Neo-Conned! Again

by D Liam O'Huallachain

  I met repeatedly with Mr. Habib, and we intended to press his allegations very vigorously. Five days after the allegations about his rendition and mistreatment came to light, however, the Department of Defense announced that Mr. Habib would be released, and he is now back in Australia with his family.

  Mr. Habib's case is not unusual.

  Prisoners who have been released report that the Bosnian-Algerians were repeatedly tortured at Guantánamo, and at least one of the Algerians, Mr. Ait Idir, told the CSRT he had been beaten by the guards at the base. The CSRT conducted no inquiry.1

  Mr. al-Rawi and Mr. El-Banna, seized in Africa, allege they were beaten for weeks at a time in US custody.2 Mr. Martin Mubanga alleges he was tortured.3 The CSRT made no inquiry into these allegations.

  The CSRT regarding Faruq Ali Ahmed relied on testimony from a detainee who, according to personal representative “has lied about other detainees to receive preferable treatment and to cause them problems while in custody.” Yet the CSRT undertakes no inquiry at all. It merely presumes the testimony of the other prisoner to be true.4

  In the CSRT regarding Mr. Al-Kandari, the legal advisor to the CSRT, says “the evidence considered persuasive by the Tribunal is made up almost entirely of hearsay evidence recorded by unidentified individuals with no first-hand knowledge of the events they describe.”5

  Any process that allows evidence that may have been secured by torture or abuse to go unexamined, and uses that evidence to support a man's imprisonment, has no place in American law.

  The Superficial Similarity to an Article 5 Hearing Does Not Rescue the CSRT

  Finally, let me address the superficial similarity between the CSRT and so-called Article 5 hearings.

  As a number of courts have now recognized, the CSRT and Article 5 hearings serve radically different purposes, and operate under entirely different circumstances.1 The Article 5 hearing takes place in the field, immediately after capture, and is designed to make a swift, “rough-and-ready” determination of the prisoner's legal status so that he may be treated appropriately:

  If he is determined to be a prisoner of war, he is given POW status and treated in accordance with the Geneva Conventions;

  If there is reason to believe he has committed a war crime, he is turned over for military prosecution;

  If there is reason to believe he violated civilian law, he is turned over to civilian authorities for domestic prosecution;

  And if he is innocent, he is returned to the place of capture and released.

  In other words, an adverse determination at an Article 5 hearing leads either to detention under the Geneva Conventions, or to the additional process appropriate to the prisoner's legal status. This additional process helps insure against an unjust result. Because the Article 5 hearing is undertaken quickly, in the field, and followed by appropriate legal process, it may be summary in form.

  By contrast, the CSRT is undertaken months or years after arrest or capture, thousands of miles from the battlefield, after scores of interrogations. Furthermore, an adverse determination in a CSRT is not followed by additional legal process; the prisoner will have no further opportunity to demonstrate his innocence. Yet this determination can lead to a permanent loss of liberty under uniquely severe conditions. Just as the Article 5 hearing may be summary because it is followed by additional process that guards against arbitrary outcomes, the CSRT must be robust because it is followed by what may be life imprisonment under singularly onerous conditions.

  Yet despite the differences between the CSRT and an Article 5 hearing – differences that call for more procedural protections in the CSRTs, there are in fact fewer in the CSRT than in an Article 5 hearing:

  In a CSRT, the burden is on the prisoner to disprove his status. In an Article 5, by contrast, the prisoner is presumed to be a POW.

  In a CSRT, the entire senior military and civilian chain of command has repeatedly prejudged the result, and declared the prisoners to be “enemy combatants.” Indeed, they have been described as “the worst of the worst,” and “trained killers.” In an Article 5 hearing, by contrast, the prisoner begins the hearing as a POW protected by the Geneva Conventions. In every other adjudicative context, due process calls for a hearing followed by an announcement of the result; here, senior officials announced the result, then assigned junior officers to hold the hearing.

  I, and the other lawyers involved in these cases, welcome the recent inquiry by the Senate Judiciary Committee. We hope by the Committee's guidance and oversight we are able to fulfill the promise of Rasul, and demonstrate once again that we are a nation of laws, and not of men.

  1. Brief for the Respondents, Rasul et al. v. Bush et al., 124 S.Ct. 2686 (2004), pp. 5—6.

  2. In re Guantánamo Detainee Cases, 355 F.Supp.2d, pp. 482, 475 (D.D.C. 2005).

  3. Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantánamo Bay Naval Base, Cuba, July 29, 2004, §§(g)(11)—(12) (http://www.defenselink.mil/news/Jul2004/d20040730comb.pdf).

