History > 2006 > USA > Terrorism (V)

Editorial

A Crack in the Stone Wall

November 30, 2006
The New York Times

It was one of the more outrageous moments in the story of the Bush administration’s illegal domestic wiretapping. Almost a year ago, Congressional Democrats called for a review of the Justice Department’s role in the program. But the department investigators assigned to do the job were unable to proceed because the White House, at President Bush’s personal direction, refused to give them the necessary security clearance.

Now the president, for reasons we can’t help thinking might have something to do with this month’s elections, has changed his mind. The White House will give Justice Department inspectors the required clearance, and a review will go forward.

That’s all to the good, as long as the investigation is not intended to pre-empt any efforts by the new Democratic majority to conduct its own Congressional review of the wiretap program. The Justice Department inquiry will hardly do the full job.

The department’s inspector general, Glenn Fine, has already said that the question of whether the program was legal is beyond his jurisdiction. Instead, he will investigate whether department employees followed the rules governing the program — rules that were established in a secret executive order signed by the president in October 2001.

Whether or not Justice Department employees followed the rules they were given may have bearing on their individual performance evaluations, but it will tell us very little else. Since the rules Mr. Bush established under his secret order will presumably stay secret, the investigation will not even help us to understand just how far from established legal standards he strayed when he authorized the government to eavesdrop on Americans’ international calls and e-mail without a court-issued warrant.

The Justice Department inquiry also will do nothing to fix the biggest problem with Mr. Bush’s eavesdropping program, which is that — once again — he ignored existing law and instead tried to create a system outside the law, resting on his dangerously expansive claims of executive power.

If Mr. Bush had wanted to conduct the wiretapping within the law, he could have quite easily done so, using the Foreign Intelligence Surveillance Act. That law, written after the Watergate scandal and the eavesdropping abuses of the Vietnam era, created a special court to approve applications for domestic surveillance. The court operates in secret, and has rarely denied the authorities’ requests. Even in the post-9/11 era, it should have met the administration’s needs. And if there was a problem, Congress had shown itself ready and willing to amend the law.

Mr. Fine, who has proved himself willing to criticize administration operations before, could still provide an important — if limited — service. He says, for instance, that he will examine how information gleaned from the wiretaps was used to pursue criminal cases. That inquiry should be useful for those who have been wondering whether the enormous amount of information collected significantly helped antiterrorism efforts, or simply complicated them with a flood of unmanageable data.

The investigation might also help Congress understand whether FISA needs updating — something the administration has been loath to discuss as long as it has been able to end-run the court. Senator Dianne Feinstein, who has introduced a bill aimed at making it easy for the government to get quick court approval of wiretaps on those suspected of terrorism or spying, has already said that nothing she has heard in secret briefings suggests that anything the administration needed could not have been conducted under FISA.

The question of the wiretap program’s constitutionality is now making its way through the courts and should ultimately be decided by the Supreme Court. Congress should not be satisfied with Mr. Fine’s very limited investigation. It should mount its own independent inquiry into how the war on terror, and American civil liberties, are being affected by an eavesdropping program about which we have been told so little.

    A Crack in the Stone Wall, NYT, 30.11.2006, http://www.nytimes.com/2006/11/30/opinion/30thu1.html

U.S. Will Pay $2 Million to Lawyer Wrongly Jailed

November 30, 2006
The New York Times
By ERIC LICHTBLAU

WASHINGTON, Nov. 29 — The federal government agreed to pay $2 million Wednesday to an Oregon lawyer wrongly jailed in connection with the 2004 terrorist bombings in Madrid, and it issued a formal apology to him and his family.

The unusual settlement caps a two-and-a-half-year ordeal that saw the lawyer, Brandon Mayfield, go from being a suspected terrorist operative to a symbol, in the eyes of his supporters, of government overzealousness in the war on terrorism.

“The United States of America apologizes to Mr. Brandon Mayfield and his family for the suffering caused” by his mistaken arrest, the government’s apology began. It added that the Federal Bureau of Investigation, which erroneously linked him to the Madrid bombs through a fingerprinting mistake, had taken steps “to ensure that what happened to Mr. Mayfield and the Mayfield family does not happen again.”

At an emotional news conference in Portland announcing the settlement, Mr. Mayfield said he and his wife, an Egyptian immigrant, and their three children still suffered from the scars left by the government’s surveillance of him and his jailing for two weeks in May 2004.

“The horrific pain, torture and humiliation that this has caused myself and my family is hard to put into words,” said Mr. Mayfield, an American-born convert to Islam and a former lieutenant in the Army.

“The days, weeks and months following my arrest,” he said, “were some of the darkest we have had to endure. I personally was subject to lockdown, strip searches, sleep deprivation, unsanitary living conditions, shackles and chains, threats, physical pain and humiliation.”

Fingerprint examiners at the F.B.I. erroneously linked Mr. Mayfield to the terrorist bombings in Madrid through a mistaken identification of a print taken from a plastic bag containing detonator caps that was found at the scene of the bombings. The bombings, on March 11, 2004, killed 191 people and left 2,000 injured in the deadliest terrorist attack in Europe since World War II.

