Mukasey hints at Bush’s permission for torture

Under questioning from a Democratic senator, US attorney general Michael Mukasey today suggested that George Bush might have personally authorised the waterboarding of suspected terrorists.Mukasey immediately corrected himself to say that he was not permitted to discuss past events. But in describing the process by which the CIA could seek legal clearance to resume waterboarding, he appeared to tie the president to the controversial technique.

When Democratic senator Dianne Feinstein asked if the current path to authorising waterboarding – a request from the CIA director, followed by approval from the attorney general, followed by consultation with the president – had applied in the past, Mukasey said yes.

I should take a step back,” he then added. “I’m not authorised to say what happened in the past, but I was told this wasn’t news.”

Feinstein pointed to the Bush administration’s reported admission that the CIA waterboarded at least three senior members of al-Qaida. Given that the outlined process for authorising the tactic would have involved Bush, she repeated, “Did the president approve that?”

Mukasey declined to answer the question. His refusal to state directly whether waterboarding, which is not currently in use by the CIA, is a form of torture nearly prevented Mukasey from taking over the justice department last fall.

During Mukasey’s appearance today before the senate judiciary committee, several Democrats sought to pin him down on his views of the interrogation method. Considered illegal by human rights groups and some in the US military, waterboarding involves simulating the sensation of drowning by dousing a prisoner in water.

Mukasey said he would consider waterboarding to be torture if he were personally subjected to it. But he contended that its application by the US involved a separate balancing test, weighing the cost of the brutal action against the value of the information it could yield.

“I don’t think I’m saying it is simply a relative issue,” Mukasey told Democratic senator Joseph Biden. “There is a statute under which it is a relative issue.”

Mukasey invoked the so-called “shocks the conscience” standard, causing Biden to marvel at the implication that the potential profit from waterboarding could have any role in determining its moral value.

“I find [Mukasey's interpretation] to be fairly unique,” Biden said. “Matter of fact, it shocks my conscience a little bit.”

In addition to its souring of Democratic relations with Mukasey, the debate over waterboarding has fuelled a criminal investigation at the justice department into videotapes trashed by the CIA in 2005.

The tapes, destroyed as Congress moved to pass a ban on inhumane interrogations, show two al-Qaida members being questioned and potentially waterboarded by the CIA on foreign soil.

The justice department has appointed a Connecticut prosecutor to probe whether US intelligence officials broke the law or violated court orders by destroying the tapes.

Mukasey also was asked whether private contractors in the CIA’s employ used harsh interrogation tactics, but said he did not know. The Washington Post reported last year that such contractors comprise about one-third of the spy agency’s workforce.

Key 9/11 Commission Staffer Held Secret Meetings With Rove, Scaled Back Criticisms of White House

A forthcoming book by NYT reporter Philip Shenon — “The Commission: The Uncensored History of the 9/11 Investigation” — asserts that former 9/11 Commission executive director Philip Zelikow interfered with the 9/11 report.

According to the book, Zelikow had failed to inform the commission at the time he was hired that he was instrumental in helping Condoleezza Rice set up Bush’s National Security Council in 2001. Some panel staffers believe Zelikow stopped them from submitting a report depicting Rice’s performance prior to 9/11 as “amount[ing] to incompetence.”

Relying on the accounts of Max Holland, an author and blogger who has obtained a copy of the forthcoming book, ABC reports that Zelikow was holding private discussions with White House political adviser Karl Rove during the course of the 9/11 investigation:

In his book, Shenon also says that while working for the panel, Zelikow appears to have had private conversations with former White House political director Karl Rove, despite a ban on such communication, according to Holland. Shenon reports that Zelikow later ordered his assistant to stop keeping a log of his calls, although the commission’s general counsel overruled him, Holland wrote.

Zelikow flatly denied discussing the commission’s work with Rove. “I never discussed the 9/11 Commission with him, not at all. Period.”

After completing his work with the 9/11 Commission, Zelikow was hired by Condoleezza Rice as Counselor at the State Department. He resigned from that position in late 2006. In 1995, Rice and Zelikow co-authored a book entitled, “Germany Unified and Europe Transformed.”

Mukasey Won’t Comment on Waterboarding

WASHINGTON (AP) — Attorney General Michael Mukasey said Tuesday he will refuse to publicly say whether the interrogation tactic known as waterboarding is illegal, digging in against critics who want the Bush administration to define it as torture.

In a letter to Senate Judiciary Chairman Patrick Leahy, Mukasey said he has finished a review of Justice Department memos about the CIA’s current methods of interrogating terror suspects and finds them to be lawful. He said waterboarding currently is not used by the spy agency.

Since waterboarding is not part of what Mukasey described as a “limited set of methods” used by interrogators now, the attorney general said he would not rule on whether it is illegal.

“I understand that you and some other members of the (Judiciary) Committee may feel that I should go further in my review, and answer questions concerning the legality of waterboarding under current law,” Mukasey wrote in his three-page letter to Leahy, D-Vt. “I understand the strong interest in this question, but I do not think it would be responsible for me, as attorney general, to provide an answer.”

The attorney general added: “If this were an easy question, I would not be reluctant to offer my views on this subject. But, with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question.”

The letter does not elaborate on what the other circumstances are.

Mukasey’s letter was sent on the eve of his appearance at a Justice Department oversight hearing chaired by Leahy. It is Mukasey’s first appearance before the committee since he took office Nov. 9.

In a terse statement released minutes after Mukasey’s letter surfaced, Leahy called the attorney general’s position a “last minute response” that merely parrots the Bush administration’s longtime dodge on whether waterboarding is legal.

