McCain And Graham Plan To Introduce Legislation Undermining Supreme Court Decision On Guantanamo

 

Last week, the Supreme Court ruled that Guantanamo Bay detainees have the right to challenge their detention in civilian courts. Sens. John McCain (R-AZ) and Lindsey Graham (R-SC) wasted no time in publicly blasting the decision, saying they were “disappointed” in “one of the worst decisions in the history of this country.”

This ruling will inevitably lead to a “flood of new litigation” challenging the Bush administration’s right to hold these detainees, only one of whom has received a verdict. Detainees will then finally get a decision as to their status.

Today on Fox News Sunday, Weekly Standard editor Bill Kristol revealed that “very soon” — likely as early as next week — McCain and Graham will be introducing legislation to undermine the Supreme Court decision by setting up a “national security court”:

And I think you will see Senator Graham, accompanied by Senator McCain, come to the floor of the Senate very soon, like next week, and say, We cannot let chaos obtain here. We can’t let 200 different federal district judges on their own whim call this CIA agent here, say, ‘I don’t believe this soldier here who said this guy was doing this,’ you have to release someone,’ or, ‘Let’s build up — let’s compromise sources and methods with a bunch of trials. I mean, it’s ridiculous.

 

A national security court would envision a scenario “in which sitting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained.” But as Michael Hoffman and Ken Gude note in a paper for the Center for American Progress, this scenario is problematic and underestimates the U.S. criminal justice system:

Adopting a national security court system would send the United States down another unproven path prone to repeat the same mistakes. It would not further justice or American legitimacy. Rather, it would risk creating American courts that more resemble the tribunals of dictators than those of democracies. And that would be a strategic victory for Al Qaeda, not for Americans. […]

The criminal justice system, coupled with standard military trials when necessary, has and can further law enforcement, intelligence, and prevention efforts without undermining our fundamental liberties or our long-term efforts to combat terrorism. It is time to let it fully do that crucial work.

As ThinkProgress reported on Friday, at one time, McCain and Graham advocated a solution similar to the Supreme Court ruling. In 2003, they called on then-Defense Secretary Rumsfeld to “formally treat and process the detainees as war criminals or to return them to their countries for appropriate judicial action.” Clearly, things change when you’re running for a third Bush term.

Gitmo captive: I was threatened with rape

WASHINGTON — In a fresh document from the Guantánamo war court files, Canadian captive Omar Khadr alleges that he was repeatedly threatened with rape as an interrogation technique in Afghanistan and at U.S. Navy base in Cuba.

The partially censored nine-page affidavit, signed by Khadr on Feb. 22, covers old ground already investigated, including allegations of abuse at Guantánamo that emerged in 2005, prompting a Navy criminal investigation.

But the document includes never-before revealed allegations, such as the rape threats and a partially censored description of regaining consciousness after his capture to discover he was being interrogated in an American field hospital in Afghanistan. He was 15.

Once released from medical care to the Bagram detention center, he said, “I was interrogated many, many times. For about the first two weeks to a month that I was there I would be brought into the interrogation room on a stretcher.”

A Pentagon spokesman, Cmdr. Jeffrey Gordon, repeated the Pentagon’s long-held conviction that Guantánamo captives are treated humanely and that any credible allegations of mistreatment are investigated and dealt with in keeping with military standards.

“In this case, we have no evidence to substantiate these claims,” he wrote in an e-mail. He also noted that all approved interrogation techniques are published in the Army Field Manual on Interrogations and that an al Qaeda training manual “teaches its operatives to make false claims of abuse.”

The details are emerging in the military trial case of Khadr, now 21, accused of the grenade killing of a U.S. Army commando in a July 2002 firefight. The document was admitted to court last week as part of the pretrial arguments over access to potential witnesses for Khadr’s upcoming summertime trial before U.S. military officers, called a military commission.

Meantime, the Canadian’s Pentagon lawyers have been searching for interrogators and other witnesses to his capture, in which he was shot twice in the back in a U.S. raid on a suspected al Qaeda compound. They also want witnesses to the interrogations in Afghanistan and later in Guantánamo.