Despite doubts from Spanish officials about the validity of the fingerprint match, American officials began an aggressive high-level investigation into Mr. Mayfield in the weeks after the bombings. The fact that he had represented a terrorism defendant in a child-custody case in Portland spurred further interest in him. Using expanded surveillance powers under the USA Patriot Act, the government wiretapped his conversations, conducted secret searches of his home and his law office and jailed him for two weeks as a material witness in the case before a judge threw out the case against him.

The settlement includes an unusual condition that frees the government from future liability except in one important area: Mr. Mayfield is allowed to continue a lawsuit seeking to overturn parts of the Patriot Act as a violation of the Fourth Amendment protection against unreasonable search and seizure.

Several legal experts said they considered the settlement significant because of the public apology and the substantial payment.

“You almost never see something like this,” said Peter Neufeld, co-director of the Innocence Project, a legal clinic in New York City. “It’s extraordinary, but the harm caused him was extraordinary. What I really think it speaks to is just how clearly the U.S. government crossed the line when it went after Mayfield.”

Suzanne Spaulding, a former lawyer with the Central Intelligence Agency who specializes in national security law, said that the terms of the settlement allowing Mr. Mayfield to continue his lawsuit over the Patriot Act were also significant.

“You’ve got to think that the Justice Department did not want to make that concession,” she said. “That and the two million dollars are further evidence that they were vulnerable and that he clearly had some significant leverage in these negotiations.”

Justice Department officials said they were confident that the legal foundation of the Patriot Act, including the surveillance and search provisions challenged by Mr. Mayfield, would hold up in court.

Although the F.B.I. has acknowledged serious missteps in the case, an investigation by the Justice Department inspector general released this year concluded that the government did not misuse its expanded counterterrorism powers under the Patriot Act and that Mr. Mayfield’s Muslim faith was not the reason he was initially investigated. Still, Mr. Mayfield continued to assert Wednesday that he and his family were a target “because of our Muslim religion.”

“Our freedom of religion in this country is a sacred right,” he said, “and the exercise of one’s beliefs in a lawful manner should never be a factor in a government’s investigation of any citizen.”

In Washington, the settlement was applauded by Representative John Conyers Jr., the Michigan Democrat who is expected to become the chairman of the House Judiciary Committee in January.

“The Mayfield case cries out for checks and balances on what has been, at times, an overzealous pursuit of innocent Americans,” Mr. Conyers said. “I am heartened that Mr. Mayfield has received this small measure of justice.”

Brian Libby contributed reporting from Portland, Ore.

    U.S. Will Pay $2 Million to Lawyer Wrongly Jailed, NYT, 30.11.2006, http://www.nytimes.com/2006/11/30/us/30settle.html?hp&ex=1164949200&en=a51cc83cbc8d35c8&ei=5094&partner=homepage

Judge strikes down part of Bush anti-terror order

Tue Nov 28, 2006 9:18 PM ET
Reuters
By Dan Whitcomb

LOS ANGELES (Reuters) - A federal judge in Los Angeles, who previously struck down sections of the Patriot Act, has ruled that provisions of an anti-terrorism order issued by President George W. Bush after September 11 are unconstitutional.

U.S. District Judge Audrey Collins found that part of the law, signed by Bush on September 23, 2001 and used to freeze the assets of terrorist organizations, violated the Constitution because it put no apparent limit on the president's powers to place groups on that list.

Ruling in a lawsuit brought against the Treasury Department in 2005 by the Center for Constitutional Rights, Collins also threw out a portion of Bush's order which applied the law to those who associate with the designated organizations.

"This law gave the president unfettered authority to create blacklists, an authority president Bush then used to empower the Secretary of the Treasury to impose guilt by association," said David Cole of the Washington-based Center for Constitutional Rights.

"The court's decision confirms that even in fighting terror, unchecked executive authority and trampling on fundamental freedoms is not a permissible option," he said in a statement

The 45-page decision, made public on Monday, came in response to petitions by both sides to throw out the lawsuit and rule in their favor. The judge allowed to stand part of the order that would penalize those providing services to groups on the list.

The lawsuit was brought on behalf of five organizations, including the Liberation Tigers of Tamil Elam, which wants to create a separate state for the Tamil people in Sri Lanka, and Partiya Karkeran Kurdistan, which represents Kurds in Turkey.

Both groups had been designated by the United States as foreign terrorist organizations.

In 2004 Collins struck down a section of the Patriot Act that prohibited lawyers from providing expert advice to groups suspected of having terrorist links.

    Judge strikes down part of Bush anti-terror order, R, 28.11.2006, http://today.reuters.com/news/articlenews.aspx?type=politicsNews&storyID=2006-11-29T021821Z_01_N28295799_RTRUKOC_0_US-USA-JUDGE-BUSH.xml&WTmodLoc=NewsArt-C2-NextArticle-1

Ex-employee says FAA warned before 9/11

Updated 11/24/2006 12:18 AM ET
USA Today
By Catherine Rampell

From 1995 to 2001, Bogdan Dzakovic served as a team leader on the Federal Aviation Administration's Red Team. Set up by Congress to help the FAA think like terrorists, the elite squad tested airport security systems.

