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Stephen Abraham Exhibits EXHIBIT 1 Unlikely Adversary Arises to Criticize Detainee Hearings - New York Times http://www.nytimes.com/2007/07/23/us/23gitmo.html?pagewanted=print

July 23, 2007 Unlikely Adversary Arises to Criticize Detainee Hearings

By WILLIAM GLABERSON

NEWPORT BEACH, Calif. — Stephen E. Abraham’s assignment to the Pentagon unit that runs the hearings at Guantánamo Bay, Cuba, seemed a perfect fit.

A lawyer in civilian life, he had been decorated for counterespionage and counterterrorism work during 22 years as a reserve Army intelligence officer in which he rose to the rank of lieutenant colonel. His posting, just as the Guantánamo hearings were accelerating in 2004, gave him a close-up view of the government’s detention policies.

It also turned him into one of the Bush administration’s most unlikely adversaries.

In June, Colonel Abraham became the first military insider to criticize publicly the Guantánamo hearings, which determine whether detainees should be held indefinitely as enemy combatants. Just days after detainees’ lawyers submitted an affidavit containing his criticisms, the United States Supreme Court reversed itself and agreed to hear an appeal arguing that the hearings are unjust and that detainees have a right to contest their detentions in federal court.

Some lawyers say Colonel Abraham’s account — of a hearing procedure that he described as deeply flawed and largely a tool for commanders to rubber-stamp decisions they had already made — may have played an important role in the justices’ highly unusual reversal. That decision once again brought the administration face to face with the vexing legal, political and diplomatic questions about the fate of Guantánamo and the roughly 360 men still held there.

“Nobody stood up and said the emperor’s wearing no clothes,” Colonel Abraham said in an interview. “The prevailing attitude was, ‘If they’re in Guantánamo, they’re there for a reason.’ ”

The curtain on the hearings had been pulled back a bit previously, when the Pentagon, under pressure, released some transcripts. But by stepping forward, Colonel Abraham gave the Supreme Court and the public a look from an insider at a process that remains heavily shielded.

He expanded on that account in a series of recent conversations at his law office here, offering a detailed portrait of a system that he described as characterized by superficial efforts to gather evidence and frenzied pressure to conduct hundreds of hearings in a few months.

Most detainees, he said, have no realistic way to contest charges often based not on solid information, but on generalizations, incomplete intelligence reports and hints of terrorism ties.

“What disturbed me most was the willingness to use very small fragments of information,” he said, recounting how, over his six-month tour, he grew increasingly uneasy at what he saw. In the interviews, he

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often spoke coolly, with the detachment of a lawyer, but as time wore on grew agitated as he described his experiences.

Often, he said, intelligence reports relied only on accusations that a detainee had been found in a suspect area or was associated with a suspect organization. Some, he said, described detainees as jihadist without detail.

Pentagon officials have dismissed his criticisms as biased and said he was not in the position to have seen the entire process work.

As an intelligence officer responsible for running the central computer depository of evidence for the hearings, he said, he saw many of the documents in hundreds of the 558 cases. He also worked as a liaison with intelligence agencies and served on one three-member hearing panel.

All of which has left Colonel Abraham, 46, a civilian business lawyer who has lately been busy with a lawsuit between makers of pomegranate juice, with a central role in the public debate over Guantánamo. His account has been widely discussed in Congress, the administration and the press. On Friday, a federal appeals court judge took note of it in describing what she said were problems with the Pentagon’s hearing process.

He has been called a whistleblower and a traitor. On July 26, he is to testify before a House committee.

His road to notoriety, he says, is entirely of a piece with his biography. A political conservative who says he cried when Richard M. Nixon resigned the presidency, he says he has remained a reservist throughout his adult life to repay the country for the opportunities it offered his family. His father is a Holocaust survivor who emigrated after the Second World War.

“It is my duty,” Colonel Abraham said of his decision to come forward.

Pentagon officials say his account indicates that he misunderstood the purpose of the hearings, known as combatant status review tribunals or C.S.R.T.’s, which the officials say “afford greater protections for wartime detainees than any nation has ever provided.”

A Pentagon spokesman, Lt. Cmdr. Chito Peppler of the Navy, said that Colonel Abraham’s “apparently biased insinuations” did not indicate bad faith or improper behavior by military officials.

“In his capacity as database manager during his brief stint on active duty several years ago,” Commander Peppler said, “Lieutenant Colonel Abraham was not in a position to have a complete view of all the evidence used in the C.S.R.T.’s, as well as the process as a whole.”

Colonel Abraham arrived at the Office for the Administrative Review of the Detention of Enemy Combatants during a chaotic period in September 2004.

The plan for the hearings had come from the highest levels of the Pentagon after two Supreme Court rulings on June 28, 2004, put the Bush administration on the defensive over its detainee policies.

One ruling suggested that detainees would be entitled to hearings “before a neutral decision maker.” The

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other said detainees could have federal courts review their detentions. Nine days later, Paul D. Wolfowitz, then deputy defense secretary, issued an order creating the C.S.R.T.’s.

Colonel Abraham had already served a year on active duty after the 2001 terrorist attacks. At Pearl Harbor, he had been cited for exceptionally meritorious service as “lead counterterrorism analyst,” burnishing a record that included a citation for leading a counterespionage operation in the 1980s that ended with the detention of three Soviet agents.

A divorced father of a 7-year-old daughter, he was not looking for a posting. But a commander suggested that his skills were needed: the hearing program was entering its busiest period, with more than 200 people gathering evidence and running the hearings at an office near the Pentagon and in Guantánamo.

It was obvious, Colonel Abraham said, that officials were under intense pressure to show quick results. Quickly, he said, he grew concerned about the quality of the reports being used as evidence. The unclassified evidence, he said, lacked the kind of solid corroboration he had relied on throughout his intelligence career. “The classified information,” he added, “was stripped down, watered down, removed of context, incomplete and missing essential information.”

Many detainees implicated other detainees, he said, and there was often no way to test whether they had provided false information to win favor with interrogators.

He said he was prohibited from discussing the facts of cases. But public information, much of it obtained through lawsuits, includes examples of some of the points he made.

In a hearing on Oct. 26, 2004, a transcript shows, one detainee was told that another had identified him as having attended a terrorism training camp.

The detainee asked that his accuser be brought to testify. “We don’t know his name,” the senior officer on the hearing panel said.

At another hearing, later reviewed by a federal judge, a Turkish detainee, Murat Kurnaz, was said to have been associated with an Islamic missionary group. He had also traveled with a man who had become a suicide bomber.

“It would appear,” Judge Joyce Hens Green wrote in 2005, “that the government is indefinitely holding the detainee — possibly for life — solely because of his contacts with individuals or organizations tied to terrorism and not because of any terrorist activities that the detainee aided, abetted or undertook himself.”

In a third hearing, an Afghan detainee said he had indeed been a jihadist — during the 1980s war against the Soviet Union, when a lot of Afghans were jihadists. Was that what the accusation against him meant, he asked, or was it referring to later, during the American war?

“We don’t know what that time frame was, either,” the tribunal’s lead officer replied.

During one of the recent interviews, Colonel Abraham said that the general accusations that detainees were jihadists without much more alarmed him.

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“As an intelligence agent, I would have written ‘junk statement’ across that,” he said.

Critics of the administration’s detention policies have questioned the hearings’ fairness, noting that detainees are not permitted lawyers and cannot see much of the evidence. Pentagon officials have said such criticism is not meaningful because a combatant status hearing “is not a criminal trial.” They note that 38 of the 558 cases ended in decisions favorable to the detainees.

But Colonel Abraham said that in meetings with top officials of the office, it was clear that such findings were discouraged. “Anything that resulted in a ‘not enemy combatant’ would just send ripples through the entire process,” he said. “The interpretation is, ‘You got the wrong result. Do it again.’ ”

He said his concerns about the fairness of the hearings had grown as time passed. “The hearings amounted to a superficial summary of information, the quality of which would not have withstood scrutiny in any serious law-enforcement or intelligence investigation,” he said.

While in Washington, he stayed with a sister, Susan J. Borschel, a real estate lawyer. Last week, she recalled Colonel Abraham’s saying that he was troubled by the way the Pentagon was running the hearings. It was a notable observation, she said, from a “law and order” man.

Soon, Colonel Abraham said in one of the conversations, he began to worry that involvement in the process might be improper for a lawyer because there were so many shortcuts. “There were too many assumptions. Too many presumptions,” he said. He said he had expressed his concerns to supervising officers.

His law partner, Steven Fink, said that would not have been unusual. “You will get his opinion whether you want it or not,” Mr. Fink said.

Colonel Abraham’s misgivings reached a peak in December 2004.

On Dec. 10, he wrote a letter to Rear Adm. James M. McGarrah, who was running the hearings operation. In the letter, a copy of which he provided to The New York Times, Colonel Abraham asked to be released from his assignment, saying participation “may be in conflict with my obligations as an attorney.” He said he had never received an official response.

He finished his tour, which ended in March. He came back to his life in Newport Beach and, he said, more or less forgot about Guantánamo.

As it turned out, lawyers at his sister’s firm, Pillsbury Winthrop Shaw Pittman, began representing detainees in 2006. Though she is not involved, she mentioned that her brother had worked on the hearings.

Last month, one of the lawyers, Matthew J. MacLean, a former Army lawyer, called Colonel Abraham and asked him to look at an affidavit filed in May by Admiral McGarrah.

Colonel Abraham said the admiral’s affidavit, describing the hearing process as orderly and considered, had convinced him that he had to step forward. He began to describe his experience.

“This was it,” Mr. MacLean said last week, “the first evidence of how these tribunals operated from the inside.”

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Mr. MacLean called Colonel Abraham for the first time on June 8. The detainees’ lawyers filed his seven-page affidavit in court on June 22. It was sharply critical of the hearings and the evidence they used, saying “what purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence.” On June 29, the Supreme Court announced that it would hear the detainees’ case.

One of the tribunals the lawyers have learned more about since then was the one on which Colonel Abraham sat. Documents they have gathered show that he was assigned to the panel in November 2004. The detainee was a Libyan, captured in Afghanistan, who was said to have visited terrorist training camps and belonged to a Libyan terrorist organization.

By a vote of 3 to 0, the panel found that “the detainee is not properly classified as an enemy combatant and is not associated with Al Qaeda or Taliban.”

Two months later, apparently after Pentagon officials rejected the first decision, the detainee’s case was heard by a second panel. The conclusion, again by a vote of 3 to 0, was quite different: “The detainee is properly classified as an enemy combatant and is a member of or associated with Al Qaeda.”

Colonel Abraham was never assigned to another panel.

Margot Williams contributed reporting from New York.

5 of 5 7/11/2008 2:37 PM EXHIBIT 2 Critic and Ex-Boss Testify on Guantánamo Hearings - New York Times http://www.nytimes.com/2007/07/27/us/27gitmo.html?pagewanted=print

July 27, 2007 Critic and Ex-Boss Testify on Guantánamo Hearings

By WILLIAM GLABERSON

WASHINGTON, July 26 — The military insider whose criticism of hearings for detainees at Guantánamo Bay, Cuba, has become a centerpiece of the debate over the tribunals told Congress on Thursday that the hearings were arbitrary and sometimes relied on “garbage” evidence and that decisions in the proceedings were influenced by commanders.

“What I expected and what occurred were two entirely different things,” the officer, Lt. Col. Stephen E. Abraham of the Army Reserve, said in testimony before the House Armed Services Committee.

“What I expected to see was a fundamentally fair process,” Colonel Abraham added.

The colonel’s account, made public in a court filing last month, has put the Pentagon on the defensive because he is the first participant in the largely secret process to criticize it publicly.

Colonel Abraham has become something of a celebrity among administration critics who have attacked the hearings as unfair. Some Democrats on the Congressional panel called him a brave man and thanked him, while some Republicans were hostile and suggested that he had little expertise to offer.

The hearings he has described are the military panels — combatant status review tribunals — that determine whether Guantánamo detainees are properly held as enemy combatants. Detainees are not permitted to have lawyers and cannot see most of the evidence against them.

Also testifying Thursday, Colonel Abraham’s former commander in charge of the hearings defended them as fair and a “very robust process.”

The former commander, Rear Adm. James M. McGarrah, now retired from the Navy, said that while Colonel Abraham is a lawyer and a military intelligence officer, most of his six-month assignment with the hearings unit, the Office for the Administrative Review of the Detention of Enemy Combatants, was spent “helping us build the database” for the hearings.

“While he had a personal involvement, his view was of a very narrow piece of the process,” Admiral McGarrah said. “We had dozens of people working on information collection.”

Colonel Abraham was a liaison to intelligence agencies and was a member of one hearing panel. He also worked on the unit’s database, which he has described as a depository for much of the evidence against detainees. He told the panel that in his database work he saw thousands of documents that were used as evidence in more than 300 of the 558 hearings conducted in 2004 and 2005.

The hearing on Thursday was part of an effort by Democrats to press for legislation giving detainees access

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to federal district courts in habeas corpus proceedings to challenge their detentions. Congress has twice passed legislation to bar the courts from hearing such cases, and the Supreme Court said last month that it would consider what could be the definitive appeal on the subject.

The drive for new legislation focuses in large part on critics’ contentions that the hearings are unfair. The administration argues that the hearings give detainees more rights than have ever been accorded wartime detainees.

After years of battles, the debate has become formulaic, and each side’s moves predictable. The hearing began with the Republicans introducing into the record a report prepared at the Pentagon’s request by a West Point study group that describes the detainees as far more dangerous than is often understood.

The Democrats then introduced a rebuttal by a group from Seton Hall University Law School, who last year wrote a report describing the detainees in less frightening terms.

But Colonel Abraham was the star witness. Spirited and enthusiastic, he interrupted members of the panel and at one point told the committee chairman, Representative Ike Skelton, Democrat of Missouri, that he had not properly framed a question.

He said he had raised frequent concerns about the fairness of the process, but that “a quick result was preferred over a probing inquiry.”

In the tribunal hearing he took part in, he testified, the three panel members all agreed that the military did not have evidence against the detainee. “Not only I, but the other members of the panel said, ‘This is garbage,’ ” Colonel Abraham said.

Some committee members were unmoved. Representative John Kline, a Minnesota Republican who is a former marine, questioned Colonel Abraham about how much work he had done on the hearings. “We are looking at you for information about this entire process, but you served on one panel,” Mr. Kline said. “This is not the depth and breadth of experience we ought to be looking at.”

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2 of 2 DOCUMENTS

Los Angeles Times

January 5, 2008 Saturday Home Edition

Making a case against tribunals; An O.C. lawyer is the first insider to publicly criticize the reviews at Guantanamo as fundamentally unfair.

BYLINE: Myron Levin, Times Staff Writer

SECTION: CALIFORNIA; Metro Desk; Part B; Pg. 3

LENGTH: 1161 words

Stephen Abraham, a Newport Beach lawyer and lieutenant colonel in the Army Reserves, hardly seemed like whistle-blower material. A decorated intelligence officer, he served after 9/11 as lead counterterrorism analyst at the Joint Intelligence Center at Pearl Harbor. He was a longtime Republican, a patriot devoted to protecting national security. When he began a six-month tour of duty with the military tribunals reviewing the status of detainees at Guantanamo Bay, Cuba, he saw it as a "fantastic opportunity" to participate in a historic effort to help his country. Instead, his account of the experience has become powerful ammunition for lawyers fighting for detainees' rights. In June, Abraham became the first insider to publicly criticize the tribunals created by the Bush administration as fundamentally unfair. His criticism, contained in an affidavit filed with the U.S. Supreme Court, figured in a rare decision by the court to reverse itself and hear arguments about whether detainees had been given an adequate chance to plead their innocence. Arguments were held in December, and a ruling is pending. "We give rights to the most reviled of accused criminals," Abraham said in an interview last month. It is "beyond the power that we give to government to say to anybody, 'Whatever notion of fair play we have, it won't apply to you.' " Abraham's stand has made him a hero in the eyes of human rights groups and detainees' lawyers. And it has put him publicly at odds with the military. "Lt. Col. Abraham was not in a position to have a complete view of the . . . process," said Navy Capt. Lana D. Hampton, a Pentagon spokeswoman. Tribunal procedures "afford greater protection for wartime detainees than any nation has ever before provided," she said. Abraham's six-month tour began in September 2004. Among other duties, he served as a liaison between tribunals and defense and intelligence agencies with information on the captives. He said he was struck immediately by the general nature of the allegations against detainees. And he was concerned that information potentially favorable to detainees was not being submitted to the tribunals. When he requested written statements that no such evidence existed, "the requests were summarily denied," he said in his affidavit. With two other officers, Abraham sat on the tribunal of a detainee held since early 2002. According to his affidavit, the case "lacked even the most fundamental earmarks of objectively credible evidence." His panel determined that the detainee should not be classified as an enemy combatant. Page 2 Making a case against tribunals; An O.C. lawyer is the first insider to publicly criticize the reviews at Guantanamo as fundamentally unfair. Los Angeles Times January 5, 2008 Saturday

He learned later that a new tribunal had been convened and reached the opposite conclusion. The entire process was biased, he said. As a result of 572 reviews by the tribunals held mostly in 2004 and 2005, 38 detainees were judged to have been improperly classified as enemy combatants. Said Thomas Wilner, a lawyer who has represented 15 Guantanamo detainees: "Stephen was the first person from the government who said . . . the process was a sham." "It's very easy . . . in times of hysteria to go along with the crowd -- particularly when your superiors are ordering it -- and shave your principles a bit." Despite his conservative politics, Abraham's stand was not out of character, said Steven Fink, his law partner. Fink describes his friend as a highly princi- pled man who does not suffer fools gladly. As a student at UC Davis, where his father was a professor of French literature, Abraham joined the ROTC. He was commissioned an Army officer after graduating in 1981 with a degree in anthropology. Of his decision to join the military, Abraham said the country had opened its arms to his father, a Holocaust survivor, and he considered that "a debt worth beginning to repay." Married and the father of an 11-year old daughter, Abraham is an avid musi- cian who plays the viola and violin. His two-man law firm handles real estate and other matters for small to mid-size businesses. When Abraham learned that officers with legal and intelligence backgrounds were needed to staff the tribunals, he said, he was eager to offer his services. In preparation, he reviewed legal rulings and treaties on prisoners of war going back more than 50 years. His tour coincided with contentious debate over whether habeas corpus -- the right to challenge the legal basis for detention -- extends to foreigners held as enemy combatants in the war on terror. The Bush administration argued that the detainees had no such right, but the Supreme Court ruled in 2004 that there must be a process for reviewing whether they were being properly held. In response, Pentagon officials created the military tribunals. The program faced a strict time limit, with more than 500 detainee status reviews to be completed in a few months. Detainees were not represented by lawyers before the three-member tribunals. They were not informed of much of the evidence against them. Nor was there a budget allocation for outside witnesses to appear on a detainee's behalf. Midway through the six-month assignment, Abraham sent a memo to the unit commander, Navy Rear Adm. James McGarrah, seeking release from duty on grounds that it "may be in conflict with my obligations as an attorney." He said he did not get a direct response but was told informally that he would not be asked to serve on any more tribunals. About three months later, Abraham returned to civilian life. There the matter would have ended but for the intervention of his sister, Susan J. Borschel, a lawyer in the Washington, D.C., suburban area. Though she did not represent detainees, some of Borschel's colleagues did. In June, at her request, Abraham agreed to speak to those lawyers. At their request, he reviewed an affidavit that described the tribunal process. Abraham said it reflected a "Pollyanna view" of the tribunal system that was "at best disingenuous." Abraham responded June 15 with his own affidavit, which defense lawyers filed as part of their successful petition to the U.S. Supreme Court to reconsider a Kuwaiti captive's appeal of his detention. Page 3 Making a case against tribunals; An O.C. lawyer is the first insider to publicly criticize the reviews at Guantanamo as fundamentally unfair. Los Angeles Times January 5, 2008 Saturday

Although they were once routinely described by U.S. authorities as "the worst of the worst," many detainees, according to their lawyers, were simply war refugees or other innocent bystanders snatched by bounty hunters and turned over for rewards. Most have been sent home -- without explanation or apology, their lawyers say. Of 780 individuals held at Guantanamo, about 300 remain. Among them is Abdul Hamid Al-Ghizzawi, the man cleared by Abraham's tribunal before a second panel restored his combatant status. According to court papers by his attorney, Al-Ghizzawi has hepatitis B and tuberculosis, has not seen or talked to his family in almost six years and "is rapidly losing his mind as he sits in total isolation." Abraham expresses some empathy for the man. "He's about my age," mused Abraham. "He's got a daughter. He hasn't seen her in a long time. He's close to death." -- [email protected]

LOAD-DATE: January 5, 2008

LANGUAGE: ENGLISH

GRAPHIC: PHOTO: A CRITIC: "We give rights to the most reviled of accused criminals," Stephen Abraham said. It is "beyond the power that we give to government to say to anybody, 'Whatever notion of fair play we have, it won't apply to you.' " PHOTOGRAPHER:Mark Boster Los Angeles Times PHOTO: (ORANGE COUNTY EDI- TION) VOLUNTEER: Stephen Abraham served on the tribunal of a Guantanamo detainee. PHOTOGRAPHER:Mark Boster Los Angeles Times

PUBLICATION-TYPE: Newspaper

EXHIBIT 4 SCOTUSblog » Print » U.S.: Let war crimes trials begin http://www.scotusblog.com/wp/us-let-war-crimes-trials-proceed/print/

- SCOTUSblog - http://www.scotusblog.com/wp -

U.S.: Let war crimes trials begin Posted By Lyle Denniston On July 15, 2008 @ 6:08 am In Uncategorized | Comments Disabled

UPDATED 9:30 a.m.

Arguing that it is “far from clear” that Guantanamo Bay detainees have any constitutional rights when tried on war crimes charges, the Justice Department late Monday urged a federal judge not to delay the first trial — due to start in seven days.

In a 64-page [1] brief in opposition, the Department said that Congress has taken away the authority of federal judges to intervene to review the military commission trial process before a conviction has resulted. It also contended that the commission process itself provides “unprecedented” legal protection for detainees but that, if there is any claimed flaw in the proceedings, that can be challenged in a civilian court reviewing any verdict.

The brief was filed in the case of Salim Ahmed Hamdan, a Yemeni national who is now due to go on trial July 21 in the first of what may be about 80 such trials of detainees now at Guantanamo — including cases against so-called “high-value” detainees, some of whom are facing charges growing out of alleged roles in the 9/11 terrorist attacks.

U.S. District Judge James Robertson in Washington is considering a challenge by Hamdan’s lawyers to his impending trial (see [2] this post on July 3). Hamdan’s reply brief in Hamdan v. Gates (docket 04-1519) is due Wednesday, and the judge will hold a hearing at 10 a.m. Thursday.

Hamdan’s challenge, and the government’s response, set up a potentially major conflict over the meaning of the Supreme Court’s June 12 decision in Boumediene v. Bush (06-1195), clarifying some of the legal rights of Guantanamo detainees. Hamdan’s lawyers contend that the Boumediene decision undercut the very basis of military commission trials, while the government responds that Boumediene had nothing to do with the commission system.

Strongly resisting judicial review of war crimes cases before trials start, the Justice Department said Monday that Hamdan’s plea “is not without some irony. In the days since the Supreme Court’s decision in Boumediene, the Guantanamo habeas petitioners have urged the judges in this District to hasten the arrival of their day in court. For…Hamdan, that day has arrived; yet, he would have this Court delay an adjudication of facts and second-guess preliminary legal determinatons made by the [military] commission, which may be reviewed in full by the D.C. Circuit on appeal. This he may not do, particuarly through the ‘extraordinary and drastic remedy’ of a preliminary injunction.”

Congress, the brief went on, “has funneled challenges” like Hamdan’s into the military commissions, with review by the civilian courts “after adjudication, not before.” That makes the commission system now in place “radically different” from the presidentially created commission process that the Supreme Court struck down in 2006″ in an earlier appeal by Hamdan, the brief argued. (That 2006 ruling was followed by Congress’ passage of the Military Commissions Act, setting up a new trial and appeal system for war crimes cases. No court has yet ruled on the constitutionality of that law.)

Meanwhile, Judge Robertson last Friday allowed a group of 375 current of former members of the British Parliament or of the European Parliament to file an amicus brief supporting Hamdan’s challenge and contending that parts of the war crimes trial process “are clearly at odds with the most basic norms of fair trial and due process reflected in international humanitarian and human rights law and guaranteed by…the Geneva Conventions.” The brief is [3] here and the list of its signers is [4] here.

The government’s new brief, while noting that Hamdan’s lawyers have sought to raise five constitutional challenges to his commission trial, argued that Judge Robertson need not rule on those either because his Court has no jurisdiction to hear the pre-trial challenge, or because the judge should “abstain” from nterfering with an ongoing criminal justice process.

The challenge to District Court jurisdiction is keyed to the government’s interpretation of what the Supreme Court did in the Boumediene decision last month.

Under the Military Commission Act. the brief noted, Congress nullified federal court jurisdiction to

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hear any challenge to a military commission case, including claims that the procedures are illegal. That provision, it said, was not at issue before the Supreme Court in Boumediene. That decision, “by its terms, only applies to claims of detention,” and a constitutional right to challenge only detention.

Even if Judge Robertson did have jurisdiction, the brief said, it would not be appropriate to intrude on the military trial process. “There will be ample opportunity for an Article II [civilian] court to review petitioner’s legal challenge should he be convicted, at the conclusion of the military commission proceedings.” The only question at issue, it said, is when such a challenge may be made “and Congress has resolved that in favor of post-judgment review.”

Turning to Hamdan’s constitutional claims, the government brief rejected each of them as without merit. He “is not protected by the constitutional provisions he cites and, even if he were, his claims that they are violated are meritless.”

** There is no violation of theEx Post Facto Clause, it said, because the charges “reflect long-standing law of war violations tha tCongress has codified under the Law of Nations Clause.”

** The Military Commissions Act, it asserted, is not “an illegal bill of attainder.”

** The Due Process Clause challenge, it said, “is both premature and meritless.”

** The claim of a violation of equal protection under the Due Process Clause “lacks merit because it is well established there is nothing improper with the national government treating aliens differently from the citizenry, particularly in an armed conflict with a foreign enemy, so long as there is a rational basis for doing so, which there plainly is in these circumstances.”

The government invoked its own constitutional claims against Hamdan’s pre-trial challenge, contending that it violates separation-of-powers principles because it would “hamper the government’s war efforts” and contradict Congress’ choice to end federal court power to intrude into the military commission process.

Seeking to bolster its argument, it noted that the D.C. Circuit Court on June 20 had refused to delay another military commission trial, that of Canadian Omar Khadr.

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URL to article: http://www.scotusblog.com/wp/us-let-war-crimes-trials-proceed/

URLs in this post: [1] brief in opposition: http://www.scotusblog.com/wp/wp-content/uploads/2008/07 /us-hamdan-opp-7-14-08.pdf [2] this post : http://www.scotusblog.com/wp/new-challenge-to-war-crimes-trials/ [3] here: http://www.scotusblog.com/wp/wp-content/uploads/2008/07/parliamentarians- brief-hamdan-7-08.pdf [4] here: http://www.scotusblog.com/wp/wp-content/uploads/2008/07/parliamentarian- list.pdf

2 of 2 7/15/2008 11:51 AM Marty Bahamonde Exhibits EXHIBIT 1 Aide Says FEMA Ignored Warnings http://www.washingtonpost.com/wp-dyn/content/article/2005/10/20/AR...

washingtonpost.com Aide Says FEMA Ignored Warnings Testimony Covers Communication as Levees Breached

By Spencer S. Hsu Washington Post Staff Writer Friday, October 21, 2005; A01

For 16 critical hours, Federal Emergency Management Agency officials, including former director Michael D. Brown, dismissed urgent eyewitness accounts by FEMA's only staffer in New Orleans that Hurricane Katrina had broken the city's levee system the morning of Aug. 29 and was causing catastrophic flooding, the staffer told the Senate yesterday.

Marty Bahamonde, sent to New Orleans by Brown, said he alerted Brown's assistant shortly after 11 a.m. that Monday with the "worst possible news" for the city: The Category 4 hurricane had carved a 20-foot breach in the 17th Avenue Canal levee.

Five FEMA aides were e-mailed Bahamonde's report of "water flow 'bad' " from the broken levees designed to hold back Lake Pontchartrain. Bahamonde said he called Brown personally after 7 p.m. to warn that 80 percent of New Orleans was underwater and that he had photographed a 200-foot-wide breach.

"FEMA headquarters knew at 11 o'clock. Mike Brown knew at 7 o'clock. Most of FEMA's operational staff knew by 9 o'clock that evening. I don't know where that information went," said Bahamonde, a 12-year FEMA staffer who has worked full time since 2002 as a public affairs official.

Testifying to a bipartisan Senate panel investigating the response to the hurricane, Bahamonde said his accounts were discarded by officials in Baton Rouge and Washington headquarters amid conflicting information.

His disclosures add significantly to public knowledge of how much information Brown and FEMA officials had about the damage Katrina caused, and how soon they were aware of it. The federal government has been widely criticized for its slow, uncoordinated response to the hurricane, which left 1,053 people dead in Louisiana, most of them in New Orleans.

President Bush, Homeland Security Secretary Michael Chertoff, Defense Secretary Donald H. Rumsfeld and Richard B. Myers, then chairman of the Joint Chiefs of Staff, have all said they were told that the city's flood walls did not fail until Aug. 30. They said they assumed that the worst was over during a day-long window when operations could have been launched to rush aid to the Louisiana Superdome or rescue more than 50,000 residents and tourists before streets and homes were flooded.

"This disconnect . . . is beyond disturbing. It's shocking," said Sen. Joseph I. Lieberman (Conn.), the senior Democrat on the Senate Homeland Security and Governmental Affairs Committee, which is leading the investigation.

Bahamonde said he found it "amazing" that New Orleans officials continued to let thousands gather at the Superdome, even though they knew that the area around it was going to flood. Ten people later died at the Superdome.

"Urgent reports did not appear to prompt an urgent response," said panel Chairman Susan M. Collins

1 of 3 5/27/2008 5:08 PM Aide Says FEMA Ignored Warnings http://www.washingtonpost.com/wp-dyn/content/article/2005/10/20/AR...

(R-Maine). She asked "why the city continued to send people to the Superdome, when it appears they should have evacuated the Superdome?"

As recently as this week, Chertoff told a House Katrina investigation, "The report -- last report I got on Monday [Aug. 29] was that the levees -- there had not been a significant breach in the levees. It appeared that the worst was over."

In contrast, Bahamonde, who was dressed in a dark suit and spoke somberly to senators for nearly three hours, said: "I believed at the time and still do today, that I was confirming the worst-case scenario that everyone had always talked about regarding New Orleans."

In a series of increasingly dire, angry e-mails and phone calls, Bahamonde updated Brown, aides and top spokesmen for FEMA beginning Aug. 28 from the New Orleans emergency operations center and then from the Superdome across the street.

"Issues developing at the Superdome. The medical staff at the dome says they will run out of oxygen in about two hours and are looking for alternative oxygen," Bahamonde wrote to FEMA Region VI spokesman David Passey on Aug. 28.

That night, 25,000 people were inside including 400 people with special medical needs and 45 who required hospitalization. The center was short of toilet paper, water and food, the last of which was adequate through Tuesday only because a Coast Guard helicopter crew found and broke into five abandoned FEMA trailer trucks at Bahamonde's direction, Bahamonde said yesterday.

About 7 p.m. Aug. 29, Bahamonde said, he called Brown and warned him of "massive flooding," that 20,000 people were short of food and water at the Superdome and that thousands of people were standing on roofs or balconies seeking rescue.

Brown replied only: "Thank you. I'm going to call the White House," Bahamonde said.

It is unclear what Brown told his superiors or the president's aides. He has testified to receiving "conflicting information" about 10 a.m. Monday that the levees had broken and at noon or 1 p.m. that "the levees had only been topped. So we knew something was going on between 10 and noon on Monday."

Bahamonde contradicted accounts by Brown that FEMA had positioned 12 staffers in the Superdome before the storm, that Bahamonde's reports Monday were "routine" and that FEMA medical personnel were on hand before Tuesday.

At 11:20 a.m. Aug. 31, Bahamonde e-mailed Brown, "Sir, I know that you know the situation is past critical . . . thousands gathering in the streets with no food or water . . . estimates are many will die within hours."

At 2:27 p.m., however, Brown press secretary Sharon Worthy wrote colleagues to schedule an interview for Brown on MSNBC's "Scarborough Country" and to give him more time to eat dinner because Baton Rouge restaurants were getting busy: "He needs much more that 20 or 30 minutes."

Bahamonde e-mailed a friend to "just tell [Worthy] that I just ate an MRE . . . along with 30,000 other close friends so I understand her concern."

Staff researcher Julie Tate contributed to this report.

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6 of 100 DOCUMENTS

October 27, 2005, Thursday

SECTION: COMMENTARY

KR-ACC-NO: K7837

LENGTH: 449 words

HEADLINE: One FEMA hero

BODY: The following editorial appeared in the St. Louis Post-Dispatch on Wednesday, October 26: ___ Six weeks after Hurricane Katrina devastated the Gulf Coast and exposed glaring problems with the Federal Emer- gency Management Agency, comes word that even though his bosses at FEMA ignored him, Marty Bahamonde was on the job. As other FEMA officials were waiting for orders, Bahamonde, a public affairs specialist from Boston, drove into New Orleans on Aug. 27, two days before Katrina struck. He found himself in the Superdome along with 30,000 evacuees, armed only with his BlackBerry. In Senate testimony last week, Bahamonde contradicted former FEMA Director Michael Brown's previous congressional testimony in significant ways. Brown said 12 FEMA employees were on duty in New Orleans when Katrina hit; Bahamonde said he was the only one. Brown said Bahamonde was to act as FEMA's liaison with New Orleans Mayor Ray Nagin; Bahamonde said he wasn't designated as liaison to anyone. Brown said FEMA had sent 360,000 military meals ready-to-eat and 15 water trucks; Bahamonde said only 40,000 MREs and five water trucks arrived. Brown said Bahamonde's e-mails from New Orleans were fairly routine; the copies Bahamonde showed the committee throbbed with urgency. "Medical staff at the Dome say they expect to run out of oxygen in about two hours and are looking for alternatives," he wrote on the afternoon of Aug. 28 as hurricane winds began to lash the city. Fifty minutes later, he sent word that "everyone is soaked. This is going to get ugly real fast." At 11 a.m. the next day, Bahamonde passed on word from city officials that the 17th Street Canal levee had failed and that 30,000 tourists were trapped in downtown hotels without power. At 7 o'clock that evening, he reached Brown and told him that the broken levee was causing major flooding. Brown has said that FEMA was unaware of the levee breach for 24 hours. On the afternoon of Aug. 31, Bahamonde sent Brown a message that "the situation is past critical" and evacuees were huddling on the sidewalks outside the Superdome with no food or water. Three hours later, a colleague sent Ba- hamonde a copy of an e-mail from Brown's press secretary saying that it was critical to carve out enough time for Brown to have dinner at a busy Baton Rouge, La., restaurant so he could make a 9 p.m. television appearance. Ba- hamonde's response: "OH MY GOD!!!!!!" Brown is still on FEMA's payroll as a consultant. We know Brownie is a pal of the president, but it's time he found other work. FEMA's work should be left to pros such as Marty Bahamonde. ___ EXHIBIT 3 Page 1

4 of 100 DOCUMENTS

February 10, 2006 Friday Correction Appended Late Edition - Final

SECTION: Section A; Column 5; National Desk; STORM AND CRISIS: THE INQUIRY; Pg. 1

LENGTH: 2538 words

HEADLINE: WHITE HOUSE KNEW OF LEVEE'S FAILURE ON NIGHT OF STORM

BYLINE: By ERIC LIPTON

DATELINE: WASHINGTON, Feb. 9

BODY: In the aftermath of Hurricane Katrina, Bush administration officials said they had been caught by surprise when they were told on Tuesday, Aug. 30, that a levee had broken, allowing floodwaters to engulf New Orleans. But Congressional investigators have now learned that an eyewitness account of the flooding from a federal emergency official reached the Homeland Security Department's headquarters starting at 9:27 p.m. the day before, and the White House itself at midnight. The Federal Emergency Management Agency official, Marty Bahamonde, first heard of a major levee breach Mon- day morning. By late Monday afternoon, Mr. Bahamonde had hitched a ride on a Coast Guard helicopter over the breach at the 17th Street Canal to confirm the extensive flooding. He then telephoned his report to FEMA headquarters in Washington, which notified the Homeland Security Department. ''FYI from FEMA,'' said an e-mail message from the agency's public affairs staff describing the helicopter flight, sent Monday night at 9:27 to the chief of staff of Homeland Security Secretary Michael Chertoff and recently unearthed by investigators. Conditions, the message said, ''are far more serious than media reports are currently reflecting. Finding extensive flooding and more stranded people than they had thought -- also a number of fires.'' Michael D. Brown, who was the director of FEMA until he resigned under pressure on Sept. 12, said in a telephone interview Thursday that he personally notified the White House of this news that night, though he declined to identify the official he spoke to. White House officials have confirmed to Congressional investigators that the report of the levee break arrived there at midnight, and Trent Duffy, the White House spokesman, acknowledged as much in an interview this week, though he said it was surrounded with conflicting reports. But the alert did not seem to register. Even the next morning, President Bush, on vacation in Texas, was feeling relieved that New Orleans had ''dodged the bullet,'' he later recalled. Mr. Chertoff, similarly confident, flew Tuesday to Atlanta for a briefing on avian flu. With power out from the high winds and movement limited, even news reporters in New Orleans remained unaware of the full extent of the levee breaches until Tuesday. The federal government let out a sigh of relief when in fact it should have been sounding an ''all hands on deck'' alarm, the investigators have found. This chain of events, along with dozens of other critical flashpoints in the Hurricane Katrina saga, has for the first time been laid out in detail following five months of work by two Congressional committees that have assembled nearly 800,000 pages of documents, testimony and interviews from more than 250 witnesses. Investigators now have the Page 2 WHITE HOUSE KNEW OF LEVEE'S FAILURE ON NIGHT OF STORM The New York Times February 10, 2006 Friday Correction Appended

documentation to pinpoint some of the fundamental errors and oversights that combined to produce what is universally agreed to be a flawed government response to the worst natural disaster in modern American history. On Friday, Mr. Brown, the former FEMA director, is scheduled to testify before the Senate Homeland Security and Governmental Affairs Committee. He is expected to confirm that he notified the White House on that Monday, the day the hurricane hit, that the levee had given way, the city was flooding and his crews were overwhelmed. ''There is no question in my mind that at the highest levels of the White House they understood how grave the situation was,'' Mr. Brown said in the interview. The problem, he said, was the handicapping of FEMA when it was turned into a division of the Homeland Secu- rity Department in 2003. ''The real story is with this new structure,'' he said. ''Why weren't more things done, or what prevented or delayed Mike Brown from being able to do what he would have done and did do in any other disaster?'' Although Mr. Bahamonde said in October that he had notified Mr. Brown that Monday, it was not known until recently what Mr. Brown or the Homeland Security Department did with that information, or when the White House was told.

Missteps at All Levels It has been known since the earliest days of the storm that all levels of government -- from the White House to the Department of Homeland Security to the Louisiana Capitol to New Orleans City Hall -- were unprepared, uncommuni- cative and phlegmatic in protecting Gulf Coast residents from the floodwaters and their aftermath. But an examination of the latest evidence by The New York Times shines a new light on the key players involved in the important turning points: what they said, what they did and what they did not do, all of which will soon be written up in the committees' investigative reports. Among the findings that emerge in the mass of documents and testimony were these: Federal officials knew long before the storm showed up on the radar that 100,000 people in New Orleans had no way to escape a major hurricane on their own and that the city had finished only 10 percent of a plan for how to evacuate its largely poor, African-American population. Mr. Chertoff failed to name a principal federal official to oversee the response before the hurricane arrived, an omission a top Pentagon official acknowledged to investigators complicated the coordination of the response. His department also did not plan enough to prevent a conflict over which agency should be in charge of law enforcement support. And Mr. Chertoff was either poorly informed about the levee break or did not recognize the significance of the initial report about it, investigators said. The Louisiana transportation secretary, Johnny B. Bradberry, who had legal responsibility for the evacuation of thousands of people in nursing homes and hospitals, admitted bluntly to investigators, ''We put no plans in place to do any of this.'' Mayor C. Ray Nagin of New Orleans at first directed his staff to prepare a mandatory evacuation of his city on Saturday, two days before the storm hit, but he testified that he had not done so that day while he and other city officials struggled to decide if they should exempt hospitals and hotels from the order. The mandatory evacuation occurred on Sunday, and the delay exacerbated the difficulty in moving people away from the storm. The New Orleans Police Department unit assigned to the rescue effort, despite many years' worth of flood warnings and requests for money, had just three small boats and no food, water or fuel to supply its emergency workers. Investigators could find no evidence that food and water supplies were formally ordered for the Convention Cen- ter, where more than 10,000 evacuees had assembled, until days after the city had decided to open it as a backup emergency shelter. FEMA had planned to have 360,000 ready-to-eat meals delivered to the city and 15 trucks of water in advance of the storm. But only 40,000 meals and five trucks of water had arrived. Representative Thomas M. Davis III, Republican of Virginia, chairman of the special House committee investigating the hurricane response, said the only government agency that performed well was the National Weather Service, which correctly predicted the force of the storm. But no one heeded the message, he said. Page 3 WHITE HOUSE KNEW OF LEVEE'S FAILURE ON NIGHT OF STORM The New York Times February 10, 2006 Friday Correction Appended

''The president is still at his ranch, the vice president is still fly-fishing in Wyoming, the president's chief of staff is in Maine,'' Mr. Davis said. ''In retrospect, don't you think it would have been better to pull together? They should have had better leadership. It is disengagement.'' One of the greatest mysteries for both the House and Senate committees has been why it took so long, even after Mr. Bahamonde filed his urgent report on the Monday the storm hit, for federal officials to appreciate that the levee had broken and that New Orleans was flooding.

