[Kabar-indonesia] NYT: Memo Fueled Deep Rift in Administration on Detainees [+Analysis]

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also: NYT Analysis: Detainee Bill 
Shifts Power to President 

The New York Times
Sunday, October 1, 2006

Memo Fueled Deep Rift in Administration on Detainees 

By TIM GOLDEN

photo: A 2005 report by Gordon R. England, left, the
acting deputy secretary 
of defense, and Philip D. Zelikow, the counselor of
the State Department, urged changes in American
detention policies. Stefan Zaklin/European Pressphoto
Agency, left; Miller Center for Public Affairs

In June 2005, two senior national security officials
in the Bush administration came together to propose a
sweeping new approach to the growing problems the
United States was facing with the detention,
interrogation and prosecution of terrorism suspects.

In a nine-page memorandum, the two officials, Gordon
R. England, the acting deputy secretary of defense,
and Philip D. Zelikow, the counselor of the State
Department, urged the administration to seek
Congressional approval for its detention policies. 

They called for a return to the minimum standards of
treatment in the Geneva Conventions and for eventually
closing the detention center at Guantánamo Bay, Cuba.
The time had come, they said, for suspects in the 9/11
plot to be taken out of their secret prison cells and
tried before military tribunals.

The recommendations of the paper, which has not
previously been disclosed, included several of the
major policy shifts that President Bush laid out in a
White House address on Sept. 6, five officials who
read the document said. But the memorandum’s fate
underscores the deep, long-running conflicts over
detention policy that continued to divide the
administration even as it pushed new legislation
through Congress last week on the handling of
terrorism suspects. 

When the paper first circulated in the upper reaches
of the administration, two of those officials said, it
so angered Defense Secretary Donald H. Rumsfeld that
his aides gathered up copies of the document and had
at least some of them shredded.

“It was not in step with the secretary of defense or
the president,” said one Defense Department official
who, like many others, would discuss the internal
deliberations only on condition of anonymity. “It was
clear that Rumsfeld was very unhappy.”

The internal debate over detention issues that began
within weeks after the terrorist attacks of Sept. 11,
2001, has come to light before. But interviews show
that the struggle, pitting top officials against one
another, intensified behind the scenes over the last
year as criticism of the administration’s approach
grew in the United States and abroad. Crucial elements
of that approach were struck down by the Supreme Court
on June 29, forcing a resolution of disputes that had
gone on for months.

On one side of the fight were officials, often led by
Vice President Dick Cheney, who said the terrorism
threat required that the president have wide power to
decide who could be held and how they should be
treated. On the other side were officials, primarily
in the State Department and the Pentagon, who
portrayed their disagreement as pragmatic. They said
the administration had claimed more authority than it
needed, drawing widespread criticism and challenges in
the courts.

Those officials initially hailed the president’s Sept.
6 announcement. Mr. Bush publicly discussed the
Central Intelligence Agency’s secret detention program
for the first time, saying he had ordered its
remaining 14 prisoners sent to Guantánamo and tried
before military tribunals. The same day, Pentagon
officials presented new directives that effectively
renounced military use of highly coercive
interrogation methods.

But even as the White House negotiated with Congress
in recent weeks, administration forces led by the vice
president’s office reasserted themselves. Officials
said Mr. Cheney’s staff and its bureaucratic allies —
having agreed reluctantly to the disclosure of the
C.I.A. operation and other changes — were closely
involved in guiding the talks with Republican
senators. Their adversaries in the administration,
meanwhile, had to scramble just to keep up with
details of the bargaining.

“Basically, they were left to get back whatever they
could from Congress,” one senior administration
official said of the Cheney group. “And they did.”

In the end, the White House pressed Republican
senators to accept a broad definition of “unlawful
enemy combatants” whom the government can hold
indefinitely, to maintain some of the president’s
control over C.I.A. interrogation methods and to allow
the government to present some evidence in military
tribunals that is based on hearsay or has been coerced
from witnesses.