  4. In re Guantánamo Detainee Cases, 355 F.Supp.2d, pp. 468—472.

  5. Ibid., p. 468.

  6. Ibid., p. 473.

  1. See, e.g., Final Report of the Independent Panel to Review DOD Detention Operations (“The Schlesinger Report”), August, 2004.

  2. See, e.g., Appendix A of the testimony presented by the author before the Senate Judiciary Committee, “Chronology of United States Policy on Torture and Interrogations,” June 15, 2005 (http://judiciary.senate.gov/), along with the article by Col. Dan Smith on pp. 509—552 of the present volume.—Ed.

  3. See, e.g., Appendix B of the author's testimony, ibid., “Summary of United States Government Documents Evidencing Detainee Torture and Abuse.”

  4. See, e.g., Amnesty International USA, Guantánamo and Beyond: The Continuing Pursuit of Unchecked Executive Power, AI Index No. AMR 51/063/2005, May 13, 2005, online [vide infra, p. 698, note 1, for URL—Ed.]; Physicians for Human Rights, Break Them Down: Systematic Use of Psychological Torture by U.S. Forces, 2005 (http://www.phrusa.org/research/torture/pdf/psych_torture.pdf).

  5. In re Guantánamo Detainee Cases, 355 F.Supp.2d, p. 473.

  6. Ibid.

  1. See Mustafa Ait Idir, Unclassified Summary of the Basis for Tribunal Decision, Boumediene et al. v. Bush et al., Civil Action No. 04-cv-1166 (D.D.C.) (RJL).

  2. See Bisher al-Rawi, Classified Summary of Basis for Tribunal Decision, Unclassified Summary of Basis for Tribunal Decision, El-Banna et al. v. Bush et al., Civil Action No. 04-cv-1144 (D.D.C.) (RR).

  3. See Martin Mubanga, Unclassified Summary of Basis for Tribunal Decision, ibid.

  4. See Faruq Ali Ahmed, Unclassified Summary of Basis for Tribunal Decision, Abdah et al. v. Bush et al., Civil Action No. 04-cv-1254 (D.D.C.) (HHK).

  5. See al-Kandari, Unclassified Summary of Basis for Tribunal Decision, Al-Odah et al. v. United States of America et al., Civil Action No. 02-cv-0828 (D.D.C.) (CKK).

  1. See, e.g., Hamdan v. Rumsfeld, 344 F.Supp.2d, p. 152 (D.D.C. 2004).

  THE EDITORS' GLOSS: Jeff Steinberg's article stands on its own merits as a credible sketch of what the “Niger uranium-Joe Wilson-Valerie Plame-Karl Rove-White House” affair is all about. Let us, therefore, offer a word as to why we've included a postscript by Jacob Weisberg on what some might consider a tangential issue: how reporters Judith Miller of the New York Times and Matthew Cooper of TIME fared in the investigation into the Plame identity leak.

  Few besides Weisberg and a number of perceptive bloggers saw the real problems with the arguments that were made in defense of Judith Miller's alleged stand on the sanctity of reporter-source confidentiality, in which she refused to cooperate with the pertinent grand jury investigation. Much of the mainstream “liberal” press, which subserviently went along with war at the outset and only begrudgingly admitted, after the fact, a lack of discrimination in separating fact from fiction, held up Miller as an icon of principle, single-handedly defending the First Ame
ndment from those out to destroy it. Never mind that she was one of the biggest supporters of war and was largely responsible for popularizing some of the most outrageous lies in the pre-war period. Perhaps the timidly anti-war mainstream media saw her defense as a way to absolve themselves of their own sins on the war, speciously arguing that she – like them – was just reporting what she was told by “confidential” and anonymous “sources.” Ignored by the mainstream media was the fact that her silence was a practical defense of a White House operation designed to punish Joe Wilson and deter future critics from coming forward. This presumably explains why the “conservative” press and “right-wing” pundits (e.g., William Safire) were so ready to jump on the “canonize Judith Miller” bandwagon, despite her liberal – though rabidly pro-war – credentials.

