Monday, December 19, 2005


By William Fisher

Recent polling on the views of the American people about the ‘Global War on Terror’ continues to suggest increasing ambivalence, confusion and lack of reliable information. And other events over the past few days, topped by the revelation that President George W. Bush ordered secret warrantless wiretaps of phone calls and emails of American citizens, are unlikely to reverse this trend.

American troops should withdraw from Iraq immediately. Or they should ‘stay the course’. Some civil liberties must be sacrificed in order to make the American people secure from terror threats. Or civil liberties and security can both exist side by side. Torture of prisoners in U.S. custody is never permissible. Or it is permissible under certain conditions. Former Iraqi president Saddam Hussein was linked to Osama Bin Laden and the terror attacks of September 11, 2001. Or there was no connection.

The people’s inability to get credible answers has led to their growing disapproval of both Congress and the President. In recent polling, disapproval of Congress hovers between 50 and 65 percent, while the president’s overall approval rating is now at 42 percent, a rise of 4 percentage points since he began a series of speeches in November to rally support for the war in Iraq, but well within the margin of error.

As the American people struggle to understand the answers pivotal questions related to the Global War on Terror– a task made far more difficult by the ‘spin’ routinely articulated by politicians – the Bush Administration, the Congress and the Courts find themselves wrestling to resolve many of the same problems.

The president’s wiretapping admission – and defense – came only a day after he refused to discuss the issue at all in an interview with Jim Lehrer of public television’s Newshour. The following afternoon, he used his entire live weekly radio address to say the wiretaps were necessary, legal and within his powers as Commander-in-Chief in wartime.

He also said he had advised Congressional leaders, but those who have spoken publicly thus far disagree with this assertion. Nancy Pelosi, the Democrats’ leader in the House of Representatives, said she raised objections. Former Florida Sen. Bob Graham, who was chairman of the Senate Intelligence Committee at the time, said he was never told about the program during his time on the committee. He admitted attending a meeting in early 2002 in the Vice President's White House office about the NSA, but claims it focused on other operations, such as monitoring overseas e-mail traffic that flowed through Internet service providers based in the U.S.

But other leaders, including Republican Sens. Arlen Specter of Pennsylvania, who is Chairman of the Senate Judiciary Committee, and South Carolina’s Lindsey Graham, pointed out that Congress established a law and a procedure back in the 1970s for law enforcement authorities to ask a special court to issue warrants. The court, reincarnated in the Patriot Act, is known as the Foreign Intelligence Surveillance Court (FISA), and is the court now used by the Justice Department to obtain authority to conduct surveillance on American citizens.

It is still unclear why the President did not go through the FISA process. But a number of senators, including Michigan Democratic Sen. Carl Levin and Republican Lindsay of South Carolina, said on Sunday they think the president may have broken the law by failing to do so.

Adding to people’s confusion is the ongoing debate about re-authorizing the USA Patriot Act, which was hurriedly passed six weeks after the 9/11 attacks and which is due to expire on Dec. 31 unless renewed. The House of Representatives and the Senate have been unable to reach unanimity on which body’s version of the new act will become law. As a result, a group of Senate Republicans and Democrats continue to debate the measure and have asked for a three-month extension of the current law to give them more time to work out their differences. The president has said he would veto such a request.

Two other terror-related issues added to the public’s confusion last week.

Government lawyers told the Supreme Court it would be "wholly imprudent" for it to hear Jose Padilla's challenge to his military detention as an enemy combatant. They urged the justices to dismiss Padilla's case as moot now that the government plans to try him on terrorism charges in a civilian court. Since Padilla's indictment last month by a federal grand jury has given him the "very relief" he sought when he filed a petition for writ of habeas corpus in federal court, any Supreme Court decision now on his petition "will have no practical effect" on Padilla, they said.

But Padilla's lawyers filed a brief with the appeals court, asking it to retain jurisdiction over Padilla's case long enough for the Supreme Court to act on it. They want to establish whether the president has the authority to declare a U.S. citizen an ‘enemy combatant’ and hold him indefinitely without charge, access to legal counsel, and the right to ask a civilian court to determine his status.

Padilla, an American citizen, was arrested in 2002 at Chicago’s O’Hare International Airport, designated an enemy combatant, and held in a Navy brig until last month, most of the time without access to legal counsel or to the evidence against him.

Last month, the Justice Department, unwilling to risk a negative court decision on Padilla’s three-year incarceration without charges, filed a case against him in a civilian appeals court.