The administration did concede to the senators on some
rules for military commissions, as the tribunals are
called. It also backed off its effort to limit its
obligations under the Geneva Conventions, but fought
to ensure that government personnel would be immunized
from prosecution for any treatment of detainees before
the end of 2005 that was cruel, inhuman or degrading. 

Still, several officials said privately that the
detainee legislation might fail to meet a primary goal
of those inside the administration who had advocated
change: quelling domestic and international criticism
and moving past the federal lawsuits that have tied up
parts of the detention apparatus since 2002.

“There have been so many times when we thought we had
broken through and turned things around, and then the
forces on the other side kept charging back,” said one
administration lawyer who has supported such changes.
Now, the official added, “even after what was supposed
to be this major legislation to resolve these issues,
we are going to be back at it.”

At the time the England-Zelikow memorandum was
written, in mid-June 2005, several officials said they
saw little enthusiasm for reconsidering the detention
system that had been set up after 9/11, primarily by a
small group of lawyers in the White House, the Justice
Department and the Defense Department.

That system had begun to come under increasing attack.
An erroneous item in Newsweek magazine, about a Koran
being flushed down a toilet at Guantánamo, led to
violent demonstrations overseas. Criticism of the
detention camp grew sharper in Europe. Some
influential Republicans in Congress began to voice
complaints as well.

Mr. Zelikow, who served as staff director for the
national commission that investigated the 9/11
attacks, joined the State Department in early 2005
with strong views on the detention issue, other
officials said. Early on, he began to push the idea
that high-level C.I.A. captives held in connection
with the 9/11 attacks should be brought to justice,
these officials said.

Mr. England took over as Mr. Rumsfeld’s acting deputy
in April 2005 while continuing to serve as secretary
of the Navy. (He was confirmed as deputy secretary in
April 2006.) He, too, had experience with the detainee
issue, having spent months working to overhaul what
many military officers saw as a flawed screening
process for prisoners at Guantánamo.

Two other officials who had worked extensively on
detention issues during Mr. Bush’s first term also
participated in the drafting of the memorandum,
officials said. One of them, Matthew C. Waxman, was
Mr. Rumsfeld’s chief aide for detainee issues. The
other, John B. Bellinger III, was the State
Department’s legal counsel.

The proposals in the paper were not entirely new. But
what was different, one administration official said,
was an effort at “a big-bang solution,” to persuade
senior officials or the president himself to adopt a
comprehensive new approach to the detention problems
of the policy. Failing that, officials said, the
authors hoped to foster new debate about how to shape
a strategy that would be more sustainable
diplomatically, politically and in the federal courts.

Three years after Mr. Bush had determined he would not
apply the Geneva Conventions in fighting terrorists,
the memorandum urged a return to the conventions’
minimum standards, including the ban on “humiliating
and degrading treatment” contained in the provision
known as Common Article 3. The authors advocated that
move not because they believed it was required by
international law, officials said, but to win broader
support from American allies and make court
intervention less likely.

The paper did not advocate abandoning the covert
interrogation program, but restricting it to the
shorter-term questioning of more important suspects,
officials said. After repatriating many of the
Guantánamo detainees, the authors argued, the
detention center could be shut down and the remaining
prisoners transferred to a long-term detention
facility in the United States. They did not specify
what kind of facility it should be, two of the
officials who read the paper said.

In a passage that underscored the views of Mr.
Zelikow, one official said, the paper argued that
efforts to bring to justice the perpetrators of the
9/11 attacks must produce more than the chaotic trial
of Zacarias Moussaoui, the French-born militant who
remains the only person to have been charged in an
American court with involvement in the attacks.

The paper specifically called for taking Khalid Shaikh
Mohammed and others held by the C.I.A. before military
commissions, officials said, arguing that much of the
information that would be disclosed by their trials
was already widely known.

Officials said the memorandum was well received by
Secretary of State Condoleezza Rice, who forwarded it
to senior officials at the National Security Council.
But the hope that it would lead to a broader
discussion of options within the administration was
quashed by Mr. Rumsfeld, they said.