The lawyers are seeking to punch holes in the prosecution case alleging that Khadr, as an al Qaeda conspirator since age 10, was the only enemy combatant who could have thrown the grenade that fatally wounded Sgt. 1st Class Christopher Speer, 28, of Albuquerque, N.M., in a firefight near Khost, Afghanistan.

Speer died of his wounds days later at a U.S. military hospital in Germany. Last week, the defense revealed at a pretrial hearing that the brigade commander at the firefight wrote two accounts, with the same date.

In the first account, a brigade commander identified to the public as ”Lt. Col. W” wrote that the grenade thrower was killed on the spot. In the second, according to Navy Cmdr. William Kuebler, written two months later, Lt. Col. W said only that the enemy was ”engaged,” leaving open the possibility that he had survived.

Khadr was the only survivor.

The documents are under seal at the Office of Military Commission along with the other defense motions from last week’s case.

Now, the affidavit, a 63-item statement by the Canadian who grew up between Toronto, South Asia and U.S. detention, offers Khadr’s most comprehensive account of his alleged treatment — an English document crafted with his lawyers, which does not name his guards and interrogators, at least in the portion not blacked out by military censors.

For example, after his capture and regaining consciousness, he said, he was guarded by “a young blond soldier who was about 25 and a Mexican or Puerto Rican soldier.”

The document is riddled with threats of rape wielded by the United States and its allies.

”On several occasions at Bagram, interrogators threatened to have me raped or sent to other countries like Egypt, Syria, Jordan or Israel to be raped,” he alleges in Item 23. By Item 55, he has been transferred to Guantánamo, and he is taken to interrogation with an Afghan man, who ”told me that I would be sent to Afghanistan and raped.” In Item 56, he says, an interrogator pulled his hair, spit in his face and threatened to bring in an Egyptian “to rape me.”

The document also revisits old allegations — such as his description on arriving in Guantánamo, at age 16, and hearing someone in the military say, “Welcome to Israel.”

Or his claim, investigated by the military, that in March 2003 guards splashed his prison camp uniform with Pine Sol and dragged him around an interrogation booth, like a human mop, because he had urinated on himself during a bout of shackled isolation.

Pentagon and Guantánamo spokesmen did not reply Tuesday to queries on what that investigation found or whether anyone was disciplined.

The current prison camps spokesman, Navy Cmdr. Rick Haupt, in February declined to address allegations emerging at the military commissions, saying, “It is likely best for all of us to hear what the attorneys have to say during the hearings.”

Combatants may get phone link to home

IN THE PRISON CAMPS

 

GUANTANAMO BAY NAVY BASE, Cuba — ET, the extra terrestrial, tried to do it. Now the Pentagon has decided to let ECs, or enemy combatants, do it too — phone home.

Army Lt. Col. Edward M. Bush said Tuesday that the Department of Defense has approved a policy to let at least some of the 275 or so war-on-terror detainees here speak by telephone with family.

How? They’re working on it.

”I have no projected timeline for implementation but it is currently being developed,” said Bush, a detention center spokesman.

Approval of the idea comes two months after the International Committee of the Red Cross launched a pilot program in Kabul, Afghanistan, that lets Afghan families to speak by a teleconference video with select U.S.-held captives in the Bagram Air Base, a U.S.-run lockup.

No such single site could be set up to speak with detainees held as ”enemy combatants” here. Their families are spread across far-flung nations from Canada and China to Sudan and Yemen.

On paper, the policy would permit at least certain detainees twice-a-year phone calls.

”Obviously, anything that mitigates the crushing isolation these men have experienced for more than six years is welcome news,” said Illinois law school professor Marc Falkoff, who has for years handled unlawful detention suits on behalf of about a dozen Yemeni detainees.

But he was skeptical about the initial announcement. He suggested it might be a publicity stunt ahead of a coming U.S. Supreme Court decision on detainee rights meant to portray the prison camps in a better light.

