The Commons is a weblog for concerned citizens of southeast Iowa and their friends around the world. It was created to encourage grassroots networking and to share information and ideas which have either been suppressed or drowned out in the mainstream media.

"But if the cause be not good, the king himself hath a heavy reckoning to make, when all those legs and arms and heads, chopped off in battle, shall join together at the latter day and cry all 'We died at such a place;' some swearing, some crying for a surgeon, some upon their wives left poor behind them, some upon the debts they owe, some upon their children rawly left. I am afeard there are few die well that die in a battle; for how can they charitably dispose of any thing, when blood is their argument? Now, if these men do not die well, it will be a black matter for the king that led them to it; whom to disobey were against all proportion of subjection." (Henry V, Act V, Scene 4)

Saturday, September 30, 2006

Bob Woodward - STATE OF DENIAL

Behind Public Optimism on Iraq, Administration Had Doubts

By Bob Woodward
Washington Post Staff Writer
Sunday, October 1, 2006; A01

In May, President Bush spoke in Chicago and gave a characteristically upbeat forecast: "Years from now, people will look back on the formation of a unity government in Iraq as a decisive moment in the story of liberty, a moment when freedom gained a firm foothold in the Middle East and the forces of terror began their long retreat."

Two days later, the intelligence division of the Joint Chiefs of Staff circulated a secret intelligence assessment to the White House that contradicted the president's forecast.

Instead of a "long retreat," the report predicted a more violent 2007: "Insurgents and terrorists retain the resources and capabilities to sustain and even increase current level of violence through the next year."

A graph included in the assessment measured attacks from May 2003 to May 2006. It showed some significant dips, but the current number of attacks against U.S.-led coalition forces and Iraqi authorities was as high as it had ever been -- exceeding 3,500 a month. (In July the number would be over 4,500.) The assessment also included a pessimistic report on crude oil production, the delivery of electricity and political progress.

On May 26, the Pentagon released an unclassified report to Congress, required by law, that contradicted the Joint Chiefs' secret assessment. The public report sent to Congress said the "appeal and motivation for continued violent action will begin to wane in early 2007."

There was a vast difference between what the White House and the Pentagon knew about the situation in Iraq and what they were saying publicly. But the discrepancy was not surprising. In memos, reports and internal debates, high-level officials of the Bush administration have voiced their concern about the United States' ability to bring peace and stability to Iraq since early in the occupation.

(The release last week of portions of a National Intelligence Estimate concluding that the war in Iraq has become a primary recruitment vehicle for terrorists -- following a series of upbeat speeches by the president -- presented a similar contrast.)

On June 18, 2003, Jay Garner went to see Defense Secretary Donald H. Rumsfeld to report on his brief tenure in Iraq as head of the postwar planning office. Throughout the invasion and the early days of the war, Garner, a retired Army lieutenant general, had struggled just to get his team into Iraq. Two days after he arrived, Rumsfeld called to tell him that L. Paul "Jerry" Bremer, a 61-year-old terrorism expert and protege of Henry A. Kissinger, would be coming over as the presidential envoy, effectively replacing Garner.

"We've made three tragic decisions," Garner told Rumsfeld at their meeting.

"Really?" Rumsfeld said.

"Three terrible mistakes," Garner said.

He cited the first two orders Bremer signed when he arrived, the first banning as many as 50,000 members of Saddam Hussein's Baath Party from government jobs and the second disbanding the Iraqi military. Now there were hundreds of thousands of disorganized, unemployed, armed Iraqis running around.

Third, Garner said, Bremer had summarily dismissed an interim Iraqi leadership group that had been eager to help the United States administer the country in the short term. "Jerry Bremer can't be the face of the government to the Iraqi people. You've got to have an Iraqi face for the Iraqi people," he said.

Garner made his final point: "There's still time to rectify this. There's still time to turn it around."

Rumsfeld looked at Garner for a moment with his take-no-prisoners gaze. "Well," he said, "I don't think there is anything we can do, because we are where we are."

He thinks I've lost it, Garner thought. He thinks I'm absolutely wrong. Garner didn't want it to sound like sour grapes, but facts were facts. "They're all reversible," Garner said again.

"We're not going to go back," Rumsfeld said emphatically.

Later that day, Garner went with Rumsfeld to the White House. But in a meeting with Bush, he made no mention of mistakes. Instead he regaled the president with stories of his time in Baghdad.

In an interview last December, I asked Garner if he had any regrets in not telling the president about his misgivings.

"You know, I don't know if I had that moment to live over again, I don't know if I'd do that or not. But if I had done that -- and quite frankly, I mean, I wouldn't have had a problem doing that -- but in my thinking, the door's closed. I mean, there's nothing I can do to open this door again. And I think if I had said that to the president in front of Cheney and Condoleezza Rice and Rumsfeld in there, the president would have looked at them and they would have rolled their eyes back and he would have thought, 'Boy, I wonder why we didn't get rid of this guy sooner?' "

"They didn't see it coming," Garner added. "As the troops said, they drank the Kool-Aid."
What's the Strategy?

In the fall of 2003 and the winter of 2004, officials of the National Security Council became increasingly concerned about the ability of the U.S. military to counter the growing insurgency in Iraq.

Returning from a visit to Iraq, Robert D. Blackwill, the NSC's top official for Iraq, was deeply disturbed by what he considered the inadequate number of troops on the ground there. He told Rice and Stephen J. Hadley, her deputy, that the NSC needed to do a military review.

"If we have a military strategy, I can't identify it," Hadley said. "I don't know what's worse -- that they have one and won't tell us or that they don't have one."

Rice had made it clear that her authority did not extend to Rumsfeld or the military, so Blackwill never forced the issue with her. Still, he wondered why the president never challenged the military. Why didn't he say to Gen. John P. Abizaid at the end of one of his secure video briefings, "John, let's have another of these on Thursday and what I really want from you is please explain to me, let's take an hour and a half, your military strategy for victory."

After Bush's reelection, Hadley replaced Rice as national security adviser. He made an assessment of the problems from the first term.

"I give us a B-minus for policy development," he told a colleague on Feb. 5, 2005, "and a D-minus for policy execution."

Rice, for her part, hired Philip D. Zelikow, an old friend, and sent him immediately to Iraq. She needed ground truth, a full, detailed report from someone she trusted. Zelikow had a license to go anywhere and ask any question.

On Feb. 10, 2005, two weeks after Rice became secretary of state, Zelikow presented her with a 15-page, single-spaced secret memo. "At this point Iraq remains a failed state shadowed by constant violence and undergoing revolutionary political change," Zelikow wrote.

The insurgency was "being contained militarily," but it was "quite active," leaving Iraqi civilians feeling "very insecure," Zelikow said.

U.S. officials seemed locked down in the fortified Green Zone. "Mobility of coalition officials is extremely limited, and productive government activity is constrained."

Zelikow criticized the Baghdad-centered effort, noting that "the war can certainly be lost in Baghdad, but the war can only be won in the cities and provinces outside Baghdad."

In sum, he said, the United States' effort suffered because it lacked an articulated, comprehensive, unified policy.
Lessons From Kissinger

A powerful, largely invisible influence on Bush's Iraq policy was former secretary of state Kissinger.

"Of the outside people that I talk to in this job," Vice President Cheney told me in the summer of 2005, "I probably talk to Henry Kissinger more than I talk to anybody else. He just comes by and, I guess at least once a month, Scooter and I sit down with him." (Scooter is I. Lewis Libby, then Cheney's chief of staff.)

The president met privately with Kissinger every couple of months, making him the most regular and frequent outside adviser to Bush on foreign affairs.

Kissinger sensed wobbliness everywhere on Iraq, and he increasingly saw the situation through the prism of the Vietnam War. For Kissinger, the overriding lesson of Vietnam is to stick it out.

In his writing, speeches and private comments, Kissinger claimed that the United States had essentially won the war in 1972, only to lose it because of the weakened resolve of the public and Congress.

In a column in The Washington Post on Aug. 12, 2005, titled "Lessons for an Exit Strategy," Kissinger wrote, "Victory over the insurgency is the only meaningful exit strategy."

He delivered the same message directly to Bush, Cheney and Hadley at the White House.

Victory had to be the goal, he told all. Don't let it happen again. Don't give an inch, or else the media, the Congress and the American culture of avoiding hardship will walk you back.

He said the eventual outcome in Iraq was more important than Vietnam had been. A radical Islamic or Taliban-style government in Iraq would be a model that could challenge the internal stability of key countries in the Middle East and elsewhere.

Kissinger told Rice that in Vietnam they didn't have the time, focus, energy or support at home to get the politics in place. That's why it had collapsed like a house of cards. He urged that the Bush administration get the politics right, both in Iraq and on the home front. Partially withdrawing troops had its own dangers. Even entertaining the idea of withdrawing any troops could create momentum for an exit that was less than victory.

In a meeting with presidential speechwriter Michael Gerson in early September 2005, Kissinger was more explicit: Bush needed to resist the pressure to withdraw American troops. He repeated his axiom that the only meaningful exit strategy was victory.

"The president can't be talking about troop reductions as a centerpiece," Kissinger said. "You may want to reduce troops," but troop reduction should not be the objective. "This is not where you put the emphasis."

To emphasize his point, he gave Gerson a copy of a memo he had written to President Richard M. Nixon, dated Sept. 10, 1969.

"Withdrawal of U.S. troops will become like salted peanuts to the American public; the more U.S. troops come home, the more will be demanded," he wrote.

The policy of "Vietnamization," turning the fight over to the South Vietnamese military, Kissinger wrote, might increase pressure to end the war because the American public wanted a quick resolution. Troop withdrawals would only encourage the enemy. "It will become harder and harder to maintain the morale of those who remain, not to speak of their mothers."

