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Legal Issues

Guantanamo war crimes court back in session

By BEN FOX

Associated Press Writer

11:33 PM CDT, June 17, 2008

GUANTANAMO BAY NAVAL BASE, Cuba

The U.S. war crimes court goes back into session this week as lawyers for defendants look for ways to use a new Supreme Court ruling to derail the prosecution of suspected terrorists.

Hearings are scheduled for Omar Khadr and Mohammed Jawad, accused in separate incidents of attacking U.S. troops with grenades in Afghanistan in 2002, when both were in their teens.

Military lawyers for both men, and for other prisoners facing war crimes charges, are evaluating a Supreme Court ruling last week that Guantanamo prisoners have a constitutional right to challenge their indefinite imprisonment in U.S. civilian courts.

The attorneys have said they hope to use it to assert other constitutional protections -- challenges considered likely to further delay the long-stalled prosecution of terror suspects on this isolated U.S. military base in southeast Cuba.

Khadr is expected to appear in court first on Thursday for a hearing on a series of legal motions dealing with such things as pretrial discovery. The prosecution has been pushing to set a trial date for the Canadian, who is accused of throwing a grenade that killed Army Sgt. 1st Class Christopher Speer of Albuquerque, New Mexico, during a firefight in Afghanistan in 2002.

His hearing had been scheduled for Wednesday, but it was postponed so Khadr could see a doctor about recent dizziness, possibly caused by shrapnel in his eyes, defense attorney Navy Lt. Cmdr. William Kuebler said.

Khadr's attorneys unsuccessfully sought last week a longer postponement so they would have more time to study the Supreme Court ruling. The Canadian, who was 15 at the time of the firefight, faces life in prison if convicted of charges that include murder.

Jawad, an Afghan, is scheduled to appear before a judge later in the day. His lawyer, Air Force Maj. David Frakt, has filed a motion to dismiss attempted murder charges on the grounds that the military tortured his client by subjecting him to sleep deprivation.

Frakt obtained Guantanamo records showing Jawad was moved 112 times from cell to cell during a two-week period in May 2004 in what was known as the "frequent-flyer program," used to soften up prisoners for interrogation.

The lawyer interviewed the former detention center commander, Army Brig. Gen. Jay Hood, but says he has been unable to determine why the military used the program on his client, who had already confessed after multiple interrogations.

"It was just gratuitous cruelty," Frakt told The Associated Press.

Jawad is accused of throwing a grenade that wounded two U.S. special forces soldiers and their translator in December 2002.

Prosecutors filed papers arguing that the treatment is not grounds for dismissing the charges.

Jawad's lawyer says his client was 16 or 17 when he allegedly threw the grenade, but the military says his age is uncertain and a bone scan suggested he may have been 18 at the time.

NYTimes.com

June 13, 2008 

Justices Rule Terror Suspects Can Appeal in Civilian Courts

By LINDA GREENHOUSE

WASHINGTON — The Supreme Court on Thursday delivered its third consecutive rebuff to the Bush administration’s handling of the detainees at Guantánamo Bay, ruling 5 to 4 that the prisoners there have a constitutional right to go to federal court to challenge their continued detention.

The court declared unconstitutional a provision of the Military Commissions Act of 2006 that, at the administration’s behest, stripped the federal courts of jurisdiction to hear habeas corpus petitions from the detainees seeking to challenge their designation as enemy combatants.

Writing for the majority, Justice Anthony M. Kennedy said the truncated review procedure provided by a previous law, the Detainee Treatment Act of 2005, “falls short of being a constitutionally adequate substitute” because it failed to offer “the fundamental procedural protections of habeas corpus.”

Justice Kennedy declared: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

The decision, left some important questions unanswered. These include “the extent of the showing required of the government” at a habeas corpus hearing in order to justify a prisoner’s continued detention, as Justice Kennedy put it, as well as the handling of classified evidence and the degree of due process to which the detainees are entitled.

Months or years of continued litigation may lie ahead, unless the Bush administration, or the administration that follows it, reverses course and closes the prison at Guantánamo Bay, which now holds 270 detainees. Chief Judge Royce C. Lamberth of the Federal District Court here said the court’s judges would meet in the next few days with lawyers for both sides to decide “how we can approach our task most effectively and efficiently.”

There are some 200 habeas corpus petitions awaiting action in the District Court, including those filed by the 37 detainees whose appeals were before the Supreme Court in the case decided on Thursday, Boumediene v. Bush, No. 06-1195.

Despite the open questions, the decision, which was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, was categorical in its rejection of the administration’s basic arguments. Indeed, the court repudiated the fundamental legal basis for the administration’s strategy, adopted in the immediate aftermath of the attacks of Sept. 11, 2001, of housing prisoners captured in Afghanistan and elsewhere at the United States naval base in Cuba, where Justice Department lawyers advised the White House that domestic law would never reach.

In a concurring opinion on Thursday, Justice Souter said the ruling was “no bolt out of the blue,” but rather should have been anticipated by anyone who read the court’s decision in Rasul v. Bush in 2004. That decision, part of the initial round of Supreme Court review of the administration’s Guantánamo policies, held that because the long-term lease with Cuba gave the United States unilateral control over the property, the base came within the statutory jurisdiction of the federal courts to hear habeas corpus petitions.

Congress responded the next year, in the Detainee Treatment Act, by amending the statute to remove jurisdiction, and it did so again in the Military Commissions Act to make clear that it wanted the removal to apply to cases already in the pipeline. The decision on Thursday went beyond the statutory issue to decide, for the first time, the underlying constitutional question.

President Bush, appearing with Prime Minister Silvio Berlusconi of Italy at a news conference in Rome, said he was unhappy with the decision. “We’ll abide by the court’s decision — that doesn’t mean I have to agree with it,” the president said, adding that “it was a deeply divided court, and I strongly agree with those who dissented.”

The dissenting opinions, one by Chief Justice John G. Roberts Jr. and the other by Justice Scalia, were vigorous. Each signed the other’s, and the other two dissenters, Justices Clarence Thomas and Samuel A. Alito Jr., signed both.