”One phone call twice a year hardly makes Gitmo the model of a humane prison,” Falkoff said. “One of my clients has a 6-year-old daughter who he’s never seen or spoken to. She was born while he was in Guantánamo. To be honest, I don’t know whether speaking with her will lift him from his depression or simply shatter him.”

Red Cross delegates have for years had access to detainees at this remote U.S. Navy base in southeast Cuba and acted as couriers for letters between the captives and their families. First, detainees must submit their letters to U.S. military censors, who have blackened out such details as allegations of their treatment and descriptions of the sprawling prison camp complex on the Caribbean.

Past prison camps commanders have said that both logistics and security concerns would complicate telephone calls; they would require foreign language interpreters listening in to make sure detainees don’t divulge sensitive information.

U.S. commanders here have already permitted a limited number of so-called “humanitarian phone calls.”

In one case, the U.S. military approved a Guantánamo-Algeria call for a detainee to speak with his mother after learning that his father, an Algiers attorney, had suddenly died of a heart attack.

Under that scheme, the mother was asked to go to the U.S. Embassy in Algiers for the call.

There was no immediate word on whether alleged 9/11 architect Khalid Sheik Mohammed — on the short list for a death penalty prosecution — would qualify for a phone call.

He has yet to see a lawyer and is held among 15 so-called high-value detainees in segregation at a site called Camp 7, run by a special unit called Task Force Platinum

Cheney may have leaked secret video in Gitmo case

Lawyers for Guantanamo Bay detainee Omar Khadr have alleged that Vice President Dick Cheney’s office leaked a secret video of Khadr in Afghanistan to CBS’ 60 Minutes after a judge denied a prosecution request to play the video in court. Former Gitmo chief prosecutor Col. Morris Davis told Lt. Cmdr. William Kuebler — Khadr’s lawyer — that Cheney’s office may have been involved. Kuebler said that if proven, the leak is a “clear violation of the protective orders that are in place” in the case.

Former chief prosecutor at Guantánamo Bay becomes a chief critic

Until four months ago, Colonel Morris Davis was the chief prosecutor at Guantánamo Bay and the most colorful champion of the Bush administration’s military commission system. He once said sympathy for detainees was nauseating and compared putting them on trial to dragging “Dracula out into the sunlight.”

Then in October he had a dispute with his boss, a general. Ever since, he has been one of those critics who will not go away: a former top insider, with broad shoulders and a well-pressed uniform, willing to turn on the system he helped run.

Still in the military, he has irritated the administration, asserting in articles and interviews that Pentagon officials interfered with prosecutors, exerted political pressure and approved the use of evidence obtained by torture.

Now, Davis has taken his most provocative step, completing his transformation from Guantánamo’s chief prosecutor to its new chief critic. He has agreed to testify at Guantánamo on behalf of one of the detainees, Salim Ahmed Hamdan, a driver for Osama bin Laden.

Davis, a career military lawyer nearing retirement at 49, said that he would never argue that Hamdan was innocent but that he was ready to try to put the commission system itself on trial by questioning its fairness.

 He said that there was “a potential for rigged outcomes” and that he had “significant doubts about whether it will deliver full, fair and open hearings.”

“I’m in a unique position where I can raise the flag and aggravate the Pentagon and try to get this fixed,” he said, acknowledging that he was enjoying some aspects of his new role.

He was replaced as chief Guantánamo prosecutor after he stepped down but is still a senior legal official for the air force.

Among detainees’ advocates, there has been something of a gasp since it was announced last week that Davis would be taking the witness stand in April.

Hamdan’s chief military lawyer, Lieutenant Commander Brian Mizer, said he would offer Davis to argue that charges against Hamdan should be dismissed because of improper influence by Pentagon officials over the commission process. Prosecutors may object, and it is unclear how military judges may rule.

But whatever happens, some detainee advocates say, officials are likely to have difficulty erasing the image of a uniformed former Guantánamo champion challenging them so directly – particularly, some of them said, one who was known for scorched-earth attacks on adversaries, be they terror suspects or lawyers.