“It does not, however, answer the critical questions we have been asking about its legality,” Leahy said in the statement. “Attorney General Mukasey knows that this will not end the matter and expects to be asked serious questions at the hearing tomorrow.”

Waterboarding is an interrogation tactic that involves strapping down a person and pouring water over his cloth-covered face to create the sensation of drowning. The practice was banned by the CIA and the Pentagon in 2006.

Mukasey wrote that he would not publicly conclude that waterboarding is illegal because doing so could reveal too many “limits and contours” about the highly classified interrogation program to terrorists or other adversaries. He also noted that some senators resisted specifically banning waterboarding in 2006, when Congress passed the Military Commissions Act.

Congress has prohibited cruel, inhuman and degrading treatment of terror suspects. Sen. John McCain, R-Ariz., a key sponsor of the 2006 bill, has said he was personally assured by administration officials that waterboarding was prohibited under the new law.

The issue of waterboarding briefly snarled Mukasey’s confirmation hearings by the same Senate committee last October. At the time, Mukasey refused to define waterboarding as torture because he was unfamiliar with the classified Justice Department memos describing the process and legal arguments surrounding it.

He promised then, however, to review the memos if confirmed and return an answer to the Senate Judiciary Committee. Tuesday’s letter represents that response.

Waterboarding also is at the heart of a Justice Department criminal investigation over whether the CIA illegally or otherwise improperly destroyed videotapes in 2005 of two terror suspects being interrogated. The tapes showed harsh interrogations, including possible waterboarding, of suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri in 2002, when both suspects were held in secret CIA prisons overseas. They were destroyed as intelligence officials debated whether waterboarding should be declared illegal.

Critics want the Justice Department to join other nations and outlaw waterboarding as illegal. But U.S. intelligence officials fear that doing so could make government interrogators – including those from the CIA – vulnerable to retroactive criminal charges or civil lawsuits.

Ten senators demanded last week that Mukasey immediately clarify his stand on waterboarding. His non-answer Tuesday infuriated Democrats, who said he appeared unable to address what they called a simple legal question.

Mukasey “seems constitutionally incapable of rendering judgment on a simple and straightforward legal question,” said Sen. Dick Durbin, D-Ill., in a statement.

But the attorney general said the matter was far too complicated to easily resolve.

“Reasonable people can disagree, and have disagreed, about these matters,” Mukasey wrote Tuesday. “It is precisely because the issue is so important, and the questions so difficult, that I, as the attorney general, should not provide answers absent a set of circumstances that call for those answers. Those circumstances do not present themselves today, and may never prevent themselves in the future.”

U.S. used waterboarding: ex-spy chief

WASHINGTON (Reuters) – The United States used waterboarding in terrorism interrogations but no longer does, a former U.S. spy chief said in the Bush administration’s clearest confirmation of the technique’s use.

U.S. officials have been reluctant to acknowledge the CIA’s use of the simulated drowning technique, which human rights groups call an illegal form of torture.

The remarks by former Director of National Intelligence John Negroponte in an interview with National Journal magazine come as senators are expected on Wednesday to grill Attorney General Michael Mukasey on a promised review of the legality of interrogation methods.

Asked by the magazine if debate over U.S. counterterrorism techniques was hampering its effort in a “war of ideas,” Negroponte said, “We’ve taken steps to address the issue of interrogations, for instance, and waterboarding has not been used in years.”

Negroponte served from 2005 to 2007 as the first director of national intelligence, a position created by President George W. Bush in the wake of the September 11 attacks. Negroponte is now deputy secretary of state. He spoke in an interview published in the National Journal’s January 25 issue.

“It (waterboarding) wasn’t used when I was director of national intelligence, nor even a few years before that,” he said. “I get concerned that we’re too retrospective and tend to look in the rearview mirror too often at things that happened four or even six years ago.”

Negroponte’s remarks appear to confirm earlier reports that the CIA discontinued waterboarding in 2003, after using it on three “high-value” detainees. Vice President Dick Cheney once suggested waterboarding was “an important tool” used to interrogate September 11 mastermind Khalid Sheikh Mohammed.

Bush has regularly insisted that the United States does not torture but has declined to discuss what interrogation techniques are used. The CIA declined comment on Negroponte’s remarks. 

 Mukasey, who took office in November, promised in his Senate confirmation hearings to review U.S. interrogation methods. But he gave no sign in a meeting with reporters last week that he was ready to discuss the review at Wednesday’s hearing of the Senate Judiciary Committee.

Mukasey said it would focus on the existing interrogation program and the validity of department legal opinions regarding it — a hint that he might not review discontinued practices.

Mukasey made no mention of the review in his prepared testimony to the committee, released by the Justice Department on Monday.

Committee Chairman Patrick Leahy, a Vermont Democrat, took note of the omission and vowed in a statement to ask Mukasey “whether he agrees that waterboarding is torture and illegal.”

Mukasey was asked last week if he would answer senators’ inevitable questions about the issue, and replied, “I didn’t say that I wouldn’t answer it, I didn’t say that I would.”

Mukasey on January 2 ordered the Justice Department to investigate the CIA’s destruction of videotapes depicting the harsh interrogations of two terrorism suspects in 2002. At least one of the subjects, Abu Zubaydah, was believed to have been subjected to waterboarding.

Mukasey has rejected calls to appoint an independent counsel for the investigation. He has indicated investigators would be free to pursue evidence of illegal interrogation techniques in their probe, but department officials have said the focus remains on the tapes’ destruction.

