BACK TO THE FUTURE

By William Fisher

By the end of the current session of congress later this month, the Pentagon could 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 IPS, “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 IPS, “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

HOW DO AMERICANS FEEL ABOUT TORTURE?

By William Fisher

As the battle between the White House and a leading Republic Senator over U.S. policies for treating terrorist suspects appears to be headed toward a showdown, recent polling data suggests that the American people are ambivalent on the issue of torture.

Results of some recent surveys of American adults nationwide show that a sizable majority thinks torture of alleged terrorist prisoners is often or sometimes justified, while other polls find that people think the practice is rarely or never justified.

In one poll, however, respondents added a caveat to their vote – 58% would be willing to permit torture if it yielded information that thwarted a major terrorist attack on the U.S.

The issue of prisoner treatment hit front pages worldwide with release of the photographs of American military personnel mistreating detainees at Iraq’s Abu Ghraib prison. Since then, there have been numerous allegations of similar or worse prisoner treatment in other U.S.-run prisons, including the U.S. Navy base at Guantanamo Bay, Cuba.

As a result, Sen. John McCain, an Arizona Republican and Vietnam-era prisoner of war, has introduced legislation that would ban cruel, inhuman or degrading treatment of prisoners by the U.S. military, the Central Intelligence Agency (CIA), and private contractors.

McCain has been locked in a struggle over the measure with the Bush Administration, particularly Vice President Dick Cheney, who has demanded an exemption for the CIA.

But the Senate vote approving the measure was passed 90-9 on a bipartisan basis, despite the administration’s threat to veto it. However, a veto would be difficult for the President, since the McCain measure is attached to a “must-pass” defense department spending bill that provides funding for the U.S. military in Iraq and Afghanistan. The bill is likely to come to a Senate vote before legislators depart for their Christmas break.

One of the polls, conducted by the Pew Research Center, found in a survey of 2,006 people in the general public, 46 percent believe that torturing terror suspects to gain important information is sometimes (31 percent) or often (15 percent) justified while 17 percent thought it is rarely justified and 32 percent were opposed.

But two others produced different results. A CNN / USA Today poll reported that 56% of respondents would be unwilling to permit torture of prisoners, with 38% willing. And Newsweek Magazine’s poll found that 66% of respondents said torture should be used never (33%) or rarely (33%).

The Pew survey also found a pronounced divide between attitudes of the general public and those of more influential Americans. Of the 520 opinion leaders -- academics, news media leaders, military and foreign-affairs experts, religious leaders and scientists – polled on the same issue, no more than one in four believes that torture of terrorist suspects can be sometimes or often justified.

Pew reported that strong opposition to torture is particularly pronounced among security experts, religious leaders and academics, majorities of whom say the use of torture to gain important information is never justified. Nearly half (48%) of scientists and engineers also take this position, as do military leaders (49%), the Pew survey found.

But while opinion leaders largely agree in opposing the use of torture, their views widely differ as to who should be held responsible for prisoner abuse in Iraq and alleged prisoner abuse in the U.S. detention camp at Guantanamo Bay, Cuba.

By more than three-to-one (75%-21%) scientists and engineers say that these abuses were mostly the result of official policies. A majority of security (57%) and foreign affairs experts (58%) agree, along with about half of academics (53%) and news media leaders (53%). But most military (60%) and religious (67%) leaders believe cases of prisoner mistreatment were mostly the result of misconduct on the part of soldiers and contractors.

Pew added, “The American public is far more open than opinion leaders to the use of torture against suspected terrorists in order to gain important information. Nearly half of the public (46%) says this can be ‘often’ (15%) or ‘sometimes’ (31%) be justified. This is consistent with results of Pew surveys since July 2004.”

The Pew poll found that "The general public is divided over this question - 48 percent believe soldiers and contractors are to blame, while 36 percent blame official policies," the report said.