“He was the attack dog for the military commission system,” said Zachary Katznelson, a lawyer for Guantánamo detainees.

Last year as chief prosecutor, Davis publicly suggested that a Marine defense lawyer for a detainee might be guilty of a crime for using “contemptuous words” about the president when the marine questioned the fairness of the Guantánamo system.

At the time, critics ridiculed “Moe” as an administration apologist. But in recent weeks, some of them have described him in nearly heroic terms.

Jennifer Daskal of Human Rights Watch called him the most significant insider to tell what he knows about Guantánamo.

“He has put his career on the line,” she said.

Pentagon officials have steamed about the extraordinary role Davis has staked out. Some people with Pentagon ties say the unusual story started as a power struggle between Davis and a Pentagon official who has broad powers over the Guantánamo legal system, Brigadier General Thomas Hartmann, who has declined to comment.

Brigadier General Thomas Hemingway, a retired military official who once supervised Davis at the Office of Military Commissions, said this week that he was surprised Davis was attacking the system he once championed.

“That’s not whistle-blowing you hear,” Hemingway said. “It’s a whine.”

In his contentious days at Guantánamo, lawyers who battled him said, Davis was known for a you’re-with-us-or-you’re-against-us style of news-conference warfare, delivered in an amiable North Carolina twang.

He is an experienced military lawyer, with years of work both in the prosecution and the defense. He is the son of a disabled veteran of World War II, and he is married with one daughter.

In interviews this week he was in his combative mode, challenging Pentagon officials to take lie-detector tests and asserting that commanders had praised him in the past.

He portrayed himself as battling political appointees. But he said he still believed that a military commission system could work.

“It’s gotten so tarnished that if we’re going to convince the world that this isn’t some rigged process we have to bend over backward,” he said.

He said the solutions were simple – giving control to military officials. But he suggested darkly that there were “people at key points in the process, that I just don’t know what their allegiance is.”

Tape Inquiry: Ex-Spymaster in the Middle

WASHINGTON — It would become known inside the Central Intelligence Agency as “the Italian job,” a snide movie reference to the bungling performance of an agency team that snatched a radical Muslim cleric from the streets of Milan in 2003 and flew him to Egypt — a case that led to criminal charges in Italy against 26 Americans.

Porter J. Goss, the C.I.A. director in 2005 when embarrassing news reports about the operation broke, asked the agency’s independent inspector general to start a review of amateurish tradecraft in the case, like operatives staying in five-star hotels and using traceable credit cards and cellphones.

But Jose A. Rodriguez Jr., now the central figure in a controversy over destroyed C.I.A. interrogation tapes, fought back. A blunt-spoken Puerto Rico native and former head of the agency’s Latin America division, he had been selected by Mr. Goss months earlier to head the agency’s troubled clandestine branch. Mr. Rodriguez told his boss that no inspector general review would be necessary — his service would investigate itself.

It was a protective instinct that ran deep inside the C.I.A.’s fabled Directorate of Operations, the agency’s most powerful branch. The same instinct would resurface months later, when Mr. Rodriguez dispatched a cable to the agency’s Bangkok station ordering the destruction of videotapes that showed C.I.A. officers carrying out harsh interrogations of operatives of Al Qaeda.

“He would always say, ‘I’m not going to let my people get nailed for something they were ordered to do,’ ” said Robert Richer, Mr. Rodriguez’s deputy in the clandestine branch until late 2005, who recalls many conversations with his boss about the tapes.
No Record of Punishment

With the tapes’ destruction now the subject of overlapping Congressional and criminal inquiries, investigators are trying to determine whether Mr. Rodriguez, 59, acted on his own or with at least tacit approval from superiors at the C.I.A. or the White House. Officials now say a recent review by the C.I.A. of Mr. Rodriguez’s personnel file found no record of any reprimand or punishment for his action.

The destruction of the tapes is hardly the first time that the C.I.A.’s mission to take risks and to counter threats abroad has come into conflict with American notions of justice, legality and human rights. From assassination plots in the 1960s to the Iran-contra scandal of the 1980s, American spymasters have found themselves in legal jeopardy for acts they said were lawful and necessary.