Eyewitness to Devastation As his helicopter approached the site, Mr. Bahamonde testified in October, there was no mistaking what had happened: large sections of the levee had fallen over, leaving the section of the city on the collapsed side entirely sub- merged, but the neighborhood on the other side relatively dry. He snapped a picture of the scene with a small camera. ''The situation is only going to get worse,'' he said he warned Mr. Brown, then the FEMA director, whom he called about 8 p.m. Monday Eastern time to report on his helicopter tour. ''Thank you,'' he said Mr. Brown replied. ''I am now going to call the White House.'' Citing restrictions placed on him by his lawyers, Mr. Brown declined to tell House investigators during testimony if he had actually made that call. White House aides have urged administration officials not to discuss any conversations with the president or his top advisors and declined to release e-mail messages sent among Mr. Bush's senior advisors. But investigators have found the e-mail message referring to Mr. Bahamonde's helicopter survey that was sent to John F. Wood, chief of staff to Secretary Chertoff at 9:27 p.m. They have also found a summary of Mr. Bahamonde's observations that was issued at 10:30 p.m. and an 11:05 p.m. e-mail message to Michael Jackson, the deputy secretary of homeland security. Each message describes in detail the extensive flooding that was taking place in New Orleans after the levee collapse. Given this chain of events, investigators have repeatedly questioned why Mr. Bush and Mr. Chertoff stated in the days after the storm that the levee break did not happen until Tuesday, as they made an effort to explain why they initially thought the storm had passed without the catastrophe that some had feared. ''The hurricane started to depart the area on Monday, and then Tuesday morning the levee broke and the water started to flood into New Orleans,'' Mr. Chertoff said on CBS's ''Face the Nation'' on Sunday, Sept. 4, the weekend after the hurricane hit. Mr. Chertoff and White House officials have said that they were referring to official confirmation that the levee had broken, which they say they received Tuesday morning from the Army Corps of Engineers. They also say there were conflicting reports all day Monday about whether a breach had occurred and noted that they were not alone in failing to recognize the growing catastrophe. Mr. Duffy, the White House spokesman, said it would not have made much difference even if the White House had realized the significance of the midnight report. ''Like it or not, you cannot fix a levee overnight, or in an hour, or even six hours,'' he said. But Senator Susan Collins, Republican of Maine and chairwoman of the Senate Committee on Homeland Security and Governmental Affairs, said it was obvious to her in retrospect that Mr. Chertoff, perhaps in deference to Mr. Brown's authority, was not paying close enough attention to the events in New Orleans and that the federal response to the disaster may have been slowed as a result. ''Secretary Chertoff was too disengaged from the process,'' Ms. Collins said in an interview. Compounding the problem, once Mr. Chertoff learned of the levee break on Tuesday, he could not reach Mr. Brown, his top emergency response official, for an entire day because Mr. Brown was on helicopter tours of the damage. Senator Joseph I. Lieberman of Connecticut, the ranking Democrat on the homeland security committee, said the government confusion reminded him of the period surrounding the attacks of Sept. 11, 2001. ''Information was in different places, in that case prior to the attack,'' Mr. Lieberman said, ''and it wasn't reaching the key decision makers in a coordinated way for them to take action.'' Page 4 WHITE HOUSE KNEW OF LEVEE'S FAILURE ON NIGHT OF STORM The New York Times February 10, 2006 Friday Correction Appended

Russ Knocke, a homeland security spokesman, said that although Mr. Chertoff had been ''intensely involved in monitoring the storm'' he had not actually been told about the report of the levee breach until Tuesday, after he arrived in Atlanta. ''No one is satisfied with the response in the early days,'' Mr. Knocke said. But he rejected criticism by Senator Collins and others that Mr. Chertoff was disengaged. ''He was not informed of it,'' Mr. Knocke said. ''It is certainly a breakdown. And through an after-action process, that is something we will address.'' The day before the hurricane made landfall, the Homeland Security Department issued a report predicting that it could lead to a levee breach that could submerge New Orleans for months and leave 100,000 people stranded. Yet despite these warnings, state, federal and local officials acknowledged to investigators that there was no coordinated effort before the storm arrived to evacuate nursing homes and hospitals or others in the urban population without cars.

Focus on Highway Plan Mr. Bradberry, the state transportation secretary, told an investigator that he had focused on improving the highway evacuation plan for the general public with cars and had not attended to his responsibility to remove people from hospitals and nursing homes. The state even turned down an offer for patient evacuation assistance from the federal government. In fact, the city was desperately in need of help. And this failure would have deadly consequences. Only 21 of the 60 or so nursing homes were cleared of residents before the storm struck. Dozens of lives were lost in hospitals and nursing homes. One reason the city was unable to help itself, investigators said, is that it never bought the basic equipment needed to respond to the long-predicted catastrophe. The Fire Department had asked for inflatable boats and generators, as well as an emergency food supply, but none were provided, a department official told investigators. Timothy P. Bayard, a police narcotics commander assigned to lead a water rescue effort, said that with just three boats, not counting the two it commandeered and almost no working radios, his small team spent much of its time initially just trying to rescue detectives who themselves were trapped by rising water. The investigators also determined that the federal Department of Transportation was not asked until Wednesday to provide buses to evacuate the Superdome and the convention center, meaning that evacuees sat there for perhaps two more days longer than necessary. Mr. Brown acknowledged to investigators that he wished, in retrospect, that he had moved much earlier to turn over major aspects of the response effort to the Department of Defense. It was not until the middle of the week, he said, that he asked the military to take over the delivery and distribution of water, food and ice. ''In hindsight I should have done it right then,'' Mr. Brown told the House, referring to the Sunday before the storm hit.

Orleans who did a helo tour and describes a 200 yard collapse of the levy on the south side of the lake.''

TUESDAY, AUG. 30

6 a.m. A Homeland Security situation report states: ''17th St. at Canal Blvd.: levee has been breached -- breach extends several 100 meters in length. Much of downtown and east New Orleans is underwater, depth unknown at this time.''

All times are Eastern Time

(Sources by Congressional transcripts; Senate Committee on Homeland Security and Governmental Affairs; Select Bi- partisan Committee to Investigate the Preparation for and Response to Hurricane Katrina)(pg. A16)

URL: http://www.nytimes.com

Page 5 WHITE HOUSE KNEW OF LEVEE'S FAILURE ON NIGHT OF STORM The New York Times February 10, 2006 Friday Correction Appended

CORRECTION-DATE: February 11, 2006

CORRECTION: A front-page article yesterday about documents showing when the White House learned of the levee breaches in New Orleans referred imprecisely to President Bush's whereabouts on the morning of Tuesday, Aug. 30, the day the public learned that New Orleans had flooded. He was in San Diego that morning, giving a speech and meeting with soldiers, and returned that afternoon to his ranch in Crawford, Tex. He was not vacationing in Texas that morning. A front-page article yesterday about documents showing when the White House learned of the levee breaches in New Orleans referred imprecisely to President Bush's whereabouts on the morning of Tuesday, Aug. 30, the day the public learned that New Orleans had flooded. He was in San Diego that morning, giving a speech and meeting with soldiers, and returned that afternoon to his ranch in Crawford, Tex. He was not vacationing in Texas that morning.

GRAPHIC: Photos: Investigators have found evidence that federal officials at the White House and elsewhere learned of the levee break in New Orleans earlier than was first suggested. (Photo by Vincent Laforet/The New York Times)(pg. A16) A photo taken by a federal emergency official the day Hurricane Katrina arrived showed the broken 17th Street Canal levee in New Orleans. (Photo by Marty Bahamonde/FEMA)(pg. A1)Chart: ''An Early Alarm From New Orleans''Re- ports of a levee breach from Marty Bahamonde, a FEMA official, reached the Homeland Security Department and the White House on Monday, Aug. 29, the day the storm hit.MONDAY, AUG. 29Shortly before 11:51 a.m. The New Or- leans Emergency Operations Center receives a report of a breach in the 17th Street Canal levee. Mr. Bahamonde, left, calls FEMA headquarters and speaks with Mike Heath, special assistant to Michael D. Brown, FEMA's director.11:51 a.m.-12:08 p.m. Mr. Heath sends an e-mail message summarizing Mr. Bahamonde's report to Michael Lowder, FEMA's deputy director of response. Mr. Lowder forwards the message to Mr. Brown, who replies: ''I'm being told here water over not a breach.''6:15 p.m. Mr. Bahamonde takes a photograph of the 17th Street Canal levee breach during the first of his two helicopter flights over New Orleans.8 p.m. After his second helicopter flight, Mr. Bahamonde calls Mr. Brown and describes the levee breach and the flooding. Mr. Brown replies: ''Thank you. I am now going to call the White House.''9 p.m. Mr. Brown appears on CNN, saying: ''We've got some storm surges that have come across the levees. We have some, I'm not going to call them breaches but we have some areas where the lake and the rivers are continuing to spill over.''9:27 p.m. An e-mail message with the subject ''FYI from FEMA'' sent to Homeland Security Secretary Mi- chael Chertoff's chief of staff says: ''the first (unconfirmed) reports they are getting from aerial surveys in New Orleans are far more serious than media reports are currently reflecting.''10 p.m. In a conference call, Mr. Bahamonde describes the levee breach and flooding to FEMA operational staff.10:30 p.m. A Homeland Security situation report states: ''There is a quarter-mile breech in the levee near the 17th Street Canal.'' The report reaches the White House later that night.11:05 p.m. An e-mail message from FEMA's deputy director to Michael Jackson, deputy secretary of Homeland Security, says: ''We just spoke with our first rep on the ground in New

LOAD-DATE: February 10, 2006

EXHIBIT 4 Page 1

4 of 32 DOCUMENTS

The Associated Press

October 20, 2005, Thursday, BC cycle

SECTION: Washington Dateline

LENGTH: 680 words

BYLINE: By The Associated Press

BODY: Excerpts from e-mails among Federal Emergency Management officials during Hurricane Katrina: (Note: All times CDT) --- -Marty Bahamonde, regional director for New England to David Passey, regional director for the Gulf Coast, Aug. 28, 4:46 p.m. "Issues developing at the Superdome. 2000 already in and more standing in line. ...The medical staff at the dome says they will run out of oxygen in about 2 hours and are looking for alternative oxygen."

-Bahamonde to Deborah Wing, FEMA response specialist, Aug 28, 5:28 p.m. "Everyone is soaked. This is going to get ugly real fast."

-Passey to group, Aug 28, 7:16 p.m. "The current population at the Superdome in New Orleans is 25,000. That's a large crowd during a normal event. Among the shelter population are 400 special needs evacuees and 45-50 sick individuals who require hospitalization. The on-hand oxygen supply will likely run out in the next few hours. According to the ESF8 folks, the local health officials have struggled to put meaningful resource requests together."

-Passey to Bahamonde, Aug. 28, 9:58 p.m. "Our intel is that neither the OK-1 DMAT nor the public health officers staged in Memphis will make it to the Su- perdome tonight. Oxygen supply issue has not been solved yet either."

-Bahamonde to Michael Heath, FEMA official, Aug. 29, 7:33 a.m. "Some pumping stations failed but no widespread flooding yet. The reall (sic) worry will be in the next 3 hours when he (sic) storm passes and we get the northerly winds blowing thwe (sic) lake into the city

Page 2 The Associated Press October 20, 2005, Thursday, BC cycle

-Bahamonde to Nicole Andrews, FEMA spokeswoman, Aug. 30, 7:02 a.m. "What is happening with the US travel this morning. When is he coming to New Orleans. The area around the Su- perdome is filling up with water, now waist deep. The US can land and do a presser but then have to leave, there will be no ground tour, only flyover," referring to planned visit by Brown.

-Bahamonde to FEMA Director Michael Brown, Aug. 31, 11:20 a.m. "Sir, I know that you know the situation is past critical. Here some things you might not know. Hotels are kicking people out, thousands gathering in the streets with no food or water. Hundreds still being rescued from homes. The dying patients at the DMAT tent being medivac. Estimates are many will die within hours. Evacuation in process. Plans developing for dome evacuation but hotel situation adding to problem. We are out of food and running out of water at the dome, plans in works to address the critical need.

-Sharon Worthy, Brown's press secretary, to Cindy Taylor, FEMA deputy director of public affairs, and others, Aug. 31, 2 p.m. "Also, it is very important that time is allowed for Mr. Brown to eat dinner. Gievn (sic) that Baton Rouge is back to normal, restaurants are getting busy. He needs much more that (sic) 20 or 30 minutes. We now have traffic to encounter to get to and from a location of his choise (sic), followed by wait service from the restaurant staff, eating, etc.

-Bahamonde to Taylor and Michael Widomski, public affairs, Aug. 31, 2:44 p.m. "OH MY GOD!!!!!!!! No won't go any further, too easy of a target. Just tell her that I just ate an MRE and crapped in the hallway of the Superdome along with 30,000 other close friends so I understand her concern about busy restaurants. Maybe tonight I will have time to move my pebbles on the parking garage floor so they don't stab me in the back while I try to sleep.

-Bahamonde to Taylor, Sept. 3, 1:06 a.m. "The leadership from top down in our agency is unprepared and out of touch. ... But while I am horrified at some of the cluelessness and self concern that persists, I try to focus on those that have put their lives on hold to help people that they have never met and never will. And while I sometimes think that I can't work in this arena, I can't get out of my head the visions of children and babies I saw sitting there, helpless, looking at me and hoping I could make a difference and so I will and you must to."

LOAD-DATE: October 21, 2005

Bobby Boutris Exhibits EXHIBIT 1

TO: The Honorable Chairman and Members of the Committee on Transportation and Infrastructure

FROM: Charalambe Bobby Boutris

SUBJECT: Air safety Concerns March 30, 2008

Testimony

Good morning, my name is Charalambe Bobby Boutris. For twenty years I worked in the Aviation Industry performing aircraft maintenance and inspections for several US Major airlines, US Major Cargo carriers, and foreign airlines. During that time I held the following positions: Airframe and Powerplant Mechanic, aircraft maintenance Inspector, aircraft maintenance Supervisor, aircraft maintenance Manager, and Director of aircraft Maintenance.

In February 1998, I was hired by the Federal Aviation Administration (FAA) as an Aviation Safety Inspector. In the ten years I have been with the FAA I have held the following positions: Aviation Safety Inspector, Assistant Principal Maintenance Inspector, Principal Maintenance Inspector and I am currently assigned to the Southwest Airlines Certificate Management Office (SWA CMO) as the maintenance Partial Program Manager (PPM) for the Boeing 737-700 aircraft.

For me, safety comes first and my job second. When I was an inspector in the airline industry; I elevated safety concerns to Washington, in person, knowing very well that my job was on the line. I never had a negative job performance issue. As a matter of record I have three Star Quality Awards for my commitment to safety and my job performance rating always exceeded the expectations. I am not a disgruntled employee; I am a person with integrity. I do believe that we should cooperate and collaborate with the airlines but not to the point that we go outside our guidance and break the law. I have followed the chain of command but I got no results. I am here today because I am concerned for the safety of the flying public which has been jeopardized by the abuse of authority and violations of the Federal Regulations (CFRs).

Since 2003, I have been raising safety concerns via e-mails, memos, and meetings regarding my Supervisor/Principal Maintenance Inspector (S/PMI) Mr. Douglas Gawadzinski suppressing my inspection findings and his refusal to follow FAA Guidance/National Policy, regarding Chronic, Systemic, and Repetitive non-compliance maintenance issues that I brought to his attention and affect Air Safety.

All my findings were direct violations of the Federal Regulations and the SWA procedures, but under the direction of my supervisor Mr. Gawadzinski I was sending SWA letters of concern in lieu of letters of investigation. In doing so; I was finding out

1 through follow-up inspections that the original findings were not getting corrected. In addition, routine surveillance inspections at different locations; were revealing the same findings which was a characteristic of a systemic problem that was not been properly addressed. On September 16, 2005, I listed all the chronic non compliance issues and via a Memo I complained to the office Manager Mr. Mills that my supervisor was overlooking the systemic non-compliance issues that were the result of my surveillance inspections and informed him that my supervisor was suppressing my authority and responsibility to report them in accordance with mandated FAA Guidance. Additionally, via e-mail I informed my supervisor that I did not feel that it is ethical as an Aviation Safety Inspector to continue writing letters of concern which are not part of our mandatory guidance to document and correct non-compliance issues with SWA.

The Federal Aviation Administration (FAA) issues Airworthiness Directives (ADs) to address the existence of an unsafe condition on products such as aircraft, aircraft engines, propellers, and appliances. The AD requirements vary from AD to AD, and they are usually the result of aircraft accidents, a catastrophic failure of a component, or safety recommendations from the National Transportation Safety Board (NTSB). Since ADs address unsafe conditions, their requirements are mandatory and non-compliance is contrary to Title 14 Code of Federal Regulations (14CFR), and legally enforceable per 14 CFR, Part 39.

In December 2003, after reviewing the Southwest airlines AD compliance records for several aircraft engines, I discovered that the required AD compliance information was inconsistent and the format used was different from engine to engine, making it difficult to follow and track the AD compliance information, which was contrary to Title 14 CFR Part 121.380 (vi). After long talks with my supervisor Mr. Gawadzinski, on January 23, 2004, he allowed me to send SWA a Letter of Concern, not a Letter of Investigation as I wanted to and was required in accordance with our guidance. SWA agreed with my findings and took one year to complete the project and bring the engine AD information into compliance. At that time, I was the Partial Program Manager (PPM) for aircraft engines. At the end of the project, the SWA AD compliance team leader, Mr. Bill Krivanek, stated that he hoped I never get airframes.

In addition to the AD issues in reviewing the SWA Continuous Airworthiness Maintenance Program (CAMP) I was also finding non-compliance issues. The CAMP contains the Maintenance and Inspection requirements that an airline must follow to maintain their aircraft. The CAMP is regulatory and it is listed in the FAA approved section of the airline’s Operation Specifications (OPS SPECS D72) and consists of maintenance and inspection Task Cards. In reviewing the SWA CAMP I was finding maintenance Task Cards that were revised without going through the revision process and through our office for review. I went to my supervisor Mr. Gawadzinski and informed him of my findings stating that SWA was not keeping us informed and they had stopped submitting the changes/revisions to their CAMP to our office. Mr. Gawadzinski told me that we were out of the approval business because with approval came liability and that the FAA was getting away from that. I sent e-mail to Mr. Gawadzinski stating my findings and copied all the maintenance inspectors. Even though they had experienced the same problems, no one came forward or replied to my e-mail. As time went on I kept finding more changes to the SWA Maintenance Program and revisions to the Maintenance task

2 Cards that our office was not aware of. In some cases I was finding out that some of the Task Cards were deleted and all together missing from the SWA CAMP. After going to my counterparts at SWA, I was finding out that they were not aware of the changes either. In reviewing the SWA Maintenance Procedures Manual (MPM) I discovered that the reason that SWA had stopped submitting the CAMP revisions to our office was because they had gotten authorization from Mr. Gawadzinski that allowed SWA to revise and delete Maintenance Task cards from their CAMP without coming to our office for review. I went to Mr. Gawadzinski again and informed him that based on my findings we had lost sight of the SWA Maintenance Program and I was concerned because SWA had lost control. I wanted to send SWA a letter of Investigation documenting my findings but Mr. Gawadzinski refused to and directed me to send a letter of concern. I went to the office manager Mr. Mills and informed him of my findings and concerns. Mr. Mills put a team together which consisted of Mr. Mills, Geographic Supervisor Paul Cotti, Supervisor/Principal Maintenance Inspector Mr. Gawadzinski, Inspector Doug Peters and I. After I presented my findings everybody agreed that the SWA CAMP needed attention. After several meetings and over a year later in 2006 at our request, SWA revised their MPM and made it a requirement that any future changes to their CAMP had to be submitted to our office for review. However, as I will state later on, you will see that the in-house changes/revisions that SWA had made to their CAMP had a serious impact on safety.

In January 2006, I became the PPM for the Boeing 737-700 airframes and systems. At this point, among other things, I started to review several aircraft maintenance records with special emphasis on Life Limited parts and AD compliance requirements for the Boeing 737-700 fleet. I found similar discrepancies to the ones I had found with the engines two years earlier; the reported AD information did not meet the requirements of 14 CFR, Part 121.380 (vi). I immediately, informed my supervisor Mr. Gawadzinski of my findings and told him we needed to send SWA a Letter of Investigation similar to the one I wanted to send for the engines in 2003. But Mr. Gawadzinski refused to. I periodically met with Mr. Gawadzinski and voiced my concerns about the SWA AD compliance issues because I wanted to be proactive not reactive. Mr. Gawadzinski told me again and again that he did not share my views and that he was the Principal and my Supervisor. After going to him several times, he told me that we were not going to send a letter of investigation to SWA and he further advised me that he was going to assign somebody to do the AD Management Safety Attribute Inspection (SAI) 1.3.6 (this Inspection collects data and evaluates the content of an Airline’s manual system and procedures in meeting the specific regulatory and FAA policy requirements for the AD Management process). I requested to be part of this SAI, Mr. Gawadzinski agreed to, but could not tell me when. By this time, I had informed the SWA AD compliance team leader Mr. Bill Krivanek of the AD discrepancies.

In January 2007, Mr. Gawadzinski assigned the AD Management SAI 1.3.6, placing me as the team leader. When SWA found out that I was the assigned inspector for the AD Management SAI, the SWA Director of Quality Assurance, Mr. Mats Sabel and the AD compliance team leader, Mr. Bill Krivanek, had a meeting with my supervisor (Gawadzinski) and requested my removal from doing the Inspection. Mr. Gawadzinski called me into his office and told me of this meeting and instructed me not to start the AD Management SAI until he gave me the green light, but he would not give me a reason as to why I could not do the inspection. At this point, I went to the office manager, Mr. Mike

3 Mills, and informed him of the situation. I told Mr. Mills that it was obvious that SWA wanted to cherry pick the inspector for this inspection and stated that I was just doing my job and I had not done anything wrong. I also informed Mr. Mills that the last inspection for the AD Management SAI 1.3.6, regarding the content of the SWA manuals in meeting the specific regulatory and FAA policy requirements for the AD Management process was accomplished in 1999, and according to the Air Transportation Oversight System (ATOS) Database as the result of that inspection there were numerous (25%) negative findings documented regarding the SWA inadequate procedures for AD compliance. I told Mr. Mills that this was also evident and was validated with my findings and brought to his attention that in accordance with our guidance, this SAI inspection was to be accomplished at least every five years and therefore this inspection was overdue by three years and that my supervisor Mr. Gawadzinski was aware of that. Mr. Mills told me he was going to talk to my supervisor. Later on, Mr. Gawadzinski informed me that I would be the one doing the inspection for the AD Management SAI.

On February 26, 2007, in the presence of Mr. Gawadzinski, I gave SWA a presentation regarding the requirements of the AD Management SAI 1.3.6. After the presentation, I had a discussion with the SWA AD compliance team leader Mr. Bill Krivanek and informed him that due to the fact that both of us already knew that SWA did not have all the required procedures in place for the AD Management, I was also going to review some aircraft records to ensure AD compliance. Mr. Krivanek stated that Mr. Gawadzinski and he had discussed what my assignment was and that the inspection for the SAI only covered required procedures for AD compliance, and for that, I only had to review their manuals, therefore he did not see the need for me to review the aircraft records for AD compliance because it was not part of the SAI. I told Mr. Krivanek he was correct, however, due to my knowledge of the previous history with the AD issues, I felt that reviewing some of the SWA AD aircraft records for compliance was appropriate. Mr. Krivanek was not happy about that, but we agreed to meet again on March 15 and start the inspection of the AD Management SAI. On March 15, 2007, I arrived at SWA at 09:00. When I arrived, I was told by Mr. Chris Roth (SWA Regulatory Compliance team leader) that the AD compliance team leader Mr. Bill Krivanek could not participate at the meeting because he was working on a project. During my conversation with Mr. Roth, Mr. Krivanek came into the room and apologized for not being able to participate in the meeting, and stated that he and his team were working on an important project, and were going to be busy for the rest of the day. I had the meeting with Mr. Roth, and finished at 11:00. I went back to my office, and informed my supervisor Mr. Gawadzinski that Mr. Krivanek could not participate at our AD Management SAI meeting because he was working on an important project that had come up. Before I had the chance to say anything else, Mr. Gawadzinski stated: “Yeah, they had some airplanes over-fly an AD, and they are going through the records to find out how many”. At this point it was obvious to me that since I had told Mr. Krivanek that along with the AD Management SAI, I was going to review some aircraft records for AD compliance, Mr. Krivanek had decided to have the aircraft records reviewed prior to my inspection, and that’s how they had discovered the AD over-fly discrepancies.

On March 22, 2007, while I was performing night Surveillance inspections at the SWA Chicago Midway maintenance facility, I witnessed a SWA aircraft N300SW being repaired due to a crack that was found on the fuselage. After reviewing the aircraft

4 records I discovered that this aircraft had been used to fly passengers even though it had a crack on its fuselage. This aircraft was not part of my fleet, however, when I went back to my office, I gave this information to Inspector Collamore who is the Partial Program Manager (PPM) for that fleet. During our discussion, I asked Inspector Collamore if the area (regarding the fuselage crack and its location) was covered by the inspection requirements of an Airworthiness Directive. Inspector Collamore said yes, and stated that SWA had self disclosed to our Supervisor/Principal Maintenance Inspector Mr. Gawadzinski that during a records review they had discovered that some of their aircraft had over-flown the inspection requirements of an AD, and that the aircraft at Midway was part of that self disclosure (this AD addresses identified safety issues and requires repetitive inspections of the aircraft fuselage for crack detection). Once I realized that this aircraft had overdue AD inspections and it was still flying passengers, I asked Inspector Collamore if he was allowing SWA to fly unsafe aircraft. Inspector Collamore stated: “No, I am not, he is”, and pointed towards Mr. Gawadzinski’s office. I informed inspector Collamore that it was also his responsibility to address the unsafe condition. Even though this aircraft was not part of my fleet, I was concerned because this was affecting the safety of the flying public, and since it was not handled in accordance with our guidance, I immediately reported this serious safety issue to the office manager Mr. Mills.

Due to my on going safety concerns with the SWA inadequate procedures for tracking and complying with the AD requirements, I performed an in-depth review of the aircraft maintenance records and I discovered the following: On March 15, 2007, Southwest Airlines (SWA) informed my Supervisor/Principal Maintenance Inspector Mr. Douglas T. Gawadzinski, that they had discovered that some of their aircraft had over-flown the Inspection Requirements of Airworthiness Directive (AD) 2004-18-06. At the time, SWA were not sure of how many aircraft were affected and estimated that the number could have been up to 100 aircraft.

The AD (2004-18-06) requirements that SWA reported as not being accomplished on their aircraft requires inspections of the fuselage on their Boeing 737-300, and -500 aircraft. On the first page under SUMMARY the AD states: “This action is necessary to find and fix fatigue cracking of the skin panels, which could result in sudden fracture and failure of the skin panels of the fuselage, and consequent rapid decompression of the airplane. This action is intended to address the identified unsafe condition”.

FAA records show that besides the March 15 verbal notification, on March 19, 2007, SWA also used the Voluntary Disclosure Reporting Program (VDRP), to report the AD non-compliance again but this time they informed Mr. Gawadzinski that their investigation had determined that there were 47 aircraft affected , not 100 as originally was reported to him. Even though he was aware of this unsafe condition on March 15, 2007, Mr. Gawadzinski did not document anything until March 19, 2007.

In reading the Disclosure Details for the VDRP report, specifically under the Initial Notification question, “Did Non-Compliance Cease after Detection”, the VDRP report states “Yes”. However, this is not the truth. The records show that SWA continued to operate the affected aircraft in a known unsafe condition and fly paying passengers until March 23, 2007.

5 From March 15, 2007, the date Mr. Gawadzinski was initially informed of this non- compliance, to March 23, 2007, while SWA was performing the overdue AD inspections on these aircraft, and while these aircraft were still operating in passenger revenue service, records show that 6 aircraft had cracks on their fuselage. Maintenance records show that on one of these aircraft had multiple cracks, ranging from 1.0 to 3.5 inches long. This is enough evidence of a serious safety issue, when it comes to ADs our guidance is crystal clear and had Mr. Gawadzinski followed the mandated FAA Guidance he should have notified SWA that the affected aircraft could not be used in air transportation past the date that this non-compliance was discovered and initially reported to him on March 15, 2007. What is also aggravating, and brings this unsafe condition to the highest level of concern, is the fact that at the time of discovery these aircraft had been flying for 30 months out of compliance with the overdue AD inspections.

Advisory Circular (AC) 00-58 A, provides guidance for the Voluntary Disclosure Reporting Program (VDRP). This AC allows Certificate holders and other entities that operate under 14CFR to voluntarily disclose to the FAA violations and receive a letter of correction in lieu of civil penalty. However, the reported noncompliance in order to qualify has to meet the requirements and follow the procedures set forth in this AC. Page four, Chapter seven, paragraph b. of AC 00-58 A, under Notification by the Certificate holder of an apparent violation, lists six items that the Certificate holder (in this case SWA) should address to the FAA Principal Inspector (in this case Gawadzinski) at the time of the initial notification. One of those six items, item number (2) states: “Verification that noncompliance ceased after it was identified”. In this case, even though the VDRP report which was prepared by SWA falsely states YES and Mr. Gawadzinski falsely accepted YES, the fact remains that the noncompliance did not ceased after it was identified. Records show that the 47 aircraft affected by this AD continued to operate in revenue service from March 15, 2007 (when the noncompliance was identified by SWA and reported to Gawadzinski) to March 23, 2007. It is obvious that the AC requirement was circumvented and not met; therefore, this noncompliance/violation does not meet the criteria to qualify as a Voluntary Disclosure.

In addition, in reading the VDRP report under THE REASON WHY THIS VIOLATION WAS INADVERTANT, SWA in part states: “Unfortunately, due to the extended time span, we can not definitively determine the exact reason the initial error occurred, and was overlooked during the creation of the document, its revisions, and reviews”. As I stated earlier this was also one of my findings and concerns back in 2005 when I told my supervisor that we had lost sight of the SWA Maintenance Program and I was concerned because SWA had lost control.

What is interesting here is that in reading this VDRP report, under the “INFORMATION OF THE PERSON PREPARING the COMPREHANSIVE FIX” for SWA, is the name Paul Comeau. Mr. Comeau is an ex FAA Safety Inspector who was performing oversight inspections for regulatory compliance issues regarding the SWA Certificate at the SWA CMO with Mr. Gawadzinski. While working for the FAA, Mr. Comeau accepted a job offer from SWA as the Manager of Regulatory Compliance. I believe that SWA knowingly hired Mr. Comeau for his FAA connections with inspectors in our office, and to their advantage placed him in the position that directly interfaces with our office on a daily bases in regards to Regulatory Compliance issues in dealing with aircraft maintenance.

I questioned Mr. Comeau’s hiring by SWA, and I was told by Mr. Gawadzinski that his hiring was cleared through our Regional Office, but there is an ethics issue here, and as proven a conflict of interest. The Regional Office should have considered the importance of the position that SWA hired Mr. Comeau for, and the impact on safety that might have had.

In the past, prior to SWA hiring Mr. Comeau, records show that any time SWA had discovered noncompliance issues with AD requirements they always took immediate action by taking the affected aircraft out of service and bringing them into compliance with the applicable AD requirements. However, this time due to the number of aircraft involved, I believe that the cozy relationship between Mr. Gawadzinski and Mr. Comeau played a contributing factor and allowed the 47 aircraft to remain in revenue service and operate in a matter that would provide relief to schedule the AD overdue inspections at the SWA’s convenience while flying paying passengers and without disrupting SWA’s flight schedule. I also believe this cozy relationship was the reason that SWA hired Mr. Comeau for this position. Mr. Comeau, being an ex-FAA Inspector should have known that AD inspection requirements are mandatory and address unsafe conditions, they teach that to FAA Inspectors at the Academy.

SWA is reporting that they are the ones that blew the whistle on themselves. That is correct. However, what they are not saying is that at the time of discovery of the non- compliance (March 15, 2007), SWA was required by federal law to immediately remove the affected aircraft from service and comply with the AD requirements. But SWA did not take immediate corrective action and kept the affected aircraft flying with paying passengers in a known unsafe condition until March 23, 2007.

At the time of discovery, by not taking the 47 aircraft out of service and by not complying with the inspection requirements of Airworthiness Directive 2004-18-06, SWA failed to resolve an unsafe condition, and therefore violated the requirements of Title 14 Code Of Federal Regulations (14CFR), Part 39.11, which clearly states: “Airworthiness Directives specify inspections you must carry out, conditions and limitations you must comply with, and any actions you must take to resolve an unsafe condition”.

In addition, once SWA was aware of the overdue AD inspections, by continuing to operate these aircraft and failing to meet the requirements of Airworthiness Directive 2004-18-06. SWA violated the requirements of Title 14 Code Of Federal Regulations (14CFR), Part 39.7.

As it is stated in the AD, due to past events pertaining to the Boeing 737, the skin fatigue and cracks could have resulted in a sudden fracture and failure of the skin panels of the fuselage, and consequently cause a rapid decompression which would have had a catastrophic impact during flight. These inspection requirements are the result of the Aloha airlines accident in which a Boeing 737 aircraft during flight lost the top of its fuselage due to undetected cracks.

The requirements of the AD are stated on its first page as follows: “Airworthiness Directives affect aviation safety and are regulations which require immediate attention. You are cautioned that no person may operate an aircraft to which an Airworthiness Directive applies, except in accordance with the requirements of the Airworthiness Directive”

There is no excuse for the actions of SWA and FAA personnel, Mr. Gawadzinski did not have the authority to allow these aircraft to operate with a known unsafe condition past the date at which time the AD noncompliance was discovered and reported to him (March 15, 2007). In addition, it was his responsibility to ensure that SWA had taken immediate corrective action in taking these aircraft out of service.

FAA Order 8300.10 (Inspector’s Handbook) under INSPECTOR RESPONSIBILITY states: “An inspector who becomes aware of an unsafe condition in an aircraft that is being operated or about to be operated and fails to act under the provisions of Section 605(b) FA Act of 1958, as amended, is in dereliction of duty. This duty is placed specifically by Congress upon the inspector rather than on the Administrator. If the inspector, after due consideration, still has any doubts regarding whether or not to ground the aircraft, the grounding notice should be issued”.

Also: TITLE 49, SUBTITLE VII, PART A, Subpart iii, Chapter 447, Sec. 44713, subsection (c) under Unsafe Aircraft, Engines, Propellers, and Appliances, states: “When an inspector decides that an aircraft, aircraft engine, propeller, or appliance is not in condition for safe operation, the inspector shall notify the air carrier in the form and way prescribed by the Administrator of the Federal Aviation Administration. For 5 days after the carrier is notified, the aircraft, engine, propeller, or appliance may not be used in the air transportation or in a way that endangers air transportation unless the Administrator or the inspector decides the aircraft, engine, propeller, or appliance is in a condition for safe operation”.

FAA Inspectors are hired by the taxpayers to ensure Airlines conduct their business with safety as the utmost consideration at all times. Allowing an airline to fly passengers on aircraft with a known unsafe condition puts the lives of the flying public at jeopardy and in my opinion it is dereliction of duty and should be criminal.

The 47 aircraft with the overdue AD inspections were not the only ones that kept flying in revenue service and out of compliance with maintenance/inspection requirements. In reviewing aircraft records I found out that on March 20, 2007, via the VDRP, SWA reported to Mr. Gawadzinski that 70 of their aircraft had over-flown the requirements of their Maintenance program for the functional check of the rudder standby hydraulic system. This required maintenance task is a very detailed and in-depth functional check, which ensures the integrity of the hydraulic system for the standby rudder and its components. The hydraulic standby system provides hydraulic fluid under pressure to operate the rudder among other components in the event of a main hydraulic system failure. In the past, several catastrophic accidents have occurred with other airlines due to malfunction of the rudder control system. Therefore, due to the impact that this system has in safety, maintaining it in accordance with the maintenance program requirements should have been the number one priority.

Records show that this non-compliance went undetected for over a year, and even though these 70 aircraft had been flying out of compliance of this maintenance requirement for over a year, at the time of discovery of the non-compliance again SWA

8 and Mr. Gawadzinski took no action and according to the VDRP the 70 aircraft remained in revenue service and operated in a matter that would provide relief to schedule the overdue maintenance/inspections at the SWA’s convenience while flying paying passengers. In the VDRP report SWA in part states: “Due to availability of the equipment and man hours needed per aircraft, it will take approximately 14 days to complete this task on all affected aircraft”.

However, In reading the Disclosure Details for the VDRP report, specifically under the Initial Notification question, “Did Non-Compliance Cease after Detection”, the VDRP report that was prepared by SWA and accepted by Mr. Gawadzinski states “Yes”. However, this is not the truth. As stated above, the records show that the noncompliance did not cease after detection, and the affected aircraft were allowed to fly in revenue service and out of compliance for an additional 10 days past the date of detection.

It is obvious that the VDRP requirement was circumvented and not met; therefore, this noncompliance/violation as in the AD case does not meet the criteria to qualify as a Voluntary Disclosure.

These 70 aircraft were part of my fleet but my supervisor Mr. Gawadzinski kept me in the dark and worked the VDRP directly with Mr. Comeau. In addition, in reading the VDRP report under THE REASON WHY THIS VIOLATION WAS INADVERTANT, SWA in part states: “Southwest Airlines previous document approval was not as thorough and comprehensive as the one currently in place. Subsequently, previous task card interval requirements weren’t reviewed and matched”. As I stated earlier this was also one of my findings and concerns back in 2005 when I told my supervisor that we had lost sight of the SWA Maintenance Program and I was concerned because SWA had lost control.

On March 28, 2007, I went back to SWA and we had the second meeting for the AD Management SAI. I met with Mr. Roth and Mr. Krivanek and continued the AD SAI inspection. At the end of this meeting, I had completed only two out of the seven pages of the AD Management SAI requirements, and I had documented twenty one (21) negative findings. When I got back to our office and brought this to Mr. Gawadzinski’s attention, he instructed me not to put the negative findings in the FAA ATOS Database yet. A week later, I was instructed to turn all my assignments over to my supervisor Mr. Gawadzinski due to an investigation for an anonymous complaint against me. Mr. Gawadzinski assigned this AD Management SAI inspection to be performed by inspectors Collamore and Bassler who completed this inspection and had fifty (50) favorable findings, and eight (8) negative findings) for the entire inspection. Knowing that SWA had not changed their procedures since the last time I had done this inspection, and since this was one of my safety concerns, I went to the acting office manager Mr. Bobby Hedlund and questioned the favorable findings of the inspection. Mr. Hedlund did not seem to be interested. I called the Safety and Analysis Branch manager Mr. Terry Lambert, at the Regional Office (RO) and explained my concern. Mr. Lambert asked the RO Specialist to analyze inspector Collamore’s and Bassler’s inspection report. According to Mr. Lambert the Specialist found that the AD Management SAI inspection report contained conflicting information and could not support the fifty (50) favorable findings that were reported by inspectors Collamore and Bassler. This was presented to the acting office manager Mr. Hedlund, who instructed that the completed AD Management SAI inspection report be removed from the FAA ATOS repository final status and re-issued again to be accomplished by the same inspectors. I raised

9 concerns again to Mr. Hedlund and stated that the reason that SWA aircraft were over- flying AD requirements was due to the fact that SWA did not have adequate procedures, controls, or process measurements in place to manage the AD requirements. I informed Mr. Hedlund that this was a chronic and well-documented problem, and that due to the fact that this inspection directly affects safety, and based on my findings, I suggested that a different team of inspectors accomplish the AD Management SAI. Mr. Hedlund was not interested and told me that my concerns were noted. For the record, later on, when the Air carrier Evaluation Team of inspectors accomplished the same AD Management SAI inspection they reported 17 favorable findings and 41 negative findings.

On March, 29, 2007, during an FAA security investigation, I gave special agent David Friant a statement regarding my concerns with the relationship of my supervisor Mr. Gawadzinski and Mr. Comeau. I stated that since Mr. Comeau was hired with SWA, my supervisor was working directly with him and I was being bypassed and kept out of the loop on reported safety concerns regarding my fleet. I complained that since November 2006, when the Voluntary Disclosure Reporting Program (VDRP) had become web based for electronic submissions, I was the only PPM in the office that did not have access because Mr. Gawadzinski had refused to give me a password. Any Voluntary Disclosure that affected my fleet was worked out between Mr. Comeau and Mr. Gawadzinski.

In one of the statements that were made by the FAA regarding the operation of the SWA aircraft in revenue service with the overdue AD inspections, it was stated that one FAA inspector looked the other way. I am here to report that more than one FAA inspector along with FAA management have been looking the other way for years. No supervisor can do what my supervisor was doing without the support from fellow inspectors, the support of the Division Management Team (who were fully aware of what was going on) and I believe with the support from some people in Washington. This should be obvious, I was the only maintenance inspector that kept finding and raising these safety concerns since 2003, and when they were elevated to the Division Management Team nothing was done about it. Every time I pointed out to Mr. Gawadzinski that he was not following our mandated guidance regarding safety violations in the presence of the office manager Mr. Mills, Mr. Gawadzinski would respond that our guidance was outdated and that he was talking with Jim Ballough (Director, of Flight Standards), who always informed him of the ups and comings, because according to Mr. Gawadzinski he had spent a lot of time with Jim at the Eastern Region during his Executive leadership Program. Mr. Mills always looked into my safety concerns and supported my findings; however, every time he elevated them to the Division Management Team at the Regional Office he received no support. Under the circumstances that I just described, no matter how good of a manager a person is, without upper management support the system makes him ineffective.

During the FAA investigation regarding my concerns that SWA was flying passengers on aircraft with overdue AD inspections, one of the FAA management personnel that was contacting the investigation was the assistant manager for the American Airlines CMO Mr. Kermit Teppin. From the beginning of the investigation Mr. Teppin down played the serious safety issue and I was told by Mr. Mills that Mr. Kermit made the statement: “In

10 the Air carrier world you have to make deals”. I do not know of any guidance that gives us the authority to make deals at the expense of the safety of the flying public. This is just an example of the people that hold FAA management positions and it is upsetting because their daily decisions have a direct impact in public safety.

The FAA is a great organization with many good inspectors and managers, and I am proud to be part of it. However, there is no accountability throughout the ranks; as FAA Safety inspectors we have taken an oath to uphold the rules and regulation outlined in our mandated guidance and we are told that safety is our job. If that is the case, then how come the FAA does not hold accountable the management and inspectors who look the other way instead of ensuring that the Airlines conduct their business with safety as the utmost consideration? After all, we owe this to the taxpayers who pay our salaries. Other than moving personnel around, the FAA has taken no action and every body involved is still collecting a pay check from the taxpayers.

The SWA aircraft that I reported flying with the overdue AD inspections were not part of my fleet. The Inspector (Mr. Collamore) who is the Partial Program Manager for those aircraft, had full knowledge of this serious safety issue seven days before I did, he also had an obligation and responsibility to follow our guidance and the Federal Regulations and ensure that this unsafe condition was immediately addressed. But Inspector Collamore chose to take no action and went along with Mr. Gawadzinski’s decision.

As for management accountability, after the removal of Mr. Gawadzinski from our office the current office manager Mr. Bobby Hedlund promoted inspector Collamore and gave him more authority by letting him act in Gawadzinski’s position as Supervisor/Principal Maintenance inspector. I had a meeting with Mr. Hedlund and expressed my concerns but he was not interested. I wrote several e-mails to the Division Manager Mr. Stuckey raising my concerns and stated that instead of holding inspectors accountable for their inactions in the performance of their duties the management was rewarding them and giving them additional authority. I requested a meeting and his immediate attention, Mr. Stuckey never responded. However, I received an e-mail from the assistant Division Manager Mr. McGarry who informed me that management has the right to assign acting personnel to temporary supervisory positions.

In another incident, the current office manager Mr. Bobby Hedlund, allowed another inspector to circumvent the regulation and close one of my findings, which was a repetitive violation, with a letter of correction by making it appear that the SWA current procedures were not working and allowed SWA to change their procedures. These were the very same procedures that were put in place by SWA as a fix for one of their previous violations, when in fact, there was nothing wrong with the procedures they just were not followed by SWA and their personnel. I believe Mr. Hedlund feels obligated to SWA because prior to becoming the office manager for the SWA CMO, Mr. Hedland was the Principal Operations Inspector for SWA and during that time he received his training and his pilot’s Boeing 737 type rating (which costs thousands of dollars) free of charge from SWA. However, since Mr. Hedlund was promoted to the office manager’s position and he has the final authority in managing the SWA Certificate, under the circumstances and by his actions, it gives the perception that there is a conflict of interest.