Justice Nomination Seen as Snub to Democrats

The Justice Department lawyer who wrote a series of classified legal opinions in 2005 authorizing harsh C.I.A. interrogation techniques was renominated by the White House on Wednesday to a senior department post, a move that was seen as a snub to Senate Democrats who have long opposed his appointment.

The lawyer, Steven G. Bradbury, who has run the department’s Office of Legal Counsel without Senate confirmation for more than two years, has been repeatedly nominated to the job of assistant attorney general for legal counsel.

But the earlier nominations stalled in the Senate because of a dispute with the Justice Department over its failure to provide Congress with copies of legal opinions on a variety of terrorism issues. Under Senate rules that place a time limit on nominations, Mr. Bradbury’s earlier nominations expired.

Late last year, Democrats urged the White House to withdraw Mr. Bradbury’s name once and for all and find a new candidate for the post after it was disclosed in news reports in October that he was the author of classified memorandums that gave approval to harsh interrogation techniques, including head slapping, exposure to cold and simulated drowning, even when used in combination.

Mr. Bradbury’s memorandums were described by Democrats as an effort by the Bush administration to circumvent laws prohibiting torture and to undermine a public legal opinion issued by the Justice Department in 2004 that declared torture to be “abhorrent.”

The department and the White House have insisted that there are no contradictions between Mr. Bradbury’s legal opinions, which are still secret, and laws and rules governing interrogation techniques. A department spokesman, Peter A. Carr, said Wednesday that the department remained eager to see Mr. Bradbury confirmed.

“Steve Bradbury is a dedicated public servant and a superb lawyer, who has led with distinction the department’s Office of Legal Counsel,” Mr. Carr said. “He has proven invaluable to the department, and we will continue to work with the Senate to get him confirmed.”

Joe Shoemaker, a spokesman for Senator Richard J. Durbin of Illinois, the No. 2 Democrat in the Senate, said that by putting Mr. Bradbury’s name forward again as a nominee, “the president has thumbed his nose at Congress and chosen an individual who has been involved in authorizing some of the most controversial policies of this administration.”

Mr. Durbin led the previous efforts to reject Mr. Bradbury’s nomination and sits on the Judiciary Committee, which would have to approve the nomination.

Mr. Bradbury’s new nomination is almost certain to be a focus of questions next week when Attorney General Michael B. Mukasey is scheduled to appear before the Judiciary Committee for his first public hearing since his confirmation to the job in November.

Mr. Mukasey has suggested that he is a firm supporter of the Bush administration’s tough anti-terrorism policies, and his nomination was nearly derailed over criticism of his refusal to condemn as torture the interrogation practice known as waterboarding. He has since said he is studying its legality.

Mr. Durbin and the nine other Democrats on the Judiciary Committee joined in a letter on Wednesday asking Mr. Mukasey to clarify his views on waterboarding and other harsh interrogation techniques. The letter noted there had been “ample time for you to study this issue and reach a conclusion” and asked him to respond to the question: “Is the use of waterboarding as an interrogation technique illegal under U.S. law, including terrorism obligations?”

Also Wednesday, Vice President Dick Cheney offered a broad and impassioned defense of the administration’s antiterrorism efforts as he urged Congress to act quickly in reauthorizing broad wiretapping powers for the National Security Agency and in giving broad immunity to phone companies involved in the wiretaps.

The vice president, who was closely involved in the N.S.A.’s program of eavesdropping without warrants from its inception weeks after the Sept. 11, 2001, terrorist attacks, depicted the vote in the Senate as a matter of national security.

“It is a fact,” Mr. Cheney told a friendly audience at the Heritage Foundation, a conservative research group in Washington, “that the danger to our country remains very real, and that the terrorists are still determined to hit us.”

Democrats concede that they probably lack the votes to stop a White House-backed plan to give immunity to phone carriers that assisted in the N.S.A. program, and they urged President Bush anew on Wednesday to agree to a one-month extension in the law to allow time for a full debate.

No Secret C.I.A. Buildup For Pakistan

WASHINGTON — The top two American intelligence officials traveled secretly to Pakistan early this month to press President Pervez Musharraf to allow the Central Intelligence Agency greater latitude to operate in the tribal territories where Al Qaeda, the Taliban and other militant groups are all active, according to several officials who have been briefed on the visit.

But in the unannounced meetings on Jan. 9 with the two American officials — Mike McConnell, the director of national intelligence, and Gen. Michael V. Hayden, the C.I.A. director — Mr. Musharraf rebuffed proposals to expand any American combat presence in Pakistan, either through unilateral covert C.I.A. missions or by joint operations with Pakistani security forces.

Instead, Pakistan and the United States are discussing a series of other joint efforts, including increasing the number and scope of missions by armed Predator surveillance aircraft over the tribal areas, and identifying ways that the United States can speed information about people suspected of being militants to Pakistani security forces, officials said.

American and Pakistani officials have questioned each other in recent months about the quality and time lines of information that the United States has given to Pakistan to use in focusing on those extremists. American officials have complained that the Pakistanis are not seriously pursuing Al Qaeda in the region.

The Jan. 9 meetings, the first visit with Mr. Musharraf by senior administration officials since the assassination of Benazir Bhutto, also included the new army chief, Gen. Ashfaq Parvez Kayani, and the director of Pakistan’s leading military intelligence agency, Lt. Gen. Nadeem Taj. American officials said the visit was prompted by an increasing sense of urgency at the highest levels of the United States government that Al Qaeda and the Taliban are intensifying efforts to destabilize the Pakistani government.