Of the two dissenting opinions, Justice Antonin Scalia’s was the more apocalyptic, predicting “devastating” and “disastrous consequences” from the decision. “It will almost certainly cause more Americans to be killed,” he said. “The nation will live to regret what the court has done today.” He said the decision was based not on principle, “but rather an inflated notion of judicial supremacy.”

Chief Justice Roberts, in somewhat milder tones, said the decision represented “overreaching” that was “particularly egregious” and left the court open to “charges of judicial activism.” The decision, he said, “is not really about the detainees at all, but about control of federal policy regarding enemy combatants.” The public will “lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges,” he added.

The focus of the chief justice’s ire was the choice the majority made to go beyond simply ruling that the detainees were entitled to file habeas corpus petitions. Under two unrelated Supreme Court precedents, formal habeas corpus procedures are not necessarily required, as long as Congress provides an “adequate substitute.”

Congress in this instance did provide an alternative procedure that might be viewed as a substitute. The Detainee Treatment Act gave detainees access to the federal appeals court here to challenge their designation as enemy combatants, made by a military panel called a Combatant Status Review Tribunal.

The detainees’ lawyers argued that because this process fell far short of the review provided by traditional habeas corpus, it could not be considered an adequate substitute. The appeals court itself never decided that question, because it ruled in February 2007 that the detainees had no right to habeas corpus in the first place, and that all their petitions must be dismissed. It was this ruling that the Supreme Court reviewed on Thursday.

Justice Kennedy said the Supreme Court, having decided that there was a right to habeas corpus, would “in the ordinary course” send the case back to the appeals court for it to consider “in the first instance” whether the alternative procedure was an adequate substitute.

But he said “the gravity of the separation-of-powers issues raised by these cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional” and required the justices to decide the issue for themselves rather than incur further delay.

The majority’s conclusion was that the alternative procedure had major flaws, mostly because it did not permit a detainee to present evidence that might clear him of blame but was either withheld from the record of the Combatant Status Review Tribunal or was learned of subsequently. The tribunals’ own fact-finding ability was so limited as to present “considerable risk of error,” thus requiring full-fledged scrutiny on appeal, Justice Kennedy said.

Eric M. Freedman, a habeas corpus expert at Hofstra University Law School, said the court was “on the right side of history” to reject what he called “habeas lite.” Calling the decision “a structural reaffirmation of what the rule of law means,” Professor Freedman, who was a consultant to the detainees’ lawyers, said it was as important a ruling on the separation of powers as the Supreme Court has ever issued.

Mr. Bush, in his statement in Rome, said the administration would decide whether to ask Congress to weigh in once more. Success at such an effort would appear unlikely, given that the Supreme Court decision was praised not only by the Democratic leadership, but also by the ranking Republican on the Senate Judiciary Committee, Arlen Specter of Pennsylvania. Senator Specter had voted for the jurisdiction-stripping measure, but then filed a brief at the court arguing that the law was unconstitutional.

In addition to removing habeas corpus jurisdiction, the Military Commissions Act also provided authority for the military commissions that the court’s 2006 decision in Hamdan v. Rumsfeld said was lacking. The case the court decided on Thursday did not directly concern military commissions, which are due to conduct trials of the several dozen detainees who have been charged with war crimes. The Justice Department said on Thursday that the decision would not delay those trials.

Divided as the Supreme Court was in this case, the justices were unanimous, surprisingly so, in a second habeas corpus ruling on Thursday. Again rejecting the Bush administration’s position, the court held in an opinion by Chief Justice Roberts that two civilian United States citizens being held in American military custody in Iraq were entitled to file habeas corpus petitions.

Proceeding to the merits of the petitions, the court then ruled against the two men, Mohammad Munaf and Shawqi Ahmad Omar, who are facing criminal charges under Iraqi law. Their release through habeas corpus “would interfere with the sovereign authority of Iraq to punish offenses against its laws committed within its borders,” Chief Justice Roberts said.

The administration had argued in the case, Munaf v. Geren, No. 06-1666, that because the men were technically held by the 26-nation multinational force in Iraq, federal courts did not have jurisdiction to hear their habeas corpus petitions. Chief Justice Roberts said that, to the contrary, what mattered was that the men were held by “American soldiers subject to a United States chain of command.”

Steven Lee Myers contributed reporting from Rome.

NYTimes.com

June 6, 2008 

Arraigned, 9/11 Defendants Talk of Martyrdom

By WILLIAM GLABERSON

GUANTÁNAMO BAY, Cuba — When at last he got the chance to speak, Khalid Shaikh Mohammed, the self-proclaimed planner of the Sept. 11 attacks, on Thursday called President Bush a crusader and ridiculed the trial system here as an inquisition.

Mr. Mohammed, the former senior operations chief for Al Qaeda, said he would represent himself and dared the Guantánamo tribunal to put him to death.

“This is what I want,” he told a military judge here, in his first appearance to answer war crimes charges for the terrorism attacks that killed 2,973 people and set America on a path to war.

“I’m looking to be martyr for long time,” he said in serviceable English, improved, perhaps, by five years of custody, including three in secret C.I.A. prisons.

The arraignment on Thursday of Mr. Mohammed and four other detainees the government says were high-level coordinators of the Sept. 11 attacks was the start of hearings in the case, which is the centerpiece of the Bush administration’s war crimes system here.

But it was also the first public appearance by Mr. Mohammed, who has long cast himself in the role of superterrorist, claiming responsibility in the past not only for the 2001 plot, but for some 30 others, including the murder of Daniel Pearl, a reporter for The Wall Street Journal.

A bushy gray beard all but covered Mr. Mohammed’s face, so familiar from the well-known photograph of him in a baggy undershirt that was taken the day of his capture in Pakistan in 2003. On Thursday, he worked to get as much control as possible over the proceedings.

Peering through big black-rimmed glasses, he rejected American lawyers as agents of the Bush administration’s “crusade war against Islamic world.” He said the lawyers could stay to help him as advisers.