In the years leading up to the Sept. 11, 2001, terrorist attacks, Dzakovic says, the team was able to breach security about 90% of the time, sneaking bombs and submachine guns past airport screeners. Expensive new bomb detection machines consistently failed, he says.

The team repeatedly warned the FAA of the potential for security breaches and hijackings but was told to cover up its findings, Dzakovic says.

Eventually, the FAA began notifying airports in advance when the Red Team would be doing its undercover testing, Dzakovic says. He and other Red Team members approached the Department of Transportation's Office of the Inspector General, the General Accounting Office and members of Congress about the FAA's alleged misconduct regarding the Red Team's aviation security tests. No one did anything, he says.

Then came 9/11.

"Immediately (after 9/11), numerous government officials from FAA as well as other government agencies made defensive statements such as, 'How could we have known this was going to happen?' " Dzakovic testified later before the 9/11 Commission. "The truth is, they did know."

About a month after 9/11, he filed a complaint with the Office of the Special Counsel, the government agency that investigates whistle-blower cases. It alleged that the FAA had covered up Red Team findings. A subsequent Department of Transportation Inspector General's report, ordered by the OSC in response to Dzakovic's complaint, concluded that the "Red Team program was grossly mismanaged and that the result was a serious compromise of public safety."

After filing his complaint, Dzakovic was removed from his Red Team leadership position. He now works for the Transportation Security Administration, which has responsibility for airport security. His primary assignments include tasks such as hole-punching, updating agency phonebooks and "thumb-twiddling," he says. At least he hasn't received a pay cut, he says. He makes about $110,000 a year for what he describes as "entry-level idiot work."

TSA spokesman Darrin Kayser would not comment on Dzakovic's allegations that he was retaliated against for being a whistle-blower. He said in an e-mail, "While TSA transitioned functions out of FAA, many employees were doing work outside of their pre-9/11 duties. Once TSA was established, Mr. Dzakovic did find a productive position within the agency and has been a valued contributor in our efforts to provide the highest level of security in all modes of transportation."

    Ex-employee says FAA warned before 9/11, UT, 24.11.2006, http://www.usatoday.com/news/washington/2006-11-23-whistle-blower-faa_x.htm

Senate Democrats Revive Demand for Classified Data

November 24, 2006
The New York Times
By DAVID JOHNSTON

WASHINGTON, Nov. 23 — Seeking information about detention of terrorism suspects, abuse of detainees and government secrecy, Democrats on the Senate Judiciary Committee are reviving dozens of demands for classified documents that until now have been rebuffed or ignored by the Justice Department and other agencies.

“I expect real answers, or we’ll have testimony under oath until we get them,” Senator Patrick J. Leahy of Vermont, who will head the committee beginning in January, said in an interview this week. “We’re entitled to know these answers, and in many instances we don’t get them because people are hiding their mistakes. And that’s no excuse.”

Mr. Leahy, who has said little about his plans for the committee, expressed hope for greater cooperation from the Bush administration, which he described as having been “obsessively secretive.” His aides have identified more than 65 requests he has made to the Justice Department or other agencies in recent years that have been rejected or permitted to languish without reply.

Now that they are about to control Congress, what he and other Democrats regard as a record of unresponsiveness has energized their renewal of longstanding requests for information about some of the administration’s most hidden and fiercely debated operations. In addition, other such requests by committee members deal with subjects like voter fraud, immigration and background inquiries on Supreme Court nominees.

With little more than two weeks gone since the elections that gave his party a majority in both houses, Mr. Leahy has already begun pressing the Justice Department for greater openness. In a letter last Friday, he asked Attorney General Alberto R. Gonzales to release two documents whose existence the Central Intelligence Agency, in response to a suit by the American Civil Liberties Union, recently acknowledged for the first time. Although their details are not known, the documents appear to have provided a legal basis for the agency’s detention and harsh interrogation of high-level terrorism suspects.

One document is a directive, signed by President Bush shortly after the September 2001 attacks, that granted the C.I.A. authority to set up detention centers outside the United States and outlined allowable interrogation procedures.

The second is a memorandum, written by the Office of Legal Counsel at the Justice Department in 2002, that is thought to have given the C.I.A. specific legal advice about interrogation methods that would not violate a federal statute on torture.

With Democrats in control, it will be harder for executive branch agencies to sidestep requests for documents. Behind each request will be the possibility of Democrats’ voting to issue subpoenas that would compel documents or testimony, although Senate aides said they hoped to avoid conflict.

So far, few signs have emerged that the administration is preparing to be more responsive, even in the absence of a Republican majority’s protection. Mr. Bush has promised to work with Democrats, but there appears to be little change in the reluctance of the Justice Department’s officials to start opening its files to Mr. Leahy’s committee.

