmingly to repeal key provision on use of surveillance; 152 communities around nation have passed resolutions objecting to legislation
Finding a Place for 9/11 in American History By JOSEPH J. ELLISIN recent weeks, President Bush and his administration have mounted a spirited defense of his Iraq policy, the Patriot Act and, especially, a program to wiretap civilians, often reaching back into American history for precedents to justify these actions. It is clear that the president believes that he is acting to protect the security of the American people. It is equally clear that both his belief and the executive authority he claims to justify its use derive from the terrorist attacks of Sept. 11, 2001.
A myriad of contested questions are obviously at issue here -- foreign policy questions about the danger posed by Iraq, constitutional questions about the proper limits on executive authority, even political questions about the president's motives in attacking Iraq. But all of those debates are playing out under the shadow of Sept. 11 and the tremendous changes that it prompted in both foreign and domestic policy.

CIVIL LIBERTIES; Reading Lists That Are as Vague as Possible By JEFF GROSSMANAT the Village Bookstore in Pleasantville, the owner, Roy Solomon, has decided to keep track of the store's frequent-buyer program by stamping cards he gives out, rather than by using a computer database. That is because all the software packages he looked at would also automatically keep track of his customers' purchase histories.
''I don't want to use it, because it will give me a record of every single thing that everybody bought,'' he said. ''I don't want to have the records.''



In Case About Google's Secrets, Yours Are Safe By ADAM LIPTAKThe Justice Department went to court last week to try to force Google, by far the world's largest Internet search engine, to turn over an entire week's worth of searches. The move, which Google is fighting, has alarmed its users, enraged privacy advocates, changed some people's Internet search habits and set off a debate about how much privacy one can expect on the Web.
But the case itself, according to people involved in it and scholars who are following it, has almost nothing to do with privacy. It will turn, instead, on serious but relatively routine questions about trade secrets and civil procedure.

... as the USA Patriot Act, for example, ... Child Online Protection Act, a 1998 law that ... you're not with us you're against us,' ...
Google Resists U.S. Subpoena Of Search Data By KATIE HAFNER AND MATT RICHTELThe Justice Department has asked a federal judge to compel Google, the Internet search giant, to turn over records on millions of its users' search queries as part of the government's effort to uphold an online pornography law.
Google has been refusing the request since a subpoena was first issued last August, even as three of its competitors agreed to provide information, according to court documents made public this week. Google asserts that the request is unnecessary, overly broad, would be onerous to comply with, would jeopardize its trade secrets and could expose identifying information about its users.
Who can check the President? By NOAH FELDMANI. OUR PRESIDENTIAL ERA
Not since Watergate has the question of presidential power been as salient as it is today. The recent revelation that President George W. Bush ordered secret wiretaps in the United States without judicial approval has set off the latest round of arguments over what the president can and cannot do in the name of his office. Over the past few years, the war on terror has led to the use of executive orders to authorize renditions and the detention of enemy combatants without trial -- for which the Bush administration has been called to account by our European allies. The treatment of detainees has also given rise to concerns in Congress about the prerogatives of the chief executive: both houses recently voted to limit the president's authority to employ C.I.A. or other executive agents to engage in cruel and inhumane interrogations. The limits of presidential power will almost surely be a major topic of discussion during Samuel A. Alito Jr.'s Supreme Court confirmation hearings, which are scheduled to begin this week.
Files Say Agency Initiated Growth Of Spying Effort By ERIC LICHTBLAU AND SCOTT SHANEThe National Security Agency acted on its own authority, without a formal directive from President Bush, to expand its domestic surveillance operations in the weeks after the Sept. 11 attacks, according to declassified documents released Tuesday.
The N.S.A. operation prompted questions from a leading Democrat, Representative Nancy Pelosi of California, who said in an Oct. 11, 2001, letter to a top intelligence official that she was concerned about the agency's legal authority to expand its domestic operations, the documents showed.
Bush Renews Patriot Act Campaign By ELISABETH BUMILLERPresident Bush assembled a phalanx of United States attorneys at the White House on Tuesday to bolster his call for Congress to renew the antiterrorism law known as the USA Patriot Act, intensifying a coming clash with Capitol Hill over civil liberties and national security.
Surrounded in the Roosevelt Room by 19 federal prosecutors, Mr. Bush said Congress was holding up renewal of the law because of politics.
Bush Defends Spy Program and Denies Misleading Public By ERIC LICHTBLAUPresident Bush continued on Sunday to defend both the legality and the necessity of the National Security Agency's domestic eavesdropping program, and he denied that he misled the public last year when he insisted that any government wiretap required a court order.
''I think most Americans understand the need to find out what the enemy's (who is the enemy?) thinking, and that's what we're doing,'' Mr. Bush told reporters in San Antonio as he visited wounded soldiers at the Brooke Army Medical Center.
ACTION IN CONGRESS: THE ANTITERROR BILL; Senate Agrees to a Six-Month Extension of the Patriot Act By SHERYL GAY STOLBERGWith time running short on Capitol Hill, the Senate breathed new life late Wednesday night into the moribund USA Patriot Act, agreeing to extend it by six months. President Bush said he appreciated the move, but it was unclear if the House would approve it.
''No one should be allowed to block the Patriot Act,'' Mr. Bush said in a statement, referring to a bipartisan coalition of senators who last week derailed a measure to update the act, the nation's main antiterrorism law.


ACTION IN CONGRESS: THE OVERVIEW; Senate Rejects Bid for Drilling In Arctic Area By CARL HULSEIn a chaotic conclusion to the Congressional year, the Senate blocked an effort on Wednesday to open the Arctic National Wildlife Refuge to oil drilling and struck a last-minute accord to extend the antiterrorism law known as the USA Patriot Act for six months.
With Vice President Dick Cheney casting the decisive vote, the Senate also approved a $40 billion budget-cutting plan. And the Senate sent to President Bush a Pentagon policy measure with a ban on torturing detainees linked to terrorism.
Once-Lone Foe Of Patriot Act Has Company By SHERYL GAY STOLBERGWhen Congress passed the antiterrorism bill known as the USA Patriot Act in the fall of 2001, greatly expanding the government's investigative powers, a single senator, Russell D. Feingold, Democrat of Wisconsin, voted against it. With the nation reeling from the Sept. 11 attacks, opposing the bill seemed an act of political suicide, especially for a Democrat.
Today, more than 40 Democrats and four Republicans stand with Mr. Feingold as he helps lead a filibuster blocking the act's renewal. They are betting that the politics of terrorism have shifted from fear of another attack to wariness of ''Big Brother'' intrusions on personal privacy.


... Foreign Intelligence Surveillance Act of 1978, or FISA (that’s right, there is something called FISA that was already there) ... .
Rice Defends Domestic Eavesdropping By JAMES RISEN AND ERIC LICHTBLAUSecretary of State Condoleezza Rice on Sunday defended President Bush's decision to secretly authorize the National Security Agency to eavesdrop on Americans without seeking warrants, saying the program was carefully controlled and necessary to close gaps in the nation's counterterrorism efforts (what about FISA??).
In Sunday talk show appearances, Ms. Rice said the program was intended to eliminate the ''seam'' between American intelligence operations overseas and law enforcement agencies at home.

At F.B.I., Frustration Over Limits on an Antiterror Law By ERIC LICHTBLAUSome agents at the Federal Bureau of Investigation have been frustrated by what they see as the Justice Department's reluctance to let them demand records and to use other far-ranging investigative measures in terrorism cases, newly disclosed e-mail messages and internal documents show.
Publicly, the debate over the law known as the USA Patriot Act has focused on concerns from civil rights advocates that the F.B.I. has gained too much power to use expanded investigative tools to go on what could amount to fishing expeditions.
A Formula For Disaster By THOMAS H. KEAN AND LEE H. HAMILTONSINCE the passage of the USA Patriot Act of 2001, the federal government has distributed more than $8 billion to help local police departments, firefighters and emergency medical technicians pay for equipment and training to prepare for terrorist attacks, including nuclear, radiological, chemical or biological strikes. In our report, the 9/11 commission recommended that this assistance ''be based strictly on an assessment of risks and vulnerabilities.'' It seemed obvious to us that national security resources should be deployed where the threat is greatest.
Unfortunately, the original Patriot Act did not require these funds to be allocated on the basis of risk. Billions have been distributed with virtually no risk assessment, and little planning. Nor has the federal government set preparedness standards to help state and local governments use the money wisely. The District of Columbia used part of its grant to buy leather jackets and to send sanitation workers to self-improvement seminars. Newark bought air-conditioned garbage trucks. Columbus, Ohio, bought body armor for fire department dogs. These are not the priorities of a nation under threat.
Policing a Library's Computers By GARY SANTANIELLOLIBRARIES, as Tom Geoffino, the head librarian in Fairfield, pointed out, ''are all about access to information.'' But in this Google-driven age, that information is increasingly retrieved by people through computers, not card catalogues or reference desks.
So libraries have had to become more high-tech, installing more and more computers and figuring out how to give their patrons access. But as Internet-connected computers became common in libraries, librarians have reluctantly found themselves in roles for which they have neither trained nor volunteered -- that of traffic cop, referee and computer technician. They are often forced to determine who gets to use the computers and for how long.