But another poll, conducted by Harris Interactive among American adults nationwide, found that among the 66 percent of adults who believe that prisoners captured in Iraq and Afghanistan were tortured, a 41 percent plurality feels that those in command are most responsible followed by the soldiers (30%), the Administration (13%) and the Pentagon (10%).

In the Newsweek poll, while a majority of respondents (66%) rejected torture, 58% said they would change their vote if torture could prevent a major terrorist attack on the U.S.

In the same poll, 73% of respondents said the torture issue had damaged America’s image abroad ‘a lot’ (39%) or ‘somewhat’ (34%).

Some of the polling was done contemporaneously with disclosure by the Washington Post newspaper that the U.S. had kidnapped prisoners and taken them to secret prisons in Eastern Europe and elsewhere operated by the Central Intelligence Agency (CIA).

On her recent visit to Europe, Secretary of State Condoleeza Rice would neither confirm nor deny the existence of such prisons, but insisted that torture was against both U.S. law and policy.

The NBC/Wall Street Journal poll found that 55% of respondents felt the U.S. had ‘taken the right course’ in holding detainees in such prisons, as opposed to 30%, who felt the government had ‘gone too far’.

Adding fuel to the prisoner treatment issue are allegations that torture and inhuman treatment persist. Most recently, five members of an elite U.S. Army Ranger unit in Iraq were charged with kicking and punching detainees while awaiting movement to a detention facility.

At least 108 people have died in American custody in Iraq and Afghanistan, most of them violently, according to government data provided to The Associated Press. Roughly a quarter of those deaths have been investigated as possible abuse by U.S. personnel. There have been 21 homicides.

The torture issue has drawn strong criticism from human rights groups. Typical is John Sifton of Human Rights Watch. Sifton told IPS, "The Bush administration continues to believe that by invoking the word 'terror' it can detain anyone in any corner of the world without any oversight," he said. "Yet all these cases do is suggest that the United States has no commitment to legal principles. Turning your back on the law is not the way to stop terrorism."

The Harris poll was conducted in April 2005, the Pew poll in September and October, and others in mid-November

WINK, WINK, NOD, NOD

By William Fisher

Washington’s characterization of Egypt’s recent parliamentary election as another important step on the road to democracy is trumped only by President Hosni Mubarak’s cynical demand for a review of the election’s widespread violence and voter disenfranchisement.

Like the aging ruler had no knowledge of why at least ten people were killed and scores more injured during the monthlong election or why police cordoned off many polling stations to prevent people from voting.

Just to remind you, the violence flared after Egypt's banned Islamic movement, the Muslim Brotherhood, won 88 seats compared to the 15 it held in the outgoing 454-member parliament. This happened despite the fact that the Muslim Brotherhood is banned from participating in elections, and its candidates are obliged to run as ‘independents’.

Egyptian authorities say the security measures were taken to enable Egyptians to vote in an orderly manner. Right! The police brutality had nothing to do with trying to prevent the Brotherhood from making even larger gains.

“The elections, with their negative and positive aspects, will be a matter of intensive study by all parties to derive lessons to develop future party and democratic actions,'' Mubarak's spokesman, Suleiman Awwad, quoted the president as telling the lawmakers.

“Negative aspects should be answered strongly so that they will not be repeated.''

Study by whom? Mubarak’s National Democratic Party? The state-controlled media? Not likely. The United States? The United Nations? When pigs fly!

As always, the de-construction of this election will fall to local and international NGOs who monitor bad governance and abuses of human rights. And, if past is prologue, their reports will attract little press attention anywhere.

Mubarak, who has ruled Egypt for a quarter of a century, took his first ‘significant’ step toward democracy by introducing an amendment to the country’s constitution. That measure purported to allow multiple candidates to run against him for the presidency for the first time.

Then came the fine print. The amendment placed severe restrictions on, for example, political parties that would be recognized as ‘legal’ by the government.

That eliminated a lot of the opposition.

Then the government proceeded with what almost everyone agrees were trumped-up charges against Ayman Nour, head of a leading opposition party. Mr. Nour is now on trial for forging signatures on his party’s registration documents, even though his principal accuser has recanted this claim, which he now says was obtained under police duress.