“The department will continue to work closely with the Congress as they exercise their oversight functions, and we will appropriately respond to all requests in the spirit of that longstanding relationship,” said a department spokesman, Brian Roehrkasse. “When making those decisions, it is vital to protect national security information, particularly when they relate to sensitive intelligence programs that are the subject of oversight by the Intelligence Committees. We also must give appropriate weight to the confidentiality of internal executive branch deliberations.”

C.I.A. lawyers have sought in the past to avoid any discussion of whether the agency has documents related to its detention and interrogation of leading members of Al Qaeda in secret prisons overseas. The lawyers have said national security would be endangered if the agency was forced to tell in any way of its involvement in such operations.

But in September, the president said 14 high-level terrorism suspects had been transferred from secret locations abroad to the detention center at Guantánamo Bay, Cuba. That effectively confirmed the existence of the prisons, as long reported.

The two documents requested by Mr. Leahy in his letter of last Friday are among what Congressional aides maintain are perhaps hundreds, crucial to shaping the government’s counterterrorism policies, that have never been released or publicly acknowledged.

Justice Department officials have long said they will resist efforts to require disclosure of classified documents that provide legal advice to other agencies. But in the interview this week, Mr. Leahy signaled that he expected the department to provide a fuller documentary history on issues like detention.

The senator’s letter to Mr. Gonzales requested “all directives, memoranda, and/or orders including any and all attachments to such documents, regarding C.I.A. interrogation methods or policies for the treatment of detainees.” It also sought an index of all documents related to Justice Department inquiries into detainee abuse by “U.S. military or civilian personnel in Guantánamo Bay, Abu Ghraib prison or elsewhere.”

It is not known whether the material sought would clarify the origin and evolution of policies on issues like national security wiretaps, detention and interrogation. But there are wide gaps in what is publicly known about these policies, who authorized them and what exactly has been authorized by administration directives and legal advisories.

“The American people,” Mr. Leahy’s letter said, “deserve to have detailed and accurate information about the role of the Bush administration in developing the interrogation policies and practices that have engendered such deep criticism around the world.”

    Senate Democrats Revive Demand for Classified Data, NYT, 24.11.2006, http://www.nytimes.com/2006/11/24/washington/24documents.html?hp&ex=1164430800&en=c1ad79d641e8e036&ei=5094&partner=homepage

Gonzales blasts surveillance critics

Updated 11/19/2006 3:43 AM ET
AP
USA Today

AIR FORCE ACADEMY, Colo. (AP) — Attorney General Alberto Gonzales contended Saturday that some critics of the Bush administration's warrantless surveillance program were defining freedom in a way that poses a "grave threat" to U.S. security.

Gonzales was the second administration official in two days to attack a federal judge's ruling last August that the program was unconstitutional. Vice President Dick Cheney on Friday called the ruling "an indefensible act of judicial overreaching."

Gonzales told about 400 cadets from the Air Force Academy's political science and law classes that some see the program as on the verge of stifling freedom rather that protecting the country.

"But this view is shortsighted," he said. "Its definition of freedom — one utterly divorced from civic responsibility — is superficial and is itself a grave threat to the liberty and security of the American people."

Gonzales and Cheney's attacks on the court order came as the administration was urging the lame-duck Congress to approve legislation authorizing the warrantless surveillance. The bill's chances are in doubt, however, because of Democratic opposition in the Senate, where 60 votes are required to end debate and vote.

At a news conference, Gonzales would not speculate how the administration would react if Congress did not authorize warrantless surveillance.

"We're optimistic because of the importance of this program, the success of the program, the stated commitment of the Democratic leadership to work with us in protection of America, and that we're going to have a good discussion and dialogue about the program," he said.

"We believe the president has the authority under the authorization of military force and inherent authority of the constitution to engage in this sort of program, but we want to supplement that authority," he said.

The administration has maintained that its warrantless surveillance program focuses on international calls involving suspected terrorists, and dismisses charges that it is illegal because it bypasses federal law requiring a judge-issued warrant for such eavesdropping.

"It's absolutely essential that we maintain the tool," he told reporters. "It's been very, very important in protecting America, and we look forward to working with Congress to find a way that we can supplement the president's authority, and continue to maintain this as a valuable tool for the American people."

In August, the program was struck down by U.S. District Judge Anna Diggs Taylor in Detroit, who said it violated the rights to free speech and privacy and the constitutional separation of powers. She was the first judge to rule on the legality of the program, which is operated by the National Security Agency.

The government has appealed. Bush and other administration officials argue that the program is legal under the president's constitutional powers and has saved lives by helping to disrupt terrorist plots.

Speaking to the cadets, Gonzales dismissed as "myth" the charge that civil liberties were being sacrificed in the fight against terrorism. He defended the Patriot Act and the handling of detainees at the U.S. military base at Guantanamo Bay, Cuba.

"To achieve victory at the cost of eroding civil liberties would not really be a victory. We cannot change the core identity of our nation and claim success," said Gonzales, an Air Force veteran who attended the Air Force Academy from 1975 to 1977.

