Guantanamo detainee Fayiz al-Kandari

As evidenced by the recent outpouring of generous support for the people of Haiti, America remains a caring and compassionate nation. But when it comes to human rights and the rule of law, the United States falls woefully short, trailing behind the rest of the civilized world. Case in point, the U.S. government is seriously considering indefinite detentions for some Guantanamo detainees.

Sen. Lindsey Graham (R-SC) said last weekend that the White House may support a new law that would allow the indefinite detention of some terrorism suspects. Meanwhile, last month the Guantanamo Detainee Review Panel finally recommended which detainees should be released and which ones should face trials. It came as little surprise that more than 100 detainees were cleared for release while about 35 will be tried either by federal court or military commission. Yet surprisingly, approximately 50 detainees have been recommended for indefinite detention without trial. The administration claims they are considered too dangerous to be released but too difficult to prosecute even in the conviction-friendly Commission System.

These 50 detainees present a perplexing situation for the United States. The United States prides itself on being a world leader on human rights and the rule of law, and has been consistently outspoken in its criticism of human rights abuses by other nations. But in its zeal to demonstrate a “tough on terrorism” stance, the United States has failed to live up to these values.

One of the hallmarks of the American judicial system is the presumption of innocence. If arrested for an alleged crime, we have the right to a trial, to confront our accusers, and to present evidence in our defense. Indefinite detention bypasses these rights, short circuits due process, and turns the presumption of innocence on its head. In short, it presumes guilt and offers no remedy to challenge that presumption.

It is tempting to assume the decision to hold detainees indefinitely is based on a review of credible evidence. But if the evidence is so persuasive, why not introduce it in a court of law and secure a legitimate conviction? Time and again, federal courts have proven fully capable of handling terrorism cases. In fact, the Bush administration successfully prosecuted at least 319 terrorism or terrorism-related cases in civilian courts.

If the evidence is not reviewed by a court of law, who does review the evidence and determine the fates of individual suspects? The evidence is classified and the identities of those making the determinations are closely guarded. This process is entirely secret and inherently un-American. A system that authorizes indefinite detention based on secret evidence can only result in distrust and suspicion.

I represent Fayiz al-Kandari, a Kuwaiti citizen who has been imprisoned at Guantanamo Bay for more than eight years without a trial. In my July 2009 letter to the Washington Post, I explained how every time I visit my client he asks whether I have news of justice for him. Each time, I am forced to answer “I have no justice today.” Assuming Fayiz would someday have his “day in court,” I prepared him for the probability that “justice” would come in the form of a military commission – a second-rate judicial system largely designed to permit rumor as evidence. Unfortunately, I am now left to wonder whether Fayiz will ever be afforded any semblance of justice.

Admittedly, under the laws and customs of war, a nation may detain “enemy combatants” for the duration of an armed conflict. But in an “armed conflict” as ambiguous as the War on Terrorism, can this same standard possibly apply? If so, when can we expect the armed conflict to end? Terrorism dates back to the 14th century or earlier and has been employed throughout history. If the “War on Terrorism” will not end until terrorism no longer exists on Earth, Fayiz will never breathe free.

We are at a key juncture in our nation’s history. We can give in to political expediency and fear, or we can restore the rule of law and uphold our country’s founding principles. Let’s not go down the slippery slope of indefinite detentions.

Lt. Col. Barry Wingard represents Fayiz al-Kandari, a Kuwaiti who has spent seven and a half years in U.S. custody at Guantanamo Bay without trial.

This image of Khalid Sheikh Mohammed was taken in July 2009 under an agreement with Guantanamo prison camp staff that lets Red Cross delegates photograph detainees and send photos to family members.

The Obama administration has signaled that it is willing to allow the Justice Department to find a new venue to prosecute self-professed 9/11 mastermind Khalid Sheikh Mohammed, according to Sen. Chuck Schumer (D-NY).

The senator’s spokesman, Josh Vlasto, said Schumer spoke “with high-level members of the administration and urged them to find alternatives.”

The move comes a day after Mayor Michael Bloomberg called on the Justice Department to change the venue of the trial. Bloomberg had been a staunch supporter of holding the trial in New York.

“It would be an inconvenience at the least, and probably that’s too mild a word for people that live in the neighborhood and businesses in the neighborhood,” Bloomberg was quoted as telling reporters. “There are places that would be less expensive for the taxpayers and less disruptive for New York City”

In a statement aboard Air Force One Thursday as President Obama flew to Tampa, White House spokesman Bill Burton said the administration will not weigh in on where the trial should be held.

“Let me start by saying that Khalid Sheikh Mohammed is a murderous thug who has admitted to some of the most heinous crimes ever committed against our country,” Burton said. “The president is committed to seeing that he’s brought to justice. He agrees with the attorney general’s opinion in November that he and others can be litigated successfully and securing in the United States of America, just like others have, like Richard Reid. Currently our federal jails hold hundreds of convicted terrorists, and the president’s opinion has not changed on that.”

Attorney General Eric Holder announced last November that the trial for alleged 9/11 mastermind Khalid Shaikh Mohammed would be held in New York City.

The decision by Holder and the Obama administration to hold the trial in New York City was met with loud opposition, which came mainly from Republicans.

The issue took on a renewed sense of urgency Thursday with legislation introduced by Rep. Peter King (R-NY) aimed at outlawing the prosecution of terrorists in federal criminal courts.

King said on his website that the choice to transfer Mohammed and four others to New York “is one of the worst decisions ever made by any president.” King’s legislation, titled “Stopping Criminal Trials for Guantanamo Terrorists Act of 2010,” would prevent Justice Department funds from being used to prosecute any person detained at Guantanamo in a criminal court in the United States or one of its territories.

Even Democrats became concerned. Congressman Jerrold Nadler (D-NY) joined seven other elected officials in a letter to Attorney General Eric Holder that said they “are concerned that the Administration has not fully considered the impact that the trials would have on lower Manhattan.” In the letter they requested an evaluation of potential trial sites outside of Manhattan.

The decision to try Mohammed and four others in a Manhattan Federal court has been a flashpoint for argument since announced by Attorney General Eric Holder on November 13, 2009.  The decision to try Mohammed in a civilian court, as opposed to a Military Commission has been an issue or argument for weeks.