Connecticut Librarians See Lack of Oversight as Biggest Danger in Antiterror Law By ALISON LEIGH COWANDespite their concerns about the privacy of their patrons, librarians in Connecticut say they have turned over information sought by law enforcement authorities -- but usually when investigators are able to produce ample legal documentation obtained with a judge's consent.
Just two months ago, Bridgeport's main library had to produce typewriter ribbons sought by authorities investigating a woman who was later charged with sending threatening letters to the justices of the United States Supreme Court, librarians said.
Hartford Libraries Watch as U.S. Makes Demands By ALISON LEIGH COWANLibrarians in Connecticut say they are closely following a federal case in a Bridgeport courthouse involving a demand for library records, both to learn more about the identity of the people at the center of the case and to underscore their concerns about such orders.
Weeks earlier, the Federal Bureau of Investigation had quietly demanded that one of their peers turn over library records under the USA Patriot Act. The case became public after the subject of the demand retained the American Civil Liberties Union to challenge the constitutionality of the request, as well as the order of silence that accompanied it.
At Stake in Court: Using the Patriot Act to Get Library Records By ALISON LEIGH COWANIt was a hearing where the name of the client was never disclosed, the subject of the federal inquiry remained unidentified and the context for the exercise was kept top secret.
For all its intrigue, an important principle was at stake: the right of law enforcement officials to use the USA Patriot Act to demand library records in counterterrorism investigations.
Op-Ed article by Ted Koppel on threat to privacy posed by growing army of businesses and industries that monitor buying habits, litigations, health and tax records and other personal information; sees need for mandatory clarity and transparency, not just with regard to services that microchip and satellite technology offer but also degree to which companies share and exchange their harvest of private data
Take My Privacy, Please! By TED KOPPELTHE Patriot Act -- brilliant! Its critics would have preferred a less stirring title, perhaps something along the lines of the Enhanced Snooping, Library and Hospital Database Seizure Act. But then who, even right after 9/11, would have voted for that?
Precisely. He who names it and frames it, claims it. The Patriot Act, however, may turn out to be among the lesser threats to our individual and collective privacy.
After Talk of Compromise, Panel Is Again Split on Patriot Act By ERIC LICHTBLAUJust a few weeks ago, critics and supporters of the sweeping antiterrorism law known as the USA Patriot Act had reduced their differences to only a handful of substantive issues, and the two sides were talking openly about finding room for compromise in renewing the law.
But now, a new proposal in the Senate Intelligence Committee -- backed by the Bush administration -- has sent the two sides scurrying back to their war camps. The central question is no longer whether the government's antiterrorism powers should be scaled back in the face of criticism from civil rights advocates, but whether those powers should be significantly expanded to give the F.B.I. new authority to demand records and monitor mailings without approval from a judge.
In Patriots' Cradle, the Patriot Act Faces Scrutiny By JANE GORDONFRAN KEILTY has been stopping customers at her bookstore, the Hickory Stick Bookshop in Washington Depot, to give them an earful about the USA Patriot Act. Mrs. Keilty had called her legislator in Washington, Representative Nancy Johnson, to complain and has asked customers to do the same.
When the USA Patriot Act, the antiterrorism law whose simple name belies it staggering complexity, was passed after the attacks on the World Trade Center and Pentagon, grass-roots efforts to reform the legislation grew. Now, as Congress debates whether to renew provisions of the act, which are scheduled to expire at the end of the year, towns around Connecticut are staging their own version of the Boston Tea Party. In a quiet revolt, many towns have been passing resolutions condemning the act and urging Congress to kill it. These resolutions don't have the strength of law, but are meant to give people a voice on what they say is an injustice.
Senator Faults Briefing on Antiterrorism Law By ERIC LICHTBLAUA senior Republican lawmaker expressed frustration Tuesday with the Justice Department's failure at a closed-door briefing to provide information about its use of the sweeping antiterrorism law known as the USA Patriot Act.
The lawmaker, Senator Arlen Specter of Pennsylvania, who leads the Judiciary Committee, said he and others in the Senate sought details from senior intelligence officials at the Justice Department and the Federal Bureau of Investigation about their demands for records and their use of roving wiretaps, secret search warrants and other provisions in the law.

Less Prickly Than Ashcroft, Gonzales Wins Some Fans
April 7, 2005, Thursday
By ERIC LICHTBLAU (NYT); National Desk
Late Edition - Final, Section A, Page 20, Column 1, 787 words
DISPLAYING ABSTRACT - Atty Gen Alberto Gonzales, in office two months, earns political points for wooing members of Congress with style more conciliatory than that of predecessor John Ashcroft; opening debate on USA Patriot Act is also coming-out of sorts for Gonzales, who offers forceful defense of sweeping antiterrorism law but also acknowledges that Bush administration has been sluggish in explaining rationale for some policies; he promises dialogue on improving law, takes copious notes on lawmakers' questions and promises prompt answers, winning plaudits from Democrats like Repr Howard Berman and Sen Russell Feingold
THE WAY WE LIVE NOW: 3-6-05: THE SECURITY ADVISER; Real ID's, Real Dangers By RICHARD A. CLARKEHave you ever wondered what good it does when they look at your driver's license at the airport? Let me assure you, as a former bureaucrat partly responsible for the 1996 decision to create a photo-ID requirement, it no longer does any good whatsoever. The ID check is not done by federal officers but by the same kind of minimum-wage rent-a-cops who were doing the inspection of carry-on luggage before 9/11. They do nothing to verify that your license is real. For $48 you can buy a phony license on the Internet (ask any 18-year-old) and fool most airport ID checkers. Airport personnel could be equipped with scanners to look for the hidden security features incorporated into most states' driver's licenses, but although some bars use this technology to spot under-age drinkers, airports do not. The photo-ID requirement provides only a false sense of security.
Congress is debating the Real ID bill in part because many states have been issuing real driver's licenses, complete with the hidden security features, to people who have established their identities using phony birth certificates or fake Social Security cards. Indeed, some 9/11 hijackers obtained real driver's licenses using false documents. The Real ID bill has, however, provoked negative reaction from those who think it has little to do with terrorism and a lot to do with making life difficult for illegal immigrants. While the bill has passed the House, it faces difficulty in the Senate. If portions of it do pass, it will mean that the next time you apply for a driver's license, you may need substantial proof that you are who you claim to be.


Bill Would Allow Second Attempts at Federal Death Sentence By ADAM LIPTAKIf all 12 members of a jury in a capital case in federal court cannot agree on whether to impose the death penalty, a convicted defendant is automatically sentenced to life in prison.
But that may be about to change. A little-noticed provision in the House bill that reauthorized the antiterrorism law known as the USA Patriot Act would allow federal prosecutors further attempts at a death sentence if a capital jury deadlocks on the punishment. So long as at least one juror voted for death, prosecutors could empanel a new sentencing jury and argue again that execution was warranted.
Now then, I will take a brake from all the headlines reciting to inform my reader on the Constitution of the United States of America. I will also provide definitions for some of the terms that were used or will be used in these and the following stories (just in case they were confusing).

Civil Rights – Government guarantees of political equality and equal treatment.

Civil Liberties – Freedoms found primarily in the Bill of Rights that are protected from government interference.

Habeas Corpus – The legal doctrine that a person who is arrested must have a timely hearing before a judge.

Now I will present to you the back up for the civil rights and liberties, as well as the protection of habeas corpus.

Constitution

Article 1, Section 9
Congress may not suspend a writ of habeas corpus, except when public safety demands it because of rebellion or invasion. (I hope that you agree that the U.S. is neither in a state of rebellion or under an invasion)
Congress may not pass bills of attainder or ex post facto laws.

Article 3, Section 3
No one may be convicted of treason unless there is a confession in open court or testimony of two witnesses to the same overt act. (Indeed!)

Now there are two definitions in there that might also be confusing.
Here is the explanation:

Bill of attainder – A government decree that a person is guilty of a crime that carries the death penalty, rendered without benefit of trial.

Ex post facto law – A law that retroactively declares some action illegal.

Now that we got that out of the way, let me remind you about the Bill of Rights

Fifth Amendment
Citizens are protected against double jeopardy (hopefully no explanation needed?) and self – incrimination.

Fourth Amendment (yes the famous number four, which is still there by the way)
Citizens are to be free from unreasonable searches and seizures.
Federal courts may issue search warrants based only on probable cause and specifically describing the objects of search.

Hopefully this clarifies things a bit? If not, then I will try to present this in a different light. What is the need of a warrant after an act was committed? The fourth amendment is rendered null and void if the authorities can perform unreasonable searches and seizures without a probable cause and without the description of the objects of search. Federal Courts MAY (in other words MUST) issue search warrants based only on probable cause and specifically describing the objects of search. I do not know how to better explain this...

The First Amendment states that
Congress may not abridge the freedom of speech or of the press.

Then there is always the Ninth Amendment
Traditional rights not listed in the Constitution are retained by the people.

Ok so hopefully you can see that the civil liberties fall into two major groups: first, those associated with freedoms of expression, belief, and association; and second, those involving protections for people accused of committing a crime.

Now an example of the civil rights would be the Civil War Amendments. The Thirteenth outlawed slavery, Fourteenth made all people who are born or naturalized in the United States citizens both of the United States and of the states in which they reside. Article 1 of this Amendment states that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the Unites States nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Now back to the headlines!








December 17, 2006
Editorial
Unfinished Business
Some recent images from George W. Bush’s war on terror:
¶Jose Padilla, the supposed dirty bomber, submitting while guards blindfolded him and covered his ears for a walk from his cell to a dentist’s chair.
¶Government lawyers arguing that a prisoner could not testify that he was tortured by American agents, because their brutality was a secret.
¶A judge dismissing another prisoner’s challenge to his detention, after a new law stripped basic rights from those Mr. Bush has designated “illegal enemy combatants.”
¶The White House scorning lawmakers’ attempts to rein in Mr. Bush’s illegal domestic spying.
This is the legacy of a Republican Congress that enabled the president’s imperial visions of his authority. It leaves the new Democratic majority with much urgent, unfinished business to restore due process, civil liberties and the balance of powers.
Military Tribunals
In the heat of the midterm campaign, Congress was stampeded into establishing military courts for suspected terrorists. The measure improved on Mr. Bush’s own kangaroo courts, which were struck down by the Supreme Court. But the bill over all was a national disgrace.
Among the many things that Congress needs to fix are the bill’s broad definition of “illegal enemy combatant,” which could subject legal United States residents to summary imprisonment; its repudiation of the Geneva Conventions to allow the president to decide what prisoner abuse he will permit; its denial of the basic right of appeal to any noncitizen designated as an “illegal enemy combatant”; and its stripping of the powers of federal courts. The law is also far too lax on the use of coerced evidence and secret evidence. The definition of torture should be changed to reflect civilized norms.
We were greatly encouraged last week when Senator Patrick Leahy, the Vermont Democrat who will head the Judiciary Committee, said fixing this bill would be a priority for his panel.
The C.I.A. Prisons
At the insistence of Mr. Bush and Vice President Dick Cheney, the Military Commissions Act gave legal cover to the Central Intelligence Agency’s secret illegal prisons, which house foreign citizens who are often abducted off the streets of their hometowns and brutalized. Congress should at minimum bring these prisons under the rule of law, and make sure that C.I.A. interrogators are given clear instructions comporting with American values. Ideally, Congress would investigate and decide whether this operation has any national security value, and if it doesn’t, immediately close the prisons down.
Domestic Spying
Mr. Bush personally authorized the National Security Agency to ignore federal law and eavesdrop on telephone calls and e-mail between the United States and other countries without a warrant. Republican lawmakers have introduced bills that would legalize the program after the fact. The only remotely sensible measure is from Senator Dianne Feinstein, the California Democrat who has proposed forcing the eavesdropping back under the 1978 surveillance law and giving the administration a bit more flexibility to do electronic surveillance.
But we agree with Senator John Rockefeller IV, the incoming chairman of the Senate Intelligence Committee, who says more needs to be known about the program before enacting new laws. The administration has stymied Congressional efforts to look into the spying operation, refusing even to turn over the presidential order creating it.
The Intelligence on Iraq
Nearly two and a half years ago, the Senate Intelligence Committee reported on the nation’s spy agencies’ prewar failure to figure out that there were no weapons of mass destruction in Iraq, and promised to deliver a report on whether Mr. Bush and his team pressured the agencies to cherry-pick or hype evidence — or lied outright to Americans.
Senator Pat Roberts of Kansas, the Republican head of the intelligence panel, dragged out the second phase of the report, with the aim of killing it. We hope Mr. Rockefeller finishes the job.
That will require heavy lifting on the most important section, comparing the statements of administration officials to what they knew about the intelligence. Mr. Roberts insisted that it cover every public statement by any administration official or member of Congress dating back to 1991. What President Bill Clinton or Senator Hillary Clinton said about Iraq is irrelevant. What matters is what was said by Mr. Bush and Mr. Cheney — who ordered the invasion of Iraq — and by their aides. We hope Mr. Rockefeller’s committee will sift through the hundreds of statements collected so far and focus on the ones that matter.
Unhappily, this is not an exhaustive list and there will be big fights over many of these issues. But it is not too late to take action. The midterm elections prove that despite all the posturing and fearmongering, the American public has not been blinded or deafened to what this country stands for and the need for truth.