    Gonzales blasts surveillance critics, UT, 19.11.2006, http://www.usatoday.com/news/washington/2006-11-18-gonzales_x.htm

Immigrants in limbo 5 years after 9/11

Posted 11/18/2006 10:39 PM ET
By Cristian Salazar, Associated Press
USA Today

NEW YORK — In a small meeting room with a view of ground zero, 40 stories below, the woman from Ecuador sat with her attorney, holding a crumpled white napkin that she used to dab her eyes.

She is a Sept. 11 widow. Her husband worked at the Windows on the World restaurant and died that day.

As an illegal immigrant — one of about 25 identified as having lost a family member when the World Trade Center came crashing down — she could face deportation at any time. So could her 17-year-old son, whom she implores to carry around his father's death certificate, in case someone asks him why he is in the U.S.

"I can't get a driver's license. I can't go to apply for a job. I can't work. I can't study. I can't fly. I can't do anything," the 38-year-old woman said in accented English this week as she described how her life in the U.S. is constrained by her illegal status. She spoke on condition that her name not be used, for fear she might be deported.

A New York City group is urging Congress to pass legislation that would grant permanent residence status to the illegal immigrants who lost family members on Sept. 11.

The bill, called the September 11th Family Humanitarian Relief and Patriotism Act, is attached as an amendment to the immigration reform package that is tied up in the lame-duck Congress.

Bill Fugazy Jr., vice chair of the National Ethnic Coalition of Organizations, said the bill should be pulled out of the immigration package and given a vote on its own merits.

"It's an easy thing for Congress to do," he said, pointing out that the bill has bipartisan support. "Give them green cards so they have status here, so they can buy the homes that they would want to, and so they are not in the shadows of society."

Eleven illegal immigrant victims were identified under the federal Sept. 11 Victim Compensation Fund, which gave financial support to survivors of the attack and paid an average of $2.1 million to the families.

Fugazy's organization has launched a letter-writing campaign directed at the chairmen of both congressional committees charged with immigration issues, Sen. Arlen Specter, R-Pa., and Rep. James Sensenbrenner, R-Wis.

E-mails and voice messages left at their Washington offices Saturday were not immediately returned.

"We are building marble monuments for the dead. Can't we make room for their families?" said attorney Debra Brown Steinberg, who helped write the bill and has represented five undocumented victims' families.

The legislation could face some opposition.

Jack Martin, a spokesman for the Federation for American Immigration Reform, said the families of undocumented immigrant victims of Sept. 11 are legitimate subjects of compassion, but he said they should not be treated any differently than those who lost a breadwinner as a result of any other accident.

"Those people have come into the country in violation of the laws," Martin said. "We don't think that the fact that they have suffered a loss of this type should be grounds for awarding them the permanent residence they would have tried to maintain illegally in this country, without that event having happened."

Martin said his organization has been focused on the overall immigration reform package rather than the amendment, but if it were to become a stand-alone bill the group would register its concern with lawmakers.

However, with only a few weeks left in the current Congress, even if the measure became a stand-alone bill it would not be taken up until the next Congress meets in the spring.

If the bill doesn't pass, the Ecuadorean widow and others will have to decide whether to return home or to continue to live here in fear of being deported. "This country became part of my life," she said.

The woman, whose husband worked at the Trade Center's Windows on the World restaurant, said she is fulfilling some of the dreams that she and her husband had for their family. Her son will graduate from a private high school next spring and is applying to colleges. They have their own apartment.

"But we are missing somebody," she said. "It's just the two of us. My husband is not with us."

    Immigrants in limbo 5 years after 9/11, UT, 18.11.2006, http://www.usatoday.com/news/nation/2006-11-18-sept-11-immigrants_x.htm

Coordinated Rebuilding Efforts Speed Progress at Ground Zero

November 16, 2006
The New York Times
By DAVID W. DUNLAP

The first structural tendrils of the Freedom Tower have emerged, reedlike, from ground zero.

Seven stories below street level and largely out of sight, an array of steel reinforcing rods — taller than the workers swarming around them — now define what will be the southeast corner of the four-foot-thick concrete wall at the tower’s core. Tomorrow, concrete is to be poured at the Freedom Tower core and at the base of the adjoining PATH terminal and transportation hub.

Nearby, deep sockets in the faceted gray bedrock await the concrete and steel footings for columns from which the tower’s perimeter walls will rise. Workers are to start setting these columns next month.

Along Church and Liberty Streets yesterday, a concrete cutter sliced through the pavement to prepare a trench for the slurry wall that will form a 70-foot-deep foundation, or “bathtub,” on the east side of the World Trade Center site. The first sections of that wall are to be poured in the next few weeks.

“In the last seven months at the site, more has been done than in the past several years,” said Anthony R. Coscia, chairman of the Port Authority of New York and New Jersey, which owns the site.

He has a vested interest in saying so. In that same period, the authority has effectively reclaimed control over all construction at the site.

“Progress at the site since April may have had something to do with there being clarity of direction,” Mr. Coscia said in an interview yesterday, reiterating a point he had made at a meeting with leaders of the construction industry, sponsored by the New York Building Congress.