Some of the defense secretary’s ire over the paper
appeared to be substantive, several Pentagon officials
said. At various times, Mr. Rumsfeld raised objections
to taking over responsibility for the C.I.A.
detainees, and he was reluctant to consider closing
Guantánamo without a viable alternative in sight, the
officials said.

Most important, they said, Mr. Rumsfeld was angered
that his new deputy, Mr. England, had worked on the
memorandum with officials outside the Pentagon without
his authorization. “England’s wings got clipped after
that,” one Defense Department aide said.

A spokesman for the department, Col. Gary L. Keck,
said it would not discuss its deliberations on
detainee policy or any “predecisional documents.” But
he denied that Mr. Rumsfeld was ever angered by those
deliberations or instructed anyone to destroy
documents. 

“This is a difficult and complex issue that has
profound operational, diplomatic, legal and political
implications not only for the Department of Defense,
but for many other executive agencies,” Colonel Keck
said in a statement. “In any discussion on such an
important topic there will be differences of opinion —
this is to be expected.”

In early August 2005, after a long internal debate,
new rules for the Guantánamo military tribunals were
published which did not include changes that many
military lawyers had advocated. Officials said David
S. Addington, who was then Mr. Cheney’s counsel and is
now his chief of staff, was prominent among those who
opposed modifications like an explicit ban on evidence
obtained by torture, contending that it would wrongly
hint that the government had sanctioned torture at
all.

At the Pentagon, Mr. England continued to pursue the
idea of adopting Common Article 3 of the Geneva
Conventions in a directive that would set guidelines
for prisoner treatment and interrogations. In late
August, he called a meeting with some of the vice
chiefs of staff of the armed forces and senior
uniformed and civilian lawyers to consider the matter.

According to officials who attended the meeting,
several of those present spoke in favor of the Geneva
provision, including the senior Army lawyer, Maj. Gen.
Thomas J. Romig. In an unusual move, Mr. England
called for a show of hands. All but two of those
present endorsed the provision. But those two
officials were among the most influential in the room:
the department’s under secretary for intelligence,
Stephen A. Cambone, and its general counsel, William
J. Haynes II.

Their concerns, which were later echoed by aides to
Mr. Cheney, started with the fact that the president
had explicitly rejected the Geneva standard in
February 2002. They also disputed the idea that
Article 3 would necessarily give clear guidance to
soldiers, citing what they called its vague
prohibition on “outrages upon personal dignity.”

Debate over both the proposed prisoner-treatment
directive and an Army field manual for interrogations
would go on for another year. For the time being,
though, the idea of adopting Common Article 3 directly
as the standard of treatment went no further.

There was little high-level discussion of alternatives
to Guantánamo, several officials said. But the
C.I.A.’s secret prisons had been a subject of rising
concern since at least 2004, when unease over the
open-ended detentions became evident within the agency
and the Supreme Court ruled that detainees held by the
United States at Guantánamo — and, by implication,
elsewhere around the world — could challenge their
detention in American courts. 

By late 2005, as reports in The Washington Post and
other news media about the secret prisons raised a
storm of complaints among foreign governments, the
C.I.A. began to move more quickly to transfer some
captives to the custody of their own and other foreign
governments, officials familiar with the program said.

By the end of 2005, military lawyers also began to
review the C.I.A.’s evidentiary files on the
high-value detainees to consider their possible
prosecution by the military commissions at Guantánamo.
Ultimately, military officials concluded that they
could make solid cases against the C.I.A. prisoners
without unduly exposing the agency’s covert program or
even having to depend heavily on statements that had
been obtained during highly coercive interrogations,
several officials said.

There was also new pressure for action from within the
C.I.A. Intelligence officers involved in detention and
interrogations were increasingly worried about the
legal implications of the program, officials said.
Some foreign governments had declined to house covert
detention centers, and the furor over those sites
created friction with other intelligence agencies, the
officials said.

Still, some senior figures in the administration,
including Mr. Cheney and his chief of staff, Mr.
Addington, remained unconvinced that the C.I.A.
program could be made public and its prisoners taken
before military commissions while continuing to
protect what they saw as a vital intelligence asset,
several officials said.