The C.I.A. has fired missiles from Predator aircraft in the tribal areas several times, with varying degrees of success. Intelligence officials said they believed that in January 2006 an airstrike narrowly missed killing Ayman al-Zawahri, the second-ranking Qaeda leader, who had attended a dinner in Damadola, a Pakistani village.

Pakistani authorities, in interviews, say they have more than 100,000 troops operating in the region, including a sizable force conducting what they said was a major offensive in South Waziristan. But in the White House, the Pentagon and the C.I.A., frustrations remain high, and there is concern that Mr. Musharraf’s political problems will distract him from what the administration regards as its last chance to take aggressive action.

Despite the insistence of administration officials that the United States and Pakistan have a common goal in fighting Al Qaeda, Mr. Musharraf has made clear in public proclamations that it is far from his first priority. At the Davos World Economic Forum in Switzerland last week, Mr. Musharraf said several times that the 100,000 Pakistani troops that he said were now along the border were hunting for Taliban extremists and “miscreants,” but he also said there was no particular effort being put into the search for Qaeda fighters.

In Washington, however, the Bush administration has said that fighting terrorists, chiefly Al Qaeda, is the primary purpose of the $10 billion in American aid that has been sent to Pakistan, mostly for reimbursements for the cost of patrolling the tribal areas. President Bush has often praised Mr. Musharraf for fighting terrorism, pointing out that Al Qaeda has tried to kill the Pakistani leader. But White House officials were silent when Mr. Musharraf said this week that his efforts were focused on the Taliban, and that the main problem the United States faced was in Afghanistan, not Pakistan.

Accounts of the discussions between Mr. Musharraf and the intelligence officials were provided by American and Pakistani officials over the past two weeks after The New York Times inquired about the secret trip. While officials confirmed some details of the discussion, much remains unknown about the continuing dialogue between Islamabad and Washington.

The trip by Mr. McConnell and General Hayden, a 14,000-mile over-and-back visit for one day of discussions, occurred just five days after senior administration officials debated new strategies for dealing with Pakistan. No decisions were made at that meeting of the National Security Council, which gathered all of Mr. Bush’s top national security officials but not the president.

In the ensuing three weeks, however, the debate appeared to be intensifying, as senior American officials said they believed that American forces — whether as combat troops or trainers — could enhance the efforts of Pakistan’s military in the mountainous and lawless Federally Administered Tribal Areas.

“The purpose of the mission,” a senior official said, “was to convince Musharraf that time is ticking away,” and that the increased attacks on Pakistan would ultimately undermine his effort to stay in office.

Other officials said that recent intelligence analysis indicated that Al Qaeda was now operating in the tribal areas with an impunity similar to the freedom that it had in Afghanistan before the attacks on Sept. 11, 2001.

The C.I.A. operatives in Afghanistan and the covert Special Operations forces there have made little secret of their desire to move into the tribal areas with or without Mr. Musharraf’s explicit approval. In the administration, there has been discussion of whether Mr. Bush should give orders to allow them more latitude. Mr. Musharraf has explicitly rejected that, and within days after Mr. McConnell and General Hayden’s departure, he told a Singapore newspaper that any unilateral action by the United States would be regarded as an invasion. In Davos, he dismissed the idea that Americans could be effective in the tribal areas.

On Thursday, Defense Secretary Robert M. Gates said the United States was willing to send combat troops to Pakistan to conduct joint operations against Al Qaeda and other militants if the Pakistani government asked for American help. Mr. Gates said that Pakistan had not requested American assistance, and that any American troops sent to Pakistan would likely be assigned solely to train Pakistani forces. The top American commander in the region, Adm. William J. Fallon, visited Pakistan last Tuesday to discuss counterterrorism issues with senior Pakistani officials, including General Kayani.

American and Pakistani spokesmen confirmed that the meetings between Mr. Musharraf and American intelligence officials took place, but they declined to offer any details. Pakistan’s ambassador to the United States, Mahmud Ali Durrani, said in an interview that the meetings were about “improving coordination, discussing the war on terror, and filling the gaps between intelligence and operations,” but he declined to provide details.

Last Tuesday, the State Department’s counterterrorism chief, Lt. Gen. Dell L. Dailey, echoed some of those concerns, telling reporters that there were gaps in what the United States knew about the threat in the tribal areas. “We don’t have enough information about what’s going on there,” said General Dailey, who retired from the Army with extensive experience in military Special Operations. “Not on Al Qaeda. Not on foreign fighters. Not on the Taliban.”

In dealing with the American requests, Mr. Musharraf is conducting a delicate balancing act. American officials contend that now, more than ever, he recognizes the need to step up the battle against extremists who are seeking to topple his government. But he also believes that if American forces are discovered operating in Pakistan, the backlash will be more than he can control, especially because the Taliban and Al Qaeda are trying to cast him as a pawn of Washington. One result appears to be a compromise: Mr. Musharraf is willing, they say, to accept training, equipment, and technical help, but has insisted that no Americans get involved in ground operations.

Pakistani officials insist they are taking the militant threat seriously and have completed major operations in the Swat Valley to drive out extremists. In the past few days, about 1,000 Pakistan Army troops and Frontier Corps paramilitary forces have also begun a three-pronged attack against the South Waziristan stronghold of Baitullah Mehsud, a militant leader with links to Al Qaeda who is the main suspect in the assassination of Ms. Bhutto.

Sudan’s ex-Guantanamo prisoners demand payout

KHARTOUM (Reuters) – A group of Sudanese released from the U.S. prison in Guantanamo Bay demanded cash payouts and an apology from the United States on Saturday, for mental and physical torture suffered during years spent in jail there.

