Padilla Case Tests the Patriot Act

The government’s 11th-hour decision to dump the ridiculous case of accused ”dirty bomber” Jose Padilla on the criminal court to which it should have been referred nearly four years ago is Exhibit A against the Patriot Act as currently written.

The Padilla case is justification for the need for supervision, oversight, and judicial examination of how the government uses extraordinary powers in extraordinary times. Precisely because terrorism is an elusive and therefore especially dangerous enemy, it is doubly important that the government behave responsibly and that its actions receive scrutiny.

Before the rudderless, dysfunctional Congress limped out of town last week, this was the principle behind what would have been a filibuster against an extension of the Patriot Act’s major provisions. From the left and right — uniting senators as diverse as Idaho’s Larry Craig and Wisconsin’s Russ Feingold — the purpose of the filibuster would have been to review at least a few provisions, affecting individual rights and freedom, of the law that was enacted in such unseemly haste in the aftermath of the 9/11 attacks.

There’s still a chance of success when Congress returns, and the Padilla case is a wonderful example of why supervision is always a good idea where the power of the state is involved.

The Bush administration dumped the case it once trumpeted rather than face Padilla’s diligent attorneys before the Supreme Court on a basic question, which they framed with commendable precision: ”Does the president have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?”

The administration was facing a Monday deadline for making its own legal case to the court for the extreme proposition that any American could be held merely on its say so that the person was ”an enemy combatant” in an undeclared war.

To add outrage to a constitutional question with enormous implications, politics has polluted this matter from the instant Padilla was seized upon arrival at Chicago’s O’Hare Airport in the spring of 2002, when terrorism fears were still easily inflamed. In a grotesque misuse of his office, then-attorney general John Ashcroft had taken time out during a Moscow visit to hold one of those theatrical press conferences for which he became infamous, designed to portray the apparent Islamist radical as evil incarnate. Ashcroft and his aides did this via one phrase — dirty bomb — that suggested the apprehension of someone intent on exploding a device with nuclear components capable of causing mass death.

As an alleged enemy combatant by executive fiat, Padilla was whisked away to military detention, and the government vigorously fought efforts to get him legal representation or to have his case heard in public by a judge. Technically, its argument was that any American could be held in secret and without legal proceedings simply on the unexamined word of a government official that he was ”the enemy.”

As has happened before, however, the Bush people blinked as the prospect of a court hearing became more likely. In secret over the weekend, Padilla was transferred to Justice Department control. Now he is charged with working overseas with extremists over the last dozen years to support terrorism. He could still get life in prison if convicted.

Nevertheless, despite all that Ashcroft hyperbole, administration officials are now blithely claiming that the evidence for a specific ”dirty bomb” conspiracy was not worthy of consideration by a trial court after all. The rest of us are supposed to accept its explanation and move on.

Instead, the fitting punishment should be some rewriting of the Patriot Act. Once again, the Bush people are arguing that investigations that resemble fishing expeditions should be tolerated without oversight, judicial or otherwise. The administration wants unfettered power to go after records held by institutions (like hospitals and libraries) in pursuit of suspects or even simply for broader investigative purposes. More alarming, the administration wants unfettered power to send these institutions what are called National Security Letters, not only demanding personal information about citizens and illegal immigrants alike but also insisting that the fact the letters have been sent remain secret under penalty of prosecution.

In confirming a Washington Post story that some 30,000 of these letters have been dispatched since 9/11, officials are unable to cite a single case that justified such a broad dragnet.

The idea that this kind of behavior in a democracy should require some showing to an impartial party of some reason to suspect something is hardly far-fetched and worthy of inclusion in the Patriot Act. It could be called the Padilla Amendment.

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Will the US Seize the Opening for Troop Withdrawal?

The surprising degree of consensus reached by the main Iraqi factions at the Arab League-orchestrated Reconciliation Conference in Cairo last weekend sharply undercuts the unilateral, guns-and-puppets approach of the Bush administration to the deteriorating situation in Iraq. The common demand by Shia and Kurds as well as Sunnis for a timetable for withdrawal of occupation forces demolishes the administration’s argument that setting such a timetable would be a huge mistake. Who would know better – the Iraqis or the ideologues advising Bush?

    Withdrawal of Occupation Forces

    From the final communiqué:
We demand the withdrawal of foreign forces in accordance with a timetable, and the establishment of a national and immediate program for rebuilding the armed forces … that will allow them to guard Iraq’s borders and to get control of the security situation …

    It is no accident that pride of place is given to the demand for withdrawal and that rebuilding the armed forces comes second. The Bush administration has insisted that it must be the other way around; i.e., that rebuilding the Iraqi army is precondition for withdrawal.

    Also, no accident was the conference decision to differentiate sharply between “legitimate” resistance and terrorism, and to avoid condemning violence against occupation troops:
Though resistance is a legitimate right for all people, terrorism does not represent resistance. Therefore, we condemn terrorism and acts of violence, killing and kidnapping targeting Iraqi citizens and humanitarian, civil, government institutions, national resources and houses of worship.

    For good measure, the final communiqué also demanded “an immediate end to arbitrary raids and arrests without a documented judicial order,” release of all “innocent detainees,” and investigation of “allegations of torture of prisoners.”

    The communiqué’s feisty tone was facilitated by the conspicuous and unexplained absence of US representatives. By shunning the conference, administration officials missed the beginning of a process that has within it the seeds of real progress toward peace. In addition to over 100 Shia, Sunni and Kurdish participants, the conference was attended by Egyptian President Hosni Mubarak and Algerian President Abdelaziz Bouteflika and the foreign ministers of Saudi Arabia, Syria, and Iran, but no US officials. The gathering was strongly supported not only by the Arab League but also by the UN, EU, and the Organization of the Islamic Conference.

    All in all, the various Iraqi factions, including interim government officials, displayed unusual willingness to make the compromises necessary to reach consensus on key issues – like ending the occupation. Key Sunni leader Saleh Mutyla had set the tone shortly before the conference, even though the US chose that time to launch “Operation Steel Curtain,” the largest foray into Sunni territory this year. Mutyla nonetheless indicated that the resistance would agree to a ceasefire in exchange for US withdrawal.

