Behind The Republicans Torture-At-Will Bill

"...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."

Memo Fueled Deep Rift in Administration on Detainees

By TIM GOLDEN

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.

TIM GOLDEN

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