“We have asked for compensation and an apology,” aid worker Adil Hassan Hamad told a conference in Khartoum, which was organized by Local Rights groups to demand the release of seven Sudanese still held at Guantanamo Bay.

Hamad, freed just over one month ago, wore orange overalls like those worn by detainees in the U.S. prison camp. He was working with refugees when arrested in Pakistan in 2002 and taken to Afghanistan and then the U.S. camp in Cuba.

He said his U.S. lawyer would seek compensation in the U.S. courts. One of Hamad’s daughters died during his detention because his wife could not afford medical treatment. Two other inmates were also seeking compensation, he said.

Washington has designated Guantanamo prisoners, who were mainly seized in Afghanistan after the 2001 U.S. invasion, as “enemy combatants” and denied them prisoner-of-war status that would guarantee them certain rights under international law.

Many attending the Khartoum conference broke down in tears when addressed by the wife of al Jazeera journalist Sami al-Hajj, the most high-profile of the around 300 detainees still in the prison on the Caribbean island.

He has been on hunger strike for 400 days but is force fed twice a day in a manner his lawyer told the conference was tantamount to torture.

His wife Aygol Ismailova, who is from Azerbaijan, wept as she told the gathering how Hajj has been urinating blood and was suffering from other health problems.

“His son Mohamed always asks me: ‘Where is my father, who took him? What is prison? What do they do there?’ And I don’t know how to answer him,” Ismailova told Reuters.

“Do people know that I have no way to contact my husband other than letters that reach him late and are censored? For more than six years I’ve not heard his voice, not seen him,” she said. “This is torture.”

All Guantanamo detainees deserved compensation and an apology, she said, adding that Sudanese government officials had told her they hoped Hajj would be released by the end of March.

Hamad and another former Guantanamo detainee set up mock prison cells to show those attending the conference the cramped conditions in which they were held.

“Often they’d leave prisoners tied up in very, very cold rooms and refuse to allow them to go to the bathroom so they’d wet themselves.”

“I was beaten, made to stand for long periods of time, deprived of sleep for three nights,” Hamad said of his treatment by the U.S. army in Afghanistan before he was moved to Cuba.

Immigration officials detaining, deporting American citizens

FLORENCE, Ariz. — Thomas Warziniack was born in Minnesota and grew up in Georgia, but immigration authorities pronounced him an illegal immigrant from Russia.

Immigration and Customs Enforcement has held Warziniack for weeks in an Arizona detention facility with the aim of deporting him to a country he’s never seen. His jailers shrugged off Warziniack’s claims that he was an American citizen, even though they could have retrieved his Minnesota birth certificate in minutes and even though a Colorado court had concluded that he was a U.S. citizen a year before it shipped him to Arizona.

On Thursday, Warziniack was told he would be released. Immigration authorities were finally able to verify his citizenship.

“The immigration agents told me they never make mistakes,” Warziniack said in a phone interview from jail. “All I know is that somebody dropped the ball.”

The story of how immigration officials decided that a small-town drifter with a Southern accent was an illegal Russian immigrant illustrates how the federal government mistakenly detains and sometimes deports American citizens.

U.S. citizens who are mistakenly jailed by immigration authorities can get caught up in a nightmarish bureaucratic tangle in which they’re simply not believed.

An unpublished study by the Vera Institute of Justice, a New York nonprofit organization, in 2006 identified 125 people in immigration detention centers across the nation who immigration lawyers believed had valid U.S. citizenship claims.

Vera initially focused on six facilities where most of the cases surfaced. The organization later broadened its analysis to 12 sites and plans to track the outcome of all cases involving citizens.

Nina Siulc, the lead researcher, said she thinks that many more American citizens probably are being erroneously detained or deported every year because her assessment looked at only a small number of those in custody. Each year, about 280,000 people are held on immigration violations at 15 federal detention centers and more than 400 state and local contract facilities nationwide.

Unlike suspects charged in criminal courts, detainees accused of immigration violations don’t have a right to an attorney, and three-quarters of them represent themselves. Less affluent or resourceful U.S. citizens who are detained must try to maneuver on their own through a complicated system.

“It becomes your word against the government’s, even when you know and insist that you’re a U.S. citizen,” Siulc said. “Your word doesn’t always count, and the government doesn’t always investigate fully.”

Officials with ICE, the federal agency that oversees deportations, maintain that such cases are isolated because agents are required to obtain sufficient evidence that someone is an illegal immigrant before making an arrest. However, they don’t track the number of U.S. citizens who are detained or deported.

“We don’t want to detain or deport U.S. citizens,” said Ernestine Fobbs, an ICE spokeswoman. “It’s just not something we do.”

While immigration advocates agree that the agents generally release detainees before deportation in clear-cut cases, they said that ICE sometimes ignores valid assertions of citizenship in the rush to ship out more illegal immigrants.

Proving citizenship is especially difficult for the poor, mentally ill, disabled or anyone who has trouble getting a copy of his or her birth certificate while behind bars.

Pedro Guzman, a mentally disabled U.S. citizen who was born in Los Angeles, was serving a 120-day sentence for trespassing last year when he was shipped off to Mexico. Guzman was found three months later trying to return home. Although federal government attorneys have acknowledged that Guzman was a citizen, ICE spokeswoman Virginia Kice said Thursday that her agency still questions the validity of his birth certificate.

Last March, ICE agents in San Francisco detained Kebin Reyes, a 6-year-old boy who was born in the U.S., for 10 hours after his father was picked up in a sweep. His father says he wasn’t permitted to call relatives who could care for his son, although ICE denies turning down the request.

