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Ashcroft vs. the Pentagon: Infighting Over Military Tribunals

Now the truth comes out. There was indeed an ongoing battle between the Pentagon (Rumsfeld), the State Deparment (Condi Rice) and the Justice Department (Ashcroft) over the Administration's planned military tribunals at Guantanamo. And who would have thought it was John Ashcroft complaining the planned trials were unfair?

A year later, with no trials yet in sight, some officials at the highest levels of the Bush administration began privately venting their frustration about both the slow pace of the Pentagon's new courts and the soundness of their rules. Attorney General John Ashcroft was especially vocal.

"Timothy McVeigh was one of the worst killers in U.S. history," Mr. Ashcroft said at one meeting of senior officials, according to two of those present. "But at least we had fair procedures for him."

For once, Ashcroft is right. Trials in federal courts are fair. Timothy McVeigh did not get a perfect trial, but he did get a fair one, with unlimited access to counsel, a Judge who granted almost every defense request for additional funds for lawyers and experts, access to law enforcement reports (except those not revealed by the FBI until shortly before his death,) a jury to decide his guilt and punishment and government-funded appeals.

Those detained at Guantanamo and classified by Bush as "enemy combatants" have been dealt the short end of the stick: trial by military judges, no right to appeal, severely limited access to counsel and to see the evidence against them and monitoring of attorney-client communications.

Particularly grievous is the fact that many of the detainees were not terrorists at all, but men whose guilt was assumed because they were caught in the wrong place at the wrong time. Many had been sold to the Taliban and had never raised a weapon or made a threat against the United States. Yet, they were transported across the world to Guantanamo and confined in conditons that would likely have resulted in successful habeas motions had they been in America's prisons instead of in Cuba.

The Pentagon guys were the baddies.

We provided them with only the information that we, in our arrogance - or the arrogance of our leadership - thought they needed," one former Pentagon official said.

So the blue wall of silence is now crumbling:

Interviews with dozens of officials show that the myriad problems ignited an often fierce behind-the-scenes struggle that set the Pentagon and its allies in the White House against adversaries at the National Security Council, the State Department and Justice Department. The friction among officials like Defense Secretary Donald H. Rumsfeld; the national security adviser, Condoleezza Rice; and Mr. Ashcroft sheds new light on the internal dynamics of an administration that has shown a remarkably united public front.

The Pentagon continues to defend military commissions, as the tribunals are called, as an important tool against terrorism. But in several instances, military officials said, Mr. Rumsfeld and his deputy, Paul D. Wolfowitz, resisted moving forward with prosecutions, in part because they felt the cases were weak.

As prosecutors prepare for their first two trials, now scheduled for December and January, the commissions have been roiled by vigorous attacks from the uniformed lawyers assigned to the defendants. Defense challenges have prompted the removal of half of the officers appointed to hear the first cases, and have called into question the independence of the presiding officer.

The system is at close to breaking point:

As prosecutors prepare for their first two trials, now scheduled for December and January, the commissions have been roiled by vigorous attacks from the uniformed lawyers assigned to the defendants. Defense challenges have prompted the removal of half of the officers appointed to hear the first cases, and have called into question the independence of the presiding officer.

This is a ten page article and we've just gotten to the end of page one. Read the rest. Rumsfeld becomes the chief protagonist, pushing for harsher method of interrogation.

But intelligence-gathering was only part of the problem. It quickly became apparent that few of the prisoners captured in Afghanistan were the sort of hardened terrorists the administration had hoped for.

"It became obvious to us as we reviewed the evidence that, in many cases, we had simply gotten the slowest guys on the battlefield,'' said Lt. Col. Thomas S. Berg, a member of the original military legal team set up to work on the prosecutions. "We literally found guys who had been shot in the butt.''

They went after the kingpins and got the mules. And when they found out they got the mules, they persisted in keeping them as "enemy combatants."

But within weeks, intelligence officers began reporting back to the Pentagon that they did not have enough evidence on most prisoners to even complete the forms, officials said. By March 21, Defense Department officials indicated they would hold the Guantánamo prisoners indefinitely and on different legal grounds - as "enemy combatants" in a war against the United States.