A spokeswoman for Mr. Cheney, Lea Anne McBride, said
his office would have no comment on its role in policy
deliberations, as did spokesmen for the State
Department and the National Security Council.

“The problem fell for some period of time into the
too-hard category,” one senior administration official
said. “It fell so far into the too-hard category that
it was lost from view.”

Interagency meetings on the detention issue with
officials just below the cabinet level went around and
around for months, officials said. In the late spring,
they added, the president’s national security adviser,
Stephen J. Hadley, began pushing senior officials to
agree on options they could present to the president.

Many officials said the most important factor in
forcing a new approach was the Supreme Court’s ruling
in June that the military commissions set up by the
administration could not proceed. That decision, which
also upheld the minimum Geneva standards of prisoner
treatment as binding law, led the administration to
seek Congressional authorization for new tribunals
and, some officials said, left the C.I.A.’s
interrogation program on even more tenuous ground. 

In late July, two officials said, Mr. Rumsfeld and his
aides dropped their longstanding concerns about taking
custody of the C.I.A. detainees, and Mr. Hadley moved
to approve the arrangements for their transfer to
Guantánamo.

The two officials said that Mr. Cheney was never
entirely persuaded of the wisdom of emptying the
C.I.A.’s detention sites and making its interrogation
program public, but supported the move when Mr. Bush
decided in late August to go ahead.

“The vice president knows the president has made the
right decisions to make Americans safer and support
the men and women on the front lines in the war on
terror who are fighting this brutal enemy,” Mr.
Cheney’s spokeswoman, Ms. McBride, said.

The element of the new legislation that raised the
sharpest criticism among legal scholars and human
rights advocates last week was the scaling back of the
habeas corpus right of terrorism suspects to challenge
their detention in the federal courts. But in dozens
of high-level meetings on detention policy, officials
said, that provision was scarcely even discussed.

-----------------------------------------

The New York Times
September 30, 2006

Detainee Bill Shifts Power to President 

By SCOTT SHANE and ADAM LIPTAK

photo: Speaker J. Dennis Hastert, with other
Congressional leaders, signing 
the detainee treatment bill Friday. Jamie Rose for The
New York Times

WASHINGTON, Sept. 29 — With the final passage through
Congress of the detainee treatment bill, President
Bush on Friday achieved a signal victory, shoring up
with legislation his determined conduct of the
campaign against terrorism in the face of challenges
from critics and the courts.

Rather than reining in the formidable presidential
powers Mr. Bush and Vice President Dick Cheney have
asserted since Sept. 11, 2001, the law gives some of
those powers a solid statutory foundation. In effect
it allows the president to identify enemies, imprison
them indefinitely and interrogate them — albeit with a
ban on the harshest treatment — beyond the reach of
the full court reviews traditionally afforded criminal
defendants and ordinary prisoners.

Taken as a whole, the law will give the president more
power over terrorism suspects than he had before the
Supreme Court decision this summer in Hamdan v.
Rumsfeld that undercut more than four years of White
House policy. It does, however, grant detainees
brought before military commissions limited
protections initially opposed by the White House. The
bill, which cleared a final procedural hurdle in the
House on Friday and is likely to be signed into law
next week by Mr. Bush, does not just allow the
president to determine the meaning and application of
the Geneva Conventions; it also strips the courts of
jurisdiction to hear challenges to his interpretation.

And it broadens the definition of “unlawful enemy
combatant” to include not only those who fight the
United States but also those who have “purposefully
and materially supported hostilities against the
United States.” The latter group could include those
accused of providing financial or other indirect
support to terrorists, human rights groups say. The
designation can be made by any “competent tribunal”
created by the president or secretary of defense.

In very specific ways, the bill is a rejoinder to the
Hamdan ruling, in which several justices said the
absence of Congressional authorization was a central
flaw in the administration’s approach. The new bill
solves that problem, legal experts said. 

“The president should feel he has better authority and
direction now,” said Douglas W. Kmiec, a conservative
legal scholar at the Pepperdine University School of
Law. “I think he can reasonably be confident that this
statute answers the Supreme Court and puts him back in
a position to prevent another attack, which is the
goal of interrogation.”