The number of U.S. citizens who are swept up in the immigration system is a small fraction of the number of illegal immigrants who are deported, but in the last several years immigration lawyers report seeing more detainees who turn out to be U.S. citizens.

The attorneys said the chances of mistakes are growing as immigration agents step up sweeps in the country and state and local prisons with less experience in immigration matters screen more criminals on behalf of ICE.

ICE’s Fobbs said agents move as quickly as possible to check stories of people who claim they’re American citizens. But she said that many of the cases involve complex legal arguments, such as whether U.S. citizenship is derived from parents, which an immigration judge has to sort out.

“We have to be careful we don’t release the wrong person,” she said.

In Warziniack’s case, ICE officials appear to have been oblivious to signs that they’d made a serious mistake.

After he was arrested in Colorado on a minor drug charge, Warziniack told probation officials there wild stories about being shot seven times, stabbed twice and bombed four times as a Russian army colonel in Afghanistan, according to court records. He also insisted that he swam ashore to America from a Soviet submarine.

Court officials were skeptical. Not only did his story seem preposterous, but the longtime heroin addict also had a Southern accent and didn’t speak Russian.

Colorado court officials quickly determined his true identity in a national crime database: He was a Minnesota-born man who grew up in Georgia. Before Warziniack was sentenced to prison on the drug charge, his probation officer surmised in a report that he could be mentally ill.

Although it took only minutes for McClatchy to confirm with Minnesota officials that a birth certificate under Warziniack’s name and birth date was on file, Colorado prison officials notified federal authorities that Warziniack was a foreign-born prisoner.

McClatchy also was able to track down Warziniack’s three half-sisters. Even though they hadn’t seen him in almost 20 years, his sisters were willing to vouch for him.

One of them, Missy Dolle, called the detention center repeatedly, until officials there stopped returning her calls. Her brother’s attorney told her that a detainee in Warziniack’s situation often has to wait weeks for results, even if he or she gets a copy of a U.S. birth certificate.

Warziniack, meanwhile, waited impatiently for an opportunity to prove his case. After he contacted the Florence Immigrant and Refugee Rights Project, a group that provides legal advice to immigrants, a local attorney recently agreed to represent him for free.

Dolle and her husband, Keith, a retired sheriff’s deputy in Mecklenburg County, N.C., flew to Arizona from their Charlotte home to attend her brother’s hearing before an immigration judge.

Before she left, she e-mailed Sen. Richard Burr, R-N.C. After someone from his office contacted ICE, immigration officials promised to release Warziniack if they got a birth certificate.

After scrambling to get a power of attorney to obtain their brother’s birth certificate, the sisters succeeded in getting a copy the day before the hearing.

On Thursday, however, government lawyers told an immigration judge during a deportation hearing that they needed a week to verify the authenticity of Warziniack’s birth record. The judge delayed his ruling.

“I still can’t believe this is happening in America,” Dolle said.

Warziniack began to weep when he saw his sister. “They still don’t believe me,” he said.

Later that day, however, ICE officials changed their minds and said that he could be released this week. They said they were able to confirm his birth certificate, but they didn’t acknowledge any problem with the handling of the case.

The officials blamed conflicting information for the mix-up.

“The burden of proof is on the individual to show they’re legally entitled to be in the United States,” said ICE spokeswoman Kice.

Warziniack, 40, told McClatchy that he has no memory of telling anyone he was Russian. Instead, he recalled the shock of withdrawing from his heroin addiction after 18 years of drug abuse.

Katherine Sanguinetti, a spokeswoman for the Colorado Department of Corrections, suspects that prison officials were relying on information that Warziniack gave when he was first taken into custody because they never received the Colorado court documents concluding that he was a U.S. citizen.

Even now, the prison records inaccurately show his current location as “the Soviet Union.”

In the end, Sanguinetti said, ICE is responsible for making sure that it detains and deports the correct person. Her prisons flag hundreds of prisoners a month as foreign-born, but can’t possibly verify the information, she said.

“Could it happen again? Sure,” Sanguinetti said. “But we would hope that ICE during their investigative process would discover the truth.”

Rachel Rosenbloom, an attorney at the Center for Human Rights and International Justice at Boston College who’s identified at least seven U.S. citizens whom ICE has mistakenly deported since 2000, believes that the agency should set up a more formal way of handling detainees when they appear to have valid claims of U.S. citizenship. At the very least, she said, ICE could release people such as Warziniack on bond while waiting for immigration judges to hear the cases.

“It’s like finding innocent people on death row,” Rosenbloom said. “There may be only a small number of cases, but when you find them you want to do everything in your power to make sure they get out.”

Government can’t be trusted on Afghanistan

OTTAWA — Human-rights lawyers pushing for a stop to prisoner transfers argued in court Thursday that Canada’s government cannot be trusted to tell the truth about what goes on in Afghanistan.

Lawyer Paul Champ told a Federal Court hearing that the government would clearly have covered up prisoner abuses by Afghan authorities had it not been for the ongoing legal battle.

In a secret policy shift almost three months ago, Canadian soldiers stopped transferring detainees to Afghan authorities after they were convinced some had been beaten in violation of the Geneva conventions.

“The government shouldn’t be making those decisions,” Mr. Champ said during a break in proceedings.

“It should be the court because (the government has) shown in the past they’re wrong and the consequence of their errors has been that torture had been committed.”

The move came after the government spent nearly a year dismissing abuse allegations and ridiculing opponents who raised them.