The tapes episode and Mr. Rodriguez’s role reflect the intensity of the particular tensions that have played out since the Sept. 11 attacks, a period in which the C.I.A. has been asked to play a new role in capturing, questioning and imprisoning terror suspects, and is now facing questions about whether its conduct crossed the line into illegality.

The events surrounding the tapes unfolded during one of the most tumultuous periods in the C.I.A.’s 60-year history, when the insular and proud clandestine service clashed with the strong-willed team that Mr. Goss, a former Florida congressman, brought with him to the agency. Mr. Rodriguez was “the man in the middle,” Mr. Richer said.

Mr. Rodriguez and Mr. Goss declined to be interviewed for this article.
Mr. Goss was not the first C.I.A. director to discover that operatives who were trained to destabilize foreign governments could sometimes put those same skills to work inside the agency.

In a striking metaphor for Mr. Goss’s powerlessness, as officers of the Directorate of Operations, or D.O., ignored his instructions and shunned his staff, he later told a colleague that “when he pulled a lever to make something happen in the D.O., it wasn’t just that nothing happened,” the colleague recalled. “It was that the lever came off in his hands.”

Mr. Rodriguez joined the C.I.A. in 1976, at a time when the agency was still reeling from Congressional investigations into assassination plots, coup attempts and domestic wiretapping.
With his thick accent and undergraduate and law degrees from the University of Florida, he stood out in the clandestine service, which even in the 1970s was a preserve of the Anglo-Saxon, Ivy League establishment.

But over the next two decades in a series of overseas postings, Mr. Rodriguez ascended the ranks of the directorate’s Latin America division, serving from Peru to Belize and heading the C.I.A. stations in Panama, the Dominican Republic and Mexico.

He ran the kind of espionage missions and covert operations that defined the agency, overshadowing its other task of analyzing intelligence from all sources. Clandestine officers fashioned themselves as the “fighter jocks” of the C.I.A., the swashbuckling spies who risked their lives for their country.

Dominating the Culture

The Directorate of Operations “is a really small part of C.I.A., in terms of budget and people,” said Mark M. Lowenthal, a former assistant agency director. “But in terms of culture, the D.O. dominates the place.” In mid-2005, the directorate was renamed the National Clandestine Service.

A popular boss, Mr. Rodriguez occasionally flashed the maverick spirit prized by clandestine officers. One former colleague recalls that while in Mexico he named his horse Business, instructing subordinates to tell the ambassador or the C.I.A. brass that he was “out on Business.”

By the mid-1990s, Mr. Rodriguez was head of the Latin America division. But his career was nearly cut short when the C.I.A. inspector general reprimanded him in 1997 for a “remarkable lack of judgment” after he intervened to stop jailhouse beatings by guards of a childhood friend arrested on drug charges in the Dominican Republic.

A C.I.A. officer stationed in the Dominican Republic complained to the inspector general that the intervention was improper, according to a former agency official. Mr. Rodriguez was removed as chief of the Latin America division, and later returned to run the station in Mexico.

Shortly after the Sept. 11 attacks, he was tapped to become chief operating officer of the agency’s Counterterrorism Center, based at the C.I.A. headquarters, which was ballooning to nearly 1,500 officers from 300. There was grumbling that Mr. Rodriguez, with no experience in the Muslim world, was given the job. But seven months later, he was promoted to head the center, placing him in charge of the hunt for Qaeda operatives and the interrogation of terrorist suspects in a chain of secret C.I.A. prisons.

By the time Mr. Goss was sworn in as director of central intelligence in late September 2004, the agency’s clandestine service was already embittered by finger-pointing over the Iraq war.
The arrival of the new leader and his outspoken aides, dubbed the “Gosslings” by some within the agency, made matters worse.

Many agency veterans suspected that Mr. Goss and his team were on a White House mission to clean house at the C.I.A. The two top officers of the clandestine service, Stephen R. Kappes and Michael J. Sulick, soon quit.