Two months after Gerson's meeting, the administration issued a 35-page "National Strategy for Victory in Iraq." It was right out of the Kissinger playbook. The only meaningful exit strategy would be victory.
Echoes of Vietnam

Vietnam was also on the minds of some old Army buddies of Gen. Abizaid, the Centcom commander. They were worried that Iraq was slowly turning into Vietnam -- either it would wind down prematurely or become a war that was not winnable.

Some of them, including retired Gen. Wayne A. Downing and James V. Kimsey, a founder of America Online, visited Abizaid in 2005 at his headquarters in Doha, Qatar, and then in Iraq.

Abizaid held to the position that the war was now about the Iraqis. They had to win it now. The U.S. military had done all it could. It was critical, he argued, that they lower the American troop presence. It was still the face of an occupation, with American forces patrolling, kicking down doors and looking at the Iraqi women, which infuriated the Iraqi men.

"We've got to get the [expletive] out," he said.

Abizaid's old friends were worried sick that another Vietnam or anything that looked like Vietnam would be the end of the volunteer army. What's the strategy for winning? they pressed him.

"That's not my job," Abizaid said.

No, it is part of your job, they insisted.

No, Abizaid said. Articulating strategy belonged to others.


"The president and Condi Rice, because Rumsfeld doesn't have any credibility anymore," he said.

This March, Abizaid was in Washington to testify before the Senate Armed Services Committee. He painted a careful but upbeat picture of the situation in Iraq.

Afterward, he went over to see Rep. John P. Murtha in the Rayburn House Office Building. Murtha, a Pennsylvania Democrat, had introduced a resolution in Congress calling for American troops in Iraq to be "redeployed" -- the military term for returning troops overseas to their home bases -- "at the earliest practicable date."

"The war in Iraq is not going as advertised," Murtha had said. "It is a flawed policy wrapped in illusion."

Now, sitting at the round dark-wood table in the congressman's office, Abizaid, the one uniformed military commander who had been intimately involved in Iraq from the beginning and who was still at it, indicated he wanted to speak frankly. According to Murtha, Abizaid raised his hand for emphasis, held his thumb and forefinger a quarter of an inch from each other and said, "We're that far apart."
Frustration and Resignation

That same month, White House chief of staff Andrew H. Card Jr. prepared to leave the administration after submitting his resignation to Bush. He felt a sense of relief mixed with the knowledge that he was leaving unfinished business.

"It's Iraq, Iraq, Iraq," Card had told his replacement, Joshua B. Bolten. "Then comes the economy."

One of Card's great worries was that Iraq would be compared to Vietnam. In March, there were 58,249 names on the Vietnam Veterans Memorial in Washington. One of Kissinger's private criticisms of Bush was that he had no mechanism in place, or even an inclination, to consider the downsides of impending decisions. Alternative courses of action were rarely considered.

As best Card could remember, there had been some informal, blue-sky discussions at times along the lines of "What could we do differently?" But there had been no formal sessions to consider alternatives to staying in Iraq. To his knowledge there were no anguished memos bearing the names of Cheney, Rice, Hadley, Rumsfeld, the CIA, Card himself or anyone else saying "Let's examine alternatives," as had surfaced after the Vietnam era.

Card put it on the generals in the Pentagon and Iraq. If they had come forward and said to the president "It's not worth it" or "The mission can't be accomplished," Card was certain, the president would have said "I'm not going to ask another kid to sacrifice for it."

Card was enough of a realist to see that two negative aspects to Bush's public persona had come to define his presidency: incompetence and arrogance. Card did not believe that Bush was incompetent, and so he had to face the possibility that as Bush's chief of staff, he might have been the incompetent one. In addition, he did not think the president was arrogant.

But the marketing of Bush had come across as arrogant. Maybe it was unfair in Card's opinion, but there it was.

He was leaving. And the man most responsible for the postwar troubles, the one who should have gone, Rumsfeld, was staying.

Bill Murphy Jr. and Christine Parthemore contributed to this report.

Legislating Violations of the Constitution

Legislating Violations of the Constitution

By Erwin Chemerinsky
Special to
Saturday, September 30, 2006; 12:00 AM

With little public attention or even notice, the House of Representatives has passed a bill that undermines enforcement of the First Amendment's separation of church and state. The Public Expression of Religion Act - H.R. 2679 - provides that attorneys who successfully challenge government actions as violating the Establishment Clause of the First Amendment shall not be entitled to recover attorneys fees. The bill has only one purpose: to prevent suits challenging unconstitutional government actions advancing religion.

A federal statute, 42 United States Code section 1988, provides that attorneys are entitled to recover compensation for their fees if they successfully represent a plaintiff asserting a violation of his or her constitutional or civil rights. For example, a lawyer who successfully sues on behalf of a victim of racial discrimination or police abuse is entitled to recover attorney's fees from the defendant who acted wrongfully. Any plaintiff who successfully sues to remedy a violation of the Constitution or a federal civil rights statute is entitled to have his or her attorney's fees paid.

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Congress adopted this statute for a simple reason: to encourage attorneys to bring cases on behalf of those whose rights have been violated. Congress was concerned that such individuals often cannot afford an attorney and vindicating constitutional rights rarely generates enough in damages to pay a lawyer on a contingency fee basis.

Without this statute, there is no way to compensate attorneys who successfully sue for injunctions to stop unconstitutional government behavior. Congress rightly recognized that attorneys who bring such actions are serving society's interests by stopping the government from violating the Constitution. Indeed, the potential for such suits deters government wrong-doing and increases the likelihood that the Constitution will be followed.

The attorneys' fees statute has worked well for almost 30 years. Lawyers receive attorneys' fees under the law only if their claim is meritorious and they win in court. Unsuccessful lawyers get nothing under the law. This creates a strong disincentive to frivolous suits and encourages lawyers to bring only clearly meritorious ones.

Despite the effectiveness of this statute, conservatives in the House of Representatives have now passed an insidious bill to try and limit enforcement of the Establishment Clause of the First Amendment, by denying attorneys fees to lawyers who successfully challenge government actions as violating this key constitutional provision. For instance, a lawyer who successfully challenged unconstitutional prayers in schools or unconstitutional symbols on religious property or impermissible aid to religious groups would -- under the bill -- not be entitled to recover attorneys' fees. The bill, if enacted, would treat suits to enforce the Establishment Clause different from litigation to enforce all of the other provisions of the Constitution and federal civil rights statutes.

Such a bill could have only one motive: to protect unconstitutional government actions advancing religion. The religious right, which has been trying for years to use government to advance their religious views, wants to reduce the likelihood that their efforts will be declared unconstitutional. Since they cannot change the law of the Establishment Clause by statute, they have turned their attention to trying to prevent its enforcement by eliminating the possibility for recovery of attorneys' fees.

Those who successfully prove the government has violated their constitutional rights would, under the bill, be required to pay their own legal fees. Few people can afford to do so. Without the possibility of attorneys' fees, individuals who suffer unconstitutional religious persecution often will be unable to sue. The bill applies even to cases involving illegal religious coercion of public school children or blatant discrimination against particular religions.

The passage of this bill by the House is a disturbing achievement by those who seek to undermine our nation's commitment to fundamental freedoms laid out in the Constitution. Should it come up for a vote, it is imperative that the Senate reject this nefarious proposal. The religious right is looking for a way to get away with violating the Establishment Clause and is now one step closer to this goal. The Establishment Clause is no less important than any other part of the Bill of Rights and suits to enforce it should be treated no differently than any other litigation to enforce civil liberties and civil rights

Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science, at Duke University.

Friday, September 29, 2006

Eric Umansky - Failures of Imagination

Failures of Imagination

By Eric Umansky

Carlotta Gall was curious. It was early December 2002, and Gall, the Afghanistan correspondent for The New York Times, had just seen a press release from the U.S. military announcing the death of a prisoner at its Bagram Air Base. Soon thereafter the military issued a second release about another detainee death at Bagram. “The fact that two had died within weeks of each other raised alarm bells,” recalls Gall. “I just wanted to know more. And I came up against a blank wall. The military wouldn’t release their names; they wouldn’t say where they released the bodies.”

Gall started calling the governors of provinces, she says, “asking if a family had received a body back from Bagram in their province.” None had, but Gall did learn that U.S. forces had detained some suspects near the eastern border town of Khost.

She visited Khost and left empty-handed, but a few weeks later, she got another tip and traveled back. The body of one of the detainees had been returned, a young taxi driver known as Dilawar. Gall met with Dilawar’s family, and his brother handed Gall a death certificate, written in English, that the military had issued. “It said, ‘homicide,’ and I remember gasping and saying, ‘Oh, my God, they killed him,’” says Gall. “I hadn’t really been thinking that before.”

The press release announcing Dilawar’s death stated that the taxi driver had died of a heart attack, a
conclusion repeated by the top U.S. commander in Afghanistan, then-Lieutenant General Daniel McNeill, whom Gall later cited as saying that Dilawar had died because his arteries were 85 percent blocked. (“We haven’t found anything that requires us to take extraordinary action,” McNeill declared.) But the death certificate, the authenticity of which the military later confirmed to Gall, stated that Dilawar — who was just twenty-two years old — died as a result of “blunt force injuries to lower extremities complicating coronary artery disease.”

Gall filed a story, on February 5, 2003, about the deaths of Dilawar and another detainee. It sat for a month, finally appearing two weeks before the U.S. invasion of Iraq. “I very rarely have to wait long for a story to run,” says Gall. “If it’s an investigation, occasionally as long as a week.”

Gall’s story, it turns out, had been at the center of an editorial fight. Her piece was “the real deal. It referred to a homicide. Detainees had been killed in custody. I mean, you can’t get much clearer than that,” remembers Roger Cohen, then the Times’s foreign editor. “I pitched it, I don’t know, four times at page-one meetings, with increasing urgency and frustration. I laid awake at night over this story. And I don’t fully understand to this day what happened. It was a really scarring thing. My single greatest frustration as foreign editor was my inability to get that story on page one.”