The letter to Holder from Nadler and the seven other elected officials, along with King’s bill to prevent the 9/11 trial from receiving Justice Department funds echoed Bloomberg’s newfound concern about the price tag for the trial and the potential for the trial to disrupt people and business in the city.

“It would be great if the federal government could find a site that didn’t cost a billion dollars, which using downtown will,” Bloomberg said.

Joshua Durkin is a contributor to The Public Record based in Connecticut. He can be reached at joshua.durkin@pubrecord.org

This report was originally published on Truthout.org and is being republished here under a Creative Commons license.

The Department of Justice has not yet finished an internal review of the report prepared by an agency watchdog that probed several legal opinions John Yoo and two other former attorneys who worked at the DOJ’s Office of Legal Counsel (OLC) wrote for the Bush White House on torture, an agency spokeswoman said Wednesday.

“The [review] process is ongoing and we hope to have [the report] complete and released soon,” Justice Department spokeswoman Tracy Schmaler told Truthout.

The Office of Professional Responsibility (OPR) completed the report in December 2008 following a five-year investigation.

Adding to the delay in releasing the report (Attorney General Eric Holder testified before Congress last year that the report was complete and was expected be released by end of November), according to several legal sources knowledgeable about the review process, were additional responses to its conclusions that Yoo filed via his attorney, Miguel Estrada. The legal sources spoke on the condition of anonymity because the report is still classified.

If that’s true, the career prosecutor charged with reviewing the report would have to carefully review Yoo’s responses and, as Holder testified last November, “react to those responses” as well.

Estrada told Truthout he was bound by a confidentiality agreement he entered into with the Justice Department and could not comment on the claims that he submitted another set of responses on behalf of Yoo.

Schmaler said she could not comment on the rumors. But she pointed to the Office of Professional Responsibility’s “post investigation” guidelines, which details the process that takes place during the course of such investigations.

The big question is will the report be released on or before January 15?

That’s the date lawyers representing alleged “dirty bomb” plotter Jose Padilla are due to file a response to the government’s friend-of-the-court-brief, which recommended that a lawsuit Padilla filed aginst Yoo over the legal advice he gave to the Bush White House that resulted in Padilla being tortured be tossed out because the OPR report would address the issue that Yoo provided the White House with poor legal advice.

“In addition to potential discipline by a state bar, Department of Justice attorneys are also subject to investigation by the Office of Professional Responsibility (“OPR”)… OPR and the Office of the Inspector General have broad investigatory powers and can recommend discipline and even criminal prosecution, where appropriate, the government’s December 3, court filing states.

As blogger Marcy Wheeler pointed out earlier this week, “At the rate we’re going, Padilla’s lawyers will have to file their response to the boast that OPR can offer adequate discipline in cases like this, without yet learning what OPR did in this particular case.”

Believing that the report is being suppressed, a coalition of attorneys, journalists and activists to file a Freedom of Information Act request Thursday with the Justice Department to obtain a copy of the report and other documents.

Upcoming Hearings on Torture?

In an interview last month, Christopher Anders, the ACLU’s senior legislative counsel, said Senate Judiciary Committee Chairman Patrick Leahy and his counterpart in the House, John Conyers, have both said they intend to hold hearings next year when the OPR report is released.

Leahy and Conyers “said a number of times that they would have hearings when the OPR report comes out,” Anders told me. “It would be a big surprise if they didn’t conduct hearings. We fully expect them to hold hearings.”

Erica Cabot, a spokeswoman for Leahy, said it would be premature to discuss any plans for possible future hearings until the report is released.

“Adverse Findings”

The Justice Department was prepared to publicly release the report last January. But it underwent revisions after then-Attorney General Michael Mukasey and his deputy, Mark Filip, demanded that Yoo, Bybee and Bradbury be given the chance to review and respond to the findings.

“In the past, former Department employees who were subjects of OPR investigations typically have been permitted to appeal adverse OPR findings to the Deputy Attorney General’s Office,” said Assistant Attorney General Ronald Weich’s May 4, 2008 letter to Democratic Senators Dick Durbin and Sheldon Whitehouse. “A senior career official usually conducted that appeal by reviewing submissions from the subjects and OPR’s reply to those submissions, and then reaching a decision on the merits of the appeal. Under this ordinary procedure, the career official’s decision on the merits was final. This appeal procedure was typically completed before the Department determined whether to disclose the Report of Investigation to the former employees’ state bar disciplinary authorities or to anyone else.”

Legal sources familiar with an early draft of the report said it concluded that some of Yoo and Bybee’s legal work for the Bush White House rose to the level of professional misconduct and therefore warranted a disciplinary referral state bar officials. These sources said they were unaware whether OPR reached the same conclusions about Bradbury’s legal work.

Weich’s letter noted that if the appeals filed by Yoo, Bybee and Bradbury resulted in a rejection of OPR’s findings by the “career official” reviewing the document then no such referral would occur.

“Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made,” Weich’s letter said. “This process afforded former employees roughly the same opportunity to contest OPR’s findings that current employees were afforded through the disciplinary process.”

Weich added that the initial draft of the report was also shared with the CIA for a “classification review,” and the agency, having reviewed the findings, “requested an opportunity to provide substantive comment on the report.”

Durbin and Whitehouse, in a statement last May, said they “will be interested in the scope of the ‘substantive comment’ the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter.”

A CIA spokesperson did not return calls for comment about the agency’s response to the report.

Weich’s letter to Durbin and Whitehouse was sent in response to queries by the senators last March about revelations that Bradbury oversaw OLC’s review of the report in late 2008, despite the fact that he was a subject of OPR’s investigation and was also acting head of OLC at the time.

Three months before Bush exited the White House, Bradbury, in a “memorandum for the files,” renounced several legal opinions drafted by Yoo and Bybee.

Bradbury attempted to justify or forgive Yoo’s controversial opinion by explaining that it was “the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”

Bradbury wrote another memo five days before Bush left office last January, in which he once again repudiated Yoo’s legal opinions. It would appear that this memo was in response to the OPR report. Bradbury said in the Jan. 15 memo that the flawed theories by Yoo in no way should be interpreted to mean that Justice Department lawyers did not “satisfy” professional standards.

Durbin and Whitehouse said they believed Bradbury’s “memorandum for the files” made it a “conflict-of-interest” for him to participate in the formal review process.