    Reaching Out to the Sunni

    One main purpose of the Reconciliation Conference was to engage the Sunni parties in the political process, and several of the Sunni participants have close ties with nationalist Sunni insurgents. Agreement that resistance is a “legitimate right” and the decision not to apply the word “terrorism” to attacks on occupation forces were two significant olive branches held out to the Sunnis. In recognizing the right to resist the occupation, the conference severely undercut Bush administration attempts to paint Sunnis as Saddam loyalists or al-Qaeda collaborators. In contrast, the Sunnis were made to feel like full-fledged partners in this newly-begun search for a peaceful solution sans occupation.

    Underscoring that point, Iraqi Interim President Talabani, an ethnic Kurd, made an unprecedented offer: “If those who describe themselves as Iraqi resistance want to contact me, they are welcome … I am committed to listen to them, even those who are criminals…”

    … and from Washington? Pouting

    The administration’s initial reaction seemed designed to put Talabani and other negotiation-welcoming Iraqi officials in their place. On Monday, addressing the issue of troop withdrawal, State department spokesperson Justin Higgins said: “Multinational forces are present in Iraq under a mandate from the UN Security Council. As President Bush has said, the coalition remains committed to helping the Iraqi people achieve security and stability as they rebuild their country. We will stay as long as it takes to achieve those goals and no longer.”

    Tuesday, another State Department spokesperson sang the same mantra. She also gave lip service to US support for “the ongoing transitional political process in Iraq,” but offered no explanation as to why Secretary Condoleezza Rice decided not to send representatives to the conference in Cairo. Is she still taking instruction from what former Secretary of State Colin Powell’s chief of staff calls the “Cheney-Rumsfeld cabal?”

    With a full-fledged peace conference scheduled for February, and elections in mid-December, Washington has little time to waste if it wants to influence the peace process begun at the Reconciliation Conference in Cairo. The demand for the withdrawal of occupation troops creates an opening. But with the “cabal” and neo-conservative policymakers still in charge, and jittery Democrats only slowly seeing the light, it is doubtful that the administration will seize the opportunity – even though doing so would probably enhance Republican chances in next year’s mid-term elections.

    This may change, however, because other pressures are mounting. America’s front-line Army and Marine battalion commanders in Iraq have gone behind Rumsfeld’s back to spill their guts to Senate Armed Forces Committee Chair John Warner. And Congressman John Murtha, retired Marine and a leading defense advocate on the Hill, has introduced a bill calling for troop withdrawal “as soon as practicable.”

    Taken together, that initiative, the mini-mutiny among field-grade officers, and the outcome of the Cairo conference could conceivably break the Gordian knot in Congress. In calling for withdrawal, Murtha has made a critical bridge from the hawkish center to a majority of Americans and to progressives on the Hill.

    A New Chapter? Maybe

    These recent events could open up a new chapter in the history of this war. Iraqi politics, US public opinion and military necessity all argue for the US to lend its support to the national reconciliation process. Yet, even faced with such an obvious chance to climb out of the Iraq quagmire, there is still little sign that the Cheney-Rumsfeld cabal will be able to veer from the prevailing predilection to self-destruct.

    It remains sad fact that the president’s current advisors are the same ones who brought us Iraq – and for reasons other than those given. It will take very strong pressure to get them to relinquish their twin vision of permanent military bases in Iraq and predominant influence over what happens to the oil there. The president is not likely to argue with the ideologues around him, nor has he shown any willingness to broaden the circle of his advisors. The only realistic hope may lie in the chance those Republican congressional candidates who already have beads of sweat on their foreheads can break through the White House palace guard and argue persuasively against the increasingly obvious folly of “staying the course.”

    Current Straws in the Wind

    It is too early to tell whether there is any substance behind recent statements by senior US officials expressing hope that US forces can be withdrawn sooner rather than later. The only straw in the wind with possible substance seems to be the unexplained delay in deploying the 1st infantry division brigade from Fort Riley that was earlier earmarked for arrival in Iraq before the December 15 election.

    For all intents and purposes, the administration position remains the same. Lt. Gen. John Vines, commander of coalition forces in Iraq, keeps warning of the consequences of a “precipitous pull-out,” repeating: “I’m not going to get into a timetable. It will be driven by conditions on the ground.”

    But, you say, Secretary Rice told FOX news on Tuesday “those days are going to be coming fairly soon when Iraqis are going to be more and more capable of carrying out the functions to secure their own future.” Is there not hope to be found in this? Might this be PR preparation for a drawdown sooner than foreshadowed in earlier, more rigid statements?

    Not necessarily. By all indications, Rice continues to take orders from the Cheney-Rumsfeld cabal. She is as weak a secretary of state as her predecessor. Even if she let herself be persuaded by seasoned professionals at State that, in present circumstances, she ought to be pressing for a troop drawdown driven by bargaining at the negotiating table rather than “conditions on the ground,” she would almost certainly feel it necessary to get permission from the cabal before taking this novel idea to the president. She would probably even have to get them to sign off on any plan to send official representatives to the February meeting in Cairo, should she come to realize that it makes sense for the US to insert itself into the emerging political process with Iraqi and other key players.

    As for Rumsfeld’s relatively optimistic spin on recent talk shows, there is little to suggest that this has any purpose other than to assuage growing pro-withdrawal sentiment in Congress and the population at large.

    Ray McGovern is a member of the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS). He worked as a CIA analyst for 27 years, and now works for Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC. An earlier version of this article appeared on TomPaine.com.

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The Bosnian Example for Iraq

 

Ten years ago today the leaders of three hostile ethnic and religious communities in a war-ravaged land reluctantly agreed — thanks to overwhelming U.S. military and political pressure — to stop fighting and live together under their country’s first-ever democratic government. The Dayton accords, which created a fragile confederation and ended Bosnia’s civil war, have been successful enough to earn two days of high-level ceremonies in Washington, including a gala luncheon tomorrow at the State Department hosted by Secretary of State Condoleezza Rice. It’s hard to avoid the comparison between the country deemed a quagmire in the 1990s and the one where the United States is bogged down today.