The policy shift only came to light after Mr. Champ fought in court for access to government documents, which he finally received along with a letter from a federal lawyer announcing the change.

Mr. Champ fears that many of the captives taken by Canadian troops are not even Taliban combatants but civilians sympathetic to the insurgency. Previously secret documents suggest some have disappeared in custody and he fears they could have been killed.

He wants transfers suspended indefinitely and is seeking a Federal Court injunction to that effect.

“Transfers could resume next week — or tomorrow — and no one would know,” said Mr. Champ, a lawyer for Amnesty International and the B.C. Civil Liberties Association.

“This is not a moot issue.”

He is pushing to have the Canadian Charter of Rights and Freedoms apply to interactions between Canadian soldiers and their prisoners — even in foreign countries.

Mr. Champ said other countries have adopted similar models and that Canada should follow suit.

A federal lawyer argued that Mr. Champ’s quest for an injunction is now moot because the transfers have stopped. But he was cut off by the judge when he suggested the controversy was over.

“Up until noon on Tuesday we thought there was a live controversy,” said Federal Court Justice Anne Mactavish.

She added that the prisoner policy could change at a moment’s notice and nobody would ever know.

But the federal lawyer said Afghan detainees are and will remain safe from torture.

“The facts that are before this court offer no indication that anyone’s rights are being threatened,” said federal attorney J. Sanderson Graham.

“What will happen in two weeks, or two months, is mere speculation.”

An army general told the court that Canadian troops stopped transferring enemy prisoners to Afghan authorities the day after a Nov. 5 prison visit found evidence of torture.

Brigadier-General André Deschamps, chief of staff to Canada’s Expeditionary Forces Command and the first witness to testify at the injunction hearing, said the decision was made by Col. Christian Juneau.

Col. Juneau was acting commander of Canada’s military effort in Afghanistan when Canadian officials heard stories of abuse from prisoners at a Kandahar prison.

The decision came after the Conservative government ridiculed its opponents for raising torture allegations and Prime Minister Stephen Harper accused them of being pro-Taliban.

Brig.-Gen. Deschamps said no prisoners have been transferred since that prison visit.

But human-rights lawyers were continually thwarted in their efforts to learn more as the defence sprang up and claimed National Defence Act protections following a number of Champ’s questions.

Mr. Graham rose and repeated, “I object,” when Mr. Champ asked why the government never told Canadians about the policy change, where the detainees are now, and how many there are.

Brig.-Gen. Deschamps did say the prisoner facility at Kandahar airfield has not been expanded since the decision.

During their Nov. 5 visit, Canadian officials saw what they described as credible evidence of torture.

They had documented a number of other allegations — at one point seeing scars on a man who said he received electric shocks — but they only shifted their policy after that visit.

On that day, a prisoner told the Canadians he’d been beaten unconscious, whipped with electrical cables, and belted with a rubber hose. He showed them his bruises and told them exactly where they could find the torture instruments.

He then led them to his prison cell, where they found the hose and cables under a chair.

The human-rights lawyers expressed doubt that the decision to halt transfers was made by a colonel in Kandahar.

They said it must have been made in Ottawa, and that the Prime Minister’s Office would likely have been aware of such a major policy shift.

The government kept its decision under wraps, even as it prepared to fight rights groups seeking a halt to transfers in court Thursday.

“Canadian authorities were informed on November 5, 2007, by Canada’s monitoring team, of a credible allegation of mistreatment pertaining to one Canadian-transferred detainee held in an Afghan detention facility,” the lawyers said in a letter to Amnesty International Canada and the British Columbia Civil Liberties Association.

“As a consequence there have been no transfers of detainees to Afghan authorities since that date,” the letter confirmed.

“It’s staggering,” Jason Gratl, president of the BCCLA said of the government’s belated admission. “In matters as important as complicity in torture and its conduct of war, the government owes Canadians some explanations in an open and frank manner.”

The government, which is trying to drum up support for extending the Afghan mission, only revealed it had ceased transfers as it tried to make a deal with Amnesty and the BCCLA to drop their application for an injunction.

But Ottawa refused a counteroffer in which it would have agreed to give seven days notice before resuming transfers.

It’s not clear whether troops are still taking prisoners only to release them, holding them in temporary cells run by Canadian Military Police on Kandahar Air Base or once again turning prisoners over to U.S. forces, which operate a prison at Bagram in Afghanistan.

“Concerning the matter of detainees, the number of detainees, if they are being transferred or not, these are all operational matters and are the responsibility of the Canadian Forces. The Government will not provide any comment on operational matters,” said Sandra Buckler, spokeswoman for Mr. Harper.

The letter to Amnesty and the BCCLA continued: “Canada will resume transferring detainees when it believes it can do so in accordance with its international legal obligations.”

Among those obligations is a Geneva Conventions prohibition against handing prisoners over to those who would abuse or torture them.

Given the widely documented and widespread abuse and ill-treatment that is rife in Afghan prisons, Mr. Gratl said he “could not foresee detainee transfers resuming in the foreseeable future.

“The government’s decision amounts to a concession that the May, 2007, monitoring agreement has failed to prevent torture by Afghan authorities,” he said.

That agreement, which allows for follow-up inspections, was negotiated only after former defence minister Gordon O’Connor’s assurances that the International Committee of the Red Cross would report abuse of transferred prisoners back to the Harper government were shown to be wrong.

More than a month after it stopped handing prisoners over to Afghanistan’s National Directorate of Security, the Harper government sent a senior general to give a sworn affidavit in the case brought by Amnesty and BCCLA.