Doug Frantz, then the Times’s investigative editor and now the managing editor of the Los Angeles Times, says Howell Raines, then the Times’s top editor, and his underlings “insisted that it was improbable; it was just hard to get their mind around. They told Roger to send Carlotta out for more reporting, which she did. Then Roger came back and pitched the story repeatedly. It’s very unusual for an editor to continue to push a story after the powers that be make it clear they’re not interested. Roger, to his credit, pushed.” (Howell Raines declined requests for comment.)

“Compare Judy Miller’s WMD stories to Carlotta’s story,” says Frantz. “On a scale of one to ten, Carlotta’s story was nailed down to ten. And if it had run on the front page, it would have sent a strong signal not just to the Bush administration but to other news organizations.”

Instead, the story ran on page fourteen under the headline "U.S.Military Investigating Death of Afghan in Custody." (It later became clear that the investigation began only as a result of Gall’s digging.)

Gall, who is British, chalks up the delay to reluctance to “believe bad things of Americans,” and in particular to a kind of post-9/11 sentiment. “There was a sense of patriotism, and you felt it in every question from every editor and copy editor,” she says. “I remember a foreign-desk editor telling me, ‘Remember where we are — we can smell the debris from 9/11.’”

As it happens, two years later the Times uncovered military investigative files on the Bagram case detailing just how big a story had been buried. The files, the Times reported on May 20, 2005, offered “ample testimony that harsh treatment by some interrogators was routine and that guards could strike shackled detainees with virtual impunity.” The beatings and other interrogation tactics — prisoners deprived of sleep, threatened with dogs, and sexually humiliated — were later used at Abu Ghraib. Dilawar, who officials later acknowledged was innocent, had been repeatedly hit with a “common peroneal strike” — a blow just above the knee. The result, a coroner later testified, was that his legs had “basically been pulpified.” The Times also reported that officers who had overseen the Bagram prison at the time were promoted; another, who had lied to investigators, was transferred to help oversee interrogations at Abu Ghraib and awarded a Bronze Star.

The skepticism back in 2003 about Gall’s findings wasn’t limited to the Times. The evidence of homicides got only a short mention on CNN and a brief write-up inside The Washington Post. The biggest follow-up came not in any American paper but in the Sunday Telegraph of London.
“There was no great urge to follow up,” Gall says. “Nobody went to the doorstep of the pathologist or anything like that, until of course Abu Ghraib. And I don’t know why.”

Reporters and news organizations deserve enormous credit for exposing the abuse and torture of detainees during the U.S. war on terror, more than other institutions or individuals. Without Carlotta Gall, The New Yorker’s Seymour Hersh, The Washington Post’s Dana Priest, and many other reporters, we might well never have learned of the abuse and torture that have occurred in Afghanistan, Abu Ghraib, and elsewhere.

But just as sweeping attacks against “the media” are too reductive, so too are plaudits. And when the record on torture coverage is examined in detail, an ambiguous picture emerges: in the post-9/11 days, some reporters offered detailed accusations and reports of abuse and torture, only to be met with skepticism by their own editors. Stories were buried, played down, or ignored — a reluctance that is much diminished but still bubbles up with regard to the culpability of policymakers.

What is true and what is significant are two different matters. Everybody agrees that journalists are supposed to ascertain the truth. As for deciding what is significant, reporters and editors make that judgment, too, all the time — what story leads on the front page, or gets played inside, what story gets followed up. And when it comes to very sensitive material, like torture, many journalists would prefer to rely on others to be the first to decide that something is significant. To do otherwise would mean sticking your neck out.

When stories about abuse did finally get attention, what was new was often less the revelations themselves than how they were presented and the prominence they were given. Simply put, a scandal wasn’t a scandal or a scoop a scoop until it was played as one. But after the September 11 attacks, most news organizations were reluctant to go there. “Being fair is one thing; being excessively worried that we might not be portraying the military in a fair light is another,” says Roger Cohen. “For a while there, we lost that balance.”

Newsroom ambivalence is not the only impediment to covering this difficult story, of course. For one thing, with the exception of Senator John McCain’s 2005 antitorture amendment — the coverage of which turned out to have been shallow and excessively focused on personalities — Congress has shown a studied lack of interest in torture. There have been no sustained congressional hearings, and a proposed independent investigation has long been blocked by the congressional leadership.

Complicating matters has been the Bush administration’s savvy defense. It has pushed back against calls for an independent, overarching investigation of abuses. Instead, there have been a dizzying number of fractured, limited-authority reports, all of which reporters have diligently sought to cover. But many of the reports are classified and ultimately heavily redacted, and none of them have looked specifically at the connection between policymakers and abuse. Indeed, the stonewalling has been part of a larger, smarter strategy: rather than defending its policies of abuse, the administration has denied the policies exist.

Things changed after the Abu Ghraib photos were published; news outlets flooded the zone, to borrow a phrase, with a near endless number of investigative pieces exploring just how policy contributed to abuse. At the same time, the administration’s strategy of denial was often aided by longstanding journalistic shortcomings; for example, the tendency to treat both sides of an issue equally, without regard to where the facts might lie.

There is a final factor that has shaped torture coverage, one that is hard to capture. In most big scandals, such as Watergate, the core question is whether the allegations of illegal behavior are true. Here, the ultimate issue isn’t whether the allegations are true, but whether they’re significant, whether they should really be considered a scandal.

Though the administration has decided not to defend publicly the need for “coercive” interrogations, others have. Their argument is that the policy of abusive interrogations is not only acceptable but necessary to protect the United States. At the same time, polls on torture are notoriously sensitive to phrasing. It’s the mixed results themselves, though, that may be telling. Americans appear to be ambivalent about the occasional need for torture. And with ambivalence, perhaps, comes a preference for not wanting to know.

Within this context, any article, no matter how straightforward or truthful, that treats abuse as a potential scandal — even by simply putting allegations on the front page — is itself making a political statement that “we think this is important,” and, implicitly, wrong. To make such a statement takes chutzpah. Between the invasion of Afghanistan in fall 2001 and the revelations about Abu Ghraib in spring 2004, chutzpah was in particularly short supply.


Dana Priest, the Washington Post national security reporter who has been widely recognized for her aggressive coverage of the secret U.S. detainee system, did not start covering the story with the notion that detainees were being abused. It was the fall of 2002, recalls Priest, “and my focus was on whether the government caught big al Qaeda guys, who they are, etc. Then we started getting this idea — in this very uncritical way — how do you get guys to tell you things?”

Barton Gellman, another reporter at the Post, was also looking into the subject of interrogations for a long story assessing the U.S. fight against al Qaeda. “I started asking officials how they were doing in capturing high-value targets and how were these people — who were willing to die for their cause — willing to tell you anything,” says Gellman. “I would get silences and coughs and circumlocutions. So I started to wonder. And eventually you get people in the right mood . . . .”

What Gellman got was tough but unspecific talk by officials about the lengths to which the Bush administration was willing to go to extract information from detainees. Priest was hearing similar things, but “it was almost not journalistic; you didn’t have enough details.” Then, she recalls, “Bart and I found each other. That’s when we were able to put it together.”

With Gellman working on his assessment of the counterterrorism effort, Priest took the lead on the detainee story. The resulting piece was extraordinary. Published on December 26, 2002, with a co-byline, it had revelation after revelation about the U.S. treatment of Taliban and al Qaeda suspects. It detailed a “brass-knuckled quest for information” that included “stress and duress” interrogation techniques — keeping prisoners in painful positions for hours, for example — as well as extraordinary renditions, the practice of shipping suspects to countries where they could be tortured. Citing “Americans with direct knowledge and others who have witnessed the treatment,” the paper reported that “captives are often ‘softened up’ by MPs and U.S. Army Special Forces troops who beat them up and confine them in tiny rooms.”

The article contained both denials from officials that torture was allowed but also quotes from officials all but boasting of abuse. One official “directly involved” in renditions confidently explained, “We don’t kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them.” Priest and Gellman wrote, “Each of the current national security officials interviewed for the article defended the use of violence against captives as just and necessary. They expressed confidence that the American public would back their view.”

Among those few whose job it is to follow such things, the story caused waves. “It ruined my Christmas,” recalls John Sifton, a counterterrorism researcher at Human Rights Watch. Sifton has spent the last four years probing the secret U.S. detainee network, and his digging has served as the basis for countless stories in the press. It was the Post’s story that first set him going, and he spent the holidays holed up drafting a letter to President Bush.

The story also caught the eye of the American Civil Liberties Union. “These were assertions by senior officials,” says Jameel Jaffer, a staff lawyer. “They basically confirmed rendition. There wasn’t shame in it at all. They wanted credit for it.” Later that year, the ACLU decided to file Freedom of Information Act requests. “It was a response to Dana Priest and Gellman as well as Carlotta Gall,” says Jaffer. “We thought it was clear something nefarious was going on.”

Outside of a handful of human rights organizations, however, the Post’s piece didn’t cause much of a stir. “After working so long on the story, all I remember was getting my editors to promise not to do it on Christmas,” says Priest. “So it was published the day after. Nobody noticed it. People were paying attention to other things, like protecting the U.S. It took on a much more important life a year after it ran — after Abu Ghraib broke.”

Apart from the holiday timing, one explanation for the lack of attention might lie with the Post’s own play of the revelations. The story ran on page 1, but the headline did not exactly leave the clear impression that the U.S. had condoned violence against prisoners: "U.S. Decries Abuse but Defends Interrogations". As for the witnesses speaking of regular beatings, that was mentioned in the thirty-first paragraph.