Richard T. Anderson, president of the group, said afterward that he was reassured that so much construction responsibility at ground zero had fallen to the Port Authority.

“The original judgment that it couldn’t be left to the authority alone was probably correct,” he said. “We needed the Lower Manhattan Development Corporation. We needed the extensive public outreach. Now that we’ve got so much consensus, it’s time for one of the best public building organizations to do its job.”

Within the 70-foot-deep west bathtub, projects like the Freedom Tower, the memorial museum and the transportation hub will abut and overlap one another from one level to the next. That puts a premium on coordination. “This is world’s largest three-dimensional jigsaw puzzle,” said Kenneth J. Ringler Jr., the executive director of the authority.

Construction is not expected to be interrupted by the search for human remains around the edges of the site, prompted by the discovery last month of bones and bone fragments in an abandoned Consolidated Edison manhole. To date, 210 remains have been found in that manhole and two others nearby.

Yesterday, Deputy Mayor Edward Skyler said exploratory excavations would begin in December on a service road that parallels West Street, on a section of Liberty Street and on a block between Liberty and Cedar Streets where St. Nicholas Greek Orthodox Church stood until Sept. 11, 2001. Material from these excavations will be sifted and examined in Brooklyn by forensic anthropologists working for the city’s chief medical examiner.

This could take until the end of next summer, Mr. Skyler said in a memorandum to Mayor Michael R. Bloomberg.

From next month until spring, material will be removed from hundreds of manholes, service boxes and vaults within one or two blocks of the site. This will also be sifted by the city’s forensic anthropologists.

Mr. Skyler said a search would begin this week on the rooftop of the Millenium Hilton Hotel, across Church Street from ground zero. That is expected to last about two weeks, after which the rooftop of 1 Liberty Plaza, two blocks south, will be searched.

The interiors and exteriors of Fiterman Hall of the Borough of Manhattan Community College, an abandoned structure one block north of the site, are to be searched from January through May. The medical examiner will also assess 130 Cedar Street, Mr. Skyler said.

Since September 2005, 760 human remains have been found at the former Deutsche Bank building across Liberty Street from ground zero. That search will continue through February, Mr. Skyler said.

    Coordinated Rebuilding Efforts Speed Progress at Ground Zero, NYT, 16.11.2006, http://www.nytimes.com/2006/11/16/nyregion/16rebuild.html

Warrantless Wiretaps Unlikely to Be OK'd

November 11, 2006
By THE ASSOCIATED PRESS
Filed at 5:19 a.m. ET
The New York Times

WASHINGTON (AP) -- Legislation aimed at President Bush's once-secret program for wiretapping U.S.-foreign phone calls and computer traffic of suspected terrorists without warrants shows all the signs of not moving ahead, notwithstanding President Bush's request this week that a lame-duck Congress give it to him.

Senate Democrats, emboldened by Election Day wins that put them in control of Congress as of January, say they would rather wait until next year to look at the issue. ''I can't say that we won't do it, but there's no guarantee that we're going spend a lot of time on controversial measures,'' Democratic Whip Richard Durbin of Illinois said Thursday.

In Senate parlance, that means no.

Republicans for months have known that no bill accomplishing Bush's goal could get filibuster-proof support from 60 senators. Sealing off any hope was what Democratic leader Harry Reid put on his lame-duck to-do list. The warrantless domestic surveillance bill was conspicuous in its absence.

As for next year, Bush should not expect Democrats to allow such legislation to pass without language establishing considerable congressional oversight of any expansion of warrantless wiretaps.

''We have been asked to make sweeping and fundamental changes in law for reasons that we do not know and in order to legalize secret, unlawful actions that the administration has refused to fully divulge,'' said Sen. Patrick Leahy of Vermont, the next Judiciary Committee chairman. ''If legislation is needed for judicial review, then we should write that legislation together, in a bipartisan and thoughtful way.''

The Bush administration has a backup plan. In speeches over the next few weeks, the Justice Department will launch a new campaign for the legislation by casting the choice as one between supporting the program or dropping it altogether -- and appearing soft on al-Qaida.

Attorney General Alberto Gonzales will make the eavesdropping program the focus of a Nov. 18 speech at the U.S. Air Force Academy. Kenneth L. Wainstein, assistant attorney general for the national security, will make a similar pitch Wednesday to the American Bar Association.

Leahy said that monitoring communications of suspected terrorists is essential but that ''it needs to be done lawfully and with adequate checks and balances to prevent abuses of Americans' rights and Americans' privacy.''

After the Sept. 11, 2001, terrorist attacks, Bush ordered the National Security Agency to monitor communications potentially related to al-Qaida between people in the U.S. and those overseas. He bypassed normal requirements for court approval of such eavesdropping, and the program came under harsh criticism after it was disclosed last December by The New York Times.

Democrats and Republicans on the intelligence and judiciary committees spent much of the year trying to find out details from the administration, to little avail. Much of the information is classified, and the White House has insisted that revealing it would mean compromising the war on terrorism.