  At any rate, the idea that the “principle” of “journalistic confidentiality” is an absolute, non-negotiable good, which trumps considerations of law, justice, and morality, is patently outrageous. The idea is so ridiculous, in fact, that one might have just cause to be suspicious of those who defend it. It's almost as if this absurd idea, and the debate that's surrounded it, is yet another creation of the spin machine, designed to achieve other less obvious ends. It has happened before.

  CHAPTER

  30

  Far, Far Worse Than Watergate:

  The “Outing” of Valerie Plame

  ………

  Jeffrey Steinberg

  WATERGATE HAD ITS “Deep Throat,” that Nixon-era information source that helped bring down a presidency. In the Valerie Plame case, the revelation by columnist Robert Novak that she was a covert CIA agent was supposedly based on leaked information from “senior White House officials.” But, as of this writing, they, unlike Deep Throat, remain unnamed.

  Over the course of the past decade, Americans have been shocked by a number of spy scandals, involving fairly senior officers of the armed forces, the Central Intelligence Agency and the Federal Bureau of Investigations. The two most egregious cases involved CIA agent Aldrich Ames and FBI counterintelligence officer Robert Hanssen. Both men are serving life sentences for betraying their country's secrets and undercover agents to the Soviet Union and the post-USSR Russian Federation.

  The Ames and Hanssen cases sparked a national debate: what drives such men and women to commit acts of treason – especially acts which include betraying the identities of American intelligence agents and assets who are almost certain to face sudden death if captured? There is no easy or pat answer to the question. How, then, is one to judge the Valerie Plame case? Former Nixon White House Counsel John Dean, now a respected Republican lawyer and judicial analyst, has described the leaking of Ms. Plame's identity as an undercover CIA officer by “senior White House officials” as a crime “worse than Watergate.”

  There is no doubt he is right. Indeed, he may prove to be a master of understatement. From July 14, 2003, the day Valerie Plame's name and her CIA status first appeared in a nationally syndicated column by Robert Novak, I have been doggedly pursuing the story. I have interviewed dozens of sources of varying degrees of knowledge about the case,1 compared notes with many other investigators and interested parties, and followed all of the twists and turns of the Bush administration's damage control efforts. Valerie Plame's husband, former Ambassador Joseph Wilson, a central player in the entire affair, has, in the intervening months, written an autobiography, with much detail about the background to the leak. In 2004, during an appearance at the Miller Center for Public Policy at the University of Virginia, Wilson presented a detailed timeline of the events; and the Senate Select Committee on Intelligence produced a lengthy report on the intelligence “failures” leading up to the Iraq invasion of March 2003, containing a detailed timeline, culled from documents and witnesses, that sheds further light on the story.

  As I write this analysis, the grand jury is literally “still out” on a case that, in many respects, is of more grave consequence than the Ames and Hanssen cases. For here we are dealing with still-serving members of the executive branch of the U.S. federal government – indeed employees in the Office of the President of the United States. These are individuals with the highest levels of security clearance, who, it appears, betrayed a secret intelligence officer's identity out of political revenge. As a result, a senior career officer, with two decades of expertise hunting down weapons of mass destruction, has been taken out of action. Her many contacts, built up over years of dangerous overseas work as a “non-official cover” officer, have all been jeopardized by the leak. And the cover of a longstanding CIA proprietary company, at the heart of the U.S. government's efforts to track WMD, has been blown. One of my intelligence sources indicated that the CIA is conducting a damage assessment of the Plame leak, and that there are suspicions that overseas assets of the front company where she worked as a “non-official cover” officer, were arrested and, in at least one case, probably tried and executed.

  In short, the Valerie Plame case is a story of national betrayal, petty vengeance by senior government officials, and a diminishing of America's capabilities to detect dangerous weapons of mass destruction. The case suggests a degree of cynicism and political manipulation by senior government officials on a scale perhaps never before seen in the history of our proud nation.

  Saddam's “Bomb”

  While Afghanistan was the first target, war planning for an Iraq action was authorized by the Bush administration within days of 9/11. Although skepticism ran deep within the ranks of professional military commanders, intelligence officers, and diplomats about Saddam's ties to the 9/11 attacks and the need or justification for regime change in Baghdad, the neoconservatives who dominate the Pentagon civilian bureaucracy and the “shadow national security council” housed in the office of Vice President Dick Cheney were not about to miss the opportunity of a lifetime to implement their longstanding fantasies to redraw the map of the Middle East, starting in Baghdad.

