CQ HOMELAND SECURITY – SPYTALK
Nov. 22, 2006 – 7:08 p.m.
By Jeff Stein, CQ National Security Editor
With all the lawsuits over kidnapping and torture marching toward the Bush administration, you might think the top officials running the global war on terror would be worried just a little about the prospect that some day they might end up in court — if not having nightmares about getting measured for orange jumpsuits at Danbury Federal Prison.
Alas, no. Thanks to the legerdemain of Bush administration lawyers, a provision quietly tucked into the Military Commissions Act (PL 109-366) just before it was passed by Congress and signed into law by President Bush on Oct. 17, would ease any worries they might’ve had. It not only redefines torture upward, removing the harshest, most controversial techniques from the definition of war crimes, it also exempts the perpetrators — interrogators and their bosses — from punishment all the way back to Nov. 1997.
The deft wording is the Bush administration’s attempt at bringing the United States’ criteria for defining a war crime into line with the Geneva Convention’s interpretation of torture.
The Supreme Court in June had declared the administration’s hastily assembled military commissions unconstitutional, saying all prisoners in U.S. custody had to be held in accordance with the Geneva Convention’s Article 3, which prohibits “outrages upon personal dignity, in particular, humiliating and degrading treatment.”
Renegotiating the Geneva Convention was out of the question. So the administration’s lawyers took what the president’s counselor, Dan Bartlett, later called “the scenic route.”
By way of the new Military Commissions Act, they effectively rewrote the U.S. enforcement mechanism for Geneva, the War Crimes Act, passed by Congress in Nov. 1997.
Never heard of this provision? That’s because coverage of the act focused more on its suspension of habeas corpus,barring anyone defined as an enemy combatant from filing suit challenging the legality of their detention or raising claims of torture and other mistreatment.
Former Defense Secretary Donald H. Rumsfeld, in particular, must be pleased by this legal three-card monte.
So, too, must be President Bush.
That’s because of another development that has garnered relatively minor coverage: The sworn statement of Lt. Gen. Randall M. Schmidt, the Army’s inspector general, that implicates the erstwhile Defense Secretary in the abuse of a Guantanamo detainee.
On March 17, 2005, Schmidt interviewed Maj. Gen. Mike Dunlavey, the retired former commander of Task Force 170, which was in charge of Guantanamo interrogations.
In his report, first obtained last April by the Internet magazine Salon, Dunlavey described himself as “a trial lawyer” who had “done over 3,000 interrogations” during his “35 years of intelligence experience.”
Under oath, Dunlavey said that Rumsfeld was “personally involved” in the interrogation of a high-ranking al Qaeda suspect, Mohammad al-Qahtani.
So was Bush, Dunlavey testified.
Marching Orders
In his deposition, Dunlavey refers to Rumsfeld as “SECDEF.”
“I met with the SECDEF on the 20th or 21st of February, 2002, along with the Deputy SECDEF, [Paul] Wolferwitz [sic] and a number of other personnel ...” Dunlavey said.
“The SECDEF said he wanted a product and he wanted intelligence now. He told me what he wanted, not how to do it.
“Initially,” Dunlavey continued, “I was told that I would answer to SECDEF . . . ”
But “the directions changed and I got my marching orders from the president of the United States.”
And not just by telephone.
“I was told by the SECDEF that he wanted me back in Washington every week to brief him. . . . The mission was to get intelligence to prevent another 9/11.”
No one said Rumsfeld was in the prison cell shouting questions at al-Qahtani.
But Rumsfeld was also “talking weekly” about the al-Qahtani interrogation with Gen. Geoffrey Miller, then a senior commander at Guantanamo, Schmidt reported.
The secretary of Defense was “personally involved in the interrogation of [this] one person,” he said.
Later in the year, we now know, Rumsfeld gave interrogators formal approval for hooding prisoners, exploiting their phobias, putting them in prolonged stress positions, often in complete darkness, and bombarding them with ear-splitting noise, tactics ordinarily forbidden by the Army Field Manual.
Joanne Mariner, a lawyer and director of the Terrorism and Counterterrorism Program at Human Rights Watch, took aim at Rumsfeld when the Army IG’s report surfaced.
“The question at this point is not whether Secretary Rumsfeld should resign, it’s whether he should be indicted,” Mariner said, urging the appointment of a special prosecutor.
“Gen. Schmidt’s sworn statement suggests that Rumsfeld may have been perfectly aware of the abuses inflicted on al-Qahtani,” she added.
Murky Trail
Who dunnit? Who slipped the language that could potentially exempt torturers from prosecution into the Military Commissions Act?
The White House counsel’s office wrote it, if Dan Bartlett’s “scenic route” jibe is any guide.
A spokeswoman there denied it.
But who was the accessory?
Backdating the exemption of perpetrators wasn’t in the original bill, stitched together by Sens. John McCain, R-Ariz, Lindsey Graham, R-S.C., and John W. Warner, R-Va., said a Senate aide involved in the drafting of the bill.
The version those three and the White House seemed to agree on — it apparently changed like a Rubik’s cube every week — backdated the officials’ exemption from prosecution only to Sept. 11, 2001.
Nor did the Warner version narrow the definitions for war crimes nearly to the extent that the final version did, said the aide, on condition of anonymity.
As for the timing of the midnight riders, they had to have been inserted quietly over the last weekend, or even the last night, before the bill moved to a final vote and then to the White House, the aide speculated .
“We have no idea who it came from or how it came to be.”
The senators’ offices did not answer queries during the shortened holiday week.
White House spokesperson Dana Perrino, meanwhile, thickened the mystery.
She said the stealth changes didn’t come from the counsel’s office.
“It could’ve come from elsewhere in the White House or Justice Department,” she said, a smile in her voice.
“But it didn’t come from us.”
Ah, sweet mystery of Hill life.
In any event, with Democrats holding the gavels come January, the Republicans should enjoy their legalistic coup while it lasts.
What the Republicans got, the Democrats can take away.
Jeff Stein can be reached at jstein@cq.com.
http://public.cq.com/public/20061122_homeland.html
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