11 We all hear statements that we have the safest air transportation system in the world. I believe that the safety we are enjoying today is the fruit of the aftermath of the Value Jet accident in the mid 90’s which forced us to refocus and put in place new procedures. But unfortunately that was done after the accident. I do not think that we should be taking credit for being reactive to accidents. What is alarming is the fact that even today we are still being reactive, this is proven by the Notice that the FAA issued two weeks ago ordering FAA inspections of the Airlines in order to validate AD compliance because of this hearing. Despite the fact that our data bases are full with positive findings, the current events are proving to us that we have hundreds of aircraft taken out of service with AD compliance issues. Where are the ATOS Risk indicators?

SWA is reporting that according to Boeing there was no safety issue regarding the 47 aircraft that were flying passengers with the overdue AD inspections in which six of them had cracks on the fuselage. It is nice of Boeing to offer an opinion for their largest customer; however, if aircraft manufacturers could predict accidents we would not have the safety requirements of this AD today.

In addition, consultants have been reporting that after reviewing the data and due to the fact that the area of the fuselage that is affected by the AD includes tear straps and bonded doublers in their opinion safety was not jeopardized. I am reporting to you that the only factual data that we have is that the 47 aircraft were flying out of compliance for 30 months and six of them had cracks on their fuselage and were allowed to fly in revenue service with a known unsafe condition for an additional 8 days after the date of discovery. I could not imagine what type of data the consultants reviewed because there is no data that shows how long an aircraft can fly out of compliance with multiple cracks on its fuselage before it splits open. The documented proof we have is the Aloha airlines aircraft that lost the top of its fuselage in flight due to undetected cracks, and for the record that aircraft also had the tear straps and bonded doublers that the consultants are referring to. In addition, for the record, the existence of the tear straps and bonded doublers was taking in consideration when the mandatory requirements of this AD were established.

These mandatory requirements and the actions to address the unsafe condition are clearly written on the AD, which states: “Special flight permits may be issued to operate the airplane to a location where the requirements of this AD can be accomplished”.

I am reporting to you that contacting Boeing for an opinion or hiring a consultant is not an option because neither one has any authority over the mandatory requirements of an AD, and that is the law.

The majority of the ADs are the result of catastrophic accidents, and as the industry saying goes “ADs are written in blood”. I am very concerned because these safety issues affect the lives of the flying public and instead of being advocates for safety some people are still trying to mud the water by downplaying this serious safety issue. The taxpayers and the flying public deserve better and I hope the truth along with some overdue changes come out of this hearing.

12 It is very sad that an FAA Safety inspector has to become a whistleblower in order to address safety issues. I would like to set the record straight because for some reason the FAA Biweekly news in the Aviation Safety Highlights stated the following: ‘’ In the Southwest case of non-compliance, an inspector repeatedly raised issues with his supervisor, but felt he needed to use an anonymous FAA hotline in order to be heard”. That is not the truth! I did not use an anonymous FAA hot line; these are serious safety issues and I wanted the people that received my concerns to be able to get in touch with me this way I could answer any questions they might have. For the record, I have been raising the same safety concerns and AD compliance and maintenance issues since 2003 on record and openly, and had the FAA management listened we would not be in this situation today. I have followed the chain of command from my manager all the way to the Regional Office and the Division Management Team. Every safety concern, every inspection finding, has my name on it.

What you will find interesting is that in late March of 2007, after I discovered that SWA along with the FAA had allowed the operation of the aircraft with the overdue AD inspections in revenue service and once everybody knew that I elevated this serious safety issue I was removed from my position and was placed under investigation due to an anonymous complaint with allegations against me that was forwarded to our office through Mr. Gawadzinski from SWA. Along with the anonymous complaint my office manager Mr. Mills received an e-mail from the Director of Quality Assurance Mr. Mats Sabel (the same person that previously had requested my removal from doing the AD SAI inspections) requesting my restriction from SWA property until the investigation and any other official investigation had been contacted. That day Mr. Gawadzinski came to my cube and told me with that type of allegations against me; he did not see a reason for me to stay in the office. I questioned the timing of the anonymous complaint but I received no response. From March 2007, to the end of August of 2007, I was hoping that the Division Management Team would do the right thing and look into my findings and safety concerns. However, they did not address anything, in July 2007 they closed the investigation regarding my documented safety concerns and they concentrated their efforts in silencing the messenger. By the end of August I realized that the Division Management Team’s interest was damage control and covering up the serious safety concerns I had brought to their attention. In the end of August I put a package together, the same package that I had given to the Division Management Team 6 months earlier and I sent it to the Office of Special Council and again I went on record and openly identified my self. By the end of September of 2007, after the Division Management Team found out that I had elevated the safety issues to Washington they reinstated me back to my position and they re-opened the investigation regarding my reported safety concerns. I am here to report to you that all my findings and safety concerns have been validated 100%.

The Division Management Team (DMT) is stating that they did not know anything about the operation of the aircraft until it was over when in reality they had lost sight of the safety mission. Back in March of 2007 when SWA had reported to the FAA that 47 of their aircraft were affected by the overdue AD inspections, and 70 aircraft had over-flown the requirements of their Maintenance program for the functional check of the rudder standby hydraulic system, SWA never identified which aircraft were involved. The aircraft identification is required in order for the FAA to accomplish follow up inspections to ensure that the affected aircraft were inspected. By the time I was reinstated (end of

13 September of 2007), 6 months had gone by and the FAA still did not have anything official from SWA to identify the affected aircraft, but in the AD case they had inspection reports from 3 FAA inspectors stating that they had done follow up inspections. However, when one of these inspectors found out that I had elevated this issue to Washington that inspector informed the office manager (Hedlund) that his report was not for the follow up inspection of the affected aircraft but it was for putting the binders together for the investigation. It was not until October 31, 2007, (7 months later) and after my persistence that our office finally requested and received an official letter from SWA identifying the 47 and 70 aircraft that were involved in the non-compliance of the AD and the rudder standby hydraulic system. The DMT also was not proactive in taking action to ensure that SWA did not have other aircraft with AD issues. After I elevated the issue to Washington, the DMT realized that they would have to answer questions and this is when they started to look into the AD compliance requirements. And as it turns out, SWA had additional aircraft with other AD issues.

During the town hall meeting in March 2008, Mr. Sabatini stated that the FAA is working on a solution to prevent this from happening again and it is my understanding that the FAA is going to put in place a Hot line process for inspectors to elevate safety concerns. But with all do respect I have a question here, if FAA management did not respond when I openly and on record raised the serious safety concerns, how is a hot line process going to work? What we need is accountability throughout the ranks, and that will fix the problem. There is no need to burden the taxpayers with another hot line process. Additionally, I like to inform you that for years we have a similar hot line system in place that inspectors do not trust because Hot line complaints and safety issues, end up on the FAA Administrators desk, and then are passed down to the local FAA Regional Office to be investigated. The Regional Office assigns the local FAA Security (which reports to them), to conduct these investigations, FAA security does not have the technical background, and that is where the Regional Office controls the outcome by assigning the technical portion of the investigation to Regional FAA personnel that report to them also. From my experience, I believe the priority of the Regional Office is damage control and I see no interest in accountability, or doing the right thing. At the end of the investigation, no matter what the evidence shows, it’s disregarded by the Division Management Team who cherry pick the information from the investigation reports and without looking at the big picture, they apply Band-Aids instead of fixing the root of the problem.

I will also like to inform you that since the FAA put in place the customer service initiative, the partnership programs such as the Voluntary Disclosure Reporting Program (VDRP) and the Aviation Safety Action Program (ASAP) have become ineffective. We are told that the airlines are our customers and if they do well we do well (more jobs for our office). However, some of us forget that we have another more important customer, the taxpayers, who put their trust in us to ensure that the airlines provide safe transportation for the flying public.

The airlines take advantage of the customer service initiative and they constantly remind us they are the customer. The best way to put it is like you are going down the highway committing traffic violations and jeopardizing the safety of others and when the police officer stops you and informs you that you are breaking the law by endangering people’s lives you tell him that he can not document the violation because you are his customer. I know it sounds funny but this is as close to an example as I can come up with. We also

14 have the customer service feed back line for the airlines which gives them the opportunity and the tool to cherry pick the FAA inspector force that manages their certificate by praising the inspectors that go along with their wishes, however, there is nothing in place to support the inspectors that are intimidated by FAA management and by the airline because they do their job by the book. In the performance of my duties I have been asked by SWA management to make a violation go away. In addition, I have been threatened by SWA management that they could have me removed from their certificate.

The airlines use the VDRP as a tool to circumvent the regulations and provide relief for themselves from maintenance and inspection requirements in order to keep their aircraft flying. A good example of this is the SWA VDRP of the 70 aircraft that were flying in revenue service with the functional check of the rudder standby hydraulic system checks overdue for over a year and used the VDRP to continue flying the aircraft in revenue service and out of compliance for an additional 10 days past the date of discovery due to the shortage of manpower and equipment.

The ASAP program is also abused by maintenance personnel who are no longer held accountable. They are using the program for reasons other than its intent and I will give you couple examples. In the past SWA mechanics were installing the wrong tire and wheel assemblies (B-737-300) on the Boeing 737-700 aircraft. The first time this discrepancy was reported and accepted into the ASAP the mechanic that was involved received human factors training and the tire and wheel assembly paperwork was revised for future installations by adding a paragraph as a note right above where the mechanic signs for changing the wheel and tire cautioning him/her to check that the proper wheel and tire assembly were installed. The second time another mechanic installed the wrong tire and wheel assembly on an aircraft again. The ASAP accepted the report and this mechanic also got human factors training. In addition, a new safety net was put in place by painting all the tires with big letters on the sidewall indicating to what type of aircraft they belong to. The third time another mechanic installed the wrong tire and wheel assembly on an aircraft again. The FAA again accepted the third mechanic’s report into the ASAP. I can see accepting the first mechanic’s report. But how can we say that by accepting the other two mechanics reports into the ASAP we contributed to safety. I can stand here and give you all kinds of similar examples but the bottom line is that some mechanics are not as vigilant as they should be and they do not worry about it because they know that they can always ASAP the performance of improper maintenance even after an FAA inspector finds it. We need to refocus and ensure that these programs meet their intent instead of being a “get out of jail free card”.

I hope the information I have provided today will help bring some overdue changes and help inspectors like my self to continue serving the public and give hope to the inspectors that have lost faith in the system.

Thank you for your time and for giving me the opportunity to raise my safety concerns in front of your honorable committee.

15 EXHIBIT 2 Page 1

7 of 26 DOCUMENTS

Distributed by McClatchy-Tribune Business News

April 6, 2008 Sunday

SECTION: BUSINESS AND FINANCIAL NEWS

ACC-NO: 20080406-DA-FAA-whistle-blower-risked-it-all-to-do-what-s-right-0406

LENGTH: 999 words

HEADLINE: FAA whistle-blower risked it all to do what's right

BYLINE: Dave Michaels, The Dallas Morning News

BODY: Apr. 6--WASHINGTON -- For Bobby Boutris, the road to vindication was no ordinary campaign. Until he testified before Congress last week, Mr. Boutris' reward for confronting a breakdown in regulators' oversight of Southwest Airlines was professional exile, personal retaliation and, recently, a death threat. Last week, his sacrifice yielded results: a congressional hearing that confirmed the alarms he sounded about regulators cozying up to airlines. He also received a personal apology from Secretary of Transportation Mary Peters, who promised to fix any problems. "I still cannot believe that finally the system worked, and gave us the opportunity to report to the American people about what's going on," Mr. Boutris said. On Monday, Mr. Boutris returns to the Federal Aviation Administration office in Irving, where he battled a culture that allowed Southwest to violate federal safety regulations with impunity. Even his close friend and fellow whistle- blower, Douglas Peters, questioned his decision to return. "I wouldn't want to be in his position," said Mr. Peters, who now works in another FAA office in North Texas. "But knowing Bobby, he'll suck it up and do what he has to do." Had the FAA heeded Mr. Boutris' warnings at some point, it might have removed a supervisor who allowed Southwest to continue flying jets that should have been grounded for federally required inspections. Southwest has been fined $10.2 million for its role in the controversy. A string of federal officials praised Mr. Boutris' courage last week, including Nicholas Sabatini, the FAA's associate administrator for air safety, who called him a hero. But for several years, his struggle was apparently unknown to them, and was waged within an FAA region slow to exercise its enforcement responsibilities. Fighting the system Mr. Boutris first discovered discrepancies with Southwest's system for tracking compliance with federal airworthiness directives in 2003. The FAA issues those directives to address urgent defects or safety hazards, and can enforce compliance with fines and other penalties. Mr. Boutris' supervisor, Douglas Gawadzinski, quashed his proposal to investigate the matter. Mr. Gawadzinski, who has declined to comment and whom the FAA transferred last year, preferred to handle such questions with "letters of concern," which are not entered into a database to generate a follow-up. Page 2 FAA whistle-blower risked it all to do what's right The Dallas Morning News (Texas) April 6, 2008 Sunday

"No guidance and no order gives us, as FAA safety inspectors, the right to cut deals at the expense of the flying public," Mr. Boutris said. Mr. Boutris' reward for speaking up was the suspension of traveling privileges. Mr. Gawadzinski later cut him out of meetings. Colleagues trashed his cubicle and mocked his Greek accent, Mr. Peters said. But his exile really began in April 2007, after Mr. Boutris told FAA investigators about Mr. Gawadzinski's relationship with Southwest Airlines. Mr. Gawadzinski's daily contact at the airline was a former FAA inspector who had worked for him. Soon after, a letter surfaced, signed by an anonymous Southwest mechanic. It said that Mr. Boutris bragged about sneaking a weapon on an airplane and that he begrudged Southwest for turning him down for a job. The FAA launched an investigation and removed Mr. Boutris from day-to-day responsibilities for Southwest. No longer trusting the FAA to resolve the matter, Mr. Peters told a congressional committee about what was happening. Calvin L. Scovel III, the U.S. Transportation Department's inspector general, said last week that the claims against Mr. Boutris were "baseless." Removing him from his duties was unnecessary, Mr. Scovel said. Shortly after Congress announced in February that it would air its investigation of Southwest's lapses in a hearing, Mr. Boutris received a death threat in the mail. An article was sent to his wife, Cathy, that discussed how survivors "get by" when loved ones are gone, according to a federal official. The FBI is investigating. "I feel safe, but my family has been affected," said Mr. Boutris, who has two sons. "If somebody upsets them, it upsets you, too." Last week, Mr. Sabatini acknowledged that the FAA needed to "recalibrate" to make certain that some inspectors hadn't abandoned their enforcement responsibilities. Mr. Boutris said he welcomed that new attitude but remained skeptical. "Actions speak louder than words," Mr. Boutris said. Of Mr. Sabatini, he added, "To this date, he's not even picked up the phone and talked to us to say, 'You've done a good job.' " Not backing down Mr. Boutris, 56, immigrated to the United States from Greece in 1975. He sometimes apologizes for his English, as he did at the outset of his congressional testimony, when he said, "If I speak too quickly and it sounds Greek to you, more than likely, it probably is." In fact, Mr. Boutris speaks perfectly. Occasionally, he gets ahead of himself, if only because his brain seems to call up federal codes faster than his mouth can spit them out. One of Mr. Peters' fondest memories of Mr. Boutris was a day about seven years ago, as he watched him recite federal regulations to inspectors who oversaw Mesa Air. "He was just somebody you wanted to be around if you wanted to do the right thing," Mr. Peters said. On Thursday, Gary Kelly, Southwest's chief executive, greeted Mr. Boutris with a handshake and inquired how he was doing. Mr. Boutris said he thought the question was sincere. He has no plans for taking it easy on the airline, however. "I'm not planning on changing," he said. "Anything that goes against a standard and against the law is worth fighting. No matter how small." To see more of The Dallas Morning News, or to subscribe to the newspaper, go to http://www.dallasnews.com. Copyright (c) 2008, The Dallas Morning News Distributed by McClatchy-Tribune Information Services. For reprints, email [email protected], call 800-374-7985 or 847-635-6550, send a fax to 847-635-6968, or write to The Permissions Group Inc., 1247 Milwaukee Ave., Suite 303, Glenview, IL 60025, USA.

LOAD-DATE: April 6, 2008

EXHIBIT 3 Timeline of Southwest oversight breakdown | Dallas Morning News | News for Dallas, Te... Page 1 of 2

Timeline of Southwest oversight breakdown

12:00 AM CDT on Friday, April 4, 2008

Federal investigations traced a four-year period during which regulatory supervision of Southwest Airlines in North Texas broke down. Investigations by Congress, the U.S. Department of Transportation's inspector general and the Federal Aviation Administration found:

Dec. 2003 – An FAA maintenance inspector who supervised Southwest, Charalambe "Bobby" Boutris, informed his boss that he found discrepancies in Southwest's system for tracking its compliance with federal aviation regulations. He pushed for an investigation, but his manager didn't approve one.

Early 2005 – Mr. Boutris found that his manager, Douglas T. Gawadzinski, allowed Southwest to change its maintenance practices without formal FAA approval. A higher-ranking supervisor later confirmed it.

Sept. 2005 – A new manager in the oversight office, Michael Mills, raised questions about Mr. Gawadzinski's decision to let Southwest escape penalties for regulatory lapses.

Dec. 2005 – An internal FAA review found that Mr. Gawadzinski misclassified five Southwest violations as "carrier notifications," which don't require the airline to fix the problem.

Jan. 2006 – Mr. Gawadzinski again prevented Mr. Boutris from starting an investigation of Southwest's compliance with airworthiness directives.

June 2006 – An FAA regional team found personnel conflicts in the office. One employee reported to federal investigators that "Southwest was using these relationship tensions to its advantage."

Jan. 2007 – Mr. Gawadzinski assigned Mr. Boutris to an audit of Southwest's procedures for following airworthiness directives. Southwest asked for him to be removed, but Mr. Boutris remained on the task.

March 15, 2007 – Southwest told Mr. Gawadzinski that some of its Boeing 737 fleet may have missed a federally required inspection. The airline found the error while preparing for Mr. Boutris' review.

March 19, 2007 – Mr. Gawadzinski allowed the airline to escape punishment for the violation. Southwest scheduled inspections for 46 jets but didn't stop flying them – a violation of federal rules.

March 23, 2007 – The inspections found cracks in the skin of six planes.

March 28, 2007 – Based on an anonymous complaint, Mr. Boutris was removed from his job and put under investigation. He was later cleared.

April 2007 – Another FAA regional team returned to the Irving office and found that "the office environment had actually worsened" over concerns about the way Southwest's problems were handled. The FAA began an investigation of Mr. Gawadzinski's handling of the case.

http://www.dallasnews.com/sharedcontent/dws/bus/stories/DN-SWtimeline_04bus.ART.St... 5/27/2008 Timeline of Southwest oversight breakdown | Dallas Morning News | News for Dallas, Te... Page 2 of 2

June 2007 –Another inspector, Douglas E. Peters, went to congressional investigators about problems with oversight of Southwest.

Feb. 2008 – Rep. James Oberstar, chairman of the House Transportation and Infrastructure Committee, announced a hearing expected to be critical of FAA oversight.

March 6, 2008 – The FAA announced a $10.2 million fine against Southwest for flying planes that missed some fuselage checks.

April 2, 2008 – The FAA announced reforms to address the safety lapses, including a rule to prevent inspectors from going to work immediately for airlines they supervised.

April 3, 2008 – Mr. Boutris and Mr. Peters testified at a hearing led by Mr. Oberstar.

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9 of 100 DOCUMENTS

SHOW: Morning Edition 11:00-12:00 PM

April 3, 2008 Thursday

LENGTH: 1465 words

HEADLINE: Southwest Probes Stymied

ANCHORS: STEVE INSKEEP, RENEE MONTAGNE

BODY: STEVE INSKEEP, host: It's MORNING EDITION from NPR News. I'm Steve Inskeep. RENEE MONTAGNE, host: And I'm Renee Montagne. The latest mass grounding of commercial airliners was guaranteed to get the media's attention. United Airlines parked dozens of Boeing 777 aircraft for inspection. The affected planes include one chartered to carry reporters on President Bush's trip to Europe. INSKEEP: United's action comes after American and Delta cancelled hundreds of flights. Southwest Airlines was accused of faking inspections on its planes. And now the Federal Aviation Administration is investigating four major airlines. MONTAGNE: It fell to acting administrator Robert Sturgell to offer the reassurance to flyers that has become a rit- ual at times like this. Mr. ROBERT STURGELL (Acting FAA Administrator): The bottom line, despite what a small few may imply, is that our system works, and that flying is safer today than at any time in the past. MONTAGNE: None of which will make the story you'll about to hear any less startling. We've heard about these problems because two FAA inspectors blew the whistle. Today they testify before Congress, and they've already told their story to NPR's Wade Goodwyn. WADE GOODWYN: If you're cruising along at 37,000 feet in a 25-year-old 737, Bobby Boutris is the kind of FAA safety inspector you hope checked out your airplane. He's a stickler for details and relentless when he discovers a serious safety problem. Back in 2003, Boutris had been assigned responsibility for reviewing the engine maintenance for 737s in his region, and Boutris says when he looked at Southwest Airlines' paperwork, it was so inconsistent and incomplete, he couldn't tell what was going on with their engines. Mr. BOBBY BOUTRIS (Former FAA Safety Inspector): In 2003 I had found a lot of inconsistencies with the records. They were different from aircraft to aircraft; it was very hard to determine compliance. GOODWYN: Boutris complained to his supervisor, but he says he was largely ignored. But when Boutris was named program manager for the Boeing 737-700 series in 2006, the situation came to a head. Now he was responsible for the safety of the entire aircraft, and Boutris says Southwest's record-keeping had not improved. Mr. BOUTRIS: I went back to my supervisor and I stated to him that I had the same problems I had back in 2003, three years earlier, on the engines, and I wanted to send a letter of investigation. He refused to. Page 2 Southwest Probes Stymied National Public Radio (NPR) April 3, 2008 Thursday

GOODWYN: An FAA letter of investigation is a serious matter for an airline. And according to FAA rules, under these particular circumstances Boutris was required to investigate further. But he says he was again blocked by his supervisor, Douglas Gawadzinski. Boutris says he thinks he knows why - Gawadzinski had a friend at Southwest. Mr. BOUTRIS: Mr. Paul Comeau, he was an FAA inspector in our office. While working for the FAA, he accepted the position with Southwest Airlines as the manager for regulatory compliance. So anything that had to do with aircraft maintenance, it was dealt between Mr. Gawadzinski and Mr. Comeau. They had a very close relationship. GOODWYN: Douglas Gawadzinski and Paul Comeau did not respond to NPR requests for comment. With a former FAA insider heading up their compliance team, Boutris says Southwest Airlines became complacent and arrogant. But Boutris wouldn't go away, so Southwest tried to get him removed. They told the FAA they wanted a different inspector. Mr. BOUTRIS: It was obvious that Southwest Airlines, to me, what I believe, they were trying to cherry-pick the inspector for the inspection. And because of my knowledge for three years, they want me not to perform this inspection, they want somebody else. GOODWYN: At first Boutris's supervisor refused to remove him. But it wasn't long before Gawadzinski told Boutris he was out and his career was in jeopardy because there had been undisclosed complaints from anonymous Southwest officials. And this is where the second FAA whistleblower, Douglas Peters, comes into the story, because he was asked to review Boutris's Southwest investigation, and the more Peters investigated, the more he agreed with Boutris that the flying public was in danger. Mr. DOUGLAS PETERS (Former FAA Supervisor): Absolutely. And so did the manager and so did the assistant manager and so did the supervisor for the geographic unit. It defies logic that something so critical would be not addressed. I can't explain it. It's a mystery. GOODWYN: Peters says he soon discovered that Southwest began to try to interfere with his investigation as well by going behind his back, again to FAA supervisor Gawadzinski. But the situation for Southwest was about to change. In March of 2007 the airline reported to the FAA that it had not done the required fuselage inspections on 47 jets. That's important because certain versions of the Boeing 737 are vulnerable to cracks just above and below the windows. In fact, in 1988, an Aloha Airlines 737 explosively decompressed and blew out 18 feet of its roof. A flight attendant was sucked out to her death, and it was something of a miracle the pilots could even land the plane. The pictures are not to be believed. But instead of grounding these 47 aircraft and inspecting them for cracks in the skin, Southwest quietly continued to fly these jets. And FAA Inspector Gawadzinski, who knew about Southwest's alleged deception, is accused of helping the airline cover it up. Whistleblower Doug Peters says the problem at the FAA involves more than one rogue supervisor. He says higher- ups in the agency have known for three years that there were serious problems with aircraft maintenance inspections and have done nothing. Mr. PETERS: Long story short, it didn't have to come to this. The FAA could have addressed this a long time ago. And the reason that we're here today is because they failed to do so. GOODWYN: Yesterday, the FAA has tried to do some damage control. The agency has transferred supervisor Ga- wadzinski and fined Southwest $10 million. Bobby Sturgell is the acting FAA Administrator. Mr. BOBBY STURGELL (Acting FAA Administrator): We had a breakdown in the system with Southwest Air- lines. There is no excuse. We have taken appropriate personnel action in-house. The most important outcome is that we learned from the experience and strengthen our system to reduce the likelihood of a reoccurrence. And for those who question our commitment to safety, I would suggest there's at least one airline today with 10.2 million reasons why those critics are simply wrong. GOODWYN: For its part, Southwest Airlines at first protested the $10 million fine, then the company fell silent as the extent of the public relations mess became apparent. Ginger Hardage, senior vice president, says the company is investigating. Page 3 Southwest Probes Stymied National Public Radio (NPR) April 3, 2008 Thursday

Ms. GINGER HARDAGE (Senior Vice President): We put three employees on administrative leave. We really accelerated this internal audit even further. We brought in an outside expert, and also the FAA is coming in with a separate independent audit. GOODWYN: Southwest declined to comment about any of the details regarding its past interactions with the FAA. It will not be a pleasant day for Southwest executives or FAA officials appearing before the House Transportation Committee and its angry Chairman Jim Oberstar. The FAA's announcement that four more airlines are now under investigation for failing to comply with federal maintenance regulations only serves to underscore Bobby Boutris's contention that many other FAA investigators have been stymied by their supervisors too. Boutris says how Congress reacts to this will determine a lot about future aircraft safety. Mr. BOUTRIS: I want to tell you, we have gotten the support from a lot of fellow inspectors that they're going through the same thing I went through for the last five years. So I think the flying public needs to know that we need their support. This way we can do what we were hired for. GOODWYN: In the last few days, Bobby Boutris received a death threat for his role as a whistleblower. The FBI says it is investigating. Wade Goodwyn, NPR News, Dallas. MONTAGNE: If it's any consolation, the United States is not the only country with some trouble in the skies. Chi- nese fliers got a reminder today that Chinese labor is demanding more rights. This is no longer a country where everyone will work under any conditions for even the lowest wages, and the pilots for China Eastern Airlines made that point quite dramatically. The pilots were unhappy over labor issues, and according to state-run newspapers that's the reason they disrupted 14 flights from a single city. The pilots took off as expected, but then turned back mid-way. They blamed bad weather, though it appeared that other airlines were able to complete their flights as normal.

LOAD-DATE: April 3, 2008

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1 of 5 5/28/2008 3:18 PM Clarke: 9/11 might have been prevented - Security- msnbc.com http://www.msnbc.msn.com/id/4639380/

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“The people in the FBI and CIA dropped the ball Photo features More or we would have known those facts,” said Clarke, adding, “If that information had bubbled Week in Pictures From a bad-boy bear to up — if the system had worked in FBI, if the destruction in China, view The system had worked in CIA — I think we probably Week in Pictures. could have” made a difference. AP Acknowledging that he was indulging in “20/20 hindsight,” Clarke said, “I would like to think I PhotoBlog would have gone on battle stations.” View and discuss the pictures and issues that caught our TRANSCRIPT eyes.

Full text of ‘Hardball’ interview with Richard Clarke AP

Bush and Iraq Clarke told the National Commission on Terrorist Attacks Upon the United States last week that Most popular Bush and his national security adviser, Most viewed Top rated Most e-mailed Condoleezza Rice, ignored al-Qaida before the The 5 friendliest cities in America attacks. He said his access to senior officials was cut off by the new Bush administration, which he TODAY crowns the cutest, cuddliest puppy said did not consider terrorism to be an “urgent White House: McClellan is 'disgruntled'

problem.” In contrast, he said, the Clinton Dem lawyers: Fla., Mich. can't be fully restored administration gave the terrorist threat its U.S. woman dies in iron lung after power failure “highest priority.” Most viewed on msnbc.com Clarke has said Differences with the president Condoleezza Rice then rushed to blame Iraqi President are ‘a matter of Saddam Hussein for the Sept. 11 opinion, rather than attacks. fact.’ Clarke’s testimony was considered so damaging that the White House agreed — RICHARD CLARKE Monday to allow the commission to question Rice in public and under oath, reversing course after insisting that she should not have to do so to protect the president’s executive privilege.

Wednesday, Clarke blasted Bush for going to war with Iraq, saying the president’s decision was “my chief motivation” in writing his best-selling book criticizing the White House. He said Bush’s obsession with Saddam had short-circuited the larger war against terrorism.

“We had a window of opportunity after 9-11 to really root out terrorism,” Clarke said. “Instead, we took this excursion, going into Iraq, which had the exact opposite effect. It strengthened terrorism.”

He said he feared that U.S. invasions of Iran or Syria could be in the offing “if the same people are around. ... I fear that they haven’t learned from their mistake.”

‘Vulcans’ in charge Clarke said the group of hard-line conservatives Bush put in charge of his defense and security structure had taken over the administration’s foreign policy, and “they all had Iraq on the mind from the day they came into office.”

2 of 5 5/28/2008 3:18 PM Clarke: 9/11 might have been prevented - Security- msnbc.com http://www.msnbc.msn.com/id/4639380/

The officials — a group Clarke said called itself “the Vulcans” — were led by Rice, Vice President Dick Cheney, Defense Secretary Donald Rumsfeld and Rumsfeld’s deputy, Paul Wolfowitz, Clarke said, adding that their fervor to remove Saddam clouded their judgment about the consequences.

“I think they did a bad job of analysis,” Clarke said. “... My guess — and this is ‘The president has to really sad — is that they never sat have the ultimate around and said, ‘What will the effect responsibility.’ be on the recruitment of al-Qaida, on the empowerment of al-Qaida? What’s — RICHARD CLARKE the negative, downside of going into Iraq?’”

But “the president has to have the ultimate responsibility,” Clarke said, accusing Bush of primarily being “interested in finishing the old man’s business” by ousting Saddam after his father ended the first Gulf War without changing the Iraqi government in 1991. Saddam was later accused of trying to assassinate the first President Bush.

Clarke lodged much the same charge against Cheney, who was defense secretary during the first Gulf War. Cheney, he said, “was interested in cleaning up a mistake that he made” when he recommended ending the ground war after only 100 days.

Clarke’s testimony Clarke has clashed sharply with Rice over their assessments of the administration’s grip on the threat from al-Qaida, but he said Wednesday that he was confident that Rice would tell the truth when she testifies next week.

Free video “Dr. Rice is a very honorable woman who Rice to testify served her country publicly very admirably, and I March 30: don’t see any reason Condoleezza Rice’s attempts to undermine to impugn her Richard Clarke veracity,” who appeared to backfire. characterized his NBC’s David Gregory Launch disagreements with her reports. as “a matter of Nightly News opinion, rather than fact.”

After Republicans intimated that Clarke may have committed perjury by contradicting testimony he gave before Congress two years ago, Clarke said Sunday on NBC’s “Meet the Press” that he had nothing to hide and would “welcome” an attempt to declassify his comments.

He said Rice’s earlier private testimony before the commission should also be declassified, as well as e-mails, memos and all other correspondence between Rice and Clarke.

Rice may testify next week Rice’s new testimony is expected by the end of next week. The commission’s Democratic vice chairman, former Rep. Lee Hamilton of Indiana, said the panel’s staff was reviewing previous statements by Clarke and Rice to help identify discrepancies.

Bush and Cheney have agreed to meet with all 10 members in private, but no date has been set. They will appear together, allowing them to reinforce each other’s recollections, a privilege Clarke noted Wednesday that he had not had.

“I guess when you’re president you get special treatment,” he told Matthews.

The commission is scheduled to release its final report by July 26. It is to resume its full public hearings April 13, focusing on the legal and intelligence communities. Scheduled witnesses include Attorney General John Ashcroft and his predecessor, Janet Reno; CIA Director George

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Tenet; and FBI Director Bob Mueller and his predecessor, Louis Freeh.

NEWSWEEK

Christopher Dickey: What Clarke’s book really says

Clarke’s book and his comments in recent interviews enraged the White House, which launched a furious assault on his credibility. A variety of administration officials, from Cheney on down, denounced Clarke as a disgruntled political opportunist intent on salvaging his reputation and selling his book. The administration took the extraordinary step of issuing a long, point-by-point written rebuttal of the claims made in the book.

Bush told reporters that he would have acted more quickly against al-Qaida if he had had information before Sept. 11 that an attack on the U.S. homeland was imminent.

The issue has taken on increasing importance in an election year in which Bush’s re-election hopes appear in large part to rest on public trust in his ability to protect the nation. Confidence in his ability to handle security matters, which was high after the terrorist attacks, increased again during the war in Iraq. But the percentage of people who trust Bush has fallen below 50 percent in some polls since the war.

By MSNBC.com’s Alex Johnson. MSNBC-TV’s Doug Pasternak contributed to this report.

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2 of 2 7/11/2008 12:13 PM EXHIBIT 2 Report Details Dissent on Guantánamo Tactics - New York Times http://www.nytimes.com/2008/05/21/washington/21detain.html?adxnnl=...

May 21, 2008 Report Details Dissent on Guantánamo Tactics

By ERIC LICHTBLAU and SCOTT SHANE

Correction Appended

WASHINGTON — In 2002, as evidence of prisoner mistreatment at Guantánamo Bay began to mount, Federal Bureau of Investigation agents at the base created a “war crimes file” to document accusations against American military personnel, but were eventually ordered to close down the file, a Justice Department report revealed Tuesday.

The report, an exhaustive, 437-page review prepared by the Justice Department inspector general, provides the fullest account to date of internal dissent and confusion within the Bush administration over the use of harsh interrogation tactics by the military and the Central Intelligence Agency.

In one of several previously undisclosed episodes, the report found that American military interrogators appeared to have collaborated with visiting Chinese officials at Guantánamo Bay to disrupt the sleep of Chinese Muslims held there, waking them every 15 minutes the night before their interviews by the Chinese. In another incident, it said, a female interrogator reportedly bent back an inmate’s thumbs and squeezed his genitals as he grimaced in pain.

The report describes what one official called “trench warfare” between the F.B.I. and the military over the rough methods being used on detainees in Guantánamo Bay, Afghanistan and Iraq.

The report says that the F.B.I. agents took their concerns to higher-ups, but that their concerns often fell on deaf ears: officials at senior levels at the F.B.I., the Justice Department, the Defense Department and the National Security Council were all made aware of the F.B.I. agents’ complaints, but little appears to have been done as a result.

The report quotes passionate objections from F.B.I. officials who grew increasingly concerned about the reports of practices like intimidating inmates with snarling dogs, parading them in the nude before female soldiers, or “short-shackling” them to the floor for many hours in extreme heat or cold.

Such tactics, said one F.B.I. agent in an e-mail message to supervisors in November 2002, might violate American law banning torture.

More senior officials, including Spike Bowman, who was then the head of the national security law unit at the F.B.I., tried to sound the alarm as well.

“Beyond any doubt, what they are doing (and I don’t know the extent of it) would be unlawful were these enemy prisoners of war,” Mr. Bowman wrote in an e-mail message to top F.B.I. officials in July 2003.

1 of 3 7/11/2008 12:15 PM Report Details Dissent on Guantánamo Tactics - New York Times http://www.nytimes.com/2008/05/21/washington/21detain.html?adxnnl=...

Many of the abuses the report describes have previously been disclosed, but it was not known that F.B.I. agents had gone so far as to document accusations of abuse in a “war crimes file” at Guantánamo. The report does not say how many incidents were included in the file after it was started in 2002, but the “war crimes” label showed just how seriously F.B.I. agents took the accusations. Sometime in 2003, however, an F.B.I. official ordered the file closed because “investigating detainee allegations of abuse was not the F.B.I.’s mission,” the report said.

The inspector general, Glenn A. Fine, found that in a few instances, F.B.I. agents participated in interrogations using pressure tactics that would not have been permitted inside the United States. But the “vast majority” of agents followed F.B.I. legal guidelines and “separated themselves” from harsh treatment, the report says.

The report says that the F.B.I. “had not provided sufficient guidance to its agents on how to respond when confronted with military interrogators” who used interrogation techniques that were not permitted by the F.B.I., and that fueled confusion and dissension. But it also says that “the F.B.I. should be credited for its conduct and professionalism in detainee interrogations in the military zones.”

Jameel Jaffer, who tracks detainee issues for the American Civil Liberties Union, took a more critical stance, saying the report shows “the F.B.I.’s leadership failed to act aggressively to end the abuse.” Mr. Jaffer said the report “only underscores the pressing need for an independent and comprehensive investigation of prisoner abuse.”

The report documents in greater detail than ever before the conflict between the F.B.I. and the C.I.A. over interrogation methods, which began with the capture of Abu Zubaydah, a senior Qaeda figure, in Pakistan in March 2002. F.B.I. agents began the interrogation using traditional rapport-building methods, and one agent even provided personal care for Mr. Zubaydah, who had been shot three times and grievously wounded, “even to the point of cleaning him up after bowel movements.”

But C.I.A. personnel who took over the case within a few days began to use harsher methods that one F.B.I. agent described as “borderline torture,” and which the C.I.A. has acknowledged included waterboarding, in which water is poured over the prisoner’s mouth and nose to create a feeling of suffocation.

The report describes extensive debate inside the F.B.I. over the next six months over whether it should continue to observe or assist the C.I.A. with interrogations using harsh methods it believed were counterproductive.

F.B.I. officials, including Pasquale D’Amuro, then the bureau’s top counterterrorism officer, believed the physical pressure being used by the C.I.A. was less effective than traditional noncoercive methods, that it would “taint” any future effort at prosecution, and that it “was wrong and helped Al Qaeda in spreading negative views of the United States,” the report says.

After the capture of another Qaeda figure, Ramzi bin al-Shibh, in September 2002, F.B.I. agents again traveled to a secret C.I.A. site where Mr. bin al-Shibh was being questioned. But only in 2003, the report concludes, did the F.B.I. make a “clean break” and choose to have no involvement in the C.I.A.’s harsh interrogations.

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The report said several senior Justice Department Criminal Division officials raised concerns with the National Security Council in 2003 about the military’s treatment of detainees but saw no changes as a result. One Justice Department official said he believed that John Ashcroft, the former attorney general, had spoken to Condoleezza Rice, then the national security adviser, about the department’s concerns about interrogation methods being used in late 2002 on Mohammed al-Qahtani, a Qaeda member who was believed to be the so-called 20th hijacker in the attack of Sept. 11, 2001.

But Mr. Ashcroft declined to be interviewed by the inspector general’s office of the department he had headed, an unusual refusal and one that hampered investigators’ effort to learn of discussions inside the National Security Council , the report says.

A spokesman for Mr. Ashcroft, Mark Corallo, said the former attorney general had not cooperated because “his conversations with the White House and with staff on national security matters are privileged.”

The report says that while some Justice Department officials believed that the physical pressure techniques being used by the military were wrong, others merely thought they might be ineffective.

A Pentagon spokesman, Bryan Whitman, noted that abuses at Guantánamo were the subject of a 2005 Defense Department investigation that found no evidence of torture, though it did fault some interrogation tactics and called the Qahtani interrogation degrading and abusive.

The Justice Department said it was pleased that the report “credited the F.B.I. for its conduct and professionalism during interrogations.”

A C.I.A. spokesman said the harsh methods it used were “found lawful by the Department of Justice itself” and were “employed only when traditional means of questioning — things like rapport-building — were ineffective.”

This article has been revised to reflect the following correction:

Correction: May 22, 2008 A capsule summary on Wednesday for an article about F.B.I. agents creating a “war crimes file” to document accusations against American military personnel misstated the year that the agents were told to close the file. It was 2003, not 2002.

3 of 3 7/11/2008 12:15 PM EXHIBIT 3 Print http://www.slate.com/toolbar.aspx?action=print&id=2191301

JURISPRUDENCE A Few Good Soldiers More members of the military turn against the terror trials. By Emily Bazelon and Dahlia Lithwick Posted Tuesday, May 13, 2008, at 6:35 PM ET

Legal commentators have argued for years about whether there might ever be legitimate trials for the so-called "enemy combatants" we're holding at Guantanamo Bay. Some say no. Others, like our friend Ben Wittes, argue that the evidence is inconclusive. They want to see what the Guantanamo military commissions produce before pronouncing them a failure.

We may never get there. Key actors are declining to play their part in a piece of theater designed to produce all convictions all the time. These refusals, affecting two trials this week, suggest that the whole apparatus—seven years and counting in the making—cannot ever be fixed. The trials are doomed, and they are doomed from the inside out.

Today we learned that the Pentagon has dropped charges against Mohammed al-Qahtani—the alleged 20th hijacker (or maybe the 21st or 22nd, since that title has gone to others before him). Along with five other "high value" detainees, al-Qahtani was facing capital charges at Guantanamo. The decision not to try him comes from the convening authority for the commissions, Susan Crawford. She didn't give an explanation for halting the prosecution, but, then, we don't really need one. As Phillip Carter notes elsewhere in Slate, it's been clear for a while that the evidence against al-Qahtani was torture (or near-torture) tainted, and prosecutors at Guantanamo had announced long ago that "what had been done to him would prevent him from ever being put on trial." In light of all that, you might wonder why he was one of the six trotted out for the big show trials in the first place.

Something in the unsavory history of al-Qahtani's interrogation (featuring sexual humiliation, attack dogs, stress positions, and sleep deprivation) must have proved too much for Crawford, which may reveal that Crawford has some filament of legal integrity or simply that she knows when to cut her losses. Either way, it's important that for every course correction at Gitmo from the Supreme Court, there have been many more from within the Pentagon. If the same people who joined the military in the hopes of fighting terrorism have had enough of the government's jury-rigged apparatus of Guantanamo justice, it's probably time to stick a fork in the whole thing.

Since the inception of the commissions, the brakes have almost always been applied when some member of the military has balked, even when going along would have been the far easier course. These refusals—some silent, some very public—have combined to stall the tribunals. The clearest sign that the military system is working is that the military itself has refused to let it go forward.

Start with Charles Swift, the defense lawyer from the Navy's Judge Advocate General Corps who was appointed in 2002 to represent Salim Hamdan, Osama Bin Laden's driver and—thanks to Swift's willingness to buck the system—the big winner of the Supreme Court decision that sent the military commissions back to the drawing board in 2006. According to Jonathan Mahler's new book about Hamdan's case, Hamdan v. Rumsfeld, Swift doubted early on that it would be possible to present a zealous

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defense on Hamdan's behalf, and with fellow Navy JAG Philip Sundel, he lobbied his superiors to call the commissions "what they thought they were—kangaroo courts." When Swift couldn't work the changes he wanted internally, he teamed up with Georgetown law school's Neal Katyal to sue the Defense Department. Swift became an outspoken critic of the tribunals, including here in Slate.