President Bush and his fans may acknowledge that the amendment and the presidential and parliamentary elections were flawed, but that the mere fact that they took place at all represents progress on the road to democratic rule.

They will also imply that none of this good news would have happened without George W. Bush’s call for the democratization of the greater Middle East.

We don’t really know how much impact the Bush doctrine had on the electoral process in Egypt or anywhere else.

What we do know is that, given the enormous largesse the U.S. has doled out to Egypt over the past quarter-century – currently some $2 billion a year – America had more than enough leverage to do much more diplomatically to ensure that Egypt’s first baby steps toward representative government were something better than the political theater of the absurd.

But the Bush Administration values Egypt far more as an ally in its Global War on Terror than as a partner in its Global War for Democracy.

And that excuses even the absurd.

DID YOU HEAR IT?

By William Fisher

Alfred Nobel, the inventor of dynamite, was big on explosions.

And the Committee that bears his name loves them as well.

It set one off in Oslo on Saturday by awarding its Peace Prize to Dr. Mohamed ElBaradei and his International Atomic Energy Agency – and burying the Bush Administration in the fallout.

Through the Bushies’ lens, this was never supposed to happen. ElBaradei should have been out of the IAEA at the end of last year, when his second term expired. Instead, he was unanimously elected to a third term as the organization’s Director General.

The Egyptian-born diplomat and lawyer survived a relentless assault by the Bush Administration, led by our now-Ambassador to the United Nations, John Bolton, and bolstered by the “mushroom cloud” rhetoric of Dick Cheney and Condi Rice.

Maybe ElBaradei’s victory should have served as a portent of Bolton’s effectiveness.

Why did the U.S. have it in for ElBaradei?

Because he told everyone who would listen that there weren’t going to be any mushroom clouds emanating from Baghdad any time soon.

You may remember that in George W. Bush's first State of the Union message, he claimed Iraq was one of three nations that had clandestine nuclear programs. The other two were North Korea and Iran.

"States like these, and their terrorist allies, constitute an axis of evil, arming to threaten the peace of the world. ... I will not wait on events, while dangers gather. I will not stand by, as peril draws closer and closer. The United States of America will not permit the world's most dangerous regimes to threaten us with the world's most destructive weapons," the president said.

But what the Bushies forgot was the IAEA had been granted extraordinary authority by a U.N. Security Council Resolution that gave it authority to identify Iraqi facilities capable of enriching or extracting fissile materials, assess Iraqi industrial capabilities for constructing such plants, identify Iraqi plants capable of producing non-nuclear components of nuclear devices, and search for evidence – including analysis of ongoing research and development activities – of an Iraqi nuke program.

Had the IAEA inspectors had found any of the above, they could have asked the U.N. Security Council to impose sanctions, including the use of military force.

The IAEA found nothing, and so announced to the world in 2002.

It exposed the forged documents that purported to show that Iraq had attempted to buy uranium ore from Niger – which eventually brought us Plamegate. In a report to the U.N. Security Council in March 2003, ElBaradei declared that there was “no indication of resumed nuclear activities... nor any indication of nuclear-related prohibited activities at any inspected sites”.

He also questioned the U.S. rationale for the war in Iraq since the 2003 Iraq disarmament crisis, when he, along with Hans Blix, led a team of U.N. inspectors in Iraq, seeking evidence of weapons of mass destruction.

ElBaradei’s reports refuted the litany of charges presented by Powell to the U.N. Security Council in February 2003 to justify military invasion. The IAEA’s evidence was a key factor in the Security Council’s refusal to bless the U.S. attack.

But the Bush Administration wasn’t listening. Why let a few pesky facts get in the way of a grandiose project to democratize the Middle East?