The House passed a bill in September to allow warrantless wiretaps under certain restrictions. House and Senate intelligence committees and congressional leaders would have to be notified, the president would have to believe that a terrorist attack is imminent, and certification would have to be renewed every 90 days.

A Republican measure in the Senate favored by the administration would require the Justice Department to report twice a year to the House and Senate intelligence committees the number and kind of any such operations. It would permit the surveillance to continue for up to one year without a warrant.

------

The House bill is H.R. 5825; the Senate bill is S. 3931.

    Warrantless Wiretaps Unlikely to Be OK'd, NYT, 11.11.2006, http://www.nytimes.com/aponline/us/AP-Warrantless-Wiretaps.html

Officials See Qaeda Trials Using New Law in 2007

November 3, 2006
The New York Times
By NEIL A. LEWIS

WASHINGTON, Nov. 2 — The Pentagon expects to begin conducting the first war crimes trials at Guantánamo Bay, Cuba, under the new military commission law by summer, senior military officials have said.

But the trials will not involve any of 14 senior Qaeda operatives recently sent to Guantánamo from secret C.I.A. custody, the officials added. Instead, military prosecutors are planning to roll out the new system by trying some of the 10 people previously charged with lesser crimes whose earlier trials were aborted when the Supreme Court struck down the previous system of military commissions as unlawful.

Prosecutors have recently begun reviewing the records in the cases of the more important prisoners, including Khalid Shaikh Mohammed, said to have been the chief planner of the Sept. 11, 2001, attacks.

The chief prosecutor, Col. Morris D. Davis of the Air Force, said in an interview that those cases would be “huge and complex” and would involve a team of Justice Department lawyers as well as F.B.I. agents.

Colonel Davis would not speculate on when those cases would be ready for trial.

Other Pentagon and Justice Department officials said it could be well into 2008, at the earliest, before the men believed to have been the high command structure of Al Qaeda sat in the dock at Guantánamo, where they will almost certainly face the death penalty.

The anticipated dates for the resumption of the trials at Guantánamo, the first war crimes trials conducted by the United States since the end of World War II, is far slower than the pace suggested by President Bush and many who supported the measure that Congress approved to authorize the new proceedings.

Officials say no trials can proceed — indeed, no charges will be issued — until the Office of Military Commissions in the Pentagon produces a new operations manual for war crimes trials.

The manual will list the elements the government needs to prove to convict a detainee for each of the possible crimes to be charged. The trials of the senior Qaeda figures may evoke images similar to those depicted in the photographs of the Nuremberg tribunals, with defendants arrayed alongside one another in the courtroom wearing headphones for the translation of the proceedings.

Officials said some Guantánamo defendants would be tried as a group facing the same wide-ranging conspiracy charges.

Pentagon planners have been discussing building a larger courthouse at Guantánamo with a new courtroom large enough for a trial with multiple defendants. The new building would replace the current courtroom, a converted dental clinic.

Brig. Gen. Thomas L. Hemingway, the Air Force officer who is legal adviser for the commissions, said recently that he expected the new operations manual to be completed by Dec. 31.

At a recent conference on military commissions at the George Washington University Law School, General Hemingway said it seemed more sensible to begin using the manual and the new law first for some cases in the pipeline.

The Pentagon had been criticized for the first round of hearings in which many of the procedures appeared to be made up by military judges as they went along. The new manual of procedures is aimed at eliminating the problem.

Colonel Davis, the chief prosecutor, said although his office would be required to draft a new set of charges for defendants whose trials had started, their cases would be the easiest.

“Even though we’ll be starting over,” he said, “we won’t be starting over from scratch.”

As for the high-level prisoners, the colonel said, “We will be starting just about from scratch.”

He added that some preliminary work had been conducted and that some teams had been assigned to individual defendants.

Outside the military, a considerable debate is occurring on any decision to proceed slowly with prisoners like Mr. Mohammed.

Mary Jo White, the former United States attorney in Manhattan who has successfully prosecuted terrorism cases in civilian courts, said she hoped that the government was aware of how much the nation’s reputation was at stake and how much it suffered from the flawed first attempt at military tribunals. “The presumption is against it being a fair process, in part because of what went on before,” Ms. White said in an interview. “You can get justice out of these commissions, but now we’ve got a lot to prove.”

She said that the best way would be to “finally bring the heavy-duty players to justice, those responsible for 9/11,” and that Mr. Mohammed “should be at the top of the list.”

Senator Lindsey R. Graham, the South Carolina Republican who is an expert on military law and was a pivotal player in reaching a compromise on the law, said in an interview this week that he understood why the military might start with lower-level prosecutions.

But Mr. Graham warned that because the trials were explicitly for war crimes, “we should be sparing in who we call a war criminal.” He said the defendants tried under the law should be those “engaged in command and control,” or the category of war criminal would be watered down.

Of the 10 previously charged defendants, none are capital cases, and the most famous, Salim Ahmed Hamdan, is generally known as Osama bin Laden’s driver, although the military points out that he is charged with having a more active role.