The lack of follow-up was also partly a function of just how difficult reporting on this murky subject is. “There just aren’t many Dana Priests out there that can pierce the wall of secrecy that these things operate in,” says Gellman.

What’s striking, though, isn’t simply the lack of follow-up but that so few tried. Unlike the ACLU, for example, almost no reporters filed FOIA requests about the detainee system. (The one apparent exception was an enterprising reporter at The New York Sun named Josh Gerstein, who actually beat the ACLU to the punch but had his FOIA request dismissed on a technicality.)

The ACLU’s requests resulted in the organization’s being given thousands of pages of investigative files containing information that, once divulged, prompted numerous front-page stories. The Post simply let Priest and Gellman’s story stand without significant follow-up until after Abu Ghraib. (Three months after the Priest/Gellman story, in March 2003, The New York Times published a piece broadly similar to the Post’s. With softer wording, it was quickly forgotten.)

The failure to file FOIA requests is “something I find terribly embarrassing,” says Gellman, who points out that the administration’s general antipathy toward FOIA means requests are harder to carry through and often result in little being disclosed. Gellman also stresses that the detainee-abuse story unfolded “just as the Iraq war was becoming inevitable. Iraq took up my life for the next year, as I know it did for many other reporters.”


It was Iraq, of course, and the revelations about Abu Ghraib, that finally elevated reports of prisoner abuse to a major story. But the story did not break as simply or as quickly as is often remembered.

In the summer of 2003, Charles Hanley, a special correspondent for The Associated Press, was preparing to make his second post-invasion trip to Iraq. Doing research and scouting for potential stories, Hanley came across a little-noticed Amnesty International report charging that “very severe” human rights abuses were occurring at U.S. prisons there. “It was a very murky, strange article,” he remembers. “I couldn’t even determine who the writer was.” But it suggested that the Amnesty allegations were based at least in part on leaks from the International Committee for the Red Cross, whose work is well regarded and whose findings are supposed to be confidential.

His interest piqued, Hanley, who shared a Pulitzer Prize in 2000 for his reporting on GIs who had massacred civilians during the Korean War, started poking around when he arrived in Baghdad that September. Journalists weren’t allowed to visit Abu Ghraib or other prisons. “I knew the only way I could get the story was from released detainees,” Hanley says. Going through the Red Crescent, Hanley eventually spoke with six former detainees, each of whom had been freed without charges. They all gave similar accounts of their captivity.

The prisoners didn’t talk of outright torture, but of humiliation and abuse: water withheld; being shackled for hours in painful positions or bound and made to lie in the sand, even during summer days when the temperature would approach 120 degrees. “I interviewed them independently, and their stories all corroborated each other’s and were consistent with the Red Cross’s leak,” says Hanley.
Weeks before he published the allegations, Hanley e-mailed the military a series of questions. “I asked if prisoners were being tied up and thrown in the sun. I asked how many prisoners had died in custody. You know, how much time do you need to figure that out?” In the month that Hanley worked on the story, the military never responded. “There was just no reaction from them, including no denial,” he recalls. If it was intentional, he says, it was “a very smart strategy.”

Lacking a response from U.S. officials — as well as prominent billing by the AP — Hanley’s story garnered almost no notice when it appeared in November 2003, except overseas. The most prominent attention, Hanley recalls, was in Stern, the German weekly. “After I published,” he says, “I assumed other people would follow up. That’s what really surprised me.”

Later on, Hanley was surprised to learn that until April 2004 — when the Abu Ghraib photos were published — nobody else had done much reporting about abuse at U.S. prisons in Iraq. On the one hand, “reporters in Baghdad were overwhelmed. You can’t blame particular reporters,” he says. “But it’s a certain mindset. I think there were an awful lot of editors at papers who would react negatively to a bunch of Iraqis saying something so nasty about the American military.”

Shortly after the Abu Ghraib pictures broke, Hanley returned to his notebook and was struck by a remark of one of the prisoners, who had told him, “‘If only somebody could get photos of what’s happening.’”

“You know, you can’t ignore those photos,” Hanley says. “You can’t find an excuse not to confront it.”


When the photos did surface, they couldn’t be ignored. But they weren’t immediately treated as big news, either. The now-deceased 60 Minutes II broke the story, airing the photos on April 28, 2004. As Dan Rather, the segment’s correspondent, noted, CBS had held the story for two weeks at the request of Richard Myers, chairman of the joint chiefs of staff, who, citing the major fighting in Fallujah, a Shiite uprising in Najaf, and two American civilians being held hostage in Iraq, had argued that the photos would further inflame matters in the region. The network aired the piece after learning that The New Yorker’s Seymour Hersh also had the photos.

What came next was less a media storm than scattered sprinkles. The New York Times covered the story of the photos on page 15, the Los Angeles Times on page 8, and The Washington Post on page 24, though none chose to publish the photos themselves. The photos should have made for compelling TV coverage, but there was no avalanche of coverage there either. Only NBC and, obviously, CBS had segments on the photos the day after.

But the reaction abroad, particularly in the Middle East, was intense. With headlines blaring across the world, and near-endless coverage on Arab networks such as Al Jazeera, President Bush made his first public comments about the abuse two days after the photos aired.

And that is what, finally, lent Abu Ghraib big-story status: not allegations of abuse or even the photos confirming them, but revulsion abroad and the president’s reaction to it. "Bush Denounces Troops’ Treatment of Prisoners," proclaimed the Los Angeles Times in its first front-page story on Abu Ghraib, on May 1, 2004.

The floodgates then opened, and what was revealed was far more than random acts of sadism toward detainees at Abu Ghraib. Now that the story had “been ratified as important,” as the writer Michael Massing put it in The New York Review of Books, journalists pushing for significant coverage of abuse were no longer sticking their necks out. They were part of the pack.

Reporters quickly began looking at the larger picture — especially the relationship between policy and abusive interrogation techniques — and ended up writing some remarkable stories. Indeed, most of what we now know about detainee abuse was uncovered — or simply flogged with previously absent vigor — during the first few months after Abu Ghraib.

The bar was set by Seymour Hersh’s New Yorker story on May 10, 2004, which had details of a military investigation “not meant for public release” into the Abu Ghraib abuses that cited unclear interrogation policies and lax oversight. Two weeks later, The New York Times uncovered a few of the techniques that had been approved for the CIA, among them “water boarding,” a centuries-old method in which prisoners are strapped down and made to feel they’re drowning.

In June, The Wall Street Journal and The Washington Post detailed yet more memos of the administration’s decision to remove restrictions on abusive interrogations. One memo, written by administration lawyers, redefined “torture,” saying it must rise to “to the level of death, organ failure, or the permanent impairment of a significant body function.” Another memo concluded that “the prohibition against torture must be construed as inapplicable to interrogations undertaken pursuant to [the] commander in chief’s authority.”

Less than three weeks after CBS’s Abu Ghraib report, Newsweek published a long investigative feature mapping out the policy decisions that had justified detainee abuse. As Newsweek put it, while the White House almost certainly did not order the specific abuses photographed at Abu Ghraib, a series of memos cited by the magazine led it to conclude that President Bush, “along with Secretary of Defense Rumsfeld, and Attorney General John Ashcroft, signed off on a secret system of detention and interrogation that opened the door to such methods.”

Newsweek’s May 24, 2004, piece was a remarkable bit of reporting. It was also an example of how a “scoop” can result less from new disclosures than the fresh eyes with which old information is viewed. Chief among the magazine’s seeming revelations was a January 2002 memo, “obtained by Newsweek,” detailing the president’s conclusion that Taliban and al Qaeda suspects were not covered by the Geneva Conventions. The memo, written by Alberto Gonzales, then White House counsel, and later endorsed by the president, contained language that would become infamous. Gonzales wrote that the “new paradigm” of the fight against al Qaeda rendered “quaint” and “obsolete” Geneva protections. (Gonzales’s analysis was summarily dismissed this summer by the U.S. Supreme Court in Hamdan v. Rumsfeld.)

Newsweek was certainly right to flag the memo. But the truth is that the president’s decision that the U.S. wouldn’t be bound by the Geneva accords had been publicly announced in February 2002, albeit in hedged and even misleading language. The president had said then that al Qaeda detainees weren’t covered by Geneva protections but should still be treated “humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles” of the Geneva Conventions. (Though it wasn’t publicly known then, the president had exempted the CIA from even that loose “humane” edict.) At the time, Rumsfeld dismissed any criticism of the decision as “isolated pockets of international hyperventilation.”

The Gonzales memo became the big revelation in Newsweek’s piece, with the memo’s jarring language being quoted endlessly by pundits and talking heads. It was a discussion a long time in the making: Gonzales’s memo was first uncovered and quoted not by Newsweek after Abu Ghraib but by the Washington Times — two years earlier.

Back then, there was little outrage. The paper’s piece focused on how Secretary of State Colin Powell objected to the lack of protections for al Qaeda and Taliban suspects and, according to “administration sources,” was “bowing to pressure from the political left.” Gonzales’s conclusions that the Geneva protections were “quaint,” quoted in the original Washington Times piece, were not again cited until Newsweek did so two years later.


Whether they looked at old information anew or delivered genuine revelations, what the post-Abu-Ghraib stories clarified is that the administration had specifically approved a kind of “torture-lite” for the CIA and the military special forces. They also made clear that the military’s rules for interrogations had morphed from a clear stance — no abuse — into a mishmash of ever-changing rules and directives, and that as a result, abuse coursed through the system.

The interrogations at Guantanamo were, as one military investigator testified, “a California Avocado Freestyle kind of a thing.” The investigator explained, “It was hard to go beyond the guidance because there was almost no guidance.”