Start with the U.S. and other NATO troops who began arriving in Bosnia shortly before Christmas 1995. There were 60,000 of them at first in a country of 4 million, or more than twice as many per capita as now are deployed in Iraq. Ten years later they are still there — the American contingent left only a year ago. All sides agree they will have to stay on for years to come, since Bosnia’s police and army forces are still not ready to take over full responsibility for security. Billions have meanwhile been spent on reconstruction, under the supervision of a Western proconsul with the power to overrule the Bosnian government.

 

Despite all those years of heavy-handed occupation, the Western forces have never captured Bosnia’s foremost insurgents. Radovan Karadzic and Ratko Mladic, who together oversaw the deliberate murder of thousands of civilians, are still at large. Serb leaders in Bosnia only now are beginning to show some willingness to renounce the poisonous nationalism that caused the war. The current Bosnian Serb president, Dragan Cavic, reportedly has promised to call for Karadzic to surrender during this week’s events in Washington.

Like Iraq’s Sunnis, the Bosnian Serbs were forced to abandon a regime of genocide and domination by a punishing U.S. military campaign. Unlike Iraqis, however, the Bosnians were subjected to an equally forceful American diplomatic offensive. Their leaders, along with those of neighboring Serbia and Croatia, were sequestered at a military base in Dayton, Ohio, and browbeaten for 21 days by an international tag team led by one of the toughest and most capable U.S. diplomats, Richard Holbrooke.

Even then, the best that could be achieved was a deeply flawed plan for federalism that allowed the creation of Serb and Muslim-Croat ministates united by the weakest of national governments. There was a three-member rotating presidency, 14 ministries of education and 15 police agencies. The Serb statelet, at first, was little more than an appendage of its neighbor Serbia, then still an adversary of the West.

This week’s events are in part an effort to fix Bosnia’s constitution, after a decade-long timeout. The Serbs, who have resisted most, have been energetically worked over by both the Bush administration and the European Union; Undersecretary of State Nicholas Burns, the department’s third-highest official, has devoted a large slice of his time to it since the beginning of this year. Burns hopes the Serbs and other Bosnians arriving in Washington today will announce their acceptance in principle of constitutional reforms, including abolition of the tripartite presidency. By April, it is hoped, the Bosnian parliament will ratify amendments that could finally open the way to an effective national government, foreign investment and the prospect of eventual integration into the European Union.

So, in summary: Bosnia has had proportionately more Western troops than Iraq and more money for reconstruction. It has had aggressive high-level diplomacy by a unified transatlantic coalition, backed by both Democratic and Republican administrations in Washington. It has been given 10 years by those governments, which have repeatedly resisted the temptation to pull their troops out. Even so, it is only now that a new generation of Bosnian leaders is willing to consider the political compromises necessary to stabilize their country without foreign forces or high commissioners.

They will arrive in a Washington where, one month after the ratification of a similarly imperfect constitution in Iraq, Democrats are calling for a timetable to withdraw U.S. troops, and where even the Republican chairman of the Senate Armed Services Committee, John Warner, is hinting that Iraqis have 180 days to pull their country together. They will lunch at a State Department that has delegated the daunting work of forging an Iraqi compromise to its ambassador in Baghdad, with next to no help from the president or U.S. allies and no power to sequester anyone on a military base. The Bosnians will have a chance to hear both Democrats and Republicans talk, not about how to succeed in the latest American intervention but about how the other party is lying about it.

Perhaps they will conclude that their tiny Balkan country is far more important to the United States and its security than Iraq. That, anyway, is what the record shows.

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Call for Troops’ Removal Reverberates at Home

Situated at the junction of the Conemaugh and Stonycreek rivers, Johnstown is best known for the Great Flood of 1889, in which a 35-foot wall of water roared into town and killed more than 2,000 residents in 10 minutes.

But this week, the town that boasts “The Flood’s Over” in its promotional literature has a new distinction: It is the hometown of a hawkish congressman who is saying no to the Iraq war.

Democratic Rep. John P. Murtha — a Marine veteran of the Korean and Vietnam wars — on Thursday issued a dramatic call for withdrawal of U.S. troops from Iraq. And on Friday, in interviews with about two dozen of his Johnstown constituents, reaction was vigorous — much of it approving.

“We should never have been in there to begin with,” said Leo Ratchford, a white-haired retired steel worker walking down Main Street. “Those are religious factions fighting each other. Whoever’s the most vicious is going to win and take over the country.”

In front of the U.S. Post Office near Johnstown’s Central Park, Lynda Saintz bundled up against the 30-degree weather. “My son’s going to be deployed in Afghanistan,” said the 49-year-old housewife. “I’m against the war in Iraq. I’m against the war in Afghanistan. I’m scared because of my son. I’m scared because of every mother’s son.”

Not everyone hailed the congressman. On the website of the local Tribune-Democrat newspaper, http://www.tribune-democrat.com , many readers criticized Murtha.

And among those interviewed, several were angry at Murtha for what they viewed as a betrayal of U.S. troops and the president.

“We have to finish the job,” said Jim Belle, 48, a regular at Scott’s by the Dam, a bar reminiscent of TV’s “Cheers.”

“You don’t undermine the president at a time of war,” he added. “It’s bad for the troops.”

But Cindy McLachlan, wife of the bar’s owner, was in Murtha’s corner. “Bring them home,” she said. “It’s time.”

Murtha may have tapped into a well of public discontent in this community of 80,000. But it is not the type of antiwar sentiment one might hear at a rally organized by MoveOn.org, the online liberal advocacy group.

The weariness voiced about the war here sounds more rueful, expressing a sense that America once again had gone to war to do good only to be rebuffed by the intransigence of its enemies.

“When we first went in, I can’t say I was against it,” said Mary Cunningham, a Democrat who has lived in Johnstown for 22 years and swims with other seniors every morning. “At this point, we’ve got into another Vietnam.” As for Murtha, she said: “He’s finally being honest. He speaks from his heart. He has experience. He speaks for me.”

Murtha, 73, grew up in this part of western Pennsylvania, delivering newspapers and working at a gas station during high school. He won his House seat in 1974 and has been reelected handily since then.

