Judge sides with Khadr defence team

OMAR EL AKKAD

Globe and Mail Update

March 14, 2008 at 3:49 PM EDT

A U.S. military judge has sided with Omar Khadr's defence team and ordered that a senior U.S. officer be deposed before Mr. Khadr's trial begins.

In a ruling issued Friday, Army Colonel Peter Brownback sided with the defence on five motions, granting Mr. Khadr's lawyers more access to a variety of information the prosecution had until now refused to hand over.

One of the most important rulings regarded a U.S. officer named "Lieutenant Colonel W.," who wrote a report about the 2001 Afghanistan firefight where Mr. Khadr is alleged to have killed a U.S. soldier. In a copy of the report dated the day after the firefight, the Lt.-Col. wrote that the U.S. soldier's attacker was subsequently killed by other soldiers.

In an almost identical copy of the report written several months later, that reference is altered to say that the U.S. soldier's attacker was only "engaged" by other soldiers, implying the attacker — alleged to be a then-15-year-old Mr. Khadr — lived.

Because of the discrepancy in the two reports, Mr. Khadr's defence team asked for access to the Lt.-Col. so he could be questioned before the trial begins. Over the objections of the prosecution, Judge Brownback agreed with the defence, saying the taking of testimony "is in the interests of justice."

The judge also ruled that the prosecution must provide to the defence a list of all personnel who interrogated Mr. Khadr. If the defence wishes to interview any of those personnel, the judge ruled, the prosecution must provide a phone number and time for such an interview.

The prosecution was also ordered to make available to the defence any notes taken by interrogators and other government agents during all interrogations of Mr. Khadr dating back to 27 July, 2002 — the day of the Afghanistan firefight during which Mr. Khadr was captured.

Despite the string of victories, Mr. Khadr's defence team is complaining that the prosecution is stalling the release of certain documents to the public. Friday's judge's decisions came as a result of several motions filed by the defence. However, those motions, which contain more details about certain allegations and evidence, have not yet been made public. Mr. Khadr's lawyers argue that's because the prosecution is hoping to release the documents after the current bout of media attention to the case dies down.

Lawyers were set to leave Guantanamo Bay on Friday afternoon, and are not officially due back until May. However it is expected that the two sides will be back in court at Guantanamo Bay arguing over more discovery motions next month.

Mr. Khadr faces several charges before a U.S. military commission here. The most serious of the charges is murder. If convicted, the 21-year-old could face life in prison.

Following the revelation that a U.S. military report on the firefight was altered, Mr. Khadr's case was raised in Question Period in Ottawa Friday morning. In response, the Conservative government repeated the same position they have previously stated on the case: the charged against Mr. Khadr are very serious and the government has received assurances he is being treated humanely.

C.I.A. Secretly Held Qaeda Suspect, Officials Say

By MARK MAZZETTI

WASHINGTON — The Central Intelligence Agency secretly detained a suspected member of Al Qaeda for at least six months beginning last summer as part of a program in which C.I.A. officers have been authorized by President Bush to use harsh interrogation techniques, American officials said Friday.

The suspect, Muhammad Rahim, is the first Qaeda prisoner in nearly a year who intelligence officials have acknowledged has been in C.I.A. detention. The C.I.A. emptied its secret prisons in the fall of 2006, when it moved 14 prisoners to Guantánamo Bay, Cuba, but made clear that the facilities could be used in the future to house high-level terrorism suspects.

Mr. Bush has defended the use of the secret prisons as a vital tool in American counterterrorism efforts, and last July he signed an executive order that formally reiterated the C.I.A.’s authority to use interrogation techniques more coercive than those permitted by the Pentagon.

Mr. Bush used his veto power last weekend to block legislation that would have prohibited the agency from using the techniques, and this week the House of Representatives failed to override the veto.