And the abusive tactics, as another investigation concluded, mysteriously migrated from Afghanistan to Guantanamo, and then to Iraq. The results have become clear: roughly a dozen prisoners have died of abusive treatment. No soldier or officer has been sentenced to more than five months for any of the deaths. Four of the deaths, said to involve the CIA, have resulted in just one criminal case, involving not a CIA employee but an agency contractor.

The rules for the military had become so hodge-podge and confusing that the administration itself seemed unclear on whether the Geneva Conventions covered detainees in Iraq. A month after the Abu Ghraib revelations were published, Rumsfeld said the protections are “basic rules” for handling prisoners but yet also did “not precisely apply.”

In the wake of Abu Ghraib, reports from the International Committee for the Red Cross, which usually shares its findings only with the country holding the prisoners, were leaked to The New York Times and The Wall Street Journal. One report, written months before Abu Ghraib broke, warned of cases “tantamount to torture” and said abuse appeared to be a “practice tolerated by” the military. The report had been sent to administration officials.

In mid-May, the Post published a series on the “path to Abu Ghraib” and detailed evidence suggesting “a wider circle of involvement in aggressive and potentially abusive interrogations of Iraqi detainees, encompassing officers higher up the chain of command.” Guards told of being ordered by intel officers to “Loosen this guy up for us,” as one of them reportedly put it. “Make sure he has a bad night.”

The press also began to detail how military lawyers and the FBI had fought against the interrogation policies. With a media pack now pushing for answers, the administration changed course. Rather than slyly boasting about the brass-knuckle approach it was taking, it denied that abuse was more than the work of “a few bad apples” (as the mantra would go).

The difference in tone was striking. “If you don’t violate someone’s human rights some of the time,” one official had told the Post in 2002, “you probably aren’t doing your job.” Now, in 2004, the White House repeatedly reminded anyone who would listen that the president had ordered prisoners to be treated in a “humane” manner.

In shaping the debate, the administration moved not only to distance itself publicly from those of its policies that abrogated the restrictions on abusive treatment, but also to keep those policies from being uncovered. Appearing in congressional hearings soon after the so-called torture memos were leaked, then-Attorney General John Ashcroft refused to discuss, release, or even acknowledge the memos and insisted that the administration had never approved torture. (The insistence that the U.S. didn’t engage in “torture” would often trip up many reporters, who weren’t aware that the administration defined “torture” exceedingly narrowly.) With the administration now refusing to acknowledge its policies of coercive interrogations, the debate on torture was reframed as a debate about whether there was a need for a debate.

The argument by the White House and its allies that there wasn’t a need for a debate was aided by many news organizations’ habit of presenting both sides of a story as if they were equal, regardless of the underlying reality. The result was a kind schizophrenic coverage: aggressive investigative pieces showed the extent to which policy had underwritten many abuses, while political and other stories passed along the administration’s assertions that abuse was the work of a few bad apples, without offering key context — namely that the facts suggested those assertions were untrue.

As the administration blocked attempts to create an overarching, independent investigation into abuses, a head-snapping number of reports of varying quality and focus by military officers — Taguba, Schlesinger, Schmidt, Fay, Hood, Church, and Green, among others — surfaced. None of them were tasked with looking at the role policy played in abuse. The reports did provide clues anyway — the details, if not the official conclusions, of the Taguba and Schlesinger reports were particularly strong. But the administration also worked to keep the details from the public.

“We’ve been very eager to write more about policymakers’ connection to abuse,” says R. Jeffrey Smith, a Washington Post investigative reporter. “But that’s been very hard. Some of the Pentagon’s reports have been very superficial. Some of the backup material for the reports is classified. I dare say some of it has been suppressed. The reports that we’ve seen have had huge redactions.”

Writing stories about the reports was made even more difficult by the investigations’ occasionally self-contradictory, even Kafka-esque, conclusions. Take the so-called Schmidt Report, which was released in July 2005. Overseen by Lieutenant Gen. Mark Schmidt, an Air Force pilot, the report looked into FBI memos detailing abusive interrogations at Guantanamo.

Schmidt concluded that tactics once approved for Guantanamo by Rumsfeld — one prisoner was stripped naked, led around on a leash, and doused with cold water seventeen times during one interrogation — were indeed “abusive” and “degrading.” Nevertheless, Schmidt concluded — and emphasized in his executive summary — that the tactics were still “humane” and thus legal. Yet it was also Schmidt who would later tell the Army Inspector General’s Office that the administration had never defined “humane.” (The parsing seems to have been motivated by Schmidt’s preference for not crossing onto the turf of policymakers. Regarding the appropriateness of the interrogation methods, Schmidt’s report states that Rumsfeld’s “approval of each of the techniques clearly establishes the ultimate legitimacy of that technique.”)

The almost absurdist conclusions — there was abuse but it was “humane,” although we don’t know what “humane” means, and because techniques were approved, they can’t be wrong — were hard to convey within the confines of “objective” coverage. But it wasn’t impossible. The Washington Post, as it often seemed to do, rose to the occasion and added analytic muscle to its coverage. The paper’s main story on the report appeared on page 1 with the headline, "Abu Ghraib Tactics Were First Used at Guantanamo." More typical, though, was the coverage by The New York Times, which put the same report’s conclusions on page 21: "Report Discredits FBI Claims of Abuse at Guantanamo Bay."


The administration’s bad-apple argument has also had an unwitting ally: TV news. The evidence of the connections between policies and abuse was just a few dry memos, many of which weren’t even available to the public in full. By contrast, the “bad apples” were being paraded in and out of courts-martial. Their stories were not only repulsive but also, in a way, enthralling, filled with reality-show-quality sex and violence.

The result was that the various torture memos were covered on all three networks on only one day — June 8, 2004 — when Ashcroft made an appearance before a Senate committee and refused to discuss them. By contrast, the trial of Lynndie England — who had led a naked prisoner around on a leash — was a regular staple on network and cable news programs.

That focus not only distorted the larger story but also constricted it. Some journalists came to the courts-martial expecting to hear a kind of mini-trial of the overall debate: Was the abuse the result of official administration policies or a few sadistic soldiers?

What was little appreciated is how — in the words of Tim Golden, a New York Times investigative reporter — courts-martial “are a very imperfect method for finding the larger truth about why these abuses took place.” The reasons for that are partially structural. The military has no central prosecutor’s office, meaning courts-martial are brought on a case-by-case basis with no ability to follow investigations across cases. Military prosecutors can’t do what their civilian counterparts are famous for: slowly building a large case by trying to flip the low-level perpetrators and nab the big fish.
Over the last two years, Golden has published an impressive series of stories detailing, at a minimum, the indirect role played by officers and policies in the deaths of the two Afghans in Bagram — the killings his colleague Carlotta Gall first detailed in 2003. Among other files, Golden cited a secret Army memo concluding that during the time when the two men were killed, interrogators at the base had adopted harsh techniques that Rumsfeld had approved for use at Guantanamo. The GIs involved in the killings eventually faced courts-martial. But as Golden noted in his story:

"Although military lawyers said the Bagram prosecutors were aware of [the] memorandum, the document was never cited in court. Nor do the prosecutors or Army investigators appear to have asked intelligence officers at Bagram to specify what those harsher methods were, when they were used, who authorized them or whether they had any effect on the treatment of the two men who died."

Only one junior officer faced court-martial in the matter. His case was dismissed before trial.

Some of the courts-martial that went to trial did provide an opportunity to connect dots, but reporters often took a pass. The daily dispatches from the courts-martial, by both TV news and in the papers, usually stuck to the small picture, rarely noting that some of the abuses that led to charges had at one point, though not specifically in the courts-martial cases, been approved by Rumsfeld.

Joanne Mariner, head of Human Rights Watch’s counterterrorism program, points to a trial last spring involving a guard at Abu Ghraib who was charged with using dogs to intimidate prisoners. “You don’t see headlines in The New York Times that Rumsfeld approved techniques that others are now facing courts-martial for,” says Mariner. “It doesn’t lend itself to daily coverage. What you need is more analytic capacity to add things up. It requires larger context.”


As a result of the administration’s stonewalling, the abuse story has been deprived of the oxygen it needs to move forward and stay in the headlines. There are still occasional revelations, but without the typical next steps — congressional hearings, investigations, resignations — the scoops themselves start to lose their pop and the story grows cold. The abuse story has become what Mark Danner, writing in The New York Review of Books, memorably dubbed a “frozen scandal.” Revelations are only followed by more revelations, and readers’ attention, and a news organization’s resources, ultimately drift to other stories. The pack moves on.

“Democrats don’t have the ability to hold hearings unless the party in power, the GOP, agrees. And Republicans have been loath to do that,” says The New Yorker’s Jane Mayer, who has written some of the finest big-picture stories connecting policymakers to torture. “There’s been none of the usual fact-finding with subpoena power,” she says.

“What reporters keep pointing to is that contrary to the administration’s repeated assertions of ‘a few bad apples,’ there is an official policy of renditions, of interrogations using abusive techniques like water boarding,” Mayer adds. “These are political choices that have been made and those who made them should be made to stand up and explain them, so the public can make an informed decision.” Reporting — fine as much of it has been — can’t replace congressional oversight. “Journalists will do incredible work and it just drops into a great black void,” Mayer says. “I have subpoena envy.”

While some stories fall into a void, others never get done. “When Congress is actively engaged in oversight, there’s a synergy with the press,” says Steven Aftergood, who heads the Federation of American Scientists’ Project on Government Secrecy. “It’s a powerful mechanism for disclosure that nourishes press coverage. Without the Congress there’s a kind of negative synergy. Congressional inaction serves as a signal to leave this alone. And, frankly, taking a pass is perfectly understandable. These are very hard stories to cover, and sources are very hard to come by.”