Steel production was once the heart of Johnstown’s economy. But the mills — long since silenced by economic change — await transformation into what city officials hope will be a surge of health research and high-technology concerns.

A new conference center can seat 1,000 for dinner, the local sports stadium has undergone an $8-million renovation and, thanks to Murtha, some federal agencies — such as the National Drug Intelligence Center — have headquarters here.

As in many areas of Pennsylvania, the community’s population has been shrinking, as young people leave to find jobs elsewhere. In the 2000 census, Pennsylvania lost two congressional seats, and Murtha was thrown into a Democratic primary with another congressman, Rep. Frank Mascara. Murtha won easily.

“A group of us Republicans changed registration to vote for him and then switched right back,” said Arlene Johns, a regional editor at the Tribune-Democrat. “That’s how much respect he has.”

Called “an American Legion kind of Democrat,” Murtha supported the Persian Gulf War in 1991 but opposed intervention in Bosnia and deployment in Somalia.

At the beginning of the Iraq war in 2003, he questioned whether troops had the proper equipment and called for the reinstatement of the draft. As the ranking Democrat on the House Appropriations Committee’s defense subcommittee, Murtha rankled Republicans during last year’s presidential election when he said the Pentagon had to change direction in Iraq or the war would be “unwinnable.”

His call for the withdrawal of troops from Iraq, a process he said could take about six months, sparked Republican retribution Friday. GOP leaders forced a vote on a resolution that expressed “the sense of the House … that the deployment of United States forces in Iraq be terminated immediately,” knowing it would be overwhelmingly defeated. The resolution lost by a vote of 403 to 3.

But the rebuff aimed at Murtha is not likely to sting here.

“I agree with him 100{cd9ac3671b356cd86fdb96f1eda7eb3bb1367f54cff58cc36abbd73c33c82e1d},” said Lucy Machuta, a lifelong Republican who once lived near Murtha. Asked if she had previously supported the war, Machuta said, “In the beginning, yes, but now it is useless. It’s like an open Vietnam.”

Asked if congressional rejection of a resolution to withdraw troops would sway her views, Machuta said: “No. Is Congressman Murtha going to change his mind? I’m not changing mine either.”

*

(BEGIN TEXT OF INFOBOX)

Rep. John P. Murtha

Born: June 17, 1932, in New Martinsville, W.Va.

Education: B.A. in economics, University of Pittsburgh, 1962; graduate studies at Indiana University of Pennsylvania, 1962-65

Home: Johnstown, Pa.

Family: He and his wife, Joyce, have been married for 50 years. They have three children and three grandchildren.

Military service: Murtha served in the Marine Corps from 1952 to 1955, working up to a post as drill instructor and earning an officer’s commission. After his discharge from active duty, he joined the Marine Reserve. He reenlisted and served in Vietnam from 1966 to 1967, receiving the Bronze Star, two Purple Hearts and the Vietnamese Cross of Gallantry. After Vietnam, he served in the reserves until 1990, retiring as a colonel.

Political career: After serving in the Pennsylvania House of Representatives from 1969 to 1974, Murtha was elected U.S. representative in 1974, becoming the first Vietnam veteran to serve in the U.S. House. He has been reelected 16 consecutive times. He voted for the 1991 Persian Gulf War resolution and the 2002 resolution granting President Bush authority to use force in Iraq. In 2004, he was one of two House members who voted to reinstate the military draft. He is the top Democrat on the House Appropriations Committee’s defense subcommittee. He is the author of “From Vietnam to 9/11: On the Front Lines of National Security” (2003).

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Iraq war critic predicts withdrawal by US elections

Rep. John Murtha, the Democrat whose call for withdrawing U.S. troops from Iraq set off a furor last week, on Sunday predicted U.S. forces would leave Iraq before next year’s U.S. congressional elections.

The Pennsylvania lawmaker, a Vietnam veteran and respected authority on the military, said on NBC’s “Meet the Press” that he expected more people to come around and share his views and that U.S. troops should be withdrawn in 2006.

Asked if that meant U.S. troops would be out of Iraq before November congressional elections, Murtha said, “You have hit it on the head.”

President George W. Bush’s approval ratings have been sinking in the polls in tandem with growing public disapproval of the Iraq war and even some Republicans have started to question aspects of the administration Iraq’s timetable and strategy.

The U.S. House, in an unusually raucous session on Friday, defeated a nonbinding resolution calling for an immediate troop withdrawal. Democrats denounced the vote as a political stunt meant to attack and isolate Murtha.

But Murtha predicted that more and more Americans, in government and private life, would come to the same conclusion he had, that U.S. military occupation was making the situation in Iraq worse and that a political solution was needed.

“I have never seen such an outpouring in the 32 years I’ve been in Congress of support and people with tears in their eyes, people walking along clapping when I’m walking through the halls of Congress, saying something needed to be said,” Murtha said.

“It’s not me. It’s the public that’s thirsting for an answer to this thing,” he added.”

Bush and top administration officials in the past few days lashed out sharply against critics of the Iraq policy. But the president, speaking in Beijing, and Defense Secretary Donald Rumsfeld were both more muted about their opponents on Sunday although both strongly defended their Iraq policy.

Bush, dogged by questions about Iraq during a week-long Asia tour, said “Congressman Murtha is a fine man, a good man who served our country with honor and distinction as a Marine in Vietnam and as a U.S. congressman.”

Rumsfeld, who appeared on four Sunday talk shows, said debate about war is and should be part of the democratic process, but that Murtha’s call for an immediate withdrawal would strengthen U.S. enemies and embolden terrorists.

“That would be a terrible thing for our country and for the safety of our people,” he said on CNN’s “Late Edition.”

Rumsfeld depicted progress in Iraq in both the political and military arenas. “The Iraqi security forces are doing an excellent job. They’re well-respected by the Iraqi people. They’re engaged in the fight,” he said on FOX News Sunday.

Rumsfeld also reiterated his support for the war to topple Saddam Hussein, even knowing now that the intelligence on weapons of mass destruction was flawed. But he said Bush had never directly asked him for his views on an invasion.