Next up, Col. Morris Davis, former chief prosecutor for the tribunals. Davis is no pro-detainee marshmallow—he worked for years to ready Guantanamo cases for trial and penned a spirited defense of the tribunals just last year. But when his bosses pressured him to prosecute the "sexy" cases instead of meritorious ones, while insisting upon the use of evidence obtained by coercion, Davis finally decided he'd had it. He resigned last October and went on an op-ed tear, writing that "full, fair and open trials were not possible under the current system" because it "had become deeply politicized." Davis, who still maintains that the charges against Mr. Hamdan are "warranted by the evidence," was called to testify in Hamdan's case last month by the defense because of his indictment of the system.

Davis' testimony led to an even odder plot twist, reintroducing us to yet another military naysayer: Keith Allred is the military judge presiding over Hamdan's case. (Winning before the Supreme Court only got the guy another crack at a trial before the same old commissions.) Allred first pushed back against the Gitmo process last June, when he held that he did not even have jurisdiction to hear Hamdan's case. A hastily convened Court of Military Commission Review found otherwise, allowing the charges against Hamdan to go forward.

But Allred still isn't quite prepared to play his designated part. Last Friday, he disqualified Davis' old boss Brig. Gen. Thomas Hartmann from any further participation in Hamdan's prosecution. Hartmann has to back off, even though he is the tribunals' official legal adviser. In a written opinion, Allred took the general to task for attempting to direct Davis "to use evidence that the Chief Prosecutor considered tainted and unreliable, or perhaps obtained as the result of torture or coercion." (Allred also made a finding of fact that while interviewing Davis for the chief-prosecutor position, Department of Defense Gen. Jim Haynes told him, "We can't have acquittals. We've got to have convictions." So now that's the official account. Good to know.)

Davis is not the only prosecutor to have bailed on the Guantanamo trials. Four others—Maj. Robert Preston, Capt. John Carr, Capt. Carrie Wolf, and Lt. Col. Stuart Couch—have also left, apparently because of micromanagement and the interference of which Davis complained, including the demand that they use what they deemed to be unreliable coerced testimony.

The Supreme Court, then, is hardly the only thing standing between the president and kangaroo convictions at Guantanamo. The truth is that the best thing the commissions have going for them right now are the lawyers and judges in uniform who have, albeit reluctantly, refused to play along. If they'd been out on the battlefield, they'd have killed any detainee they met as an enemy. But they're not willing to see them killed in the wake of a sham trial. That's not because they value the lives of terrorists over the lives of Americans or because they value legal formalism over the exigencies of war. It's because they come out of a long military tradition of legal integrity and independence. And much as it must pain them, this precludes them from being yes men for the Bush administration at the expense of the rule of law.

Critics of the president's military commissions worried that the bodies would do their work in secret, in the legal shadows, answering only to the president as their commander in chief. But the soldiers and lawyers who insist on holding the proceedings to a higher standard have, at crucial moments, operated in the open. They've navigated by the light of the Constitution, sometimes at an enormous cost to their careers. Their performance is the best thing the Guantanamo commissions have to offer.

Correction, May 14, 2008: This article originally contained a photo of a man identified as Mohammed al-Qahtani. However, the man pictured was not the Mohammed al-Qahtani discussed in the article. The

2 of 3 7/11/2008 12:16 PM Print http://www.slate.com/toolbar.aspx?action=print&id=2191301

photograph has been removed.

Emily Bazelon is a Slate senior editor. Dahlia Lithwick is a Slate senior editor.

Article URL: http://www.slate.com/id/2191301/

3 of 3 7/11/2008 12:16 PM EXHIBIT 4 Page 1

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Chattanooga Times Free Press (Tennessee)

May 24, 2008 Saturday

It didn't start at Abu Ghraib

SECTION: TIMES; Pg. b8

LENGTH: 689 words

When the abuse of Iraqi prisoners at Abu Ghraib became public in 2004 with pictures of naked Iraqis leashed like dogs, beaten and stacked in pyramids, President Bush blamed it on a few rogue guards and called it an isolated incident. In fact, FBI agents had begun in 2002 what they labeled "a war crimes file" that cataloged a routine of similar abuses by the CIA in interrogations at Guantanamo Bay and in Afghanistan and Iraq. They had sent that file in a formal complaint that went up the channels of power in Washington in 2003. It was widely circulated, but quietly ignored. The report documenting this history, a thorough 437-page document prepared by the Justice Department's inspector general over the last three years, was revealed just this week. It gives the lie to the notion that Abu Ghraib represented either an "isolated" or a surprising event. The inspector general's report said that FBI agents personally witnessed similar, and worse, abuse at many of these CIA and military interrogations. In- deed, their formal complaints in 2003 said they witnessed harsh and abusive interrogations by methods which, if applied to American prisoners, would have been classified as torture by the American government in violation of the Geneva Con- ventions. Officials at the senior ranks of the FBI, the Justice Department, the Defense Department and the National Security Council were all made aware of the report, but essentially turned a deaf ear to the agents' urgent complaints, according to the report. It is indeed possible that the White House or Cabinet members were aware of it. Former Attorney General John Ashcroft declined to be interviewed for the inspector general's report, and that hindered investigators' ability to learn about National Security Council discussion of the interrogations, the document said. A spokesman for Mr. Ashcroft said he declined an interview on grounds that discussions "with the White House and with staff on national security matters were privileged," The New York Times reported Wednesday. Agents who witnessed the practices described a number of practices similar to, or worse, than those revealed at Abu Ghraib, often with passionate objections. They reported that prisoners had their hands and feet shackled to the floor in painful stress positions for long hours in extremes of heat and cold; that they were paraded naked before women interrogators; that snarling dogs were used to intimidate them; that some received water boarding and others were beaten. One agent, in an e-mail to supervisors, said such tactics might violate American laws against torture. Agent Spike Bowman, then in charge of the FBI's national security law unit, notified top FBI officials in an e-mail in 2003, saying: "Beyond any doubt, what they are doing (and I don't know the extent of it) would be unlawful were these enemy prisoners of war." Page 2 It didn't start at Abu Ghraib Chattanooga Times Free Press (Tennessee) May 24, 2008 Saturday

The FBI's top counterterrorism official at the time, Pasquale D'Amuro, expressed the view that the physical tactics used by the CIA were less effective than traditional noncoercive interrogation methods; that they could "taint" future prosecutions, which has proved accurate; and that such interrogations were "wrong and helped al-Qaida in spreading negative views of the United States." Regardless, the agents were ordered by a senior FBI manager some time in 2003 to close their war crimes file because "investigating detainee allegations of abuse was not the FBI's mission," the report said. The cumulative effect of this report is inescapable. Authorities at the highest levels in Washington, and probably the White House, knew about and counte- nanced the needlessly abusive tactics that, when revealed at Abu Ghraib, be- smirched this nation's honor and international credibility, and violated our treaties and laws. None of this should have occurred. Congress, now unbound from the Republican chokehold on its investigative function that wrongly protected the administration's abuse of power, must investigate the depth and scope of this disgraceful conduct and bring it to cleansing light. The wrongs allowed in this nation's name won't be exorcised until that work is done.

LOAD-DATE: May 24, 2008

LANGUAGE: ENGLISH

PUBLICATION-TYPE: Newspaper

Joseph Darby Exhibits

Col. Morris Davis Exhibits EXHIBIT 1 13 of 32 DOCUMENTS

October 6, 2007 Saturday Late Edition - Final

SECTION: Section A; Column 0; National Desk; Pg. 13

LENGTH: 867 words

HEADLINE: War-Crimes Prosecutor Quits in Pentagon Clash

BYLINE: By WILLIAM GLABERSON

BODY: In the latest disruption of the Bush administration's plan to try detainees at Guantanamo Bay, Cuba, for war crimes, the chief military prosecutor on the project stepped down yesterday after a dispute with a Pentagon official. It was not clear what effect the departure would have on the problem-plagued effort to charge and try detainees. The prosecutor, Col. Morris D. Davis of the Air Force, was to leave his position immediately, a Defense Department spokeswoman said. But the spokeswoman, Cynthia O. Smith, said officials were working to minimize interruption in the work of the prosecution office, which includes military lawyers supplemented by civilian federal prosecutors. ''The department is taking measures to ensure a prompt and orderly transition to another chief prosecutor without interrupting the key mission of prosecuting war crimes via military commissions,'' Ms. Smith said. The Wall Street Journal reported yesterday that Colonel Davis would resign. The Pentagon's system of prosecuting suspects has been beset by practical problems and legal disputes that have reached the Supreme Court. As a result, more than five years after the first terror suspects arrived at Guantanamo Bay, only one detainee's war-crimes case has been completed, and that was through a plea agreement. Prosecutors have said they might eventually file charges against as many as 80 of the 330 detainees being held at Guantanamo. Those include so-called high value detainees, 14 men the administration has said include dangerous terrorists who had previously been held in secret C.I.A. prisons. Officials have said the prosecutors are working on charges against some of those men, including Khalid Shaikh Mohammed, who has said he was the mastermind of the terrorist attacks of Sept. 11, 2001. Colonel Davis, a career military lawyer, had been in a bitter dispute with Brig. Gen. Thomas W. Hartmann, who was appointed this summer to a top post in the Pentagon Office of Military Commissions, which supervises the war crimes trial system. General Hartmann, an Air Force reserve officer who worked as a corporate lawyer until recently, was appointed this summer as the legal adviser to Susan J. Crawford, a former military appeals judge who is the convening authority, a military official who has extensive powers under the military commission law passed by Congress in 2006. Among other powers, under the law, the convening authority can approve or reject war-crimes charges, make plea deals with detainees and reduce sentences. People involved in the prosecutions, who spoke on condition of anonymity, have said that General Hartmann challenged Colonel Davis's authority in August and pressed the prosecutors who worked for Colonel Davis to produce new charges against detainees quickly. They said he also pushed the prosecutors to frame cases with bold terrorism accusations that would draw public attention to the military commission process, which has been one of the central legal strategies of the Bush administration. In some cases the prosecutors are expected to seek the death penalty. Through a spokeswoman, General Hartmann declined comment yesterday. Colonel Davis filed a complaint against General Hartmann with Pentagon officials this fall saying that the general had exceeded his authority and created a conflict of interest by asserting control over the prosecutor's office. Colonel Davis said it would be improper for General Hartmann to assess the adequacy of cases filed by prosecutors if the general had been involved in the decision to file those cases. In a statement last week, Colonel Davis said the issue posed a threat to the integrity of the war-crimes process. ''For the greater good, Brigadier General Hartmann and I should both resign and walk away or higher authority should relieve us of our duties,'' the statement said. A military official said yesterday that Pentagon officials had sided with General Hartmann in the dispute. Yesterday, Colonel Davis said he could not discuss the developments. ''I'm under direct orders,'' he said, ''not to comment with the media about the reasons for my resignation or military commissions.'' Gregory S. McNeal, an assistant professor at the Dickinson School of Law at Pennsylvania State University, said the effort to begin war-crimes trials would probably continue. But Mr. McNeal, who has been a consultant to the military prosecutors, said the questions Colonel Davis raised would be exploited by defense lawyers. ''The last thing the prosecution needs is officials influencing the prosecutions,'' he said. Critics of the administration have argued that the effort to design a military commission system for foreign terror suspects is intended to circumvent the legal protections that detainees would receive if they were charged in civilian courts. Some of those critics said yesterday that the dispute underscored their concerns. ''This is further evidence that the military commission process is completely unraveling,'' said J. Wells Dixon, a detainees' lawyer at the Center for Constitutional Rights in New York. ''That is endemic,'' Mr. Dixon added, ''to any system that is made up as you go along.''

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October 20, 2007 Saturday Late Edition - Final

SECTION: Section A; Column 0; National Desk; Pg. 12

LENGTH: 742 words

HEADLINE: Ex-Prosecutor Says He Was Pushed Toward Closed Trials at Guantanamo

BYLINE: By WILLIAM GLABERSON

BODY: The former chief military prosecutor for the planned war-crimes trials of Guantanamo detainees said yesterday that he had been pressured by military officials to rely increasingly on classified evidence, which would require that long trial sessions be held behind closed doors rather than in open proceedings. ''Who ever said we had to have open trials?'' the former chief prosecutor said a military official, Brig. Gen. Thomas W. Hartmann, told him in September. The former prosecutor, Col. Morris D. Davis, described the dispute in an interview yesterday. Colonel Davis said it was part of an internal disagreement over whether war-crimes trials at Guantanamo Bay, Cuba, are to be largely public, displaying evidence against terrorism suspects, or largely closed, which could increase criticism of Guantanamo. Colonel Davis, a career Air Force lawyer, said one of his priorities as chief prosecutor had been to get as much evidence as possible declassified so people around the world could assess the strength of cases against terrorism suspects. But he said two officials told him in September that he was wasting time declassifying evidence and that it was more important to move quickly by filing charges against detainees. ''No matter how perfect the trial is,'' Colonel Davis said, ''if it's behind closed doors, it's going to be viewed as a sham.'' Colonel Davis resigned Oct. 5 after a bitter turf dispute with General Hartmann, who was named legal adviser this summer to Susan J. Crawford, the senior official in the Office of Military Commissions at the Defense Department. A Pentagon spokesman, Cmdr. Jeffrey D. Gordon, said that the law authorized the use of classified evidence in military commission prosecutions, but that the amount would vary from case to case. ''It would be pure speculation,'' Commander Gordon added, ''to discuss how often classified testimony will be heard, but it is unlikely to be substantial in the majority of cases.'' Government officials have said that revealing the sources of information about detainees and the methods used for its collection would compromise efforts to protect Americans. A spokeswoman for the Office of Military Commissions, Lt. Catheryne Pully, said General Hartmann and Ms. Crawford were unavailable for comment. In the interview yesterday, Colonel Davis read from notes he said he made after a telephone conversation with General Hartmann on Sept. 10. He said the general expressed irritation at the slow pace of prosecutions and made the remarks about conducting trials with closed sessions. Only 4 of the 330 detainees at Guantanamo have been charged under the Military Commissions Act passed by Congress last year. One case ended in a plea bargain. No trial has begun. Richard Wilson, a law professor at American University who was until recently a defense lawyer in a commission case, said closed proceedings would highlight critics' concerns about the proceedings. ''It would strain credibility for the government to say, 'Trust us,''' Professor Wilson said. In August, Colonel Davis filed a formal complaint at the Pentagon claiming that General Hartmann had overstepped his role by asserting control over the prosecution office. This month, Pentagon officials told Colonel Davis that they were backing General Hartmann, and Colonel Davis asked to be reassigned. In the interview, Colonel Davis said General Hartmann noted twice in September that a legal rule permitted military commission proceedings to be closed when classified evidence was being presented and said, ''We've got to use it.'' He said that on Sept. 21, Ms. Crawford told him she agreed with General Hartmann. Colonel Davis, who has been assigned to another legal position after two years as the chief military prosecutor for Guantanamo, said he felt it was important to keep trials as open as possible. He said that while he supported the use of military commissions, ''this whole process is under a cloud'' because of critics who have asserted that the administration created a legal system for detainees that gives them fewer rights than the country's civilian justice system. He said the criticism could be mitigated ''by keeping it as open and transparent as possible.'' Colonel Davis said he had worked with prosecutors to select evidence that could secure convictions while trying to limit the need to close the Guantanamo trials, which are expected to draw international attention.

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January 12, 2006 Thursday Late Edition - Final

SECTION: Section A; Column 5; National Desk; Pg. 24

LENGTH: 730 words

HEADLINE: Terror Suspect Upsets Plan To Resume Trials in Cuba

BYLINE: By DAVID S. CLOUD

DATELINE: GUANTANAMO BAY, Cuba, Jan. 11

BODY: The military commissions prosecuting suspected members of Al Qaeda reconvened on Wednesday for the first time in more than a year and were quickly thrown into disarray when a defendant declared he was boycotting the proceedings. Invited by the judge to address the court, the defendant, Ali Hamza Ahmed Sulayman al-Bahlul, delivered a 10-minute address in which he praised Allah and denounced ''your allies, the Jews.'' Complaining that he had not been permitted to choose a lawyer from Yemen, his home country, Mr. Bahlul said he had no expectation of justice from a system created by his American enemies. ''I am telling the judge do what you have to do,'' he said in Arabic through a translator. ''Rule what you have to rule. This life will go on and end at some point. God will rule based on justice, and those who call on other than God are not calling on anything.'' Smiling, he then held up a piece of paper with the word ''boycott'' written in stylized Arabic script, then repeated the word three times in English. For the rest of the two-hour hearing he was silent, even when asked by the presiding officer, Col. Peter Brownback III, to enter a plea. Prosecutors say that Mr. Bahlul, one of the first prisoners to arrive at the Guantanamo center when it was set up in 2002, attended a Qaeda training camp and was a bodyguard to Osama bin Laden in 2001. Earlier, he had produced recruitment videos for Al Qaeda, including a tape on the 1998 attack on the destroyer Cole. If convicted, he faces a life sentence. Even as Mr. Bahlul has acknowledged his connections to Al Qaeda, he has shown a talent for courtroom theatrics that have at times flummoxed the commissioners. Little has gone smoothly for the military commissions, which the Bush administration created to try Guantanamo prisoners and which have suffered setbacks because of legal challenges, including a review from the Supreme Court. Mr. Bahlul and Omar Khadr, a second defendant who appeared later in the day, are among nine detainees at Guantanamo who are facing war crimes charges under the military commission system. More than 500 detainees remain in the center, which Pentagon officials once characterized as holding the most hardened terrorists captured in Afghanistan. Of the remaining prisoners, 50 to 75 are likely to be charged, said a spokeswoman, Maj. Jane Boomer. Mr. Bahlul demanded more than a year ago to choose a Yemeni lawyer, a request that was refused. Afterward, he said he wanted to represent himself, an idea that led commission authorities to suspend the proceedings while they researched the question. On Wednesday, Colonel Brownback ruled against him, saying President Bush's order establishing the commissions required defendants to have military counsel. The ruling did not settle the question. Maj. Tom Fleener, Mr. Bahlul's appointed military lawyer, immediately moved to withdraw as defense counsel, a request that Colonel Brownback rejected. Defendants in most courts, including those of the United States, are entitled to represent themselves as long as they are deemed competent, Major Fleener argued. Requiring him to represent a client who did not want his help was an effort ''to add some air of legitimacy to an otherwise wholly illegitimate process,'' he said. It also could violate bar association rules in Iowa and Wyoming where Mr. Fleener, a reservist, is licensed to practice, he said. Mr. Khadr, who was 15 when he was captured in Afghanistan and also faces life imprisonment, is accused of throwing a grenade that fatally wounded an American soldier. He declined to enter a plea on Wednesday. Mr. Khadr's civilian defense lawyers say they can find no other war crimes prosecutions for war crimes involving a juvenile. Prosecutors said juveniles accused of murder in the United States could be tried as adults in many states. On Wednesday, Mr. Khadr's defense team moved to replace his appointed military lawyer, Capt. John Merriam, of the Army captain. His civilian lawyer, Muneer I. Ahmad, who is a law professor at American University, said Captain Merriam had never defended a case at trial before. Speaking to reporters this week, Col. Morris Davis, the commission's chief prosecutor, defended the use of military commissions to try accused terrorists, saying existing law did not provide guidance for prosecuting members of terror groups.

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February 28, 2008 Thursday Late Edition - Final

SECTION: Section A; Column 0; National Desk; Pg. 18

LENGTH: 1145 words

HEADLINE: Ex-Guantanamo Prosecutor to Testify for Detainee

BYLINE: By WILLIAM GLABERSON

BODY: Until four months ago, Col. Morris D. Davis was the chief prosecutor at Guantanamo Bay and the most colorful champion of the Bush administration's military commission system. He once said sympathy for detainees was nauseat- ing and compared putting them on trial to dragging ''Dracula out into the sunlight.'' Then in October he had a dispute with his boss, a general. Ever since, he has been one of those critics who will not go away: a former top insider, with broad shoulders and a well-pressed uniform, willing to turn on the system he helped run. Still in the military, he has irritated the administration, saying in articles and interviews that Pentagon officials interfered with prosecutors, exerted political pressure and approved the use of evidence obtained by torture. Now, Colonel Davis has taken his most provocative step, completing his transformation from Guantanamo's chief prosecutor to its new chief critic. He has agreed to testify at Guantanamo on behalf of one of the detainees, Salim Ah- med Hamdan, a driver for Osama bin Laden. Colonel Davis, a career military lawyer nearing retirement at 49, said that he would never argue that Mr. Hamdan was innocent, but that he was ready to try to put the commission system itself on trial by questioning its fairness. He said that there ''is a potential for rigged outcomes'' and that he had ''significant doubts about whether it will deliver full, fair and open hearings.'' ''I'm in a unique position where I can raise the flag and aggravate the Pentagon and try to get this fixed,'' he said, acknowledging that he is enjoying some aspects of his new role. He was replaced as chief Guantanamo prosecutor after he stepped down but is still a senior legal official for the Air Force. Among detainees' advocates, there has been something of a gasp since it was announced last week that Colonel Davis would be taking the witness stand in April. Mr. Hamdan's chief military lawyer, Lt. Cmdr. Brian L. Mizer, said he would offer Colonel Davis to argue that charges against Mr. Hamdan should be dismissed because of improper influence by Pentagon officials over the commission process. Prosecutors may object, and it is unclear how military judges may rule. But whatever happens, some advocates for detainees say, officials are likely to have difficulty erasing the image of a uniformed former Guantanamo champion challenging them so directly. Particularly, some of them said, one who was known for scorched-earth attacks on adversaries, be they terror suspects or lawyers. ''He was the attack dog for the military commission system,'' said Zachary Katznelson, a lawyer for Guantanamo detainees. Page 2 Ex-Guantanamo Prosecutor to Testify for Detainee The New York Times February 28, 2008 Thursday

Last year as chief prosecutor, Colonel Davis publicly suggested that a Marine defense lawyer for a detainee might be guilty of a crime for using ''contemptuous words'' about the president when the marine questioned the fairness of the Guantanamo system. At the time, critics ridiculed Colonel Moe as an administration apologist. But in recent weeks, some of them have described him in nearly heroic terms. Jennifer Daskal of Human Rights Watch called Colonel Davis the most significant insider to tell what he knew about Guantanamo. ''He has put his career on the line,'' Ms. Daskal said. Pentagon officials have steamed about the extraordinary role Colonel Davis has staked out. Some people with Pentagon ties say the unusual story started as a power struggle between Colonel Davis and a Pentagon official who has broad powers over the Guantanamo legal system, Brig. Gen. Thomas W. Hartmann, who has declined to comment. Brig. Gen. Thomas L. Hemingway, a retired military official who once supervised Colonel Davis at the Office of Military Commissions, said this week that he was surprised Colonel Davis was attacking the system he had once championed. ''That's not whistle-blowing you hear,'' General Hemingway said. ''It's a whine.'' In his contentious days at Guantanamo, lawyers who battled him said, Colonel Davis was known for a you're- with-us-or-you're-against-us style of news-conference warfare, delivered in an amiable North Carolina twang. He is an experienced military lawyer, with years of work both in the prosecution and the defense. He is the son of a disabled veteran of World War II, and he is married with one daughter. In interviews this week he was in his combative mode, challenging Pentagon officials to take lie-detector tests and asserting that commanders had praised him in the past. He portrayed himself as battling political appointees. But he said he still believed that a military commission system could work. ''It's gotten so tarnished that if we're going to convince the world that this isn't some rigged process we have to bend over backwards,'' he said. He said the solutions were simple -- giving control to military officials. But he suggested darkly that there are ''people at key points in the process, that I just don't know what their allegiance is.'' There is little question that Colonel Davis's unusual path began with some angry exchanges with General Hart- mann last summer. When the colonel resigned as chief military prosecutor, officials disclosed that he had filed a formal complaint asserting that General Hartmann improperly pressed for more war crimes cases and demanded ''sexy'' cases that would excite the public. An internal report sided with General Hartmann but suggested that he should avoid too much influence over the military prosecutors. From there, after being reassigned by the Air Force, Colonel Davis found an audience for his accusations. He told one newspaper that top defense officials discussed the ''strategic political value'' of putting prominent detainees on trial before the 2008 presidential election. He told another that he had been pressed to hold hearings in closed courtrooms. He wrote op-ed pieces saying General Hartmann had reversed his policy of refusing to use evidence derived through torture. He told The Nation that the general counsel of the Pentagon, William J. Haynes II, informed him ''we can't have acquittals'' at Guantanamo. In a statement Wednesday a Pentagon official would say only, ''We disagree with the assertions made by Colonel Davis.'' Some detainees' lawyers say they recognize a pattern in Colonel Davis's approach. He once wrote an article in an Air Force journal offering advice to military leaders on how to handle the media. ''Take the offensive,'' it said. Muneer I. Ahmad, a law professor at American University who fought Colonel Davis in a detainee's case at Guan- tanamo, said he recognized the strategy in the attacks on Pentagon officials. ''It's his way of trying to reshape what the story is,'' Professor Ahmad said. If it is, Colonel Davis hinted he is not satisfied yet. ''I'm hoping at some point to retire, so I can say what I really think,'' he said.

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The Washington Post

October 20, 2007 Saturday Met 2 Edition

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DISTRIBUTION: Maryland

LENGTH: 665 words

HEADLINE: Ex-Prosecutor Alleges Pentagon Plays Politics; Pressure for 'Sexy' Guantanamo Hearings

BYLINE: Josh White; Washington Post Staff Writer

BODY: Politically motivated officials at the Pentagon have pushed for convictions of high-profile detainees ahead of the 2008 elections, the former lead prosecutor for terrorism trials at Guantanamo Bay said last night, adding that the pressure played a part in his decision to resign earlier this month. Senior defense officials discussed in a September 2006 meeting the "strategic political value" of putting some prominent detainees on trial, said Air Force Col. Morris Davis. He said that he felt pressure to pursue cases that were deemed "sexy" over those that prosecutors believed were the most solid or were ready to go. Davis said his resignation was also prompted by newly appointed senior officials seeking to use classified evidence in what would be closed sessions of court, and by almost all elements of the military commissions process being put under the Defense Department general counsel's command, something he believes could present serious conflicts of interest. "There was a big concern that the election of 2008 is coming up," Davis said. "People wanted to get the cases going. There was a rush to get high-interest cases into court at the expense of openness." Davis said he thought the military commissions could go forward as a legitimate way to try alleged terrorists in U.S. custody, but he said he had serious concerns about how the new officials were approaching the commissions. He said he felt a sense of expediency over thoroughness was taking hold and that efforts to use classified evidence -- a controversial idea that has drawn congressional concern -- could taint the trials in the eyes of international observers. Davis abruptly resigned after complaining that his authority in prosecutions was being usurped. He argued that Air Force Brig. Gen. Thomas Hartmann, a new legal adviser to the convening authority for military commissions, should remain a neutral and independent party and should leave prosecuting cases to prosecutors. In his complaint, Davis alleged that Hartmann inappropriately requested detailed information on pending cases, defined the sequence in which cases would be brought forward and expressed an intent to personally conduct pretrial negotiations with defendants' attorneys. Page 2 Ex-Prosecutor Alleges Pentagon Plays Politics; Pressure for 'Sexy' Guantanamo Hearings The Washington Post October 20, 2007 Saturday

A Pentagon review found that Hartmann did not attempt to coerce Davis's team but advised that he should "diligently avoid aligning himself with the prosecutorial function so that he can objectively and independently provide co- gent legal advice" to the convening authority -- the official in charge of supervising the commissions. J.D. Gordon, a Pentagon spokesman, said yesterday that Hartmann was not available for comment. Gordon said the military commissions will provide detainees with fair trials. "We are working closely with our interagency counterparts to ensure that prosecutions by military commission result in fair and open trials while at the same time protecting sensitive information that, if revealed, could be damaging to U.S. and allied forces still conducting combat operations against al-Qaeda and their supporters," Gordon said. Hartmann arrived as legal adviser to the convening authority last summer, and suddenly, Davis said during a lengthy interview, his office was inundated with what he called "nano-management," including requests to oversee cases that had previously been left solely to prosecutors. Part of the new focus, Davis said, was to speed up cases that would show the public the system was working. Davis said he wanted to focus on cases that had declassified evidence, so the public could see the entire trial through news coverage. That would defuse possible allegations that the trials were stacked against defendants. But Hartmann said he was satisfied with putting on cases that included closed sessions, because the law allows it. "He said, the way we were going to validate the system was by getting convictions and good sentences," Davis said. "I felt I was being pressured to do something less than full, fair and open."

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February 17, 2008 Sunday Late Edition - Final

SECTION: Section WK; Column 0; Editorial Desk; OP-ED CONTRIBUTOR; Pg. 12

LENGTH: 1116 words

HEADLINE: Unforgivable Behavior, Inadmissible Evidence

BYLINE: By MORRIS DAVIS. Morris Davis, an Air Force colonel, was the chief prosecutor for the military commissions at Guantanamo Bay, Cuba, from 2005 to 2007.

DATELINE: Washington

BODY: TWENTY-SEVEN years ago, in the final days of the Iran hostage crisis, the C.I.A.'s Tehran station chief, Tom Ahern, faced his principal interrogator for the last time. The interrogator said the abuse Mr. Ahern had suffered was inconsistent with his own personal values and with the values of Islam and, as if to wipe the slate clean, he offered Mr. Ahern a chance to abuse him just as he had abused the hostages. Mr. Ahern looked the interrogator in the eyes and said, ''We don't do stuff like that.'' Today, Tom Ahern might have to say: ''We don't do stuff like that very often.'' Or, ''We generally don't do stuff like that.'' That is a shame. Virtues requiring caveats are not virtues. Saying a man is honest is a compliment. Saying a man is ''generally'' honest or honest ''quite often'' means he lies. The mistreatment of detainees, like honesty, is all or nothing: We either do stuff like that or we do not. It is in our national interest to restore our reputation for the latter. (All opinions here are my own, and do not necessarily reflect those of the Air Force or Defense Department.) Some accounts of detainee abuse in the war on terrorism are overblown, but others are not. After humiliating prisoners at Abu Ghraib by forcing them to strip naked and lie in a pile like a stack of firewood or simulating the drowning of detainees to persuade them to talk, we can no longer say we ''don't do stuff like that'' -- and we do not have to look far to see the damage. The disclosure last month of a manual for Canadian diplomats listing the United States as a country where prisoners might face torture, referring specifically to Guantanamo Bay, Cuba, was an embarrassment on both sides of the border. During the Persian Gulf war in 1991, the Iraqi armed forces surrendered by the tens of thousands because they believed Americans would treat them humanely. Our troops reached the outskirts of Baghdad in 100 hours and suffered fewer than 150 combat-related fatalities in large part because of these mass surrenders. Would it have been different if the perception of us as purveyors of torture and humiliation existed back then? Would tens of thousands of Iraqis have put down their weapons if they believed they were going to be humiliated, abused or tortured, or would they have fought? Had they chosen to fight, the war would have lasted longer and cost more and casualties would have skyrocketed. Our reputation in 1991 as the good guys paid dividends and supported our national interests. We must regain that reputation. We can start by renouncing cruel, inhuman and degrading treatment of detainees and unreservedly committing to uphold the Detainee Treatment Act, which passed Congress in 2005 but was diluted by a Page 3 presidential signing statement. We must also reaffirm our adherence to the United Nations Convention Against Torture, which the Senate ratified in 1990. Just as important, we need to come to grips with the practice known as waterboarding, the simulated drowning of a person to persuade him to talk. There was some progress in recent weeks: the C.I.A.'s director, Gen. Michael Hayden, told Congress that the practice may be illegal under current law; the director of national intelligence, Michael McConnell, told a reporter, ''Whether it's torture by anybody else's definition, for me it would be torture''; Attorney General Michael Mukasey, after being asked if waterboarding would be torture if done to him, said that ''I would feel that it was''; and on Wednesday, Congress passed a law forbidding the C.I.A. to use waterboarding and other harsh techniques. Why a few others in positions of power still find it so difficult to admit the obvious about waterboarding is astounding. We can never retake the moral high ground when we claim the right to do unto others that which we would vehemently condemn if done to us. Once we condemn and stop all waterboarding, what do we do in cases where it was conducted? An obvious step is to prohibit the use of evidence derived by waterboarding in criminal proceedings against detainees. Regardless of whether the technique has produced actionable intelligence, it did not produce reliable evidence with a place in our justice system. Imagine the outrage if the Iranian government tied down an American, convinced him the choices were to cooperate or die, and then used his ''confession'' as evidence in a death-penalty trial. My policy as the chief prosecutor for the military commissions at Guantanamo was that evidence derived through waterboarding was off limits. That should still be our policy. To do otherwise is not only an affront to American justice, it will potentially put prosecutors at risk for using illegally obtained evidence. Unfortunately, I was overruled on the question, and I resigned my position to call attention to the issue -- efforts that were hampered by my being placed under a gag rule and ordered not to testify at a Senate hearing. While some high-level military and civilian officials have rightly expressed indignation on the issue, the current state can be described generally as indifference and inaction. At a Senate hearing in December, the legal adviser for the military commissions, Brig. Gen. Thomas Hartmann, refused to rule out using evidence obtained by waterboarding. Afterward, Senator Lindsey Graham, who is also a lawyer in the Air Force Reserves, said that no military judge would allow the introduction of such evidence. I hope Senator Graham is right about military judges, and it is unfortunate that any might be put in a position where he has to make such a decision. Regrettably, at a Pentagon press briefing last week announcing that Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and five others had been charged and faced the death penalty, General Hartmann again declined to rule out the use of evidence acquired through waterboarding. Military justice has a proud history; this was not one of its finer moments. That is not to say those subjected to waterboarding get a free pass. If the prosecution can build a persuasive case without using the coerced ''confession,'' then whether a defendant endured waterboarding is immaterial in determining guilt or innocence. There are some bad men at Guantanamo Bay and a few deserve death, but only after trials we can truthfully call full, fair and open. In that service, we must declare that evidence obtained by waterboarding be banned in every American system of justice. We must restore our reputation as the good guys who refuse to stoop to the level of our adversaries. We are Americans, and we should be able to state with conviction, ''We don't do stuff like that.''

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May 10, 2008 Saturday Late Edition - Final

SECTION: Section A; Column 0; National Desk; Pg. 11

LENGTH: 731 words

HEADLINE: Judge Drops General From Trial Of Detainee

BYLINE: By WILLIAM GLABERSON

BODY: In a new blow to the Bush administration's troubled military commission system, a military judge has disqualified a Pentagon general who has been centrally involved in overseeing Guantanamo war crimes tribunals from any role in the first case headed for trial. The judge said the general was too closely aligned with the prosecution, raising questions about whether he could carry out his role with the required neutrality and objectivity. Military defense lawyers said that although the ruling was limited to one case, they expected the issue to be raised in other cases, potentially delaying prosecutions, including the death-penalty prosecution of six detainees at Guan- tanamo Bay, Cuba, for the Sept. 11 attacks. Critics of the military commission system said Friday that the judge's decision would provide new grounds to attack the system that they say was set up to win convictions. The judge, Capt. Keith J. Allred of the Navy, directed that Brig. Gen. Thomas W. Hartmann of the Air Force Re- serve, a senior Pentagon official of the Office of Military Commissions, which runs the war crimes system, have no further role in the first prosecution, scheduled for trial this month. General Hartmann, whose title is legal adviser, has been at the center of a bitter dispute involving the former chief Guantanamo military prosecutor, Col. Morris D. Davis of the Air Force. Colonel Davis has said the general interfered in the work of the military prosecution office, pushed for closed- door proceedings and pressed to rely on evidence obtained through techniques that critics call torture. ''National attention focused on this dispute has seriously called into question the legal adviser's ability to continue to perform his duties in a neutral and objective manner,'' the judge wrote on Friday, in a copy of the decision not released publicly but obtained by The New York Times. Decisions by Guantanamo judges are not typically released publicly until days after being handed down. Cmdr. Jeffrey D. Gordon of the Navy, a Pentagon spokesman, declined to comment on the ruling, saying senior Defense Department officials were reviewing it. Reached at his office shortly after the decision was distributed inside the Pentagon, General Hartmann said he could not talk. His spokeswoman did not respond to requests for comment. General Hartmann, who has been a controversial figure since his appointment last summer, is the legal adviser to the Pentagon official with broad powers over the war crimes system, Susan J. Crawford. She has the military title of Convening Authority of the Guantanamo war crimes cases. Ms. Crawford has never made a public statement in her role. Page 2 Judge Drops General From Trial Of Detainee The New York Times May 10, 2008 Saturday

General Hartmann has been the military official most publicly identified with prosecutions in recent months. It was he, for example, who announced the Sept. 11 charges and has publicly pressed prosecutors to move faster. Ruling on a defense lawyers' request that said General Hartmann had exerted unlawful influence over the prosecution, Judge Allred said that public concern about the fairness of the cases was ''deeply disturbing'' and that he could not find that the general ''retains the required independence from the prosecution.'' Pentagon officials could ask the judge to reconsider, could appeal to a special military appeals court created to hear Guantanamo cases or could replace General Hartmann. General Hartmann has denied Colonel Davis's assertions and said the commission system would ''follow the rule of law.'' He has also said he has pressed prosecutors and others involved in the tribunals to move the cases more quickly. As convening authority, Ms. Crawford has powers over the entire war crimes system, including the power to approve or reject charges, to reach plea deals and to provide financial resources to the prosecution and the defense. Among officials in the war crimes system, General Hartmann was assumed to have been acting on her behalf. But the judge did not find there was evidence suggesting she should be removed even from the single case. Judge Allred's ruling followed a hearing in Guantanamo on April 28 at which Colonel Davis said General Hart- mann pressured him in deciding what cases to prosecute and what evidence to use. The judge called the hearing after lawyers for a detainee, Salim Hamdan, said his charges were unlawfully influenced.

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INITIATIVES Inspector General Earl E. Devaney Biography Water for America Earl E. Devaney has served as the Inspector General for the Department of the Ocean and Coastal Frontiers Interior since August 1999. Mr. Devaney has since transformed the Office of Inspector Birds Forever General into an innovative organization dedicated not only to detecting fraud, waste, Southwest Borderlands abuse and mismanagement within the Department of the Interior, but also to assist the Department in identifying and implementing new and better ways of conducting National Park Centennial business. Mr. Devaney and his team of senior managers have worked diligently Improving Indian Education toward developing strong working relationships with senior departmental managers, Safe Indian Communities congressional staff and key congressmen and senators. Armed with a philosophy that Healthy Lands blends cooperation with strong oversight and enforcement, the Office of Inspector General for the Department of the Interior has made significant advances under the leadership and vision of Mr. Devaney. Cooperative Conservation Ethics Responsibilities Mr. Devaney began his law enforcement career in 1968 as a police officer in his native state of Massachusetts. After graduating from Franklin and Marshall College in 1970 with a degree in Government, ISSUES OF INTEREST Mr. Devaney became a Special Agent with the United States Secret Service. HOW DO I? At the time of his retirement from the Secret Service in 1991, Mr. Devaney was serving as the Special Get a National Parks Pass? Agent-in-Charge of the Fraud Division and had become an internationally recognized white collar crime Trace Indian Ancestry? expert regularly sought by major media including USA Today, The Wall Street Journal and CNN. During his Comment on Proposed tenure with the Secret Service, Mr. Devaney was the recipient of five U.S. Department of Treasury Special Regulations? Achievement Awards and numerous honors and awards from a wide variety of professional organizations. DOI QUICK FACTS Upon leaving the Secret Service, Mr. Devaney became the Director of Criminal Enforcement for the U.S. Environment Protection Agency. In this position, Mr. Devaney oversaw all of EPA's criminal investigators and assumed management responsibility for EPA's Forensics Service Center and the National Enforcement Training Institute. Mr. Devaney's years of managerial excellence were recognized in 1998 with a Presidential Rank Award.

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September 14, 2006 Thursday Correction Appended Late Edition - Final

SECTION: Section A; Column 5; Business/Financial Desk; Pg. 1

LENGTH: 1080 words

HEADLINE: Interior Official Assails Agency For Ethics Slide

BYLINE: By EDMUND L. ANDREWS; Felicity Barringer contributed reporting.

DATELINE: WASHINGTON, Sept. 13

BODY: The Interior Department's chief official responsible for investigating abuses and overseeing operations accused the top officials at the agency on Wednesday of tolerating widespread ethical failures, from cronyism to cover-ups of incompetence. ''Simply stated, short of a crime, anything goes at the highest levels of the Department of the Interior,'' charged Earl E. Devaney, the Interior Department's inspector general, at a hearing of the House Government Reform subcommittee on energy. ''I have observed one instance after another when the good work of my office has been disregarded by the department,'' he continued. ''Ethics failures on the part of senior department officials -- taking the form of appearances of impropriety, favoritism and bias -- have been routinely dismissed with a promise 'not to do it again.' '' The blistering attack was part of Mr. Devaney's report on what he called the Interior Department's ''bureaucratic bungling'' of oil and gas leases signed in the late 1990's, mistakes that are now expected to cost the government billions of dollars but were covered up for six years. While these leases were the specific focus of the hearing, Mr. Devaney directed most of his criticism at what he called a broader organizational culture at the Interior Department of denial and ''defending the indefensible.'' He expressed particular fury at the willingness to dismiss two dozen potential ethical lapses by J. Steven Griles, a former industry lobbyist who served as deputy secretary of the interior during President Bush's first term. Mr. Griles resigned after allegations surfaced that he pushed policy decisions that favored some of his former oil and gas industry clients and that he tried to steer a $2 million contract to a technology firm that had also been one of his clients. In a 145-page report in 2004, the inspector general described Mr. Griles as a ''train wreck waiting to happen.'' But on Wednesday, Mr. Devaney said he was appalled that the Interior Department's office of ethics dismissed 23 out of 25 potential ethical breaches against Mr. Griles and that Gale A. Norton, then secretary of the interior, decided not to act on the two remaining allegations. Mr. Griles is once again a lobbyist in Washington. Efforts to reach Mr. Griles on Wednesday evening at his lobbying firm, Lundquist, Nethercutt & Griles, were unsuccessful. Mr. Devaney said that case was typical of a much broader ''culture of managerial irresponsibility and lack of accountability'' in the top reaches of the Interior Department. Page 2 Interior Official Assails Agency For Ethics Slide The New York Times September 14, 2006 Thursday Correction Appended

''I have unfortunately watched a number of high-level Interior officials leave the department under the cloud of O.I.G. investigations,'' Mr. Devaney said, referring to the Office of Inspector General. ''Absent criminal charges, however, they are sent off in the usual fashion, with a party paying tribute to their good service and the secretary wishing them well, to spend more time with their family or seek new opportunities.'' That was almost exactly what happened to Mr. Griles, who was never charged with any wrongdoing, though he admitted to using bad judgment in some cases. Dirk Kempthorne, who succeeded Ms. Norton as interior secretary earlier this year, said Wednesday that he took the inspector general's allegations ''very seriously'' and had sent a letter to all employees on his first day at the department on the need to follow ethical guidelines. Mr. Kempthorne declined to say what additional actions he might take until he saw Mr. Devaney's final report. Mr. Devaney, a burly man who began his career as a police officer in Massachusetts, is no stranger to combative investigations or confrontations with top officials. He spent more than 20 years as a special agent in the Secret Service, specializing in white-collar crime, eventually being put in charge of the service's fraud division. In the 1990's, he became director of criminal enforcement at the En- vironmental Protection Agency. He was named inspector general at the Interior Department in 1999, just as whistle-blowers outside the government were pressing huge lawsuits alleging that oil companies were fraudulently underpaying royalties. Three years ago, Mr. Devaney scathingly criticized the Interior Department's auditing program for oil and gas royalties. Beyond finding that investigators had missed millions of dollars in underpayments, his office uncovered evidence that agency auditors had lost key files, then tried to fool investigators by forging and backdating the missing documents. In an acid rebuke of the agency, Mr. Devaney noted that the agency gave a bonus to the official who came up with the false papers. Mr. Devaney's broadside against the Interior Department's culture dovetailed with his tentative conclusions in his most recent investigation, into how the department had managed to sign 1,100 leases for offshore drilling that inadver- tently let energy companies escape billions of dollars in royalties on gas and oil produced in the Gulf of Mexico. The leases, signed in 1998 and 1999 during the Clinton administration, allow companies to escape normal federal royalties -- usually 12.5 percent of sales -- on the tens of millions of barrels of oil on each lease. The royalty break was intended as an incentive for deepwater drilling, but it was also supposed to end if oil prices climbed above a ''threshold'' level of about $34 a barrel. The leases at issue omitted that restriction, and department officials kept quiet about their mistake for six years after they discovered it. The problem was first disclosed by The New York Times in March. Government officials now estimate that the mistake could cost the Treasury as much as $10 billion over the next decade. ''The Interior Department holds our natural resources in trust for the American people,'' said Representative Dar- rell Issa, Republican of California and chairman of the House Government Reform subcommittee on energy and resources. ''It squandered billions instead.'' Mr. Devaney said the error, a result of compartmentalized thinking within the department, might have remained buried if senior officials had had their way. ''We do not have a 'smoking gun,' '' Mr. Devaney said. ''We do, however, have a very costly mistake which might never have been aired publicly absent The New York Times, the interest of this committee, the Senate Committee on Energy and Natural Resources and several other interested members of Congress.''