ElBaradei had to go. The White House made no secret of its desire to replace him when his second term expired this year. As early as September 2004, Secretary of State Colin Powell called for ElBaradei to step down, justifying his demand on the pretext that there was an informal “rule” that senior U.N. positions should be limited to two terms. Meanwhile, as revealed by The Washington Post, the White House spin machine was busy spreading malicious rumors and U.S. intelligence agencies were intercepting dozens of ElBaradei’s phone calls in an effort to dig up embarrassing details that could be used to oust him.

The Bush administration started sounding out possible replacements for ElBaradei, including two South Korean officials, a Brazilian disarmament expert, two Japanese diplomats and, most promising to the White House, Australian foreign minister Alexander Downer – a man with no experience with nuclear issues whose principal qualification appeared to be his ability to memorize Bush talking points.

But when Downer declined to be nominated, the U.S. found itself without a candidate, and with an IAEA Board eager to appoint ElBaredei to a third term.

In accepting his Nobel Peace Prize, ElBaradei said that six decades later and 15 years after the end of the Cold War, the threat of nuclear nightmare remains strong.

“The world community is deeply concerned about possible atomic weapons programs in Iran and North Korea, and terrorists' increasingly sophisticated efforts to obtain nuclear weapons”, he said.

Globalization, he declared, has “swept away the barriers to the movement of goods, ideas and people but is has also removed barriers that confined and localized security threats."

"There are three main features to this changing landscape: first, the emergence of an extensive black market in nuclear material and equipment; second, the proliferation of nuclear weapons and sensitive nuclear technology; and third, the stagnation in nuclear disarmament."

But, Nobel notwithstanding, the Bush Administration is probably not finished trying to undermine ElBaradei. They think he’s too soft on Iran – and often refer to his Iranian-born wife as the reason.

I don’t know how ElBaradei plans to deal with Iran. But could his plan be worse than the Bush Administration’s non-policy of using the Europeans to do what it should be doing itself?

THE ISSUE THAT WON’T GO AWAY

By William Fisher

As Secretary of State Condoleeza Rice stilettos her way across Europe facing tough questions about who, where and how the U.S. treats prisoners in the “global war on terror”, 2005 may be remembered as the year “torture” and “rendition” became parts of the everyday American vocabulary.

The latest iteration of these issues arose from the Washington Post’s recent disclosure that the U.S. Central Intelligence Agency (CIA) was using its fleet of secret aircraft to render high value terror suspects to secret prisons it is reportedly operating in former Soviet bloc states in Eastern Europe.

To avoid compromising national security, The Post did not name the countries, but they have been widely reported to be Poland and Rumania. At former Soviet gulags there, “ghost prisoners” simply fall off the radar – unnamed, unregistered, without access to lawyers, family members, or the International Committee of the Red Cross.

The Post reported that prisoners were routinely tortured, using such techniques as “waterboarding” – submerging a prisoner in restraints in water to convince him he was drowning -- mock execution, prolonged shackling, being threatened with dogs, and "cold cell," in which prisoners are held naked in low temperatures and doused with cold water.

The Rice trip was intended to rebuild America’s damaged bridges with its European allies. The new German chancellor, Angela Merkel, was particularly eager to end German-American bickering over the Iraq war. Instead, before boarding her flight, Rice felt compelled to deliver a statement asserting that as a “matter of policy” America “does not torture”, while sidestepping the issue of the alleged secret prisons.

But in Europe, torture and rendition refused to go away. They were a central theme in virtually all of the press appearances Rice made following her meetings with European leaders.

The issues were particularly contentious in Germany, where a German citizen, Khaled al-Masri, announced he is suing the former CIA director George Tenet for forcibly taking him from Macedonia and to Afghanistan, where he was imprisoned incommunicado for five months. The American Civil Liberties Union (ACLU) is pursuing the case on the German’s behalf.

Rendition is known to have been a CIA practice for some years. But its frequency increased exponentially after 9/11, with reportedly dozens of prisoners being kidnapped from Italy, Sweden and other European countries, as well as from the U.S., and sent to other countries with well-known histories of torturing prisoners. Italy is currently suing the U.S. for kidnapping an Italian citizen on Italian soil.