Military and intelligence officials said that Mr. Rahim was transferred earlier this week to the military prison at Guantánamo Bay. In a message to agency employees on Friday, Gen. Michael V. Hayden, the C.I.A. director, said Mr. Rahim had been put into the C.I.A. program because of “his past and the continuing threat he presented to American interests.”

Intelligence officials would not say whether the C.I.A. had used any of what it calls an approved list of “enhanced” interrogation techniques against Mr. Rahim during his months in secret detention.

“This detention, like others, was conducted in accordance with U.S. law,” said Paul Gimigliano, a C.I.A. spokesman. He declined to say whether the C.I.A. currently had custody of any other prisoners.

Government officials described Mr. Rahim, an Afghan who has fought battles for two decades, as a Qaeda planner and facilitator who at times in recent years had been a translator for Osama bin Laden.

They said he was captured and detained by local forces last summer in a country they would not name before being transferred to C.I.A. custody. Pakistani newspapers reported last summer that Pakistani operatives arrested Mr. Rahim in Lahore in August.

Before Mr. Rahim, the last prisoner the C.I.A. acknowledged it had detained was Abd al-Hadi al-Iraqi, an Iraqi Kurd held by the agency for six months before being transferred to Guantánamo last April.

In his message to C.I.A. employees on Friday, General Hayden called Mr. Rahim a “tough, seasoned jihadist” with “high-level contacts” who at times had served as a personal translator for Mr. bin Laden. The message said that in 2001, Mr. Rahim helped prepare the Afghan cave complex of Tora Bora as a hideout for Qaeda fighters fleeing the American-led offensive.

According to an American counterterrorism official, Mr. Rahim is in his 40s and is a native of Nangarhar Province in Afghanistan, a rugged mountain territory that has long been a hive of jihadi activity.

The counterterrorism official, who spoke on the condition of anonymity because he was not authorized to speak publicly, said that Mr. Rahim had attended radical madrasas, or religious schools, in Pakistan.

The Bush administration last month formally charged six Qaeda operatives said to have been involved in plotting the Sept. 11 attacks. Five of the six detainees, including Khalid Sheikh Mohammed, the alleged mastermind of the attacks, had been in C.I.A. custody until September 2006, when they were among the 14 prisoners moved to Guantánamo.

Military prosecutors have decided to seek the death penalty against the six men, government officials have said. During a speech on Friday in London, Attorney General Michael B. Mukasey said he hoped that the six men would not receive the death penalty. If they were to be executed, he said, “they would see themselves as martyrs.”

Also on Friday, a lawyer representing Majid Khan, who had spent more than three years in the C.I.A.’s secret prisons, briefed Senate Intelligence Committee staff members on her client’s description of his treatment there as torture. The lawyer, Gitanjali Gutierrez of the Center for Constitutional Rights, is the first lawyer to speak to Congress after meeting with a prisoner who was in the C.I.A. program.

The 90-minute meeting was closed, and Ms. Gutierrez said that she could not reveal what Mr. Khan had said about his treatment because the government declared prisoners’ statements to be classified.

Ms. Gutierrez said her testimony was aimed at giving Congress independent information on the C.I.A. program, which she said “is operating criminally, shamefully and dangerously.” C.I.A. officials say all of the agency’s interrogation techniques were lawful at the time they were used.

Scott Shane contributed reporting.

The Unstudied Art of Interrogation

By SCOTT SHANE

Washington

HOW do you get a terrorist to talk? Despite the questioning of tens of thousands of captives in Iraq and Afghanistan in the last six years, and a high-decibel political battle over torture, experts say there has been little serious research to answer that crucial question.

The Bush administration has yet to fill the void, instead getting enmeshed in a defense of waterboarding — which the Central Intelligence Agency says it has not used in five years but which critics have seized on as a powerful symbol of how not to conduct war. And Congress, for its part, has skipped over the question in passing a bill (knowing that it would be vetoed by President Bush) that bans harsh interrogations but requires the C.I.A. to use only the tactics listed in the Army’s playbook.