But Weich said, “Because Mr. Bradbury’s participation in that process was transparent, OPR advised that it can evaluate the OLC response with the knowledge of Mr. Bradbury’s participation just as it would evaluate a response from anyone whose actions were within the scope of OPR’s investigation.

“Therefore, OPR does not believe that Mr. Bradbury’s participation in the OLC response was improper,” Weich said.

Rather, Bradbury wrote, “In the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation.”

The Iraq war inquiry has insisted that Tony Blair will be questioned “very much in public.”

The statement follows claims that key evidence from the former Prime Minister would be heard behind closed doors.

Newspaper reports claimed Mr Blair’s meetings with US President George W. Bush and details of the decision-making process that led to war would be dealt with in secret on grounds of national security and the need to protect Britain’s relationship with the US.

However, a spokesman for the Chilcot Inquiry said: “Mr Blair will be appearing very much in public and will be questioned in detail on a wide range of issues surrounding Britain’s involvement in Iraq.

“We have said right from the start that he will be a key figure in the inquiry. Mr Blair has said that he is ready and willing to give evidence in public.”

And it appears that reapproval may be about to happen – evidently with a green light from the Obama Administration and over strong objections from human rights and civil liberties groups.

Last week, the Senate Judiciary Committee passed the USA Patriot Act Extension Act of 2009. The bill makes only minor changes to the original Patriot Act and was further watered down by amendments adopted during the Committee’s deliberations.

“The Senate Judiciary Committee had the opportunity to pass legislation to rein in a bill that has become a symbol of out-of-control government invasions of your privacy. They failed — approving a bill that does little to curtail the sweeping powers embedded in the Patriot Act,” said the American Civil Liberties Union.

The Committee’s actions were driven by “short-term and political considerations,” Chip Pitts, president of the Bill of Rights Defense Committee, told us. The Committee ignored “the need for a more sensible long-term, reasoned, rule-of-law approach,” he said.

Now, civil libertarians are looking to the House of Representatives, where the Judiciary Committee has already begun to consider the measure. Both chambers must produce versions of the legislation, after which differences will be reconciled by a bicameral conference committee.

The three sections of the law due to expire next month are:

The “National Security Letter (NSL)” provision. The FBI uses NSLs to compel Internet service providers, libraries, banks, and credit reporting companies to turn over sensitive information about their customers and patrons. Using this data, the government can compile vast dossiers about innocent people. Government reports confirm that upwards of 50,000 of these secret record demands go out each year. In response to an ACLU lawsuit (Doe v. Holder), the Second Circuit Court of Appeal struck down as unconstitutional the part of the NSL law that gives the FBI the power to prohibit NSL recipients from telling anyone that the government has secretly requested customer Internet records.

The “Material Support” Statute. This provision criminalizes providing “material support” to terrorists, defined as providing any tangible or intangible good, service or advice to a terrorist or designated group. As amended by the Patriot Act and other laws since September 11, this section criminalizes a wide array of activities, regardless of whether they actually or intentionally further terrorist goals or organizations. Federal courts have struck portions of the statute as unconstitutional and a number of cases have been dismissed or ended in mistrial.

The FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008. Last summer, Congress amended the law to permit the government to conduct warrantless and suspicion-less dragnet collection of U.S. residents’ international telephone calls and e-mails.

Now the civil liberties community is stepping up lobbying efforts to ensure that the legislation that emerges from the House Judiciary Committee contains more protections for privacy and other civil liberties.  Such legislation has been introduced in the House by three powerful Congressmen: John Conyers of Michigan, Jerrold Nadler of New York, and Robert Scott of Virginia.

Their proposed amendments Act would create more civil liberties protections for many of the Patriot Act powers, including restricting the gag order attached to receiving a subpoena known as a national security letter (NSL), terminating the never-used “lone wolf” surveillance power, and limiting the use of NSLs to collect information on suspected terrorists or spies instead of innocent Americans.

However, the proposed new legislation leaves intact the Patriot Act’s so-called “material support” provision, permitting prosecution of those who work with or for charities that give humanitarian aid in good faith to war-torn countries.

The actions of the Senate committee have left human rights advocates and many legal scholars perplexed because the Committee chairman, Senator Patrick Leahy, Democratic of Vermont, is considered one of the most liberal members of the Senate, and its members include such other high-profile progressives as Al Franken of Minnesota, Russ D. Feingold of Wisconsin, Chuck Schumer of New York, Dick J. Durbin of Illinois, and Sheldon Whitehouse of Rhode Island.

Asked to explain their votes, Chip Pitts of the Bill of Rights Defense Committee said “the secret and hypocritical lobbying by the Obama administration against reforms – while publicly stating receptiveness to them — was undoubtedly a huge if lamentable factor.”

He also cited the recent arrests of Najibullah Zazi and others, noting that  Leahy said that in light of these incidents, “this is no time to weaken or undermine the tools that law enforcement relies on to protect America.”

Zazi has been charged with conspiring to bomb targets in the U.S. He allegedly traveled last year to Pakistan, where the FBI charges that he attended terrorist training camps.

“In sum, short-term and political considerations driven by dramatic events once again dramatically affected the need for a more sensible long-term, reasoned, rule-of-law approach, ” Pitts told us, adding, “In the eight years since passage of the original Patriot Act, it’s become clear that the escalating political competition to appear tough on terror (and avoid being accused of being ‘soft on terror’) brings perceived electoral benefits with few costs, with vital but fragile civil liberties being easily sacrificed.

“Even nominal and sometimes actual civil liberties advocates have become more used to the ‘new normal’, seemingly forgetting the less visible but vital benefits of the liberties themselves – including for genuine and effective security, let alone for successful, prosperous, creative, dynamic open societies as opposed to closed societies like the former East Germany that used such approaches to their detriment.”

“The persistent myths and claims that the Patriot Act hasn’t been abused are simply ludicrous after the documentation by (civil liberties groups), regarding the torrent of abuse that has happened since 9/11,” Pitts told us.

Prior to the Judiciary Committee markups, the ACLU and other civil liberties groups had endorsed the JUSTICE Act, an alternative bill that would heavily reform not only the Patriot Act but other overly broad surveillance laws.