He quickly staked out his position as the leader of the accused men. He gestured to them, shared animated conversations while the proceedings droned on and, at one point, turned his chair toward the back of the courtroom to face his co-defendants, lined up in a row behind him.

His strategy seemed to work. One of the detainees, a military lawyer said, decided to reject his lawyers on Thursday, after a few minutes in the courtroom. Another, Mustafa Ahmed al-Hawsawi, was intimidated by Mr. Mohammed, said his designated lawyer, Maj. Jon Jackson.

By day’s end, each of Mr. Mohammed’s four co-defendants had said he wanted to represent himself. That could turn a trial into a jumble of rhetoric and a new opportunity for critics to attack the Guantánamo system as designed to get easy convictions.

Each of the five men remained seated when the judge asked that they rise for the formal arraignment.

“I reject this session,” said Walid bin Attash, a detainee known as Khallad, who investigators say selected and trained some of the hijackers. Ramzi bin al-Shibh, who was to have been one of the hijackers, said that he too, like Mr. Mohammed, was ready for martyrdom.

He recalled that he had “tried for 9/11” but was denied an American visa so had missed his chance.

The judge, Col. Ralph H. Kohlmann, agreed to permit three of the men to represent themselves. He said he wanted more information on Major Jackson’s assertion. In Mr. Shibh’s case, he said he wanted to investigate a new report on Thursday from a military lawyer that Mr. Shibh has been on psychotropic medication.

When Judge Kohlmann asked Mr. Shibh why he was taking the medication, security officials cut the sound fed to reporters in a glassed-in gallery and a satellite press center. It was one of half a dozen times in a long court day when a private national-security consultant to the court cut the sound when detainees appeared to be discussing what several of them said had been years of torture.

Mr. Mohammed managed to get the reference through the censor twice.

“After torturing,” he said, warming to his subject, “they transfer us to Inquisitionland in Guantánamo.”

Central Intelligence Agency officials have said that Mr. Mohammed was one of three detainees subjected to the simulated drowning technique known as waterboarding.

The sound was cut twice when Mr. Mohammed seemed to be discussing his claim.

He was far from shy, and he looked lean compared with the photograph taken of him after his 2003 capture. He chanted verses in Arabic and then translated them into English. He vied with Judge Kohlmann for control of the courtroom.

“Go ahead,” he told the judge from time to time when there was a pause, as if he, at the shiny new defense table in a specially built courtroom here, and not the man in the black robe on the bench, were in charge.

He was, Mr. Mohammed said cheerfully, unable to accept lawyers who knew little of Islamic law. He asked that the five men facing terrorism, conspiracy and other charges for the Sept. 11 attacks be permitted to meet. They needed, he said, to plan “one front.”

The request for a meeting, like most requests from the defense on Thursday, was rejected by Judge Kohlmann.

All five accused men were held in the secret C.I.A. program and transferred to Guantánamo to face charges in the military commission system.

“Sit down,” the judge barked out a few times as defense lawyers assigned to the cases by the military and by the American Civil Liberties Union tried to slow the proceedings.

The lawyers said that Mr. Mohammed and the other men had not had enough opportunity to meet with them. As a result, they said, the detainees could not understand the implications of representing themselves with their lives potentially on the line. No one would prevail with the argument that the arraignment could not proceed as scheduled, Judge Kohlmann announced.

The Pentagon has been pressing to move its war crimes cases quickly after years of delays and legal setbacks. Critics, including a former chief military prosecutor, have said there is intense political pressure to start the trials by the end of the Bush administration.

The Pentagon general who has become the most visible advocate of the commission system, Thomas W. Hartmann, has repeatedly said that accelerating the filing and prosecution of charges is not motivated by politics.

Whatever the motivation, it was clear inside the wire of the new court complex in the bright sun here that the Guantánamo trial system had begun its most important test. Reporters from Italy, Pakistan, Britain and Canada mixed with Americans crowded into a press center for the first glimpse of Mr. Mohammed and his co-defendants.

The expansive new courtroom, built specifically for the Sept. 11 case, provided an austere setting. It is a big, windowless white room, decorated only with a large American flag and the seals of each of the American military branches.

The reporters and a handful of observers from human rights, military and legal groups sat in an observation room at the rear. Sound to the room was delayed 20 seconds, so people in the proceedings rose and sat on occasion before their voices could be heard.

In the courtroom, the prosecutors sat to the right at three long tables. On the left, there were six long tables, the final one unused. At the end of each table, a detainee sat, in a white prison uniform. Only one, Mr. Shibh, was shackled to the floor.

Mr. Mohammed, who is sometimes known as K.S.M., was at the first table. He could not, he explained, work easily with lawyers trained in the American legal system, which he described as evil. “They allow same sexual marriage,” he said, “and many things are very bad.”

He held his own in rapid fire back-and-forth with the judge dealing with the particulars of the proceedings, but then would retreat into another world. When Judge Kohlmann explained the risks of going through a death penalty case without a lawyer, Mr. Mohammed answered: “Nothing shall befall us, save what Allah has ordained for us.”

Mukasey defends military courts

Says terror cases pose security risk

By Matt Apuzzo, Associated Press  |  June 5, 2008

FARMINGTON, Pa. - Attorney General Michael Mukasey, defending military commissions to prosecute suspected terrorists, told federal judges yesterday that the upcoming trials will be "in the best traditions of the American legal system."

Mukasey's remarks came amid fresh criticism of the legal processes at Guantanamo Bay. Just this week, the Pentagon defended the abrupt removal of a judge from a case after rulings unfavorable to the government.

Speaking to a conference of Washington federal judges, Mukasey said the decision to try terrorism cases outside civilian courthouses is not made lightly.

Criminal cases, he said, could jeopardize military operations and national security by forcing prosecutors to turn over sensitive intelligence data to lawyers for suspected terrorists.

As Mukasey was speaking, Human Rights Watch urged the government to move the trials of Khalid Sheikh Mohammed and four others accused in the Sept. 11 attacks from Guantanamo Bay to federal court. The five are scheduled to make their first appearance before a military judge today.

In civilian courts, hearsay evidence and confessions obtained through coercion are not admissible. Such evidence is allowed in the military commissions.