Here is a book review that deals with the famous habeas corpus.


As of Oct. 17 of this year, the great writ of habeas corpus was substantially weakened in the United States by the assent of both the presidency and Congress. Do the dangers of terrorists and terrorism require so broad a shift in the balance of powers and such an outright challenge to the liberty of the Republic? John Yoo has tried to answer these questions. He is well placed to do so. He was one of the principal authors of the Bush administration's policies regarding arrests, detentions, interrogations and the treatment of prisoners.

First Chapter
‘War by Other Means’
By JOHN YOO
On September 11, 2001, I switched on the TV in my Justice Department office at the Robert F. Kennedy Building in time to see the second plane, United Airlines flight 175, fly into the World Trade Center tower. Then American Airlines flight 77 hit the Pentagon. Later I learned that my friend Barbara Olson, wife of Solicitor General Ted Olson, had been on it. Rumors of attempted attacks on the White House, the Capitol, the Supreme Court, and the State Department flew around our offices even as the phone lines to the Defense Department and the White House stopped working.
That morning official Washington, D.C. evacuated in the face of a foreign attack for the first time since the British invasion in the War of 1812. I and a skeletal staff of the Office of Legal Counsel (OLC) stayed behind. That night, our country's leaders had to decide whether the United States was at war. FBI officials were already making significant headway in identifying the hijackers, and it soon became apparent even in the hectic aftermath of the attacks that several were al Qaeda operatives. Headed by Osama bin Laden, al Qaeda, which means "the base" in Arabic, had carried out deadly terrorist attacks against Americans for several years, including the bombing of two American embassies in Africa and the USS Cole in Yemen, and had failed at other, even more deadly, attempts.
Uncertainty about whether September 11 started a war is at the root of most of the confusion about the United States' strategy in the war on terrorism. Critics of the Bush administration's terrorism policies believe that terrorism is a crime. They say that terrorism, even attacks as destructive as those on 9/11, by definition cannot justify war, because we are not fighting another nation. Former Clinton Justice Department official and Harvard law professor Philip Heymann states that "war has always required a conflict between nation states." Former senator and presidential candidate Gary Hart and historian Joyce Appleby put the view nicely: "The 'war on terror' is more a metaphor than a fact. Terrorism is a method, not an ideology; terrorists are criminals, not warriors." Yale professor Bruce Ackerman begins a recent book by declaring: "'War on terror' is, on its face, a preposterous expression," and devotes his first chapter to arguing that "this is not a war."
If 9/11 did not trigger a war, as these critics contend, then the United States is limited to fighting al Qaeda with the law enforcement and the criminal justice system, with all of their protections and delays. Lawyers for captured al Qaeda operatives argued before the Supreme Court that it was illegal to detain them. Either the government should charge them with crimes, give them lawyers, and begin a jury trial, or it should let them go. Former Clinton Attorney General Janet Reno filed a brief in support of a petition to release accused al Qaeda agent Jose Padilla on the ground that law enforcement "tools available now provide the Executive Branch with broad authority and flexibility to respond effectively to terrorist threats within our borders," and that no resort to war was needed.
This position would dangerously return us to the more comforting certainties of the pre-September 11 world. For decades, the United States had dealt with terrorism primarily as a crime subject to the law enforcement and the criminal justice systems. In response to previous al Qaeda attacks, the United States dispatched FBI agents to investigate the "crime scene" and tried to apprehend terrorist "suspects."
Federal prosecutors succeeded in putting a few of them on trial in federal court in New York. Ironically, the federal judge issued rulings on the 1993 World Trade Center bombing just weeks before the hijacked planes crashed into the towers. Efforts to capture or kill al Qaeda leader Osama bin Laden throughout the 1990s were shelved, out of concerns that the Justice Department did not have enough evidence to satisfy the legal standard for a criminal arrest.
A return to this state of affairs would be a huge mistake. Bipartisan studies of the failings that led up to 9/11 refer to the inadequacy of the criminal justice approach to deal effectively with an ideologically motivated military organization like al Qaeda. If 9/11 started a war between the United States and al Qaeda, the United States can employ its war powers to kill enemy operatives and their leaders, detain them without trial until the end of the conflict, interrogate them without lawyers or Miranda protections, and try them without civilian juries. No doubt these measures seem unusual, even draconian, but the rules of war provide nations with their most forceful tools to defend their people from attack. We are faced with the difficult task of adapting those rules for the unprecedented appearance on the world stage of an enemy that, while not a nation, can inflict violence at a level once only in the hands of nations. To make wise policy choices, it is essential to understand the difference between, and the appropriate uses of, war as opposed to criminal prosecution. War is too important to be the subject of partisan politics.
Here is how we at the Justice Department sat down to think about September 11. On that clear, sunny day, four coordinated attacks had taken place in rapid succession, aimed at critical buildings at the heart of our national financial system and our nation's capital. The terrorists who hijacked these airplanes in some ways had conventional military objectives-to decapitate America's political, military, and economic headquarters. They failed at the first, partially achieved the second (the American Airlines flight from Dulles Airport to Los Angeles struck a recently modernized and reinforced section of the Pentagon, resulting in far lower casualties and destruction than it would have otherwise inflicted), and succeeded at the third. The attacks killed more people than the Japanese Navy had killed at Pearl Harbor-approximately three thousand, with thousands more injured. They also disrupted air traffic and communications, closed the national stock exchanges for days, and caused billions of dollars in damage.
The attackers wore no uniforms, carried no arms openly, and did not operate as part of regular military units. Instead, Mohammed Atta and his eighteen fellow hijackers disguised themselves as civilians, used civilian aircraft as weapons, and launched their attacks by surprise from within our borders. Deliberately targeting and killing civilians is deeply immoral, violating the core principle of the law of war-that combatants are only to target each other and must attempt to minimize harm to innocent civilians.
The attacks were both vicious and skillful. Al Qaeda's operatives infiltrated past our immigration and border controls, operated within our borders for years, and gained the skills needed to fly airplanes into buildings at schools in the United States without ever being detected by American intelligence or law enforcement. They simultaneously hi- jacked four aircraft within minutes of each other, and succeeded in hitting three of their targets with devastating effect. Even though they were going to their certain deaths, the hijackers maintained operational security for months, if not years, and managed to take the United States completely by surprise. Without any conventional armed forces or the military resources of a nation-state, al Qaeda inflicted a level of destruction on the United States that only a few nations would have been capable of achieving. Evil doesn't necessarily mean stupid or incompetent.
If a nation-state had carried out the same attacks on the same targets, there would have been no question about whether a state of war would have existed. If, during the Cold War, the Soviet Union had sent KGB agents to drive airplanes through American skyscrapers, the United States would have retaliated, our nation would have gone on a war footing, and our mutual self-defense agreements with other countries would have come into play. Why should status as an international terrorist organization rather than a nation-state make a difference as to whether we are at war?
Who We Fight
The most singular and defining characteristic of the hijackers to a lawyer, the one that makes them unprecedented in our history, is that they fight on behalf of no nation. They launched their attacks on behalf of a network of Islamic radicals who have dedicated themselves to a terror jihad against the West. Many were from Saudi Arabia, one of the United States' closest and oldest allies in the Middle East. While al Qaeda did not immediately claim responsibility for the attacks, American intelligence became certain of its responsibility. Videotape later captured in Afghanistan showed al Qaeda leaders discussing their planning and goals for the operation.
While al Qaeda was not a household word before the September 11 attacks, the United States had suffered repeated attacks at its hands. These include the suicide bombing of the USS Cole in 2000, the bombing of American embassies in Kenya and Tanzania in 1998, the attack on a U.S. military housing complex in Saudi Arabia in 1996, and the bombing of the World Trade Center in 1993. Only good intelligence and law enforcement work, helpful allies, and luck had frustrated planned attacks on American airliners over the Pacific Ocean, at Los Angeles airport during the millennium, and at various American embassies and personnel in Europe and Asia.
Public information about the group remains incomplete, but there is much agreement on its basic features and goals. Al Qaeda is a network of terrorists who wish to engineer fundamental political and social change in the Middle East. Some members, including bin Laden, are veterans of the successful resistance to the Soviet occupation of Afghanistan. With the help of Saudi funding, the Reagan administration helped train and arm mujahadeen resistance fighters from many different Arab countries to defeat the Soviets. When the war ended, some of these fighters banded together with the aim of overthrowing Arab regimes at home. They seethed at the rise of the Christian West, the decline of the Islamic caliphate-which had once stretched from India to Spain-the presence of American troops in the holy land of Saudi Arabia, and at current Arab regimes, which they saw as corrupt and untrue to fundamentalist Islamic principles.
It is as important to understand al Qaeda's ideology as it was to know the worldview of our communist opponents in the Cold War. Al Qaeda members view recent history as a Manichaean struggle between Islam and the West. To them, the United States is the cause of the conflicts and reverses suffered by the Islamic world. Over the long term, al Qaeda thinkers believe America must be forced to withdraw from the Middle East and that U.S. citizens must be converted to Islam. Attacking the United States also serves the near-term objective of undermining its Arab allies in Egypt, Saudi Arabia, and Jordan and replacing them with a fundamentalist Islamic caliphate. "Our fight against these governments is not separate from our fight against" the United States, bin Laden says. Publicity is another goal. Showing the United States to be weak and vulnerable helps al Qaeda to gain new recruits and destabilize secular governments in predominantly Islamic parts of the world. While other Islamic terrorist groups have focused on Israel, for bin Laden and his followers the United States is "the head of the snake." Al Qaeda had announced its goals at least as early as 1996, when bin Laden issued a fatwa-an interpretation of Islamic law-calling on Muslims to drive American troops out of the Middle East. Two years later, bin Laden and his number two, Egyptian doctor Ayman al Zawahiri, declared war against all Americans, saying that it was "the individual duty for every Muslim who can do it in any country in which it is possible to do it" to kill an American. In an ABC interview shortly thereafter, bin Laden said that "the worst thieves in the world today and the worst terrorists are the Americans. Nothing could stop you except perhaps retaliation in kind." The question was never whether al Qaeda wanted to attack the United States and kill its citizens. The question was only if it had the wherewithal to carry out its threats.
In 2001, al Qaeda had several sources of support. Most directly, it had the shelter of the Taliban in Afghanistan. The Taliban, in turn, received support from Pakistan's military and intelligence services. Al Qaeda gave the Taliban money and a core of loyal fighters; in exchange al Qaeda got a training base and a safe harbor from which to operate. In 2001 as well as today al Qaeda receives its financial support from private and religious charities and individuals, mainly based in Saudi Arabia. It draws its manpower from the pool of disaffected, alienated, or unemployed young men bitter over the Arab world's poverty and decline. It appeals to their fundamental religious beliefs in a time of unsettling change wrought by globalization and social upheaval.
Al Qaeda benefits from our technological age, in which small guerrilla bands, aided by the spread into the global public domain of virulent technologies-chemical, biological, and nuclear-can wreak destruction such as no small group has ever been able to before.
Al Qaeda's terrorist campaign against the United States and its allies continues to this day. It is believed to have been responsible for, or connected with, numerous terrorist incidents following September 11, including the December 2001 attempt by Richard Reid to ignite a shoe bomb on a transatlantic flight from Paris to Boston, an April 2002 explosion at a synagogue in Djerba, an October 2002 explosion on a French oil tanker off the Yemeni coast, a series of bombs on the Indonesian resort island of Bali that same month, and two attacks on Israeli targets in Kenya in November 2002. Al Qaeda apparently carried out the bombings of the Madrid train stations in 2004 that led to the withdrawal of Spanish troops from Iraq, and its operatives are behind some of the attacks on American troops currently in Iraq supporting that country's new government. It may also have been behind the London bombings on July 7, 2005.
Al Qaeda operates in an unconventional and, as strategic analysts like to say, asymmetric manner. Its operatives do not wear uniforms, nor do they form conventional units or force structures. Rather, their personnel, material, and leadership are organized in covert cells. Al Qaeda has no interest in meeting American armed forces on the battlefield, but resorts to surprise attacks, primarily on civilian targets, using unconventional weapons and tactics. Victory for al Qaeda does not mean defeating the enemy's forces and negotiating a political settlement, but demoralizing the enemy's society and coercing it to act in ways that al Qaeda prefers.
Another factor that distinguishes the conflict with al Qaeda from previous wars is jurisdiction, an issue that crops up whenever lawyers become involved. In earlier modern American conflicts, hostilities took place on a foreign battlefield. The United States home front was largely safe between two oceans. Today the battlefield may be anywhere. Possessing no territory, population, or regular armed units, al Qaeda depends on the covert use of global transportation and commercial channels to move its men and resources across borders undetected. This erases the traditional boundaries between the battlefield and the home front.
Why War The United States has faced violence from non-state actors before. We have used the criminal justice system to handle pirates, domestic terror groups, the Mafia, and drug cartels. But there is a line, however indistinct, between crime and war. In war, nations use special powers to prevent future attacks on their citizens and territory, not to punish past conduct. Law enforcement tries to solve crimes that have occurred in the past. Our military and intelligence agents seek to stop deadly foreign attacks that may happen in the future. The difference in purpose dictates different tools. The FBI and the DEA-not the U.S. armed forces-have prime responsibility for interdicting drug smuggling (although the military sometimes plays a supporting role). They seek to disrupt the operations of drug cartels with traditional tools of law enforcement: interviewing witnesses, collecting physical evidence, and carrying out surveillance. An investigation usually occurs only after a crime has occurred. Deadly force may be used only if necessary to defend the law enforcement agent's life, or another's, against an imminent attack. . . .
Some more information on habeas corpus.
December 14, 2006
Judge Sets Back Guantánamo Detainees
By NEIL A. LEWIS
WASHINGTON, Dec. 13 — For the first time, a court has affirmed that a law enacted this fall accomplishes what the White House and its Congressional supporters sought: stripping the federal judiciary of the authority to hear challenges from detainees at Guantánamo Bay, Cuba.
In a ruling Wednesday, Judge James Robertson of the Federal District Court here said Salim Ahmed Hamdan, a prisoner at Guantánamo, could no longer contest his detention before a federal court because, Judge Robertson said, Congress this fall explicitly eliminated his right to file a habeas corpus challenge.
The judge said the Military Commissions Act, passed by Congress in September and signed into law by President Bush the following month, was unambiguous in denying Guantánamo detainees the use of a habeas corpus statute. Like Mr. Hamdan, hundreds of other prisoners at the base have challenged their detention, in similar cases.
It was Judge Robertson who granted Mr. Hamdan’s habeas petition in November 2004, abruptly halting his war crimes trial in the middle of proceedings at Guantánamo by ruling that the process was fatally flawed.
But in his decision Wednesday, the judge said circumstances had changed fundamentally with enactment of the new law. And not only is Mr. Hamdan barred from a challenge under the habeas statute, the judge said, he cannot follow the usual second avenue to bring a habeas challenge — invoking the Constitution — because it is unclear that noncitizens at Guantánamo have that right.
Mr. Hamdan is a Yemeni who was a driver for Osama bin Laden in Afghanistan and was captured there in November 2001. He has been at the center of a debate about the Bush administration’s legal tactics in fighting terrorism, his challenge occupying not only the White House but also Congress and the courts — up to the Supreme Court, which will almost certainly have to revisit the case.
The Supreme Court first ruled in the Hamdan case in June, when it repudiated the administration’s efforts to put Guantánamo detainees on trial before military commissions. That 5-to-3 ruling said Mr. Bush had overstepped his constitutional bounds by establishing the commissions without Congressional authorization. Further, the justices said a previous law stripping Guantánamo detainees of habeas corpus protections did so only prospectively — that is, it did not void the several hundred habeas petitions already filed in federal courts.
In response, the Republican-controlled Congress adopted the Military Commissions Act to address, explicitly and retroactively, the question of the habeas statute’s application to Guantánamo.
Judge Robertson’s opinion on Wednesday said in effect that in enacting the new law, Congress and the president had undone the basis of the Supreme Court’s ruling.
The judge said that although Mr. Hamdan was asserting that he was entitled to habeas protection because he had never been tried properly, he would soon “face a military commission newly designed, because of his efforts, by a Congress that finally stepped up to its responsibility, acting according to guidelines laid down by the Supreme Court.”
The issue of whether Mr. Hamdan and other Guantánamo detainees have a constitutional, rather than a statutory, right to habeas corpus is almost certain to form the heart of the legal debate that will next occur in the United States Court of Appeals for the District of Columbia Circuit, before an ultimate decision by the Supreme Court. The appeals court is already considering the application of the new law in dozens of other habeas cases brought by detainees.
But by the time the cases make their way through the system, Mr. Hamdan and some other prisoners may have already been tried by military commissions, making the habeas issue moot as it applies to them.
Once the Military Commissions Act was adopted this fall, senior Pentagon officials said they hoped to resume war crimes trials before the newly reconstituted commissions by next summer. Mr. Hamdan, who has maintained that he was only a driver at the bin Laden farm and not a terrorist, may well be one of the first to go before the new commissions.

