Have you heard that Attorney General Eric Holder has appointed tough federal prosecutor Patrick Fitzgerald to take over a months-old investigation into whether defense lawyers associated with the American Civil Liberties Union illegally compromised CIA interrogators’ identities?
The Fitzgerald appointment, mentioned in passing by The Washington Times on March 15 and more fully reported by Newsweek on March 19, has at this writing been virtually ignored by almost all other news organizations. But it raises interesting questions.
The lawyers reportedly had private investigators surreptitiously take photos of men thought to be CIA interrogators, and then showed them to at least one of the four men accused along with Khalid Shaikh Mohammed of conspiring to launch the 9/11 attacks. In at least one instance, photos were said to have been found in a detainee’s Guantanamo Bay cell.
The tapping of Fitzgerald, the U.S. attorney in Chicago, may suggest that the Justice Department is taking very seriously an inquiry into the photo situation that was first reported last August by The Washington Post. Fitzgerald is an exceptionally aggressive prosecutor who is known for his investigation of Bush administration leaks of then-CIA agent Valerie Plame’s identity and his corruption indictment of former Illinois Gov. Rod Blagojevich.
The use of CIA operatives’ photos by ACLU-funded defense lawyers reinforces my concern that conventional rules of criminal justice and legal ethics — which tend to support what the lawyers reportedly did — may not be the best way to deal with mass-murder terrorists who wage war against the United States.
"It is basically subject to perception. If the detainee dies you’re doing it wrong."
This was perhaps the most chillingly outrageous, widely quoted statement by a government official to be aired by Senate Armed Services Committee Chairman Carl Levin, D-Mich., at hearings last summer and in the committee’s December 11 report on abuse of detainees by U.S. forces.
But the quoted official, CIA lawyer Jonathan Fredman, told the committee on November 18 that he had made no such statement. In fact, Fredman added in a heretofore confidential, five-page memo, he had stressed at the 2002 meeting with interrogators at the Guantanamo Bay detention facility described in the Levin committee’s report, "Interrogation practices and legal guidance must not be based upon anyone’s subjective perception" (emphasis added) but rather upon "definitive and binding legal analysis."
The overall effect of selective reporting by many critics has been to paint honorable former and current officials as a bunch of sadistic war criminals.
Remarkably, the 18-page report issued by the committee (headed "Executive Summary") does not mention Fredman’s vehement — and, in my view, quite plausible — denial of the horrifying words attributed to him in a document of debatable reliability that the report, and Levin, have treated as established fact.
David Bowker vividly remembers the first time he heard the phrase. A lawyer in the State Department, Bow-ker was part of a Bush administration "working group" assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptab
David Bowker vividly remembers the first time he heard the phrase. A lawyer in the State Department, Bow-ker was part of a Bush administration "working group" assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptable answer. One day, Bowker recalls, a colleague explained the goal: to "find the legal equivalent of outer space"–a "lawless" universe.
As Bowker understood it, the idea was to create a system where detainees would have no legal rights and U.S courts would have no power to intervene.
"These are people picked up off the battlefield in Afghanistan. They weren’t wearing uniforms … but they were there to kill." – President Bush, June 20, 2005
"These detainees are dangerous enemy combatants….They were picked up on the battlefield, fighting American forces, trying to kill American forces." – White House press secretary Scott McClellan, June 21, 2005
"The people that are there are people we picked up on the battlefield, primarily in Afghanistan. They’re terrorists. They’re bomb makers. They’re facilitators of terror. They’re members of Al Qaeda and the Taliban….We’ve let go those that we’ve deemed not to be a continuing threat. But the 520-some that are there now are serious, deadly threats to the United States." – Vice President Cheney, June 23, 2005
"These are people, all of whom were captured on a battlefield. They’re terrorists, trainers, bomb makers, recruiters, financiers, [Osama bin Laden’s] bodyguards, would-be suicide bombers, probably the 20th 9/11 hijacker." – Defense Secretary Donald Rumsfeld, June 27, 2005
These quotes are representative of countless assertions by administration officials over the past four years that all — or the vast majority — of the prisoners at Guantanamo Bay are Qaeda terrorists or Taliban fighters captured on "the battlefield."