Amendments that were offered but failed by voice vote included an amendment by Senator Durbin to curb the abuse of the National Security Letter (NSL) statute and another offered by Senator Feingold to allow the “lone wolf” provision to expire (this never-used provision targets individuals who are not connected to terrorist groups). An amendment also failed that would make it more difficult for recipients to challenge the gag order that comes with receiving an NSL.

However, two amendments offered Senator Feingold were included in the final bill. In one, the Department of Justice would be ordered to discard any illegally obtained information received in response to an NSL. In the second, the government would have to notify suspects of “sneak and peek” searches within seven days instead of the 30 days currently required by the statute. “Sneak and peek” searches allow the government to search a home without notifying the resident immediately.

So, when I read that the Georgetown University law school prof had a new book out, I quickly got my copy. I wasn’t disappointed, and you won’t be either.

Cole’s new book is two things: First, a collection of six of the previously-published “torture memos” written between 2002 and 2006 by lawyers at the Bush-era Office of Legal Counsel. Yes, the ones that used law to justify the “enhanced interrogation techniques” now so well known. And, second, Cole’s commentary on this distortion of the law and its implications for our society

This book is a must-read for the latter alone. In chillingly uncomplicated prose, Cole argues that these memos are the real “smoking gun” in the torture controversy because they demonstrate that the culpability lies not merely with the CIA interrogators who may have exceeded Justice Department legal guidance, but with the legal guidance itself – the “incredible arguments advanced to give them a green light.”

As we all now know, that sloppy and craven legal analysis  contorted the law to authorize clearly illegal CIA tactics. And it continued to do so in secret even after the Bush Administration sought to assure the public that it was abiding by the very laws it was breaking.

Yet, at about the same time as the torture memos were being published – and the nation prepared to mark the eighth anniversary of the 9/11 attacks –those who ordered and wrote these memos were busily defending themselves.

Or, more accurately perhaps, using the straw-man of an investigation of the CIA to deflect attention away from their conduct.

Exhibit A is John Yoo, now a law professor at the University of California’s law school, who was the Bush Administration’s go-to guy for legal justifications. In a recent op-ed, Yoo warns us about the dire consequences that await the nation as the Justice Department pursues its investigation of CIA operatives.

Yoo invokes Jimmy Carter, who he describes as “a young fresh face” campaigning for the presidency by attacking the CIA: “Our government should justify the character and moral principles of the American people, and our foreign policy should not short-circuit that for temporary advantage,” Carter says. He promises to never “do anything as president that would be a contravention of the moral and ethical standards that I would exemplify in my own life as an individual.”

“He wins the election and begins to decimate the intelligence agencies,” Yoo writes, and then recalls, “The Carter administration’s national-security record should not serve as a model for any president. But unless Obama changes course, he risks duplicating the intelligence disasters of the ’70s, and endangering the nation.”

Yoo reminds us that several of the detainees the CIA tortured “were directly involved with the planning and execution of the attacks on Sept. 11, 2001. They were captured at a time when our government feared a second wave of attacks.”

“Our nation’s leaders made the difficult decision to use coercive interrogation methods to learn as quickly as possible what these hardened al-Qaida operatives knew,” he writes, adding:

“As one of many government lawyers who worked on these counterterrorism programs, I can attest to the terrible pressure of time and events in the months after the Sept. 11 attacks. Knowledgeable officials expected that al-Qaida would try again — soon — and in a more devastating fashion.”

And, then, in true Dick Cheney mode, he admonishes: “As we pause to remember the Sept. 11 attacks eight years later, fair-minded people should take heart that there has been no follow-up attack in the United States. To the contrary, several plots have been foiled and the terrorists are on the run. This was not the result of luck — it is because of the hard work of members of the military and our intelligence agencies.”

“Their reward,” he laments, “is an open-ended investigation, and in some instances the disturbing reopening of cases closed by career prosecutors.”

“Even the most fervent antiwar activists should welcome an effective intelligence service. If the CIA had accurately judged Iraq’s lack of WMD in 2003, the war might not have occurred. If the CIA had decapitated al-Qaida’s leadership in the 1990s (the plans were vetoed by President Bill Clinton), the 9/11 attacks may have been headed off and the invasion of Afghanistan rendered unnecessary,” he writes.

“Persecuting the CIA risks another (Pearl Harbor) or major intelligence failure,” Yoo concludes.

But, hold on now, this is not about an investigation of the CIA. That’s John Yoo’s smoke-screen. This is about a bunch of highly-educated but ideologically-challenged lawyers who exploited our post-9/11 hysteria to try to rewrite the Constitution.

Paradoxically, it is precisely during times of such hysteria that we most urgently need the Constitution and its principles of fairness and equity. Resisting – not caving to — the temptation to compromise those principles would have been the benchmark for discovering those who truly believe.

I first came across David Cole several years ago, when he was doing a lot of advocating on behalf of donors to Muslim-oriented charities whose organizations were shut down by our Treasury Department with virtually no legal due process on vaguely-defined suspicions that they were supporting terrorist causes.

Cole likened that situation to the guilt-by-association tactics of the McCarthy era. He never weighed in on the guilt or innocence of those charities. But he was downright bulldoggish in his insistence that this was precisely the time we should apply the rule of law – not the law of the Wild, Wild, West soundbite. A position the Obama Administration has now also embraced.

For me, that defines a lawyer’s lawyer. For our country, it defines the future of our Constitution and the sacred legal structures that keep us from flying apart.

John Yoo is far from any lawyer’s lawyer.

William Fisher is a regular contributor to The Public Record. He has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, Latin America and elsewhere for the past 25 years and served in the administration of President John F. Kennedy. He reports on a wide-range of issues for numerous domestic and international newspapers and online journals. He blogs at The World According to Bill Fisher.

Their letter to the president is particularly self-serving for three of the directors (Michael Hayden, Porter Goss, and George Tenet), who would presumably be the subject of any investigation, and simply self-aggrandizing for the others (John Deutch, James Woolsey, William Webster, and James Schlesinger), whose stewardship of the CIA since the early 1970s has contributed to the Agency’s loss of influence and credibility.

The key to managing a complex organization such as the CIA is based on the integrity and competence of the director and his senior management. These traits were certainly lacking during the two decades these “magnificent seven” were at the helm.