Consider the circuitous path into the open taken by one of the military’s best investigations into abuses. Overseen by Major General Antonio Taguba, the report said that the chain of command bore some responsibility for abuses at Abu Ghraib. Initially classified, the report was disclosed in part by The New Yorker’s Seymour Hersh. But its classified annex, containing thousands of pages of testimony detailing the scope of the abuse, stayed out of public view — until the ACLU uncovered it through an FOIA lawsuit. Congress itself never pushed to obtain the annex. “If Congress had asked for it, that would have done the trick,” says Aftergood. “But Congress didn’t want to know.”

It is impossible to quantify the effect of congressional inaction and the administration’s efforts to quash details about abusive interrogation tactics. But the Pew Research Center for the People and the Press did ask a question in a poll that might give a glimpse. In October 2005 — eighteen months after the disclosures of memos redefining torture, and after the appearance of official reports concluding that much of the abuse photographed at Abu Ghraib had indeed been based on tactics approved elsewhere in the system — respondents were asked what they thought caused the “cases of prisoner mistreatment in Iraq and Guantanamo Bay.” About a third said it was “mostly the result of official policies.” Nearly half said it was “mostly the result of misconduct” by individuals.


The debate finally focused on the policy of detainee treatment — rather than on the need for such a debate — in the fall of 2005. The shift was brought on by Senator John McCain and his proposed amendment banning torture.

The administration’s position was still pushed sotto voce. While quietly opposing the McCain amendment, the White House again refused to publicly defend its policies. President Bush continued to insist that the U.S. did not engage in torture and treated prisoners humanely.

But while Bush, Cheney, and other administration officials chose not to engage, the debate developed by proxy, with the writer Charles Krauthammer, among others, insisting that the McCain standard was too stringent. And the administration’s backstage maneuvers were detailed in early November, when The Washington Post reported on page 1 that the vice president was waging an “intense and largely unpublicized campaign” against restrictions on detainee treatment and had lobbied senators to exempt the CIA from McCain’s amendment.

The White House began threatening to veto the measure, although the president wouldn’t comment publicly, and Scott McClellan, then White House spokesman, simply labeled the amendment “unnecessary and duplicative.” But forced into the open, few senators were willing take a stand for inhumane treatment, and McCain’s bill passed by the veto-proof margin of ninety to nine. (The exemption for the CIA was rejected, too.)

Faced with defeat, the president invited McCain to the White House, where Bush signed the measure and offered vague praise for the ban. “We’ve been happy to work with him to achieve a common objective,” he said.

The McCain vote, of course, garnered front-page coverage around the country and on the networks. "President Backs McCain on Abuse," declared The New York Times. What was mostly missed, however, were two key facts. First, the amendment, worthy as it was, wasn’t as strong as advertised. It contained no enforcement clause: soldiers or CIA agents couldn’t abuse prisoners, the bill stated, but it didn’t provide for any penalties if they did. The amendment, in other words, was mostly a statement of principle, without teeth.

What’s more, McCain’s amendment was undercut by another little-noticed amendment that was passed as part of the same defense appropriations bill. Sponsored by Senators Lindsey Graham, Carl Levin, and John Kyl, the amendment — which was combined with McCain’s measure to become the Detainee Treatment Act (DTA) — states that testimony gained through “coercion” can be used in military tribunals. Unlike the McCain amendment, which merely reaffirms existing laws, the Graham-Levin-Kyl measure muddies what had been clear waters. The amendment’s portion of the DTA also severely restricts detainees’ access to U.S. courts and strips them of the right to habeas corpus. It limits detainee cases to a single hearing in front of an appeals court, at which detainees have no clear right to present the facts of their case.

Cheney and his allies “took their opponents to the cleaners,” Marty Lederman, a law professor at Georgetown who served in the Justice Department until 2002, wrote at the time on a blog called Balkanization. “The Graham amendments . . . are far more beneficial to their detention and interrogation policies than the McCain amendment is detrimental.”

But that’s not how the matter has played in the media. The triumph of the McCain amendment was a compelling story, a personality play in which the little-liked Cheney was brought to heel by the much-adored maverick senior senator from Arizona. The Graham-Levin-Kyl amendment — a legalistic, obscure, and at least nominally bipartisan effort — had no such drama. And it got no equivalent coverage. The morning after that amendment passed, only one major paper, The New York Times, gave it front-page treatment, and it simply wasn’t mentioned on the network news.

“I don’t think the media were connecting the dots,” says Marc Falkoff, a law professor at Northern Illinois University who represents seventeen Yemenis detained at Guantanamo. “They never realized” that the McCain bill “gave the detainees a right, but without a remedy.”

The undercutting pattern continued with the president’s “signing statement,” in which he asserted that he didn’t consider his administration to be bound by the McCain ban but instead would interpret it “in a manner consistent with the constitutional authority of the president.” With the statement’s practical implications unclear — Was the president reserving his right to ignore the ban? Was he giving fair warning of what he was already doing? — and the whole notion of signing statements a confusing, unfamiliar, and often headache-inducing legal topic, most news outlets, with the notable exception of The Boston Globe, ignored it. (Coverage of the signing statements did eventually pick up after bloggers and others harped on them.)

If the ramifications of the signing statement are murky, the practical effect of the combined McCain and Graham-Levin-Kyl amendments — stripping the ability of prisoners to challenge their treatment — may be less so. Falkoff says that when he last visited the prison, in April 2006, one of his clients showed up badly beaten. “One eye was swollen shut, the other a deep black and blue. Contusions all over his body, cuts on his head and legs,” recalls Falkoff. “He couldn’t swallow and could barely talk.” The client had been forcibly “extracted” from his cell. The offense meriting the move “was that he stepped over a line that they painted in his isolation cell.

“It’s good that McCain is very clear about it being illegal to abuse detainees,” Falkoff continues. “But for Gitmo detainees the DTA is a net negative. They could torture and beat the shit out of any of our clients and there’s nothing we can do about it after the DTA.”

Though it’s still being litigated, the Supreme Court’s Hamdan decision in June seems to have reined in the DTA’s habeas-stripping provisions. But two other lawyers representing detainees at Guantanamo told me that treatment had indeed become tougher after the DTA, especially the guards’ treatment of detainees on hunger strikes. Hunger strikes have been occurring at Guantanamo for years. It was only early this year, after the DTA was passed, that the military began particularly aggressive force-feedings involving larger than normal tubes, which often resulted in bleeding.


In early November 2005, as McCain’s anti-abuse ban and the Graham-Levin-Kyl amendment were winding their way through the Senate, the Washington Post’s Dana Priest published another seminal piece on the U.S. detention system, this time on the CIA’s network of secret prisons.

The story gave a “rough estimate” of “more than 100” suspects who have been moved through the system, with some being rendered to foreign intelligence services — which held the prisoners “with CIA financial assistance and, sometimes, direction” — and others held directly by the CIA, including some at a “Soviet-era compound in Eastern Europe.”

Contrary to international law, those held at the secret prisons were not registered with the International Red Cross or acknowledged as being held. They were, and remain, ghost prisoners. The policy, as Priest detailed, had started haphazardly as a way of holding only the top al Qaeda suspects, but it morphed into something different. “We never sat down, as far as I know, and came up with a grand strategy,” one “former senior intelligence” officer told her. “Everything was very reactive. That’s how you get to a situation where you pick people up, send them into a netherworld and don’t say, ‘What are we going to do with them afterwards?’”

The Post seemed to suggest that the existence of the prison system itself was breaking news: "CIA Holds Terror Suspects in Secret Prisons." Additional coverage — and outrage in Washington — followed. ABC News, for example, referred to the “revelation today, first in The Washington Post, about a network of top-secret prisons run by the CIA.”

It’s true that the existence of a “number of secret detention centers overseas” was first revealed by the Post — but the revelation came three years earlier. Priest and her colleague Bart Gellman reported that fact in their little-noticed story over Christmas 2002, the one that detailed “stress and duress” techniques and beatings. That story even listed specific locations, saying there were secret prisons at the U.S. Bagram Air Base in Afghanistan and another at a base on the British island of Diego Garcia in the Indian Ocean. In October 2004, Human Rights Watch also released a report on the ghost prisoners. And journalists abroad had reported on the locations of other CIA prisons, one in Jordan, another in Morocco, and yet another in Thailand.

Priest’s 2005 piece had more detail than anything previously published on the subject — discussion from former intelligence officials about how the program started; and particularly the reference to the existence of prisons in Eastern European countries — but the story’s revelations were actually modest in comparison to the amount of vituperation they stirred up.

As for extraordinary renditions, the first small glimpse into that policy came just a month after 9/11. At the time, the Post’s Rajiv Chandrasekaran was reporting from Pakistan and saw a reference in a local paper to an al Qaeda suspect who had been flown away in the middle of the night by the U.S. Chandrasekaran ran the plane’s tail number, which had been published, through an FAA database and quickly suspected that a CIA front was involved. “I tried finding the number for the company listed and couldn’t get anything,” Chandrasekaran recalls. “I thought, Why the hell would they fly in the middle of the night? That was it. It was all I had time to do back then.”

The following spring, in early 2002, Chandrasekaran was stationed in Indonesia and saw a squib in a local paper about an Arab handed over to foreigners at a military air base. “I went to the guy’s neighborhood, talked to Indonesia intel sources, and one opened up to me,” he remembers. Written with Peter Finn, the resulting front-page story — "U.S. Behind Secret Transfer of Terror Suspects" — revealed how a prisoner who, without a court hearing or a lawyer, “was hustled aboard an unmarked, U.S.-registered Gulfstream V jet parked at a military airport in Jakarta and flown to Egypt.”

“After September 11, these sorts of movements have been occurring all the time,” one U.S. diplomat told the Post. “It allows us to get information from terrorists in a way we can’t do on U.S. soil.”