At the time of his arrest, the Justice Department charged Padilla was going to detonate a ‘dirty bomb’ within the U.S. But when Attorney General Alberto Gonzales announced criminal charges against him in a civilian court, the ‘dirty bomb’ accusation was absent. Instead, he was charged with being part of a North American terrorist support network that sent money and fighters abroad.

A third issue likely to increase public confusion about ‘the rules’ governing the Global War on Terror is the so-called Graham Amendment, now pending in congress as part of a massive spending bill to fund veterans’ benefits and the operations of U.S. troops in Iraq and Afghanistan.

Introduced by Sen. Lindsey Graham, along with Republican John Kyl of Arizona and Democrat Carl Levin of Michigan, the measure won solid Senate approval for its provisions requiring interrogation techniques used by the military to be guided only by the Army Field Manual.

But there are two little-discussed provisions in the measure. One relies on a secret annex to the manual to spell out the specific techniques the military can and cannot use. Ordinary Americans – and most of the Congress – will probably never know what these techniques are. But in a December 15 appearance on CNN's ‘The Situation Room’ program, Attorney General Alberto Gonzales refused to define waterboarding as "torture". Waterboarding, considered one of the most egregious interrogation practices, is a technique in which a person is led to believe he is drowning.

The second potentially controversial provision in the Graham amendment is the suspension of habeas corpus – the right to go to court to contest the reason for their detention as well as their treatment -- for prisoners in U.S. custody, including some 500 held at Guantanamo Bay, Cuba. Habeas Corpus is considered the gold standard for Anglo-American justice.

About the habeas proposal, Brian J. Foley, a professor at the Florida Atlantic School of Law, told us, “"The ability to file a habeas corpus petition is perhaps the preeminent civil right. Most politicians would deem it untouchable. Taking it away from Guantanamo prisoners, where we know some have been imprisoned by mistake and where we know some have been tortured, means that our government's way of 'protecting civil liberties' is to make sure no court ever hears about any violations in the first place."


By William Fisher

President Bush’s do-it-yourself eavesdropping notwithstanding, the Pentagon could soon have legal authority to “covertly” gather intelligence on American citizens in the United States – a power taken from them because of excesses during the Vietnam War.

The Senate Intelligence Committee, meeting in closed session, last month quietly approved a request from the Department of Defense (DOD) to allow it to conduct surveillance operations within American Muslim communities. The DOD said the cooperation of these communities could help fight insurgencies in Iraq and Afghanistan.

"We believe there are people in the United States who have information of value to us," said Jim Schmidli, deputy general counsel for operations at the Pentagon's Defense Intelligence Agency. "That information is within different ethnic communities in this country -- recent additions to our population from distressed areas of the world, primarily the Middle East."

But civil liberties groups and leaders of the Muslim community say the Pentagon is using the wars in Afghanistan and Iraq to resume the domestic spying powers that Congress banned after those powers were used to spy on Americans during the Vietnam era.

Michael Ratner, President of the Center for Constitutional Rights, told us, “We are seeing the increasing militarization of our American streets. Shame on the Senate for permitting the military to prowl our streets, spy on us, entrap unknowing people and terrify America. Are we living in Franco’s Spain? The military is not trained in constitutional rights; they belong on the battlefield and not in our homes.”

And Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, told us, “At a time when domestic intelligence collection by the military is surging, the nation desperately needs an independent oversight body to exercise checks and balances. Unfortunately, it looks like the congressional intelligence committees are or unwilling or unable to provide that service.”
The intelligence committee supports inclusion of the request in the 2006 intelligence spending authorization bill. The full Senate will take up the bill later this month. The Pentagon's request was not included in the House version of the bill, which passed in June. The bill now goes to the Senate Armed Services Committee.

An identical provision was included in last year’s version of the same bill, but was removed after its details were disclosed by Newsweek magazine and critics charged it could lead to “spying” on US citizens.

But late last month, with no public hearings or debate, a similar amendment was inserted into the same annual authorization bill at the request of the Pentagon.

The intelligence committee also included two other amendments. One would allow intelligence agencies greater access to databases on U.S. citizens. Another would grant the Defense Intelligence Agency the right not to disclose "operational files" under the Freedom of Information Act (FOIA).

The Pentagon defended its request for the new powers, saying it needs more flexibility as it expands its role in counterterrorism.

"This is not about spying on Americans," DIA general counsel George Peirce said in an interview with the Washington Post. He defended the legislative language approved by the Senate Select Committee on Intelligence.