"The military commission trials . . . will look and feel a lot like federal trials, albeit with some important differences," Mukasey said.

But lawyers for Canadian detainee Omar Khadr questioned the integrity of the process recently after the Pentagon removed a judge, Colonel Peter Brownback, who had issued rulings favorable to the defense.

"Whatever the case, this seriously undermines whatever integrity these proceedings possessed before," said Khadr's lawyer, Navy Lieutenant Commander William Kuebler.

The Pentagon said Brownback was replaced because his service orders were expiring. 

NYTimes.com

June 2, 2008 

U.S. Remakes Jails in Iraq, but Gains Are at Risk

By ALISSA J. RUBIN

BAGHDAD — Once a byword for torture and disgrace, the American-run detention system in Iraq has improved, even its critics say, as the military has incorporated it into a larger counterinsurgency strategy that seeks to avoid mistreatment that could create new enemies.

But these gains may soon be at risk. Thousands of detainees are to be turned over to the Iraqi government, some perhaps as early as the end of the year, a further step toward Iraqi sovereignty. Yet however tarnished America’s reputation may be for its treatment of detainees at Abu Ghraib and Guantánamo Bay, the reputation of many Iraqi prisons is worse.

“The Americans are better than Ministry of Interior prisons,” said Mahmoud Abu Dumour, a former detainee from Falluja, the Sunni stronghold west of Baghdad. “They will torture you. Maybe you will die. With the Americans, if you enter Abu Ghraib, they will only wage psychological war on you.”

Already, Human Rights Watch has criticized the military for transferring some convicted juveniles to Iraqi custody, where they are kept in what the group said are abusive conditions.

Criticism also remains high that the American military detains too many people, deprives them of due process and holds them too long, even if innocent. Many are taken in only because they were near an insurgent attack.

While nearly all of the more than 21,000 detainees in Iraq are in American custody, Maj. Gen. Douglas M. Stone, who runs detainee operations countrywide, is proceeding with a broad experiment to restructure it. His goal is to use the system of detention centers as another front in the counterinsurgency war, trying to reduce the likelihood that they become a recruiting ground for militants.

“The extremists owned the battlefield of the mind,” said General Stone, a Marine Reserve counterinsurgency expert who took responsibility for the detention system last spring. Before he arrived, moderate and extremist detainees were usually mixed, turning the American-run detention facilities into what he called a “jihadi university.”

General Stone’s goal now is to isolate those he believes are extremists, who are a minority of detainees, and persuade the other detainees that they will have better lives if they keep away from those who preach jihad. It is part of the effort to bring detention policy here in line with American military strategy that seeks to separate insurgents from civilians, mentally and physically.

General Stone’s goal is to move detainees, particularly more moderate ones, through the system faster by instituting review boards to hear each detainee’s case. So far, these boards have released at least 8,400 people. He has also pushed to expand paid work programs, like carpentry shops, brick factories and laundries, as well as educational programs, especially for juvenile detainees and the many illiterate adults.

It is difficult to assess this drive toward improvement. Outsiders are forbidden to interview detainees. The International Committee of the Red Cross has regular access to the facilities, but the United Nations and human rights groups say they have not been permitted to enter.

Still, a reporter’s visits to Camp Cropper and Camp Bucca, the two main American detention facilities; interviews with American military officers in charge of the facilities; and conversations with former detainees and human rights advocates make clear that the system has been changed in several important ways.

These changes were seen as vital after the images of prisoner humiliation and abuse at Abu Ghraib created fury throughout the Arab world. Recidivism is down: since General Stone’s arrival last year, just 28 of those released have been jailed again. That number, less than 1 percent of the total released, reflects considerably fewer repeat detentions than before the administrative hearings and other reforms, when recapture rates ran at 5 to 10 percent, according to military lawyers.

Riots, which once regularly traumatized Camp Bucca, have tailed off. The last was in September. Violence among detainees, including beatings and killings, is down as well. The last escape attempt was in November 2007, when military police officers found an 80-foot-long tunnel with an exit outside the compound.

In interviews, former detainees praised the new hearing system, which they said allowed them for the first time to tell their side of the story.

“I would consider this committee a fair and beautiful committee,” said Sheik Riyadh, who was released in early April from Camp Bucca, near Iraq’s southern border with Kuwait, after three and a half years in detention. “If only they had formed it when I was first detained. Then the detainee was not sent to any committee. But this committee works to release people.”

But the innovations have not erased memories of the Abu Ghraib scandals, nor have they mollified the many Iraqis who continue to be arrested and who maintain their innocence.

“I had not done anything,” said Mahmoud Abu Dumour, who was detained in Falluja in November 2004 and released without explanation in July 2007, before General Stone’s administrative hearing system was in place.

“It was very nice that my daughter recognized me,” he added, his arms around his 3-year-old girl. “She was 10 days old when the Americans took me.”

Human rights advocates familiar with the new system say they believe conditions have improved considerably since Abu Ghraib. But they contend that those gains do not change the underlying legal problems with the detentions themselves and the lack of legal rights afforded to detainees.

Suspects are often brought in, with little or no physical evidence, because they were near an attack on American or Iraqi troops or based on statements by informants, who often have their own reasons for lying. Detainees have no right to a lawyer nor can they challenge the grounds for their detention.

Of the total detainee population, which peaked at 25,600 last October and which was reported on Sunday to be at 21,680, only 10 to 15 percent will ever stand trial, military lawyers said. The average detainee is interned for 333 days, and as of March, about 1,500, or 5 percent, had been in detention for more than three years, said Lt. Col. Rodney Faulk, of the 300th Military Police Brigade, who runs Camp Bucca day to day.

No one knows how many of those detained are innocent of any crime, but General Stone said he believed that only about 8,000 detainees as of March were extremists who posed a continuing security risk. “One-third are genuinely continuing and imperative security risks,” General Stone said then. “But that means two-thirds are not, or at least remain a question mark.”

Although the American military has the legal right to detain suspects in Iraq under a United Nations resolution, human rights advocates say the Americans have interpreted the resolution far more broadly than was ever intended.

