How the Pentagon considered extending its controversial 'enemy combatant' label in a bid to prove links between Iraq and Al Qaeda
WEB EXCLUSIVE Newsweek Updated: 6:49 p.m. ET April 21, 2004
April 21 - In the run-up to the war on Iraq, a top Pentagon official pushed a highly unorthodox plan to deploy one of the U.S. government’s most controversial legal tactics—the designation of suspected terrorists as “enemy combatants”—in hopes of finding new evidence of alleged connections between Saddam Hussein’s regime and Al Qaeda, NEWSWEEK has learned.
The proposal, pressed by Deputy Secretary of Defense Paul Wolfowitz, called for President George W. Bush to declare Ramzi Yousef, the convicted mastermind of the 1993 World Trade Center bombing, as an enemy combatant in the war on terror. This would have allowed Yousef to be transferred from his cell at the U.S. Bureau of Prison’s “supermax” penitentiary in Florence, Colo., to a U.S. military installation.
Wolfowitz contended that U.S. military interrogators—unencumbered by the presence of Yousef’s defense lawyer—might be able to get the inmate to confess what he and the lawyer have steadfastly denied: that he was actually an Iraqi intelligence agent dispatched by Saddam to blow up the World Trade Center in 1993 as revenge for the first Persian Gulf War.
The previously unreported Wolfowitz proposal—and the high-level consideration it got within the Justice Department—sheds new light on the Bush administration’s willingness to expand its use of enemy-combatant declarations inside the United States beyond the three alleged terrorists, two of them American citizens, who have already been designated by the White House.
It also underscores the persistence with which Wolfowitz and his allies within the Pentagon pursued efforts to uncover evidence of links between Saddam’s government and Al Qaeda—a key, and still disputed, element in the Bush administration’s case for war. One principal reason for that persistence, sources say, was Wolfowitz's fascination with the conspiracy theories of academic Laurie Mylroie, who has argued in a series of books and magazine articles that Saddam Hussein was responsible for the 1993 World Trade Center bombing, along with virtually every other terrorist strike in the years since that have been commonly attributed to Al Qaeda.
In his new book, “Plan of Attack,” Washington Post reporter Bob Woodward writes that at a Camp David meeting shortly after September 11, 2001, Wolfowitz, who was pushing for an immediate invasion of Iraq, “estimated that there was a 10 to 50 percent chance Saddam was involved in the 9/11 attacks—an odd conclusion that reflected deep suspicion but no real evidence.”
A spokesman for Wolfowitz had no comment. An administration official familiar with the deputy Defense secretary's position told NEWSWEEK today that Wolfowitz "simply has asked repeatedly over the past two and a half years whether there were ways to use our custody of Ramzi Yousef to get information on his uncle, Khalid Shaikh Mohammed, mastermind of the September 11 attacks and his two brothers, his cousins and other family members and friends—all of whom are known to be terrorists."
President Bush has since acknowledged there is no evidence of any Iraqi involvement in September 11. But administration officials, including Vice President Dick Cheney, continue to assert that there is abundant evidence of past Iraqi support for terrorism, including possibly the 1993 World Trade Center bombing.
The Wolfowitz proposal involving Yousef was repeatedly pressed on top Justice Department officials, including Attorney General John Ashcroft and then Deputy Attorney General Larry Thompson, in 2002 and 2003, law-enforcement officials tell NEWSWEEK. At one point, the high-level discussions apparently prompted a top Bureau of Prisons official to make an unauthorized entry to Yousef’s cell at Florence to sound out his willingness to talk—a move that prompted strong protests to the Justice Department from the bomber’s lawyer, according to department officials and correspondence between the lawyer and Justice officials. (The official, G. L. Hershberger, a regional director of the Bureau of Prisons, told NEWSWEEK he could not comment on his dealings with Yousef. In a Feb. 10, 2003, letter to Yousef's lawyer, he acknowledged he had visited Yousef "in a manner consistent with sound correctional management," but stated: "I have never threatened to change your client's conditions of confinement based on whether he provides information to the United States.")