The letter itself represents a stunning display of irrelevance and wrong-headedness. The former directors argue, for example, that any reopened investigation would damage the intelligence community’s ability to obtain cooperation of foreign intelligence agencies.

In fact, the opposite is the case. Foreign intelligence agencies have been holding back their liaison activities and their cooperation with the CIA because of the crimes associated with secret prisons, torture and abuse, and extraordinary renditions. It is quite unbelievable that CIA leaders decided to compromise the governments and intelligence services of the European community by locating secret prisons and using logistical facilities within their borders. It is very unlikely that any member of the European Union will cooperate with such CIA activities in the future.

The seven directors argue predictably that career prosecutors have already investigated the relevant cases where “Agency officers appeared to have acted beyond their existing legal authorities,” but with the exception of a prosecution of a CIA contractor there was a determination that prosecutions were not warranted. They do not mention that a political appointee in the Bush administration, Paul McNulty, was responsible for these decisions and they do not refer to the unconscionable politicization of the Bush administration’s Justice Department.

Finally, the letter argues that any criminal investigation would “seriously damage the willingness” of intelligence officers to “take risks to protect the country.”

This is arrant nonsense! One of the reasons why the CIA had to resort to independent contractors, particularly former military officers and enlisted men, to staff secret prisons and conduct torture and abuse was because of the opposition of professional intelligence officers to the policies of the Bush administration. An investigation would not compromise the national security interests of the United States, although it would cause grave embarrassment to those who carried out these policies and would perhaps guarantee that these actions would never again be permitted.

It is also worthwhile to examine those individuals who signed the letter to the president.  Jim Schlesinger abolished the Office of National Estimates, the most prestigious Agency department for intelligence analysis, because of its independence and created a group of National Intelligence Officers who would be more responsive to the policy demands of the White House and the National Security Council.

Upon arrival at the CIA in 1973, he assembled the CIA’s Soviet analysts and told them to “stop fucking Richard Nixon.” Judge William Webster obstructed the Walsh investigation of Iran-Contra, particularly the case against a high-ranking operations officer who was responsible for illegal arms deliveries to the Contras. The officer was indicted by a Grand Jury for making false statements and obstructing the investigations of the CIA’s Inspector General as well as the work of the Tower Commission, but the case was dismissed after Webster refused to release necessary documents.

Jim Woolsey and John Deutch were short-lived directors who weakened the Agency’s role in collecting intelligence and conducting analysis in the key fields of arms control and international terrorism. Woolsey’s unwillingness to punish any of the eleven senior officers who were responsible for allowing Aldrich Ames, the notorious long-spy for the Soviet Union, to move into sensitive clandestine positions over a ten-year period led the Clinton administration to force his resignation.

Deutch’s security breaches at the CIA included the compromise of the most sensitive clandestine operations of the directorate of operations.  Deutch had introduced sensitive intelligence to his home computer that had been used for accessing pornographic sites, but he blamed others in the household for the compromise.

Tenet, Goss, and Hayden were directly involved in the decision-making that led to the creation of secret prisons in Europe, Southwest Asia, and the Far East; the use of torture and abuse; and the rendition of individuals who were guilty of no crimes against the United States. Tenet, moreover, was directly responsible for the false intelligence given to the White House to support the use of force authorization against Iraq in 2002 as well as the phony speech given by Secretary of State Colin Powell to the United Nations in 2003.

Goss worked assiduously to cover-up the 9/11 accountability report of the CIA’s Inspector General. His handpicked executive secretary, the third highest position at the CIA, was Kyle “Dusty” Foggo, who is currently serving a jail sentence for steering Agency contracts to a lifelong friend who bribed former congressman Randall “Duke” Cunningham.

Hayden entered the CIA under a cloud because, as director of the National Security Agency, he approved the warrantless eavesdropping program that began after 9/11.  And he left the CIA under a cloud this year because of his success in compromising the work of the Office of the Inspector General.

President Obama and Attorney General Eric Holder must ignore the efforts of the former CIA directors and many others to find the truths that would be part of any investigation of activities that went beyond any legal authority. Twenty-five years ago, CIA director William Casey tried to cover-up crimes that were committed in the remote El Salvadoran village of El Mozote. Eventually the Salvadoran government established a Truth Commission to investigate the crimes that had been dismissed by the Reagan administration.

Today, the United States needs to create a Truth Commission to understand the crimes that were committed over the past decade.

Melvin A. Goodman, a senior fellow at the Center for International Policy and adjunct professor of government at Johns Hopkins University, is The Public Record’s National Security and Intelligence columnist. He spent 42 years with the CIA, the National War College, and the U.S. Army. His latest book is Failure of Intelligence: The Decline and Fall of the CIA.

Portugese Parliament. Photo by Rui Nogueira.

On Aug. 28, in the first indication that European countries are prepared to help the Obama administration fulfill its promise to close Guantánamo by accepting prisoners who have been cleared for release, but who cannot be repatriated because of fears that they will face torture on their return, the Portuguese interior ministry announced that two Syrian prisoners had arrived from Guantánamo and had been released on their arrival in Portugal. Officials added that they are “not subject to any charge, they are free people and are living in homes provided by the state.”

Last December, Portugal took the lead in offering to rehouse cleared prisoners from Guantánamo, when, in a letter to other EU leaders, Luís Amado, the Portuguese Foreign Minister, declared, “The time has come for the European Union to step forward. As a matter of principle and coherence, we should send a clear signal of our willingness to help the US government in that regard, namely through the resettlement of detainees. As far as the Portuguese government is concerned, we will be available to participate.”

The deal was apparently sealed in June, when the government announced that it was ready to take “two or three” prisoners from Guantánamo, following a visit by US Special Envoy Daniel Fried. On arrival in Portugal, the former prisoners’ identities were not known. But on Monday, court documents released by the Justice Department revealed that the two men are 27-year old Mohammed al-Tumani (identified by the Pentagon as Muhammed Khan Tumani), and 37-year old Moammar Badawi Dokhan.

In a press release issued last Friday, the US Justice Department explained the circumstances of the men’s release, stressing that the final say in approving their transfer had been taken by Congress. “As directed by the President’s Jan. 22, 2009 Executive Order, the interagency Guantánamo Review Task Force conducted a comprehensive review of these cases,” the DoJ announced, adding, “As a result of that review, the detainees were approved for transfer from Guantánamo Bay. On Aug. 6, 2009, in accordance with Congressionally-mandated reporting requirements, the Administration informed Congress of its intent to transfer these two detainees.”