The rights groups wanted transfers banned, claiming the government is bound by both international law and the Canadian Constitution from delivering detainees to those likely to torture or abuse them.

Building a NATO detention facility, perhaps on the Kandahar base, which currently houses more than 10,000 troops, has been repeatedly suggested by international human-rights groups. Canada and most NATO nations are opposed.

Detainee timeline

2001

Dec. 19: Then-defence-minister Art Eggleton reveals that Canadian forces, specifically commandos from Joint Task Force 2, have joined the war, sparking concerns about whether troops would turn captured Afghans over to U.S. authorities.

2002

Jan. 21: Canadian commandos turn three captured al-Qaeda fighters over to the U.S. military.

Jan. 28: Then-prime-minister Jean Chrétien says the government is reviewing its policy on prisoners and that opposition concerns are “hypothetical” because none have been taken.

Jan. 29: Mr. Eggleton admits he learned eight days earlier that Canadian commandos had turned over prisoners without any assurances about whether they would be treated as prisoners of war.

Feb. 6: U.S. President George W. Bush says that Taliban prisoners would be considered POWs under the Geneva Conventions, but al-Qaeda prisoners would not.

Feb. 7: Both Mr. Chrétien and Mr. Eggleton say they are satisfied with this guarantee.

2005

Dec. 18: General Rick Hillier, Chief of the Defence Staff, signs an agreement with Afghanistan’s Defence Minister stipulating that detainees handed from Canadian to Afghan custody will be treated in accordance with the third Geneva convention, which forbids torture and other inhumane treatment.

2006

May 31: Defence Minister Dennis O’Connor says the International Committee of the Red Cross is monitoring detainees, and will report prisoner abuse to Canada.

2007

February: Investigations are launched into the treatment of Afghan detainees after The Globe and Mail publishes allegations of abuse.

Feb. 21: Amnesty International and the British Columbia Civil Liberties Association file an application in Federal Court seeking a judicial review of the military’s detainee-handover policy, questioning whether Canadian soldiers abroad are legally bound by the Geneva Conventions.

March 21: Mr. O’Connor apologizes for providing inaccurate information. “I would like to be clear: The International Committee of the Red Cross is under no obligation to share information with Canada on the treatment of detainees transferred by Canada to Afghan authorities,” he tells the House of Commons. “The International Committee of the Red Cross provides this information to the country that has the detainees in its custody, in this case, Afghanistan.”

April 23: During 30 face-to-face interviews with The Globe and Mail, Afghans detained by Canadian soldiers and sent to Kandahar’s notorious jails say they were beaten, whipped, starved, frozen, choked and subjected to electric shocks during interrogation.

April 24: Stephen Harper brushes off calls for his Defence Minister’s head and dismisses the furor over the torture of Afghans captured by Canadian soldiers as “allegations of the Taliban. … We do not have evidence that [the torture] is true.”

April 26: The Harper government buckles and announces a new deal providing Canadian officials with full access to Afghan jails.

July 9: It is learned that Gen. Hillier’s office has halted the release of documents relating to detainees captured in Afghanistan under the federal Access to Information Act, claiming that disclosure of any such information could endanger Canadian troops.

Sept. 22: Canada is unable to account for at least 50 prisoners it captured and turned over to Afghan authorities, frustrating efforts to put to rest concerns the detainees were subject to torture. Canadian sources blame the Afghans’ shoddy record-keeping and suggest the detainees have likely returned safely to their homes. But officials familiar with Kandahar’s justice system say the possibility of foul play cannot be dismissed.

Nov. 13: Turning Afghan detainees over to known torturers breaks international law, and Canada, along with other NATO countries should impose an immediate halt to transfers, Amnesty International says.

Nov. 15: Canadian officials confirm they have evidence a Taliban detainee showed signs of physical abuse, the seventh such allegation made by detainees since Canada began systematically visiting Afghan prisoners in May.

2008

Jan. 22: Compelling evidence that Canadian-transferred detainees are still being tortured in Afghan prisons emerges from the government’s own follow-up inspection reports.

Mukasey Still Can’t Say If Waterboarding Is Torture, Thanks Dems!

Throughout his October confirmation hearings, Attorney General Mike Mukasey denounced the use of torture, stating that it is “antithetical to what this country stands for.”But when it came to declaring the practice of waterboarding torture, Mukasey hedged. “I don’t know what’s involved in waterboarding,” he told Sen. Lindsey Graham (R-SC), arguing he first needed to be “read into” the administration’s program. Mukasey pledged to study the matter and said he would order a “review” after being confirmed:

If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the president and will rescind or correct any legal opinion of the Department of Justice that supports the use of the technique.

After the confirmation, Senators continued to press Mukasey on the issue, but he refused to be rushed into deciding whether he considers waterboarding torture without a full “review.” Today, in an interview with the Wall Street Journal, Mukasey said he has “been read into the program” but suggested that he still hasn’t come to a firm conclusion:

Yes, I’ve been read into the program, but that’s part of a process. I said I would look at the program. Look at the letters. And give my answers. I haven’t yet figured out precisely when and precisely how. I understand that the time is coming.

Today, Sen. Dick Durbin (D-IL) and nine other Senate Judiciary Commitee members urged Mukasey to decide his position. “It has been over two months since then, ample time for you to study this issue and reach a conclusion,” they wrote. The committee members noted that on November 27, “State Department Legal Advisor John Bellinger said you were giving ‘high priority’ to reviewing interrogation techniques.”

With only 12 months left in office, Mukasey is creating the perception that he’s trying to run out the clock to avoid taking a stand on torture.