The plan also stirred strong opposition from the FBI, whose top officials argued that the proposal—like other Wolfowitz-inspired efforts to prove links between Iraq and Al Qaeda terrorism—were a waste of time and effort, sources said. FBI officials, led by Pasquale J. Damuro, then the FBI's chief of counterterrorism and now assistant director in charge of the New York field office, contended the bureau had already exhaustively investigated the theory that Yousef was working for Iraqi intelligence—and found no evidence to support it. “We’ve already covered this,” Damuro said at one high-level Justice meeting. (A spokesman for Damuro said he did not recall making the comment.)
Still, the plan was forwarded to the Justice Department’s Office of Legal Counsel, which under White House-directed procedures, is supposed to review candidates for enemy-combatant status, sources said. The office quickly concluded that Yousef didn’t meet the standards and never forwarded a proposed designation to the White House. “We talked it to death,” said one lawyer involved in the discussions.
President Bush’s authority to declare U.S. citizens enemy combatants in the war on terrorism is due to be argued next week when the Supreme Court hears oral arguments in separate cases involving Yaser Hamdi, a former Taliban fighter captured in Afghanistan, and Jose Padilla, a former Chicago gang member accused of plotting to set off a radiological “dirty bomb” in the nation’s capital.
As reported in this week’s NEWSWEEK, the concept of enemy combatants has been the subject of intense, sometimes acrimonious debates within the administration. Once an enemy-combatant designation is made, the detainee is transferred from the U.S. courts to the custody of the U.S. military and is stripped of virtually all constitutional protections, including the right to counsel and the right to trial. The administration has argued that, because the United States is “at war” with Al Qaeda and its allies, enemy combatants can be detained indefinitely—until the end of the conflict.
In addition to Hamdi and Padilla, the White House also last year designated a third man—Ali Al-Marri, a former Bradley University student from Qatar who was living in Peoria, Ill.—as an enemy combatant. But some officials within the administration, led by Cheney, have pushed for more designations, prompting vigorous opposition from Justice Department officials who have warned that the extraordinary tactic might not pass muster in the Supreme Court.
Wolfowitz’s interest in the procedure, sources said, stemmed from his longstanding interest in the theories of Mylroie, a controversial academic and former fellow of the conservative American Enterprise Institute. Her 2001 book, "Study of Revenge: The First World Trade Center Attack and Saddam Hussen's War against America," cites Wolfowitz in the acknowledgements for providing "crucial support" for the project. Others who merit expressions of gratitude in Myleroie's acknowledgements are three top aides to Cheney—chief of staff Lewis (Scooter) Libby and foreign-policy advisors John Hannah and David Wurmser—as well as Undersecretary of State John Bolton and Francis Brooke, a principal Washington lobbyist for the Iraqi National Congress.
At the heart of Mylroie’s theory is her contention that, after the invasion of Kuwait in 1990, Iraqi intelligence agents arranged for Yousef to assume the identity of Abdul Basit, a Pakistani man who was then living in Kuwait, and dispatched him to the United States to commit acts of terrorism.
Wolfowitz’s interest in proving Mylroie’s "switched identity" theory got him to persuade the Justice Department shortly after September 11 to provide a government jet and FBI staff support for a secret mission to England by former CIA director James Woolsey. The idea behind the mission was to check fingerprints on file in Swansea, England, where Basit had once gone to school, and compare them to the fingerprints of the Ramzi Yousef in prison.
Mylroie had postulated that Basit and Yousef were actually two different people and the fingerprints therefore wouldn’t match. The FBI instead has long contended that Basit and Yousef are one and the same; that Yousef is a Pakistani (and the nephew of the September 11 mastermind Khalid Shaikh Mohammed) and not Iraqi.
Justice Department officials tell NEWSWEEK that the results of the Woolsey mission were exactly what the FBI had predicted: that the fingerprints were in fact identical. After the match was made, FBI officials assumed at the time that it had put the Mylroie theory to rest.
But Wolfowitz, who remained immersed in details of the 1993 World Trade Center case, continued to push his attempts to prove links between Yousef and Iraqi intelligence. This has led to his proposal to have the terrorist designated an enemy combatant. His determination was emboldened by the unyielding stand of Yousef’s defense lawyer, Bernard Kleinman, who strongly objected whenever federal officials tried to question his client without his being present. The defense lawyer couldn’t interfere if Yousef could be transferred to military custody and questioned by military interrogators, Wolfowitz argued.
“They didn’t give up,” said one senior Justice official about Wolfowitz and his allies. “They are very determined.”