Panel to Focus on Civil Liberties
By DAVID JOHNSTON
WASHINGTON, Dec. 13 — The Senate Judiciary Committee plans to create a Subcommittee on Human Rights and the Law to examine issues like torture, war crimes and human trafficking, the incoming chairman of the panel said on Wednesday.
In a speech outlining an agenda of “restoration, repair and renewal,” the new chairman, Senator Patrick J. Leahy, Democrat of Vermont, said that the new subcommittee would bring a focus to efforts to protect civil liberties.
The announcement seemed to underscore Mr. Leahy’s intention to use oversight more aggressively than Republicans had.
“This has been an unfortunate chapter in Congress’s history,” Mr. Leahy said of the recent years of Republican control.
“I have never seen a Congress so willfully derelict in its duties as during this administration,” he added.
Mr. Leahy, in an appearance at the Georgetown University law school, accused the White House of “corrosive unilateralism” in refusing to cooperate with Congress. After the September 2001 attacks, he said, “the White House accelerated its power plays at the expense of the other branches of government — all in the name of fighting terrorism.”
The Bush administration, Mr. Leahy said, had “brazenly refused to answer the legitimate oversight questions of the public’s duly elected representatives and it has acted outside the lawful authority to wiretap Americans without warrants and to create databanks and dossiers on law-abiding Americans without following the law and without seeking legal authorization.”
He said the administration had made judicial appointments for “partisan political purposes and refused to work with us on consensus nominees.” Bipartisan nominating panels should be considered to screen candidates, Mr. Leahy said.
A spokesman for the Justice Department, Brian Roehrkasse, said in a statement, “As we have in the past six years, we’re looking forward to working with the Senate Judiciary Committee, including working with the committee to provide information that it legitimately needs.”
“In the past we’ve reached accommodations on working together,” Mr. Roehrkasse said; “we expect we can do so in the future as well.”
Conservative groups quickly issued statements denouncing Mr. Leahy’s speech. Curt Levey, executive director of the Committee for Justice, said, “When Mr. Leahy speaks of wanting ‘consensus’ judicial nominees, what he appears to have in mind are nominees that are acceptable to the coalition of ultra-liberal groups that have orchestrated much of the opposition to the president’s judicial picks.”
I guess they can always rubber stamp those nominees just like everything else.


Now on the war in Iraq

Let’s not forget the Wilson story.