Certainly the debate is rich in emotion, with each side claiming the moral heights: You approve torture! You’re coddling terrorists! But the arguments have been scant on science to back them up.

“We don’t have any idea — other than anecdote or moral philosophy — what really works,” said Benjamin Wittes of the Brookings Institution, author of “Law and the Long War: The Future of Justice in the Age of Terror,” set to be published in June.

There is the Army Field Manual 2-22.3, officially titled “Human Intelligence Collector Operations.” It eschews coercion and instead offers general advice on behavior (“People tend to want to talk when they are under stress and respond to kindness and understanding during trying circumstances”). It offers 19 approaches to interrogation that Congress wants the C.I.A. to stick to, including Mutt and Jeff, or good cop, bad cop; We Know All, in which the interrogator pretends merely to be confirming details of a story he knows already; Rapid-Fire Questioning, to produce contradictions that can then be challenged; Ego Up, in which flattery produces a bond; and False Flag, in which an American interrogator poses as one from another nation. The principles are familiar to anyone who’s watched enough police procedurals.

But the manual’s inherited wisdom has not been updated to reflect decades of corporate analysis of how to influence consumers. Behavioral economists have dissected decisionmaking, and academic psychologists have studied political persuasion, but their lessons have not informed the interrogator’s art either. Nor has there been a systematic effort to analyze the successes and blunders of the interrogations carried out since the attacks of 2001.

Steven M. Kleinman, a colonel in the Air Force reserve and a veteran interrogator in Iraq and elsewhere, says the government spends billions on spy satellites but almost nothing on studying interrogation. This is true, he said, despite a broad consensus that interrogation might be the best source of information on an elusive, low-tech, stateless foe like Al Qaeda.

“We need to bring scientific standards for interrogation to the same level of sophistication that we bring to satellite imagery and intercepting communications,” said Mr. Kleinman, who has studied the American interrogation programs used for high-level German and Japanese prisoners during World War II, which he judges superior to those developed since 2001.

Both Mr. Wittes and Mr. Kleinman occupy a middle ground of sorts in the standoff between Congress and the White House. They are outspoken opponents of the harshest methods used by the C.I.A. in 2002 and 2003. But they also argue that the Congressional bill imposing the Army’s methods would make bad policy in the long run by stifling creativity and deterring serious study of a critical subject.

Mr. Kleinman said he envisioned a new intelligence agency or subagency devoted solely to interrogation — sponsoring research, conducting training and building a team of sophisticated interrogators with linguistic and psychological skills. He speaks of creating a high-level interrogation center in the United States where settings could be customized for a particular suspect, Hollywood-style, “whether it’s a Bedouin tent or a suite at the Waldorf.”

“The overriding principle should be: Make it as easy as possible for someone to cooperate with you,” he said. “If we want someone to re-create in minute detail something that happened three years ago, how can we help them remember?”

Mr. Kleinman said such a center would be wired for video and audio recording, in part to assure that interrogators follow the rules but also to let analysts with various kinds of expertise return to the suspect’s exact words and body language.

In a quiet effort to shift public talk from the past (waterboarding) to the future, a panel of experts, named by the Intelligence Science Board, which advises the intelligence agencies, has been pressing the administration to begin research on identifying the most effective, humane ways of questioning terrorist suspects. Robert A. Fein, a Harvard psychologist who heads the group, made such a presentation to 70 officials at the White House in January. According to people who have heard his talks, Dr. Fein, who declined to comment for this article, is concerned that even the word “interrogation” is tainted by torture. He uses the term “intelligence interviewing” for the skills he promotes.

All the talk of comfortable conditions, helping terrorists remember and preserving sessions on videotape stands in almost comic contrast to the C.I.A.’s approach in 2002, which resorted to exposure to heat and cold, bombardment with noise, sleep deprivation and waterboarding.

