Hamdan’s lawyer says advisor is exerting illegal sway for political ends

In a motion to dismiss the case against Bin Laden’s ex-driver, he says his Navy superior is pursuing election-year convictions when he is supposed to be impartial.

MIAMI — The lawyer for Salim Ahmed Hamdan, Osama bin Laden’s former driver, on Thursday accused U.S. officials of trying to orchestrate war-crimes convictions for election-year political gain.

In his motion for dismissal of the case against Hamdan, Navy Lt. Cmdr. Brian Mizer accused Brig. Gen. Thomas Hartmann — legal advisor to the White House official overseeing terrorism trials at Guantanamo Bay, Cuba — of exercising “unlawful command influence” over both the prosecution and defense. Lawyers participating in the tribunals are members of the U.S. military, and all are subordinate in rank to Hartmann.

More than a dozen suspected senior Al Qaeda figures are among the 280 prisoners currently at Guantanamo, including self-proclaimed Sept. 11 mastermind Khalid Shaikh Mohammed.

In his 97-page motion, Navy Lt. Cmdr. Brian Mizer cited what he said were inappropriate comments and actions by Hartmann and political appointees in the Guantanamo process — including its top official, Susan J. Crawford, the convening authority.

Hartmann “has so closely aligned himself with the prosecutorial function that he cannot continue to provide the requisite impartial advice to the convening authority,” Mizer said.

Hartmann did not return messages seeking comment. But a spokesman for the tribunals, Army Maj. Robert D. Gifford, said the general had not seen the motion and would have nothing to say immediately about its allegations.

“While the Office of Military Commissions receives notice of court filings, we are not aware if such a motion has even been filed with the trial court,” Gifford said. “Regardless, the proper place for the resolution of any legal matter is in the courtroom.”

In the last six years, only one case against a detainee at Guantanamo Bay has reached its conclusion. Crawford, who served as Pentagon inspector general when Dick Cheney was Defense secretary, in early 2007 facilitated the plea bargain that freed Australian David Hicks.

The move was seen by many as a favor by the Bush administration to Australian Prime Minister John Howard, whose failure to free Hicks was hampering his reelection battle — which he eventually lost.

The former chief prosecutor at Guantanamo, Air Force Col. Morris D. Davis, quit in October after complaining that Hartmann was bringing political pressure to bear on the legal process.

The motion filed Thursday said that Pentagon General Counsel William J. Haynes II had effectively ordered Davis to ensure that the terrorism suspects all were found guilty. “We can’t hold these men for six years and have acquittals. We have to have convictions,” Haynes is quoted as saying when Davis mentioned that some defendants at the World War II Nuremberg trials were acquitted.

Hartmann took over as legal advisor in July and immediately began acting as “de facto chief prosecutor,” Mizer wrote in his motion.

Omar Khadr: A most peculiar young offender

 He should be dealt with here in Canada, as a juvenile who was involved in terrorism

The civilized world condemns the recruitment of child soldiers. Yet Canada sits quietly by as one of its citizens, Omar Khadr, is prosecuted by the United States for war crimes he allegedly committed at age 15 as a member of al-Qaeda.

It is impossible to square. Al-Qaeda’s recruitment of child soldiers is immoral and abusive; consequently, it is immoral and abusive to prosecute as a war criminal a child recruited by al-Qaeda, and punish him accordingly. We can’t have it both ways.

Lately, it has dawned on Canadians that the United States may well have lied about its evidence against Mr. Khadr. Far from having proof that only he could have thrown the grenade that killed their soldier, the U.S. appears to have hidden the truth: that the teenage Canadian was in the company of an adult al-Qaeda fighter and was himself unarmed, on his knees and facing away from battle when a U.S. soldier shot him twice — in the back.

But the falsehoods are only part of the reasons why Canadians let the 15-year-old disappear six years ago into the legal black hole of Guantanamo Bay, Cuba, in which he had no access to a lawyer for the first 27 months and no way to contest his detention. Canadians accepted that Mr. Khadr be held fully responsible for his actions. As if he were an adult.