“Security detention is an emergency measure, and emergency measures you should try to use temporarily,” said John Sifton, executive director of One World Research, a human rights organization based in Los Angeles.

“These things have a way of becoming addictive,” he said. “It’s great the U.S. is trying to improve things. But remember, insurgency is a crime, and you should prosecute it.”

The Detention Centers

Eager to erase the stain of the Abu Ghraib scandal, the United States emptied that complex, which had a notorious reputation under Saddam Hussein, too, and turned it over to the Iraqi government in 2006.

Of the two major American-run facilities, Camp Bucca, the larger, holds 18,580 detainees. Camp Cropper has 3,100, and that includes all the juveniles in the system as well as so-called high-value detainees — Mr. Hussein was kept there before his execution in 2006 — and about 15 women, according to figures released on Sunday. About 80 percent are Sunni and 20 percent are Shiite. Just 221 of the detainees in Bucca and Cropper combined are from outside Iraq, a tiny percentage of the total number that the military views as extremists.

Recent visits to both detention centers, along with interviews of former detainees, depicted a system whose conditions increasingly resemble those of the American civilian model, in general treatment if not in rights.

On a late winter day at Camp Bucca, the detainees whom a reporter could see appeared to be in good health and at ease. Some played volleyball or table tennis. Others sat in the sun reading the Koran. One man tended a bottle of milk that he was fermenting into homemade yogurt.

Former inmates at Bucca, however, have complained in interviews about the food there, which they described as scant and sometimes nauseating.

When detainees arrive at Bucca, they are quickly profiled to separate those identified as moderates from those thought to be extremists. The procedure, which was under way before General Stone arrived, has been expanded so the military obtains a rough psychological assessment of each detainee. Former detainees say the change has made them feel safer.

“When the prisoner entered, he was terrified, and he found takferis surrounded him and taught him takferi ways,” said Abu Yahya, a former detainee who now lives on Falluja’s outskirts, using the Arabic word for Sunni Muslim fanatics. He said he spent more than three years in detention and was beaten several times by extremist detainees. “If anyone objected, he would be beaten and attacked, and sometimes he would die.”

A more recent innovation, popular with families living far away, is videoconferencing. Now, families who cannot travel from Baghdad to Bucca to see an interned relative can go to Camp Cropper and be linked by video.

The Release Boards

Detainees say the most important change has been the creation of administrative boards to determine whether an individual remains an “imperative security risk” — the legal term used in the United Nations approval for American forces to detain Iraqis. If a detainee is no longer deemed to be a risk, he can be released.

Detainees appear before a three-person panel, with no lawyer. In almost all the hearings, the detainees deny any wrongdoing, military lawyers say. They often change their accounts to try to say the right thing to obtain release.

It took months, the lawyers said, for the Americans to conclude that the Iraqi denials were a reflexive survival strategy inculcated under Mr. Hussein, not simply an effort to obfuscate. During Mr. Hussein’s rule, people were often tortured until they confessed; then the confession was used against them. So there is a deep reluctance to admit any shade of guilt, even if the cost is an inconsistency in the detainee’s testimony that can trouble American hearing officers.

Now, roughly 45 to 50 percent of those who have hearings are recommended for release.

Although the goal is for each detention to be reviewed every four to six months, interviews with detainees suggest the process is more haphazard.

Sadiq Jaber Hashim, 43, a Shiite merchant in Baghdad, was recommended for release after his first appearance before a hearing panel. A speaker of English and Turkish and a paramedic by training, Mr. Hashim tried to persuade his captors from the moment of detention that he had done nothing wrong. But only at his first hearing — eight months later — did anyone listen.

“The accusation was not that I was a terrorist, but that I knew some terrorists,” Mr. Hashim said. Because he was Shiite, he said, he was thought to have ties to the Mahdi Army militia of the cleric Moktada al-Sadr.

“I said, ‘I hate the Mahdi Army; they tried to kidnap me in 2006.’ But they did not listen,” he said.

While the hearings have succeeded in reducing the detainee population, to a visiting journalist they were difficult to follow, and the detainees often seemed to have little understanding of the process. The reasons for detention are frequently a jumble of allegations by soldiers and informers contained in documents available only to the hearing board.

The complications of the process were on display at a hearing in March, when a detainee in Bucca who had been accused of taking part in displacing families and planting bombs in the troubled Dora district of Baghdad, made his case.

“You were captured as a suspected Al Qaeda member,” said Maj. Charles Leonard, chairman of the administrative board and an acquisition officer from Hanscom Air Force Base in Massachusetts.

“I am innocent,” the detainee said.

“We have evidence that you were a target because of information we gathered.”

“No, no, I was in my house.”

“We have evidence that you were involved in displacing and killing Sunnis and Christians in your local area.”

“I was an employee in the Ministry of Education.”

“Did you serve as a guard?”

“Yes.”

“What will you do if you get released?”

“I’ll go back to the same job, and I have a shop with my brother.”

The detainee left, and Major Leonard sighed as he looked down at the file. “This is one of the tougher ones,” he said. “There are two allegations against him, but no physical evidence. There’s been no problems with him whatsoever in detention.”

His fellow hearing officers nodded. All three voted for release.

Evaluating the System

Looming on the horizon is the end of the United Nations authorization of the American involvement in Iraq, including the detention system. The authorization expires Dec. 31 and the United Nations is not expected to take up the issue again, leaving it to negotiations between the United States and Iraq. But the outlook for such a deal, which involves sweeping issues of troop withdrawal, as well as detention and other aspects of an American presence in Iraq, is in doubt.

On Sunday, for instance, the Iraqi government said it would not accept an American draft proposal on the issues.

The detention issues at play cover difficult legal and ethical ground, so much so that no American official interviewed for this article was willing to speak on the record about the discussions.

At the heart of the problem are all the so-called security detainees, who make up an overwhelming majority of the 21,000 people in American custody. They are the people who have been arrested because, in the judgment of the United States military, they could present some threat, even if they are not accused of extremist activity.