A C.I.A. spokesman, Paul Gimigliano, said the agency’s methods “have proven to be very effective, producing information that has led to the capture of terrorists and the disruption of their operations.” All the methods were lawful, he said, noting that the program “has evolved over time.”

The argument against the use of pain or physical torture is practical as well as moral. From the Spanish Inquisition to Pol Pot’s Cambodia, brutal interrogations have been used to force confessions, often without regard to truth.

The government stopped sponsoring interrogation research in the 1970s, after Congressional investigators uncovered gruesome accounts of “mind control” experiments with drugs like LSD. In the polarized atmosphere of the waterboarding debate, it remains to be seen whether Congress or the public will endorse a carefully regulated program to find new ways of persuading people to give up their secrets.

Bush vetoes bill outlawing CIA waterboarding

WASHINGTON (Reuters) - President George W. Bush on Saturday vetoed legislation passed by Congress that would have banned the CIA from using waterboarding and other controversial interrogation techniques.

Lawmakers included the anti-torture measure in a broader bill authorizing U.S. intelligence activities.

"Because the danger remains, we need to ensure our intelligence officials have all the tools they need to stop the terrorists," Bush said in his weekly radio address. He added that the vetoed legislation "would diminish these vital tools."

The House of Representatives approved the legislation in December and the Senate passed it in February despite White House warnings it would be vetoed.

CIA Director Michael Hayden told Congress last month that government interrogators used waterboarding on three suspects captured after the September 11 attacks.

The simulated drowning technique has been condemned by many members of Congress, human rights groups and other countries as a form of illegal torture.

The U.S. Army Field Manual prohibits waterboarding and seven other interrogation methods and the bill would have aligned CIA practices with the military's.

In his remarks, Bush did not specifically mention waterboarding.

But he said: "The bill Congress sent me would not simply ban one particular interrogation method, as some have implied. Instead, it would eliminate all the alternative procedures we've developed to question the world's most dangerous and violent terrorists."

It is unlikely that Democrats, the majority party in Congress, could muster enough votes to overturn Bush's veto. The bill passed the House and Senate on partisan votes, short of the support needed to reverse the president.

(Reporting by Richard Cowan; Editing by Xavier Briand)

Bush Approves New CIA Methods

Interrogations Of Detainees To Resume

By Karen DeYoung
Washington Post Staff Writer
Saturday, July 21, 2007; A01

President Bush set broad legal boundaries for the CIA's harsh interrogation of terrorism suspects yesterday, allowing the intelligence agency to resume a program that was suspended last year after criticism that it violated U.S. and international law.

In an executive order lacking any details about actual interrogation techniques, Bush said the CIA program will now comply with a Geneva Conventions prohibition against "outrages upon personal dignity, in particular humiliating and degrading treatment." His order, required by legislation signed in October, was delayed for months amid tense debate inside the administration.

"We can now focus on our vital work, confident that our mission and authorities are clearly defined," CIA Director Michael V. Hayden said in a statement to agency employees. Although human rights groups have alleged that CIA interrogators used torturous and illegal methods, Hayden said the program had gleaned "irreplaceable" information from terrorism detainees.

Two administration officials said that suspects now in U.S. custody could be moved immediately into the "enhanced interrogation" program and subjected to techniques that go beyond those allowed by the U.S. military.

Rights activists criticized Bush's order for failing to spell out which techniques are now approved or prohibited. It said instead that CIA interrogators cannot undertake prohibited acts such as torture and murder, and it barred religious denigration and humiliating or degrading treatment "so serious that any reasonable person, considering the circumstances, would deem" it "beyond the bounds of human decency." Detainees, it said, must be provided with "the basic necessities of life," including adequate food and water, clothing, essential medical care, and "protection from extremes of heat and cold."

"All the order really does is to have the president say, 'Everything in that other document that I'm not showing you is legal -- trust me,' " said Tom Malinowski of Human Rights Watch.