What I Didn't Find in Africa
by Joseph C. Wilson 4th

Did the Bush administration manipulate intelligence about Saddam Hussein's weapons programs to justify an invasion of Iraq?
Based on my experience with the administration in the months leading up to the war, I have little choice but to conclude that some of the intelligence related to Iraq's nuclear weapons program was twisted to exaggerate the Iraqi threat.
For 23 years, from 1976 to 1998, I was a career foreign service officer and ambassador. In 1990, as chargé d'affaires in Baghdad, I was the last American diplomat to meet with Saddam Hussein. (I was also a forceful advocate for his removal from Kuwait.) After Iraq, I was President George H. W. Bush's ambassador to Gabon and São Tomé and Príncipe; under President Bill Clinton, I helped direct Africa policy for the National Security Council.
It was my experience in Africa that led me to play a small role in the effort to verify information about Africa's suspected link to Iraq's nonconventional weapons programs. Those news stories about that unnamed former envoy who went to Niger? That's me.
In February 2002, I was informed by officials at the Central Intelligence Agency that Vice President Dick Cheney's office had questions about a particular intelligence report. While I never saw the report, I was told that it referred to a memorandum of agreement that documented the sale of uranium yellowcake — a form of lightly processed ore — by Niger to Iraq in the late 1990's. The agency officials asked if I would travel to Niger to check out the story so they could provide a response to the vice president's office.
After consulting with the State Department's African Affairs Bureau (and through it with Barbro Owens-Kirkpatrick, the United States ambassador to Niger), I agreed to make the trip. The mission I undertook was discreet but by no means secret. While the C.I.A. paid my expenses (my time was offered pro bono), I made it abundantly clear to everyone I met that I was acting on behalf of the United States government.
In late February 2002, I arrived in Niger's capital, Niamey, where I had been a diplomat in the mid-70's and visited as a National Security Council official in the late 90's. The city was much as I remembered it. Seasonal winds had clogged the air with dust and sand. Through the haze, I could see camel caravans crossing the Niger River (over the John F. Kennedy bridge), the setting sun behind them. Most people had wrapped scarves around their faces to protect against the grit, leaving only their eyes visible.
The next morning, I met with Ambassador Owens-Kirkpatrick at the embassy. For reasons that are understandable, the embassy staff has always kept a close eye on Niger's uranium business. I was not surprised, then, when the ambassador told me that she knew about the allegations of uranium sales to Iraq — and that she felt she had already debunked them in her reports to Washington. Nevertheless, she and I agreed that my time would be best spent interviewing people who had been in government when the deal supposedly took place, which was before her arrival.
I spent the next eight days drinking sweet mint tea and meeting with dozens of people: current government officials, former government officials, people associated with the country's uranium business. It did not take long to conclude that it was highly doubtful that any such transaction had ever taken place.
Given the structure of the consortiums that operated the mines, it would be exceedingly difficult for Niger to transfer uranium to Iraq. Niger's uranium business consists of two mines, Somair and Cominak, which are run by French, Spanish, Japanese, German and Nigerian interests. If the government wanted to remove uranium from a mine, it would have to notify the consortium, which in turn is strictly monitored by the International Atomic Energy Agency. Moreover, because the two mines are closely regulated, quasi-governmental entities, selling uranium would require the approval of the minister of mines, the prime minister and probably the president. In short, there's simply too much oversight over too small an industry for a sale to have transpired.
(As for the actual memorandum, I never saw it. But news accounts have pointed out that the documents had glaring errors — they were signed, for example, by officials who were no longer in government — and were probably forged. And then there's the fact that Niger formally denied the charges.)
Before I left Niger, I briefed the ambassador on my findings, which were consistent with her own. I also shared my conclusions with members of her staff. In early March, I arrived in Washington and promptly provided a detailed briefing to the C.I.A. I later shared my conclusions with the State Department African Affairs Bureau. There was nothing secret or earth-shattering in my report, just as there was nothing secret about my trip.
Though I did not file a written report, there should be at least four documents in United States government archives confirming my mission. The documents should include the ambassador's report of my debriefing in Niamey, a separate report written by the embassy staff, a C.I.A. report summing up my trip, and a specific answer from the agency to the office of the vice president (this may have been delivered orally). While I have not seen any of these reports, I have spent enough time in government to know that this is standard operating procedure.
I thought the Niger matter was settled and went back to my life. (I did take part in the Iraq debate, arguing that a strict containment regime backed by the threat of force was preferable to an invasion.) In September 2002, however, Niger re-emerged. The British government published a "white paper" asserting that Saddam Hussein and his unconventional arms posed an immediate danger. As evidence, the report cited Iraq's attempts to purchase uranium from an African country.
Then, in January, President Bush, citing the British dossier, repeated the charges about Iraqi efforts to buy uranium from Africa.
The next day, I reminded a friend at the State Department of my trip and suggested that if the president had been referring to Niger, then his conclusion was not borne out by the facts as I understood them. He replied that perhaps the president was speaking about one of the other three African countries that produce uranium: Gabon, South Africa or Namibia. At the time, I accepted the explanation. I didn't know that in December, a month before the president's address, the State Department had published a fact sheet that mentioned the Niger case.
Those are the facts surrounding my efforts. The vice president's office asked a serious question. I was asked to help formulate the answer. I did so, and I have every confidence that the answer I provided was circulated to the appropriate officials within our government.
The question now is how that answer was or was not used by our political leadership. If my information was deemed inaccurate, I understand (though I would be very interested to know why). If, however, the information was ignored because it did not fit certain preconceptions about Iraq, then a legitimate argument can be made that we went to war under false pretenses. (It's worth remembering that in his March "Meet the Press" appearance, Mr. Cheney said that Saddam Hussein was "trying once again to produce nuclear weapons.") At a minimum, Congress, which authorized the use of military force at the president's behest, should want to know if the assertions about Iraq were warranted.
I was convinced before the war that the threat of weapons of mass destruction in the hands of Saddam Hussein required a vigorous and sustained international response to disarm him. Iraq possessed and had used chemical weapons; it had an active biological weapons program and quite possibly a nuclear research program — all of which were in violation of United Nations resolutions. Having encountered Mr. Hussein and his thugs in the run-up to the Persian Gulf war of 1991, I was only too aware of the dangers he posed.
But were these dangers the same ones the administration told us about? We have to find out. America's foreign policy depends on the sanctity of its information. For this reason, questioning the selective use of intelligence to justify the war in Iraq is neither idle sniping nor "revisionist history," as Mr. Bush has suggested. The act of war is the last option of a democracy, taken when there is a grave threat to our national security. More than 200 American soldiers have lost their lives in Iraq already. We have a duty to ensure that their sacrifice came for the right reasons.
Joseph C. Wilson 4th, United States ambassador to Gabon from 1992 to 1995, is an international business consultant.


CIA Leak Linked to Dispute Over Iraq PolicyAs Grand Jury Term Nears End, Officials' Critique of Administration Gains Attention
By Glenn KesslerWashington Post Staff WriterTuesday, October 25, 2005; A03
The alleged leaking of a CIA operative's name had its roots in a clash over Iraq policy between White House insiders and their rivals in the permanent bureaucracy of Washington, especially in the State Department and the CIA.
As the investigation into the leak reaches its expected climax this week with the expiration of the grand jury's term, the internal disputes have been further amplified by a recent string of speeches and interviews criticizing the administration's handling of Iraq, including by former national security adviser Brent Scowcroft, the former chief of staff to Secretary of State Colin L. Powell and State Department diplomats, and other officials involved in the early efforts to stabilize Iraq.
Scowcroft, a close friend of former president George H.W. Bush, revealed in interviews with the New Yorker a deep disdain for the administration's foreign policy, according to an article published this week. He said he had once considered Vice President Cheney "a good friend," but "Dick Cheney I don't know anymore." When Scowcroft was asked whether he could name the issues on which he agreed with President Bush, he replied "Afghanistan." He then paused for 12 seconds before adding only, "I think we're doing well on Europe."
A top State Department official involved in Iraq policy, former ambassador Robin Raphel, said the administration was "not prepared" when it invaded Iraq, but did so anyway in part because of "clear political pressure, election driven and calendar driven," according to an oral history interview posted on the Web site of the congressionally funded U.S. Institute of Peace.
The unusual on-the-record bashing comes at a difficult period for the White House, which this week is also bracing for the 2,000th military fatality in the Iraq conflict. While the internal conflicts were not a secret even during the planning for war, the intensity of the feelings more than two years later is striking.
A special counsel is investigating how the undercover status of Valerie Plame -- the wife of former ambassador Joseph C. Wilson IV -- was revealed to reporters in July 2003. The CIA had sent Wilson to Niger to investigate claims that Iraq was attempting to purchase uranium. Wilson said he found little evidence to support the allegations and later emerged as an administration critic after Bush referred to the Niger connection in the 2003 State of the Union address.
Testimony in the leak case, especially by New York Times reporter Judith Miller, has suggested that one reason White House officials sought to discredit Wilson is a deep animus toward the CIA -- and a suspicion the intelligence agency was trying to shift blame for its failures onto the White House.
But, elsewhere in Washington, others were seething, as well.
"The case that I saw for four-plus years was a case I have never seen in my studies of aberrations, bastardizations, perturbations, changes to the national security decision-making process," Lawrence B. Wilkerson, Powell's former chief of staff and longtime confidant, said in a speech last week. "What I saw was a cabal between the vice president of the United States, Richard Cheney, and the Secretary of Defense, Donald Rumsfeld, on critical issues that made decisions that the bureaucracy did not know were being made."
Wilkerson added that when decisions were presented to the bureaucracy, "it was presented in such a disjointed, incredible way that the bureaucracy often didn't know what it was doing as it moved to carry them out."
Scowcroft, in his interview, discussed an argument over Iraq he had two years ago with Condoleezza Rice, then-national security adviser and current secretary of state. "She says we're going to democratize Iraq, and I said, 'Condi, you're not going to democratize Iraq,' and she said, 'You know, you're just stuck in the old days,' and she comes back to this thing that we've tolerated an autocratic Middle East for fifty years and so on and so forth," he said. The article stated that with a "barely perceptible note of satisfaction," Scowcroft added: "But we've had fifty years of peace."
Scowcroft also dismissed former deputy secretary of defense Paul D. Wolfowitz, the intellectual godfather of the Iraq invasion. "He's got a utopia out there. We're going to transform the Middle East, and then there won't be war anymore. He can make them democratic," Scowcroft said. "Paul's idealism sweeps away doubts," he added.
Raphel's interview, conducted in July 2004, has been posted on the institute Web site, along with more than 30 other interviews -- some blunt in their dissatisfaction and disappointment -- with a range of officials involved in the U.S. occupation of Iraq. Little notice has been paid to the interviews until this week.
Raphel, who still works at State, said that controversial decisions to fire any officials associated with the Baath Party and to demobilize the Iraqi army were made largely because of "neoconservative" ideology. "What one needs to understand is that these decisions were ideologically based," she said. "They were not based on an analytical, historical understanding. They were based on ideology. You don't counter ideology with logic or experience or analysis very effectively."
Raphel added: "There was very much the sense that we were getting in way over our heads within weeks."