The irony has never really penetrated Canadians’ consciousness. Canada, the country of the liberal Youth Criminal Justice Act, is the only Western nation to give the United States carte blanche with one of its nationals at Guantanamo. Britain, Australia, Sweden and Germany fought to repatriate their nationals — adults, all of them. And Canada let a juvenile languish.

The reply from our government is but a single, vapid refrain: “Let the process work.” But this is a process that, even apart from its other flaws, aims at punishing Omar Khadr for the accident of his birth in an al-Qaeda family.

A VICTIM OF HIS OWN HOME

When a young person raised in a terrorist family becomes a terrorist at 15, does he join voluntarily? Can he give free and informed consent? To say yes is to let al-Qaeda and Toronto’s Khadr family off the hook for grooming children for terrorism. It puts the onus on the children to resist.

Most Canadian children grow up in circles within circles of benign, positive influences — family, school, neighbourhood, the larger culture. Omar’s circles of influence were pro-terror. His late father, Ahmed Said Khadr, was a senior financier with al-Qaeda who prodded Abdurahman, Omar’s elder brother, to become a suicide bomber. Even his mother and sister boasted on national television of the glories of terrorism.

From age 11, Omar was inculcated in terror, according to the U.S. charge sheets. “From 1996 to 2001, the Khadr family travelled throughout Afghanistan and Pakistan, including yearly trips to Usama bin Laden’s compound in Jalalabad for the Eid celebration at the end of Ramadan. While travelling with his father, Omar Khadr saw or personally met senior al-Qaeda leaders, including Usama bin Laden, Doctor Ayman Al-Zawahiri, Muhammad Atef (aka Abu Hafs al Masri), and Saif al Adel. Khadr also visited various al Qaeda training camps and guest houses.”

Only an extraordinary 15-year-old could have withstood that grooming process. The Khadr son who did resist, Abdurahman, did not do so until he was in his 20s. A younger brother, Abdul Karim, was paralyzed in battle in Pakistan in 2004 at 14. (His father was killed in the same battle.) The oldest brother, Abdullah, faces extradition from Toronto to the United States on terrorism charges from Afghanistan.

Yet many Canadians insist he acted of his free will. “Real child soldiers are forcibly taken from their parents (who are often killed),” one Globe reader wrote in an unpublished letter to the editor. “These children are drugged, brainwashed, and abused so they become killers. Khadr became a soldier/terrorist because his family encouraged it. He was a willing participant. Where was the coercion?”

This is a narrow view of coercion. Could there be a worse form of coercion than that in a father’s wish that his son become a suicide bomber? “Blow yourself up or lose your father’s esteem.” Omar’s family culture promoted dying for the cause. That was what it meant to be a good boy in that family.

CHILD SOLDIERS ELSEWHERE

The world is rife with child soldiers. Peter Singer of the Brookings Institution in Washington, D.C., estimates that as many as 300,000 child soldiers are in combat around the world. Yet none of today’s international war-crimes tribunals prosecute child soldiers or terrorists.

No one under 18 has been charged before the tribunals for Rwanda or the former Yugoslavia. No one has been charged in East Timor, in Cambodia, in Bosnia and Herzegovina. “To date, there is no precedent in history for the prosecution of a child soldier before an international criminal tribunal, and similarly there is no precedent in the Western world for prosecution of a child soldier before any state tribunal,” says Sarah Paoletti, a professor at the University of Pennsylvania School of Law, in a friend-of-the-court brief to the military commission that is to try Mr. Khadr. (Among those whose names are on that brief are former Canadian justice ministers Irwin Cotler and Allan Rock.) The U.S. says there are in fact precedents, but its examples predate the Nuremberg Tribunals. For instance, a British Military Court in northwestern Germany convicted and jailed a 15-year-old Hitler Youth member for his role in killing a British serviceman.