  Two issues stood out as the basis for justifying a U.S. military invasion to overthrow Saddam Hussein. First it was argued, on the flimsiest of “proof,” that Saddam Hussein had been the secret architect of the al-Qaeda attacks on September 11. Second, that Saddam Hussein had been secretly amassing an arsenal of weapons of mass destruction, for use against Israel, against Iraq's Arab and Muslim neighbors, and against Iraq's own people. While the U.S. intelligence community overwhelmingly rejected any Saddam links to al-Qaeda and 9/11, there were deep divisions over just how far along Saddam had got in his pursuit of WMD, following the 1998 departure of UN weapons inspectors, who had virtually rid Iraq of WMD during their seven years of on-the-ground inspections.

  According to the Senate Select Committee on Intelligence in October 2001, U.S. intelligence officials began receiving reports that Iraq had been secretly seeking to purchase large amounts of yellowcake, a precursor to enriched uranium, from the African state of Niger. Initial reports had been provided to U.S., British, and other intelligence services by the Italian military intelligence agency, SISMI, which, according to Vincent Cannistraro, was itself fed the documents by a questionable source. When word of the purported Iraq-Niger yellowcake transactions reached the office of Vice President Dick Cheney, he tasked his CIA briefing officer to pursue the lead further. For Cheney, the architect of the Bush administration's war drive against Baghdad, any evidence of Saddam advancing his efforts to acquire a nuclear bomb was worth its weight in gold.

  In February 2002, the CIA responded by dispatching Joseph Wilson to Niger to pursue the story. (A trip, by the way, for which Wilson was not paid a salary, debunking the suggestion from some quarters that this had been some kind of choice assignment due to his wife's influence.) Wilson was the perfect choice for the mission. He had been a career foreign service officer in Africa for years. He had served in Niger, and had developed close working ties to some of the people who would have necessarily been involved in any secret yellowcake sales, had any taken place. Furthermore, as the number two diplomat at the U.S. emb
assy in Baghdad in 1991, he had been the last American official to meet face-to-face with Saddam Hussein, just weeks before the January 1991 invasion. And he had been given one of the highest diplomatic medals from President George H.W. Bush for his service in Iraq. If anyone could dig out the truth about the Niger-Iraq allegations, it was Joe Wilson.

  Following an exhaustive briefing from CIA and State Department officers, Wilson arrived in Niger in February 2002. He conferred with the U.S. ambassador in Niger, Barbara Owens-Kirkpatrick, who voiced her skepticism about the purported yellowcake transaction. He also spoke with former top Niger military officials, and all of the largely French-administered safeguards, aimed at keeping tight controls on the entire yellowcake production. His conclusion: the Niger-Iraq yellowcake transaction was, in all likelihood, not true.

  Unbeknownst to Wilson, now retired Marine General Carlton Fulford, Jr., then deputy commander of the U.S. European Command (EUCOM), also paid a visit to Niger in February. But his mission, undertaken in response to an invitation from the ambassador's office in Niger, was to relay to the Nigerian President, Mamadou Tandja, Washington's concern that al-Qaeda – not Saddam Hussein – was seeking yellowcake. The general recounted that neither the Pentagon nor the many intelligence agencies he was in constant contact with ever raised the prospect of Saddam seeking uranium from an African country. “If there was a question [of Iraqi procurements from Africa],” Fulford said, “I would have been made aware of it.” He wasn't. And the U.S. Ambassador to Niger also filed her own report to the State Department, which reached identical conclusions.

  Upon his return to Washington, Wilson was debriefed by the CIA. To this day, he is convinced, according to his public remarks at a University of Virginia forum attended by this author, that the results of his mission were reported directly back either to Vice President Dick Cheney or to his chief of staff and chief national security aide, I. Lewis “Scooter” Libby. Wilson cannot say for certain whether the vice president's office received a written report from CIA, or whether the report-back took the form of a verbal briefing by the CIA's briefing officer, assigned to Cheney. In an interview later that year conducted with Josh Marshall of the Talking Points Memo blog (www.talkingpointsmemo.com), Wilson said he was sure that Cheney would not have known that it was he, Wilson, who was the original fact-finder. But in the same interview Wilson made it clear that because the vice president was the one who had asked for the report, it would have come back to him in some fashion or other. Wilson has absolutely no doubt that, by March 2002, Vice President Dick Cheney was personally aware that the Niger-Iraq story was, in all likelihood, a hoax.