“I wasn’t asked,” he said on ABC’s “This Week.” “I’m sure the president understood what my views were.”

While commending Murtha’s record as a veteran and lawmaker, Rumsfeld pointed out that neither Republicans nor Murtha’s fellow Democrats had rushed to embrace his ideas.

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Mixed messages on torture put U.S. agents in a bind

The U.S. government has placed what appear to be irreconcilable demands on its spies. The most recent evidence came last week, when President Bush denounced torture while Vice President Dick Cheney worked behind the scenes to defeat a measure in Congress that would prohibit the CIA from “cruel, inhuman or degrading treatment” of detainees.

The lack of clear guidance, particularly to CIA officers not accustomed to handling detainees, puts officers on the ground in an impossible position, in which they must guess what activities are allowable and hope for the best, former spies said.

Meanwhile, the State Department has opposed Cheney’s campaign. And an internal CIA report, warning that some CIA-approved interrogation techniques might not be legal, came to light in news reports last week on the heels of revelations of a secret CIA prison network in Eastern Europe and elsewhere.

The mixed messages further cloud the debate over how far the agency should go in pursuing terrorists, intelligence professionals said.

“It’s a muddle at the moment,” said Loch Johnson, an intelligence historian who has served in several advisory capacities to intelligence agencies over the years.

McCain bill

This week, the Senate is expected to approve a defense authorization bill that contains a proposal, sponsored by Republican Sen. John McCain of Arizona, that would bar inhumane treatment of detainees by U.S. agencies.

The measure is already part of a separate defense spending bill under negotiation with the House, and McCain has promised to attach his measure to other bills if these two attempts fail.

With overwhelming support in the Senate, which passed it 90-9, and considerable support from House Republicans, McCain’s measure is given a reasonable chance of winning congressional approval, despite strong opposition from the Bush administration.

“We’ve got two wars going on: one a military one in Iraq, and then we’ve got a war for public opinion, for the hearts and minds of all the people in the world,” McCain said Sunday on CBS’ “Face the Nation.” “We’ve got to make sure that we don’t torture people.”

Current and former intelligence officials said the confusion over what is permissible has hurt morale and discouraged operatives from taking risks — the opposite of what is needed to infiltrate terrorist groups.

What is needed, former spies said, are explicit guidelines to govern the murky world of clandestine operations. That way, those responsible for capturing suspected terrorists know what is expected of them.

Some of that discussion about drawing the line between aggressive intelligence collection and unacceptable behavior should be public, they added.

CIA not jailers

Robert Baer, who spent more than two decades spying for the CIA, said the agency was never envisioned as a prison service and that its officers were not trained to be wardens and had no desire to be. However, four years after the Sept. 11, 2001, attacks, it still is not clear how or where detainees should be held.

Bush administration officials say a resolution Congress passed in the days after Sept. 11 granted the president the power to detain suspected terrorists.

It authorized Bush to use “all necessary and appropriate force” to retaliate against the perpetrators of the attacks.

“The problem is, does that have any limits?” said former CIA general counsel Jeffrey Smith.

The country has been debating these issues since 2001, when the FBI began rounding up suspects after the attacks. The president extended his authority by giving the government the ability to declare and detain “enemy combatants” inside and outside the country. The CIA’s secret prison network is an extension of these policies.

“It is inexcusable that it has been four years since 9/11 and we did not confront this issue earlier,” said Roger Cressey, a former White House counterterrorism official. “The problem is, there was paralysis in the political leadership about what to do with these people.”

One consequence of the fuzzy rules, current and former intelligence officials say, was that unrealistic demands have been made on intelligence officers.

In many cases, they are asked to use traditional espionage to confront people willing to die for their cause.

“You can’t go to someone who is going to give up their life and say, ‘I have a better deal for you,’ ” Baer said.

He said the only way to accomplish what is being asked of the CIA — to do whatever it takes to prevent the next terrorist attack — is to allow agents to use “pure force,” which means assassinating suspected terrorists and threatening their families.

Such techniques are used in countries such as Syria, which the U.S. government has condemned repeatedly for human-rights abuses.

“Few Americans, if you seriously pose the problem to them, want to assassinate people and kill their families,” Baer said. Instead, “we end up doing half-measures, and we end up letting this stuff get out to the press, and we have this huge debate, and it weakens us.”

The not-so-funny joke in intelligence circles, Cressey said, is that being a case officer for the CIA means that you have to retain a lawyer every time you run an operation.

That underlying fear of litigation discourages spies from taking the risks needed to develop new espionage tactics against an extremist, stateless enemy, he said.

Democracy paradox

As debate over these techniques continues, it threatens to undermine Bush’s policy of spreading democracy as a way of fighting terrorism and weakens the U.S. government’s relationship with its allies, several security analysts and former intelligence officials said.

Smith said the president could have avoided this confusion. Bush could have stated that, while Sept. 11 changed the rules, the U.S. would abide by the Geneva Conventions until this country, in consultation with allies, decided what the new rules would be.

The U.S. also has signed the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which requires signatories to prevent such treatment within their jurisdictions.

Because directives from the administration and Congress conflict, Baer said, “we need an honest debate” about what is expected of intelligence officials — followed by a decision on the rules that should guide them.

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An Open Letter To Special Counsel Patrick Fitzgerald From Former White House Counsel John W. Dean

An Open Letter To Special Counsel Patrick Fitzgerald From Former White House Counsel John W. Dean

November 18, 2005

The Honorable Patrick J. Fitzgerald
Special Counsel
Bond Federal Building
1400 New York Avenue, NW
Washington, DC 20530

Dear Special Counsel Fitzgerald:

Excuse my being so presumptuous as to send you this open letter, but the latest revelation of the testimony, before the grand jury, by Washington Post reporter Bob Woodward has raised some fundamental questions for me.

In your post as Special Counsel, you now have nothing less than authority of the Attorney General of the United States, for purposes of the investigation and prosecution of “the alleged unauthorized disclosure of a CIA employee’s identity.” (The employee, of course, is Valerie Plame Wilson, a CIA employee with classified status, and the wife of former Ambassador Joseph Wilson.) On December 30, 2003, you received a letter from the Deputy Attorney General regarding your powers. On February 6, 2004 you received a letter of further clarification, stating without reservation, that in this matter your powers are “plenary.” In effect, then, you act with the power of the Attorney General of the United States.
 