More recently, at the Special Court for Sierra Leone in 2004, the U.S. prosecutor, David Crane, was given the option of putting on trial, in a court without punishment, those age 15 to 17 who committed war crimes. Memorably, Mr. Crane rejected that idea. “The children of Sierra Leone have suffered enough both as victims and perpetrators. I want to prosecute the people who forced thousands of children to commit unspeakable crimes.”

If international practice is clear, the law as written is less so.

The relevant text is the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. Both Canada and the U.S. are among the 150 signatories. “The Protocol prohibits the United States from using child soldiers, not from prosecuting them,” says the U.S. brief to the military commission.

It’s right. The protocol is silent on its face. Emboldened by that silence, the U.S. stretches the point: “If anything, the Protocol obligates the United States to prosecute Khadr” because not punishing Mr. Khadr would “further incentivize” al-Qaeda in recruiting young people.

If the U.S. is right, where is the outcry that all the world’s child soldiers are going unpunished at all the world’s tribunals except this one?

Omar Khadr was a war crime waiting to happen. Anyone in al-Qaeda or the Taliban is an unlawful enemy combatant under U.S. law. Anything such a combatant does to fight, even in battle, is a war crime.

“In a normal war,” explained John Bellinger, a legal adviser to the U.S. state department, “where both sides have a right to engage in combat with one another, if a soldier kills a soldier on the other side, it’s not murder unless it is done somehow contrary to the laws of war perfidiously, or killing someone when they have already surrendered.

“In this case, though, the members of al-Qaeda and the Taliban, while they may have thought they were defending themselves, they had no legal right under the laws of war to be engaging in combat.” There’s a legitimate expectation that young people know and abide by the criminal law of their countries; the minimum age of criminal responsibility is usually 12 (as it is in Canada). But how could a 15-year-old of Mr. Khadr’s experience and background have been aware of the laws of war, especially laws that hadn’t been invented yet?

And speaking of inventions: “According to the reports of the action we have available, the last surviving enemy in that compound … as his last act at the firefight rose up with a pistol and hand grenade, and engaged the coalition forces, threw the grenade,” Col. Roger King, a U.S. spokesman based in Afghanistan, told the Associated Press in September, 2002. We now know that the U.S. had an eyewitness report that painted a very different picture.

A CASE FOR CANADIAN PROCESSES

And what has Canada done to help Mr. Khadr? It sent intelligence officers to interrogate him without counsel, and passed summaries of the interrogations to the Americans. Some help. (The Supreme Court of Canada is hearing Mr. Khadr’s request next week for access to Canada’s files from those visits.)

“The recruitment and use of child soldiers is one of the most flagrant violations of international norms,” says Mr. Singer. Why? Because children are not to be made a mere instrument of the state or terror group. Because children are manipulable. Because children cannot assess risk as adults can. To prosecute children as if they were fully responsible for war crimes is to legitimize their recruitment.

As other Western countries have repatriated adult suspected terrorists — several, in Britain’s case — it seems strange that Canada would not bring a lone 21-year-old home to face fair processes that would take into account his age and background, and his long incarceration at Guantanamo. Omar Khadr, child soldier, has been dehumanized enough. Bring him home.

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.”

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.”

‘High-value detainee’ gets lawyer

Alleged arch-terrorist Abu Zubaydah, whom the CIA waterboarded in secret overseas interrogations, has agreed to let a civilian American attorney handle his case, the lawyer said Tuesday.

”I represent him,” Chicago law professor Joseph Margulies said on his arrival in Fort Lauderdale from a weekend visit with the captive at the U.S. Navy base at Guantánamo.

A second U.S. attorney, Brent Mickum, also took part in the session.

The session is the first known meeting between a defense attorney and the captive — who once ran a paramilitary training camp in Afghanistan — since his March 28, 2002, capture in a firefight at an alleged al Qaeda safe house in Faisalabad, Pakistan.

From there, he disappeared into years of secret detention, out of reach of the International Committee of the Red Cross, until President Bush announced his transfer to the U.S. Navy base in September 2006.