URL: http://www.nytimes.com

CORRECTION-DATE: September 29, 2006

Page 3 Interior Official Assails Agency For Ethics Slide The New York Times September 14, 2006 Thursday Correction Appended

CORRECTION: A front-page article on Sept. 14 reported that the inspector general of the Interior Department had accused top officials at the agency of tolerating widespread ethical failures. The article said that the inspector general in a 2004 report had described J. Steven Griles, a deputy secretary accused of more than two dozen ethical lapses, as a ''train wreck waiting to happen.'' That quotation was taken out of context. The quotation said in full: ''Framed within the context of a train wreck waiting to happen, the Department of the Interior was presented with its most complex set of ethical issues with Mr. J. Steven Griles appointment at a time that, following years of neglect, demise and compartmentalization, the ethics program was wholly incapable of addressing them.'' The article also said that Mr. Griles resigned after the accusations against him surfaced. In fairness, the article should have made clear that his resignation came nine months after a government ethics office and his boss concluded that he had committed no ethical breach. The article also said that efforts to reach Mr. Griles for comment the night before publication were unsuccessful. But the article was posted on the Web site of The Times that night shortly after a message was left for Mr. Griles. In fairness, further efforts should have been made to contact Mr. Griles between the time of the Web posting and the final deadline for the print edition.

GRAPHIC: Photo: Earl Devaney, the Interior Department inspector general, told a House hearing, ''short of a crime, anything goes'' at high levels of the agency. (Photo by Jamie Rose for The New York Times)(pg. C4)

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September 26, 2007 Wednesday Correction Appended Late Edition - Final

SECTION: Section A; Column 0; Business/Financial Desk; Pg. 1

LENGTH: 1151 words

HEADLINE: INSPECTOR FINDS BROAD FAILURES IN OIL PROGRAM

BYLINE: By EDMUND L. ANDREWS

DATELINE: WASHINGTON, Sept. 25

BODY: The Interior Department's program to collect billions of dollars annually from oil and gas companies that drill on federal lands is troubled by mismanagement, ethical lapses and fears of retaliation against whistle-blowers, the department's chief independent investigator has concluded. The report, a result of a yearlong investigation, grew out of complaints by four auditors at the agency, who said that senior administration officials had blocked them from recovering money from oil companies that underpaid the government. The report stopped short of accusing top agency officials of wrongdoing, concluding that the whistle-blowers were sometimes unaware of other efforts under way to recover the missing money and that they sometimes simply disagreed with top management. But it offered a sharp description of failures at the Minerals Management Service, the agency within the Interior Department responsible for collecting about $10 billion a year in royalties on oil and gas. Many of the issues, including the complaints by whistle-blowers, were initially reported last year by The New York Times. Prepared by the Interior Department's inspector general, Earl E. Devaney, the report said that investigators found a ''profound failure'' in the agency's technology for monitoring oil and gas payments. It suggested that the agency was too cozy with oil companies and that internal critics had good reason to fear punishment. ''It demonstrates a Band-Aid approach to holding together one of the federal government's largest revenue- producing operations,'' Mr. Devaney concluded. In one case, senior officials decided that it would impose a ''hardship'' on oil companies to demand that they calculate the back interest they owed after having been caught underpaying. The agency itself was years behind in billing the companies, because its computers could not perform the calculations. When asked about this matter by investigators, the agency's associate director, Lucy Querques Denett, responded, ''How do you define hardship, just because they have a lot of money?'' The report was the latest result of a long series of investigations into the troubled federal program for collecting oil and gas royalties. Last year, Mr. Devaney told a Congressional hearing that ''short of a crime, anything goes at the highest levels of the Department of the Interior.'' Page 2 INSPECTOR FINDS BROAD FAILURES IN OIL PROGRAM The New York Times September 26, 2007 Wednesday Correction Appended

The new report did not try to estimate the amount of money that might have been lost. Early in 2006, officials conceded that the government might lose about $10 billion in revenue over the next decade because of a legal mistake in oil and gas leases that had been ignored for six years. At issue in the new report were the assertions by the four auditors at the agency, who said that senior officials had blocked them from recovering money from more than two dozen companies that underpaid royalties. The rebel auditors took the unusual step of filing their own lawsuits against the oil companies under the False Claims Act, a law that allows private citizens to sue companies that have cheated the government and to receive part of any money recovered. The first of those cases, brought against Anadarko Petroleum by a former auditor named Bobby L. Maxwell, went to trial in Denver early this year. Mr. Maxwell lost his job within a week after his lawsuit became public, in what Inte- rior officials said was a reorganization. In January, a jury in Denver ruled that Mr. Maxwell was correct and that Anadarko had cheated the government of $7.5 million. But the judge in the case reversed the jury on technical grounds, ruling that Mr. Maxwell was not entitled to invoke the False Claims Act. In their report, the investigators confirmed Mr. Maxwell's assertions that senior officials in Washington had ordered him to drop the case. The report said the senior officials had disagreed about the case's merits. Mr. Maxwell's supervisor in Denver supported his view; lawyers in Washington opposed him. The decision from Washington appeared to perplex the official in charge of reviewing the quality of audit work, who said in a draft report that investigators had found that the guidance decision, made by ''a senior-level M.R.M. official'' did not contain ''documentation to support the management decision.'' That comment was excised from the official's final report, the investigators noted. Interior officials said the report had not accused the department of any specific ethical or legal violations. They said that the inspector general had agreed that the whistle-blowers were unaware of separate efforts to act on some of their concerns. Randall Luthi, director of the Minerals Management Service, said the inspector general's report indicated that the lawsuits the auditors had filed were the result either of ''the auditors' lack of knowledge, or the fact that they simply disagreed with management guidance and decisions.'' He said the inspector general also found that the whistle-blowers had not properly reported their suspicions to the ''appropriate authorities'' before filing suit. Democrats in Congress argued that the new report showed that the Interior Department remained mired in problems. ''What the inspector general is saying is that this is a dysfunctional place, on issue after issue,'' said Senator Ron Wyden of Oregon. Representative Nick J. Rahall II of West Virginia, chairman of the House Natural Resources Com- mittee, said the royalty program was ''severely flawed from top to bottom.'' Particularly striking were complaints by two auditors in Oklahoma City, Randall Little and Lanis Morris, who said that senior officials had refused to demand $1.5 million in back interest from oil companies caught underpaying, saying that requiring the companies to calculate their own bills would be a hardship. But the officials said the Interior Depart- ment could not get its own systems to do the calculations. Mr. Little told investigators that the oil companies were getting a ''free ride'' and that ''the taxpayers ought to be outraged.'' After the auditors filed their lawsuits, Interior officials removed Mr. Little and Mr. Morris from their jobs at the Minerals Management Service and sent them to work below an entry-level technician at the Bureau of Land Man- agement. The inspector general did not accuse Interior Department officials of retaliation, and senior officials said Tuesday that the men had to be transferred temporarily because their lawsuits posed a conflict of interest with their regular work. But the inspector general sharply criticized senior officials for letting the men languish for months without information about their jobs, calling their treatment ''inexcusable.'' He said he had also begun an investigation into the Inte- Page 3 INSPECTOR FINDS BROAD FAILURES IN OIL PROGRAM The New York Times September 26, 2007 Wednesday Correction Appended rior Department's payments of more than $100 million to Accenture, a consulting firm, for a flawed information management system.

URL: http://www.nytimes.com

CORRECTION-DATE: September 28, 2007

CORRECTION: A front-page article on Wednesday about a report on shortcomings in royalties collection within the federal Miner- als Management Service misstated the target of a lawsuit filed by an Interior Department auditor who claimed under- payment of royalties. It was the Kerr-McGee Corporation, not Anadarko Petroleum. (The lawsuit was filed in 2004; Anadarko Petroleum acquired Kerr-McGee in 2006.)

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March 24, 2007 Saturday Late Edition - Final

SECTION: Section A; Column 1; National Desk; Pg. 9

LENGTH: 1042 words

HEADLINE: Ex-Interior Aide Pleads Guilty to Lying in Lobbying Case

BYLINE: By EDMUND L. ANDREWS

DATELINE: WASHINGTON, March 23

BODY: The second-highest official at the Interior Department during President Bush's first term, J. Steven Griles, pleaded guilty on Friday to lying before a Senate committee about his ties to Jack Abramoff, the disgraced lobbyist who is now in prison. Mr. Griles, 59, is the highest-ranking administration official to be convicted of a crime in connection with the bribery and influence-peddling scandal surrounding Mr. Abramoff. Under a plea agreement, the Justice Department recommended that Mr. Griles receive a five-month prison term and spend another five months confined to either a halfway-house or his home. The maximum sentence for a conviction would have been five years in prison. Nine other people have been convicted or pleaded guilty so far to charges tied to Mr. Abramoff's lobbying activities. Mr. Abramoff is serving a six-year prison term after pleading guilty to fraud charges in Florida. He has also pleaded guilty in Washington to separate charges of fraud, tax evasion and conspiracy to bribe public officials. Former Representative Bob Ney, Republican of Ohio, pleaded guilty in January to taking bribes from Mr. Abramoff and is serving a 30-month prison sentence. Judge Ellen S. Huvelle of Federal District Court, who has overseen many of the other cases involving Mr. Abramoff, warned Mr. Griles that she might not accept the prosecutors' recommendation of a 10-month sentence. In the case of Mr. Ney, she added three months to what the prosecutors had proposed. Mr. Griles is scheduled to be sentenced on June 26. Stone-faced and speaking in a monotone as he stood before Judge Huvelle, Mr. Griles tersely answered, ''Guilty, Your Honor,'' on Friday morning when asked for his response to the prosecutors' charge that he had lied to the Senate Indian Affairs Committee in October 2005. At the time, he said he had ''no special relationship'' with Mr. Abramoff. Mr. Griles was not accused of taking money or other favors from Mr. Abramoff, nor was he accused of providing Mr. Abramoff with illegal favors. The experience of Mr. Griles is a cautionary tale for government officials and others who testify before Congress. He is being charged with a felony even though his misstatements were not made under oath. His plea agreement comes at a time when the Bush administration is fighting demands by Congressional Democ- rats to allow top aides to the president, including his main political strategist, Karl Rove, to testify under oath about the dismissals of eight federal prosecutors around the country. Page 2 Ex-Interior Aide Pleads Guilty to Lying in Lobbying Case The New York Times March 24, 2007 Saturday

The White House has offered to let Mr. Rove answer questions from lawmakers, but only in private, not under oath and without any transcript of the sessions. The Justice Department said Mr. Griles, the deputy to Interior Secretary Gale A. Norton from 2001 to 2004 and an architect of President Bush's energy policies, had been romantically involved with the woman who introduced him to Mr. Abramoff and who had often acted as an intermediary between the two men. As a result, prosecutors said, Mr. Abramoff ''sought and received'' advice and help from Mr. Griles for his Indian tribe clients. Though prosecutors described the woman only as ''Person A,'' officials have acknowledged that she is Italia Federici, president of an advocacy group called the Council of Republicans for Environmental Advocacy. Mr. Griles, who had been a high-profile lobbyist for energy and mining companies before joining the Bush administration, helped Ms. Federici raise money for the group while he was still a lobbyist. According to the court filing, Mr. Griles and Person A had a ''personal, and at times, romantic relationship'' from 1998 to 2003. When he met Mr. Griles, Mr. Abramoff was lobbying to help one of his Indian tribe clients. From 2001 to 2003, the Justice Department said, Mr. Abramoff and his tribal clients contributed $500,000 to Ms. Federici's advocacy group. The department said Mr. Abramoff had developed a ''unique relationship'' with Mr. Griles that ''distinguished him from other lobbyists.'' By virtue of Mr. Abramoff's ties to Person A -- Ms. Federici -- prosecutors said Mr. Griles gave Mr. Abramoff ''more credibility'' and fostered a relationship that ''ordinarily would have taken years to develop.'' Mr. Abramoff benefited from that relationship, the prosecutors continued. In one e-mail message, Mr. Abramoff referred to Mr. Griles as ''our guy'' at the Interior Department and ''the one who gets everything done.'' At the end of his court appearance, Mr. Griles apologized in a written statement handed out by his lawyers. ''I am sorry for my wrongdoing,'' he said in his statement. ''I fully accept the responsibility for my conduct and the consequences it may have. When a Senate committee asks questions, they must be answered fully and completely, and it is not my place to decide whether those questions are relevant or too personal.'' But unlike Mr. Abramoff, who has expressed deep remorse for his activities and has been actively cooperating with investigators, Mr. Griles is not believed to have offered information about others in exchange for his plea deal. Mr. Griles is now living in Falls Church, Va., with another former top Interior official, Sue Ellen Wooldridge. Ms. Wooldridge, a former solicitor and senior aide to Ms. Norton, transferred to the Justice Department in 2005 and became the department's top prosecutor on environmental issues before resigning in January. In February, The Associated Press reported that Ms. Wooldridge and Mr. Griles had teamed up with a top lobbyist at ConocoPhillips to buy a $980,000 vacation home. Justice Department officials said Ms. Wooldridge had cleared the purchase with the department. Mr. Griles's close ties to the oil and gas industry, and his continued contacts with former clients after he became deputy secretary, attracted heavy criticism from environmental groups and intense scrutiny from the Interior Depart- ment's own inspector general. Earl Devaney, the inspector general, issued a sprawling report on Mr. Griles's contacts with former clients in 2003 and said his activities were part of a broader breakdown in the Interior Department's ethics standards -- a ''train wreck waiting to happen,'' in Mr. Devaney's words.

URL: http://www.nytimes.com

GRAPHIC: Photo: J. Steven Griles, a former Interior Department official, yesterday outside the court in Washington where he pleaded guilty to lying. (Photo by Doug Mills/The New York Times)

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March 17, 2004 Wednesday Late Edition - Final

SECTION: Section A; Column 3; National Desk; Pg. 14

LENGTH: 920 words

HEADLINE: Report Faults Agency More Than Top Aide in Lobbying Case

BYLINE: By JENNIFER 8. LEE

DATELINE: WASHINGTON, March 16

BODY: The deputy secretary of the Interior Department and the department's ethics office were criticized as taking a lax approach to conflict-of-interest policies in a report issued Tuesday by the department's inspector general. The report said that although the deputy secretary, J. Steven Griles, a former lobbyist for the oil, coal and gas in- dustries, had consulted ethics officials, he was asking, ''Can I?'' when he should have been asking, ''Should I?'' Calling the ethical issues surrounding Mr. Griles's appointment ''a train wreck waiting to happen,'' the report said the ethics office had been lax in providing guidance to someone who had to navigate more challenges than a typical political appointee. The report found ''evidence of and the perception that the department's leadership did not take ethics seriously.'' Mr. Griles, who had been in the department in the Reagan administration, was appointed in July 2001 after having worked several years as a lobbyist. The inspector general, Earl E. Devaney, forwarded his report, which does not draw definitive conclusions about whether violations had occurred, to the independent Office of Government Ethics, which referred two matters to Interior Secretary Gale A. Norton. In a letter to Ms. Norton, Mr. Devaney said: ''Whether a violation occurred or not may ultimately be irrelevant. Mere appearance, however, will erode the public trust. Once eroded, that trust is difficult -- of not impossible -- to win back.'' Ms. Norton said Tuesday that she believed her agency had resolved the specific problems involving Mr. Griles. She also said she was committed to improving the operation of the ethics office. In a statement, Mr. Griles said, ''I am glad this matter is behind me and we can continue to work to advance our initiatives to provide recreational opportunities for the public and protect and conserve our land and resources responsibly.'' The inquiry began in June 2002 in response to accusations that officials in the department were steering contracts to a company associated with Mr. Griles. The investigation broadened to other possible conflicts that involved Mr. Griles. One question that the Office of Government Ethics said was unresolved was whether Mr. Griles acted improperly when he contacted the deputy administrator of the Environmental Protection Agency in April 2002 about an environmental impact statement that involved Wyoming because three of the six companies that paid for the statement were former clients of his. Page 2 Report Faults Agency More Than Top Aide in Lobbying Case The New York Times March 17, 2004 Wednesday

The Office of Government Ethics said it ''would have advised Mr. Griles not to contact E.P.A.'' about releasing the statement but deferred to the Interior Department, as customary, to render a final judgment about ethics. In a statement, Ms. Norton said she had determined that Mr. Griles's effort ''requesting interagency cooperation was permissible,'' because the issue ''impacted hundreds, if not thousands, of parties similarly.'' The second problem involved a dinner party in April 2002 organized by Mr. Griles at the home of his former business partner, Marc I. Himmelstein, for Kathleen Clarke, director of the Bureau of Land Management; Rebecca Watson, assistant secretary for land and minerals management; and other top Interior Department officials. When he joined the government, Mr. Griles signed agreements that limited his contacts with former business associates and clients. In divesting his business interests, he agreed to be paid $284,000 a year for four years from a former Washington lobbying business, National Environmental Strategies, that Mr. Himmelstein and Haley Barbour, former chairman of the Republican National Committee, founded in 1990. Mr. Himmelstein continues to represent companies involved with the department, including six clients that worked with the Bureau of Land Management on an environmental impact statement for the Powder River Basin, a large mining area in Wyoming. According to the inspector general, at least one guest at the dinner in 2002, Ms. Watson, said in an interview that she felt uncomfortable about attending the party at Mr. Himmelstein's house. The report added that Mr. Griles decided after discussions with Timothy S. Elliott, the department's deputy associate solicitor, who had learned of the dinner, that there would be no ethical problems if he paid for it himself. Mr. Griles wrote Mr. Himmelstein a $180 check nearly three weeks after the party. Mr. Himmelstein did not cash it for many months. Two other times, Mr. Elliott said, he advised Mr. Griles's assistant against having Mr. Himmelstein be the host for parties with departmental officials. Responding to the report, Ms. Norton said: ''Months ago, the deputy secretary acknowledged he should have used better judgment in organizing a dinner with members of the department. Since then, he has taken a number of steps to strengthen the ethics screening and oversight within his office to avoid a similar occurrence.'' Senator Joseph I. Lieberman of Connecticut, the senior Democrat on the Governmental Affairs Committee, said, ''This appears to be yet another case in a long list of Bush administration examples of the foxes guarding the foxes.'' Mr. Lieberman, who had asked for an investigation into some of Mr. Griles's activities, said Tuesday, ''The cumulative impact of repeated special access for special interests with pre-existing business connections to Mr. Griles cannot help but leave a sour taste in the mouth of anyone who believes in the fairness of government.''

URL: http://www.nytimes.com

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The Atlanta Journal-Constitution

April 28, 2005 Thursday Home Edition

SECTION: News; Pg. 9A;

LENGTH: 485 words

HEADLINE: Help urged for whistle-blowers; National security focus of report

BYLINE: REBECCA CARR

BODY: Washington --- A group of whistle-blowers heads to Capitol Hill today to demand more protection for a growing number of federal employees who have exposed holes in national security. As they do, the Project on Government Oversight, a nonpartisan government watchdog group, plans to release a report showing that the number of whistle-blowers in the federal government has risen by 50 percent since the Sept. 11, 2001, terrorist attacks. When whistle-blowers do find the courage to step forward, they are rarely rewarded, said Beth Daley, author of the report. In fact, most find a hostile work environment and no recourse to fight retaliation, she said. "It's like soldiers going into combat without body armor," said Daley, describing how whistle-blowers feel after they make their allegations public. Scott Bloch, special counsel at the U.S. Office of Special Counsel, the government agency in charge of receiving whistle-blower complaints, said his office is concerned about the well-being of whistle-blowers and "appreciates the need for greater protections and for increased recognition of whistle-blowers' rights." Last year, his office doubled the number of substantiated, valid whistle-blower claims over prior years and cleared a "chronic backlog" of cases, he said in a statement. Passed in 1989, the Whistleblower Protection Act allows employees to seek intervention from the Office of Special Counsel and an administrative hearing by another federal agency, the Merit Systems Protection Board. They can also appeal their cases in court. However, most of the agencies that protect the country against another terrorist attack --- the CIA, the FBI and the rest of the intelligence agencies --- are not covered by the legislation. Nor are airport baggage screeners and the military, according to the watchdog group's report. There is no third-party review of whistle-blower cases at the agencies, either, the report found. "As a result, the institution that is retaliating against the whistle-blower acts as the judge and jury of its own alleged harassment," the report stated. Sibel Edmonds, the leader of the National Security Whistleblowers Coalition, said the group will use the report to urge Congress to hold retaliators accountable. Edmonds, hired by the FBI shortly after the Sept. 11 attacks for her expertise in Mideast languages, was fired in March 2002 after reporting what she said was shoddy work and security breaches to her supervisors. Page 2 Help urged for whistle-blowers;National security focus of report The Atlanta Journal-Constitution April 28, 2005 Thursday

She said she started her coalition last August with 22 other whistle-blowers. It has 53 members and her phone rings off the hook with more complaints from other national security agencies, she said. "They feel like they have no place to go," Edmonds said. "They feel like they have no option but to expose the danger and take their case to the court of public opinion because they don't want any more people to die."

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The Washington Post

January 15, 2005 Saturday Final Edition

SECTION: A Section; A13

LENGTH: 610 words

HEADLINE: Official Faults FBI Probe Of Translator's Complaint

BYLINE: Dan Eggen, Washington Post Staff Writer

BODY: The FBI has yet to fully investigate a former bureau translator's allegations of a security breach, despite statements by other witnesses and documents that support her claims, the Justice Department's chief watchdog reported yesterday. Inspector General Glenn A. Fine emphasized that his office did not reach any conclusions about the truthfulness of the claims made by Sibel Edmonds, and in fact found that some of them were not supported by the evidence. But a 37-page unclassified summary of Fine's investigation also concluded that the FBI was lax in investigating Edmonds's allegations and that the bureau fired her as a contract employee in part because of her complaints. "[H]ad the FBI performed a more careful investigation of Edmonds' allegations, it would have discovered significant omissions and inaccuracies by the co-worker related to these allegations," the summary said. "These omissions and inaccuracies, in turn, should have led to further investigation by the FBI." The report is the latest salvo in the long-running battle between the FBI and Edmonds, whose case has attracted the attention of several U.S. senators and advocacy groups such as the American Civil Liberties Union. In a statement provided by the ACLU, which is representing her in a lawsuit, Edmonds said: "After almost three years since my wrongful termination, the government is finally admitting that the FBI acted improperly by firing me, and also affirming that my reports of serious problems within the agency were based on fact. However, the FBI has yet to conduct a thorough investigation into these allegations." The FBI said in a statement yesterday that it had already made management improvements to its Language Services Program in response to Fine's report and that an investigation into Edmonds's claims was continuing. FBI Director Robert S. Mueller III has a "commitment to protecting from retaliation all employees," including contractors who are not covered by federal whistle-blower laws, the FBI said. Edmonds, who worked as a translator at the FBI's Washington field office before and after the Sept. 11, 2001 attacks, sued the FBI over her March 2002 firing and is appealing dismissal of her case. She was born in Iran, raised in Turkey, and speaks Turkish, Farsi and Azerbaijani. Edmonds has said the bureau retaliated against her after she alleged that a Turkish American co-worker had attempted to censor translations of wiretapped conversations, alerted some targets that they were under surveillance and attempted to recruit her into a group that was under investigation. Edmonds also accused the unit of shoddy translations and other shortcomings. Page 2 Official Faults FBI Probe Of Translator's Complaint The Washington Post January 15, 2005 Saturday

Attorney General John D. Ashcroft took the unusual step of invoking a state-secrets privilege to keep information secret in Edmonds's lawsuit. Justice officials also attempted to retroactively seal previously unclassified briefings for congressional staffers on the issue. Fine's report reveals for the first time that Edmonds was fired for violating classified information rules by typing up one memorandum on her home computer. The report says Edmonds received permission from her supervisor to type the document at home. The report is a public summary of a 100-page classified review of Edmonds's case and does not provide details about all of her allegations or identify which ones have merit. In addition to her complaints about the translation unit, Edmonds has more recently accused the FBI of missing warning signs of the Sept. 11 attacks. The independent commission that investigated the hijackings did not find evidence to support those allegations, commission sources have said.

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November 29, 2005 Tuesday Late Edition - Final

SECTION: Section A; Column 1; National Desk; Supreme Court Roundup; Pg. 22

LENGTH: 969 words

HEADLINE: Justices Reject F.B.I. Translator's Appeal on Termination

BYLINE: By LINDA GREENHOUSE

DATELINE: WASHINGTON, Nov. 28

BODY: The Supreme Court refused on Monday to hear an appeal by a former F.B.I. translator of Middle Eastern languages who asserted that she was terminated for trying to expose ineptitude and espionage within the bureau's translation section. Two lower federal courts dismissed the plaintiff's lawsuit for retaliatory termination, accepting the federal government's argument that the case could not proceed without revealing state secrets. Under the so-called state secrets privilege, recognized by the Supreme Court 50 years ago, a lawsuit must be dismissed when there is no alternative to protect national security. In her appeal, the translator, Sibel Edmonds, who was represented by the American Civil Liberties Union, argued that the lower courts misapplied the privilege in dismissing her lawsuit before discovery and without making a sufficient effort to consider evidence that was not privileged. Ms. Edmonds also challenged the exclusion of the public and the press from the courtroom in which the United States Court of Appeals for the District of Columbia Circuit heard her appeal in April. The appeals court ordered the courtroom closed even though the government informed the judges the previous week that it was ''prepared to argue this case publicly, in an open courtroom.'' A transcript of the argument was released later. Ms. Edmonds, who was hired by the Federal Bureau of Investigation shortly after Sept. 11, 2001, translated material in Turkish, Persian and Azerbaijani. After a few months on the job, she complained repeatedly that important terrorism-related intelligence was being inadequately translated and raised accusations of espionage against a fellow linguist. Earlier this year, a report by the Justice Department's inspector general found that evidence supported many of Ms. Edmonds's accusations, that the bureau failed to take them seriously enough and that her accusations were ''the most significant factor in the F.B.I.'s decision to terminate her services'' in 2002. The report reached no conclusion on whether espionage had taken place. Ms. Edmonds's Supreme Court appeal, Edmonds v. Department of Justice, No. 05-190, was supported by ''friend of the court'' briefs from several news media organizations, including The New York Times. These were among the day's other developments as the justices returned from a two-week recess.

Sex Offender Restriction Page 2 Justices Reject F.B.I. Translator's Appeal on Termination The New York Times November 29, 2005 Tuesday

The court refused to hear a challenge to an Iowa law that prohibits convicted sex offenders from living within 2,000 feet of schools or child-care centers, including homes that provide day care. The plaintiffs, three anonymous offenders who filed their case as a class action, said the law had the effect of excluding them from all but industrial areas of cities and rural areas without schools. The Iowa Sex Offender Residency Restriction imposed ''a modern form of banishment,'' they said. The Federal District Court in Des Moines ruled last year that the law violated several constitutional guarantees, including the due process right of individuals to live with their families. That decision was overturned in April by a three-judge panel of the United States Court of Appeals for the Eighth Circuit, in St. Louis. Five of the 11 members of the full Eighth Circuit, one short of the necessary majority, then voted to reconsider the case. According to Iowa's brief opposing the appeal, John Doe v. Miller, No. 05-428, 17 states have similar laws. Tho- mas J. Miller, Iowa's attorney general, said that ''while reasonable people can disagree about the wisdom of the law, its constitutionality is not seriously in doubt.''

Supervised Release The justices also rejected an appeal of a sentence that a federal district judge in San Francisco issued to a man convicted of stealing from mailboxes. The judge, Vaughn R. Walker, ordered the man, Shawn Gementera, to stand in front of a Post Office building wearing a sandwich board with the inscription ''I stole mail. This is my punishment.'' The sentence, which Judge Walker said had ''humiliation'' as its purpose, followed a two-month jail sentence. Mr. Gementera was to stand for 100 hours, but Judge Walker reduced the sentence to 8 hours. The United States Court of Appeals for the Ninth Circuit, in San Francisco, upheld the sentence in a 2-to-1 decision, rejecting Mr. Gementera's argument that it amounted to cruel and unusual punishment. The sentence was a permissible condition of ''supervised release'' under federal sentencing law, the appeals court majority held. The Justice Department, in its brief urging the Supreme Court to reject the case, Gementera v. United States, No. 05-227, said the sentence was ''well within'' the district court's discretion.

State vs. State The justices authorized New Jersey to bring a case against Delaware directly in the Supreme Court, in an exercise of the court's ''original jurisdiction'' to hear suits by one state against another. The case is not a typical border dispute, but rather an effort by New Jersey to win approval for a liquefied natural gas processing terminal that a private company, BP, wants to construct on the state's Delaware River shoreline. Part of the unloading and transfer system for the project, known as Crown Landing, would extend into Delaware's coastal zone, and the state has refused to permit it. New Jersey argues that the entire project falls within its jurisdiction rather than Delaware's. It urged the justices to reopen an old boundary dispute between the two states that the court settled in 1935. Instead, the justices authorized New Jersey to file an entirely new case under the title of New Jersey v. Delaware, No. 134 Original, and gave Delaware 30 days to respond. The court usually appoints a special master to take evidence and make recommendations in original cases.

URL: http://www.nytimes.com

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SHOW: 60 Minutes (7:00 PM ET) - CBS

August 8, 2004 Sunday

TYPE: Profile

LENGTH: 2250 words

HEADLINE: Lost in Translation; Foreign language documents FBI neglected to translate before and after September 11th

ANCHORS: ED BRADLEY

BODY: LOST IN TRANSLATION ED BRADLEY, co-host: Lost in Translation is the story of hundreds, if not thousands, of foreign language documents the FBI neglected to translate before and after September 11th, documents that detailed what the FBI heard on wiretaps and learned during interrogations of suspected terrorists. Sibel Edmonds, a translator who worked at the FBI's language department, says the documents were not translated because of incompetence and corruption. Edmonds was fired in March of 2002 after reporting her allegations to FBI officials. Just two weeks ago, the FBI admitted that one key reason it fired her was because she spoke up about her concerns. She told her story behind closed doors to investigators in Congress, to the Jus- tice Department, and most recently to the 9/11 commission. She first told her story to us one year after the September 11th attacks. (Footage of Edmonds and reporter walking; FBI agents carrying documents) BRADLEY: (Voiceover) Because she is fluent in Turkish and other Middle Eastern languages, Edmonds, a 34- year-old Turkish-American, was hired by the FBI soon after September 11th and given top-secret security clearance to translate some of the reams of documents seized by FBI agents who had been rounding up suspected terrorists across the United States and abroad. Ms. SIBEL EDMONDS: The first two months after the September 11th event, we--the agents out there in--in New York, LA, other field offices, they were working around the clock. And I would receive calls from these people saying, 'Would you please prioritize this and--and translate it?' (Footage of Edmonds at computer) BRADLEY: (Voiceover) But Edmonds says that to her amazement, from the day she started the job, she was told repeatedly by one of her supervisors that there was no urgency; that she should take longer to translate documents so that the department would appear overworked and under-staffed. That way it would receive a larger budget for the next year. Ms. EDMONDS: We were told by our supervisors that this was the great opportunity for asking for increased budget and asking for more translators. 'And in order to do that, don't do the work and let the documents pile up so we can show it and say that we need more translators and expand the department.' BRADLEY: So you--you have FBI agents who are in the field relying on your translation work in order to move their cases forward, and your supervisor is saying, 'Slow down. Let the cases pile up'? Page 2 Lost in Translation; Foreign language documents FBI neglected to translate before and after September 11th CBS News Transcripts August 8, 2004 Sunday

Ms. EDMONDS: Correct. BRADLEY: I mean, how is it possible that the focus wasn't on terrorism, particularly after 9/11? Ms. EDMONDS: It was not. At least in that department it was not. (Footage of Edmonds; Edmonds and reporter) BRADLEY: (Voiceover) Edmonds says that the supervisor, in a effort to slow her down, went so far as to erase completed translations from her FBI computer after she'd left work for the day. Ms. EDMONDS: The next day I would come to work, turn on my computer, and the work would be gone, the translation would be gone. Then I had to start all over again and re-translate the same document. And I went to my supervisor, and he said, 'Consider it a lesson, and don't talk about it to anybody else and don't mention it.' BRADLEY: What's the lesson? Ms. EDMONDS: The lesson was 'Don't work, don't do these translations. Go out and spend two hours, lunch breaks. You know, go and--don't go and get coffee downstairs, go eight blocks away. Just chat with your friends. But don't do the work because this our chance to increase the number of people here in this department.' (Footage of Edmonds writing; Charles Grassley) BRADLEY: (Voiceover) Sibel Edmonds put her concerns about the FBI's language department in writing to her immediate superiors, and to a top official at the FBI. Edmonds says for months she got no response. She then turned for help to the Justice Department's inspector general, which investigated her claims, and to Senator Charles Grassley because his committee, the Judiciary Committee, has direct oversight of the FBI. Did she seem credible to you? Did her story seem credible? Senator CHARLES GRASSLEY: Absolutely she's credible. And the reason I feel she's very credible is because people within the FBI have corroborated a lot of her story. (Footage of woman typing; Dictaphone; Kevin Taskasen and woman; detainees at Guantanamo Bay; Taskasen and woman) BRADLEY: (Voiceover) The FBI has conceded that some people in the language department are unable to adequately speak English or the language they're supposed to be translating. Kevin Taskasen was assigned to Guantanamo Bay in Cuba to translate interrogations of Turkish-speaking al-Qaeda members who had been captured after September 11th. The FBI admits that he was not fully qualified to do the job. Ms. EDMONDS: He neither passed the English nor the Turkish side of this language proficiency test. BRADLEY: So that means if, for example, you had a--a terrorist detained at--at Guantanamo who had information about a--an attack being planned in the future against the United States, that person would not have been in a position to translate that? Ms. EDMONDS: Correct. He wouldn't. BRADLEY: I mean, that's hard to imagine. Ms. EDMONDS: But that's the case. (Footage of FBI building; sign; men carrying man; ambulances; bombing victims; New York skyline; ambulances at bomb site; FBI building; firemen searching rubble; excerpts from documents) BRADLEY: (Voiceover) Critical shortages of experienced Middle Eastern language translators have plagued the FBI and the rest of the US intelligence community for years. Months before the first World Trade Center bombing in 1993, one of the plotters of the attack was heard on tape having a discussion in Arabic that no one at the time knew was about how to make explosives, and he had a manual that no one at the time knew was about how to blow up buildings. None of it was translated until well after the bombing. And while the FBI has hired more translators since then, officials concede that problems in the language division have hampered the country's efforts to battle terrorism and, according to congressional investigators, may have played a role in the inability to prevent the September 11th attacks. The General Accounting Office reported that the FBI had expressed concern over the thousands of hours of audiotapes and pages of written material that have not been reviewed or translated because of a lack of qualified linguists. Page 3 Lost in Translation; Foreign language documents FBI neglected to translate before and after September 11th CBS News Transcripts August 8, 2004 Sunday

Sen. GRASSLEY: If--if they got word today that within-in a little while the Hoover Dam was going to be blown up, and it takes a week or two to get it translated--as was one of the problems in this department--you know, you could- n't intervene to prevent that from happening. BRADLEY: So you think that this place does need an overhaul essentially? Sen. GRASSLEY: It needs to be turned upside down. (Footage of J. Edgar Hoover Building; FBI agent; flags) BRADLEY: (Voiceover) In its rush to hire more foreign language translators after September 11th, the FBI admits it has had difficulty performing background checks to detect translators who may have loyalties to other governments, which could pose a threat to US national security. Take the case of Jan Dickerson, a Turkish translator who worked with Sibel Edmonds. The FBI has admitted that when Dickerson was hired the bureau didn't know that she had worked for a Turkish organization being investigated by the FBI's own counterintelligence unit. And they didn't know that she'd had a relationship with a Turkish intelligence operative stationed in Washington who was the target of that investigation. (Footage of Edmonds and reporter) BRADLEY: (Voiceover) According to Sibel Edmonds, Jan Dickerson tried to recruit her into that organization, and insisted that Dickerson be the only one to translate the FBI's wiretaps of that Turkish official. What was her reaction when you didn't go along with--with her plan? Ms. EDMONDS: She got very angry, and later she threatened me and my family's lives. BRADLEY: Threatened you? Ms. EDMONDS: Correct. BRADLEY: Did--did you take her threats seriously? Ms. EDMONDS: Oh, yes. She said, 'Why would you want to place your life and your family's life in danger by translating these texts?' (Footage of Edmonds reading; State Department building; Pentagon) BRADLEY: (Voiceover) Edmonds says that when she reviewed Dickerson's translations of those tapes, she found that Dickerson had left out information crucial to the FBI's investigation, information that Edmonds says would have revealed that the Turkish intelligence officer had spies working for him inside the US State Department and at the Pen- tagon. Ms. EDMONDS: We came across at least 17, 18 translations, communications that were extremely important for-- for the ongoing investigations of these individ--individuals. BRADLEY: And she had not translated this--this information? Ms. EDMONDS: No. She had marked it as 'not important to be translated.' BRADLEY: Specifically, what kind of information did she leave out of her translation? Ms. EDMONDS: Activities to obtain the United States military and intelligence secrets. (Footage of Edmonds) BRADLEY: (Voiceover) Edmonds says she complained repeatedly to her bosses about what she'd found on the wiretaps, and about Jan Dickerson's conduct, but that nobody at the FBI wanted to hear about it; she says not even the assistant special agent in charge. Ms. EDMONDS: He said, 'Do you realize what you're saying here in your allegations? Are you telling me that our security people are not doing their jobs? Is that what you're telling me? If you insist on this investigation, I'll make sure in no time it will turn around and become an investigation about you.' These were his exact words. (Excerpt from document) Page 4 Lost in Translation; Foreign language documents FBI neglected to translate before and after September 11th CBS News Transcripts August 8, 2004 Sunday

BRADLEY: (Voiceover) Sibel Edmonds was fired. The FBI offered no explanation, saying in a letter only that her contract was "terminated completely for the government's convenience." But three months later, the FBI conceded that on at least two occasions Jan Dickerson had, in fact, left out significant information from her translations. They say it was due to a lack of experience and was not malicious. (Footage of house; excerpt from newspaper; Grassley and reporter) BRADLEY: (Voiceover) Dickerson quit the FBI and now lives in Belgium. She declined to be interviewed, but she told the Chicago Tribune that the allegations against her are "preposterous" and "ludicrous." Senator Charles Grassley says he's disturbed by what the Dickerson incident says about internal security at the FBI. Sen. GRASSLEY: You shouldn't have somebody in your organization that's compromising our national security by not doing the job right, whether it's a lack of skills or whether it's intentional. BRADLEY: Based on your experience, does the Sibel Edmonds case fall into any pattern of behavior, pattern of conduct on--on the part of the FBI? Sen. GRASSLEY: The usual pattern. Let me tell you, first of all, the embarrassing information comes out, the FBI reaction is to sweep it under the rug, and then eventually they shoot the messenger. (Footage of John Roberts walking) BRADLEY: (Voiceover) Special Agent John Roberts, recently retired as a chief of the FBI's Internal Affairs De- partment, agrees. And while he is not permitted to discuss the Sibel Edmonds case, for the last 10 years he investigated misconduct by FBI employees and says he is outraged by how little is ever done about it. Mr. JOHN ROBERTS: I don't know of another person in the FBI who has done the internal investigations that I have and have seen what I have, and that knows what has occurred and what has been glossed over, and what has, frankly, just disappeared, just vaporized, and no one disciplined for it. (Footage of Robert Mueller and John Ashcroft; Roberts and reporter; Edmonds reading) BRADLEY: (Voiceover) Despite a pledge from FBI Director Robert Mueller to overhaul the culture of the FBI in light of 9/11 and encourage bureau employees to come forward to report wrongdoing, Robert says that in the rare instances when employees are disciplined, it's usually low-level employees like Sibel Edmonds who get punished, and not their bosses. Mr. ROBERTS: I think the double standard of discipline will continue no matter who comes in, no matter who tries to change. You--you have a certain--certain group that will continue to protect itself. That's just how it is. BRADLEY: No matter what happens? Mr. ROBERTS: I would say no matter what happens. BRADLEY: Have you found cases since 9/11 where people were involved in misconduct and were not--let alone reprimanded, but were even promoted? Mr. ROBERTS: Oh, yes. Absolutely. BRADLEY: That's astonishing. Mr. ROBERTS: Why? BRADLEY: Because you--you would think that after 9/11 that's a big slap on the face. 'Hello! This is a wake-up call here.' Mr. ROBERTS: Depends on who you are. If you're in a senior executive level, it may not hurt you. You will be promoted. BRADLEY: Sibel Edmonds filed a lawsuit to get her job back. Last month it was dismissed by a judge on the grounds that her claims might expose government secrets that could compromise national security. As for the FBI's language division, the bureau has significantly beefed up its translations capabilities, but admits it needs to do more.