When Mr. Goss looked for replacements, two agency officers turned him down, fearing that accepting the job would be seen as a betrayal of the clandestine branch. In the end, Mr. Goss offered the job to Mr. Rodriguez.

According to Mary Margaret Graham, a career clandestine officer who recently retired as head of intelligence collection for the director of national intelligence, Mr. Rodriguez had similar concerns about “betraying” fellow undercover officers. He assured her that he had accepted the position “on his terms.”

“I think in hindsight they expected a much more pliable person than they got,” she said.
Mr. Rodriguez traveled to overseas stations more than many predecessors, to build morale and get a firsthand account of operations. One result was that the clandestine branch’s daily operations were often left to his chief of staff, who had worked with Mr. Rodriguez in the Counterterrorism Center. Because she is still under cover, The New York Times is not publishing her name.

Several former C.I.A. officials recall repeated clashes between Mr. Rodriguez’s chief of staff and aides to Mr. Goss on matters from the trivial to the serious.

One serious concern, in the view of Mr. Goss’s staff, was the resistance of Mr. Rodriguez and his chief of staff to outside reviews of such missteps by the clandestine service as the Italian operation. In the matter of the tapes, there was also concern that Mr. Rodriguez and others who were involved in creating them were now pushing to destroy them. “It was just that they weren’t very impartial judges,” said a former C.I.A. official.

Mr. Rodriguez, who was nearing retirement, saw the tapes as a sort of time bomb that, if leaked, threatened irreparable damage to the United States’ image in the Muslim world, his friends say, and posed physical and legal risks to C.I.A. officers on them.

People close to Mr. Goss, who knew from his Congressional years how explosive accusations of cover-up could be, insist he told Mr. Rodriguez the tapes should be preserved.

But if Mr. Goss believed Mr. Rodriguez had disobeyed him, why did he not punish the clandestine service chief? One former C.I.A. official said White House officials had complained about the news media firestorm that accompanied the departure of Mr. Kappes and Mr. Sulick a year earlier, and Mr. Goss felt he could not risk another blowup.

‘Loyal and Dedicated’

Robert S. Bennett, Mr. Rodriguez’s lawyer, said his client was never instructed to preserve the tapes and recalls no discussion of conflict of interest on his part.
“Guys like Jose are loyal and dedicated and take risks to keep the country safe from terrorism,” Mr. Bennett said. “Now, his own government is investigating him, and I think it’s shameful.”

Not long after the tapes were destroyed, Mr. Goss held a management retreat for top agency officials meant in part to soothe tensions among the agency’s dueling branches. There the deputy director for intelligence — the head of analysis — complained openly about the arrogance of the clandestine branch and said undercover officers thought they could get away with anything.

That was too much for Mr. Rodriguez. He stood up in the room, according to one participant in the meeting, and shouted in coarse language that the analysis chief should “wake up and smell the coffee,” because undercover officers were at the “pointy end of the spear.”
The clandestine branch, Mr. Rodriguez was making it clear, would do what it wanted.

Secret draft of Iraq war dossier to be revealed

The secret first draft of the notorious Iraq dossier that helped to take Britain to war is expected to be released tomorrow, in a victory for freedom of information campaigners.

The early version written by John Williams, then director of communications at the Foreign Office, has been the subject of a three-year legal wrangle amid hopes that it could reveal whether the supposedly intelligence-led dossier was actually based on a press officer’s script – and whether it was subsequently ’sexed up’ by Alastair Campbell.

The draft is understood not to contain the infamous claim that Saddam Hussein could launch a strike with ‘weapons of mass destruction’ within 45 minutes, a claim that was central to the final ‘dodgy dossier’.

Yesterday Williams attacked the decision to withhold the document for so long. ‘If the government withholds a piece of paper, it immediately makes it significant; it almost doesn’t matter what it says,’ he argued. ‘That’s what I said at the time: why are we withholding it?’

A former journalist, who left Whitehall in May, Williams said the row was particularly frustrating as he had never wanted the government to produce a dossier. He had argued, he said, that rather than attempting to prove that Saddam did have weapons of mass destruction, the government should have challenged him to prove he did not: ‘I was against the idea of a dossier because I thought it was wrong.’