But lawsuits challenging the bill are inevitable, and
critics say substantial parts of it may well be
rejected by the Supreme Court. 

Over all, the legislation reallocates power among the
three branches of government, taking authority away
from the judiciary and handing it to the president. 

Bruce Ackerman, a critic of the administration and a
professor of law and political science at Yale
University, sharply criticized the bill but agreed
that it strengthened the White House position. “The
president walked away with a lot more than most people
thought,” Mr. Ackerman said. He said the bill “further
entrenches presidential power” and allows the
administration to declare even an American citizen an
unlawful combatant subject to indefinite detention.

“And it’s not only about these prisoners,” Mr.
Ackerman said. “If Congress can strip courts of
jurisdiction over cases because it fears their
outcome, judicial independence is threatened.”

Even if the Supreme Court decides it has the power to
hear challenges to the bill, the Bush administration
has gained a crucial advantage. In adding a
Congressional imprimatur to a comprehensive set of
procedures and tactics, lawmakers explicitly endorsed
measures that in other eras were achieved by executive
fiat. Earlier Supreme Court decisions have suggested
that the president and Congress acting together in the
national security arena can be an all-but-unstoppable
force.

Public commentary on the bill, called the Military
Commissions Act of 2006, has been fast-shifting and
often contradictory, partly because its 96 pages cover
so much ground and because the impact of some
provisions is open to debate. 

“This bill is about so many things, and it’s a mixed
bag,” said Elisa Massimino, the Washington director of
Human Rights First, a civil liberties group.

Ms. Massimino’s group and others criticized the bill
as a whole, but she agreed with the Republican
senators who negotiated for weeks with the White House
that it would ban the most extreme interrogation
methods used by the Central Intelligence Agency and
the military.

“The senators made clear that waterboarding is
criminal,” Ms. Massimino said, referring to a
technique used to simulate drowning. “That’s a human
rights enforcement upside.”

The debate over the limits of torture and the rules
for military commission dominated discussion of the
bill until this week. Only in the last few days has
broad attention turned to its redefinition of
“unlawful enemy combatant” and its ban on habeas
corpus petitions, which suspects have traditionally
used to challenge their incarceration.

Law professors will stay busy for months debating the
implications. The most outspoken critics have likened
the law’s sweeping provisions to dark chapters in
history, comparable to the passage of the Alien and
Sedition Acts in the fragile years after the nation’s
founding and the internment of Japanese-Americans in
the midst of World War II.

Conservative legal experts, by contrast, said critics
could no longer say the Bush administration was guilty
of unilateral executive overreaching. Congressional
approval can cure many ills, Justice Robert H. Jackson
wrote in his seminal concurrence in Youngstown Sheet
and Tube Company v. Sawyer, the 1952 case that struck
down President Harry S. Truman’s unilateral seizure of
the nation’s steel mills during the Korean War.

Supporters of the law, in fact, say its critics will
never be satisfied. “For years they’ve been saying
that we don’t like Bush doing things unilaterally,
that we don’t like Bush doing things piecemeal,” said
David B. Rivkin, a Justice Department official in the
administrations of Ronald Reagan and George H. W.
Bush. 

How the measure will look decades hence may depend not
just on how it is used but on how the terrorist threat
evolves. If a major terrorist plot in the United
States is uncovered — and surely if one succeeds — it
may vindicate the Congressional decision to give the
government more leeway to seize and question those who
might know about the next attack.

If the attacks of 2001 recede as a devastating but
unique tragedy, the decision to create a new legal
framework may seem like overkill. “If there is never
another terrorist attack and we never obtain
actionable intelligence, this will look like a huge
overreaction,” said Gary J. Bass, a professor of
politics and international affairs at Princeton. 

Long before that judgment arrives, legal challenges
are likely to bring the new law before the Supreme
Court. Assuming the justices rule that they retain the
power to hear the case at all, they will then decide
whether Congress has resolved the flaws it found in
June or must make another effort to balance the rights
of accused terrorists and the desire for security.

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Joyo Indonesia News Service
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