In light of your broad powers, the limits and narrow focus of your investigation are surprising. On October 28 of this year, your office released a press statement in which you stated that “A major focus of the grand jury investigation was to determine which government officials had disclosed to the media prior to July 14, 2003, information concerning Valerie Wilson’s CIA affiliation, and the nature, timing, extent, and purpose of such disclosures, as well as whether any official made such a disclosure knowing that Valerie Wilson’s employment by the CIA was classified information.”

If, indeed, that is the major focus of your investigation, then your investigation is strikingly limited, given your plenary powers. To be a bit more blunt, in historical context, it is certainly less vigorous an investigation than those of your predecessors who have served as special counsel — men appointed to undertake sensitive high-level investigations when the Attorney General of the United States had a conflict of interest. (Here, it was, of course, the conflict of Attorney General John Ashcroft that led to the chain of events that resulted in your appointment.)

The Teapot Dome Precedent

As I am sure you are aware, President Calvin Coolidge appointed Owen J. Roberts, a Philadelphia attorney at the time, and former U.S. Senator Atlee Pomerene, then practicing law in Ohio, as special counsels to investigate and prosecute on behalf of the government any wrongdoing related to the so-called Teapot Dome inquiry. That investigation related to the improper dissipation of government assets — dubious oil leases to Edward L. Doheny and Harry F. Sinclair.

Several years ago, I had an opportunity to spend several weeks at the National Archives going through the files of Special Counsels Roberts and Pomerene. I urge you to send a member of your staff to do the same, for they are highly revealing as to the aggressive — yet appropriate — nature of their investigation and actions.

What you will find is that Roberts and Pomerene, before figuring out exactly who was to blame and going after them, first sought to protect the interest of the United States by ending the further dissipation of the nation’s oil reserves to Doheny and Sinclair, and seek restitution.

In brief, they started by taking protective civil measures. Only with that accomplished did they move on to criminal prosecutions. Why have you not done the same?

Your investigation also relates to the dissipation — if not the irreparable destruction — of a government asset: Valerie Plame Wilson. As you no doubt know, the U.S. Government invested a great deal of money in her special education and training, as well as other aspects of her covert status. Then, either intentionally, or with gross negligence, senior Bush administration officials blew Valerie Wilson’s cover. (Prior to the disclosure, her status was not, as some have claimed, an “open secret”: Rather, as you yourself have said, the fact that she was a CIA asset was not previously well-known outside the intelligence community.)

Yet there is no evidence that you have made any effort whatsoever to undertake any civil remedies dealing with this either intentional or grossly careless destruction of a government asset. As acting Attorney General for this matter, you have even more authority than did Special Counsels Roberts and Pomerene.

Those who leaked the information about Valerie Wilson breached signed contracts they had made with the government. These contracts, moreover, were not to be taken lightly: They enforced profoundly important obligations to national security, on the part of the very people who were supposed to be serving that end.

Why are you not enforcing those contracts? Why have you not urged the president to sanction those who have released national security information? The president has said he would fire those who committed crimes — but breach of such profoundly important contracts, even if it does not rise to the level of a crime, is surely cause for dismissal, as well.

You should so urge the President. And if he is not willing to take appropriate action with those who have dishonored their offices, and broken their contracts, you ought to go to court and get an injunction to remove their security clearances.

Again, their agreement with the government was the very understanding upon which they were (and continue to be) given classified information. Now that they have breached it, the vital predicate for those clearances is gone.

The Watergate Precedent

Even more troubling, from an historical point of view, is the fact that the narrowness of your investigation, which apparently is focusing on the Intelligence Identities Protection Act (making it a crime to uncover the covert status of a CIA agent), plays right into the hands of perpetrators in the Administration.

Indeed, this is exactly the plan that was employed during Watergate by those who sought to conceal the Nixon Administration’s crimes, and keep criminals in office.

The plan was to keep the investigation focused on the break-in at the Democratic National Committee headquarters — and away from the atmosphere in which such an action was undertaken. Toward this end, I was directed by superiors to get the Department of Justice to keep its focus on the break-in, and nothing else.

That was done. And had Congress not undertaken its own investigation (since it was a Democratically-controlled Congress with a Republican President) it is very likely that Watergate would have ended with the conviction of those caught in the bungled burglary and wiretapping attempt at the Democratic headquarters.

Now, with a Republican-controlled Congress and a Republican President, you (a Republican appointee) are the last bulwark of protection for the American people. We must hope you will keep faith with them.

It was well understood at the Nixon White House, and it surely is at the Bush White House, that government attorneys do not look to prosecute those for whom they work. We knew that career government lawyers simply were not going to be looking for crimes at the White House — not because they acted with corrupt intent, but simply because it is no one’s instinct to bite the hand that feeds them.

When Archibald Cox was appointed special counsel — under pressure from the U.S. Senate as a condition to confirm Attorney General Elliot Richardson — he immediately recognized what had occurred. While no Department of Justice lawyer was found to have engaged in the cover up, their timidity had facilitated it. Cox was fired because he refused to be intimidated. His firing became a badge of honor for all those who do the right thing, regardless of the consequences.

While I have no reason to believe you are easily intimidated, all I can say is that your investigation, thus far, is falling precisely within the narrow confines — the formula procedure — that was relied upon in the first phase of the Watergate cover-up by the Nixon administration.

So narrow was your investigation that it appears that you failed to learn that Bob Woodward had been told of Valerie Wilson’s CIA post until after you had indicted Scooter Libby. While I have no doubt you know your way around the Southern District of New York, and the Northern District of Illinois, Washington DC is a very different place.

With all due respect, Mr. Fitzgerald, I believe you are being had. I believe that you were selected with the expectation that you would conduct the narrowest of investigations, and it seems you have done just that.

The leak of Valerie Wilson’s status did not occur in a vacuum. Republicans in Congress do not want to know what truly happened. You are the last, best hope of the American people in this regard.