Seven of the 10 are charged with conspiracy counts. Just Omar Khadr is charged with murder, accused of killing two American soldiers with a hand grenade. Because Mr. Khadr was 15 at the time, prosecutors are not seeking the death penalty.

In contrast, Colonel Davis said, Mr. Mohammed could, in theory, be charged with the murders of more than 2,700 people on Sept. 11.

“He is liable for the actions he set in motion,” Colonel Davis said.

One of the most vexing issues in the new procedures involves rules for evidence obtained through coercion or torture. The law prohibits evidence obtained from torture, but generally allows the trial judge to decide in other cases if it is useful.

Col. Dwight H. Sullivan of the Marines, the chief defense lawyer for the commissions, said that those provisions might be well intentioned but that enforcing them was almost certain to be impossible.

“If you don’t have any meaningful prohibition against the admission of hearsay evidence,” Colonel Sullivan said, “then evidence obtained by torture can be laundered.”

“You need to peel back the layers,” he added, but that effort will surely run up against the difficulties of dealing with classified information.

The defendants will not meet Colonel Sullivan or his assistant prosecutors until after they have been charged, which might not be until late next year.

    Officials See Qaeda Trials Using New Law in 2007, NYT, 3.11.2006, http://www.nytimes.com/2006/11/03/washington/03gitmo.html?hp&ex=1162616400&en=c02145c90b3d778c&ei=5094&partner=homepage

Ex - Judges: Detainee Law Unconstitutional

November 2, 2006
By THE ASSOCIATED PRESS
Filed at 2:39 a.m. ET
The New York Times

WASHINGTON (AP) -- Seven retired federal judges from both political parties have joined dozens of Guantanamo Bay detainees in urging an appeals court to declare key parts of President Bush's new anti-terrorism law unconstitutional.

The judges, in a rare court filing Wednesday, said stripping courts of the right to question how the military handles terrorism suspects ''challenges the integrity of our judicial system'' and effectively sanctions the use of torture.

Bush signed a law this month allowing the military to arrest people overseas and detain them indefinitely without allowing them to use the U.S. courts to contest their detention. Bush hailed the law, which established a system of military trials, as a crucial tool in the war on terrorism and said it would allow prosecution of several high-level terror suspects.

For detainees challenging their imprisonment, the law locks them out of the civilian court system. Dozens of detainees argued Wednesday that the law is unconstitutional, and the retired judges echoed that in their own papers filed with the U.S. Court of Appeals for the District of Columbia Circuit.

''We believe that compelling this court to sanction executive detentions based on evidence that has been condemned in the American legal system since our nation's founding erodes the vital role of the judiciary in safeguarding the rule of law,'' the judges wrote.

The brief was filed by retired Judges Shirley M. Hufstedler, Nathaniel R. Jones, George N. Leighton, Timothy K. Lewis, Frank J. McGarr, Abner J. Mikva and Patricia M. Wald. Three of the judges -- Leighton, Lewis and McGarr -- were appointed by Republican presidents.

Though Congress banned the use of torture in the military commission law, the judges said military documents revealed evidence of torture that officials didn't properly address.

In one instance cited in court documents, a man who denied receiving artillery training said an interrogator beat him until he bled from his head.

''I was in a lot of pain, so I said I had the training,'' the man said, according to a transcript cited in court documents. ''At that point, if he had asked me if I was Usama Bin Ladin, I would have said yes.''

Without the court system, the judges said, there is no check on such behavior.

In their own court filings, lawyers for the detainees argued that the law is unconstitutional because it prevents people from challenging their detention in U.S. courts -- a right that attorneys said the framers of the Constitution never would have allowed to be stripped.

''Persons imprisoned without charge must retain the right to obtain a court inquiry into the factual and legal bases for their imprisonment,'' attorneys wrote.

This argument echoes a Supreme Court ruling in June in which the justices ruled that the Bush administration's system for trying enemy combatants violated U.S. and international law.

Within weeks, the president persuaded Congress to pass a law setting up military commissions and barring detainees from using the civilian court system. Shortly after the law was signed, the Justice Department told hundreds of detainees that their cases in the U.S. courts had been rendered moot.

Supporters of the law compare military detainees to prisoners of war, who don't normally have access to civilian courts. They say wartime decisions should be left up to the president, who acts as commander in chief, not the courts.

The Justice Department had no comment on the briefs Wednesday and has until Nov. 13 to respond in court.

A Pentagon spokesman, Navy Cmdr. Jeffrey D. Gordon, defended the new law and said that terror suspects were being given their day in court.

''As a responsible democracy, we have an obligation to protect our citizens and those of our allies,'' Gordon said. ''Holding unlawful enemy combatants captured during the war on terror is essential to preventing their return to the battlefield while collecting valuable intelligence in order to avert terror attacks like those seen on 9/11 and in cities around the world.''

    Ex - Judges: Detainee Law Unconstitutional, 2.11.2006, http://www.nytimes.com/aponline/us/AP-Detainees-Lawsuits.html