The Hutton inquiry into the road to war on Iraq identified the existence of an early draft by Williams, but was told by Campbell that it had become ‘redundant’ when John Scarlett, then chairman of the Joint Intelligence Committee linking Downing Street to the security services, took charge of the process. However, an information tribunal last month ruled that the Williams draft should be disclosed. Anti-war campaigners regard it as key evidence of who introduced the most contentious material into the final draft, and whether Scarlett was too heavily influenced by aides with an interest in making a case for war.

Williams said that critics of the war were likely to find significant similarities between his draft and Scarlett’s version, but insisted that should not be surprising since both were working with ‘the same assumptions, the same policy, with much of the same material’.

David Miliband, the Foreign Secretary, is expected to confirm in a statement to the Commons tomorrow that the government will bow to the information tribunal’s ruling, rather than exercising ministerial powers to veto it or challenge it in court. Ministers had argued that the draft should not be disclosed because it jeopardised the confidentiality – and therefore candour – of advice given to them by civil servants.

The release is in response to pressure by Chris Ames, a former charity worker from Surrey, who began pursuing the document early in 2005.

The government will hope that the publication finally draws a line under the sorry saga of the dossier, which led indirectly to the suicide of scientist David Kelly after he was identified as the apparent source of BBC reports that the dossier had been ‘overspun’ by Campbell.

Lindsey Graham Says He Would Have Voted Against Waterboarding Ban…Yeah Right!

Sen. Lindsey Graham (R-SC), a member of the Air Force JAG Corp., has repeatedly broken with his party’s ranks in the past, condemning waterboarding as “clearly illegal under domestic and international law.”When the Senate brought the Intelligence Authorization Bill — which contained a provision banning waterboarding — to the floor this week, Graham was absent from the vote because he was in Iraq. When contacted by ThinkProgress this week, Graham’s office said the senator would have voted against the anti-waterboarding bill.

Asked to explain Graham’s change of heart, the spokesman said, “He disagrees with applying the Army Field Manual to the CIA. The CIA is a completely different operation.”

In the Congressional Record on Feb. 13, Graham explained his opposition to the bill, claiming the Army Field Manual would limit the CIA’s operations:

I believe in flexibility for the CIA program within the boundaries of current law. The CIA must have the ability to gather intelligence for the war on terror. In this new war, knowledge of the enemy and its plan is vitally important and the Army Field Manual provision will weaken our intelligence gathering operations.

In Oct. 2005, however, Graham was singing the Army Field Manual’s praises when he said it is sufficiently flexible for intelligence gathering:

You can change the Army Field Manual to adapt techniques to the war on terror. There is a classified section of the Army Field Manual. There is nothing about its adoption that limits the ability to aggressively interrogate people to get good intelligence.

It appears that the Graham, as well as Sens. John McCain (R-AZ) and Joe Lieberman (I-CT) are willing to ditch their consciences in favor of backing President Bush’s misguided national security priorities.

Scalia Defends Torture: It’s ‘Absurd’ To Say The Gov’t Can’t ‘Smack’ A Suspect ‘In The Face’

Today in an interview with BBC Radio’s Law in Action, U.S. Supreme Court Justice Antonin Scalia defended torture, claiming that it is not necessarily barred by the Constitution:

Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? Because smacking someone in the face would violate the 8th amendment in a prison context. You can’t go around smacking people about.

Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth.

The BBC interviewer, however, objected to Scalia’s use of the so-called “ticking time bomb” scenario to justify government torture. “It’s a bizarre scenario,” he said. “Because the fact is, it’s very unlikely you’re going to have the one person who can give you that information. So if you use that as an excuse to commit torture, perhaps that’s a dangerous thing.” Scalia responded:

Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that.

