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Bush Confirms Existence of Secret CIA Prisons --- Alleged Al Qaeda Members Are Moved to Guantanamo, Addressing Court Criticism

By Jess Bravin
The Wall Street Journal
September 7, 2006

WASHINGTON -- Under pressure from a contrary Supreme Court ruling and a public at times skeptical of his military judgment, President Bush disclosed long-classified elements of his counterterrorism program yesterday. He confirmed the secret prison network run by the Central Intelligence Agency and announced the transfer of 14 alleged al Qaeda commanders -- including suspected masterminds of the Sept. 11, 2001, attacks -- to Guantanamo Bay, Cuba, for eventual trial.

In a White House speech, the president directly addressed several of the prisoner policies that have run aground in domestic courts and sparked criticism abroad. The president hopes to pressure lawmakers to approve his version of new counterterrorism laws that would allow for military trials of suspected terrorists and insulate officials from legal action for violating the Geneva Conventions.

By personally announcing that such al Qaeda figures as Ramzi Binalshibh and Khalid Sheikh Mohammed -- two of the most widely known alleged architects of the attacks -- had been sent from CIA prisons to Guantanamo, the president underscored his role in responding to the Sept. 11 attacks. He said intelligence extracted from these prisoners had foiled terrorist plots at home and abroad.

The White House initiative comes just before the fifth anniversary of Sept. 11 and two months before hotly contested congressional elections that Republicans hope to win on national-security issues. Mr. Bush and Republican Party leaders are betting that by forcing Congress to vote on antiterror policies this month during its brief pre-election session, they can turn voters against Democrats who may oppose the Bush proposals. In addition, lawmakers plan to consider legislation validating the president's program of wiretapping international phone calls without obtaining warrants, which was ruled unconstitutional last month by a federal district court in Detroit.

Yesterday's move represents a turnabout for a White House that has insisted it alone held power to decide the treatment of enemy prisoners, without court or congressional sanction. Administration officials said they had little choice, following the Supreme Court's June 29 decision rejecting the president's claim that his inherent war powers allowed him to set aside Geneva provisions and establish a military-trial system outside existing law.

The justices' ruling invalidated a November 2001 order Mr. Bush issued that authorized tribunals -- called military commissions -- to try non-U.S. citizens for war crimes outside the Constitution's due-process guarantees. Under Defense Department rules implementing that order, defendants could be excluded from their trials, denied access to evidence and receive limited opportunities to appeal convictions. The Supreme Court found the president's national-security claims didn't justify such deviations from the Uniform Code of Military Justice, the 1950 legislation governing military trials.

By acting before Congress has decided what form of justice the prisoners will face, the president has also taken a political and legal gamble. Now at Guantanamo, where they will be visited by delegates of the International Committee of the Red Cross and, presumably, assigned military defense attorneys, the prisoners could raise allegations of torture suffered while in detention or use their trials as a platform for propaganda.

Democrats, meanwhile, cast the president's initiative as an admission of failure. "For five years, Democrats have stood ready to work with the president and the Republican Congress to establish sound procedures to bring terrorists to justice," Senate Minority Leader Harry Reid said in a statement. "Unfortunately, President Bush ignored the advice of our uniformed military and set up a flawed system that failed to prosecute a single terrorist and was ruled unconstitutional by the U.S. Supreme Court."

Administration officials characterized their new proposal as a compromise between the nearly complete discretion the president asserted in his November 2001 order and the detailed rules of the military justice code. In some instances, the draft legislation appears to afford more rights to defendants than the president had initially preferred. For instance, while the commission system that had been in place foresaw no appeal to the federal courts, the president's bill grants convicts a right to appeal to the U.S. Court of Appeals for the District of Columbia and to the Supreme Court.

Senate Majority Leader Bill Frist, who is co-sponsoring the president's bill, said it would provide "another tool in the war on terror. . . . The procedures should be fair but tough and recognize that we should prosecute barbaric al Qaeda terrorists differently than our uniformed military or civilian criminals," he said in a statement.

University of California, Berkeley, law professor John Yoo, who as a Justice Department official helped develop the administration's legal policies, said "it does not look like the procedures for these commissions differ in any significant way from the rules already in place before" the Supreme Court's decision. "The only difference is that [the president] is seeking Congress's explicit support."

Critics said the new proposal did little to fix substantive failings of the former process, such as permitting the defendant's exclusion from his trial. Col. Dwight Sullivan, the Marine lawyer in charge of defense counsel for Guantanamo defendants, said that if adopted as written, the bill was certain to provoke legal challenges from attorneys in his office. "Congress simply should not rush into this so that three or four years down the road we have another military commission system thrown out," he said.

Sen. Lindsey Graham (R., S.C.), an Air Force Reserve lawyer who has been working on separate legislation to authorize military commissions, took issue with some provisions in the White House proposal, such as denying defendants access to classified evidence against them. "I do not think we can afford to again cut legal corners that will result in federal court rejection," he said in a statement.

Even if the bill is approved immediately, it remains uncertain when the new prisoners would stand trial. Ten Guantanamo prisoners were charged under the former commission system. It is unclear whether their cases would take a back seat to the more notorious defendants recently transferred. The isolated naval base has only one courtroom, and a request to build a second is pending, a Pentagon official said.

In his speech yesterday, Mr. Bush defended the handling of the prisoners to date, but wouldn't discuss interrogation methods, saying they had provided crucial intelligence. "The procedures were tough and they were safe and lawful and necessary," he said.

At a media briefing yesterday, an administration official said that in recent years as many as 100 prisoners had been held by the CIA. Some eventually were sent to third countries, and with the transfer to Guantanamo, the agency no longer holds any prisoners in its overseas facilities, officials said.

The president said, however, that the CIA might do so again in the future. To help ensure that interrogators couldn't be sued for mistreating prisoners, the legislation would bar courts from hearing claims based on the Geneva Conventions.

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