Since then, CIA director Michael V. Hayden, an Air Force general, has confirmed that agents used the simulated form of drowning that human rights advocates call ”water torture” to force him to spill secrets to his captors.

Interrogations were videotaped but the tapes have since been destroyed by orders of a senior CIA official to a station chief in Bangkok, Thailand — now the subject of a Justice Department investigation.

Abu Zubaydah is the second ”high-value detainee” to meet with defense lawyers.

Extraordinarily circumspect, Margulies said that ground rules for the meeting permitted him to disclose only that ”a meeting took place,” the captive is held ”in a place called Camp 7” and he had ”no objections” to the Pentagon’s access provided during the Thursday to Monday visit to the base.

Margulies said the client-lawyer meetings covered two days and about 12 hours.

Margulies and Mickum are seeking to challenge Abu Zubaydah’s designation as ”enemy combatant” through a federal appeals court panel under a limited appeals system set up by Congress in 2005 and 2006.

A key stepping stone was securing authority to represent him, which Margulies indicated in his remarks that he got in the weekend trip.

Margulies flatly refused to elaborate any further — to described under what conditions they met and whether he would be able to disclose more after military censors clear notes of the meeting.

He did confirm he would seek to meet with his client in the future but would not directly answer a question on whether he found the circumstances of access “intimidating.”

”I would say that I am keenly aware of the limits placed on me by the protective order,” he replied.

His client’s full name is Zayn Abidin Abu Zubaydah and, according to a White House fact sheet disclosed at the time of his transfer to Guantánamo, he was recruited to terrorism by Osama bin Laden — and had ties to Abu Musab al Zarqawi, the al Qaeda of Iraq founder since killed by U.S. forces.

It said he was “not believed to be directly linked to the attacks on 11 September 2001.”

In transcripts of a March 2007 hearing before a military panel at Guantánamo, Abu Zubaydah described himself as not an acolyte of bin Laden but a rival — whose ideological version of Islamic holy war forbade 9/11-style attacks on civilians.

Margulies, who is a professor at Northwestern Law School, is a seasoned Guantánamo defense attorney both in the civilian and military arenas. In January 2005, he helped secure the repatriation to Australia of then Pentagon detainee Mamduh Habib — and accompanied Habib on his flight home.

He also served as an attorney at an earlier Pentagon effort to hold trials by military commissions that were upset by a Supreme Court ruling that the format was unconstitutional.

In 2006 he published a book called Guantánamo and the Abuse of Presidential Power.

Mickum, who works for a Washington, D.C., law firm, has likewise represented detainees since freed from Guantánamo, including former British resident Bishar Rawi, who was taken captive in the West African country of Gambia, sent to the remote base in Cuba and ultimately released a year ago after disclosure that he had worked as an informant for the British intelligence agency MI5.

Abu Zubaydah is the second former CIA held ”high-value detainee” among 15 at Camp 7 in Guantánamo to see a defense lawyer.

Earlier, two attorneys from the Center for Constitutional Rights met with Baltimore area educated captive Majid Khan, and have disclosed through public court filings cleared by intelligence censors that Khan and Abu Zubaydah share a recreation period together in their detention.

Gitmo defense lawyers: defending a man driven insane.

Today in the Washington Post, Joseph Margulies and George Brent Mickum — defense attorneys for Guantanamo detainee Abu Zubaydah — describe the prisoner’s mental insanity after being held by the United States for years:

Regardless of whether he was “insane” to begin with, he has gone through quite an ordeal since his arrest in Pakistan in March 2002. Shuttled through CIA “black sites” around the world, he was subjected to a sustained course of interrogation designed to instill what a CIA training manual euphemistically calls “debility, dependence and dread.” Zubaydah’s world became freezing rooms alternating with sweltering cells. Screaming noise replaced by endless silence. Blinding light followed by dark, underground chambers. Hours confined in contorted positions. And, as we recently learned, Zubaydah was subjected to waterboarding. We do not know what remains of his mind, and we will probably never know what he experienced.