“We are not asking for the moon," Peirce said. "We only want to assess their suitability as a source, person to person" and at the same time "protect the ID and safety of our officers."

The CIA and the FBI already have such authority, he added, and the [Defense Intelligence Agency] needs it "to develop critical leads" because "there is more than enough work for all of us to do."

However, the idea has not been well received in the US Muslim community, or by other critics of the new power.

"This has a back-alley, dead-of-night feel to it that I don't think would be received well by the Muslim community," said Ibrahim Cooper, spokesman for the Council on American Islamic Relations.

Lisa Graves of the American Civil Liberties Union disagreed with a defense official's statement that the proposed change would not allow for carte blanche Pentagon spying inside the United States.

"That's some spin," Graves said. "The change would allow them to gather information on Americans surreptitiously. If it walks like a duck and quacks like a duck, it's a duck."

Some Republican legislators see the Pentagon request as an effort to do an end-run around the authority of the new director of national intelligence, Ambassador John D. Negroponte.

They are concerned that the Pentagon "may be carrying out new intelligence activities through programs intended to escape oversight from Congress” by creating “parallel functions to what is going on in intelligence, but is calling it something else,” according to Rep. Peter Hoekstra, Republican of Michigan, chairman of the House Intelligence Committee.

Hoekstra said he believed the proposed activities were designed to "obscure" the Pentagon's intelligence activities in order to keep them out of Mr. Negroponte's jurisdiction.

In the 1970s, Army intelligence agents were caught snooping on antiwar
protesters. Since then, military intelligence agencies have operated under tight restrictions inside the United States.

But this week, U.S. network television news displayed a DOD dossier purportedly showing that the military was already carrying out surveillance and risk assessments of peaceful antiwar protests in the U.S. The documents listed the license plate numbers of people attending antiwar rallies, and categorized the rallies as a “threat”.

The new provision would exempt the DOD from complying with the Privacy Act that requires government officials seeking information from a resident to disclose who they are and why they want the information.

A report by the Senate Intelligence Committee says the provision would allow military intelligence agents to "approach potential sources and collect personal information from them" without disclosing they work for the government. "Current counterterrorism operations," the report claims, require "greater latitude ... both overseas and within the United States."

DIA officials say they need the provision in order to question American businesspersons and college students who travel abroad.

But the provision will also be helpful in investigating suspected terrorist threats to military bases and contractors inside the United States, according to Pentagon spokesman Bryan Whitman.

Watchdog groups see the DOD’s proposals as "mission creep”. According to
Kate Martin, director of the Center for National Security Studies, "This...
is giving them the authority to spy on Americans," adding, "And it's all been done with no public discussion, in the dark of night." The Center is frequently critical of the war on terror


By William Fisher

President George W. Bush suffered a stinging defeat when overwhelming congressional support forced him to abandon his opposition to anti-torture legislation and reach an agreement with its sponsor, Sen. John McCain, an Arizona Republican.

The president’s reversal came after months of White House attempts – led by Vice President Disk Cheney and National Security Advisor Steven Hadley -- to weaken the measure, which would prohibit the "cruel, inhuman, or degrading" treatment of any detainee in U.S. custody anywhere in the world.

The Administration had been negotiating with McCain to either drop the measure or to modify it so that interrogators, especially those working for the Central Intelligence Agency (CIA), would have significant exemptions.

Bush had previously threatened to veto the bill and Vice President Cheney lobbied hard to change the McCain proposal to give interrogators more flexibility to use a range of extreme tactics on terrorism suspects.

Mc Cain, who was tortured as a prisoner of war during the Vietnam War, made it clear that he would not change a single word in his proposal. The House of Representatives voted 308 to 122 to endorse the measure, which is an amendment to the massive defense spending bill that funds military operations in Iraq and Afghanistan. The supportive vote in the Senate was 90 to 9.

But in the deal worked out with the President, McCain was willing to add two paragraphs to give civilian interrogators legal protections that are already afforded to military interrogators. This means that civilians would be able to defend their use of interrogation tactics by arguing in court that a "person of ordinary sense and understanding would not know the practices were unlawful."

However, experts say that if CIA or civilian personnel believe they were being directed to use an interrogation technique that was illegal, they would be obligated to disobey the order.

The president’s support came in an appearance with McCain in the Oval
Office. The president said, "We've been happy to work with (Sen. McCain) to achieve a common objective, and that is to make it clear to the world that this government does not torture and that we adhere to the international convention [on] torture, whether it be here at home or abroad."