Coming just six months after 9/11, Chandrasekaran says the article “got very little interest. A year, two years later, I started getting calls saying, ‘Oh, that’s interesting.’ And that includes my own paper.”
Bob Drogin, an intelligence reporter at the Los Angeles Times, remembers trying to follow these stories and making “an utterly unsuccessful effort to crack into the rendition business. It’s reporters abroad who’ve done the best job on this stuff. It’s just the nature of where the story is.”

Indeed, by the summer of 2004, soon after the Abu Ghraib photos surfaced, European journalists from outlets like The Financial Times, the London Independent, The Ottawa Citizen, and Calla Fakta (Cold Facts), a Swedish TV program, were driving the coverage of renditions. A British reporter named Stephen Grey began to track CIA flights by their tail numbers. Grey eventually detailed some 300 flights of a single jet to forty-nine different destinations in the British publication, New Statesman. Grey, a freelancer who in the past year had written about renditions for The New York Times, says that before publishing his piece he tried to get U.S. networks interested. One show was particularly interested, but eventually the idea fell through. “They said, ‘Can’t you find somebody who’s innocent; we’d much prefer that,’” says Grey, who won’t name the show he was referring to. “The nub of the story wasn’t innocence; it was that people were sent to places where they were likely tortured.” (A number of American outlets did eventually contribute pieces of the puzzle, including regional dailies like The Oregonian, The Boston Globe, and the Chicago Tribune.)

When Priest’s story on the secret prisons was splashed across the Post’s front page, it resulted in an enormous amount of attention, consternation, and, of course, a backlash. Although the Post had declined to name the Eastern European countries in which some of the prisons were located — a decision prompted by “the request of senior U.S. officials [who] argued that the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation” — the reaction against the Post by the administration and Congress was swift and overwhelming.

Joining others in calling for a leak probe, Senate Majority Leader Bill Frist declared himself “not concerned about what goes on” at the prisons but very concerned about the leak. The CIA also requested that the Justice Department start an investigation, and the House Intelligence Committee started its own.

“The House and Senate majority leaders held a joint news conference calling for a bicameral investigation,” says Priest. “That was the weirdest day.” The article, as Priest puts it, was “my attempt to go back again, with deeper sourcing and a better understanding of the discrete elements and motives behind all this.” As to why this particular piece, of all the stories she has written on the detention system, got so much attention, Priest suspects that “it was the fact that the prisons were in Europe and that those were democracies. They’re like us.”

The leak investigations have not yielded any firm results yet. (One CIA official, Mary McCarthy, was fired earlier this year, apparently for leaking, but it’s unclear whether that involved Priest’s article.) But whatever the intentions of those who complained about Priest’s story, one consequence is clear: in contrast with Europe, the focus in the U.S. moved from the existence of secret prisons to the Post’s disclosure of them. The debate was once again deferred.


Carlotta Gall, the Times reporter who uncovered the two homicides at Bagram Air Base in Afghanistan in early 2003, was struck at the time by “the reluctance to believe bad acts of American troops when we’re at war.” That reluctance has largely disappeared, but a certain caution remains regarding officials in Washington.

This June, the Supreme Court ruled in Hamdan v. Rumsfeld that the military commissions the president had set up for al Qaeda suspects hadn’t been approved by Congress and thus were illegal. At least that is what made the headlines. Almost all papers, the Los Angeles Times being an exception, played the ruling narrowly. Take The Washington Post: "High Court Rejects Detainee Tribunals."

What was only slowly recognized was that the court had also concluded that abusive interrogation policies were in fact illegal. The majority opinion, written by Justice John Paul Stevens, said that contrary to the Bush administration’s assertions, all captured combatants in U.S. custody are entitled to protection under what’s known as Common Article 3 of the Geneva Conventions. While not granting them full prisoner-of-war protections, Article 3 says even fighters such as captured al Qaeda members are entitled to a minimum standard of treatment, including protection from “outrages upon personal dignity.”

By now, two years after Abu Ghraib, there is plenty of evidence that subjecting some detainees to “outrages upon personal dignity” has been exactly the policy of the administration. In November 2005, ABC News published a partial list of the CIA’s “enhanced interrogation tactics,” including such things as water boarding, the “attention slap,” and the cold-cell treatment, in which prisoners are kept naked, nearly freezing, and continuously doused with water.

Lieutenant General Schmidt, who had overseen the report on FBI allegations of abuse at Guantanamo, later testified that Rumsfeld had been “personally involved,” and was being given “weekly updates” on the interrogation of one detainee, who was kept near-freezing and led around naked on a leash. Interrogation logs later showed that the detainee’s heart rate became so slow during his “cold” treatment that he nearly died. Another prisoner in CIA custody in Afghanistan died of hypothermia.

“It all goes back to President Bush’s order, in February 2002, that detainees would not be covered by Common Article 3 of Geneva. That was the key,” says Marty Lederman, the constitutional scholar and former administration lawyer. Bush made that declaration publicly. It was oddly fitting, then, that when the Supreme Court ruled that Bush’s 2002 executive order was in fact illegal — a conclusion the White House implicitly acknowledged this summer when it began lobbying to effectively shield interrogators and officials from potential violations of the War Crimes Act — there were few headlines about that either.

Eric Umansky, formerly a columnist for Slate, is currently a Gordon Grey fellow in the Graduate School of Journalism at Columbia University. CJR gratefully acknowledges support for this article from the Investigative Fund of the Nation Institute.

Habeas Corpus, R.I.P. (1215 - 2006)

Habeas Corpus, R.I.P. (1215 - 2006)
With a smug stroke of his pen, President Bush is set to wipe out a safeguard against illegal imprisonment that has endured as a cornerstone of legal justice since the Magna Carta.
by Molly Ivins

AUSTIN, Texas - Oh dear. I’m sure he didn’t mean it. In Illinois’ Sixth Congressional District, long represented by Henry Hyde, Republican candidate Peter Roskam accused his Democratic opponent, Tammy Duckworth, of planning to “cut and run” on Iraq.

Duckworth is a former Army major and chopper pilot who lost both legs in Iraq after her helicopter got hit by an RPG. “I just could not believe he would say that to me,” said Duckworth, who walks on artificial legs and uses a cane. Every election cycle produces some wincers, but how do you apologize for that one?

The legislative equivalent of that remark is the detainee bill now being passed by Congress. Beloveds, this is so much worse than even that pathetic deal reached last Thursday between the White House and Republican Sens. John Warner, John McCain and Lindsey Graham. The White House has since reinserted a number of “technical fixes” that were the point of the putative “compromise.” It leaves the president with the power to decide who is an enemy combatant.

This bill is not a national security issue—this is about torturing helpless human beings without any proof they are our enemies. Perhaps this could be considered if we knew the administration would use the power with enormous care and thoughtfulness. But of the over 700 prisoners sent to Gitmo, only 10 have ever been formally charged with anything. Among other things, this bill is a CYA for torture of the innocent that has already taken place.

Death by torture by Americans was first reported in 2003 in a New York Times article by Carlotta Gall. The military had announced the prisoner died of a heart attack, but when Gall saw the death certificate, written in English and issued by the military, it said the cause of death was homicide. The “heart attack” came after he had been beaten so often on this legs that they had “basically been pulpified,” according to the coroner.

The story of why and how it took the Times so long to print this information is in the current edition of the Columbia Journalism Review. The press in general has been late and slow in reporting torture, so very few Americans have any idea how far it has spread. As is often true in hierarchical, top-down institutions, the orders get passed on in what I call the downward communications exaggeration spiral.

For example, on a newspaper, a top editor may remark casually, “Let’s give the new mayor a chance to see what he can do before we start attacking him.”

This gets passed on as “Don’t touch the mayor unless he really screws up.”

And it ultimately arrives at the reporter level as “We can’t say anything negative about the mayor.”

The version of the detainee bill now in the Senate not only undoes much of the McCain-Warner-Graham work, but it is actually much worse than the administration’s first proposal. In one change, the original compromise language said a suspect had the right to “examine and respond to” all evidence used against him. The three senators said the clause was necessary to avoid secret trials. The bill has now dropped the word “examine” and left only “respond to.”

In another change, a clause said that evidence obtained outside the United States could be admitted in court even if it had been gathered without a search warrant. But the bill now drops the words “outside the United States,” which means prosecutors can ignore American legal standards on warrants.

The bill also expands the definition of an unlawful enemy combatant to cover anyone who has “has purposefully and materially supported hostilities against the United States.” Quick, define “purposefully and materially.” One person has already been charged with aiding terrorists because he sold a satellite TV package that includes the Hezbollah network.

The bill simply removes a suspect’s right to challenge his detention in court. This is a rule of law that goes back to the Magna Carta in 1215. That pretty much leaves the barn door open.

As Vladimir Bukovsky, the Soviet dissident, wrote, an intelligence service free to torture soon “degenerates into a playground for sadists.” But not unbridled sadism—you will be relieved that the compromise took out the words permitting interrogation involving “severe pain” and substituted “serious pain,” which is defined as “bodily injury that involves extreme physical pain.”

In July 2003, George Bush said in a speech: “The United States is committed to worldwide elimination of torture, and we are leading this fight by example. Freedom from torture is an inalienable human right. Yet torture continues to be practiced around the world by rogue regimes, whose cruel methods match their determination to crush the human spirit.”

Fellow citizens, this bill throws out legal and moral restraints as the president deems it necessary—these are fundamental principles of basic decency, as well as law.

I’d like those supporting this evil bill to spare me one affliction: Do not, please, pretend to be shocked by the consequences of this legislation. And do not pretend to be shocked when the world begins comparing us to the Nazis.