They added that “if we cannot learn the facts and share them with others, the truth is only what the administration reports it to be.” 

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.

Pentagon to challenge interview of 9/11 suspect

Pentagon prosecutors are challenging a military court’s decision to let Osama bin Laden’s driver send written questions to alleged senior al Qaeda members held incommunicado at Guantánamo.

Defense lawyers for Salim Hamdan, 36, want to ask reputed 9/11 mastermind Khalid Sheik Mohammed, known in CIA circles as ”KSM,” and six other ”high-value detainees” what they know about Hamdan’s role in al Qaeda’s organization.

Based on their answers, they will decide whether to call as defense witnesses any of the seven men, who are fellow detainees now but were held and interrogated for years by the CIA.

Last week, Navy Capt. Keith Allred, Hamdan’s military commission judge, ruled that defense lawyers could submit questions to an independent security officer to give to Mohammed and the others held in a restricted prison camp on the base called Camp 7.

The judge ordered that the questions and answers be strictly limited to the time before Hamdan’s capture in November 2001 in Afghanistan. Censors will black out any responses that don’t cover that time period.

Navy Lt. Catheryne Pully, a military commissions spokeswoman, said on Monday that the prosecution would seek ”reconsideration” of the judge’s decision, which the prosecutors believed raised “a lot of complicated issues.”

Intelligence officials have described as national security secrets the CIA sites where Mohammed and 14 other detainees were held before their September 2006 transfer to Guantánamo Bay, Cuba. Now they are held in Camp 7, segregated from other detainees at an undisclosed site on the remote U.S. Navy base. The prison camps’ spokesman, Navy Cmdr. Rick Haupt, has not been able to say whether the location of the camp itself is a national security secret.

Allred gave the prosecution until Tuesday to find an independent security officer — who does not work for the prosecution — to handle the defense lawyers’ questions and detainees’ answers, if they choose to reply.

Hamdan attorney Andrea Prasow, a civilian on the Defense Department team, said the Pentagon prosecutors agreed to identify the security officer but notified the team on Saturday that they would ask for reconsideration of the question.

Hamdan’s lawyers wanted to meet the men in person to assess their credibility as potential witnesses at Hamdan’s summertime trial.

The lead defense lawyer, Navy Lt. Cmdr. Brad Mizer, said the attorneys also sought face-to-face meetings with the detainees because, after years in CIA custody, the captives might suspect written questions as an interrogation trick.

Allred’s remedy to the defense lawyers mirrors a 2003 formula proposed by a federal judge at the civilian trial of Zacarias Moussaoui, who eventually pleaded guilty to providing material support for al Qaeda and is now serving a life sentence.

In that case, the Justice Department refused to let the defense send questions to Mohammed, the reputed 9/11 mastermind. At the time, he was under CIA interrogation, and the government argued his testimony would harm the war effort.

In this instance, the men Hamdan’s lawyers seek to question are now among 15 former CIA detainees in military custody at Guantánamo.

• Mohammed, who according to Pentagon transcripts confessed to plotting the 9/11 attacks along with a long string of other al Qaeda suicide bombings, as well as beheading Wall Street Journal correspondent Daniel Pearl in Pakistan.

• Ramzi bin al Shib, a Yemeni and Mohammed’s alleged go-between with some of the 9/11 attackers.

• Walid bin Attash, another Yemeni who supposedly trained some of the hijackers.

• Mustafa al Hawsawi, who supposedly helped get funds to the Sept. 11 suicide squads.

Those four men were identified as candidates for execution at Guantánamo as part of a complex, six-detainee prosecution the Pentagon unveiled last week. Their charge sheets await approval from a Bush administration appointee. None of them yet have lawyers.

In addition, Hamdan’s lawyers asked to interview Abu Faraj al Libi, Abdul Rahim al Nashiri and Abdul Hadi al Iraqi because of their knowledge of other al Qaeda operations in Afghanistan not tied to the Sept. 11 strikes.

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.