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one of Uncle Sam's depressingly indiscriminate sweeps. Which is what happened to Shafiq Rasul, who was released from Guantanamo about a year ago. His story is instructive, and has not been told widely enough.

Mr. Rasul was one of three young men, all friends, from the British town of Tipton who were among thousands of people seized in Afghanistan in the aftermath of Sept. 11, 2001. They had been there, he said, to distribute food and medical supplies to impoverished Afghans.

The three were interviewed soon after their release by Michael Ratner, president of the Center for Constitutional Rights, which has been in the forefront of efforts to secure legal representation for Guantanamo detainees.

Under extreme duress at Guantanamo, including hundreds of hours of interrogation and long periods of isolation, the three men confessed to having been in a terrorist training camp in Afghanistan. They also said they were among a number of men who could be seen in a videotape of Osama bin Laden. The tape had been made in August 2000.

For the better part of two years, Mr. Rasul and his friends, Asif Iqbal and Rhuhel Ahmed, had denied involvement in any terror activity whatsoever. But Mr. Rasul said they eventually succumbed to long months of physical and psychological abuse. Mr. Rasul had been held in isolation for several weeks (his second sustained period of isolation) when an interrogator showed him the video of bin Laden. He said she told him: "I've put detainees here in isolation for 12 months and eventually they've broken. You might as well admit it now."

"I could not bear another day of isolation, let alone the prospect of another year," said Mr. Rasul. He confessed.

The three men, all British citizens, were saved by British intelligence officials, who proved that they had been in England when the video was shot, and during the time they were supposed to have been in Al Qaeda training camps. All three were returned to England, where they were released from custody.

Mr. Rasul has said many times that he and his friends were freed only because their alibis were corroborated. But they continue to worry about the many other Guantanamo detainees who may be innocent but have no way of proving it.

The Bush administration has turned Guantanamo into a place that is devoid of due process and the rule of law. It's a place where human beings can be imprisoned for life without being charged or tried, without ever seeing a lawyer, and without having their cases reviewed by a court. Congress and the courts should be uprooting this evil practice, but freedom and justice in the United States are on a post-9/11 downhill slide.

So we are stuck for the time being with the disgrace of Guantanamo, which will forever be a stain on the history of the United States, like the internment of the Japanese in World

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NEWS SUBJECT:

(International Terrorism (11N37); Sept i1th Aftermath (1SB05))

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REGION (Afghanistan (1AF45); Cuba (1C043); United Kingdom (10N38); Burope (1EU83); USA (10873); Americas (1AM92); England (1EN10), North America (INO39); Caribbean (1CA06); Western Burope (1WE41); Western Asia (1WB54); Asia (1AS61); Latin America (1 LA15))

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OTHER INDEXING: (Herbert, Bob, Rasul, Shafiq; Bush, George W (Pres) ) (CONGRESS; OSAMA) (Asif Iqbal; Bob Herbert; Bush; Michael Ratner; Rasul; Rhuhel Ahmed; Shafiq Rasul) (Guantanamo Bay Naval Base (Cuba); Freedom and Human Rights; Terrorism; Torture; Prisoners of war) (Op-Ed) (Afghanistan; Great Britain, Afghanistan)

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ARTICLE, TIM GOLDEN, “THREATS AND RESPONSES: TOUGH JUSTICE; AFTER TERROR,

A SECRET REWRITING OF MILITARY LAW,” NEW YORK TIMES, OCTOBER 24, 2004, AVAILABLE ON WESTLAW AT 2004 WLNR 4788371

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10/24/04 N.Y. Times 11 2004 WLNR 4788371

New York Times (NY)
Copyright (c) 2004 The New York Times. All rights reserved.

October 24, 2004

Section: 1

TOUGH JUSTICE First of two articles: New Code, New Power THREATS AND RESPONSES: TOUGH JUSTICE; After Terror, a Secret Rewriting of Military Law

TIM GOLDEN; Jack Begg contributed research for this article.

First of two articles in series, Tough Justice, describes how White House, acting in great secrecy in aftermath of 9/11 terror attacks, gave military authority to detain foreign suspects indefinitely and prosecute them in tribunals not used since World War II; says officials bypassed federal courts and constitutional guarantees, determined to deal aggressively with terrorists they expected to capture; says legal strategy took shape as ambition of small core of conservative administration officials whose political influence and bureaucratic skill gave them remarkable power in aftermath of 9/11; says driving force behind new policy was Vice Pres Dick Cheney: notes that final details were hidden even from national security adviser Condoleezza Rice and Secretary of State Colin L Powell; says strategy has been source of sharp conflict within administration, eventually pitting Rice and Defense Sec Donald H Rumsfeld against one another over issues of due process, intelligence-gathering and international law; notes that some of most forceful critics of Pentagon's system have been uniformed lawyers assigned to defend Guantanano Bay detainees; notes that three years later, not single terrorist has been prosecuted, and only 4 detainees held at US naval base at Guantanamo Bay have been formally charged; detailed description of process by which military law was quickly and secretly rewritten; photos (L)

WASHINGTON In early November 2001., with Americans still staggered by the Sept. 11 attacks, a small group of White House officials worked in great secrecy to devise a new system of justice for the new war they had declared on terrorism.