The Center for Constitutional Rights (CCR), a major advocacy group, filed the first court challenge to rendition this year. The case is pending.

Fuelling the prisoner fire, Louise Arbour, the high commissioner for human rights at the United Nations, said yesterday that the U.S.-led fight against terrorism is eroding the time-honored international prohibition of torture and other forms of cruel or degrading treatment of prisoners. She said that holding suspects incommunicado in itself amounts to torture.

But America’s European problems are only the latest in a long litany of rendition and torture issues that began to come to light with release of the photographs of prisoner abuse at Abu Ghraib prison in Iraq.

That disclosure created a firestorm of protests and questions that eventually implicated other military prisons in Iraq, the U.S. naval base at Guantanamo Bay, Cuba, Bagram Air Force Base in Afghanistan, and other detention centers around the world.

The Department of Defense (DOD) has carried out 15 separate investigations of prisoner abuse and rendition issues. A number of enlisted soldiers were court martialled and sent to jail, and a few higher-ranking officers were reprimanded or demoted. But no accountability was demanded of the CIA, private contractors, or the Bush Administration, which critics say failed to train interrogators and created an environment of legal abuse by using presidential power to designate people as “enemy combatants” and thus deny them the protections of the Geneva Conventions.

The most recent of these investigations recommended that Maj. Gen. Geoffrey Miller be reprimanded for his mistreatment of Guantanamo prisoners and for then “migrating” his “aggressive” interrogation techniques to Iraq. But a higher military authority rejected the recommendation.

Meanwhile, Guantanamo Bay has become a legal nightmare for the U.S. American authorities sent more than 800 alleged terrorists to the prison at Guantanamo Bay, largely from Afghanistan, but from other countries as well. Guantanamo was chosen because it was thought to be beyond the reach of U.S. law, but courts ruled that the base, which is leased from the Government of Cuba, was effectively under American control.

The ACLU and other organizations sued the Government under the Freedom of Information Act (FOIA) and obtained a massive trove of documents in which agents of the Federal Bureau of Investigation (FBI) reported that military interrogators were abusing prisoners.

U.S. soldiers have also been charged with the murder of a detainee in Afghanistan.

Equally problematic, the Defense Department’s system for reviewing the status each prisoner denies the accused the most basic legal rights, including access to lawyers, the opportunity to see the evidence against them – which is often classified -- or to call witnesses to prove they were being held in error. Several U.S. civilian courts ruled the system unconstitutional and no trials have been conducted.

Meanwhile, a federal appeals court panel ruled unanimously that President Bush has the authority to indefinitely detain an American citizen, Jose Padilla, arrested in the U.S., as an enemy combatant.

But another appeals court questioned the Bush administration's operations at Guantanamo Bay, Cuba (GITMO), where almost all detainees have been categorized by military tribunals as enemy combatants.

Padilla was charged in civilian court with lesser offenses two weeks ago in order to keep the Supreme Court from hearing his appeal.

In an earlier case involving a non-American, Yaser Esam Hamdi, the Supreme Court ruled that an American citizen could be detained by President Bush as an enemy combatant because he was purportedly captured while fighting in Afghanistan. But, even under that circumstance, the court added to the ambiguity by ruling that Hamdi was entitled under the Constitution to contest the allegations made against him by "a neutral decision-maker."

Hamdi was hurriedly sent back to his home country, Saudi Arabia, before his case could be resolved.

After last year's Supreme Court ruling, the Pentagon set up a new system of tribunals of U.S. military officers to review the detainees' status. The tribunals have been criticized by many senior military lawyers, who have called them kangaroo courts.

The Pentagon is currently holding more than 500 prisoners at GITMO. More than 200 of them are currently staging a hunger strike to protest their treatment.

Brian J. Foley, a professor at Florida Coastal Law School, told IPS regarding the Padilla case, “For a court to say that any person imprisoned by the government, especially an American citizen, can be held without access to a judge for an evidentiary hearing and without any right to habeas corpus is frightening, and contrary to hundreds of years of our legal tradition.”