I can tell you, as someone who travels about the country, that Americans — regardless of their political disposition — are deeply troubled by this case. And, increasingly so, by the limits you have apparently placed on your investigation.

To right-minded Americans, the idea that Administration officials have betrayed their national security obligations, yet remain in their jobs, is nothing short of appalling. Beyond politics is patriotism: Patriotic Americans want to see you not only prosecute those who compromised and endangered Valerie Plame Wilson, but also force the Administration to clean house with respect to those who did this, which you can accomplish through appropriate civil action.

As one who does know something about the way Washington works, I hope you will actually use the plenary powers you have been granted to implement what I understood to be the announced policy of the Department of Justice for which you work — a zero tolerance policy for leaks.

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Raid on torture dungeon exposes Iraq’s secret war

The raid was at a building in central Baghdad. Men armed with automatic rifles burst in and made their way to a set of underground cells where they found 175 people huddled together. They had been captured by paramilitaries and tortured. The terrified, mainly Sunni, captives had been held in an office of the Iraqi interior ministry, and the rescue party were Iraqi police and American soldiers.

Yesterday, 24 hours later, the Prime Minister, Ibrahim Jaafari, promised an investigation after the shocking demonstration of how paramilitary units working for the government, and death squads allegedly linked to it, are waging a savage war in the shadows.

People are arrested and disappear for months. Bodies appear every week of men, and sometimes women, executed with their hands tied behind their backs. Some have been grotesquely mutilated with knives and electric drills before their deaths.

The paramilitaries are not held responsible for all the deaths – some are the work of insurgents murdering supposed informers or government officials, or killing for purely sectarian motives.

You very seldom see American soldiers on the streets of Baghdad now. The Iraqi police are in evidence outside, but so are increasing numbers of militias running their own checkpoints – men in balaclavas or wrap-around sunglasses and headbands, with leather mittens and an array of weapons. An American official acknowledged: “It is getting more and more like Mogadishu every day.”

Travelling through the Iraqi capital you meet Muqtada al-Sadr’s Mehdi army; fellow Shias from the Badr Brigade; the Kurdish peshmerga; as well as Western and Iraqi security guards. Then there are Iraqi soldiers and policemen, government paramilitaries, special police commandos and a group which prides itself on being the most feared, the Wolf Brigade of the interior ministry.

Many of the allegations from Sunni leaders of abuse are against the 2,000-strong Wolf Brigade, which was formed in October 2004 after training with US forces and first saw action during the widespread disturbances in Mosul last year.

The raid on the interior ministry bunker took place after Iraqi police called in US help when their search for a missing 15-year-old boy took them to the ministry dungeons at Jadriyah, one of many unofficial prisons throughout the country.

Brigadier General Karl Horst of the US 3rd Infantry Division, who was involved in the operation, said the prisoners were “in need of medical care”.

The Iraqi police were more forthcoming. “These men were in a very bad way. They have obviously been tortured, some had been there a long time and they were very frightened,” said an officer calling himself Yasin. He would not give any other name: “I don’t want to end up in one of these rooms myself.”

Although the US forces had ridden to the rescue on this occasion, many of these units have been created, trained and armed by the Americans. According to reports, $3bn (£1.7bn) out of an $87bn Iraq appropriation that Congress approved last year was earmarked for the creation of paramilitary units to fight the insurgency. Vincent Cannistraro, the CIA’s former head of counter-terrorism, said: “They set up little teams of [Navy] Seals and special forces with teams of Iraqis, working with people who were in senior intelligence under the Saddam regime.”

Iraqi politicians in the new regime have repeatedly accused the CIA of refusing to hand over control of the recreated Iraqi intelligence service to the Iraqi government, and the paramilitaries are run by Adnan Thabit, allegedly a former CIA “asset”.

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Calling For Truth and Dignity in the Nation’s Conduct

Near the end of the Edward R. Murrow movie, “Good Night, and Good Luck,” Sen. Joseph McCarthy is confronted by Joseph Welch, civilian counsel for the U.S. Army. McCarthy’s personal abuse of opponents had reached a peak in the Army-McCarthy hearings of 1954.

In his rumbling voice, Welch intoned, “You have done enough. Have you no sense of decency, sir, at long last? Have you left no sense of decency?”

Where is Welch when we need him? (Or Murrow, for that matter?)

And where is the decency of this nation?

Who built the moral cesspool into which this nation has sunk with its secret prisons and secret prisoners, legalized torture, indefinite imprisonment without trial or counsel?

Is it Vice President Dick Cheney, pleading a CIA exemption from the torture ban that passed the Senate with 90 votes?

Is it Senate Majority Leader Bill Frist and House Speaker Dennis Hastert who, upon hearing leaked intelligence that the CIA is using secret prisons in other countries, beyond the reach of American torture laws, decided to investigate the leak — but not the prisons?

Is it the military commanders who have escaped reprimand while a series of low-level soldiers take the blame for abuses at Abu Ghraib and in Afghanistan? Or the White House and Justice Department lawyers who drafted the “soft torture” rules?

Is it the president of the United States, who never seems to take responsibility for anything, doggedly plunging ahead, “working hard” and “doing my job”? Who is in charge here? Is it really Cheney, Defense Secretary Donald Rumsfeld and a corps of hard-core neoconservatives in the Department of Defense and Cheney’s office who run the foreign policy of this country?

How are we to find the truth?

We are reminded in “Good Night, and Good Luck” that the combination of a powerful new medium, television, and a powerful old institution, the U.S. Senate, finished McCarthy, although it did not end McCarthyism.

We are reminded that the Senate was Republican at that time — thanks in no small measure to McCarthy’s “bad cop” while Dwight D.Eisenhower played “good cop” in the 1952 elections. But Eisenhower and the Senate finally got up the gumption to challenge the bully.

Where is the Senate today? Where are the hearings on failed intelligence and failed decisions of the Iraq war? Where are the hearings on secret prisons and the use of torture?

It is mighty hard to investigate your own party’s leadership. Ask the Senate of 1966 and Sen. J. William Fulbright how easy it was to haul President Lyndon Johnson’s Vietnam War into televised hearings that lasted six days and began the unraveling of the Johnson presidency.