It is expected that Iraqi officials, who are now completing new prisons, will seek to take more control of detention operations, including taking custody of at least some of the current Iraqi detainees. That prompts the question characterized by one American military lawyer as “What do we do with the red population?” or those detainees the Americans consider to be extremists — the 8,000 detainees that General Stone referred to as a continuing threat.

Even as the Americans try to overcome their reputation for past mistreatment, serious allegations of torture and substandard conditions in some Iraqi prisons persist. Iraq’s Interior Ministry detention centers, which hold the largest numbers of pretrial detainees, have been run primarily by Shiites and have a record of overcrowding and abuse against the predominantly Sunni detainee population.

There have also been many allegations of torture. In cases in 2005 and 2006, it was American and British soldiers who rescued beaten and starved prisoners.

“If the coalition is going to turn over detainees, there are real Convention Against Torture issues,” said Kevin Lanigan, a former Army Reserve judge advocate in Iraq who is director of the law and security program at Human Rights First, a rights organization.

He was referring to the international Convention Against Torture, which among other things prohibits nations that have signed it from turning detainees over to countries where there are “substantial grounds” to believe that they would be tortured. Iraq has also signed the convention.

In the end, there is some speculation that a compromise will be reached that allows the American military to continue to detain and hold at least some of the people it deems security risks. In the meantime, the American military is pushing to review as many detention cases as possible with an eye toward quickly shrinking the overall detainee population.

Whatever the result, it is unlikely to meet American standards of justice or satisfy human rights groups.

Sheik Riyadh, for example, was released because of the new hearing panel at Camp Bucca. Still, he found little justice in the three and a half years he spent in detention.

“I like the idea of democracy in America,” he said. “But I have not touched it yet.”

Thom Shanker contributed reporting from Washington.

May 27, 2008

Border Agents, Lured by the Other Side

By RANDAL C. ARCHIBOLD and ANDREW BECKER, NYTimes.com

SAN DIEGO — The smuggler in the public service announcement sat handcuffed in prison garb, full of bravado and shrugging off the danger of bringing illegal immigrants across the border.

“Sometimes they die in the desert, or the cars crash, or they drown,” he said. “But it’s not my fault.”

The smuggler in the commercial, produced by the Mexican government several years ago, was played by an American named Raul Villarreal, who at the time was a United States Border Patrol agent and a spokesman for the agency here.

Now, federal investigators are asking: Was he really acting?

Mr. Villarreal and a brother, Fidel, also a former Border Patrol agent, are suspected of helping to smuggle an untold number of illegal immigrants from Mexico and Brazil across the border. The brothers quit the Border Patrol two years ago and are believed to have fled to Mexico.

The Villarreal investigation is among scores of corruption cases in recent years that have alarmed officials in the Homeland Security Department just as it is hiring thousands of border agents to stem the flow of illegal immigration.

The pattern has become familiar: Customs officers wave in vehicles filled with illegal immigrants, drugs or other contraband. A Border Patrol agent acts as a scout for smugglers. Trusted officers fall prey to temptation and begin taking bribes.

Increased corruption is linked, in part, to tougher enforcement, driving smugglers to recruit federal employees as accomplices. It has grown so worrisome that job applicants will soon be subject to lie detector tests to ensure that they are not already working for smuggling organizations. In addition, homeland security officials have reconstituted an internal affairs unit at Customs and Border Protection, one of the largest federal law enforcement agencies, overseeing both border agents and customs officers.

When the Homeland Security Department was created in 2003, the internal affairs unit was dissolved and its functions spread among other agencies. Since the unit was reborn last year, it has grown from five investigators to a projected 200 by the end of the year.

Altogether, there are about 200 open cases pending against law enforcement employees who work the border. In the latest arrests, four employees in Arizona, Texas and California were charged this month with helping to smuggle illegal immigrants into the country.

While the corruption investigations involve a small fraction of the overall security workforce on the border, the numbers are growing. In the 2007 fiscal year, the Homeland Security Department’s main anticorruption arm, the inspector general’s office, had 79 investigations under way in the four states bordering Mexico, compared with 31 in 2003. Officials at other federal law enforcement agencies investigating border corruption also said their caseloads had risen.

Some of the recent cases involve border guards who had worked for their agencies for a short time, including the arrest this month of a recruit at the Border Patrol academy in New Mexico on gun smuggling charges.

The federal government says it carefully screens applicants, but some internal affairs investigators say they have been unable to keep up with the increased workload.

“It’s going to get worse before it gets better,” said James Wong, an internal affairs agent with Customs and Border Protection. “It’s very difficult for us to get out and vet each and every one of the applicants as well as we should.”

The Border Patrol alone is expected to grow to more than 20,000 agents by the end of 2009, more than double from 2001, when the agency began to expand in response to concerns about national security. There has also been a large increase in the number of customs officers.

James Tomsheck, the assistant commissioner for internal affairs at Customs and Border Protection, said the agency was “deeply concerned” that smugglers were sending operatives to take jobs with the Border Patrol and at ports.

Mr. Tomsheck said the agency intended to administer random lie-detector tests to 10 percent of new hires this year, with the goal of eventually testing all applicants. His office has contracts with 155 retired criminal investigators, adding 36 since last fall, to do background checks.

In one of the new corruption cases this month, at a border crossing east of San Diego, a customs officer allowed numerous cars with dozens of illegal immigrants and hundreds of pounds of drugs to pass through his inspection lane, investigators said.

The officer, Luis Alarid, 31, had worked at the crossing less than a year, and the loads included a vehicle driven by Mr. Alarid’s uncle, the authorities said. Mr. Alarid has pleaded not guilty to a charge of conspiracy to smuggle. Investigators found about $175,000 in cash in his house, according to court records.

In another recent case, Margarita Crispin, a customs inspector in El Paso, Tex., began helping drug smugglers just a few months after she was hired in 2003, according to prosecutors. She helped the smugglers for four years before she was arrested last year and sentenced in April to 20 years in prison and ordered to forfeit up to $5 million.

Although bad apples turn up in almost every law enforcement agency, the corruption cases expose a worrisome vulnerability for national and border security. The concern, several officials said, is that corrupt agents let people into the country whose intentions may be less innocent than finding work.