Torture has – critics say belatedly – recently become a headline-grabbing issue in Congress. Sen. Lindsay Graham, a conservative Republican from South Carolina and a former military judge, introduced a measure that would make the Uniform Code of Military Justice (UCMJ) the absolute rulebook for how prisoners should be treated. The UCMJ forbids cruel, inhumane or degrading treatment of detainees. The measure was approved 91 to 9. The measure rejected a detainee’s right to file for habeas corpus, but provided for a Federal appeals court to review cases involving sentences of more than 10 years

At the same time, the senate overwhelmingly passed a measure by Arizona Republican Sen. John McCain that would prohibit cruel, inhumane or degrading treatment of prisoners by anyone representing the U.S. – including the CIA. The Bush administration, led by Vice President Richard Cheney, has been lobbying to exempt the CIA, threatening a presidential veto if it were passed. It now appears that the administration’s objections have failed, and Cheney is now seeking language that would protect CIA operatives from punishment in certain circumstances.

The Senate also passed an amendment mandating that the Defense Secretary inform Congress about U.S.-run secret prison facilities in foreign countries.

But at the same time, the Republican-led Senate rejected a Democratic effort to establish an independent commission to investigate U.S. military interrogation practices. The 55 to 43 vote was split largely along party lines. Democrats were trying to set up a panel along the lines of the 9/11 Commission to investigate U.S. detainee treatment in Iraq, Afghanistan, and at Guantanamo.

The McCain proposal will be a top item on the Senate’s agenda when it returns from its Thanksgiving recess next week. With the 2006 Congressional elections less than a year away, and President Bush’s poll numbers falling, many Republicans as well as almost all Democrats are struggling to distance themselves from his positions.

That is likely to ensure that torture and rendition are not disappearing from the national dialogue any time soon.

Accountability Not a Part of Iraq Strategy

Former Republican congressman from Georgia and U.S. attorney Bob Barr practices law in Atlanta.

By Bob Barr

Last week, former U.S. Rep. Randy "Duke" Cunningham (R-Calif.) pleaded guilty to bribery and resigned his seat in the Congress. Witnessing a friend, who served America with great distinction in Vietnam and in the House of Representatives, fall so hard was heart-wrenching.

However, I did admire the fact that Cunningham confronted his crimes, entered a plea without first blaming someone else and seeking a bargain, and voluntarily stepped down from his elected office to await a certain prison term.

He accepted responsibility. The corruption-tainted buck stopped with him, and he was man enough to admit it. Too bad there aren't more public servants willing to admit error, take responsibility and do something about it. In Iraq, for example.

The news coming out of Baghdad and other Iraqi cities with names becoming all too familiar to us has been especially bad recently; and not just the fact that our high-tech-equipped troops keep falling prey to low-tech improvised roadside bombs.

We now know that our government, which misses no opportunity to tout the great strides the Iraqi people are making toward building a free society, has been secretly paying Iraqi journalists to disseminate self-serving stories about how great things are over there. Apparently, we expect the Iraqis (and the rest of the world that is watching with great interest how we comport ourselves in Iraq) to watch what we say — "a free press is essential to a free society" — not what we do — control the Iraqi media to serve our needs.

When he addressed this problem this week, Defense Secretary Donald Rumsfeld, a graduate of the Bush School of the Never-Admitted Error, refused to take responsibility and instead blamed the contractors who placed the stories in the Iraqi press, for not placing them properly (after all, the U.S. company responsible for placing the self-serving articles has only a $6 million contract for its work; hardly enough to do an adequate job). If Cunningham had been secretary of Defense, and he was caught with his hand in the Iraqi inkwell, at least he'd admit a mistake was made, and heads would roll, perhaps even his own.

The lack of leadership and responsibility is evident also in the news seeping out of Iraq and Washington that corruption – perhaps on a scale that would make New Orleans politicos green with envy – in the funding of the "reconstruction effort" may be much more widespread than previously admitted. While a lieutenant colonel in the Army Reserves recently became the first American officer charged with graft in the awarding of contracts in Iraq, such a step appears decidedly timid when one considers the scope of the potential loss of taxpayer dollars as a result of the lack of accountability that seems to permeate the funding of the entire Iraq operation.