Let’s see here. The Powell Doctrine of 1991 (yes this is correct, 1991):

Engage as last resort.
Engage only if supported by Congress and Constituents (the people).
Engage only at full force in order to win.
Engage only with a plan to reconstruct.
Engage only with complete support of Democratic Nations.
Constantly reevaluate [the current situation].

I think that this was a very handy piece of writing.

The following story reminds me of the speech that the incoming chairman of the Arms Committee has presented on December 19, 2006. He talked about the stretching of our military forces in Iraq, and the overall state of the armed forces. He is a democrat as you might have guessed. Ben Connable on the other hand is a major in the Marine Corps.

Op-Ed Contributor
A War That Abhors a Vacuum
By BEN CONNABLE
Washington
THE niceties are up for debate: phased or partial withdrawal from Iraq would entail pulling troops back to their bases across the country, or leapfrogging backward to the nearest international border, or redeploying to bases in nearby countries.
But whatever the final prescription, the debate must include a sober look at the street-level impact of withdrawal. What will become of Iraqi villages, towns and cities as we pull out? Although past is not necessarily prologue, recent experience in Anbar Province may be instructive.
American units have already withdrawn from the western Euphrates River valley — twice, in fact. As the insurgency heated up in early 2004, the Seventh Marine Regiment pulled up stakes and went to fight insurgents in eastern Anbar, leaving the rest of the province in the hands of a battalion of troops. The Marines balanced obvious risk against the possible reward of overwhelming some of the insurgent groups in the east.
The consequences were immediate and bloody. Insurgents assumed control of several towns and villages. They tortured and executed police officers, local politicians, friendly tribal leaders and informants. They murdered contractors who had worked with the Americans or the Iraqi government. They tore down American-financed reconstruction projects and in a few cases imposed an extreme version of Islamic law. Many Iraqi military units collapsed in the absence of United States support.
The insurgents celebrated their self-described victory and exploited the withdrawal for propaganda purposes. Baathist-led insurgents used the opportunity to establish training camps and weapons caches in the farmland and along the river banks while other groups, including Al Qaeda, smuggled in fighters, suicide bombers and money to support operations in Ramadi, Falluja and Baghdad. Western Iraq became a temporary haven for criminals, terrorists and thousands of local thugs who made up de facto mini-regimes in the absence of a stabilizing force.
When the Seventh Marines returned to western Anbar it was essentially forced to retake some of the towns it once controlled. Many local Iraqis were openly hostile; the battle for the hearts and minds of the population was set back months, if not years. With the politicians murdered, local civil administration was almost nonexistent and any influence held by the central government was lost.
The Seventh Marine Regiment pulled up stakes again in November 2004 to join the second fight for Falluja. Conscious of the damage done by the earlier withdrawal, the Marines left behind more troops in an effort to stem the inevitable surge of insurgent and criminal gangs; Iraqi forces were not yet ready to assume control.
Despite this Marine presence, the results were similar. What had been rebuilt in the summer crumbled in the fall.
The two withdrawals left the western Euphrates River valley in a shambles. At the end of 2005 the Marines were forced to conduct sweep and clear operations from Anbar’s capital, Ramadi, to the Syrian border town of Husayba. As they pushed west they uncovered hundreds of weapons caches, elaborate insurgent propaganda centers, carefully camouflaged training camps, suicide vehicle factories and complex criminal networks that were feeding a steady stream of money to insurgents and terrorists across the country. Marine units settled back in, spread out and brought attack levels to unprecedented lows.
Since 2005, the situation in Anbar has significantly deteriorated. But as bad as things have become, American and Iraqi forces retain some degree of control in even the most turbulent areas. The border cities of Husayba and Qaim are relatively stable and have effective security and government. Falluja, also stable, is a model for Iraqi-American military cooperation. Advisers are embedded with Iraqi units across the province. American-supported tribes are beginning to combat Al Qaeda in Iraq in the east. Anbar is down but not out, thanks to the American troops along the Euphrates River.
American presence might be likened to a control rod in a nuclear reactor: Leave it in place and the potential energy of the insurgents and criminals is mostly kept in check; remove it and the energy becomes kinetic. Withdrawal of United States presence from any town or city in Anbar will almost certainly lead to the creation of safe havens for western Iraq’s impenetrable snarl of foreign fighters, nationalist insurgents and local thugs. Many abandoned cities and towns would come to closely resemble the Falluja of mid-2004.
If American forces conduct even a phased withdrawal before the full certification of Iraqi Army battalions, those units incapable of sustaining independent operations would be forced to pull back alongside their minders, or collapse as their logistics and fire support lifelines disappeared. Most local police forces would scatter, be co-opted or slaughtered wholesale, as they were in 2004.
Insurgents of all stripes would make the most of the combined American and Iraqi withdrawal, harassing the departing convoys with homemade bombs and small-arms fire. Videos of insurgents dancing in the streets would become prevalent on the Internet and international television. No public relations campaign could succeed in painting an early phased withdrawal as anything but a strategic defeat.
“Redeployed” in large bases far from the enemy centers of gravity, American troops wouldn’t be able to keep insurgent groups from forming semi-conventional units. This pattern has repeated itself countless times across Iraq and follows historic guerrilla-warfare models: insurgents exploit any safe haven to strengthen and train their forces. The longer they are left alone, the stronger they become. As our presence in the countryside diminishes, our ability to gather intelligence and to protect valuable infrastructure, communications lines and friendly tribal areas will deteriorate rapidly.
Should the Iraqi Army stay in place as American units withdraw, the American advisers embedded within these units probably would have to be removed, leaving nobody to control air support, coordinate unit pay from Baghdad, supervise the monthly convoys to take troops home on leave, prevent gross violations of the Geneva Convention or shore up shaky leadership. Given patient support, most of these units eventually will develop the capacity to conduct independent operations. However, some adviser teams already report that their Iraqi counterparts have said they intend to desert if the Americans leave too soon.
Although Anbar may be the most violent province in Iraq per capita, it is relatively free of the sectarian tensions found in Baghdad and the center. The confusion caused by withdrawal would be compounded as religious, militia and political loyalties divided inadequately prepared military and police units. Full-scale ethnic killing would become a very real possibility.
For some, the collapse of Iraqi society into Hobbesian mayhem is inevitable no matter how many American troops remain on the ground. A few argue that disintegration of the Iraqi state actually would bring about the national catharsis that seems so elusive today — that absolute civil war would be a greater good.
This cold calculus ignores the very real impact of an American withdrawal on the people we now protect. Any debate that does not consider the bloody reality we would leave in our wake does a disservice to the people of Iraq and the troops who have fought so hard to defend them.
Ben Connable is a major in the Marine Corps.

This next article shouldn’t be a surprise after the judge affair with the Saddam Hussein in which the judge declared that Hussein wasn’t a dictator (this judge was later replaced).