 As the BBC interviewer pointed out, ticking time bomb scenarios — where a detainee has knowledge of an imminent attack — are incredibly rare, despite Scalia’s fascination with them. U.S. Air Force Reserve Colonel Steve Kleinman, a longtime military interrogator, testified to the House in November that torture would be “unnecessary” even in such scenarios. Furthermore, intelligence experts say that torture is “ineffective” because it “often produces false information.”

Sharon at Human Rights First looks at Scalia’s arguments on torture’s constitutionality.

UPDATE: Scalia is also a fan of Jack Bauer.

Let Us Talk to Sept 11 Planner, U.S. Lawyers Ask

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) – Military lawyers defending Osama bin Laden’s former driver on terrorism charges in the U.S. war court at Guantanamo Bay have offered a compromise in their quest to interview September 11 mastermind Khalid Sheikh Mohammed.

They promised not to ask Mohammed about his treatment in U.S. custody or about the CIA’s admission that it subjected him to a simulated drowning technique known as “waterboarding” during interrogations.

Bin Laden’s former driver, Salim Ahmed Hamdan, was captured in Afghanistan in November 2001 and faces life in prison if convicted in the Guantanamo court of conspiring with al Qaeda and providing material support for terrorism.

The Yemeni man said he never joined al Qaeda, had no advance knowledge of its attacks and became bin Laden’s driver in Afghanistan because he needed the salary of $200 per month.

Hamdan’s lawyers said Mohammed — the highest-ranking al Qaeda leader held at the U.S. naval base in Guantanamo Bay, Cuba — can help their defense by telling them what role, if any, Hamdan had in the organization.

They likened it to somebody “on trial for organized crime and you’ve got the opportunity to bring in the godfather.”

The request was still pending when a pretrial hearing ended on Thursday but the military judge suggested he might at least let the lawyers question Mohammed via written notes.

The judge is expected to rule in the next couple of weeks and Hamdan is scheduled to go to trial in May. So far, only one captive — an Australian man — has been convicted by the widely criticized court and that was in a plea bargain.

TOO DANGEROUS

Prosecutors said Mohammed, accused of masterminding the attacks on the United States by al Qaeda militants on September 11, 2001, was too dangerous an enemy in an ongoing war to allow defense lawyers to go on “a fishing expedition.”

“The defense is asking for access to some of the most notorious terrorists the world has ever seen,” said one of the prosecutors, Air Force Lt. Col. William Britt.

There was a risk of endangering U.S. agents if Mohammed revealed to the defense lawyers the sources and methods the government used to get information from him, prosecutors said.

The CIA has acknowledged using waterboarding, which critics say is a form of illegal torture, on Mohammed and two other senior al Qaeda leaders who were later sent to Guantanamo.

The defense lawyers, one of whom has top clearance to view government secrets, said they disapproved of waterboarding but would not ask Mohammed about it or about anything that occurred after the September 11 attacks.

Mohammed is one of 15 “high-value” al Qaeda prisoners held separately from the other 260 non-U.S. captives at Guantanamo in a facility whose location is kept secret even from the officers who run the other detention camps.

Prosecutors also objected to defense requests to question six other high-value prisoners.

“Equally wrapped up in secret tape, eh?” asked the judge, Navy Capt. Keith Allred.

He said the defense had shown adequate need to question Mohammed and suggested they conduct the interview via written questions and answers, which the prosecutors also opposed.

The United States set up the Guantanamo tribunals to try suspected terrorists after the September 11 attacks but so far, none of the handful of prisoners facing charges has been accused of direct involvement in the attacks.

The New York Times reported on Saturday that military prosecutors are in the final phases of preparing the first sweeping case against suspected conspirators in the September 11 attacks, citing people who have been briefed on the case.

The charges, to be filed at Guantanamo, would involve up to six detainees there including Mohammed.

No defense lawyer has been allowed access the high-value group of suspected terrorists facing charges, who were brought to Guantanamo in 2006 after about three years in secret CIA custody.

One of Hamdan’s lawyers, retired Navy Lt. Cmdr. Charles Swift, said that raised a crucial question about U.S. plans to try those important figures.

“Who is going to represent Khalid Sheikh Mohammed and when will his trial be?” Swift said.