Determined to deal aggressively with the terrorists they expected to capture, the officials bypassed the federal courts and their constitutional guarantees, giving the military the authority to detain foreign suspects indefinitely and prosecute them in tribunals not used since World War II.

The plan was considered so sensitive that senior White House officials kept its final details hidden from the president's national security adviser, Condoleezza Rice, and the secretary of state, Colin L. Powell, officials said. It was so urgent, some of those

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involved said that they hardly thought of consulting Congress.

White House officials said their use of extraordinary powers would allow the Pentagon to collect crucial intelligence and mete out swift, unmerciful justice. "We think it guarantees that we'll have the kind of treatment of these individuals that we believe they de serve," said Vice President Dick Cheney, who was a driving force behind the policy.

But three years later, not a single terrorist has been prosecuted. Of the roughly 560 men be:ng held at the United States naval base at Guantanamo Bay, Cuba, only 4 have been formally charged. Preliminary hearings for those suspects brought such a barrage of procedural challenges and public criticism that verdicts could still be months away. And since a Supreme Court decision in June that gave the detainees the right to challenge their imprisonment in federal court, the Pentagon has stepped up efforts to send home hundreds of men whom it once branded as dangerous terrorists

*We've cleared whole forests of paper developing procedures for these tribunals, and no one has been tried yet," said Richard L. Shiffrin, who worked on the issue as the Pentagon's deputy general counsel for intelligence matters. "They just ended up in this Kafkaesque sort of purgatory."

The story of how Guantanamo and the new military justice system became an intractable legacy of Sept. 11 has been largely hidden from public view.

But extensive interviews with current and former officials and a review of confidential documents reveal that the legal strategy took shape as the ambition of a small core of conservative administration officials whose political influence and bureaucratic skill gave them remarkable power in the aftermath of the attacks.

The strategy became a source of sharp conflict within the Bush administration, eventually pitting the highest-profile cabinet secretaries -- including Ms. Rice and Defense Secretary Donald H. Rumsfeld -- against one another over issues of due process, intelligence-gathering and international law.

In fact, many officials contend, some of the most serious problems with the military justice system are rooted in the secretive and contentious process from which it emerged.

Military lawyers were largely excluded from that process in the days after Sept. 11. They have since waged a long struggle to ensure that terrorist prosecutions meet what they say are basic standards of fairness. Uniformed lawyers now assigned to defend Guant anamo detainees have become among the most forceful critics of the Pentagon's own system.

Foreign policy officials voiced concerns about the legal and diplomatic ramifications, but bad little influence. Increasingly, the administration's plan has come under criticism even from close allies, complicating efforts to transfer scores of Guantanamo prisoners back to their home governments.

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To the policy's architects, the attacks on the World Trade Center and the Pentagon represented a stinging challenge to American power and an imperative to consider measures that might have been unimaginable in less threatening times. Yet some officials said the strategy was also shaped by longstanding political agendas that had relatively little to do with fighting terrorism.

The administration's claim of authority to set up military commissions, as the tribunals are formally known, was guided by a desire to strengthen executive power, officials said. Its legal approach, including the decision not to apply the Geneva Conventions, reflected the determination of some influential officials to halt what they viewed as the United States' reflexive submission to international law.

In devising the new system, many officials said they had Osama bin Laden and other leaders of Al Qaeda in mind. But in picking through the hundreds of detainees at Guantanamo Bay. military investigators have struggled to find more than a dozen they can tie directly to significant terrorist acts, officials said. While important Qaeda figures have been captured and held by the C.I.A., administration officials said they were reluctant to bring those prisoners before tribunals they still consider unreliable.

Some administration officials involved in the policy declined to be interviewed, or would do so only on the condition they not be identified. Others defended it strongly saying the administration had a responsibility to consider extraordinary measures to protect the country from a terrifying enemy.

"Everybody who was involved in this process had, in my mind, a white hat on, Timothy B Flanigan, the former deputy White House counsel, said in an interview. *They were not out to be cowboys or create a radical new legal regime. What they wanted to do was to use existing legal models to assist in the process of saving lives, to get information. And the war on terror is all about information."

As the policy has faltered, other current and former officials have criticized it on pragmatic grounds, arguing that many of the problems could have been avoided. But some of the criticism also has a moral tone.

"What several of us were concerned about was due process," said John A. Gordon, a retired Air Force general and former deputy C.I.A. director who served as both the senior counterterrorism official and homeland security adviser on President Bush's National Security Council staff. "There was great concern that we were setting up a process that was contrary to our own ideals."

An Aggressive Approach

The admanistration's legal approach to terrorism began to emerge in the first turbulent days after Sept. 11, as the officials in charge of key agencies exhorted their aides to confront Al Qaeda's threat with bold imagination.

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