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The Washington Post

February 23, 2005 Wednesday Final Edition

SECTION: A Section; A17

LENGTH: 787 words

HEADLINE: Access to Memos Is Affirmed; Classified Status Can't Be Changed

BYLINE: R. Jeffrey Smith, Washington Post Staff Writer

BODY: The Justice Department has backed away from a court battle over its authority to classify and restrict the discussion of information it has already released, handing a local advocacy group a victory by granting it explicit permission to publish letters written by two senators that contain the contested information. The case was considered a potential test of limits to the government's power to restrict access to information in the public domain on national security grounds. Former attorney general John D. Ashcroft had strongly defended the practice in this case by likening it to putting "spilt milk" back in a jar instead of simply saying, "well, it's spilt." But the Justice Department, which got new leadership this month when former White House counsel Alberto R. Gonzales took the reins, said in a Feb. 18 letter that the previously public letters by the two senators are "releasable in full." A spokesman for the Justice Department, Charles Miller, said he was unsure whether Gonzales played a role in the decision. At issue in the dispute were efforts by the Project on Government Oversight (POGO), an independent watchdog group, to publish on its Web site letters written in the summer of 2002 by Sens. Patrick J. Leahy (D-Vt.) and Charles E. Grassley (R-Iowa) to Ashcroft and others seeking an explanation for the FBI's alleged mistreatment of a whistle-blower, Sibel Edmonds. Edmonds, a contract linguist, had been fired in March of that year after complaining that a Turkish American co- worker had contact with an organization targeted by an FBI terrorism surveillance program and that the linguist had mistranslated transcripts of classified conversations mentioning that organization. Edmonds did not take her dismissal quietly, and her case attracted the attention not only of POGO, but also of the American Civil Liberties Union and other whistle-blower support groups. The FBI briefed staff members of the Senate Judiciary Committee last July on its own inquiry into the case, seeking no security controls on the information it discussed. Leahy and Grassley wrote their letters demanding more information in June, August and October 2004 and posted them on their Web sites. POGO obtained copies and posted them on its own Web site. Page 2 Access to Memos Is Affirmed; Classified Status Can't Be Changed The Washington Post February 23, 2005 Wednesday

After Edmonds was asked to testify in a civil suit against the government related to the Sept. 11, 2001, terrorist attacks, however, the government sought not only to restrict her court testimony but also to clamp down on the dissemination of further information about her case. The FBI contacted the Judiciary Committee in May 2004 to say, according to an internal committee e-mail, that it wished "to put all . . . staffers on notice that it now considers some of the information contained in two . . . briefings to be classified. . . . Any staffer who attended those briefings, or who learns about those briefings . . . should therefore avoid further dissemination." Leahy and Grassley removed two of the letters from their Web sites, and POGO followed suit, although copies were then posted on other Web sites. In its subsequent lawsuit, POGO said the senators' removal of the letters from their Web sites had provoked worry that the group might be prosecuted for disseminating classified information on its Web site, and the group said the Jus- tice Department's "after-the-fact classification of public information . . . imposes a prior restraint that violates POGO's First Amendment right to discuss information it lawfully obtained." The Justice Department initially sought to dismiss the lawsuit, arguing that it was reasonable for the government to try to stem further leaks about the Edmonds case after charting "more precise contours of the mosaic of information covered by" a state-secrets privilege. "Even assuming that some information was already public, that would not prevent defendants from classifying it later," the department said in a Dec. 23, 2004, court pleading. The department also said POGO had no standing to sue, because the group could not prove the government had threatened to prosecute it for publishing the letters. But Justice finally decided, shortly before a court hearing slated for yesterday morning, to say explicitly that the letters could be posted without fear of prosecution. The letters had asked what the department was doing to investigate Edmonds's claims and what sort of guidance the FBI gave its linguists about their foreign contacts. The answer to the first question, evidently, was not much. The department's inspector general said in a heavily classified report -- released only in part a week ago -- that the FBI was lax in investigating her complaints and fired her partly because she made them.

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The Washington Post

April 29, 2005 Friday Final Edition

SECTION: Metro; B02 , FEDERAL DIARY Stephen Barr

LENGTH: 679 words

HEADLINE: Whistle-Blowers Urge Congress to Get Tougher on Retaliation

BYLINE: Stephen Barr

BODY: A group of more than 50 whistle-blowers called on Congress yesterday to strengthen protections against retaliation by federal agencies when employees expose improper activities or mistakes that could damage homeland and national security. Sibel Edmonds, a former FBI language specialist, has taken the lead in forming the group, the National Security Whistleblowers Coalition. She was fired as a wiretap translator after alleging that a co-worker was leaking information about an FBI investigation. Among those joining Edmonds at the Capitol Hill news conference were Coleen Rowley, a retired FBI agent who faulted headquarters for not allowing Minneapolis agents to pursue a terrorism probe before the Sept. 11, 2001, attacks; Mike German, a former FBI agent who said his career was "put on ice" after he reported wrongdoing; and John Vincent, a retired FBI agent who spoke on behalf of Robert Wright, a veteran agent who was fired after claiming the bureau had mishandled investigations of the Palestinian group known as Hamas. They and other speakers urged Congress to tighten up whistle-blower protections, give inspectors general more clout to investigate employee disclosures, and take steps to prevent agencies from stonewalling lawmakers on issues of homeland and national security. Rep. Edward J. Markey (D-Mass.) said at the news conference that he would introduce legislation to extend to federal employees and contractors whistle-blower protections given to private-sector workers by the 2002 Sarbanes-Oxley Act, which was aimed at corporate accountability. Markey said his proposal would protect employees from retaliation when they reported to their agency or Congress concerns about national or homeland security, public safety, or fraud, waste and abuse. Employees would file complaints at the Labor Department and would have a right to take their cases to federal court if the department failed to act within six months, Markey said. The prospects for Markey's proposal are uncertain. He noted that he had offered the proposal as an amendment to the fiscal 2006 authorization bill for the Department of Homeland Security and that it had been rejected in committee on a party-line vote. At the news conference, the Project on Government Oversight, a whistle-blower advocacy group headed by Dan- ielle Brian, handed out a report that said government whistle-blowers are coming forward in greater numbers since the Page 2 Whistle-Blowers Urge Congress to Get Tougher on Retaliation The Washington Post April 29, 2005 Friday

9/11 terrorist attacks and are being greeted with harassment, dismissals, demotions, loss of security clearances and other reprisals. Because of the Sarbanes-Oxley law, the report said, corporate whistle-blowers "are much better protected from retaliation than their counterparts in the public sector, even though the consequences of corruption in government are equally, if not more, far-reaching." Nestor Arellano, a software designer at the Air Force Pentagon Communications Agency, will retire Tuesday after 43 years of government service. Harold Burghart, senior adviser in the office of chief counsel at the Internal Revenue Service, is retiring today after more than 32 years of federal service, including 26 years with the IRS. Ken Hubenak, a public affairs specialist at the IRS, will retire Wednesday after 30 years with the IRS. He started in Dallas as a taxpayer service specialist and has worked in media relations for 13 years. Jeffrey S. Milstein, a senior policy and strategic analyst, retired March 31 after 31 years of federal service. He worked at the departments of State, Commerce, Defense, Energy and Treasury, the White House and the CIA. Kirke Harper, chairman of the Public Employees Roundtable, will be the guest on "FEDtalk" at 11 a.m. today on federalnewsradio.com. Charles L. Kincannon, director of the Census Bureau, will be the guest on the "IBM Business of Government Hour" at 9 a.m. tomorrow on WJFK radio (106.7 FM). "Do I Still Have a Good Government Job?" will be the topic of discussion on the Imagene B. Stewart call-in program at 8 a.m. Sunday on WOL radio (1450 AM). E-mail: [email protected]

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Glenn A. Fine Exhibits EXHIBIT 1 Page 1 Audit Finds FBI Reports Of Detainee Abuse Ignored; Tactics Continued Against Detainees The Washington Post May 21, 2008 Wednesday

1 of 185 DOCUMENTS

The Washington Post

May 21, 2008 Wednesday Met 2 Edition

SECTION: A-SECTION; Pg. A01

DISTRIBUTION: Maryland

LENGTH: 1098 words

HEADLINE: Audit Finds FBI Reports Of Detainee Abuse Ignored; Tactics Continued Against Detainees

BYLINE: Carrie Johnson and Josh White; Washington Post Staff Writers

BODY: Complaints by FBI agents about abusive interrogation tactics at Guantanamo Bay, Cuba, and other U.S. military sites reached the National Security Council but prompted no effort to curb questioning that the agents considered ineffective and possibly illegal, according to an internal audit released yesterday. Reports that Guantanamo detainees were being subjected to extreme temperatures, religious abuses and nude interrogation were conveyed at White House meetings of senior officials in 2003, yet these questionable tactics remained in use, a lengthy report by the Justice Department's inspector general concluded. In one instance, colleagues of then-Attorney General John D. Ashcroft reported that he personally aired concerns about Defense Department strategy toward a particular detainee with Condoleezza Rice, then the national security adviser, while other Justice managers shared similar fears with the council's legal adviser in November 2003, the report said. Ashcroft declined to be interviewed by investigators, so it remains uncertain how aggressively he pressed the issue, according to the report. Other senior Justice officials told investigators that no changes were made in interrogations at Guantanamo Bay even after these and other complaints filtered up to the National Security Council. Nearly half of the 450 FBI agents who worked at Guantanamo reported that they had observed or heard about military interrogators using a variety of harsh interrogation techniques on detainees, with the most common being sleep deprivation and short-shackling -- or locking a detainee's hands and feet together to prevent comfortable sitting or standing -- for long periods of time. Military officials at Guantanamo Bay used some aggressive techniques before they were approved, possibly in violation of Defense Department policy and U.S. law, the report said. They also continued to use "stress positions" and other such techniques well after they were prohibited by Defense Department policy in January 2003, the report said. The 370-page report draws heavily on e-mail messages and contemporaneous memos to provide the clearest and most definitive account to date of the key tactics used by the government against suspected terrorists after the Sept. 11, 2001, attacks. It describes, for example, a "frequent flyer program" meant to lessen resistance by extensively disrupting sleep, use of strobe lights in conjunction with loud rock music, twisting of thumbs backward, and exposure of detainees to extreme temperatures, threatening dogs, pornography and sexual taunting. Page 2 Audit Finds FBI Reports Of Detainee Abuse Ignored; Tactics Continued Against Detainees The Washington Post May 21, 2008 Wednesday

Detainees in Iraq had water poured down their throats while they were cuffed and kneeling, the FBI agents told investigators. "Some have suggested that the abuse of detainees in U.S. custody was simply the result of a few bad apples acting on their own," Senate Armed Services Committee Chairman Carl M. Levin (D-Mich.) said in a statement. "The report released today by the Department of Justice Inspector General is proof that that is simply not true. The IG found that scores of FBI agents observed the use of harsh interrogation techniques in Iraq, Afghanistan, and Guantanamo Bay." The report also highlights intensifying friction between FBI agents and their military counterparts over these strategies, some of which were eventually repudiated by the Bush administration. After hundreds of interviews and reviews of more than 500,000 documents, investigators working for Inspector General Glenn A. Fine also said they found an interrogation process awash with confusion and conflicting sets of rules. Fine generally praised the FBI's actions but faulted the bureau for waiting until abuses at Iraq's Abu Ghraib prison became public in early 2004 to develop a policy obliging its agents to report similar abuses by other government employees. Even then, the bureau's guidelines remained a source of uncertainty for many agents in the field, the report said. FBI Director Robert S. Mueller III decreed in 2002 that the bureau would not engage in such practices, favoring techniques that built rapport and gleaned more useful information about potential threats, the inspector general report said. But the Defense Department adopted a different view, which prevailed. Eventually FBI agents started conducting interviews on their own rather than participating in sessions with CIA and military counterparts. One unnamed FBI agent tried to build rapport with injured al-Qaeda commander Abu Zubaida after his capture, "to the point of cleaning him up after bowel movements," the report said. The agent later referred to the CIA's much harsher treatment of Abu Zubaida, also known as Zayn al-Abidin Muhammed Hussein, as "borderline torture." Unnamed FBI and Justice officials, however, floated a proposal in late 2002 that recommended that another detainee, alleged al-Qaeda member Mohammed al-Qahtani, be interrogated using similar protocols. Mueller and the chief of the Justice Department's criminal division told investigators they did not see the draft or take part in a specific discussion of the plan, which was never implemented. Bryan Whitman, a Pentagon spokesman, said yesterday that "there is nothing new here. . . . The department has been operating for a number of years now with new and improved guidance with respect to detention operations and interrogation procedures." Sean McCormack, a spokesman for Secretary of State Rice, said the assertions in the report were "pretty vague." The report's release rekindled interest among Democrats on Capitol Hill for obtaining access to documents and testimony underlying the problematic interrogation practices. House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) called the ineffective action by senior government officials in the face of complaints "very disturbing" and said he would ask Ashcroft and others to testify in upcoming hearings. The CIA, for its part, objected to the report's characterization of the agency's methods. "Interrogation methods that the CIA has used in its terrorist detention program were examined and found lawful, by the Department of Justice itself," agency spokesman Mark Mansfield said. The report complains that investigators were improperly blocked by the CIA from questioning Abu Zubaida about his treatment, partly because its officials worried that he might lie. But "the CIA was not convinced when the request was made that [investigators] had an immediate need" to interview the alleged terrorist, Mansfield said. Staff researcher Julie Tate and staff writers Dan Eggen and Joby Warrick contributed to this report.

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HEADLINE: Reports Cite Lack of Uniform Policy for Terrorist Watch List

BYLINE: Ellen Nakashima; Washington Post Staff Writer

BODY: Almost seven years since the attacks of Sept. 11, 2001, the government is still struggling to establish a uniform procedure to put people on its master watch list of known or suspected terrorists, according to two government reports out this month. The reports' findings come after criticism from privacy advocates that problems with the watch list hamper the government's ability to identify terrorists and do not ensure that innocent Americans are not included. A inspector general's report for the office of the Director of National Intelligence found that "the nomination processes and procedures vary across the intelligence community, causing inconsistencies and disproportionate responsibilities in making nominations," according to spokesman Ross Feinstein. A report issued yesterday by the Justice Department's inspector general, Glenn A. Fine, came to much the same conclusion regarding the FBI and six partner agencies. As a result, the director of national intelligence is drafting a policy to ensure that uniform standards and procedures are used across the intelligence community, said Carl Kropf, a spokesman for the National Counterterrorism Center. The center, which falls under the DNI, handles the portion of the watch list that deals with international terrorism cases. Fine's report examined practices from June to October 2007 and described inconsistent methods used by the FBI and other Justice Department agencies to submit names for inclusion on the watch list. The FBI and other agencies share intelligence reports that can, without the agencies' knowledge, form the basis for a person's inclusion on the list. He also noted several violations of FBI policy. Agency field offices, for instance, have submitted names of people who are not subjects of terrorism investigations directly to the National Counterterrorism Center. In doing so, they bypass the required headquarters review that could catch errors, the report says. The FBI does not always update records with new information about the subject of an investigation, the report found, and watch-list nominations from field offices were "often incomplete or contained inaccuracies." Fine found delays of up to four months in submitting information to headquarters, although FBI policy allows only 10 days. "Accurate and current identifying information is critical for identifying suspected terrorists during screening practices, lowering the risk to frontline screening personnel and reducing misidentifications of innocent individuals who are not suspected terrorists," Fine said. Fine noted that the FBI, which is the only Justice Department entity with a formal policy for "nominating" people to the list, made more than 8,000 watch-list nominations between January 2005 and November 2007. The FBI had "sound record management procedures" for standard nominations, he said. The government's terrorist screening database is run by the FBI's Terrorist Screening Center. It consolidates a dozen government watch lists as well as a growing number of new sources, such as airline passenger data. The government has said it will keep the data for as long as 99 years and plans to expand the data sharing to some private-sector groups. As of last April, it contained more than 720,000 records -- one person could have multiple records. For subjects of a counterterrorism investigation, FBI policy requires that the case agent forward a nomination "package" to the Terrorist Review and Examination Unit (TREX) at FBI headquarters. In domestic terrorism cases, the unit sends the nomination directly to the Terrorist Screening Center. In international cases, TREX reviews and approves the nomination, then forwards it to the counterterrorism center. Since a 2005 executive order that required better sharing of terrorism information among agencies, many Justice Department components are now sharing such data with counterterrorism agencies. Field agents with the Drug Enforcement Administration share with the local FBI Joint Terrorism Task Force, often informally. One DEA office reviews field reports and shares summaries of useful information with intelligence community agencies, including the counterterrorism center. Though the DEA did not know it, the center was creating watch-list nominations from DEA intelligence documents, Fine reported. As of October 2007, the counterterrorism center reported that 40 records in its database were sourced to the DEA. Likewise, there were about 350 nominations in the database sourced without its knowledge to the U.S. National Central Bureau, an agency that facilitates international law enforcement cooperation. FBI officials said the bureau has already made some improvements, including requiring field office supervisors to review watch-list nominations for accuracy and completeness.

GRAPHIC: IMAGE; Inspector General Glenn A. Fine cited "inconsistencies."

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HEADLINE: FBI Found to Misuse Security Letters; 2003-06 Audit Cites Probes of Citizens

BYLINE: Dan Eggen; Washington Post Staff Writer

BODY: The FBI has increasingly used administrative orders to obtain the personal records of U.S. citizens rather than foreigners implicated in terrorism or counterintelligence investigations, and at least once it relied on such orders to obtain records that a special intelligence-gathering court had deemed protected by the First Amendment, according to two government audits released yesterday. The episode was outlined in a Justice Department report that concluded the FBI had abused its intelligence-gathering privileges by issuing inadequately documented "national security letters" from 2003 to 2006, after which changes were put in place that the report called sound. A report a year ago by the Justice Department's inspector general disclosed that abuses involving national security letters had occurred from 2003 through 2005 and helped provoke the changes. But the report makes it clear that the abuses persisted in 2006 and disclosed that 60 percent of the nearly 50,000 security letters issued that year by the FBI targeted Americans. Because U.S. citizens enjoy constitutional protections against unreasonable searches and seizures, judicial warrants are ordinarily required for government surveillance. But national security letters are approved only by FBI officials and are not subject to judicial approval; they routinely demand certain types of personal data, such as telephone, e-mail and financial records, while barring the recipient from disclosing that the information was requested or supplied. According to the findings by Justice Department Inspector General Glenn A. Fine, the FBI tried to work around the Foreign Intelligence Surveillance Court, which oversees clandestine spying in the United States, after it twice rejected an FBI request in 2006 to obtain certain records. The court had concluded "the 'facts' were too thin" and the "request implicated the target's First Amendment rights," the report said. But the FBI went ahead and got the records anyway by using a national security letter. The FBI's general counsel, Valerie E. Caproni, told investigators it was appropriate to issue the letters in such cases because she disagreed with the court's conclusions. In total, Fine said, the FBI issued almost 200,000 national security letters from 2003 through 2006, and they were used in a third of all FBI national security and computer probes during that time. Fine said his investigators have identified hundreds of possible violations of laws or internal guidelines in the use of the letters, including cases in which FBI agents made improper requests, collected more data than they were allowed to, or did not have proper authorization to proceed with the case. Fine also pointed to the FBI's "troubling" use of the letters to obtain vast quantities of telephone numbers or other records with a single request. Investigators identified 11 such cases, involving information related to about 4,000 phone numbers, that did not comply with USA Patriot Act requirements or that violated FBI guidelines. The latest findings reignited long-standing criticism from Democrats and civil liberties groups, who said the FBI's repeated misuse of its information-gathering powers underscores the need for greater oversight by Congress and the courts. "The fact that these are being used against U.S. citizens, and being used so aggressively, should call into question the claim that these powers are about terrorists and not just about collecting information on all kinds of people," said Jameel Jaffer, national security director at the American Civil Liberties Union. "They're basically using national security letters to evade legal requirements that would be enforced if there were judicial oversight." Justice spokesman Dean Boyd said in a statement that Fine's report "should come as no surprise" because the survey ended in 2006, before the FBI introduced procedural changes to better control and keep track of requests for the security letters. FBI Assistant Director John Miller said a new automated system will keep better tabs on the letters, and they are now reviewed by a lawyer before they are sent to a telephone company, Internet service provider or other target. "We are committed to using them in ways that maximize their national security value while providing the highest level of privacy and protection of the civil liberties of those we are sworn to protect," Miller said. Fine said that FBI employees "self-reported" 84 possible violations of laws or guidelines in the use of the letters, in 2006, which "was significantly higher than the number of reported violations in prior years." But he noted that his office already had begun its initial investigation into the letters by then, which might have contributed to the increase. About a quarter of the reported incidents were because of mistakes made by telephone or Internet providers, including some in which they provided either the wrong information or disclosed more than the FBI requested. But many of those cases should have been caught by the FBI earlier, Fine said.

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Pre-9/11 Missteps By FBI Detailed http://www.washingtonpost.com/wp-dyn/content/article/2005/06/09/AR...

washingtonpost.com Pre-9/11 Missteps By FBI Detailed Ads by Google Counterterrorism Report Tells of Missed Chances To Find Hijackers Degrees Work in Homeland By Dan Eggen Security and Washington Post Staff Writer Counterterrorism. Friday, June 10, 2005; A01 Degrees Online! www.kaplandegrees- The inability to detect the Sept. 11, 2001, hijacking plot amounts to a "significant online.com failure" by the FBI and was caused in large part by "widespread and longstanding deficiencies" in the way the agency handled terrorism and intelligence cases, according to a report released yesterday.

In one particularly notable finding, the report by Justice Department Inspector General Glenn A. Fine concluded that the FBI missed at least five chances to detect the presence of two of the suicide hijackers -- Nawaf Alhazmi and Khalid Almihdhar -- after they first entered the United States in early 2000.

"While we do not know what would have happened had the FBI learned sooner or pursued its investigation more aggressively, the FBI lost several important opportunities to find Hazmi and Mihdhar before the September 11 attacks," the report said.

Although many of the missteps surrounding Alhazmi and Almihdhar have become well known, Fine's report adds significant new details about the FBI's role in fumbling the case. Previous reports, including the best-selling tome by the independent Sept. 11 commission, focused more heavily on the CIA's failure to track the men after a pivotal terrorist summit meeting in Malaysia.

The FBI said in a statement that it agreed with many of Fine's conclusions but "has taken substantial steps to address the issues presented in the report."

"Today, preventing terrorist attacks is the top priority in every FBI office and division, and no terrorism lead goes unaddressed," the FBI said. "Stronger centralized management has strengthened accountability, improved information sharing, facilitated coordination with outside partners and guided a national counterterrorism strategy."

The 371-page report is the latest in a stream of assessments from Congress, the Sept. 11 panel and other investigators documenting serious shortcomings in the performance of various U.S. government agencies in the months leading up to the hijackings. It also comes amid a wave of criticism of the FBI in recent months over a scrapped $170 million software program and its continuing struggle to attract qualified analysts, translators and other intelligence personnel.

"We believe that widespread and longstanding deficiencies in the FBI's operations and Counterterrorism Program caused the problems we described in this report," Fine's investigators wrote, including a shoddy analytical program, problems sharing intelligence information and "the lack of priority given to counterterrorism investigations by the FBI before September 11."

Jamie S. Gorelick, a deputy attorney general in the Clinton administration who served as a member of the Sept. 11 panel, said the "litany of reports" documenting FBI problems in recent months "has to be a wake-up call" for Director Robert S. Mueller III and other FBI officials.

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"I think they believe they have made significant progress, but there is still quite a bit of work to be done," she said.

Fine's investigation was requested by Mueller shortly after the Sept. 11 attacks, but it has been held up for 11 months over classification and legal issues. It focuses on three major episodes before the Sept. 11 attacks: the missteps in tracking Alhazmi and Almihdhar, the failure to connect al Qaeda operative Zacarias Moussaoui to the hijacking plot, and the handling of a July 2001 memo theorizing that al Qaeda leader Osama bin Laden might be sending operatives to U.S. flight schools.

Although the memo from Phoenix FBI agent Kenneth Williams was proposed as "a theory rather than a warning or a threat," the report concludes that the bureau "failed to fully evaluate, investigate, exploit and disseminate information related to" the memo because of shortcomings in the way its analysis and intelligence programs were set up and run. "Even though it did not contain an immediate warning and was marked routine, Williams's information and theory warranted strategic analysis from the FBI," the report says.

Fine's conclusions about Moussaoui are less clear, because most references to the case have been blacked out by court order. U.S. District Judge Leonie M. Brinkema, who is presiding over Moussaoui's prosecution in Alexandria, blocked release of the full report because of objections from defense attorneys.

Some hints of Fine's conclusions are still evident in the censored version of the report, however. In one paragraph that clearly pertains to the Moussaoui case, the report says agents "did not receive adequate support . . . from the field office or from FBI headquarters" and criticizes the FBI for "disjointed and inadequate review" of requests for secret warrants.

Previous investigations have found that Moussaoui's laptop computer and other belongings were not searched in the weeks after his arrest in Minneapolis because the FBI mistakenly believed it did not have enough evidence to obtain a warrant.

In the case of Alhazmi and Almihdhar, the report said the FBI missed at least five opportunities to possibly locate the pair after Almihdhar was first identified in connection with a Malaysian meeting of al Qaeda operatives.

Even after the FBI learned that the pair had reentered the United States in August 2001, "the FBI did not pursue this as an urgent matter or assign many resources to it," the report found, noting that "it was given to a single, inexperienced agent without any particular priority." Agents within the bureau were also hampered by disagreements over the hazy rules governing the separation between criminal and intelligence investigations.

In the end, the report concludes, "the FBI was not close to locating Mihdhar or Hazmi when they participated in the terrorist attacks on September 11, 2001."

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2 of 2 7/10/2008 3:12 PM EXHIBIT 3 Page 1 FBI Plays Favorites in Discipline, Report Says; Justice IG Says Senior Managers' Miscues Overlooked The Washington Post November 16, 2002 Saturday

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HEADLINE: FBI Plays Favorites in Discipline, Report Says; Justice IG Says Senior Managers' Miscues Overlooked

BYLINE: Dan Eggen, Washington Post Staff Writer

BODY: Senior FBI managers have frequently received more favorable treatment than lower-level employees in high-profile investigations of alleged bureau misconduct, leading to "the strong perception that a double standard of discipline" exists in the FBI, according to a report released yesterday. Glenn A. Fine, the Justice Department's inspector general, also found in a review of FBI internal probes that many top FBI officials, including the current head of the Washington field office, received thousands of dollars in cash bonuses even while they were under investigation for possible wrongdoing. The report sharply criticizes former FBI director Louis J. Freeh for "poor judgment," saying he sent a message that the bureau would "overlook serious allegations of misconduct and even reward the subject of the allegation with a major promotion." Fine concluded that despite some improvements, many of the same problems with double standards remain under FBI Director Robert S. Mueller III. The FBI said in a statement that changes implemented under Freeh in 1997 in the bureau's Office of Professional Responsibility (OPR) have solved many of the problems, and that rules governing the disciplinary process continue to be reviewed. "The mission of the FBI OPR is to fairly and expeditiously identify misconduct wherever it occurs within the organization, and to appropriately punish the involved persons without fear or favor to anyone," the statement said. The inspector general's report is the latest in a series of harsh condemnations of the FBI's personnel system, which lawmakers and internal reviews alike have repeatedly characterized as riddled with favoritism and unfair treatment of underlings. Rank-and-file FBI agents have long complained that senior officials cover for each other during controversy, while lower-level agents shoulder the blame. "The examples of the double standard in this report are an outrage," said Sen. Charles E. Grassley (R-Iowa), a frequent FBI critic who sits on the Senate Judiciary Committee. "Too many top officials got away with lying, cover-ups, obstruction, negligence and using taxpayer money for personal pleasure. . . . The FBI's discipline system still needs serious reform." The report focuses on two notable internal scandals: the follow-up investigations to the deadly 1992 Ruby Ridge standoff, and allegations of phony expenses connected to a 1997 retirement party for former FBI deputy director Larry Potts. Page 2 FBI Plays Favorites in Discipline, Report Says; Justice IG Says Senior Managers' Miscues Overlooked The Washington Post November 16, 2002 Saturday

The standoff in Ruby Ridge, Idaho, began with a shootout on Aug. 21, 1992, that resulted in the deaths of U.S. Marshal William Degan and Sammy Weaver, the young son of white separatist Randy Weaver. The next day, an FBI sniper killed Weaver's wife, Vicki, after an unprecedented "shoot-to-kill" order that was later ruled illegal by a federal court. Fine's investigators concluded that the original investigations into Ruby Ridge "were significantly flawed, perhaps to protect senior officials" from punishment for those orders and that subsequent allegations of cover-up were not properly investigated or punished. In the 1997 Potts case, senior FBI executives allegedly used a phony conference set up at the FBI's Quantico, Va., facility as an excuse to obtain reimbursement for travel expenses to a retirement dinner for Potts. Fine found that "the disciplinary decisions stemming from this case were fundamentally flawed," and called it an "egregious example" of the FBI's double-standard problem. Last week, an official who heads one of the FBI's internal affairs units, John E. Roberts, alleged that he was singled out for ridicule and harassment after appearing on a television interview that had been approved by top FBI brass. Roberts has previously testified in Congress that his career was hampered after he uncovered problems in FBI internal investigations. Contrary to descriptions by several sources last week, the inspector general report released yesterday did not include any findings on Roberts's allegations of retaliation. His case is being examined separately, according to officials familiar with the probe. Many subjects of the internal Ruby Ridge probes were promoted and given bonuses while under investigation, the report said. One prominent name in the Fine report is Van A. Harp, now head of the FBI's large Washington field office, who received $ 22,000 in bonuses while under investigation, according to the inspector general. Fine concluded that Harp should have been disciplined for improperly editing notes and other conduct in a Ruby Ridge probe he helped lead. Fine also found that Harp, while head of the Cleveland field office in 1997, claimed in travel documents that he had attended a board meeting that did not exist on the weekend of the Potts dinner. Harp said yesterday that disparities in the disciplinary system frequently work against FBI executives and complained that he has no recourse to object to Fine's report. "In 33 years, I have never been disciplined," Harp said. "But in this case, I have no opportunity to appeal the factual inaccuracies" in the report.

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washingtonpost.com Justice IG Supports FBI Whistle-Blower

By R. Jeffrey Smith Washington Post Staff Writer Friday, July 30, 2004; Page A17

The Department of Justice's inspector general has concluded that an FBI whistle- blower's allegations against a colleague in her office "were at least a contributing factor" in the firing of the whistle-blower, according to a letter to Congress by FBI Director Robert S. Mueller III.

Inspector General Glenn Fine also concluded that the FBI failed to "adequately pursue" allegations of espionage by whistle-blower Sibel Edmonds against the co-worker, a conclusion that prompted the FBI to review its handling of the allegations and conduct "additional investigation as appropriate," Mueller wrote.

Edmonds, a former translator in the FBI's Washington field office, has alleged that her co-worker attempted to censor translations of wiretapped conversations involving an unnamed group to which the co-worker belonged.

Mueller's letter said, however, that Fine "did not conclude the FBI retaliated against" Edmonds, a former translator under contract to the FBI's counterterrorism program. She is suing the government over her March 2002 dismissal.

The apparent conflict between that conclusion and the assertion that Edmonds was fired partly because of her allegations against another translator has prompted head-scratching at the FBI, said a senior bureau official, who asked not to be named because the case is being litigated and involves classified information. The bureau is "still trying to figure out" what Fine meant, he said.

Mueller's letter was written on July 21 and posted yesterday on the Internet by the Project on Government Oversight, a nonpartisan study group.

In the letter, Mueller, who has told lawmakers that whistle-blowers will be protected, promised that FBI officials will work with Fine to determine whether any agency employees should be disciplined. He said he plans to send a letter to employees reiterating "that I encourage them to raise good faith concerns about mismanagement or misconduct."

Mueller's letter, first reported in Thursday's editions of the New York Times, was written in response to congressional anger over the treatment of Edmonds, who is at least the third FBI whistle-blower to accuse the bureau of retaliation or interference since 2001. That year, Coleen Rowley, a legal counsel in the Minneapolis office, complained to Congress that her office had been blocked by senior officials from pursuing suspicions against terrorist suspect Zacarias Moussaoui.

In 2002, an FBI investigator in Washington, John E. Roberts, accused senior officials of trying to intimidate him for publicizing his concerns on "60 Minutes." Edmonds subsequently appeared on "60 Minutes" to voice her critique of the bureau, although it told her not to do so. She also testified in secret before the Sept. 11 commission.

"It is a vindication," Edmonds said yesterday. But she complained that the bureau "is not doing anything to fix these problems. On the one hand, they are asking the public to be more vigilant regarding this terrorist

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threat. On the other hand, they are not being vigilant within their own department."

Edmonds was born in Iran and reared in Turkey, and has Turkish citizenship. In addition to English, she speaks Farsi, Turkish and Azerbaijani. She has not publicly named the group wiretapped by the FBI but said her Turkish American co-worker attempted to recruit her into it. She has told her lawyer, Mark S. Zaid, that the FBI never interviewed her about the alleged attempted recruitment or spoke to a key witness.

Mueller's letter was sent to Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) and two other committee members who have raised concerns about the FBI's response, Sen. Patrick J. Leahy (D-Vt.) and Sen. Charles E. Grassley (R-Iowa). All declined to comment yesterday. But a Senate official who asked not to be named said Mueller promised to arrange for Fine's report to be partially declassified and provided to Congress in that form.

Staff writer Dan Eggen contributed to this report.

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HEADLINE: FBI Official Rebuked Over Treatment of Whistle-Blower

BYLINE: Dan Eggen, Washington Post Staff Writer

BODY: FBI Director Robert S. Mueller III has formally admonished the bureau official who oversees internal discipline for poor judgment in the treatment of an outspoken whistle-blower, according to documents released yesterday. Robert Jordan, who heads the FBI's Office of Professional Responsibility, also will lose a salary bonus and will be required to take part in counseling, Mueller acknowledged in a letter to Sen. Charles E. Grassley (R-Iowa). The punishments are the latest step in a months-long battle over the case between Mueller and Grassley, who has been sharply critical of what he calls a clubby atmosphere in the senior ranks of the FBI that has served to insulate top employees from discipline. The flap centered on John E. Roberts, a unit chief who leads employee misconduct investigations under Jordan. Roberts told Congress last year that his career had been damaged after he helped uncover flaws in the FBI's handling of the deadly 1992 siege at Ruby Ridge, Idaho. But when Roberts repeated similar criticisms in an October television interview, Jordan allegedly humiliated Roberts during a staff meeting and picked someone else to serve as an acting assistant in the department. The Justice Department's inspector general, Glenn A. Fine, determined that Jordan did not intentionally retaliate against Roberts, but said he exhibited poor judgment and had left "the clear appearance of retaliation" in his actions, according to a memo he wrote that was released by Grassley yesterday. Mueller followed Fine's recommendations in meting out punishment for the incidents. "Mr. Jordan has accepted these measures, and has expressed his intent to learn from his experience and to demonstrate that the events. . . . were isolated incidents," Mueller wrote in a letter to Grassley on Thursday. Grassley said in a statement that "while this is a positive step, I still expect to see answers from the director as to why Mr. Jordan should remain in his current position. "I hope in the future we learn that this case is the exception and not the rule at the FBI," he said. Such a rebuke is rare for a senior executive at the FBI, which has been widely criticized for treating top officials with more leniency than mid- and low-level employees. Mueller, who became director amid promises of reform, has promised lawmakers that retaliation against whistle-blowers will not be tolerated.

EXHIBIT 5 Page 1 Report: 9/11 Detainees Abused; Justice Dept. Review Outlines Immigrant Rights Violations The Washington Post June 3, 2003 Tuesday

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HEADLINE: Report: 9/11 Detainees Abused; Justice Dept. Review Outlines Immigrant Rights Violations

BYLINE: Steve Fainaru, Washington Post Staff Writer

BODY: Authorities violated the civil rights of hundreds of immigrants detained after the Sept. 11, 2001, attacks and demonstrated "a pattern of physical and verbal abuse" at a federal prison where 84 of them were held, according to a long-awaited Justice Department report released yesterday. According to a review by its Office of the Inspector General, the Justice Department instituted a "no bond" policy for all detainees connected to the terrorism probe after the attacks -- even though immigration officials quickly questioned the policy's legality. Without bail, terrorism suspects remained in jail for an average of nearly three months, much longer than the FBI projected before it cleared most of them for release, the report said. In addition, detainees faced monumental difficulties and weeks of delay before they were allowed to make phone calls and find lawyers. Some were kept for months in cells illuminated 24 hours a day and were escorted in handcuffs, leg irons and waist chains. In one Brooklyn detention facility, some detainees complained of being slammed against walls and taunted by guards, claims that inspectors found credible. The 198-page report by Inspector General Glenn A. Fine is the most thorough account to date of the government's handling of 762 immigrants -- most of Arab and South Asian descent -- taken into custody during the nationwide terrorism probe. All had violated immigration laws in some way. The inquiry focused on two detention facilities that housed the majority of the detainees, the federal Metropolitan Detention Center in Brooklyn and the Passaic County jail in Paterson, N.J. In the chaotic aftermath of the attacks on the World Trade Center and the Pentagon, senior Justice Department officials devised a far-reaching strategy to give investigators as much time as possible to determine whether detainees were connected to terrorism, according to the report. The report, which emerged from internal government documents and more than 100 interviews with U.S. officials and detainees, "recognized the enormous challenges and difficult circumstances confronting the [Justice] Department in responding to the terrorist attacks." But the inspector general "found significant problems in the way the September 11 detainees were treated." Only one detainee, Zacarias Moussaoui, who was in custody before the attacks, has been charged with a terrorism- related crime. Page 2 Report: 9/11 Detainees Abused; Justice Dept. Review Outlines Immigrant Rights Violations The Washington Post June 3, 2003 Tuesday

Justice Department spokeswoman Barbara Comstock said the report is "fully consistent with what courts have ruled over and over -- that our actions are fully within the law and necessary to protect the American people. We make no apologies for finding every legal way possible to protect the American public from further terrorist attacks." In a letter attached to the report, Deputy Attorney General Larry Thompson wrote: "The detention of those illegal aliens suspected of involvement with terrorism was paramount. . . . My staff understood that the immigration authorities of the Department should be used to keep such people in custody until we could satisfy ourselves -- by the FBI clearance process -- that they did not mean to do us harm. Given those circumstances, I respectfully submit that it is unfair to criticize the conduct of members of my staff during this period." However, Anthony D. Romero, executive director of the American Civil Liberties Union, called for congressional hearings into the treatment of detainees following the Sept. 11 attacks. The inspector general's report, he said, may form the basis for a lawsuit against Justice Department employees involved in formulating and executing the policy. "I think overall the report clearly talks to the wholesale abuse of immigrants' rights in the aftermath of 9/11," Romero said. "Immigrants weren't the enemy, but the war on terrorism quickly turned into a war on immigrants." Elisa C. Massimino, Washington director for the Lawyers Committee for Human Rights, said that "it's quite clear, more clear than even I expected it to be, that the Justice Department and chiefly the attorney general, was playing this shell game with these detainees, exploiting the immigration rules in order to keep people in custody longer." Among the findings by the Justice Department's independent, internal investigator: * Detainees at the Metropolitan Detention Center, a federal prison in Brooklyn, were subjected to "unduly harsh" conditions. Of 19 MDC detainees interviewed by the inspector general's office, 12 reported physical abuse that included guards slamming detainees into walls while they were being transferred. Ten said they were verbally abused. The inspector general's office interviewed 12 correctional officers; each denied witnessing or participating in any active abuse. Prosecutors, citing lack of evidence, declined to prosecute any of the guards, the report said. However, it revealed that Fine's office is continuing to investigate. The report said the investigation into alleged abuses was hampered by the destruction of hundreds of hours of videotape from MDC's Special Housing Unit, where the detainees were held. Fine, in an interview, said destruction of the videotapes appeared to be the result of a "general policy" to clear up space after hundreds of hours of filming. "There's no indication they were trying to cover anything up," he said. * For several weeks after the attacks, Bureau of Prisons officials imposed a "communications blackout" that severely limited detainees' efforts to contact family and attorneys. Even after the blackout was lifted, the designation of the detainees as "Witness Security" inmates frustrated efforts by attorneys, families "and even law enforcement officials" to determine where a detainee was being held, the report said. * In some cases, the Immigration and Naturalization Service waited more than a month before presenting detainees with charging documents, instead of the agency's stated goal of 72 hours. The delays made it difficult for the detainees to "understand why they were being held, obtain legal counsel, and request a bond hearing," the report concluded. In a Sept. 17, 2001, memorandum, Attorney General John D. Ashcroft declared that the Justice Department sought to prevent future acts of terrorism by arresting and detaining violators who "have been identified as persons who participate in, or lend support to, terrorist activities. Federal law enforcement agencies and the United States Attorneys' Offices will use every available law enforcement tool to incapacitate these individuals and their organizations." A senior federal law enforcement official, who spoke on condition of anonymity, said that among the 762 detainees were some who are "very dangerous and known to be associated with terrorists." One was a roommate of one of the Sept. 11 hijackers, the official said, and another acknowledged attending terrorist training camps in Afghanistan. Citizens of more than 20 countries were among the detainees, according to the report. The largest number, 254, or 33 percent, came from Pakistan, more than twice as many as from any other country. Authorities held suspects on immigration violations such as overstaying their visas or working without proper permits while investigators sought to determine whether they were connected to terrorism. According to the report, the Justice Department issued a "hold until cleared" policy. The policy was "not memorialized in writing," according to the report, but was clearly understood by INS and FBI officials in the field. Page 3 Report: 9/11 Detainees Abused; Justice Dept. Review Outlines Immigrant Rights Violations The Washington Post June 3, 2003 Tuesday

The inspector general found that Stuart Levey, the associate deputy attorney general responsible for oversight of immigration issues, communicated the directive to the INS and the FBI. The policy was based on the mistaken conclusion that suspects would be cleared within days. Instead, the report concluded, the clearance process took an average of 80 days "because it was understaffed and not given sufficient priority by the FBI." As the process lagged, INS officials became concerned about holding detainees indefinitely under the "no bond" policy, and after immigration judges had ordered them removed from the United States, according to the report. The report concluded that the FBI did not adequately separate immigration violators with apparent links to terrorism from those they simply discovered during their manhunt. A detainee's treatment depended largely on the institution to which he was sent after investigators determined whether he was designated as "high interest," "of interest" or "of undetermined interest to the investigation." "High interest" detainees were usually sent to Bureau of Prisons facilities around the country, including the Metropolitan Detention Center. Shortly after the attacks, according to the report, BOP officials ordered the construction of an "Administrative Maximum" Special Housing Unit there to house terrorism suspects. The detainees were kept in their cells at least 23 hours a day. Escort procedures included a "four-man hold" with handcuffs, leg irons and heavy chains anytime the detainees were moved out of their cells. Detainees who were designated as "of interest" or "of undetermined interest" were jailed in "significantly less harsh" conditions, according to the report. At Passaic County jail, the 400 such detainees were generally held in much less restrictive conditions and there was little physical abuse, the report concluded. Staff writer Susan Schmidt and research editor Margot Williams contributed to this report.