The CIA interrogation guidelines are contained in a classified document. A senior intelligence official, asked whether this list includes such widely criticized methods as the simulated drowning known as "waterboarding," declined to discuss specifics but said "it would be very wrong to assume that the program of the past would move into the future unchanged."

CIA detainees have also alleged they were left naked in cells for prolonged periods, subjected to sensory and sleep deprivation and extreme heat and cold, and sexually taunted. A senior administration officials briefing reporters yesterday said that any future use of "extremes of heat and cold" would be subject to a "reasonable interpretation . . . we're not talking about forcibly induced hypothermia."

Congressional reaction to the order was muted, as key lawmakers said they were only informed of its contents yesterday. Republican Sens. John McCain (Ariz.), Lindsey O. Graham (S.C.) and John W. Warner (Va.), who helped draft legislation last year requiring the executive order, issued a joint statement that they needed more information before making a judgment. They said the administration has not responded to the questions they asked during a recent briefing on the new order and the detainee program.

Sen. John D. Rockefeller IV (D-W.Va.), chairman of the Senate intelligence committee, said it was unclear what the order "really means and how it will translate into actual conduct by the CIA." In a statement, Rockefeller repeated a committee demand made last spring that the White House turn over a copy of the Justice Department's legal analysis of the new guidelines.

Similar demands for internal documents related to the Bush administration's warrantless surveillance program have been rebuffed by the White House.

The steps leading to yesterday's order began with Bush's determination in January 2002 that members of al-Qaeda and the Taliban, as well as other allegedly terrorist captives, were "enemy combatants" rather than prisoners of war covered by the 1949 Geneva Conventions.

Criticism of the U.S. military's treatment of detainees -- first in Afghanistan and at the military prison at Guantanamo Bay, Cuba, and later at the Abu Ghraib prison in Iraq -- eventually provoked the Pentagon to rewrite its interrogation guidebook and explicitly ban many of the techniques endorsed and used by the CIA. But a new law enforced those limits only for detainees in military custody.

Criticism of the CIA began with revelations in late 2005 that the agency had imprisoned and interrogated "high-value" suspects in secret prisons in third countries. But after the Supreme Court ruled last summer, in Hamdan v. Rumsfeld, that all U.S. prisoners -- of any nationality, being held in any country -- were covered by Geneva protections against degrading treatment, Bush publicly confirmed the existence of the CIA prisons and announced that 14 remaining CIA prisoners had been transferred to military custody at Guantanamo.

Bush maintained the CIA interrogation program had always been legal, but the White House said the Geneva provision, Common Article 3, was vague and undefined. After the CIA suspended its "enhanced interrogations" to ensure its officers could not be charged with crimes, Congress ordered the administration to ensure, via executive order, that any further such interrogations complied with both domestic and international law.

Bush's statement said the techniques could be used against any "alien detainee" determined by the CIA director to be a member or supporter of al-Qaeda, the Taliban or associated organizations likely to have information about attacks against United States or its allies.

Over the past several months, the secret list of CIA techniques has been the subject of interagency debate at the highest levels, with the State Department anxious to avoid offending allied governments, and the Department of Defense concerned that any CIA excesses could subject U.S. soldiers captured in the future to abuses.

The intelligence official said the agency itself had studied the effectiveness of past techniques and retained or jettisoned them on a "sliding scale." The criteria, he said, were what was "appropriate, effective, lawful and sustainable." While Hayden did not get "everything [he] might have wanted" in the guidelines, the official said, they contained everything the CIA needed and "more than was asked for."

To help allay concerns, new safeguards were added, the official said. Every use of an "enhanced" technique must be personally approved by Hayden in every instance, he said. "There will be no lone wolves, interrogations will always be conducted by a team, and anybody on the team can knock it off at any time."

A senior administration official said that the new rules do not require that the International Committee of the Red Cross have access to CIA prisoners. Many other nations interpret international treaties as requiring such access for all detainees everywhere.

Staff writer Josh White contributed to this report.