Of the nearly $360 billion set aside for U.S. military operations since Sept. 11, more than $250 billion has been shoveled into Iraq. The low priority the federal government places on trying to account for that huge sum of taxpayer money, however, is evident in the fact that the Department of Defense inspector general's office reportedly maintains not a single auditor in Iraq.

Also telling is the fact that only a small percentage of the funds appropriated for the Iraq effort have been audited. The Pentagon's apparent disinterest in accounting for the massive amount of money under its control is evident in an investigation conducted recently by the nonpartisan Government Accountability Office, which found that at least $7 billion supposed to be used for the war on terrorism was unaccounted for. Reportedly, all government audits of the anti-terror funds have pinpointed more than $20 billion that seems to have been lost.

Here again, eschewing the Duke Cunningham principle that if you screw up, you admit it and take your punishment like a man, the Congress and the White House are responding to the accounts of massive mismanagement of monies by — you guessed it — preparing yet another supplemental spending package of some $45 billion to be tacked onto the nearly $50 billion already set aside for next year.

Unfortunately, the same perspective that has given us such massive potential lost tax dollars in Iraq enabled Cunningham to reap a few million dollars in bribes from some relatively minor defense contractors. The Defense Department team of auditors, the men and women who just might catch some of this mismanagement and corruption, has shrunk dramatically in the past few years (by some 2,000, according to press accounts). Who's in charge here?

TERRORISM PROSECUTIONS, 2005: HOW MUCH PROGRESS?

By William Fisher

Amidst charges that President Bush and U.S. Department of Justice (DOJ) are inflating the number of criminal prosecutions for terrorism, five cases shed light on the administration’s mixed record of convictions during 2005.

In a Florida case, officials at the Federal Bureau of Investigation (FBI) falsified documents in an effort to cover repeated missteps and then retaliated against an agent who first complained about the problems.

After being held for more than three years in U.S. military custody, Jose Padilla, a U.S. citizen arrested in Chicago and labeled an "enemy combatant" by the Bush administration, was charged conspiracy to murder U.S. nationals and providing “material support” to terrorists – but not with the charges he had been originally accused of: plotting to detonate a radioactive "dirty bomb" in the United States and to blow up apartment buildings using natural gas lines.

The case against the so-called "Detroit sleeper cell" – once hailed as a significant Justice Department triumph in the “Global War on Terror”-- was dismissed after a jury convicted two men of supporting terrorism. Now a federal grand jury in Detroit is investigating whether the lead prosecutor, Richard Convertino, should be indicted for hiding exculpatory evidence from the defense, including altering dates on three FBI forms using correction fluid to conceal an apparent violation of federal wiretap law.

Ahmed Omar Abu Ali, 24, a U.S. citizen held in a Saudi Arabian jail for 20 months allegedly at the behest of the U.S., was convicted in Virginia of conspiracy to assassinate the president, conspiracy to commit aircraft piracy and contributing services to al-Qaida. He faces up to life in prison. Abu Ali claimed that he was tortured into a false confession by Saudi authorities, but the jury rejected that charge.

A former Florida professor, Sami Al-Arian, 47, accused of helping to lead a terrorist group that has carried out suicide bombings against Israel, was acquitted on nearly half the charges against him and the jury deadlocked on the rest including charges he aided terrorists. The case was seen as one of the biggest courtroom tests yet of the Patriot Act's expanded search-and-surveillance powers.

These cases provide context for assertions by President Bush, his Attorney General, Alberto Gonzales, and many other senior administration officials, that "federal terrorism investigations have resulted in charges against more than 400 suspects, and more than half of those charged have been convicted."

But, according to an analysis of the DOJ’s own records by the Washington Post, the numbers are misleading. The paper claimed that 39 people -- not 200, as officials have implied – have been convicted of crimes related to terrorism or national security”.