Where are Republicans of the stature of the late Senate Majority Leader Mike Mansfield and Fulbright? House bully-boy Tom DeLay is under indictment; Frist is being investigated for insider trading.

What independence the party shows seems limited to Sen. John McCain and a handful of back-benchers willing to oppose the leadership on rare occasions.

Bush has had a free run with Congress for five years. We seem to have adopted a parliamentary system of government, where party affiliation is more important than common sense. For the first time since 1881, a president went a full term without casting a veto. Will Bush exercise his first veto on the bill outlawing torture — if so, what does that say about the moralistic White House?

Or will the Congress once again roll over and cave in to Cheney and Bush and the weary old cries of using whatever tactics it takes to defeat our enemies, regardless of what it does to our moral standing at home and abroad?

If this is, indeed, a new form of parliamentary government, where is the “loyal opposition”? Can we find Democrats who have the courage to stand up and shout that the emperor has no clothes, or will they continue to cower for fear of being declared unpatriotic by the virulent voices of talk radio?

What, exactly, is patriotism? Is it a yellow car ribbon or is it calling for truth and dignity in the conduct of this nation?

And, finally, who is ultimately to blame for this mess? Could it be that the answer, again, is found in “Good Night, and Good Luck,” in Murrow’s closing lines as he exposed McCarthy:

“(McCarthy) didn’t create this situation of fear, he merely exploited it and rather successfully. Cassius was right. ‘The fault, dear Brutus, is not in our stars but in ourselves.’ Good night, and good luck.”

Floyd J. McKay, a journalism professor emeritus at Western Washington University, is a regular contributor to Times editorial pages.

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Lawmakers Lead Efforts to Ban Prison Abuse

At first glance, the high-profile Senate Republican and the behind-the-scenes House Democrat leading the charge to ban abusive treatment of foreign prisoners in U.S. custody look like an odd couple.

But Sen. John McCain, R-Ariz., and Rep. John Murtha, D-Pa., have more in common than their willingness to challenge the White House on the issue.

They are national security authorities, and both voted to support the use of force against Iraq. Both are Vietnam veterans — McCain was a naval aviator who was shot down and captured, while Murtha was a Marine intelligence officer.

“The experience of Vietnam has probably made both of them concerned about this,” said G. Terry Madonna, a political analyst at Franklin & Marshall College in Lancaster, Pa.

The war decades ago, Madonna said, tends to be “seared into the heads” of those who fought in it. Indeed, Vietnam service has shaped the careers of both McCain and Murtha and given them enormous credibility on military matters.

On this issue, the two dismiss any appearance of being strange bedfellows.

“We’ve been friends for many years. He’s a former Marine. Doesn’t surprise me at all,” McCain says. Underscoring the respect he has for Murtha, McCain adds after a pause, “You know, he’s been in combat.”

It’s a respect that’s clearly mutual.

Murtha calls McCain “a great American,” and says there’s no one more credible on the issues of detention and interrogation than a man who was tortured while held captive in Vietnam for 5 1/2 years.

“He knows this firsthand,” says Murtha, himself a decorated veteran. “We see eye to eye on this.”

So when McCain made the case last month that the United States’ current anti-torture laws weren’t sufficient, 89 other senators listened. They voted with him to prohibit cruel, inhuman and degrading treatment of foreign prisoners in U.S. custody and standardize interrogation procedures for U.S. troops.

Even before that vote, Murtha threw his support behind McCain. The congressman, who typically operates under the radar, has been vocal in trying to force the House to decide whether to endorse McCain’s proposal. The effort is expected to succeed, in part because of Murtha’s influence.

McCain and Murtha say they are driven by a desire to repair a U.S. image tarnished by the Abu Ghraib prison abuse scandal in Iraq and allegations of mistreatment of terror-war detainees at the U.S. naval base in Guantanamo Bay, Cuba.

They also are mindful of those whose shoes they once were in, saying U.S. troops need clear guidelines for detaining and interrogating prisoners, in part to avoid behavior that might invite mistreatment of captured Americans.

Both also could have other motivations in bucking the White House, which has threatened to veto any bill that includes the provisions.

Long a maverick in the Republican Party, McCain may be positioning himself for a second run at the presidency in 2008 by distancing himself even further from Bush. The president’s popularity has tumbled in part because of public skepticism of the Iraq war.

Unlike McCain, Murtha has never been seen as overtly political, choosing instead the role of a quiet adviser to administrations on defense issues. Above all, he’s known as an ally of uniformed leaders, so much so that the Capitol Hill perception is that when Murtha speaks on military issues he’s talking for those commanders.

Personally, Murtha might simply have had enough.

“They’ve broken their trust with me,” he said recently of the Bush administration, his face flushing, after learning of purportedly secret CIA prisons in Eastern Europe.

Elected to Congress in 1974, Murtha long wielded leverage because he controlled the Pentagon purse strings as chairman of the House defense appropriations subcommittee. He lost that chairmanship when Republicans took control of the House, but he still carries clout as top Democrat on the panel.

McCain was elected to his Senate seat in 1986 and is No. 2 on the Senate Armed Services Committee, in line to take it over in 2007. That could make for much political theater given the senator’s clashes with civilian leaders at the Pentagon, most recently over contracting abuses.

The latest conflict is the detainee language, and the White House has waged a fierce fight against it. But in a sign of possible movement, McCain has been in daily negotiations with administration officials, including Bush’s national security adviser, Stephen Hadley.

Despite the similarities between McCain and Murtha, their differences are vast.

Murtha is an imposing but quiet presence during House votes, holding court in a corner of the chamber. Well over 6 feet tall, he remains anonymous to most Capitol visitors.

With a smaller stature but a much larger national profile, McCain gets his hands into just about every issue of the day. The political celebrity often stops to talk to ever-present throngs of reporters and pose for pictures with schoolchildren.

Perhaps one thing separates McCain and Murtha most.

“For McCain, it’s always the question of how much this goes back to the politics,” Madonna said. “For Murtha, that’s just not true.”

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