Iraq’s Legal System Staggers Beneath the Weight of War
By MICHAEL MOSS
BAGHDAD — In a cavernous room that once displayed gifts given to Saddam Hussein, eight men in yellow prison garb sat on the floor facing the wall, guarded by two American soldiers.
Among them was Abdulla Sultan Khalaf, a Ministry of Industry employee seized by American troops who said they found 10 blasting caps and 100 sticks of TNT. When his name was called, he stood, walked into a cagelike defendant’s box and peered over the wooden slats at a panel of three Iraqi judges of the central court.
The judges reviewed evidence prepared by an American military lawyer — testimony from two soldiers, photographs and a sketch of the scene.
The evidence went largely unchallenged, because Mr. Khalaf had no lawyer. The judges appointed one, but Mr. Khalaf had no chance to speak with him. Mr. Khalaf told the judges that the soldiers were probably chasing a rogue nephew and denied that the explosives were his or ever in his house. “Let me examine the pictures,” he insisted. The judges ignored him. His lawyer said nothing, beyond declaring Mr. Khalaf’s innocence. The trial lasted 15 minutes.
The judges conducted six trials of similar length and depth before lunch, then deliberated for four minutes. Five defendants were found guilty; one was acquitted. “The evidence is enough,” Judge Saeb Khorsheed Ahmed said in convicting Mr. Khalaf. “Thirty years.”
The United States established the Central Criminal Court of Iraq three years ago, envisioning it as a pillar of a new democracy. But like the faltering effort to create effective Iraqi security forces, the system for detaining, charging and trying suspects has instead become another weak link in the rule of law in Iraq, according to an examination of the justice system by The New York Times.
The stakes are rising. The court has begun sentencing American-held detainees to death by hanging, 14 this year.
Almost every aspect of the judicial system is lacking, poorly serving not just detainees but also Iraqi citizens and troops trying to maintain order.
Soldiers who have little if any training in gathering evidence or sorting the guilty from the innocent are left to decide whom to detain. The military conducts reviews to decide whom to release, yet neither Iraqi detainees nor defense lawyers are allowed to attend, according to military documents and interviews.
Tens of thousands of detainees have been released by the Americans, often under political pressure from the Iraqis, but American soldiers complain they are apprehending many dangerous insurgents again and again. At the same time, detainees are held for long periods by the Americans without being charged, in some instances for as long as two years.
Even detainees who are formally charged and brought to the Iraqi court have little ability to develop a defense against evidence collected by American lawyers and soldiers. Most defense lawyers are appointed by the court and paid $15 per case. Even if they are so inclined, they are largely unable to gather evidence because of the threat of violence. One American lawyer said that in 100 cases he handled, not one defense lawyer had introduced evidence or witnesses.
The central court resembles the narrow end of a funnel crowded with suspects captured by American and Iraqi forces. No figures are available on prisoners held by Iraqis, but the Americans have held about 61,500 over the past three years and are now holding 14,000, military officials say. Roughly 3,000 have been charged and tried in the Iraqi court.
The court acquits nearly half of the defendants, but both Americans and Iraqis involved in the process say that political interference, threats from militants and the judges’ fear for their lives weigh heavily in many verdicts. The military has found housing in the protected Green Zone for only 12 of the 30 judges on the criminal court. The others commute to work.
“The most fundamental thing that we need to do in Iraq is establish the rule of law,” said Mark Waller, an Air Force Reserve major and deputy district attorney in Colorado, who spent four months this year in Baghdad helping to prosecute detainees. “It’s the cornerstone of a civilization. Without it you have anarchy. And we are falling short.”
Beyond the scandal at Abu Ghraib and the trial of Mr. Hussein, the system of holding and prosecuting detainees in Iraq has largely escaped public scrutiny. The day-to-day details of these government operations emerged from interviews with American and Iraqi officials, former detainees, a review of military records and a visit to proceedings in the Iraqi court normally closed to the public.
A classified Pentagon assessment completed in June of the American effort to strengthen Iraqi justice found one sign of progress: the prosecution of former senior government officials. Everything else, from training judges to building court capacity to minimizing civil rights abuses by Iraqi security forces, had fallen behind, according to the assessment by the National Security Council.
“Iraq’s judiciary is technically independent but unable and unwilling to assert itself or provide a balance to Iraq’s powerful political parties,” it said. “The criminal justice system is overloaded and lacks the capacity to consistently process those arrested and/or detained.”
Even though the American military helps to prosecute cases in the court, it does not always release detainees whose cases are dismissed, officials acknowledged in interviews. Maj. Gen. John D. Gardner, the commander of American detainee operations, orders those defendants held if the military believes they remain a threat. According to military officials, this has happened approximately 60 times, or in about 4 percent of the dismissed cases.
American officials said that within the confines of the nascent Iraqi justice system they were striving to protect American troops, while promoting due process. “Our goal is to balance detaining the people who are the real threats, and releasing those who are not, and that’s a fine line,” General Gardner said.
The justice system is most troubling for people like Intisar Jaafar. Her 29-year-old son, Laith al-Ani, was taken from his home in Baghdad by American troops in October 2004 in a search for weapons his mother said they never found. The military said he was a “security detainee” but would not elaborate.
Mr. Ani, a women’s clothing merchant, is being held at Camp Bucca in the desert of southern Iraq, his relatives said. They have made the daylong trip to visit him, but it brought them no more information about when he might be charged, released or brought to court.
In a recent letter he drew a caged heart reaching out to his wife and two children, and wrote, “I hope I can be dust in the storms of Bucca so that I can reach you.”
A Grand Vision
At 9 a.m. on a recent Monday, two United States Army trucks guarded by seven Humvees pulled to a halt in central Baghdad, just outside the protected Green Zone.
The soldiers fanned out with their rifles ready as a man in a black hood and yellow prison garb emerged, followed by more than 30 others, their hands and feet shackled.
The men shuffled down two flights of stairs into the Central Criminal Court.
The courthouse did not exist before the war, with most criminal cases left to provincial judges. In 2003, the Bush administration decided Iraq also needed a central court — like the American federal judiciary — for major national crimes like significant corruption or violence.
The vision was grand.
“Evil doers will face justice in honest and fair Iraqi courts,” L. Paul Bremer III, the administrator of the Coalition Provisional Authority, said in an address to the Iraqi people in November 2003.
Zuhair Maliky, an Iraqi lawyer tapped by the Americans as a chief judge, said: “It was to be a model for all of the courts around the country, where students would come to read the records and learn how courts work. There was to be a library, a conference room where judges would give lectures, and computers where court records would be kept.”
But that vision has run into the realities of Iraq — the insurgency, a lack of resources and politics.
Security concerns have effectively closed proceedings to the public. Court records are not kept on computers, but mostly in paper files held together by yarn. And the daily proceedings, observed by a reporter, are hardly a model of deliberative justice.
That day’s defendants came from two American detention camps and from sundry Iraqi jails.
Shortly past 10 a.m., two American soldiers escorted Hussan Lotfi Abdulla upstairs to a judge’s office for a preliminary hearing. Mr. Abdulla, who had been in detention for nearly two years, sat next to his court-appointed Iraqi lawyer, whom he had never met.
Facing them in front of the judge’s desk was Capt. Lisa Gorog, a military lawyer who had come to Baghdad to help the military unit that runs the American detention operations in Iraq.
The unit is doubling its legal staff to more than 100 lawyers and aides, drawn largely from the military and prosecutor’s offices throughout the United States.
Even for experienced prosecutors, identifying strong cases among the mass of detainees is difficult given the quality of the evidence. Capt. Matt McCall, who focuses on men like Mr. Abdulla who have been detained in the volatile Anbar Province in western Iraq, said he had to sift through the files of 50 detainees to find 2 that he thought could be convicted. The rest were left in detention either because the soldiers who captured them were not readily available as witnesses or because the evidence was too weak, he said.
The case against Mr. Abdulla presented its own challenges. The one-page case summary prepared by Captain Gorog for the judge said Mr. Abdulla was detained on Jan. 27, 2005, when American soldiers grew suspicious of the taxi in which he was riding. When they forced it to stop, a man got out and tossed a grenade, which did not explode. They killed the man, and searched the taxi where they said they found rocket-propelled grenades, launchers and armor-piercing ammunition.
But Mr. Abdulla had another problem. He is Syrian but had no passport when he was detained. He faced at least 15 years in prison if Captain Gorog could show he had come to Iraq illegally to fight.
After the judge asked some perfunctory questions, Captain Gorog jumped in.
“Why did you come to Iraq?” she asked through an interpreter.
“For work and study,” he replied.
“Why did you come to Ramadi?”
“To visit a friend.”
“Didn’t you know the man throwing the grenade?”
“No. I heard the explosions, but I was lying on the ground.”
“How did you know it was a grenade?”
“The investigator told me.”
“He was right there! Didn’t you see the incident?”
“I was handcuffed on the ground. I didn’t see it.”
Mr. Abdulla’s lawyer remained silent. The judge, who reserved judgment on whether Mr. Abdulla would be tried, asked the clerk to write a one-page summary of the hearing, which the lawyer signed without reading.
In the hall later, Mr. Abdulla’s lawyer, who asked not to be identified for fear he would be killed, said he had been given the case just moments before the hearing and would have liked to have met with Mr. Abdulla, “to know how to defend him.” But he said lawyers had stopped asking to meet with American detainees because judges had denied their requests.
“They said it’s the Americans who don’t allow this,” the lawyer said. “It’s in order that we don’t dictate what they say.”
American detention officials denied that was their policy but said it was difficult to arrange for defense lawyers to meet defendants either at detention camps or at the courthouse before the proceedings.
Although Iraq has an inquisitorial system in which judges are empowered to investigate, question witnesses and elicit evidence, defendants have a constitutional right to a lawyer. “We can’t imagine a fair judiciary system without a defense lawyer where he can practice his duty,” said Diya al-Saadie, who until this month ran the Iraqi Bar Association.
Karen Hanrahan, an international law expert who was the State Department’s rule-of-law coordinator in Iraq until recently, devised a plan to create a public defender system to train and pay defense lawyers. She said it was never financed in part because judicial planning was dominated by American prosecutors who took a dim view of defense lawyers.
American lawyers have been brought in to help prosecute cases. Iraqi judges have been flown to Prague and The Hague for workshops. But, Ms. Hanrahan said, “there was no effort to train and work with lawyers.”
Charles W. Larson Sr., the United States attorney for the Northern District of Iowa and an adviser in Iraq in 2004 and 2005, said his team was mindful of defense lawyers but chose to focus on helping judges because “it is a judicially driven system.”
Rapid-Fire Proceedings
By late morning, the courthouse halls bustled with court personnel, private security guards, Iraqi police, American soldiers and their detainees.
At 11:30 a.m., Judge Saeb Ahmed, the chief judge, entered a large courtroom and took the middle of three seats at the dais. Behind him, the scales of justice had been painted on the wall. Black Hawk helicopters passed outside the windows. Explosions could be heard in the distance.
Judge Ahmed and his colleagues had a full docket, but they worked quickly.
The first two men to stand trial were detained by Iraqi security forces on Jan. 3, 2005, in connection with several Baghdad attacks, one on a hospital. Their families had hired a lawyer, Abdul Ami Ali, for $2,500, and with a flourish he told the judges that he had learned that one of the alleged attacks never occurred. He produced a letter from the hospital administrator to prove it. Judge Ahmed added the letter to the defendants’ file, ended the trial and called the next case.
Sad Mahmud Saleh, a 24-year-old truck driver, was accused by American soldiers of having contraband weapons, including a hand grenade, in his house. His trial consisted largely of Judge Ahmed asking questions. At one point the judge stood and raised his voice.
“Are you a terrorist?” he asked.
“No,” Mr. Saleh replied, standing in the tall wooden defendant’s box.
“Are you involved in any organization?”
“No.”
“Why did they bring you here?”
Mr. Saleh’s lawyer, appointed to represent him just as the trial began, simply asked for mercy.
After four more trials, each lasting about 15 minutes, the judges adjourned and cleared the courtroom. It was 1:05 p.m.
At 1:09, they reopened the doors and announced their verdicts and the sentences.
The American military lawyers had mixed results.
Saif Raad Mohammed, who was detained in January 2005 when soldiers said they found a machine gun with a silencer in his home, was sentenced to six years in prison.
The judges issued a string of long sentences, including 30 years for Mr. Saleh in the hand grenade case, and 30 years for the hospital attackers.