The Justice Department was also keen to allay any fears that the men might pose any threat in future. “The transfers were carried out under an arrangement between the United States and the government of Portugal,” the press release stated, adding, “The United States has coordinated with the government of Portugal to ensure the transfers take place under appropriate security measures and will continue to consult with the government of Portugal regarding these detainees.”

To be honest, these caveats were unnecessary, as the Portuguese government would not have taken the men in the first place, and would certainly not have announced that they “are free people and are living in homes provided by the state,” if there had been any doubts about their insignificance. Moreover, their stories, as revealed in publicly available documents from Guantánamo, also reveal that neither man had any connection whatsoever to international terrorism, revealing, as so often before, that right-wing hysteria about those still held in the prison is largely hyperbole of a kind that, on close inspection, reveals more about the cowardice and xenophobia of those making the claims than it does about the majority of the prisoners themselves.

Mohammed al-Tumani: A Story of Persistent Abuse

The younger of the two released men, Mohammed al-Tumani, who was just 18 years old when he arrived in Afghanistan in June 2001, has always maintained that he arrived as an immigrant with his entire family, and was seized by mistake with his father, Abdul Nasir al-Tumani, who is still held in Guantánamo. As I explained in my book The Guantánamo Files, based on the men’s accounts in their military tribunals:

The father had traveled to Afghanistan in1999 in search of work, finding a job in a restaurant in Kabul and bringing ten members of his family over in June 2001, including Mohammed, his grandmother and an eight-month old baby. Another six family members — his uncle’s family — arrived a week before 9/11, but after hearing about the attack on America the family fled to Jalalabad, where they stayed for a month, and then made their way on foot to Pakistan. On the way, their guide advised al-Tumani to let the women and children travel by car, to make them less of a target for highway robbers, but when he and his son arrived in Pakistan the local villagers handed them over to the Pakistani army.

Mohammed also said that, while in Pakistani custody, in three separate prisons, he and his father were “subjected to beatings and harsh torture,” and his nose was broken. He added that throughout this ordeal “there were Americans present,” and this account was echoed by his father, who said that the Pakistanis “were torturing us really hard,” and the Americans “were looking and standing right there. The Americans were present. I am sure about that because they were the ones who interrogated us.”

In addition, Mohammed explained that, in the US prison at Kandahar airport (where the prisoners were processed for Guantánamo), his father’s forehead was fractured “and the Red Cross saw this and wrote a report,” and he added that he received a fracture to his left hand, as well as suffering “many diseases” and “other methods of psychological torture,” including sleep deprivation.

He also explained, as Carol Rosenberg described it in the Miami Herald, that during interrogation at Camp X-Ray (the rudimentary first prison at Guantánamo, which was closed in June 2002), “one of the interrogators brought two wires connected to electricity and said that if you do not say that you and your father are from al-Qaeda or Taliban, I will place these in your neck,’” and that the abuse continued in Camp Delta (Camp X-Ray’s more permanent replacement), where he said that he was “threatened with violence,” and that “an interrogator threatened to send him to torture in a foreign country.”

Beyond these alarming examples of abuse, which cannot be independently confirmed (but which certainly accord with claims made by many other prisoners), Mohammed al-Tumani’s story is also notable for a startling example of how allegations made by other prisoners were regarded as reliable evidence by the authorities at Guantánamo, even when, as in al-Tumani’s case, the veracity of these claims was undermined by military officers who had chosen to investigate the quality of the supposed evidence rather than accepting it at face value.

The Baleful Effects of Guantánamo’s Notorious Liar

As Corine Hegland explained in two ground-breaking articles for the National Journal in 2006 (“Guantánamo’s Grip” and “Empty Evidence”), Mohammed al-Tumani was one of two prisoners whose protestations regarding what they claimed were false allegations made against them by other prisoners were investigated by their enterprising Personal Representative. The Representatives were military officers appointed in place of lawyers in the Combatant Status Review Tribunals, the review boards established in 2004, which, as one former insider, Lt. Col. Stephen Abraham has explained, were designed primarily to rubberstamp the prisoners’ prior designation as “enemy combatants” who could be held without charge or trial.

In the case of Farouq Saif (identified by the Pentagon as Farouq Ali Ahmed), a Yemeni who was accused of guarding Osama bin Laden’s private airport in Kandahar by another Yemeni prisoner, his Personal Representative (a principled but unidentified Air Force Lieutenant Colonel) submitted a written protest after looking at Saif’s file and discovering that the government’s sole evidence that he had been at bin Laden’s airport was the statement of another prisoner, who, according to an FBI memo that he presented to the tribunal, was a notorious liar. According to the FBI, he “had lied, not only about Farouq, but about other Yemeni detainees as well. The other detainee claimed he had seen the Yemenis at times and in places where they simply could not have been.” Despite this, Saif was judged to be an “enemy combatant,” and is still held at Guantánamo.

In addition, Hegland also discussed how Mohammed al-Tumani had been ensnared by the informer’s lies, as I explained in an article in 2007:

In his tribunal, [al-Tumani] denied an allegation that he had attended the al-Farouq training camp [the main training camp for Arabs, associated with Osama bin Laden in the years before 9/11] with such vigor that his Personal Representative decided to investigate the matter further. When he looked at the classified evidence, however, he found that only one man — the same detainee mentioned above — claimed to have seen him at al-Farouq, and had identified him as being there three months before he arrived in Afghanistan. As Corine Hegland described it, “The curious US officer pulled the classified file of the accuser, saw that he had accused 60 men, and, suddenly skeptical, pulled the files of every detainee the accuser had placed at the one training camp. None of the men had been in Afghanistan at the time the accuser said he saw them at the camp.”

As with Farouq Saif, however, the Personal Representative’s protestations were in vain, because Mohammed al-Tumani was also judged to be an “enemy combatant,” and had to wait for nearly five years before President Obama’s Guantánamo Review Task Force finally “conducted a comprehensive review” of his case, and, presumably, established that the evidence against him was unreliable. What has not been explained, however, is what happened in the cases of the other 58 men who were accused by the notorious liar, or why Mohammed’s father — whose circumstances seem to have been no different — was not cleared for release as well.