“Most of the others were convicted of relatively minor crimes such as making false statements and violating immigration law -- and had nothing to do with terrorism”, the analysis shows. “For the entire list, the median sentence was just 11 months.”

Said The Post, “Taken as a whole, the data indicate that the government's effort to identify terrorists in the United States has been less successful than authorities have often suggested. The statistics provide little support for the contention that
authorities have discovered and prosecuted hundreds of terrorists here. Except for a small number of well-known cases -- such as truck driver Lyman Faris, who sought to take down the Brooklyn Bridge -- few of those arrested appear to have been involved in active plots inside the United States.”

It added, “Among all the people charged as a result of terrorism probes in the three years after the Sept. 11, 2001, attacks, The Post found no demonstrated connection to terrorism or terrorist groups for 180 of them”.

Bush Administration officials have not denied the accuracy of The Post’s analysis.

The DOJ’s campaign to round up and detain alleged terrorists began under then Attorney General John Ashcroft almost immediately following the attacks on the World Trade Center and the Pentagon on September 11, 2001. During that period, large numbers of people -- primarily Arabs and other Muslims as well as South Asians – were arrested by the DOJ and held without charges or lawyers in jails run by immigration agencies.

No one caught up in this dragnet was ever accused of any terror-related crime. Some were released, often after being held incommunicado for months. Some claimed to have been beaten or otherwise mistreated. Most were deported for immigration violations – not a criminal offense under U.S. law.

David Cole, a professor at the Georgetown University Law Center and author of "Enemy Aliens," asserts that the "centerpiece of the domestic war on terrorism has been preventive detention."

"In the first seven weeks after Sept. 11, the DOJ admitted to detaining nearly 1,200 men as suspected terrorists, nearly all foreign nationals," he said.

"It subsequently adopted two anti-terrorism immigration initiatives that were aimed at men from Arab and Muslim countries on the theory that they were more likely to be terrorists. Those programs led to the detention of nearly 4,000 more people. Yet of these, not one stands convicted of any terrorist offense. The administration's record is zero for 5,000."

In a number of cases since then, the DOJ has conducted numerous high-profile press conferences accusing people of terror-related offenses, only to be prevented from bringing these charges in court because torture had been used to extract confessions from the targets. Evidence obtained through torture is not admissible as evidence in a U.S. court. The Padilla case is an example.

The DOJ has also used the “material witness” charge to keep people in custody. For example, Brandon Mayfield, an Oregon lawyer, was held for two weeks on suspicion of being a participant in the Madrid train bombing. He was released after the FBI acknowledged it was wrong when it identified a fingerprint on a backpack found in near the crime scene as Mayfield’s. He is suing the Justice Department.

Whistleblowers and people who claim to be have been victims of “extreme rendition” – being forcibly taken by U.S. authorities to be detained by countries known to inflict torture on prisoners – have been prevented from bringing their cases to U.S. courts through a variety of legal maneuvers by the DOJ.

For example, the Bush Administration has successfully invoked the “State Secrets” defense to head off suits against the government, claiming that U.S. national security would be compromised if plaintiffs’ evidence were to be made public in court.

The best known of these cases involved Sibel Edmonds, an FBI contract linguist, who was fired after she accused the Bureau of criminal activities committed by government officials and employees, and prevented from suing through invocation of the “State Secrets” defense by the Government.

The Government’s prosecution of suspected terrorists has also yielded some quirky results. Perhaps the quirkiest is the case of Dr. Steve Kurtz, an art professor at the University of Buffalo in New York State. After finding laboratory equipment and a vial of bacteria in his home, government officials including New York Governor George Pataki denounced Kurtz as a bio-terrorist. As the case folded, it was revealed that Kurtz was using the equipment for an art installation. He was charged not with a terror-related crime but with mail fraud for ordering the bacteria from a fellow professor, who was also charged. Public health authorities in Buffalo determined that the bacteria were harmless. The case is still pending.