“If you can get a corrupt inspector, you have the keys to the kingdom,” said Andrew P. Black, an F.B.I. agent who supervises a multiagency task force focused on corruption on the San Diego border.

Comparing corruption among police agencies is difficult because of the varying standards and procedures for handling internal investigations, said Lawrence W. Sherman, the director of the Jerry Lee Center of Criminology at the University of Pennsylvania and an authority on corruption.

But he described policing the border as “potentially one of the most corruptible tasks in law enforcement” because of the solitary nature of much of the work and the desperation of people seeking to cross.

Michael Chertoff, the homeland security secretary, declined an interview. But in response to questions at a recent news conference, he suggested that the breadth and depth of border security improvements would inevitably produce problem officers.

“There is an old expression among prosecutors,” he said. “Big cases, big problems. Little cases, little problems. No cases, no problems. Some people take the view we ought to make no cases and then we would have no problems. I think that is a head-in-the-sand view, which I do not endorse.”

A Veteran Gone Bad

The customs inspector stands just outside his booth, his hand waving a stream of cars through the Otay Mesa crossing just east of San Diego. They zip past, one after another, no questions asked, an unusually easy welcome into the United States where inspectors are known to grill citizens about their travels before allowing them through.

But time was running short for this Customs and Border Protection officer, Michael Gilliland, a revered veteran on the late shift expecting a special delivery — a vehicle with several illegal immigrants — in his crossing lane.

Rather than intercept them, he had arranged for their safe passage through his lane, federal prosecutors said.

Mr. Black, the F.B.I. agent from San Diego, shook his head as he watched a surveillance videotape of Mr. Gilliland.

“You’re basically giving that smuggling organization an opportunity to conceal whatever else they want in that vehicle,” he said, “whether its drugs, weapons, terrorists.”

The smugglers use any ruse available to lure border workers but seem to favor deploying attractive women as bait. They flirt and charm and beg the officers, often middle-aged men, to “just this once” let an unauthorized relative or friend through. And then another and another.

Prosecutors believe this is how smugglers ensnared Mr. Gilliland, who eventually pleaded guilty to taking $70,000 to $120,000 in exchange for letting hundreds of illegal immigrants pass through his lane. He was sentenced last year to five years in federal prison. Two women he had befriended also pleaded guilty.

The case against Mr. Gilliland, 46, stands out for the number of immigrants he helped and the shock of a respected veteran gone bad.

To young inspectors, Mr. Gilliland was a mentor, quick with advice, even an embrace, a burly go-to type with 16 years under his belt.

“He knew the laws backward and forward,” said Edward Archuleta, an internal affairs agent with Customs and Border Protection who once worked with Mr. Gilliland and eventually helped bring him down.

A tip steered F.B.I. agents to Mr. Gilliland’s illegal activities, but it took agents two years to build the case. The evidence against him included secretly recorded phone conversations in which Mr. Gilliland coordinated with Mexican smugglers when to drive their cargo of illegal immigrants through inspection lanes.

One morning, while Mr. Gilliland was taking a break from his shift, agents called him over and told him he was under arrest. They had braced for Mr. Gilliland to become belligerent, but instead he collapsed into a chair, weak-kneed.

“My grandfather always told me that when you’re born, the only thing you’re born with is your word, and only you can give that away, your integrity,” Mr. Gilliland said at his sentencing hearing. “And I’m sorry.”

A Breach of Trust

The case against the Villarreal brothers — the former Border Patrol agents in San Diego — illustrates how hard it has been for investigators to hunt for and root out corrupt officers, many of whom know how to game the system.

The Villarreals would meet illegal immigrants near the border. The doors of their government-issue truck would swing open and Mexicans and Brazilians would climb in. Off they drove, Border Patrol agents at the wheel, but not to a station or jail, investigators said.

Instead, they said, the migrants were taken to a drop house in San Diego and later transported by others in the smuggling ring to cities and towns far from the border.

The case against the Villarreals had shock value, even to those on the inside.

“Just really brazen, broad daylight,” said an investigator, who was granted anonymity because he was not authorized to discuss a continuing investigation. “They could say, ‘We picked these guys up, we’re taking them in.’ ”

As they closed in on the brothers, a squad of agents from several federal agencies met. Some had qualms about speaking openly in front of such a large group, fearing internal leaks.

Their fears were apparently borne out when, a couple of weeks after the meeting, the brothers quit their posts, left their badges at their family’s home in National City, Calif., and have not been seen publicly since.

A lawyer for the family, Jon Ronis, declined to say where the brothers were and said neither they nor family members would comment. Mr. Ronis said Raul and Fidel Villarreal were ready to defend themselves if the government brought a case.

Federal officials declined to comment because the case was still open. But investigators described some aspects of it on condition of anonymity. When the public service announcement was being made for Mexico, for example, Raul Villarreal spoke excitedly about his role in producing it, even suggesting camera angles and lighting, said a person familiar with its production.

Just when and why the brothers turned against the Border Patrol is unclear, even to the investigators. There is speculation that Raul had grown disgruntled with the work, chafing at having been moved back into the field from his public affairs job, considered a comfortable, high-profile position.

The Villarreal case is especially alarming for the level of trust the brothers had earned within the Border Patrol. Their betrayal has had the effect, at least in some investigations, of leading the authorities to move in more quickly when agents are suspected of wrongdoing.

In the case of Jose Olivas Jr., a Border Patrol agent in San Diego who was discovered serving as a scout for smugglers, an arrest was made within a year. Mr. Olivas, an agent for 10 years who had worked as a liaison between the agency and the United States attorney’s office, was sentenced in January to three years in prison.

The drawback to moving in fast, investigators said later, is that they probably will never know how deep Mr. Olivas’s ties were to the smuggling organization. He suggested to a judge that he had been drawn to smuggling to help pay his bills.

Policing the Police

An internal Web site at Customs and Border Protection features a page devoted to a rogue’s gallery of agents and officers recently convicted of corruption-related charges.