A Taliban Foot Soldier?

Less is known of the second man, Moammar Dokhan, who was 29 when he was captured on the Pakistani border, as he did not take part in any tribunals or review boards at Guantánamo. According to the Pentagon, he “traveled from Saudi Arabia to Afghanistan with the stated intention of joining the Taliban,” “served as a rear-echelon guard and manned an observation post” near Bagram, and “carried a rifle while on duty at the observation post.”

With nothing else to rely on, the authorities tried to spice up this meager list with claims that “his name was contained on a list of incarcerated associates found on a computer used by suspected al-Qaeda members in Pakistan in early 2002,” and that his name “was contained on a list of captured mujahideen found in Pakistan on a hard drive associated with a high-ranking al-Qaeda operative,” although as I explained in a brief profile of Dokhan’s case last year:

It is not known if these two claims in fact refer to the same computer file, but neither provides proof of anything other than the fact that he was caught and imprisoned as a suspected militant. The “list,” as in the cases of many other prisoners, may have been nothing more than a report of the prisoners’ names, mentioned in the media or leaked by the men’s jailers, and it appears to be no more useful as evidence than the Bush administration’s claims that those in Guantánamo are “enemy combatants,” because the President decided, without the need for evidence, that that was the case.

Nevertheless, although the Taliban allegations indicate that Dokhan was, at best, nothing more than one of the lowliest Taliban recruits in an inter-Muslim civil war that predated the 9/11 attacks and had nothing to do with al-Qaeda (although Dokhan himself “denie[d] ever having been in Afghanistan”), it is surprising that Obama’s Task Force allowed him to be released, as, elsewhere, the Justice Department has been working overtime to prevent judges in the District Courts from granting the habeas corpus appeals of other prisoners whose connections to the Taliban have been no more pronounced, and, just last week, scored what appeared to be a rare victory when Judge Kollar-Kotelly ruled that a Kuwaiti prisoner, Fawzi al-Odah, could continue to be detained because the government had established, “by a preponderance of the evidence,” that he was probably involved with the Taliban and/or al-Qaeda.

Logic dictates that those who traveled to Afghanistan to serve with the Taliban are a different type of prisoner from those who were members of al-Qaeda, and were committed to plotting and pursuing terrorist attacks against the US and its allies, but logic was a rare commodity in the Bush administration, which chose instead to conflate al-Qaeda with the Taliban and to pack Guantánamo with men who knew nothing about Osama bin Laden or the 9/11 attacks, and had no involvement with terrorism. Moreover, the effects of this confusion linger to this day, as the Obama administration has chosen to maintain the same fiction that al-Qaeda and the Taliban are interchangeable, and the District Courts are also bound by this ludicrous lack of distinction.

We may never discover what the government’s secretive Guantánamo Review Task Force concluded about Moammar Dokhan (or, for that matter, about Mohammed al-Tumani), but by cutting through the hyperbole and granting these two men their freedom, the Portuguese government has just established that it has a clarity of vision that, with just four months to go until President Obama’s deadline for closing Guantánamo, remains sorely lacking in the United States.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to Mr. Worthington’s RSS feed, and also see his definitive Guantánamo prisoner list, published in March 2009.

In a defiant half-hour interview on Fox News, Cheney launched a blistering attack on the Obama administration calling Holder’s decision “an outrageous political act” and warned that it “will do great damage, long-term, to our capacity to be able to have people take on difficult jobs, make difficult decisions, without having to worry about what the next administration is going to say.”

As for Cheney’s willingness to be interviewed as part of the probe, he said, “It will depend on the circumstances and what I think their activities are really involved in.”

Last week, Holder instructed Assistant U.S. Attorney John Durham to undertake a “preliminary” inquiry into whether some interrogators exceeded the parameters that the Bush administration placed on the treatment of “war on terror” detainees. With Cheney’s strong support, interrogators were permitted to engage in a variety of torture techniques, including the drowning sensation of waterboarding, but some interrogators allegedly engaged in practices outside those guidelines.

“I’m very proud of what we did in terms of defending the nation for the last eight years successfully,” Cheney said in the Fox News interview broadcast Sunday. “And, you know, it won’t take a prosecutor to find out what I think. I’ve already expressed those views rather forthrightly.”

Cheney said the torture investigation would undercut CIA efforts to uncover terrorist threats, a position that has been challenged by veteran intelligence officials and experienced interrogators.

Jack Cloonan, a former FBI security and counterterrorism expert who was assigned to the agency’s elite Bin Laden Unit, said in an interview that Cheney and Republican lawmakers were sounding “false alarms” in an effort to keep serious crimes from being exposed.

“To suggest [intelligence gathering] will come to a screeching halt if there were an investigation is not accurate,” Cloonan said.

Col. Steve Kleinman, a career military intelligence officer who is recognized as one of the Defense Department’s most effective interrogators, also disagreed with Cheney.

“I’m a professional interrogator, I have 25 years of experience in this and I don’t have any concern whatsoever that an investigation into how we conducted ourselves since 9/11 would in any way undermine our ability to continue gathering intelligence,” Kleinman said.

And Col. Lawrence Wilkerson, former Secretary of State Colin Powell’s chief of staff, said in an interview that members of the intelligence community whom he has spoken to in recent weeks favor a serious investigation.

“My conversations with agency members — retired and active — reveals the opposite” of what Cheney has stated about the alleged damage to morale from an investigation, Wilkerson said.

“They want the dirty laundry aired and the people responsible punished,” Wilkerson said. “One or two are worried about countries such as Poland and Morocco where secret prisons were located and [torture was] condoned, but not so much for future intelligence reasons as for what may happen to the leaders who condoned the prisons now that the citizens of those countries have been made aware.

“It is illogical, if not idiotic, to make the claim…that the CIA’s morale will be damaged by investigations aimed at establishing who did what to whom and perhaps, achieving some accountability. The overwhelming majority of the CIA had nothing to do with torture and, most likely would welcome its being brought to light and dealt with.

“In short, they do not like being tarred with a brush that only should touch less than one percent of the agency. Just as many combat soldiers and Marines in the field objected to the sort of practices we saw highlighted in 2004 at Abu Ghraib, many CIA members would object to torture too.”