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EXHIBIT 6 Page 1 Justice Dept. Probing Whether Gonzales Lied The Washington Post August 31, 2007 Friday Correction Appended

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HEADLINE: Justice Dept. Probing Whether Gonzales Lied

BYLINE: Dan Eggen Paul Kane; Washington Post Staff Writer and

BODY: The Justice Department's inspector general indicated yesterday that he is investigating whether departing Attorney General Alberto R. Gonzales gave false or misleading testimony to Congress, including whether he lied under oath about warrantless surveillance and the firings of nine U.S. attorneys. The disclosure by Inspector General Glenn A. Fine in a letter to Congress signals an expansion of the department's internal investigations into Gonzales's troubled tenure, probes that were not previously known to be focused so sharply on the attorney general and his testimony. Fine's office has also separately expanded a probe into whether senior Gonzales aides improperly considered partisan affiliations when reviewing applicants for nonpolitical career positions. As part of that inquiry, Fine sent hundreds of questionnaires in the past week to former Justice Department job applicants. In the questionnaires, Fine asks applicants whether they were quizzed by political appointees about their party affiliation, favorite politicians and judges, voting history, campaign contributions, and views on the death penalty and terrorism, according to a copy of the Aug. 24 questionnaire obtained by The Washington Post. Recipients are also asked to say whether White House aides participated in the interviews and to confirm if they were asked "what kind of conservative you were (law and order; social; fiscal)." Gonzales announced his resignation Monday after seven months of sustained conflict with Congress over the prosecutor dismissals and other issues, telling aides that his credibility with lawmakers had been too damaged for him to continue. Democrats and some Republicans had urged him to resign amid allegations that he and his aides repeatedly let political considerations taint the law enforcement mission at Justice. The scope and pace of the investigations suggest that public attention on Gonzales will probably continue long after he leaves his job on Sept. 17. But officials declined yesterday to say whether Fine's expanding investigations played a role in the attorney general's resignation. Gonzales had said as recently as late July that he was intent on staying on the job to "fix the problems" at Justice. But his contradictory or murky congressional testimony, including his repeated assertions that he could not recall key events related to the firings, prompted several Senate Democrats to call on the Justice Department to appoint a special prosecutor to consider perjury charges against him. Page 2 Justice Dept. Probing Whether Gonzales Lied The Washington Post August 31, 2007 Friday Correction Appended

Fine, in a letter yesterday to Sen. Patrick J. Leahy (D-Vt.), said his office "has ongoing investigations" related to Gonzales's testimony on several key issues, including the prosecutor firings and allegations of improper hiring practices, the National Security Agency's Terrorist Surveillance Program, the FBI's use of national security letters, and Gonzales's characterizations of his conversation with an aide before a House hearing. Fine had previously confirmed that he was looking at whether Gonzales tried to improperly influence potential testimony by talking about the prosecutor firings with the aide, former senior counselor and White House liaison Monica M. Goodling. Goodling testified in May that she had "crossed the line" by considering political criteria in hiring career professionals at Justice, including looking up political donations by some applicants. She and D. Kyle Sampson, Gonzales's former chief of staff, also admitted using such criteria in the appointment of administrative immigration judges, who are considered career employees. Leahy, chairman of the Senate Judiciary Committee, said in a statement that questions about Gonzales's testimony had "eroded the public's trust and undermined morale" at Justice. "The current Attorney General is leaving, but these questions remain," he said. "It is appropriate that the Inspector General will examine whether the Attorney General was honest with this and other Congressional committees about these crucial issues." Fine has the authority to refer cases for criminal prosecution, including on perjury or obstruction-of-justice charges, if warranted. He and H. Marshall Jarrett, head of the department's Office of Professional Responsibility, can also recommend internal disciplinary action for violations of department rules and guidelines, although many Gonzales aides involved in the controversial actions have left the government. Leahy had asked Fine earlier this month to include parts of Gonzales's testimony in his investigation. Fine said in yesterday's letter that those subjects were already being examined by him and Jarrett, who is working with him on several aspects of the probes. "We believe that through those investigations and other OIG reviews we will be able to assess most of the issues that you raise," Fine wrote, using the abbreviation for the Office of the Inspector General. Fine's office declined to comment on the letter yesterday. The Justice Department also declined to comment. In a letter sent with the questionnaire for former job applicants, Fine said that he and Jarrett "are conducting a joint investigation of allegations regarding Monica Goodling's and others' hiring and other personnel decisions," and that recipients of the letter "may have been interviewed by or spoken with" Goodling or others about job openings at Justice. In addition to Goodling, the letter names Sampson, former White House liaison Jan Williams and former aide Angela Williamson as possible interviewers of job applicants. Williams and Williamson, who no longer work at Justice and have not previously been identified in connection with the investigation, could not be reached for comment. The period covered by the surveys is Jan. 1, 2004, to April 2007, indicating that investigators are also looking at hiring practices under then-Attorney General John D. Ashcroft, who was replaced by Gonzales in February 2005. The questionnaire includes separate sections for applicants who sought political jobs and for those who were interviewed for career positions, but both groups are asked whether they were questioned about political beliefs and ties. Both groups are also asked if they filled out a White House "non-career appointment form" seeking information about their voting history, candidate contributions and campaign experience. None of the key aides who testified about the prosecutor firings on Capitol Hill -- including Goodling and Sampson -- have been approached by Justice investigators, according to defense lawyers and others familiar with the investigation. That indicates that investigators are in the early or middle stages of their inquiries and may not be planning to contact the central figures in the probe until they have finished speaking to others, defense lawyers said. The White House said yesterday that President Bush is unlikely to choose a nominee to replace Gonzales until after Bush returns from a trip to Australia next month. Solicitor General Paul D. Clement will serve as acting attorney general.

CORRECTION-DATE: September 7, 2007

CORRECTION: An Aug. 31 Page One article incorrectly said that Angela Williamson no longer works at the Justice Department. Page 1 Justice Dept. Expands Probe To Include Hiring Practices The Washington Post May 31, 2007 Thursday

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HEADLINE: Justice Dept. Expands Probe To Include Hiring Practices

BYLINE: Dan Eggen; Washington Post Staff Writer

BODY: Justice Department investigators have widened an internal probe of the firings of U.S. attorneys to include a broader examination of hiring practices at the sprawling department, including the troubled Civil Rights Division and programs for beginning lawyers, officials said yesterday. "We have expanded the scope of our investigation to include allegations regarding improper political or other considerations in hiring decisions within the Department of Justice," Inspector General Glenn A. Fine and H. Marshall Jarrett, head of the Office of Professional Responsibility, wrote in joint letters to the House and Senate Judiciary committees. The widening inquiry is likely to pose an additional challenge for Attorney General Alberto R. Gonzales, who is already facing lawmakers' calls for his resignation and a potential no-confidence vote by the Senate. While the U.S. attorney dismissals have prompted wide political criticism, improper hiring practices could be deemed a violation of the law. Justice officials had previously disclosed that Fine and Jarrett's investigation would include hiring decisions made by Monica M. Goodling, a former Gonzales aide who confirmed last week in Senate testimony that she "crossed the line" in considering political affiliation when hiring career prosecutors and immigration judges. Federal law and internal Justice Department rules bar taking such affiliations into account in hiring career personnel, the Justice Department has said. Yesterday's letter revealed that the internal inquiry will examine the hiring practices of Justice officials besides Goodling and outside the attorney general's office. The expansion comes in the wake of claims by former Justice officials that selections by the Attorney General's Honors Program and the department's Summer Law Intern Program were rigged in favor of candidates with connections to conservative or Republican groups. In response, the department this spring agreed to place them back under the control of career officials. The programs were overseen last year by Michael J. Elston, chief of staff to Deputy Attorney General Paul J. McNulty, and both Elston and McNulty approved the recent change. Page 2 Justice Dept. Expands Probe To Include Hiring Practices The Washington Post May 31, 2007 Thursday

The inquiry will also look at hiring practices within the Civil Rights Division, from which dozens of career lawyers have departed. The career personnel repeatedly clashed with Bush administration political appointees, who overruled them on pivotal voting-rights cases in Georgia and Texas. One former senior official in the Civil Rights Division, Bradley Schlozman, replaced one of the fired U.S. attorneys -- Todd P. Graves of Kansas City, Mo. -- and attracted controversy by indicting four workers involved in a voter registration drive sponsored by a liberal group days before the November elections. Both Schlozman and Graves are scheduled to testify Tuesday before the Senate Judiciary Committee. A Gonzales spokesman declined to comment on the broadening of the probe. Sen. Patrick J. Leahy (D- Vt.), chairman of the Senate panel, said in a statement that it reinforces "the need for meaningful congressional oversight of this Justice Department and the Bush administration." The head of the House panel, Rep. John Conyers Jr. (D-Mich.), said he is concerned that "political litmus tests were administered to applicants" inappropriately. The internal inquiry was initially provoked by last year's coordinated firings of nine prosecutors, some of whom alleged they were removed after improper contact from GOP lawmakers or staffers. Parallel investigations by the House and Senate judiciary panels have focused attention on the conduct of senior Gonzales aides and on White House involvement in the prosecutor removals. Gonzales, buoyed by strong support from President Bush, has acknowledged mishandling the prosecutor firings but has rebuffed calls to resign from Democrats and some Republicans. Three of Gonzales's senior aides have quit, and McNulty has announced he will leave this summer. Fine and Jarrett, who began their joint probe in March, could recommend internal disciplinary actions and have the power to refer cases for criminal prosecution. A final report will be made public, officials said. Justice officials said yesterday that a prosecutor at the center of the firings scandal, interim U.S. Attorney Tim Griffin of Little Rock, is leaving office effective tomorrow. Griffin, a former Republican National Committee researcher and aide to presidential adviser Karl Rove, replaced fired prosecutor Bud Cummins. Griffin withdrew his nomination as a permanent replacement amid uproar over his appointment.

LOAD-DATE: May 31, 2007 EXHIBIT 7 Report Assails Political Hiring in Justice Dept. - NYTimes.com http://www.nytimes.com/2008/06/25/washington/25justice.html?pagewan...

June 25, 2008 Report Assails Political Hiring in Justice Dept.

By ERIC LICHTBLAU

Correction Appended

WASHINGTON — Justice Department officials illegally used “political or ideological” factors in elite recruiting programs in recent years, tapping law school graduates with Federalist Society membership or other conservative credentials over more qualified candidates with liberal-sounding résumés, an internal report found Tuesday.

The report, prepared by the Justice Department’s own inspector general and its ethics office, portrays a clumsy effort by senior Justice Department screeners to weed out candidates for career positions whom they considered “leftists,” using Internet search engines to look for incriminating information or evidence of possible liberal bias.

One rejected candidate from Harvard Law School worked for Planned Parenthood. Another wrote opinion pieces critical of the USA Patriot Act and the nomination of Samuel A. Alito Jr. to the Supreme Court. A third applicant worked for Senator Hillary Rodham Clinton and another posted an unflattering cartoon of President Bush on his MySpace page.

Another applicant, a student at the top of his class at Harvard who was fluent in Arabic, was relegated to the “questionable” pile because he was a member of the Council on American-Islamic Relations, a group that advocates civil liberties. And another rejected candidate said in his essay that he was “personally conflicted” about the National Security Agency’s program of wiretapping without warrants.

The report, prepared jointly by the office of the inspector general, Glenn A. Fine, and the Office of Professional Responsibility, is the first in a series of internal reviews growing out of last year’s controversy over the dismissals of nine United States attorneys. The report is the first from an official investigation to support accusations that the Bush Justice Department has been overly politicized.

“When it comes to the hiring of nonpartisan career attorneys, our system of justice should not be corrupted by partisan politics,” said Representative John Conyers Jr., the Michigan Democrat who is chairman of the Judiciary Committee. “It appears the politicization at Justice was so pervasive that even interns had to pass a partisan litmus test.”

The inspector general is investigating other issues related to accusations of politicization in the Justice Department, including the central question of why the United States attorneys were dismissed in late 2006.

Another aspect of the review will look at the work of Monica M. Goodling, a young Justice Department official who testified before Congress in the midst of the controversy over the dismissals last year that she had “crossed the line” in considering politics in the hiring of some immigration judges and others. But the

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findings in Tuesday’s report go well beyond the scope of the problems she acknowledged.

Attorney General Michael B. Mukasey said Tuesday that using politics in hiring career lawyers was “impermissible and unacceptable” and that the department had taken steps to fix the problems. The report recommended further tightening of internal policies, which Mr. Mukasey said he would welcome.

Ideological and political factors can be used in hiring political appointees, but it is illegal to do so under federal civil service law and Justice Department guidelines in hiring career lawyers. Victims can sue, but offenders cannot generally be prosecuted under criminal law.

The report, based on interviews with dozens of officials and a review of e-mail correspondence, found that “many qualified candidates” were rejected from two key recruiting programs — the attorney general’s honors program and the department’s summer intern program — because of what was perceived as their liberal bent.

Those practices, the report concluded, “constituted misconduct and also violated the department’s policies and civil service law that prohibit discrimination in hiring based on political or ideological affiliations.”

The department has used its honors program for many years to attract top entry-level lawyers, luring them away from better-paying jobs in the private sector with the promise of influential careers in public service.

For most of that time, career lawyers in Justice Department divisions, like civil rights or antitrust, chose their own lawyers for the honors program. But in 2002, Attorney General John Ashcroft gave his political aides final say over hundreds of applications in response to what some officials believed was a liberal tilt favoring Ivy League schools.

The effect was clear, the report found, with applicants with a Democratic affiliation rejected “at a significantly higher rate” than those with Republican, conservative or neutral credentials.

For instance, in 2002, all seven of the honors applicants with membership in the American Constitution Society, a liberal group, were rejected, while 27 of 29 applicants with ties to the Federalist Society, a bedrock conservative group, were accepted.

Similarly, 43 of 61 applicants with ties to the Democratic Party were rejected, while 41 of 46 applicants listed as Republicans were accepted. Many of those rejected were regarded as “highly qualified” based on the quality of their schools and other criteria.

Investigators found little evidence of political favoritism from 2003 to 2005, as political appointees at the Justice Department appeared to reduce their role in hiring. But in 2006, under Attorney General Alberto R. Gonzales, the practice rose to new heights.

The report singled out two Justice Department officials on the screening committee — Michael Elston and Esther Slater McDonald. Investigators noted that they were not subject to discipline because they had left the department. Mr. Elston, who was the chief of staff to the deputy attorney general, left in 2007 after several prosecutors said he had tried to intimidate them into keeping silent about their dismissals. Ms. McDonald, a counsel in the associate attorney general’s office, abruptly resigned in October — the day before she was to be interviewed by investigators for the report. Her lawyer declined to make her available

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for an interview after that.

Neither Mr. Elston nor Ms. McDonald, both now working at private law firms in Washington, could be reached for comment Tuesday.

Investigators reviewed e-mail messages from Ms. McDonald in which she indicated that “leftist commentary” or “buzz words like ‘environmental justice’ and ‘social justice’ ” were grounds for rejecting applicants. Membership in liberal organizations like the American Constitution Society, Greenpeace or the Poverty and Race Research Action Council was also seen as a negative mark, the report said.

Peter Keisler, assistant attorney general for the civil division, complained to Mr. Elston after the rejection of several highly qualified applicants that the decisions were “either irrational or so irrational that they are motivated by politics,” the report found.

And Carol Lam, the United States attorney in San Diego who was later among the nine dismissed prosecutors, sent an e-mail message to Mr. Elston to ask why a Stanford Law School graduate with strong grades had been rejected over her recommendation. Ms. Lam suspected it was because the applicant had clerked for an appellate judge appointed by President Bill Clinton, or because she had written an article on sex discrimination, the report said.

Ms. Lam asked if there was something unacceptable in the applicant’s background that she was not aware of. “Not that I know of, Carol,” Mr. Elston responded.

This article has been revised to reflect the following correction:

Correction: June 27, 2008 An article on Wednesday about a report by the inspector general of the Justice Department on the department’s use of political or ideological factors in hiring mistakenly conflated the cases of two rejected job applicants mentioned in the report (but not named in the article). One was described in the report as having worked for Senator Hillary Rodham Clinton; the other was described as having a MySpace page with an unflattering cartoon about President Bush. They were not the same person.

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Lawyers tied to liberals rejected in hiring; Report finds political bias

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Top Justice Department officials looking to hire a generation of conservative entry-level lawyers rejected candidates who interned for Hill Democrats, clerked for Democratic judges, worked for liberal causes or otherwise appeared to have liberal leanings, a report said Tuesday. Even summa cum laude graduates of Yale and Harvard were rejected for interviews because they were said to have a liberal bias, including one who spoke out against the nomination of Samuel A. Alito Jr. to the Supreme Court, according to a joint report by the Justice Department's Office of Inspector General and the Office of Professional Responsibility. One Harvard graduate, rated as a successful intern in the Justice De- partment's Civil Rights Division, was rejected because she worked as an intern at Planned Parenthood. A summa cum laude Harvard graduate was rejected be cause she worked for Sen. Hillary Rodham Clinton. A student who was in the top 5 percent of his class at Cleveland State Law School was rejected because he had worked for Rep. Dennis J. Kucinich, Ohio Democrat. But, according to the report, another Cleveland State Law School student who was in the top 20 percent of the class was accepted because his application did not identify any particular political experience or leanings. The report also noted that a student at Stanford Law School, who graduated with distinction and had a clerkship at the 9th U.S. Circuit Court of Appeals, was rejected because he had clerked for a judge who had been appointed by Presi- dent Clinton. Kevin Olhson, deputy director of the Justice Department's Executive Office for Immigration Review, complained to investigators that a "significant number" of the office's recommended candidates "who could be construed as ... left-wing" or who were "perceived, based on their applications and resumes and so forth, as being more liberal" were rejected Mr. Olhson told the investigators, according to the report, that he reached that conclusion based on the fact that "many of the deselected candidates had had internships with organizations such as Human Rights Watch or the American Civil Liberties Union (ACLU), or had assisted in defending someone held at Guan- tanamo Bay." The report concluded that Justice Department officials "inappropriately" used political and ideological affiliations to pick entry-level lawyers, eliminating candidates with Democratic Party and liberal affiliations at a "significantly higher rate " than those with Republican, conservative or neutral ties. Page 2 Lawyers tied to liberals rejected in hiring; Report finds political bias The Washington Times June 25, 2008 Wednesday

Inspector General Glenn A. Fine and H. Marshall Jarrett, head of the Office of Professional Responsibility, said the selection committee used political and ideological affiliations to "deselect" candidates for the department's Honors Program and Summer Law Intern Program (SLIP) in 2002 and 2006. "The department's screening committee inappropriately used political factors when considering the hiring of career attorneys, when merit should have been the sole criteria," said Mr. Fine. "These actions undermined confidence in the integrity of the department's hiring processes." Mr. Jarrett said the report "exposes the wrongdoing that occurred, and provides recommendations on how to prevent the improper infusion of partisan politics into the workings of the Honors Program and the Summer Law Intern Program in the future." Before 2002, career employees in each department component decided which applicants to interview and select for the Honors Program and SLIP. Under a system implemented by Attorney General John Ashcroft in 2002, a screening committee generally composed of politically appointed employees from the department's leadership offices had to approve candidates for both programs. In addition, political appointees in each department component were encouraged to become more involved in the hiring process, the report said. The Honors Program is a highly competitive program for entry-level department attorneys. SLIP also is highly competitive and is designed for paid summer internships for law students. Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Senate Judiciary Committee, said the report confirmed "what our oversight efforts in this Con- gress have uncovered about the politicization of hiring practices at the department." "It confirms our findings and our fears that the same senior department officials involved with the firing of United States attorneys were injecting improper political motives into the process of hiring young attorneys," he said. "This report and those to follow will serve as a reminder to future presidents - and future congresses - that never again should blatant partisan- ship be made the crux of the Justice Department's hiring practices," he said. Attorney General Michael B. Mukasey said he agreed with all the recommendations made in the report to prevent politics from influencing the screening process. "The department overhauled its Honors Program and Summer Law Intern Program hiring processes last year, and I am pleased that the report remarked positively on these institutional changes," he said. "I have also made clear, and will continue to make clear, that the consideration of political affiliations in the hiring of career department employees is impermissible and unacceptable. "The joint report issued today contains additional recommendations aimed at ensuring that political and ideological affiliations are not inappropriately used to evaluate candidates for these programs; I accept, and have directed the implementation, of all of those recommendations," he said. According to the report, screening committees in 2002 and 2006 improperly deselected candidates for interviews based on political and ideological affiliations, which violated department policy and federal law prohibiting discrimination on the basis of political affiliations. The report said the department is required to use merit-based hiring practices that identify qualified applicants through fair and open competition. The report said that during 2003, 2004 and 2005, the screening committees made few deselections and investigators concluded that those deselection decisions could "reasonably be explained on the basis of a combination of low class rank, low grades and attendance at a lower-tier law school. Page 3 Lawyers tied to liberals rejected in hiring; Report finds political bias The Washington Times June 25, 2008 Wednesday

"We found that in 2006, the screening committee inappropriately used political and ideological affiliations to deselect a significant number of candidates," it said, adding that again those picked mainly had Republican or conservative affiliations. The report said two members of the 2006 screening committee - Esther Slater McDonald, then counsel to the associate attorney general, and Michael Elston, then chief of staff to the deputy attorney general - took political or ideological affiliations into account in deselecting candidates. It said Ms. McDonald wrote disparaging statements about candidates' liberal and Democratic affiliations on the applications she reviewed and voted on that basis. It said that when she was challenged by a career Justice Department attorney detailed to the screening committee, Mr. Elston, who headed the committee, "failed to take appropriate action." The report said "many qualified candidates were deselected by the screening committee in 2006 because of their perceived political or ideological affiliations."

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EXHIBIT 8 Page 1 Administration Opposes Bill on Inspectors General The Washington Post October 2, 2007 Tuesday

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HEADLINE: Administration Opposes Bill on Inspectors General

BYLINE: Stephen Barr

BODY: The Bush administration yesterday lodged a veto threat against a House bill that would strengthen the independence of the government's inspectors general. The bill, sponsored by Rep. Jim Cooper (D-Tenn.), would provide inspectors general with seven-year terms, let them submit budget requests directly to Congress and permit the White House to fire them only for cause. In a policy statement, the Bush administration said it strongly opposes provisions in the bill that would allow inspectors general "to circumvent the president's longstanding, and constitutionally based, control over executive branch budget requests." The White House also strongly objected to the bill's provision that specifies reasons for dismissing an inspector general, calling it an "intrusion on the president's removal authority." Cooper's bill has been scheduled for a vote on the House floor this week and had seemed likely to move forward with little controversy. Sen. Claire McCaskill (D-Mo.) is sponsoring a similar bill in the Senate, which includes recommendations by Sens. Susan Collins (R-Maine) and Joseph I. Lieberman (I- Conn.). Inspectors generals are unusual creatures in the federal bureaucracy. At large agencies, they are appointed by the president and confirmed by the Senate and generally are asked to serve both masters. They are supposed to crack down on waste, fraud and abuse, preferably without causing too much embarrassment for their agency heads, usually political appointees. President Ronald Reagan conducted a purge when he took office in 1981, but since then, presidents have tried to avoid public firings, though some inspectors general have been quietly forced out of their jobs after a new administration took power. This year, Democrats have expressed concern that some inspectors general are too wary of crossing their agency heads. In recent months, questions of independence or accountability have been raised about the inspectors general at the State and Commerce departments, NASA, the Smithsonian Institution and the Legal Services Page 2 Administration Opposes Bill on Inspectors General The Washington Post October 2, 2007 Tuesday

Corporation, and Democrats have cited the controversies as a reason to update the 1978 law that created the inspectors general. "IG independence is not an academic matter but a pressing policy concern," Sen. Daniel K. Akaka (D- Hawaii) said at a summer hearing. Cooper's bill would formally establish an inspector general council, consolidating two councils that were chartered under a presidential executive order. The council would investigate allegations against inspectors general. Under the bill, presidentially appointed inspectors general would be removed only for cause, such as permanent incapacity, neglect of duty or malfeasance. Agency heads who appoint their inspectors general could not fire or transfer them without first informing Congress of the reasons, according to the bill. There are 58 inspector general offices established under the 1978 law. At House and Senate hearings this year, the inspectors general invited to testify offered mixed reviews of whether the proposed legislation would enhance their day-to-day independence. But Glenn A. Fine, inspector general of the Justice Department, testified in support of permitting inspectors general to submit budget requests directly to Congress and make their own case for funding. Offices of inspector general "have been underfunded, particularly when compared with the growth of their agencies," Fine said. Earl E. Devaney, the Interior Department inspector general, said he understood why his counterparts would like the freedom to take budget requests to Congress instead of going through their agencies. He noted, however, that Interior officials have generally supported his budget requests, while "most cuts" were made by Congress.

Retirement Richard Burk, an executive at the Office of Management and Budget, retired Sept. 30 after more than 35 years of government service. Burk was chief architect and manager of the Federal Enterprise Architecture Program in the Office of E-Government and Information Technology at the OMB. Before joining the OMB, he worked at the Department of Housing and Urban Development. Stephen Barr's e-mail address is [email protected]

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HEADLINE: HUD Repeatedly Dismissed Staff Concerns About Contracts

BYLINE: Carol D. Leonnig; Washington Post Staff Writer

BODY: The small Texas property-management company had no experience overseeing hundreds of defaulted homes across the country. It did have two former Reagan administration officials at the helm and warm relations with senior Republi- can appointees at the federal housing agency. During a few weeks in 2004, the three-employee company, Harrington, Moran and Barksdale Inc. (HMBI), went from no government work to landing $71 million in contracts with the U.S. Department of Housing and Urban Devel- opment to oversee the upkeep and sale of defaulted homes. It had previously managed a handful of apartment buildings and development projects. The company's meteoric rise -- and HUD's willingness to bend the rules to accommodate it -- surprised veteran agency contracting specialist Gloria Freeman. "After you've been in the business awhile, you get to know the signs -- 'This is a friend; let's help him out,' " she said in an interview. Not long after Freeman complained to her supervisors, she was asked to return to her previous policy job. Federal investigators are still sorting through HUD contract awards to friends of Secretary Alphonso Jackson, who resigned last month amid a criminal probe. But some career staff members and agency observers say problems in the agency's contracting process run much deeper than Jackson and involve officials who promoted certain companies while rebuffing concerns about their performance and qualifications. The contract awards that staff members questioned took place within programs, heavily promoted by Jackson, to help small, minority-owned businesses get a bigger share of the roughly $1 billion in public contracts HUD awards each year. During Jackson's tenure, the proportion of contracts awarded to small black- and Hispanic-owned businesses, including under the Section 8(a) program, rose from 6 percent to nearly 35 percent. The proportion of contracts open to full competition decreased from 71 percent to 33 percent, federal records show. HUD spokesman Jereon Brown said limiting competition on some contracts was critical to helping "minnows" in the small-business community grow into "whales." Page 2 HUD Repeatedly Dismissed Staff Concerns About Contracts The Washington Post May 18, 2008 Sunday

"Nothing is more American than giving the little guy a chance to shine," he said. "The 8(a) program is good for business, good for innovation, good for the agency and, ultimately, good for America." A Washington Post examination of HUD's contracts shows that HMBI and two other companies won hundreds of millions of dollars in contracts under Jackson while career contracting staff repeatedly raised questions. A Miami property-management company, National Housing Group, which contributed to President Bush's reelec- tion and other Republican campaigns, won $50 million in contracts from 2003 to 2007. Now, its second in command has been indicted for allegedly falsifying reimbursement requests to HUD. Regional staff members at the agency had expressed concern about the company's small size and inexperience. Drayton, Drayton & Lamar, of Georgia, is another minority contractor that has recently had significant success in winning HUD work. Through 2002, the company had received almost $1 million in contracts. But since 2003, it has won $35 million in data-technology and information-management contracts at HUD, despite concerns about its performance. Its president has socialized with a HUD official. Brown said political clout and internal agency connections do not determine contract decisions. "We don't believe any contractor received special treatment. . . . We look at qualifications," he said. Jackson faced criticism in 2006 after acknowledging that he took note of political loyalties. He bragged in a Dallas speech that he had canceled a contract with a business owner who said he didn't like Bush. "Why should I reward someone who doesn't like the president, so they can use funds to try to campaign against the president?" Jackson said. "Logic says they don't get the contract." A subsequent investigation by the HUD inspector general uncovered no proof that Jackson had canceled the contract but found some instances in which he had privately urged staff members to help pro-Republican businesses. Fed- eral procurement laws forbid basing decisions on political views. Jo Baylor, then head of the office of procurement and contracts, testified that Jackson complained about a contractor who openly criticized Bush and that he expressed hostility toward hiring contractors who were Democratic contributors. Jackson's chief of staff, Camille Pierce, and Deputy Secretary Roy Bernardi also said they had heard Jackson tell political appointees to help Republican-owned businesses. HMBI, of Fort Worth, was led by Republicans with significant HUD experience. Chief executive Maurice Barksdale was an assistant secretary to Reagan-era HUD Secretary Samuel R. Pierce Jr. and became a minor figure in a 1980s political favoritism scandal. Its vice president, Albert Moran, also worked at the agency during the Reagan years. Listed as having three employees in 2004 when it won its first contract, HMBI has accumulated $282 million in HUD work, all but $18.8 million of it in small-business awards. Former and current contract officials said staff members questioned HMBI's qualifications. Contract specialist Freeman said she first ran into trouble when she insisted that the company follow procedures and post a required bond. She said her supervisor proposed waiving the requirement. Freeman prevailed, and HMBI posted the money. Tensions mounted again when Freeman objected to a fifth contract award that HMBI was seeking. She and others at HUD feared that the company could not handle more work. Her bosses did not want HMBI to fail or to trigger a Small Business Administration review of the company's abilities, she said. Freeman opposed her bosses' rule-bending efforts to try to avoid that review. Later, she said, she and another official persuaded Barksdale to withdraw the bid. "At that point, the top procurement people -- Jo Baylor and Annette Hancock -- decided my services would no longer be needed because I was a pain in their neck," she said. After moving back to the policy job, she retired in 2005. HUD officials called Freeman a respected expert but said the agency's handling of HMBI contracts was proper. The Government Accountability Office rejected a competitor's allegations that HUD was biased toward HMBI, and six other protests involving the company were rejected. Questions and phone messages relayed to Barksdale were not returned. Miami's National Housing Group (NHG), whose employees and their spouses gave $32,500 to Republican candidates, grew from a 10-employee firm with $490,000 in sales in 1997 to a multimillion-dollar HUD contractor by 2003. Page 3 HUD Repeatedly Dismissed Staff Concerns About Contracts The Washington Post May 18, 2008 Sunday

Since then, it has won HUD contracts worth $50 million to manage multifamily properties in default, with $41 million of that amount closed to any competition. Before the company's selection, HUD staff members questioned its ability to manage such a sizable project, according to records and interviews. After the company's work began, agency staffers in Atlanta and Fort Worth reported they believed that NHG was billing for unexplained work and breaking rules. Jackson defended the company, telling investigators in 2006 that the criticisms were unfounded. The company got into a payment dispute with HUD that led to the end of Ed Girovasi's 33-year contracting career. Girovasi was tasked with reviewing an NHG claim for $8 million in payments. He concluded in December 2005 that the firm had exaggerated its claim and instead owed HUD $250,000, records show. He was reassigned to a policy job weeks later, although agency spokesman Brown said Girovasi took the job voluntarily. The dispute simmered for another six months. Girovasi's successor reached the same conclusion, and HUD rejected the company's claim. Girovasi, who retired a year after his transfer, declined to comment. He told investigators in 2006 that "the high- level interest in NHG was peculiar and caused a delay in issuing a final decision on the claim." This year, after a series of complaints, NHG has no HUD contracts. In February, company principal Wynee Joyner was charged with falsifying claims for HUD reimbursement. Brown said the firm's contracts were properly awarded, but he added that "not all contractors perform as well as expected." NHG, which has sued HUD for unpaid claims, did not return calls seeking comment. Joyner's attorney declined to comment. The contracting success of Drayton, Drayton & Lamar (DDL) fit a similar pattern. Since 2003, it has won $35 million in information-management contracts. In the previous years, it had received just under $1 million in HUD work. When the inspector general investigated Jackson in 2006, an unidentified HUD employee reported concerns that "DDL continues to get contracts despite its poor performance," according to a report. The employee alleged that the company had a patron inside HUD's contracting office. DDL President Robert Dray- ton had socialized with Frank Davis, a close Jackson ally who is now second in command at the office of housing. Davis headed HUD's contract management review board. Brown said the review board does not make final contract decisions. A review of a sample of DDL's contracts, he said, "did not find any evidence of anything improper." Drayton said in an interview that his company wins contracts because of its performance. "I don't think, maybe I'm wrong, that anybody at HUD can just give you a contract," he said. "I don't see how knowing him has been some special help to me." Research editor Alice Crites and staff researcher Julie Tate contributed to this report.

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September 9, 2007 Conscience of a Conservative

By JEFFREY ROSEN

In the fall of 2003, Jack L. Goldsmith was widely considered one of the brightest stars in the conservative legal firmament. A 40-year-old law professor at the University of Chicago, Goldsmith had established himself, with his friend and fellow law professor John Yoo, as a leading proponent of the view that international standards of human rights should not apply in cases before U.S. courts. In recognition of their prominence, Goldsmith and Yoo had been anointed the “New Sovereigntists” by the journal Foreign Affairs.

Goldsmith had been hired the year before as a legal adviser to the general counsel of the Defense Department, William J. Haynes II. While at the Pentagon, Goldsmith wrote a memo for Defense Secretary Donald Rumsfeld warning that prosecutors from the International Criminal Court might indict American officials for their actions in the war on terror. Goldsmith described this threat as “the judicialization of international politics.” No one was surprised when he was hired in October 2003 to head the Office of Legal Counsel, the division of the Justice Department that advises the president on the limits of executive power. Immediately, the job put him at the center of critical debates within the Bush administration about its continuing response to 9/11 — debates about coercive interrogation, secret surveillance and the detention and trial of enemy combatants.

Nine months later, in June 2004, Goldsmith resigned. Although he refused to discuss his resignation at the time, he had led a small group of administration lawyers in a behind-the-scenes revolt against what he considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror. During his first weeks on the job, Goldsmith had discovered that the Office of Legal Counsel had written two legal opinions — both drafted by Goldsmith’s friend Yoo, who served as a deputy in the office — about the authority of the executive branch to conduct coercive interrogations. Goldsmith considered these opinions, now known as the “torture memos,” to be tendentious, overly broad and legally flawed, and he fought to change them. He also found himself challenging the White House on a variety of other issues, ranging from surveillance to the trial of suspected terrorists. His efforts succeeded in bringing the Bush administration somewhat closer to what Goldsmith considered the rule of law — although at considerable cost to Goldsmith himself. By the end of his tenure, he was worn out. “I was disgusted with the whole process and fed up and exhausted,” he told me recently.

After leaving the Office of Legal Counsel, Goldsmith was uncertain about what, if anything, he should say publicly about his resignation. His silence came to be widely misinterpreted. After leaving the Justice Department, he accepted a tenured professorship at Harvard Law School, where he currently teaches. During his first weeks in Cambridge, in the fall of 2004, some of his colleagues denounced him for what they mistakenly assumed was his role in drafting the torture memos. One colleague, Elizabeth Bartholet, complained to a Boston Globe reporter that the faculty was remiss in not investigating any role Goldsmith might have played in “justifying torture.” “It was a nightmare,” Goldsmith told me. “I didn’t say anything to

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defend myself, except that I didn’t do the things I was accused of.”

Now Goldsmith is speaking out. In a new book, “The Terror Presidency,” which will be published later this month, and in a series of conversations I had with him this summer, Goldsmith has recounted how, from his first weeks on the job, he fought vigorously against an expansive view of executive power championed by officials in the White House, including Alberto Gonzales, who was then the White House counsel and who recently resigned as attorney general, and David Addington, who was then Vice President Cheney’s legal adviser and is now his chief of staff. Goldsmith says he is not speaking out for the money; though he received a low six-figure advance for the book, he is, after deducting some minor expenses, donating the advance and any profits to charity. Nor is he speaking out because he disagrees with the basic goals of the Bush administration in the war on terror. “I shared, and I still share, a lot of their concerns about what we have to do to meet the terrorist threat,” he told me. When I asked whether he thought Gonzales should have resigned and whether Addington should follow, he demurred. “I was friends with Gonzales and feel very sorry for him,” he said. “We got along really well. I admired and respected Addington, even when I thought his judgment was crazy. They thought they were doing the right thing.”

Goldsmith told me that he has decided to speak publicly about his battles at the Justice Department because he hopes that “future presidents and people inside the executive branch can learn from our mistakes.” In his view, American presidents for the foreseeable future will, like George W. Bush, face enormous pressure to be aggressive and pre-emptive in taking measures to prevent another terrorist attack in the United States. At the same time, Goldsmith notes, everywhere the president looks, critics — as well as his own lawyers — are telling him that pre-emptive actions may violate international law as well as U.S. criminal law. What, exactly, are the legal limits of executive power in the post-9/11 world? How should administration lawyers negotiate the conflict between the fear of attacks and the fear of lawsuits?

In Goldsmith’s view, the Bush administration went about answering these questions in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, “go-it-alone” view of executive power. As Goldsmith sees it, this strategy has backfired. “They embraced this vision,” he says, “because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.”

I have known Goldsmith since we were at law school together. In addition to being intellectually curious and having good judgment, he always struck me as a pragmatic rather than an ideological conservative. Born in 1962 in Memphis, Goldsmith is the son of a former Miss Teenage Arkansas whose parents ran a celebrated nightclub. Growing up, he had two stepfathers, one of whom he describes in the book as “a mob-connected Teamsters executive” who was “Jimmy Hoffa’s right-hand man and for decades a leading suspect in Hoffa’s disappearance.” His upbringing seems to have contributed to his down-to-earth sensibility. After earning degrees at Washington and Lee University and Oxford, he thrived at Yale Law School, where he developed what he calls “an allergic reaction to Yale’s left-wing jurisprudence and political correctness.” He later clerked for Justice Anthony Kennedy on the Supreme Court and taught law at the Universities of Virginia and Chicago. He is married, and he and his wife have two sons.

When Goldsmith was asked, four years ago, to head the Office of Legal Counsel at the Justice Department,

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he jumped at the opportunity. Working for the office is one of the most prestigious jobs in government: former heads and deputies include the Supreme Court Justices William H. Rehnquist, Antonin Scalia and Samuel A. Alito Jr. The Office of Legal Counsel interprets all laws that bear on the powers of the executive branch. The opinions of the head of the office are binding, except on the rare occasions when they are reversed by the attorney general or the president.

In the post-9/11 era, the office has played a crucial role in providing legal cover to jittery bureaucrats fearful that officials in the White House, Defense and State Departments or the C.I.A. might be prosecuted for their actions in the war on terror. The Justice Department, after all, is the branch of government responsible for prosecutions, and its own prosecutors — as well as independent counsels — would be hard pressed to prosecute someone who had relied on the department’s own opinions in good faith. For this reason, the office has two important powers: the power to put a brake on aggressive presidential action by saying no and, conversely, the power to dispense what Goldsmith calls “free get-out-of jail cards” by saying yes. Its opinions, he writes in his book, are the equivalent of “an advance pardon” for actions taken at the fuzzy edges of criminal laws.

In the Bush administration, however, the most important legal-policy decisions in the war on terror before Goldsmith’s arrival were made not by the Office of Legal Counsel but by a self-styled “war council.” This group met periodically in Gonzales’s office at the White House or Haynes’s office at the Pentagon. The members included Gonzales, Addington, Haynes and Yoo. These men shared a belief that the biggest obstacle to a vigorous response to the 9/11 attacks was the set of domestic and international laws that arose in the 1970s to constrain the president’s powers in response to the excesses of Watergate and the Vietnam War. (The Foreign Intelligence Surveillance Act of 1978, for example, requires that executive officials get a warrant before wiretapping suspected enemies in the United States.) The head of the Office of Legal Counsel in the first years of the Bush administration, Jay Bybee, had little experience with national-security issues, and he delegated responsibility for that subject matter to Yoo, giving him the authority to draft opinions that were binding on the entire executive branch.

Yoo was a “godsend” to a White House nervous about war-crimes prosecutions, Goldsmith writes in his book, because his opinions reassured the White House that no official who relied on them could be prosecuted after the fact. But Yoo’s direct access to Gonzales angered his boss, Attorney General John Ashcroft, according to Goldsmith. (Neither Ashcroft nor Gonzales responded to requests for interviews for this article.) Ashcroft, Goldsmith says, felt that Gonzales and the war council were usurping legal-policy decisions that were properly entrusted to the attorney general, such as the creation of military commissions, which Gonzales supported and Ashcroft never liked.

The matter came to a head in the fall of 2003, when Bybee left the Office of Legal Counsel and Gonzales suggested Yoo as a candidate to lead it. Ashcroft rejected the suggestion. Yoo then recommended his friend Goldsmith to the White House as a suitable alternative. Goldsmith interviewed with Ashcroft at the Justice Department and with Gonzales and Addington at the White House. In his interview with Addington and Gonzales, Goldsmith recalls talking about the dangers of international law and the importance of military commissions. He got the job.

Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he received a phone call from Gonzales: the White House needed to know as soon as possible whether the Fourth Geneva Convention,

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which describes protections that explicitly cover civilians in war zones like Iraq, also covered insurgents and terrorists. After several days of study, Goldsmith agreed with lawyers in several other federal agencies, who had concluded that the convention applied to all Iraqi civilians, including terrorists and insurgents. In a meeting with Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later, Goldsmith drove from the Justice Department to the White House for a meeting with Gonzales and Addington. Goldsmith remembers his deputy Patrick Philbin turning to him in the car and saying: “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.” (Philbin declined to discuss the conversation.)

In his book, Goldsmith describes Addington as the “biggest presence in the room — a large man with large glasses and an imposing salt-and-pepper beard” who was “known throughout the bureaucracy as the best-informed, savviest and most conservative lawyer in the administration, someone who spoke for and acted with the full backing of the powerful vice president, and someone who crushed bureaucratic opponents.” When Goldsmith presented his analysis of the Geneva Conventions at the White House, Addington, according to Goldsmith, became livid. “The president has already decided that terrorists do not receive Geneva Convention protections,” Addington replied angrily, according to Goldsmith. “You cannot question his decision.” (Addington declined to comment on this and other details concerning him in this article.)

Goldsmith then explained that he agreed with the president’s determination that detainees from Al Qaeda and the Taliban weren’t protected under the Third Geneva Convention, which concerns the treatment of prisoners of war, but that different protections were at issue with the Fourth Geneva Convention, which concerns civilians. Addington, Goldsmith says, was not persuaded. (Goldsmith told me that he has checked his recollections of this and other meetings with at least one other participant or with someone to whom he described the meetings soon after.)

Months later, when Goldsmith tried to question another presidential decision, Addington expressed his views even more pointedly. “If you rule that way,” Addington exclaimed in disgust, Goldsmith recalls, “the blood of the hundred thousand people who die in the next attack will be on your hands.”

The conflict over the Geneva Conventions was just the beginning. About six weeks after he started work, Goldsmith became aware that there might be what he calls “potentially problematic” opinions drafted by the Office of Legal Counsel. These were the “torture memos,” one of which was written in August 2002 and the other in March 2003. The August opinion defined torture as pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.” Goldsmith concluded that this opinion defined torture far too narrowly. He also had concerns about the March 2003 opinion, the contents of which remain classified but which dealt with the military interrogation of aliens held outside the United States.