The intention, homeland security officials say, is to send the message that corruption will not be tolerated. That message has taken other forms, as well. When Mr. Olivas, the San Diego border agent, was sentenced to prison, several agents attended the court hearing at the behest of homeland security officials to shame him publicly.

“I am truly embarrassed just looking at them,” Mr. Olivas told the judge. “I am truly sorry for the breach of trust that was given to me.”

But if the department is serious about catching wrongdoers, investigators of corruption cases say it also needs to make fundamental changes in the way it polices the border police.

One result of the awkward marriage of agencies that begat the Homeland Security Department is that three internal affairs units, in addition to the Federal Bureau of Investigation, have a hand in corruption investigations. In the best case, having more than one unit investigate corruption can be a “force multiplier,” in the words of one investigator, but more often, it can slow cases down and lead to confusion over who should take the lead, several investigators said.

The Department of Homeland Security’s inspector general has nearly 170 investigators to police 208,000 department employees — including other large agencies like the Federal Emergency Management Agency, the Transportation Security Administration, the Secret Service — and gets first crack at cases. When it passes on an investigation, the case is picked up by either the Immigration and Customs Enforcement’s office of professional responsibility or the Customs and Border Protection internal affairs unit.

The F.B.I. also develops its own cases. Don Allen, a retired agent who until 2005 supervised a multiagency task force in San Diego investigating corruption among border officers, said internal affairs units did not always readily share information and often resented any sense of being big-footed by an outside agency. He said law enforcement agencies often “had a negative impression of the bureau.”

Thomas Frost, an assistant inspector general with the Homeland Security Department, said the limited number of investigators meant his office focused on “those most important cases and what resources we can bring to bear.”

He suggested it would be “more efficient” if his office had more investigative resources under its control so that it could better track “everything going on.”

“Let’s face it,” Mr. Frost said, “part of the issue of the border is it is kind of a balloon. When you squeeze one part, another bulges.”

Some Recent Cases

Jose Ramiro Arredondo, 33, a Customs and Border Protection officer in Laredo, Tex., was arrested in March after a smuggler who had been detained told the authorities that Mr. Arredondo had helped bring illegal immigrants across the border.

Miguel Angel Avina, a trainee at the Border Patrol academy in Artesia, N.M., was arrested in May on fraud and conspiracy charges related to his participation last year in a ring that smuggled at least 110 guns into Mexico, the government said. He has been dismissed from the academy.

Juan Luis Sanchez, 31, a Border Patrol agent, pleaded guilty May 20 to drug, bribery and fraud charges. He admitted transporting at least 3,000 pounds of marijuana in his Border Patrol truck from summer 2002 to January 2004 in exchange for $45,000 in bribes.

Jose Magana, 44, a Customs and Border Protection officer at the San Luis, Ariz., border crossing, was arrested May 12 on charges of conspiring to smuggle illegal immigrants. The authorities say he allowed people to pass uninspected through.

Luis Francisco Alarid, 31, a Customs and Border Protection officer, was arrested May 16 on charges of conspiring to smuggle illegal immigrants and drugs into the United States. Mr. Alarid allowed numerous vehicles with migrants or drugs to pass through his inspection lane since at least February at a border crossing east of San Diego, the authorities say. One vehicle, containing 18 illegal immigrants, was driven by his uncle. He has pleaded not guilty.

Lowell Bergman contributed reporting from San Diego.

NYTimes.com

May 14, 2008 

Case Against 9/11 Detainee Is Dismissed

By WILLIAM GLABERSON

The Pentagon official in charge of war crimes cases declined to permit a case to proceed against one of six detainees charged in the Sept. 11, 2001, attacks, dismissing charges against a Saudi who had been subjected to aggressive interrogation at the United States detention camp at Guantánamo Bay, Cuba.

The decision by the official, Susan J. Crawford, whose title is Convening Authority, came with no explanation.

She approved the death penalty charges submitted by military commission prosecutors in February against five detainees in the 2001 attacks, while declining to approve charges against the sixth detainee, Mohammed al-Qahtani. Mr. Qahtani was subjected to interrogations that Pentagon officials have found were “degrading and abusive,” including being forced to wear a bra, being led around on a leash and required to perform dog tricks.

Ms. Crawford’s decision said the charges against Mr. Qahtani were being dismissed “without prejudice.” On Tuesday, Capt. André Kok of the Air Force, a spokesman for her and for military prosecutors, said the government could “reinitiate charges against him at any time.”

The chief prosecutor at Guantánamo, Col. Lawrence J. Morris of the Army, said, through Captain Kok, that prosecutors were “evaluating the case in light of the decision to sever.”

In legal parlance, severance of a case can mean that it could proceed separately.

Mr. Qahtani has sometimes been referred to as the 20th hijacker because of evidence that he tried to enter the United States a few days before Sept. 11, 2001, and that he was in touch with the men who became the hijackers.

Mr. Qahtani’s military lawyer, Lt. Col. Bryan Broyles of the Army, said he believed that Ms. Crawford’s decision meant that efforts to try Mr. Qahtani were over. “It is unlikely that they are ever going to try him,” Colonel Broyles said.

He said he believed Ms. Crawford might have concluded that evidence against Mr. Qahtani was “derived by torture,” which could undermine the prosecution’s case.

The decision permitted the prosecutors to proceed with the case against Khalid Shaikh Mohammed, the self-professed planner of the attacks, and four other men held at Guantánamo whom officials describe as “high-value detainees.” The five were held in secret C.I.A. prisons until they were transferred to Guantánamo in 2006.

Mr. Mohammed’s lawyer, Capt. Prescott L. Prince of the Navy, said the effort to press ahead with the charges against those detainees was political. He said prosecutors were trying to rely on evidence obtained through coercion or torture that would not be admissible in civilian or regular military courts.

Mr. Mohammed is one of three former C.I.A. prisoners government officials have said were questioned using the simulated drowning technique known as waterboarding.

Military lawyers for several of the five detainees said they expected to begin extensive legal challenges to the military commission system. “Given the political nature of the entire process,” Captain Prince said, “I just don’t see how my client can get a fair trial before military commissions.”