The main problem with the Wolfowitz proposal, the official said, is that Yousef didn’t meet any of the criteria the White House had laid out for designating enemy combatants. He was captured in Pakistan in 1995—long before September 11, 2001, which the administration has argued was the triggering event in the war against Al Qaeda. Moreover, because Yousef was being housed in the most secure federal prison in the country under the most restrictive conditions (he is in solitary confinement and denied access to television and current periodicals), he could hardly be described as an ongoing threat to the safety of Americans.
Kleinman, Yousef's lawyer, said he was unaware that the government had ever considered designating his client as an enemy combatant. But when told of the proposal today by NEWSWEEK, he described the idea as “absurd.”
“If they had ever tried that, I would have fought like hell to stop them,” he said. As for the continued theories about his client, Kleinman said: “There is nothing in the record that would corroborate that he was ever an agent of Iraqi intelligence … They were grasping at straws.”
Ever feel like you're being watched? You probably are
We are already "one nation under surveillance," and it looks to only be getting worse.
By: James V. Franco 04/22/2004
Gov. George Pataki's anti-terrorism package and President George Bush's Patriot Act - and for that matter the myriad of tough-on-crime bills rolled out by state lawmakers this past week - are making New York and the country resemble a police state.
But, tough on crime plays well with the voters. Bush is in the fight of his presidential life this November and all 62 members of the Republican controlled state Senate are up for election this year. Who knows what Pataki is doing. Most think he won't run again, but being tough on crime and terrorism is one way to look good in Washington, where some think he is angling to go should Bush win another term.
After the terrorist attacks on 9/11, the war in Iraq and the growing animosity between the U.S. and the Arab world - fueled in part by our insistence, for right or wrong, to unequivocally defend whatever Israel wants to do - people are scared.
It is an elected official's responsibility to keep the populace safe from harm, but while they are trying to show the public they are doing just that, our fundamental civil rights are being chipped away.
The Patriot Act already allows federal agencies to get a warrant and search a home without telling the owner, federal agents have the authority to order personal records be turned over, and the keeper of the records - be it a hospital or employer - can be jailed if they refuse or tell the subject of the investigation.
Pataki's plan, which was passed by the Senate and endorsed by Attorney General Elliot Spitzer, a Democrat who is eyeing a run at governor, would do away with some of the most basic rights of due process as afforded in the Constitution and greatly expand the powers of police.
For now, the Democratic dominated Assembly is holding firm, but political pressure must be mounting. They are up for re-election as well.
For example, under Pataki's plan, if an officer inappropriately seizes evidence, it can still be admissible, as long as it was obtained "in good faith." It has the potential to legitimize what are now considered illegal search and seizures.
It would also do away with the necessity of having independent evidence to corroborate the testimony of an accomplice. Think about it. Two people are arrested for a crime. The district attorney tells one criminal that he or she will be out of jail 20 years before the other criminal. A modern day thumb screw. Another aspect would do away with double jeopardy, which essentially states a person cannot be charged with the same crime twice. In other words, anyone arrested for a terrorism related offense has to be guilty of something, and sooner or later, the DA will find a jury to agree.
The statute also expands what is considered a terrorism related act, and elevates the crime to a felony level offense. Many people, according to Jonathan Gradess, executive director of the New York State Defenders Association, have been arrested for felonies, have had extraordinary bails set and then released on a conditional discharge, or at most, a violation. And many of those people have foreign last names, who have been under increased scrutiny since Sept. 11.
Meanwhile, lives are interrupted, jobs are lost and a cloud of suspicion is cast, all in the name of public safety.
I am not convinced giving prosecutors and police more power will work. I wholeheartedly agree with Robert Perry, legislative director for the New York Civil Liberties Union, that the stiffer penalties will not deter any terrorist willing to strap on a bomb and blow themselves and others up. Somehow, I think being charged with a felony would be inconsequential.
In the end, the package would waste resources better spent on beefing up security at out ports, on our trains and at our borders.
I realize the new measures only apply to terrorism related crimes, but last fall the Justice Department testified to Congress that some of the measures are being used for non-terrorism related activity like drug trafficking. What is next? That is the scary part.
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James Franco is The Record's Capital Bureau reporter. His column appears on Thursdays.
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