The defendants’ lawyer was devastated, saying he figured that the hospital administrator’s letter would have at least prompted the judges to investigate. Judge Ahmed declined to discuss any of that day’s trials or make available any court records. But The Times obtained the judges’ one-page written decision in the hospital attack case. It made no mention of the administrator’s letter.
The judges dismissed the case against a man accused of joining an armed group after the Iraqi prosecutor told them there was not sufficient evidence.
He smiled as his verdict was read, but he did not leave the courthouse a free man. All the American-held detainees were taken back to the detention center. Those found guilty would be sent to Iraqi prisons. The man whose case was dismissed would be reviewed again by American military officials, who would determine whether to release him.
Overcrowded Stockades
The population of American-held detainees now crowding the central court and the prison camps grew quickly and unexpectedly. Shortly after Mr. Hussein was toppled, American soldiers began pulling looters and other troublemakers off the street.
Judge Gilbert S. Merritt, a federal judge from Nashville, Tenn., who was in Baghdad to help rebuild the justice system, said he asked American officials, “What are you going to do with these people now that you’ve picked them up?”
“They were holding them, here and there in stockades, and most were taken to Abu Ghraib, the only facility that the Americans knew about,” Judge Merritt said.
When the insurgency took hold, the trickle of petty thieves turned into a torrent of people suspected of being terrorists and captured fighters. By the time the Abu Ghraib abuse scandal was disclosed in the spring of 2004, the Americans were holding about 7,500 people.
Largely unnoticed, the flood of detainees has only increased since then. But neither the Americans troops, who were fighting an insurgency for which they were not prepared, nor the newly reconstituted Iraqi police, had a comprehensive plan for handling them.
Untold numbers of detainees have also been captured and questioned by American soldiers, then turned over to Iraqi security forces who often hold prisoners in miserable conditions.
Early last year, a United States Army unit in Baquba found 450 people, including a few women and children, living in hot, fetid cells built for 150. The Iraqis seemed to have little idea where the detainees had come from and had no means to adjudicate their cases. Lt. Col. Robert Risberg, an officer in the unit, said they discovered that roughly a third of the prisoners had originally been captured by the Americans.
“A majority were people lost in this bureaucratic mess, and it took a while to straighten it out,” he said.
The development of the American detainee operation in Iraq runs contrary to the Pentagon’s practice of avoiding the role of jailer in a foreign country and instead, working to speedily transfer prisoners of war to allies. Maj. James F. Gebhardt, a retired Army historian, said this doctrine stemmed from the Korean War when murderous gangs and infiltrators ravaged the American detention camps.
But in Iraq, where detainees were seen as potential sources of intelligence on the insurgency, the military built its own detention facilities and then put a team in charge that had little experience handling long-term detainees. After the Abu Ghraib scandal in 2004, a new detention unit — Task Force 134 — was formed, but it started with a staff of just five to manage facilities holding 5,000 detainees. By the following summer the number had doubled to 10,000.
With the closing of Abu Ghraib in August, the Americans are holding its detainees mainly in two prisons that at times have been filled beyond capacity: Camp Bucca, a sprawling complex in southern Iraq, and Camp Cropper near the Baghdad airport.
Military commanders have come under political as well as legal pressure to keep detainees moving through the system. Iraqi officials have persuaded the Americans to release detainees, saying the long detentions are contributing to unrest and violence.
The military conducts reviews in the camps to screen detainees for release. Many have been swept up at the scene of bombings or other violence, and the detention camp boards have recommended releasing as many as 60 percent of the detainees whose cases they reviewed.
Officials have sought to tighten the evidentiary standards used in deciding whether to detain suspects. Last year, for example, Maj. Gen. William H. Brandenburg, then the task force commander, became concerned about a swipe test that soldiers used on suspects to detect gunpowder. The test was so unreliable that cigarette lighter residue and even a common hand lotion would register as gunpowder.
Military officials have another reason to thin their camps. The longer people remain in detention, the more likely they are to be hardened by the experience, officials say.
“We know that inside the compounds, individuals are trying to recruit and promote a fundamentalist network, and we are trying to mitigate that by fighting a small counterinsurgency,” General Gardner said. In an effort to thwart recruitment, detainees are grouped by level of ideology and are given moderate Arab newspapers.
But releasing detainees carries its own risk. Officials estimate that 6 percent of released detainees, or about 2,800, have been recaptured, some in battles with American troops. Soldiers in Mosul were outraged last year to discover that their commander, Lt. Col. Erik Kurilla, had been shot by a man who was set free by the Iraqi court two weeks earlier.
In September, soldiers captured a man suspected of fighting with Al Qaeda in a raid in western Iraq only to find that he was first caught in September 2005 and released in June in the Iraqi government’s unity and reconciliation program, according to military records and interviews.
The release of detainees is such a concern for Americans that the military has put the onus on soldiers to act like police officers and collect evidence. An instructional guide warns that without “sufficient evidence for prosecution, the detainee will be released” and “may attempt to attack soldiers again.”
The guide instructs soldiers to take witness statements, document tests for explosives and record serial numbers of contraband weapons. It also tells soldiers how to use photographic evidence to its best effect.
When suspects are caught away from or fleeing a crime scene, like a bomb or a weapons cache, the guide tells soldiers to take pictures of the suspects at the scene. For example, the guide lays out this chain of events: “Your squad conducts a raid on a house, in the house you find 2 adult males. 50 meters from the house you find a large weapons cache buried 2 feet underground.”
Among the instructions: “Take pictures of the individuals with the cache.”
A Case Falls Apart
On May 12, 2005, a car bomb exploded near a market in southern Baghdad, killing at least 17 people, and the Wolf Brigade flexed its might.
The brigade, an Iraqi commando unit, stormed a neighborhood in eastern Baghdad and arrested four men. By the next day, Iraqis could see results for themselves.
The four men appeared on “Terrorism in the Grip of Justice,” a prime-time television show broadcast by Iraqiya, which featured commando interrogations. They confessed on the air.
But one year later, the four men, who were held in Iraqi detention and faced death by hanging, walked out of the central court, with all charges dismissed.
Their story, pieced together through interviews and court records, is one of a narrow escape from Iraq’s fractured system of justice. It is also the story of an unlikely civil rights lawyer who beat the system for the four men and a handful of others.
Faraj Mahmoud, 42, a grocer, was not totally shocked when he and his two brothers were arrested that night, with a friend.
Their families had emigrated from Palestine after the 1948 war, and like other Sunni refugees had been favored by Mr. Hussein over Iraq’s own Shiite peoples.
The Wolf Brigade, an Interior Ministry unit made up mostly of poor, young Shiites from Sadr City, had developed a reputation for singling out Palestinians and using torture to extract confessions. The unit’s commander, Abu Walid, who questioned the men on the show, has denied the charges.
In recent interviews, the four men, who have fled Iraq, said they had been tortured in a variety of ways. “ ‘We will beat you until your meat is cooked,’ ” one of the men, Amer Mahmoud, 27, an auto mechanic, said an interrogator had told him.
Faraj Mahmoud, who had married six days before he was captured, said he was stripped and hanged from the ceiling. An electric prod applied to his genitals made his body bounce off the walls, he said. Hania Mufti, a Human Rights Watch official with extensive knowledge of Iraq’s jails, said other prisoners had described similar abuses.
The men said their captors also threatened to fetch their families, and they saw naked women and girls being walked through the jail. That is when they all signed confessions.
Among those watching the television show the night the men confessed was Abdul Razzaq, a 31-year-old Iraqi lawyer, and he agreed to take the case without a fee.
Mr. Razzaq handled mostly divorces before the war. After the invasion he began representing mostly criminal defendants. It took him two and a half months to find the four men in the Iraqi detention system. A jailer demanded $50 to lead him to their cell, he said. It smelled so bad that the jailer wore a mask. “All four of us started to cry,” Amer Mahmoud said. “The lawyer started to cry. We didn’t want to let him go.”
Mr. Razzaq picked apart the case. For starters, one of the Mahmoud brothers had confessed to hiding 600 pounds of TNT beneath the backseat of a car, an Opel, that has no space for such a load.
The lawyer found 14 witnesses who he said could provide alibis for the men. He got statements from the police saying that a string of other attacks to which the men confessed had never taken place.
He also went after the man who had directed the Wolf Brigade to his clients. The court eventually agreed that the man, who had confessed as well, was mentally incompetent.
Along the way, Mr. Razzaq said, the Central Criminal Court was typically frustrating. Clerks asked for money to hasten the preparation of judicial orders, a practice that other lawyers have also alleged. The judge who held the preliminary hearing grew impatient, ordering the four men returned to jail for more questioning, he said.
The trial was still months away when Mr. Razzaq received a note, signed by the families of victims of the car bombing: “This is the last notification to you, for you will be a victim and a cheap sacrifice goat for terrorists. Do not defend those atheistic Palestinian criminals and their followers (the worshipers of the atheist, Saddam), or else your destiny shall be death for sure.”
On May 21, 2006, a three-judge panel ordered the release of all four men and their accuser. Citing their confessions at the hands of the Wolf Brigade, the judges wrote, “If it is assumed that the initial confession was correct, it was not supported by any convincing evidence.”
Faraj Mahmoud said: “We couldn’t believe our feet were touching the ground. It seemed like there were a thousand people at home, singing. No one expected us to get released.”
Two days later, the men and their families fled Iraq. Mr. Razzaq then won an acquittal for a Syrian truck driver detained for not having a passport. But the man was kidnapped as he emerged from the prison with three other freed prisoners and was never seen again, Mr. Razzaq said.
He blames himself. “If I had not gotten him out of prison, he would still be there, alive,” he said. Discouraged about practicing law in Iraq, Mr. Razzaq fled the country in October.
The Military Under Pressure
Many of the cases the American military has brought to the Iraqi central court involve multiple defendants. And the evidence connecting them to a specific attack or other crime often varies widely. As a result, despite many victories for the military in court, about half of the 3,000 American-held detainees who have gone to trial have walked free.
There is much finger-pointing about why prosecutions fail.
“We’re in a wartime situation where judges unfortunately have to be concerned with their livelihood and their lives,” said Judge John J. Carroll III, a federal judge from North Carolina, who was a military lawyer in Baghdad this year. “We’ve had cases where the detainees should have been convicted and weren’t because of political pressure, from the government and even from terrorist groups, indirectly.”
Qasim Hassan al-Aboudi, the manager of legal and media affairs for the Higher Judicial Council in Iraq, blames the Americans for bringing cases without the kind of evidence that Iraqi law requires.
“Your troops make many mistakes,” he said. “Sometimes they destroy the weapons without documenting them, and they put detainees in for a long time so that other detainees can coach them on what to say in court. We can see that criminals get away, but it’s not the judicial system’s fault. It’s the fault of the mistakes in gathering evidence. We have to respect the law.”
The military is starting to bolster its cases with forensic evidence, including fingerprints and bullet-shard analysis, as well as a video conferencing system that allows soldiers who have returned to the United States to testify in the Iraqi court.
Officials overseeing detention operations said they recognized the importance of defense lawyers, and in an effort to help detainees with their cases they are creating legal assistance centers at detention camps.
The gravity of the cases is increasing as the central court imposes more death penalties. Ten of the 14 American-held detainees sentenced to hang have been convicted since September, and all 14 are awaiting transfer to Iraqi executioners pending an automatic review by Iraq’s court of appeals. Mr. Hussein, who has been sentenced to die, was convicted in a special tribunal.
The military declined to identify the men facing death but said they included a man from Saudi Arabia who admitted traveling to Iraq to fight, a Tunisian who participated in dozens of attacks on American troops and three members of a kidnapping ring.
Also awaiting death is Mohammad Munaf, a 54-year-old man born in Iraq who became an American citizen in 2000. He was convicted on Oct. 12 of helping to arrange the kidnapping of three Romanian journalists, who were released unharmed.
Given the state of the justice system in Iraq, however, using the death penalty concerns even one of the American prosecutors who helped bring cases against detainees.
“There are a lot of bad guys out there trying to kill U.S. troops and I want nothing more than to stop those guys,” said Mr. Waller, the Colorado deputy district attorney and Air Force Reserve major. But he said the Iraqi court system needed safeguards to prevent innocent defendants from being sent to the gallows.
“If I had the right guy and I had the right case I think I’d be O.K. with that,” Mr. Waller said. But, today in Iraq, he said, “I don’t think that situation would present itself.”