To find out more about Molly Ivins and see works by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at

White House Falsely Claimed Abramoff Had ‘Very Few’ Meetings With Staff

FACT CHECK: White House Falsely Claimed Abramoff Had ‘Very Few’ Meetings With Staff

A House Government Reform Committee report establishes — based on e-mail messages and other records subpoenaed from criminal lobbyist Jack Abramoff’s lobbying firm — that at least 485 contacts occurred between Abramoff’s lobbying team and White House officials between 2001 to 2004.

The Committee documents 13 instances of Abramoff personally meeting with White House staff. Abramoff billed his clients for 32.3 hours for time spent with White House staff.

Last January, former White House Press Secretary Scott McClellan repeatedly misled the public as to the extent of the relationship between the White House and Abramoff, suggesting there had only been “a few staff-level meetings.”

QUESTION: How about the logs of the people, how many times he came into the White House?
MCCLELLAN: I’m checking into that. I said he’d check into that. I think someone asked that question the other day. I think it is very few times that he has been here in addition to any holiday receptions. [White House Press Briefing, 1/4/06]

QUESTION: Do you have an update for us on the Abramoff visits to the White House beyond the three parties that he attended?
MCCLELLAN: Well, I indicated yesterday that I think there were a few staff-level meetings. But, no, I’m making sure that I have a thorough report back to you on that. And I’ll get that to you, hopefully, very soon. [White House Press Briefing, 1/5/06]

QUESTION: Can you be more specific about the contacts with the senior staff? You said you were going to get back to us on that.
MCCLELLAN: No, I did check. There were a few staff-level meetings. I think I previously indicated that he attended three Hanukkah receptions at the White House. It is actually one two Hanukkah receptions that he attended. … My understanding from the check that we did was that there are just a few staff-level meetings in addition to those. [White House Press Briefing, 1/17/06]

QUESTION: Why not — why are you guys resistant to open this here? What is there to hide, or why not just say, here are the contacts he had, here are the issues he talked about when he came to the White House, here are the people…
MCCLELLAN: Well, I did do a check, and I indicated to you exactly what I just told you. I indicated to you that there were a few staff-level meetings that he attended at least — he attended two holiday receptions, in 2001 and 2002. [White House Press Briefing, 1/23/06]

Thursday, September 28, 2006

McJoan History will Not Absolve Us

History will Not Absolve Us Hotlist
by mcjoan
Thu Sep 28, 2006 at 03:22:39 PM CDT

Today, the Congress has forever stained its reputation and that of the United States of America. It is now a foregone conclusion that the execrable detainee bill will be adopted without amendment. There will be no filibuster, as Democrat Senate Leader Reid agreed with Senate Leader Frist to allow a vote on the bill after dispensation of the proposed amendments debated yesterday and today. Senator Reid made a terrible tactical decision in making this agreement. These amendments had no chance of passing. They had value in highlighting the outrageousness of this bill and in thus justifying a filibuster. But without a filibuster, the exercsie was an empty one. We admire Harry Reid's leadership but, in this monumental moment, his instincts and judgment failed him. And his place in history will be marked by this terrible day.

That said, let us not forget who authored this travesty; who stands for torture, for a dictatorial Presidency and against the Constitution and the rule of law--the Rubber Stamp Republican Congress. The David Broders of the world exhult at the "independence" of such cowards as McCain, Warner, Graham and Dewine. But this is a farce. The votes on habeas corpus, the President's power to arbitraily define torture and to detain indefinitely--merely on his word, without judicial recourse--anyone, including, American citizens, show these men to be the rankest of cowards--and the worst kind too. For they pretend to be otherwise. And the Broders of the world, the immoral and amoral Beltway Establishment, pretend it is true.

To their credit, the vast majority of Democratic legislators stood against torture, with their words and their votes. And history will remember that. But the Democratic Senators did not fight to the end, and that too history will remember.

Senator Barack Obama eloquently stated today:

I may have only been in this body for a short while, but I am not naive to the political considerations that go along with many of the decisions we make here. I realize that soon, we will adjourn for the fall, and the campaigning will begin in earnest. And there will be 30-second attack ads and negative mail pieces, and we will be called everything from cut-and-run quitters to Defeatocrats to people who care more about the rights of terrorists than the protection of Americans. And I know that the vote before us was specifically designed and timed to add more fuel to that fire.

And yet, while I know all of this, I'm still disappointed, and I'm still ashamed. Because what we're doing here today - a debate over the fundamental human rights of the accused - should be bigger than politics. This is serious.

. . . Instead of allowing this President--or any President---to decide what does and does not constitute torture, we could have left the definition up to our own laws and to the Geneva Conventions, as we would have if we passed the bill that the Armed Services committee originally offered.

Instead of detainees arriving at Guantanamo and facing a Combatant Status Review Tribunal that allows them no real chance to prove their innocence with evidence or a lawyer, we could have developed a real military system of justice that would sort out the suspected terrorists from the accidentally accused.

And instead of not just suspending, but eliminating, the right of habeas corpus--the seven century-old right of individuals to challenge the terms of their own detention, we could have given the accused one chance--one single chance--to ask the government why they are being held and what they are being charged with. . . .

But politics won today. Politics won. . . .

And the disgrace of the nation will live in history. History will not absolve the President or the Congress on this shameful day. History will not absolve the United States of America. Today we betrayed our values in an exercise of cynical political calculation and blatant fear.

Rushing Off a Cliff

NY Times Editorial
Rushing Off a Cliff

Here’s what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans’ fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists. Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser.

Republicans say Congress must act right now to create procedures for charging and trying terrorists — because the men accused of plotting the 9/11 attacks are available for trial. That’s pure propaganda. Those men could have been tried and convicted long ago, but President Bush chose not to. He held them in illegal detention, had them questioned in ways that will make real trials very hard, and invented a transparently illegal system of kangaroo courts to convict them.

It was only after the Supreme Court issued the inevitable ruling striking down Mr. Bush’s shadow penal system that he adopted his tone of urgency. It serves a cynical goal: Republican strategists think they can win this fall, not by passing a good law but by forcing Democrats to vote against a bad one so they could be made to look soft on terrorism.

Last week, the White House and three Republican senators announced a terrible deal on this legislation that gave Mr. Bush most of what he wanted, including a blanket waiver for crimes Americans may have committed in the service of his antiterrorism policies. Then Vice President Dick Cheney and his willing lawmakers rewrote the rest of the measure so that it would give Mr. Bush the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error.

These are some of the bill’s biggest flaws:

Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.

Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.

•There is not enough time to fix these bills, especially since the few Republicans who call themselves moderates have been whipped into line, and the Democratic leadership in the Senate seems to have misplaced its spine. If there was ever a moment for a filibuster, this was it.

We don’t blame the Democrats for being frightened. The Republicans have made it clear that they’ll use any opportunity to brand anyone who votes against this bill as a terrorist enabler. But Americans of the future won’t remember the pragmatic arguments for caving in to the administration.

They’ll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.

Heralded Iraq Police Academy a 'Disaster'

Heralded Iraq Police Academy a 'Disaster'

By Amit R. Paley
Washington Post Staff Writer
Thursday, September 28, 2006; Page A01

BAGHDAD, Sept. 27 -- A $75 million project to build the largest police academy in Iraq has been so grossly mismanaged that the campus now poses health risks to recruits and might need to be partially demolished, federal investigators have found.

The Baghdad Police College, hailed as crucial to U.S. efforts to prepare Iraqis to take control of the country's security, was so poorly constructed that feces and urine rained from the ceilings in student barracks. Floors heaved inches off the ground and cracked apart. Water dripped so profusely in one room that it was dubbed "the rain forest."

"This is the most essential civil security project in the country -- and it's a failure," said Stuart W. Bowen Jr., the special inspector general for Iraq reconstruction, an independent office created by Congress. "The Baghdad police academy is a disaster."

Bowen's office plans to release a 21-page report Thursday detailing the most alarming problems with the facility.

Even in a $21 billion reconstruction effort that has been marred by cases of corruption and fraud, failures in training and housing Iraq's security forces are particularly significant because of their effect on what the U.S. military has called its primary mission here: to prepare Iraqi police and soldiers so that Americans can depart.

Federal investigators said the inspector general's findings raise serious questions about whether the U.S. Army Corps of Engineers has failed to exercise effective oversight over the Baghdad Police College or reconstruction programs across Iraq, despite charging taxpayers management fees of at least 4.5 percent of total project costs. The Corps of Engineers said Wednesday that it has initiated a wide-ranging investigation of the police academy project.

This eerily recalls the Superdome after Katrina:

_Bahamonde (Marty Bahamonde, regional FEMA director for New England) to Taylor and Michael Widomski, public affairs, Aug. 31, 2:44 p.m.

"OH MY GOD!!!!!!!! No won't go any further, too easy of a target. Just tell her that I just ate an MRE and crapped in the hallway of the Superdome along with 30,000 other close friends so I understand her concern about busy restaurants. Maybe tonight I will have time to move my pebbles on the parking garage floor so they don't stab me in the back while I try to sleep.

_Bahamonde to Taylor, Sept. 3, 1:06 a.m.

"The leadership from top down in our agency is unprepared and out of touch. ... But while I am horrified at some of the cluelessness and self concern that persists, I try to focus on those that have put their lives on hold to help people that they have never met and never will. And while I sometimes think that I can't work in this arena, I can't get out of my head the visions of children and babies I saw sitting there, helpless, looking at me and hoping I could make a difference and so I will and you must too."

The Post concludes:

Inside the inspector general's office in Baghdad on a recent blistering afternoon, several federal investigators expressed amazement that such construction blunders could be concentrated in one project. Even in Iraq, they said, failure on this magnitude is unusual. When asked how the problems at the police college compared with other projects they had inspected, the answers came swiftly.

"This is significant," said Jon E. Novak, a senior adviser in the office.

"It's catastrophic," DeShurley added.

Bowen said: "It's the worst."