But Wilkerson said he thinks the investigation should go further, to include Cheney, the Vice President’s former counsel David Addington, Justice Department lawyers who wrote the legal opinions authorizing torture, as well as former Defense Secretary Donald Rumsfeld, who spread some of the techniques to prisons run by the U.S. military, and other top Bush administration officials who sanctioned the abuse.

“I do not believe we have the political will or skill to punish the higher-ups,” Wilkerson said. “So because of that reality I don’t think any of the senior people will be held accountable. I do believe that they should be however.”

Cheney’s interview left the impression that the former Vice President didn’t object to lawbreaking as long as the ends justified the means. He indicated he had no problem with some CIA interrogators going beyond the Justice Department’s prescribed limits.

Last week, a May 2004 report prepared by CIA Inspector General John Helgerson on the Bush administration’s detention and torture program said interrogators staged mock executions, revved a power drill and brandished a revolver during interrogations and threatened to kill the family of self-professed 9/11 mastermind Khalid Sheikh Mohammed and rape the wife of another high-value detainee, Abd Al-Rahim Al Nashiri.

Threatening prisoners in custody of the U.S. government with imminent death is a violation of the Convention Against Torture.

But Cheney was unmoved. He said the fact that allegations of crimes contained in Helgerson’s report had already been reviewed by career prosecutors five years ago, who concluded that certain torture cases weren’t prosecutable, was evidence the allegations of criminal behavior had no merit.

Cheney added that President Barack Obama could have easily thwarted the probe if he wanted to.

“We had the President of the United States, President Obama, tell us a few months ago there wouldn’t be any investigation like this, that there would not be any look-back at CIA personnel who were carrying out the policies of the prior administration,” Cheney said. “Now they get a little heat from the left wing of the Democratic Party, and they’re reversing course on that.

“The President is the chief law enforcement officer in the administration. He’s now saying, well, this isn’t anything that he’s got anything to do with. He’s up on vacation at Martha’s Vineyard, and his Attorney General is going back and doing something that the President said some months ago they wouldn’t do.

“I think if you look at the Constitution, the President of the United States is the chief law enforcement officer in the land. The Attorney General’s a statutory officer. He’s a member of the cabinet. The President’s the one who bears this responsibility.

“And for him to say, ‘gee, I didn’t have anything to do with it,’ especially after he sat in the Oval Office and said this wouldn’t happen, then Holder decides he’s going to do it.”

As Marc Jacoby noted in an article published on the legal news website Main Justice:

Cheney appears to be taking an expansive view of Article II of the Constitution, which says: “The executive Power shall be vested in a President of the United States.” Yet in practice and common understanding, the chief law enforcement officer of the United States is the Attorney General. The Judiciary Act of 1789 established the AG’s office, “which evolved over the years into …. chief law enforcement officer of the Federal Government,” the Department of Justice’s Web site says.

The Attorney General’s office is unique in that it is expected to enforce the nation’s laws fairly, uphold the Constitution and represent the broader interests of the American people, not the political interests of the White House. While President Obama has said he opposes a new review of the CIA interrogation methods, he’s also repeatedly said the decision ultimately lies with Holder.

Additionally, Obama has said CIA interrogators “who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

Also, contrary to Cheney’s assertions, most recent presidential administrations have sought to maintain a separation between the White House and the Justice Department’s handling of criminal cases, especially limiting contact on politically sensitive investigations.

During George W. Bush’s presidency, however, many of those walls were broken down as evidenced by the firings of nine U.S. Attorneys in 2006, after some were deemed not “loyal Bushies” for balking at bringing criminal charges against Democrats and allied organizations. Bush’s White House also played a key behind-the-scenes role in creating legal justifications for the torturing of terror suspects.

Rep. Jerrold Nadler, D-NY, Chair of the House Subcommittee on the Constitution, Civil Rights, and, Civil Liberties, who is one of a handful of Democratic lawmakers that pressed Holder to appoint a special counsel, said Monday Cheney’s comments were “outrageous.”

“Perhaps, given the extent to which Vice President Cheney may be implicated in the use of torture, he may not be able to be completely objective in this matter,” Nadler said.

Cheney “is essentially saying that any acts performed by members of the CIA – no matter how illegal or abhorrent – are ok, and must never be the subject of a criminal investigation. No matter what anyone in the CIA may do, it need not be subject to the law. This is outrageous, and violates just about every traditional American concept of liberty and justice.

“Torture is also a violation of our nation’s most fundamental values going back as far as General Washington’s prohibition against torture in the Revolutionary War. We have prosecuted our own personnel, as well as foreign leaders, for engaging in the same practices. After World War II, we even executed people for engaging in this conduct.”

During the Fox interview, Cheney continued to misrepresent the substance of Helgerson’s CIA report, which found that so-called “enhanced interrogation techniques” or “EITs” did not prevent any imminent terrorist attacks, as Cheney had long claimed. Other documents released last week also fell short of proving Cheney’s claim that the brutal interrogations produced actionable intelligence.

Helgerson said the CIA’s limited data did not permit “definitive conclusions about the effectiveness of particular interrogation methods,” but he expressed concern that the brutal practices could have harmful repercussions by damaging the U.S. image as an advocate of human rights.

Matthew Alexander, the senior interrogator for the  task force in Iraq that tracked down al-Qaeda-in-Iraq leader Abu Musab  al-Zarqawi in 2006, said he believes what Cheney sanctioned “caused the deaths of some U.S. military personnel.” [Matthew Alexander is a pseudonym used to protect the interrogator’s identity and security.]

Meanwhile, Sen. Dianne Feinstein, chair of the Senate Intelligence Committee, questioned the “timing of” the Justice Department’s probe as “not very good.” Feinstein’s committee has been conducting its own “review” about the effectiveness of the torture program and whether it resulted in actionable intelligence. Her committee is expected to issue a report later this year.

“Candidly, I wish that the Attorney General had waited,” Feinstein said. “Every day, something kind of dribbles out into the public arena. Very often it has mistakes. Very often it’s half a story. I think we need to get the whole story together and tell it in an appropriate way.

“A lot of things are being said — ‘Well, you know, torturing people is something that we did, but on the other hand, it produced all kinds of incredible information.’ It did produce some information, but there is a great discrepancy, and I think a good deal of error out there in what people are saying it did produce.”