"We've sent a message to the world that the United States is not like the
terrorists," McCain said at his joint appearance with Bush.

He added, "We are a nation that upholds values and standards of behavior and treatment of all people, no matter how evil or bad they are. And I think that this will help us enormously in winning the war for the hearts and minds of people throughout the world."

But the deal did not garner unanimous support. Rep. Duncan Hunter, a California Republican who is chairman of the powerful House Armed Services Committee, threatened yesterday to block the legislation unless the White House provides him with a written assurance that the legislation would not interfere with the ability of intelligence officials to carry out their missions.

The Bush-McCain deal won applause from human rights groups.

"We've come a long way as a country since 9/11, and this development is a sign
of that," said Tom Malinowski, Washington advocacy director for Human
Rights Watch. "We've gone from a sense of 'anything goes' to a recognition that torture hurts America even more than it hurts the enemy."

But human rights advocates were already looking beyond McCain’s victory to a separate proposed amendment by Sen. Lindsey O. Graham, a South Carolina Republican and a former military judge, that would eliminate certain rights of detainees held at the U.S. detention facility at Guantanamo Bay, Cuba.

The Graham amendment would prevent detainees from using the U.S. courts to invoke the right of habeas corpus to contest their treatment, including claims that they have been tortured. It would also effectively allow the U.S. government to indefinitely detain people at Guantanamo based on evidence obtained through "coercion."

Tom Wilner, a lawyer who represents a group of Kuwaiti detainees at Guantanamo Bay, told the Washington Post that the Graham amendment would make McCain’s prohibition against torture essentially unenforceable, by giving U.S. troops an incentive to engage in coercive interrogations of detainees, without fear of being held liable.

The significance of the suspension of habeas corpus is likely to be a major congressional concern as debate continues. According to Brian J. Foley, a professor at the Florida Atlantic School of Law in Jacksonville Florida, “Restricting habeas corpus for anybody in our custody is a wolf in sheep's clothing. Our lawmakers are deluded, and are deluding us into believing, that excluding the courts from addressing prisoners' claims about their treatment, which includes claims that they have been tortured, will somehow help us in the so-called War on Terror. It won't, and it can't. Instead, allegations about torture will be both unprovable and, importantly, un-disprovable, which will give propaganda fodder to our enemies.”

He told us, “Dangerously, the Executive Branch will be un-checkable, which will prevent us from knowing whether the President is actually fighting terrorists or merely beating confessions out of hapless, innocent men who were rounded up near a battlefield or sold to U.S. forces for a bounty -- quite possibly by the real terrorists -- and simply telling us we're 'winning the war.'

“Without courts applying hard-nosed reasoning and logic, we can't know anything more than what the President tells us. That's what courts are for -- and they're especially important when Congress drops the ball vis a vis its oversight of the President, as it has been doing shamelessly since 9-11. We're all in the dark and unable to participate -- which puts us in the position of having merely to trust the President. That's always scary, but here it is especially scary, with the level of incompetence we've seen,” he said.

It is generally acknowledged that mistaken identity has been a problem at Guantanamo Bay. More than 800 prisoners were initially taken there for detention. That number is now down to slightly more than 500. The Defense Department will not comment in detail on the disposition of those who are no longer there, but it has been widely reported that some have been sent back to law enforcement authorities in their home countries for further detention but that others have simply been released, presumably because the government had no evidence that they were terrorists.

Some continue to be held through what appears to be administrative incompetence. For example, U.S. forces freed Saddiq Ahmad Turkistani from a Taliban prison in Kandahar, Afghanistan, in late 2001. He told reporters that he had been wrongly imprisoned for allegedly plotting to kill Osama bin Laden.

He professed hatred for al Qaeda and the Taliban -- groups he said tortured him in prison -- and offered to help the United States. Though cleared by U.S. officials, Turkistani was first taken to a U.S. military base in Afghanistan, and then sent to Guantanamo Bay.

Unlike many others prisoners at Guantanamo, he was not captured on the battlefield, nor was he a suspected terrorist. He was arrested in the ‘fog of war’ that marked the early days of the U.S. war in Afghanistan. Though he was a potential ally, he found himself unable to challenge his detention.

But nearly four years later, Turkistani remains imprisoned at Guantanamo Bay, despite being cleared for release early this year after a government review concluded he is "no longer an enemy combatant."

Turkistani’s lawyers and some U.S. officials speculate that he has been held by mistake. They say he remains incarcerated because the United States simply does not know what to do with him.