"We are within our rights, and I don't think anyone disputes it, that we may hold enemy combatants for the duration of the conflict," William J. Haynes II, the Pentagon's general counsel, said then. "And the conflict is still going and we don't see an end in sight right now."

William Haynes is now a Bush-nominated Court of Appeals judge.

Another participant in the spin fraud perpetuated on the American public about these men was Vice President Dick Cheney:

In public, the administration continued to maintain that the prisoners were both frighteningly dangerous and a likely font of vital intelligence. "They may well have information about future terrorist attacks against the United States," said Vice President Dick Cheney. "We need that information."

But at the State Department, diplomats were awash in complaints from foreign governments, many of them allies in the Afghan war, about the open-ended imprisonment of their citizens. F.B.I. agents and Justice Department officials were struck by how few strong prosecution cases there seemed to be, current and former officials said.

Eventually, Elliott Abrams and John B. Bellinger III, both senior aides, convened an interagency group to try and find a fix. Elliot Abrams, you may remember, was caught up in the Iran-Contra scandal and convicted of lying to Congress. He was later pardoned by Bush I.

Abrams and Bellinger began asking the tough questions. ...They kept pressing: Did all the detainees really belong there? What was the plan to start transferring them out?"

There was real concern that if detainees were harshly treated and deprived of due process, they were going to end up turning against the United States, if they had not already," said retired Gen. John A. Gordon, a former deputy director of the C.I.A. who became President Bush's deputy national security adviser for counterterrorism. "We were not making any converts."

The Defense Department was notably unresponsive to prodding by other agencies. Requests for information were answered slowly, if at all, officials said. Promised policy changes - new criteria to improve the screening of detainees being sent to Guantánamo, or proposed terms for their transfer home - were delayed repeatedly.

"We provided them with only the information that we, in our arrogance - or the arrogance of our leadership - thought they needed," one former Pentagon official said. He added that he and others went into interagency meetings on Guantánamo with a standard script, dictated by their superiors: "Back off - we've got this under control."

Enter Dick Cheney again:

Rumsfeld was very clear that he wanted the Department to be driving this bus," said a former Army secretary, Thomas E. White, who was closely involved in the Guantánamo policy. "He reigned supreme in the government. The vice president backed him up, and that was his power base."

"There was not a real process for determining who was an enemy combatant," said Viet D. Dinh, a former Justice Department official who worked on terrorism issues under Mr. Ashcroft. "And the ad hoc nature of that process gave a lot of power to the Pentagon."

The Justice Department tried to rescue the situation:

[the] Department's criminal division, who worked closely with the F.B.I., were grappling with other questions. They saw the Guantánamo detentions as a source of cascading problems: angry foreign allies, a tarnishing of America's image overseas and declining cooperation in international counterterrorism efforts.

"This was an issue of basic fairness," one former senior official involved in the discussions said. "The never-ending detentions were creating a lot of animosity among our allies. We pushed hard for them to move quicker. The attorney general pushed hard for it. They didn't, and there was an immense amount of frustration."

Ashcroft then lost his patience:

At a White House meeting in late February 2003 - more than a year after the presidential order that created the commissions - Mr. Ashcroft finally lost his patience. "When are those commissions going to get moving?" officials quoted him as demanding

Fast forward three years and see the uncertainty that has arisen:

Military officials say construction is soon to begin at Guantánamo on a second permanent prison unit, a $24-million compound that will house 200 high-security detainees. Another, $31 million unit, able to hold 100 detainees in supermax security, opened in April.

Yet in Washington, a senior legal official acknowledged that the administration still had "a major decision" to make about the base's future after the Supreme Court on June 28 upheld the right of the detainees to petition the federal courts for their freedom.

"Do we want to take them to Guantánamo?" the official asked in an interview. "Maybe not. Maybe Guantánamo is no longer a viable option."

There's just so much news to this article. We highly recommend you read the whole thing.

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