The assertions have been false. And those quoted above came long after the evidence of their falsity should have been manifest to Bush, Cheney, Rumsfeld, and their subordinates.
The first of the ad hoc military "commissions," which finally held its first pretrial hearings at the Bush administration’s Guantanamo Bay prison camp in late August, has been something of an international embarrassment. We can do better.
President Bush seems likely to lose the first big war-on-terrorism battle that has come before the Supreme Court. He richly deserves to lose, for he has claimed absolute, unaccountable power to lock up more than 600 foreigners as "enemy combatants" in his prison camp at Guantanamo Bay, potentially forever, with no semblance of a fair hearing for those who claim to be innocent civilians.
"The only thing I know for certain is that these are bad people." So said President Bush during his July 17 press conference with British Prime Minister Tony Blair, when a reporter asked whether they had concerns about "not getting justice" for some 660 Muslim prisoners from 42 countries languishing in 8-by-8-foot cells at Guantanamo Bay.
JIM LEHRER: Margaret Warner talked with Deputy Attorney General Larry Thompson last week, beginning with why so much of the legal proceedings have been conducted in secret.
LARRY THOMPSON: Nothing that we have been done has been enacted in secrecy. Every measure that we have undertaken is out in the open. Every measure that we have undertaken has had the sunlight of public attention. And almost all measures are not done unilaterally by members of the Department of Justice. These measures are subject to judicial review by judges and other judicial officers.
MARGARET WARNER: But let me just ask you for instance, the chief immigration judge, who just explained to our viewers also is part of the Department of Justice, Michael Creppi, issued an order saying, and I’ll just read it to you, that these hearings, these deportation hearings, were to be held in secret, "no visitors, no family, no press, not even confirming whether it’s on the docket."
LARRY THOMPSON: The only thing that has been secret, if you will, has been the list of the individuals and the actual hearing itself. But the fact that an individual was taken into custody, the fact that he or she was in a particular detention facility, that was open to the public, if you will, to their friends, to their relatives, they could make phone calls.
This was not done in the dark of night. People do not disappear in this country and we have really not done anything in secret, if you will. The actual administration of justice with respect to some of these cases was done, what we call in camera, because of national security and other concerns, and even that has been subject to judicial review, but nothing has been done in secret.
Having committed no crime-indeed, without any claim that there was probable cause to believe he had violated any law-[Osama] Awadallah bore the full weight of a prison system designed to punish convicted criminals as well as incapacitate individuals arrested or indicted for criminal conduct…. [He was] repeatedly strip-searched, shackled whenever he [was] moved, denied food that complies with his religious needs … prohibited from seeing or even calling his family over the course of 20 days and then [pressured into] testifying while handcuffed to a chair. -U.S. District Judge Shira A. Scheindlin of Manhattan, April 30
The unfortunately named Osama Awadallah was not the only one. Not by a long shot. Despite the unprecedented secrecy imposed by Attorney General John D. Ashcroft, evidence has mounted that his Justice Department has put hundreds of harmless Muslim men from abroad behind bars for far too long, treated many of them worse than convicted criminals, and arguably violated their constitutional rights-all without finding enough evidence to charge a single one of those arrested since September 11 with a terrorist crime or conspiracy.
One federal judge has ruled illegal the government’s use of the "material witness" statute to incarcerate Awadallah. Another has found unconstitutional Ashcroft’s effort to impose blanket secrecy on deportation proceedings. A New Jersey judge ordered release of the names of detainees in that state. (The Justice Department is appealing all of these decisions.) Judges have also questioned other government actions, and the media have published numerous accounts of gratuitous mistreatment and verbal and physical abuse. It’s time to shed the sunlight of public hearings on these detentions, which have swept up between 1,100 and 2,000 Muslim foreigners (if not more), the vast majority of whom have eventually been deported or released as harmless.
The Bush administration has a problem for which it has suggested no good solution: Although hundreds of the suspected Al Qaeda members being held at Guantanamo and in Afghanistan appear to be would-be mass murderers, few seem to have been individually implicated in provable war crimes or terrorist acts. Should the Pentagon release such people-as domestic law enforcement officials would be legally obliged to do-and run the risk that they will turn to killing as many of us as they can? Or should it stretch the available evidence and the law as far as necessary to come up with some criminal charge to bring against all who seem dangerous?