Goldsmith told me that he objected to what he calls the “extremely broad and unnecessary analysis of the president’s commander in chief power” in the memos. The August opinion, for example, boldly concluded that “any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander in Chief authority in the President.” Goldsmith says he believed at the time, and still does, that “this extreme conclusion” would call into question the constitutionality of federal laws that limit interrogation, like the War Crimes Act of 1996, which prohibits

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grave breaches of the Geneva Conventions, and the Uniform Code of Military Justice, which prohibits cruelty and maltreatment. He also found the tone of both opinions “tendentious” rather than cautious and feared that they might be interpreted as an attempt to immunize government officials for genuinely bad acts.

Yoo has acknowledged drafting the August 2002 memo, which he says was the basis for the interrogation of Abu Zubaydah, a top Al Qaeda operative. Yoo also wrote and signed the March 2003 opinion. His friendship with Goldsmith made it especially awkward for Goldsmith to criticize the memos. “I was basically taking steps to fix the mistakes of a close friend, who I knew would be mad about it,” Goldsmith told me. “We don’t talk anymore, and that’s one of the many sad things about my time in government.”

In December 2003, Goldsmith decided that he had to withdraw the March opinion — that is, he had to tell administration officials that they could no longer rely on it. “But figuring out how to withdraw it was very tricky,” he told me, “since withdrawal would frighten everyone who relied on the opinions in a very sensitive area.” In the past, the Office of Legal Counsel had occasionally changed its legal positions between presidential administrations to reflect different legal philosophies, but Goldsmith could find no precedent for the office withdrawing an opinion drafted earlier by the same administration — especially on a matter of such importance. Goldsmith concluded that he could immediately tell the Defense Department to stop relying on the March opinion, since he was confident that it was not needed to justify the 24 interrogation techniques the department was actually using, including two called “Fear Up Harsh” and “Pride and Ego Down,” which were designed to make subjects nervous without crossing the line into coercion. But the withdrawal of the August opinion was a much harder call. The August opinion provided the legal foundation for the C.I.A.’s interrogation program, Goldsmith says, which he considered much closer to the legal line. (He refused to discuss the details of the program.)

Goldsmith, however, says he didn’t have the time or resources to create a replacement opinion immediately. In his initial months on the job, his attention was focused on the more pressing matter of addressing legal issues surrounding the terrorist-surveillance program. In April 2004, however, Goldsmith’s priorities were reversed when the Abu Ghraib scandal broke. Then, in June of that year, Yoo’s August 2002 opinion was leaked to the media. “After the leak, there was a lot of pressure on me within the administration to stand by the opinion,” Goldsmith told me, “and the problem was that I had decided six months earlier that I couldn’t stand by the opinion.”

A week after the leak of Yoo’s August 2002 memo, Goldsmith withdrew the opinion. Goldsmith made the decision himself, in consultation with Philbin and Deputy Attorney General James B. Comey, both of whom, Goldsmith says, agreed it was the right thing to do. He then told Ashcroft, who was, Goldsmith writes, “unbelievably magnanimous: it had happened on his watch, and he could have overruled me, and he didn’t.” Goldsmith was concerned, however, that the White House might overrule him. So he made a strategic decision: on the same day that he withdrew the opinion, he submitted his resignation, effectively forcing the administration to choose between accepting his decision and letting him leave quietly, or rejecting it and turning his resignation into a big news story. “If the story had come out that the U.S. government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” Goldsmith told me. “The timing was designed to ensure that the decision stuck.”

Again, according to Goldsmith, Addington was furious. During his brief time in office, Goldsmith had withdrawn not only the two torture opinions but also others. (He refused to discuss the other opinions with

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me.) In the end, he says, he had withdrawn more opinions than any of his predecessors. Shortly before he resigned, Goldsmith says, Addington confronted him in Gonzales’s office, pulling out of his jacket pocket a 3-by-5 card that listed the withdrawn opinions. “Since you’ve withdrawn so many legal opinions that the president and others have been relying on,” Addington said, according to Goldsmith, “we need you to ... let us know which [of the remaining] ones you still stand by.” Goldsmith recalls that Gonzales, in his own farewell chat with him, said, “I guess those opinions really were as bad as you said.”

Looking back, Goldsmith says, he criticizes but does not vilify Yoo, whom he believes wrote and defended the opinions in good faith. Praising Yoo’s “knowledge, intelligence and energy,” he writes in his book that “the poor quality of a handful of very important opinions is probably attributable to some combination of the fear that pervaded the executive branch, pressure from the White House and Yoo’s unusually expansive and self-confident conception of presidential power.”

I have known Yoo since we were in law school together as well, and I called him for a response. “I think Jack and I had a good-faith disagreement, but I think at some level this was elevating form over substance,” he said. Yoo said that in writing the torture memo, he experienced no pressure from the White House, which he described as “hands off.” Instead, he said, “there was an urgency to decide so that valuable intelligence could be acquired from Abu Zubaydah, before further attacks could occur.” Yoo says it is his understanding that no policies or interrogation techniques changed as a result of the withdrawal of the torture memo, noting that all policies that were legal under the withdrawn opinions are also acknowledged as legal under the opinion that eventually replaced the withdrawn ones. (That opinion was issued in December 2004, six months after Goldsmith’s resignation, and was signed by Daniel Levin, his acting successor as head of the Office of Legal Counsel.)

Yoo also rejects the criticism that his reasoning was unnecessarily broad, describing the criticism of his opinion as something that could have been made only with the benefit of hindsight. “You can claim it’s too broad after the policy has been decided on, but I didn’t have that luxury in the spring of 2002,” he told me. “If you’re providing the legal advice before they choose the policy, how could you know?”

Goldsmith puts the bulk of the responsibility for the excesses of the Office of Legal Counsel on the White House. “I probably had a hundred meetings with Gonzales, and there was only one time I was talking about a national-security issue when Addington wasn’t there,” Goldsmith told me. “My conflicts were all with Addington, who was a proxy for the vice president. They were very, very stressful.”

During his tenure at the Office of Legal Counsel, Goldsmith also clashed with Addington over the detention and trial of suspected terrorists. In January 2004, the Supreme Court agreed to review a lower-court decision approving the detention of Yaser Hamdi, an American citizen then being held as an enemy combatant. A group of administration lawyers including Goldsmith met with Gonzales and Addington in Gonzales’s office to discuss the implications of the case. “Why don’t we just go to Congress and get it to sign off on the whole detention program?” Goldsmith recalls asking, reasoning that the Supreme Court would be less likely to strike down a detention program in wartime if Congress had explicitly supported it. According to Goldsmith, Addington shot down the idea.

Not long before Goldsmith left, the Supreme Court approved in June 2004, in the Hamdi case, the detention power itself but put some modest restrictions on the administration’s ability to detain citizens without trial.

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Afterward, Gonzales, Addington, Goldsmith and others, including the deputy solicitor general, Paul Clement, met again, Goldsmith recalls, and he and Clement again proposed going to Congress to put the administration’s legal strategy on a more sound footing. Once again, Goldsmith told me, the advice was ignored, and the White House continued to operate as if it assumed it could avoid a strong rebuke from the Supreme Court.

That rebuke finally arrived, however, last year in the Hamdan case, when the Supreme Court rejected the administration’s claim that it could try suspected terrorists in military commissions created without Congressional approval. In a further blow to the administration, the court held that the legal protections of “common article 3” of the Geneva Conventions, which contains minimal protections for detainees in wartime, also applied in the war against Al Qaeda. Goldsmith says he believes this ruling was “legally erroneous” but “hugely consequential.” It provided detainees at Guantánamo with more rights than the administration had ever acknowledged, and it implied that the War Crimes Act might be used to prosecute administration officials for their treatment of detainees.

In debates over the detention of suspected terrorists, Goldsmith says he was struck by how Addington’s efforts to expand presidential power ultimately weakened it. In September 2006, two months before the midterm elections, Bush eventually did ask Congress to approve his military commissions, and Congress promptly passed a law that gave him everything he asked for, authorizing many aspects of the military commissions that the Supreme Court had struck down. Although Bush had won the battle, Goldsmith sees the refusal to go to Congress earlier as the cause of an unnecessary Supreme Court defeat. “I’m not a civil libertarian, and what I did wasn’t driven by concerns about civil liberties per se,” he told me. “It was a disagreement about means, not ends, driven by a desire to make sure that the administration’s counterterrorism policies had a firm legal foundation.”

In Goldsmith’s estimation, the unnecessary unilateralism of the Bush administration reached its apex in the controversy over wiretapping and secret surveillance. Goldsmith says he did not originally intend to mention the surveillance controversy in his book. But he says he was infuriated, soon before finishing his manuscript, to be handed a subpoena in Cambridge by F.B.I. agents ordering him to testify in a criminal investigation into the leaks that resulted in stories by James Risen and Eric Lichtblau in The New York Times about the National Security Agency’s warrentless wiretapping. After having a public conversation with the F.B.I. in the middle of Harvard Square about aspects of the terrorist-surveillance program, Goldsmith concluded he could discuss the same topics in his book.

Goldsmith emphasizes that he was not opposed to investigating the leak, which he agreed with President Bush did “great harm to the nation.” In addition, he shared the White House’s concern that the Foreign Intelligence Surveillance Act might prevent wiretaps on international calls involving terrorists. But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. “We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls Addington telling him in February 2004.

In his book, Goldsmith claims that Addington and other top officials treated the Foreign Intelligence Surveillance Act the same way they handled other laws they objected to: “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he writes. Goldsmith’s first experienced this extraordinary concealment, or “strict

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compartmentalization,” in late 2003 when, he recalls, Addington angrily denied a request by the N.S.A.’s inspector general to see a copy of the Office of Legal Counsel’s legal analysis supporting the secret surveillance program. “Before I arrived in O.L.C., not even N.S.A. lawyers were allowed to see the Justice Department’s legal analysis of what N.S.A. was doing,” Goldsmith writes.

Goldsmith also witnessed perhaps the most well-known confrontation over the administration’s aggressive tactics: the scene at Ashcroft’s hospital bed on March 10, 2004, when Gonzales and Andrew Card, the White House chief of staff, visited the hospital to demand that the ailing Ashcroft approve, over Goldsmith and Comey’s objections, a secret program that was about to expire. (Goldsmith refuses to identify the program, but Robert S. Mueller III, the F.B.I. director, has publicly indicated it was the terrorist surveillance program.) As he recalled it to me, Goldsmith received a call in the evening from his deputy, Philbin, telling him to go to the George Washington University Hospital immediately, since Gonzales and Card were on the way there. Goldsmith raced to the hospital, double-parked outside and walked into a dark room. Ashcroft lay with a bright light shining on him and tubes and wires coming out of his body.

Suddenly, Gonzales and Card came in the room and announced that they were there in connection with the classified program. “Ashcroft, who looked like he was near death, sort of puffed up his chest,” Goldsmith recalls. “All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.”

After a bit of silence, Goldsmith told me, Gonzales thanked Ashcroft, and he and Card walked out of the room. “At that moment,” Goldsmith recalled, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly.”

Goldsmith, Comey, Mueller and other Justice Department officials were prepared to resign en masse if the White House implemented the program over their objections. Two days later, Comey had a conversation at the White House with Bush in which the president told him to do whatever was necessary to make the program legal. And in the end, the entire controversy was arguably unnecessary since the program was eventually approved by Congress and brought, at least partially, under the supervision of the FISA Court, as it could have been from the beginning. “I was sure the government was going to melt down,” Goldsmith told me. “No one anticipated they were going to reverse themselves.”

The heroes of Goldsmith’s book — his historical models of presidential leadership in wartime — are Presidents Lincoln and Franklin D. Roosevelt. Both of them, as Arthur Schlesinger noted in his essay “War and the Constitution,” “were lawyers who, while duly respecting their profession, regarded law as secondary to political leadership.” In Goldsmith’s view, an indifference to the political process has ultimately made Bush a less effective wartime leader than his greatest predecessors. Surprisingly, Bush, who is not a lawyer, allowed far more legalistic positions in the war on terror to be adopted in his name, without bothering to try to persuade Congress and the public that his positions were correct. “I don’t know if President Bush understood how extreme some of the arguments were about executive power that some people in his

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administration were making,” Goldsmith told me. “It’s hard to know how he would know.”

The Bush administration’s legalistic “go-it-alone approach,” Goldsmith suggests, is the antithesis of Lincoln and Roosevelt’s willingness to collaborate with Congress. Bush, he argues, ignored the truism that presidential power is the power to persuade. “The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense,” Goldsmith concludes in his book. “This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise.”

Goldsmith says he remains convinced of the seriousness of the terrorist threat and the need to take aggressive action to combat it, but he believes, quoting his conservative Harvard Law colleague Charles Fried, that the Bush administration “badly overplayed a winning hand.” In retrospect, Goldsmith told me, Bush “could have achieved all that he wanted to achieve, and put it on a firmer foundation, if he had been willing to reach out to other institutions of government.” Instead, Goldsmith said, he weakened the presidency he was so determined to strengthen. “I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it,” he said softly. “The Bush administration has borrowed its power against future presidents.”

Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the magazine. He is the author most recently of ‘‘The Supreme Court: The Personalities and Rivalries That Defined America.’’

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ABC News Transcript

September 6, 2007 Thursday

SHOW: NIGHTLINE 11:46 PM EST

FIGHTING FROM INSIDE; TOP JUSTICE DEPARTMENT LAWYER BREAKS HIS SILENCE

ANCHORS: TERRY MORAN

REPORTERS: BRIAN ROSS (NEW YORK, NY USA)

LENGTH: 1414 words

CONTENT: JACK GOLDSMITH, 'THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION", PRESIDENT GEORGE W BUSH, ALBERTO GONZALES, JOHN ASHCROFT, DAVID ADDINGTON, JAMES COMEY, ANDREW CARD TERRY MORAN (ABC NEWS) (Off-camera) A federal judge yesterday ruled that several portions of the USA Patriot Act are unconstitutional. And in Congress, a new fight is brewing over the efforts to expand the use of spy satellites and aircraft by local and federal law enforcement. Well, these are just the latest volleys in an ongoing battle of the government's counterterrorism tactics. But for years, in the inner sanctum of the Bush administration, a few men and women have opposed the wishes of the White House. Jack Goldsmith was one of them, a top lawyer in the Justice Department, who, tonight, for the first time, is breaking his silence. ABC's chief investigative correspondent, Brian Ross, reports. GRAPHICS: A FIGHT FOR JUSTICE BRIAN ROSS (ABC NEWS) (Voiceover) Jack Goldsmith was a 41-year-old self-proclaimed conservative, a former University of Chicago law professor, when he took on the job as head of the Office of Legal Counsel at the Justice Department in the autumn of 2003. In- side, Goldsmith says he found a legal mess. JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) I discovered, in my first weeks in the job, that some of our most important counterterrorism policies were based on legal opinions that I viewed as flawed. BRIAN ROSS (ABC NEWS) (Voiceover) Including what came to be called the torture memos, written by his predecessor, approving CIA interrogation techniques. JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) And not necessarily what was being done, but what might be done in the name of these opinions that I didn't know about. And I realized that I couldn't stand by them because they were so flawed. My first reaction was, I should quit because if I go down this path, it's gonna cause enormous disruption to the administration's most important counterterrorism policies. BRIAN ROSS (ABC NEWS) (Voiceover) But Goldsmith says he stayed on, enduring bitter disputes at the White House over the next 9 1/2 months, disputes that led him to consider re- Page 2 FIGHTING FROM INSIDE; TOP JUSTICE DEPARTMENT LAWYER BREAKS HIS SILENCE ABC News Transcript September 6, 2007 Thursday

signing again and again, as he moved to withdraw or modify the legal opinions he considered flawed. JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) In these critical national security areas, I bent over backwards to try to find ways to allow the President to do what he wanted to do, but I couldn't always do so. BRIAN ROSS (ABC NEWS) (Off-camera) So the law mattered that much? As opposed to the ability to question Khalid Sheikh Mohammed and the other al Qaeda terrorists? JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) Well, I'm not sure that we have to choose between complying with the law and aggressive questioning of Khalid Sheikh Mohammed. I wanted to make sure that we were doing so lawfully. BRIAN ROSS (ABC NEWS) (Off-camera) So inside the administration, you must have seen as, been seen as a real pain. JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) Some people saw me as a pain. A lot of people thought I was doing the right thing. BRIAN ROSS (ABC NEWS) (Voiceover) Goldsmith says his most serious clashes were with Vice President Cheney's lawyer, now chief of staff, David Addington. JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) He was an hugely influential person in designing all of the administration's counterterrorism policies. BRIAN ROSS (ABC NEWS) (Voiceover) But Goldsmith says Addington, who declined to comment to ABC News, was strictly behind the scenes. JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) He was always pushing other people to go out on a limb and do things and take responsibility for things that they weren't always in agreement about. And one never saw him doing the same thing. He was angry at me once for a decision of mine. And he told me that if I ruled that way, the blood of 100,000 people who die in the next attack would be on my hands. BRIAN ROSS (ABC NEWS) (Voiceover) Goldsmith says despite Addington, he stuck to his guns, revealing for the first time just how many key opinions that the Bush administration relied on had to be withdrawn or redone. JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) I did all of this very, very, very reluctantly only because I thought the opinions were so deeply flawed and overbroad. BRIAN ROSS (ABC NEWS) (Off-camera) Not even close calls? JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) I think it's fair to say that the things that I withdrew were not even close calls. Otherwise, I wouldn't have withdrawn them. BRIAN ROSS (ABC NEWS) Page 3 FIGHTING FROM INSIDE; TOP JUSTICE DEPARTMENT LAWYER BREAKS HIS SILENCE ABC News Transcript September 6, 2007 Thursday

(Off-camera) And how many did you withdraw? JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) More than two and less than 10. A lot of them are classified. BRIAN ROSS (ABC NEWS) (Off-camera) So what you found then, were a series of opinions that in your view weren't even close to being correctly based? JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) Basically, every, single opinion that I modified, the only reason I modified it was because I thought it was so far off the mark. BRIAN ROSS (ABC NEWS) (Voiceover) It was one of Goldsmith's decisions on the terrorist surveillance program that led to the infamous nighttime meeting at a Washington hospital, in the room of the seriously ill, then-attorney general, John Ashcroft. JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) It was my decisions, as the head of the Office of Legal Counsel, that gave rise to the dispute. Yes, sir. BRIAN ROSS (ABC NEWS) (Voiceover) In his new book out this week, Goldsmith describes how then-White House counsel, Alberto Gonzales, tried unsuccessfully to get Ashcroft to overrule what Goldsmith had decided and the acting attorney general, Jim Comey, had supported. JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) It was the most extraordinary thing. The attorney general, who, as I say, looked terrible, kind of lifted himself off the bed. And - then he lifted his chest up and color came into his face. And he, he basically explained to them his views in a very clear and articulate way. He said he didn't appreciate the visit under these circumstances. And then he said that in any event, Jim Comey was the acting attorney general. And then he collapsed back into bed. BRIAN ROSS (ABC NEWS) (Voiceover) Goldsmith says it was Ashcroft's wife, Janet, who finally put the White House people in their place. JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) As the White House counsel, Gonzales, and the chief of staff, Andrew Card, walked out of the room, she looked at them and, and stuck her tongue out at them. And it was really an act of disapproval, saying, 'You know, you shouldn't have done that. My husband's very sick." BRIAN ROSS (ABC NEWS) (Off-camera) How appropriate was it for them to go to the hospital with Ashcroft so seriously ill? JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) I certainly did not think it was appropriate for them to be there under the circumstances. I mean, he was obviously incapacitated and they knew it. BRIAN ROSS (ABC NEWS) (Off-camera) But they were that desperate to, to overrule your decision? JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) They were - quite worried about my decision. And so the hospital scene really encapsulates the twin pressures that the administration was always under, this Page 4 FIGHTING FROM INSIDE; TOP JUSTICE DEPARTMENT LAWYER BREAKS HIS SILENCE ABC News Transcript September 6, 2007 Thursday

enormous pressure to stop another attack and this enormous fear about violating criminal laws as they were pushing and being aggressive to stop another attack. BRIAN ROSS (ABC NEWS) (Voiceover) Goldsmith says after nine months of that, he had finally had enough. JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) It was the fight through the White House that I believe were unprecedented. And - it, I basically lasted nine months. And then, I mean, I could have kept going on, but - I really didn't want to at that point. And, I mean... BRIAN ROSS (ABC NEWS) (Off-camera) You did not wanna stay there? JACK GOLDSMITH (FORMER ASSISTANT ATTORNEY GENERAL) No - I did not wanna stay in the government. BRIAN ROSS (ABC NEWS) (Voiceover) I'm Brian Ross for 'Nightline" in New York. TERRY MORAN (ABC NEWS) (Off-camera) And once again, ABC did reach out to the office of David Adding- ton and to the Vice President's press office. Both declined to comment. Our thanks there to Brian Ross. When we come back, the Italian tenor. A look back at the life of Luciano Pavarotti. GRAPHICS: THE ITALIAN TENOR COMMERCIAL BREAK ANNOUNCER 'Nightline" continues from Washington with Terry Moran.

LOAD-DATE: September 7, 2007

LANGUAGE: ENGLISH

PUBLICATION-TYPE: Transcript

EXHIBIT 3 washingtonpost.com: Bush: U.S. Expected to Follow Law On Prisoners http://www.washingtonpost.com/ac2/wp-dyn/A32707-2004Jun10?langua...

washingtonpost.com Bush: U.S. Expected to Follow Law On Prisoners President Is Pressed On Interrogations Memo

By Dana Milbank and Dana Priest Washington Post Staff Writers Friday, June 11, 2004; Page A06

SAVANNAH, Ga., June 10 -- President Bush said Thursday that he expects U.S. authorities to follow the law when interrogating prisoners abroad, but he declined to say whether he believes torture is permitted under the law.

Pressed repeatedly during a news conference here about a Justice Department memo saying torture could be justified in the war on terrorism, Bush said only that U.S. interrogators had to follow the law.

Asked whether he agrees with the Justice Department view, Bush said he could not remember whether he had seen the memorandum. "The authorization I issued was that anything we did would conform to U.S. law and would be consistent with international treaty obligations," he said.

A second questioner asked Bush whether he would authorize "any means necessary" to elicit information from a prisoner who had information about an imminent terrorist attack. The president replied: "What I've authorized is that we stay within U.S. law."

Pointing out that the administration lawyers who wrote the memo believe terrorist suspects could be tortured without violating the law, a third questioner asked whether torture is ever morally justified. "Look, I'm going to say it one more time," Bush replied. "Maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you."

An Aug. 1, 2002, Justice Department memo from the Office of Legal Counsel to White House counsel Alberto R. Gonzales, says torturing suspected al Qaeda members abroad "may be justified" and that international laws against torture "may be unconstitutional." The Defense Department used the Justice memo in crafting a similar March 2003 memo.

The administration is redefining the law as it has been commonly understood, according to senior civilian and military lawyers aware of the Justice Department's interpretation of torture and who asked to remain unnamed.

"They have reinterpreted it to the point that they are meaningless terms," said Kenneth Roth, executive director of Human Rights Watch.

In particular, the Justice Department defined torture in a much narrower way than has been the general standard to date, making "within U.S. law" a definition that might not be accepted elsewhere. For example, torture must be equivalent to such serious injury to cause "organ failure, impairment of bodily function, or even death."

But the Justice Department also concludes that the torture convention, an international law prohibiting torture, does not expressly prohibit cruel and inhumane treatment, which would include a wide range of painful acts that fall short of "serious physical injury such as organ failure, impairment of bodily function, or even death."

"We conclude that the treaty's text prohibits only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for 'cruel, inhuman, or degrading treatment or punishment,' " the department memo said.

The Justice Department said this conclusion was based on the examination of cases brought against individuals under the Torture Victims Protection Act and international legal decisions regarding the use of sensory deprivation techniques.

"These cases make clear," the Justice Department said, "that while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture."

The memo concludes that if U.S. personnel were to be accused or charged with violating the torture convention, "under the circumstances of the current war against Al Qaeda and its allies, application of Section 2340A (the Convention on Torture) interrogations undertaken pursuant to the President's Commander-in-Chief powers may be unconstitutional."

Finally, "even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate criminal liability," the 50-page memo concludes. Therefore, an individual accused of torture could still be acting within U.S. law.

The memo was written to give the CIA guidance and legal protection from civil and criminal prosecution, and to help the agency

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push the limit on what would be acceptable, harsh techniques that the U.S. government would not consider torture.

Minutes after Bush spoke, the administration's view on prisoner interrogation was criticized by French President Jacques Chirac, who has been a constant irritant to Bush. "Yes, we should fight terrorism, but we should not forget the principles on which our civilization rests, such as human rights," Chirac said at a news conference.

Priest reported from Washington. Staff writer Glenn Kessler in Georgia contributed to this report.

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April 2, 2008 ’03 U.S. Memo Approved Harsh Interrogations

By MARK MAZZETTI

Correction Appended

WASHINGTON — The Justice Department in 2003 gave military interrogators broad authority to use extreme methods in questioning detainees and argued that wartime powers largely exempted interrogators from laws banning harsh treatment, according to a memorandum publicly disclosed on Tuesday.

In a sweeping legal brief written in March 2003, when the Pentagon was struggling to determine the appropriate limits for its interrogators, the Justice Department gave the Pentagon much of the same authority it had provided to the Central Intelligence Agency in a memorandum months earlier. Both memorandums were later rescinded by the Justice Department.

The disclosure of the 2003 document, a detailed 81-page opinion written by John C. Yoo, who at the time was the second-ranking official at the Office of Legal Counsel at the Justice Department, is likely to fuel the already intense debate about legal boundaries in the face of a continuing terrorist threat.

Mr. Yoo’s memorandum is the latest document to illuminate the legal foundation that Bush administration lawyers used after the attacks of Sept. 11, 2001, to give the White House broad powers to capture, detain and interrogate suspects around the globe.

The thrust of Mr. Yoo’s brief has long been known, but its specific contents were revealed on Tuesday after government lawyers turned it over to the American Civil Liberties Union, which has sought hundreds of documents from the Bush administration under the Freedom of Information Act.

Some legal scholars said Tuesday that they were amazed at the scope of the memorandum.

“This is a monument to executive supremacy and the imperial presidency,” said Eugene R. Fidell, who teaches military justice at Yale Law School and the Washington College of Law at American University. “It’s also a road map for the Pentagon for fending off any prosecutions.”

The memorandum gave the military broad latitude to use harsh interrogation methods. It reasoned that federal laws prohibiting assault were not applicable to military interrogators dealing with members of Al Qaeda because of White House authority during wartime. It also argued that many American and international laws would not apply to interrogations overseas.

“Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute would be unconstitutional as applied in this context,” it reads.

Justice Department lawyers later rescinded both Mr. Yoo’s memorandum and the similar one written for

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the C.I.A. in August 2002. In a book published last year, Jack Goldsmith, who as head of the Office of Legal Counsel made the decision to rescind the memorandums, criticized the documents, saying they had used careless legal reasoning to provide national security agencies with sweeping interrogation authority.

Written to William J. Haynes II, who at the time was the Pentagon’s general counsel, Mr. Yoo’s document was meant to give legal guidance to Defense Department lawyers as they wrestled with a list of interrogation methods for prisoners at the military prison at Guantánamo Bay, Cuba.

The document explains that Mr. Haynes had asked the Justice Department “to examine the legal standards governing military interrogations of alien unlawful combatants held outside the United States.”

The Pentagon was trying to set clear guidelines for military interrogators after Donald H. Rumsfeld, the defense secretary at the time, withdrew approval for some interrogation techniques opposed by some senior military lawyers.

Ultimately, Mr. Yoo’s memorandum provided the legal foundation for the group’s final report, which defended the use of harsh interrogation methods.

Similar to the document written for the C.I.A. in August 2002, Mr. Yoo’s memorandum offered a narrow definition of what constitutes torture.

“The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result,” Mr. Yoo wrote.

Despite the wide latitude the document gave to the military, the Pentagon never authorized some of the harshest interrogation methods used by the C.I.A., including waterboarding, a simulated drowning technique.

Amrit Singh, a lawyer for the American Civil Liberties Union, said that the Yoo memorandum seemed to give military interrogators “carte blanche” to use any techniques and suggested that it was the legal underpinning for abuses that occurred months later at the Abu Ghraib prison in Iraq.

No Pentagon investigations have found that any senior Bush administration officials were complicit in the abuse at Abu Ghraib.

The investigations did find, however, that for several years after the Sept. 11 attacks, the Pentagon failed to set uniform standards for military interrogations worldwide.

Some legal experts and civil liberties groups have for years criticized the August 2002 memorandum written for the C.I.A. as overly expansive in the authority it gave the agency to interrogate detainees.

That memorandum was also written by Mr. Yoo, who is now a law professor at the University of California, Berkeley, but it was signed by Mr. Bybee and for several years has been commonly known as the Bybee memo.

It was prepared after an internal debate in the government about the methods used to extract information

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from Abu Zubaydah, one of Osama bin Laden’s top aides, after his capture in April 2002.

The document provided a legal foundation for coercive techniques used later against other high-ranking detainees, like Khalid Shaikh Mohammed, who is believed to be the chief architect of the Sept. 11 attacks and was captured in early 2003.

The Detainee Treatment Act passed by Congress in 2005 required the Defense Department to restrict interrogation methods to those set out in the Army Field Manual, which bans coercive interrogations.

Last year, President Bush issued an executive order narrowing the list of approved techniques for the C.I.A. Intelligence officials have said that waterboarding is not on the list of currently approved techniques but that President Bush could authorize its use during an emergency.

Scott Shane contributed reporting.

This article has been revised to reflect the following correction:

Correction: April 9, 2008 An article in some editions last Wednesday about a Justice Department legal memorandum on interrogation methods misstated the day the memo was released in 2003 and referred incorrectly to the resignation of Jay S. Bybee, who signed the memo, in relationship to the memo’s release. It was issued on March 14, a Friday, not a Saturday; and that was two weeks before Mr. Bybee resigned as the head of the Office of Legal Counsel, not the day after he left.

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The Washington Post

April 2, 2008 Wednesday Met 2 Edition

SECTION: A-SECTION; Pg. A01

DISTRIBUTION: Virginia

LENGTH: 1070 words

HEADLINE: Memo: Laws Didn't Apply to Interrogators; Justice Dept. Official in 2003 Said President's Wartime Authority Trumped Many Statutes

BYLINE: Dan Eggen and Josh White; Washington Post Staff Writers

BODY: The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president's ultimate authority as commander in chief overrode such statutes. The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shov- ing detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce "an extreme effect" calculated to "cause a profound disruption of the senses or personality." Although the existence of the memo has long been known, its contents had not been previously disclosed. Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department's use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq. Sent to the Pentagon's general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Depart- ment's Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president's inherent wartime powers. "If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network," Yoo wrote. "In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions." Interrogators who harmed a prisoner would be protected by a "national and international version of the right to self- defense," Yoo wrote. He also articulated a definition of illegal conduct in interrogations -- that it must "shock the conscience" -- that the Bush administration advocated for years. Page 2 Memo: Laws Didn't Apply to Interrogators; Justice Dept. Official in 2003 Said President's Wartime Authority Trumped Many Statutes The Washington Post April 2, 2008 Wednesday

"Whether conduct is conscience-shocking turns in part on whether it is without any justification," Yoo wrote, ex- plaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted. The declassified memo was sent by the Defense and Justice departments late yesterday to Democrats on Capitol Hill, including Sens. Carl M. Levin (Mich.) and Patrick J. Leahy (Vt.), who had seen the document in classified form and pushed for its release. The document is similar, although much broader, than a notorious memo primarily written by Yoo in August 2002 that narrowly defined what constitutes illegal torture. That document was also later withdrawn. In his 2007 book, "The Terror Presidency," Jack Goldsmith, who took over the Office of Legal Counsel after Yoo departed, writes that the two memos "stood out" for "the unusual lack of care and sobriety in their legal analysis." The documents are among the Justice Department legal memoranda that undergirded some of the highly coercive interrogation techniques employed by the Bush administration, including extreme temperatures, head-slapping and a type of simulated drowning called waterboarding. In 2005, amid public controversy over such methods, Congress limited Defense Department officials to interrogation methods listed in the Army's field manual, which was rewritten to forbid many of the aggressive methods. The CIA was exempted, however, and President Bush vetoed recent legislation that would have applied the same requirements to that agency. Yoo, now a law professor at the University of California at Berkeley, defended the memo in an e-mail yesterday, saying the Justice Department altered its opinions "for appearances' sake." He said his successors "ignored the Depart- ment's long tradition in defending the President's authority in wartime." "Far from inventing some novel interpretation of the Constitution," Yoo wrote, "our legal advice to the President, in fact, was near boilerplate." Yoo's 2003 memo arrived amid strong Pentagon debate about which interrogation techniques should be allowed and which might lead to legal action in domestic and international courts. After a rebellion by military lawyers, then-Defense Secretary Donald H. Rumsfeld in December 2002 suspended a list of aggressive techniques he had approved, the most extreme of which were used on a single detainee at the military prison at Guantanamo Bay, Cuba. The prisoner, military investigators later would determine, was subjected to stress positions, nudity, hooding, exposure to dogs and other aggressive techniques. Largely because of Yoo's memo, however, a Pentagon working group in April 2003 endorsed the continued use of extremely aggressive tactics. The top lawyers for each military service, who were largely excluded from the group, did not receive a final copy of Yoo's March memo and did not know about the group's final report for more than a year, officials said. Thomas J. Romig, who was then the Army's judge advocate general, said yesterday after reading the memo that it appears to argue there are no rules in a time of war, a concept Romig found "downright offensive." Martin S. Lederman, a former lawyer with the Office of Legal Counsel who now teaches law at Georgetown Uni- versity, said the Yoo memo helped create a legal environment that allowed prisoner abuses at Abu Ghraib. "What else could have been the source of belief in Iraq that the gloves were off and all laws could be disregarded with impunity?" Lederman asked. "It created a world in which everyone on the ground believed the laws did not apply. It was a law-free zone." In a 2004 memo for the Navy inspector general's office, then-General Counsel Alberto J. Mora objected to the ideas that cruel, inhuman or degrading treatment could be allowed at Guantanamo and that the president's authority is virtually unlimited. Mora wrote that he spoke with Yoo at the Pentagon on Feb. 6, 2003, and that Yoo "glibly" defended his own memo. "Asked whether the President could order the application of torture, Mr. Yoo responded, 'Yes,' " Mora wrote. Yoo denies saying that. Staff researcher Julie Tate contributed to this report.

GRAPHIC: IMAGE Page 3 Memo: Laws Didn't Apply to Interrogators; Justice Dept. Official in 2003 Said President's Wartime Authority Trumped Many Statutes The Washington Post April 2, 2008 Wednesday

IMAGE; "Our legal advice to the President, in fact, was near boilerplate," John Yoo said of the memo.

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National Public Radio (NPR)

October 2, 2007 Tuesday

SHOW: ALL THINGS CONSIDERED 9:00 PM EST

Ex-Official Speaks Against Key Bush Strategies

ANCHORS: ROBERT SIEGEL

LENGTH: 723 words

ROBERT SIEGEL, host: It wasn't exactly Oprah, but today, the Senate Judiciary Committee became a kind of a book club. The guest witness was Jack Goldsmith. His memoir is called "The Terror Presidency." It illuminates some of the most dramatic Bush administration controversies that Goldsmith witnessed from his post within the Justice Department. NPR's Ari Shapiro reports. ARI SHAPIRO: A few years ago, Jack Goldsmith was vilified by the left. Fac- ulty and students at Harvard protested his appointment to the law school. But now that he's had a chance to tell his own story, he's become something of a hero to the crowd that thinks the Bush administration has overstepped its bounds. Goldsmith used to run the Justice Department's Office of Legal Counsel, or OLC. His job was to tell the administration what it can legally do, on everything from interrogation practices to domestic spying. Goldsmith told the Judi- ciary Committee today that OLC leaders have a strong tradition of deferring to their predecessors opinions. But when he arrived at the office in fall of 2003, he found the so-called torture memos authorizing extreme interrogation techniques. Mr. JACK GOLDSMITH (Author, "The Terror Presidency"): The language was so overbroad and unnecessary and extreme that I didn't know what else might be done in the name of the (unintelligible) that I didn't know about that would later be thought to be okay by the Justice Department. SHAPIRO: Goldsmith decided he had to withdraw that memo. He had a similar reaction to the legal justification for the warrantless wiretapping program. Mr. GOLDSMITH: It was the biggest legal mess I've ever encountered. SHAPIRO: Goldsmith said he could not find legal support for some aspects of the program. It was so secret that not even Deputy Attorney General James Comey knew its details. Goldsmith insisted that the White House briefed Comey and then Goldsmith, Comey and Attorney General John Ashcroft all agreed that they could not let parts of the program continue. They refused to reauthorize it. At this point, Ashcroft felt critically ill, Comey became acting attorney general, and two top White House officials went to Ashcroft's bedside to ask him to override Comey and reauthorize the spying program. Goldsmith was there in the hospital room, and he told the committee today that he believes the president ordered the hospital visit. Mr. GOLDSMITH: My recollection is the same as Mr. Comey is that he recalled that it was the president, and it's my recollection as well. But I'm not 100 percent certain about that. Page 2 Ex-Official Speaks Against Key Bush Strategies National Public Radio (NPR) October 2, 2007 Tuesday

SHAPIRO: The bedridden Ashcroft refused to overrule his deputy. And under the threat of a mass Justice Department resignation, President Bush agreed to change the program. As Goldsmith describes it, the White House pushed hard on all of these issues because everyone was plagued by a constant fear of another terrorist attack. Mr. GOLDSMITH: And if that had happened, I would be here on this green felt table and people will be saying, I worried; the people would be saying, you know, you, you legalistic, pin-headed lawyer, you. You, look, you told the president he couldn't do something, and a lot of people got killed. SHAPIRO: On one controversy after another, Goldsmith described the White House inching to the very edge of the law and sometimes straying into areas of questionable legality. One problem from Goldsmith's perspective is that the White House kept its legal opinions secret from almost everyone who could've given important feedback. Goldsmith says that could have just been because the White House was afraid of leaks. But sometimes, as in with the domestic spying matter... Mr. GOLDSMITH: They did not want the legal analysis scrutinized. SHAPIRO: Committee Chairman Patrick Leahy suggested that's because the analysis wouldn't withstand scrutiny. Leahy also pointed out that the law governing domestic surveillance has been amended many times since it was passed in 1978. He asked Goldsmith. Senator PATRICK LEAHY (Democrat, Vermont; Chairman, Senate Judiciary Commit- tee): Did you believe that it would have been possible to accomplish what the administration wanted to do legally if they had been willing to work with a FISA court in Congress? Mr. GOLDSMITH: Yes, sir. I do. SHAPIRO: That, Leahy said, is the tragedy of the whole thing. Ari Shapiro, NPR News, Washington.

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HEADLINE: Layton woman awarded $10.5M

BYLINE: By Lisa Rosetta The Salt Lake Tribune

BODY: A Layton woman who says she got inflammatory bowel disease after taking Accutane was awarded $10.5 million in damages this week in a New Jersey state court. Kamie Kendall, 24, who began taking Accutane to treat acne when she was 12, is the third person who has taken the drug to file suit and win a judgment against Roche. Between the three cases, the pharmaceutical company has been ordered to pay $26 million in damages. "It [IBD] is a very difficult disease to deal with," said one of Kendall's attorneys, Mike Hook, of Pensacola, Fla., who is representing 450 other clients - including as many as 20 Utahns - who say they also experienced the condition after taking the drug. "We're three and zero. Most pharmaceutical cases, the plaintiffs typically don't start out on the winning side," he said. Kendall took Accutane off and on between 1997 and 2004 for cystic acne. In 1999, she was diagnosed with IBD, and six years later had her colon removed, Hook said. Since then, she has suffered from chronic diarrhea. After hearing more than a dozen witnesses - including David Sachar, a doctor who chairs the Food and Drug Ad- ministration's advisory committee on gastroenterology - a jury found that Accutane causes IBD and that Roche's failure to provide an adequate warning on its drug label was a proximate cause of Kendall developing it. The drug's link to IBD is "information the company knew . . . and didn't share," Hook said. Roche, meanwhile, argues the Accutane labeling has contained a warning about inflammatory bowel disease for more than 20 years. "The cause of inflammatory bowel disease remains unknown and there is no reliable scientific evidence that Accu- tane causes inflammatory bowel disease," Roche released in a statement. "The company believes it has significant grounds for appeal and will pursue them." Approved by the FDA in 1982 to treat severe acne, Accutane has been linked to other problems, including birth defects and psychiatric problems. David Graham, associate director for science and medicine in the FDA's Office of Drug Safety, has recommended the market withdrawal of the drug. Hook, who will try two more Accutane cases in July, said the plaintiffs won't collect on the damages "until the appeals run the process," he said. "But we feel very confident on the appeal and feel justice will ultimately be served." [email protected]

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HEADLINE: Diagnosis: Conflict Of Interest

BYLINE: By Daniel Carlat. Daniel Carlat, a professor at Tufts Medical School, is the editor in chief of The Carlat Psychiatry Report.

DATELINE: BOSTON

BODY: THE revelation that the diabetes drug Avandia can potentially cause heart disease is the latest in a string of pharmaceutical disappointments. Vioxx was pulled from the market in 2004 because it doubled the risks for heart attacks and strokes. Eli Lilly recently paid $750 million to settle lawsuits alleging that Zyprexa causes diabetes. Many have criticized the Food and Drug Administration as being too lax about monitoring drug safety. While those criticisms have merit, there is another culprit: the transformation of continuing medical education into an enterprise for drug marketing. The chore of teaching doctors how to practice medicine has been handed to the pharmaceutical industry. As a result, dangerous side effects are rarely on the curriculum. Most states require that doctors obtain a minimum number of credit hours of continuing medical education each year to maintain their medical licenses. Not so long ago, most of these courses were produced and paid for by universities and medical associations. But this has changed drastically over the past decade. According to the most recent data available from the national organization in charge of accrediting the courses, drug-industry financing of continuing medical education has nearly quadrupled since 1998, from $302 million to $1.12 billion. Half of all continuing medical education courses in the United States are now paid for by drug companies, up from a third a decade ago. Because pharmaceutical companies now set much of the agenda for what doctors learn about drugs, crucial information about potential drug dangers is played down, to the detriment of patient care. For example, GlaxoSmithKline footed the bill for dozens of educational courses intended to emphasize the benefits of Avandia over other drugs. An influential Internet-based educational program paid for by the company focused on specific studies that highlighted Avandia's advantages without discussing one of the drug's most worrisome side effects, increased levels of the lipids implicated in heart disease. Avandia's chief competitor, a drug from Takeda Pharmaceuticals called Actos, improves lipid levels but was hardly mentioned. When GlaxoSmithKline's program did cite Actos, it did so tepidly. The information in the course was presented by noted diabetes academics paid by GlaxoSmithKline and other drug companies. GlaxoSmithKline is not the only offender. The major organizations in diabetes education, like the National Diabe- tes Education Initiative, offer dozens of continuing medical education courses on diabetes that are free to doctors and paid for by drug companies. Predictably, each course focuses on the advantages of the sponsor's product and minimizes discussion of dangerous side effects. Page 2 Diagnosis: Conflict Of Interest The New York Times June 13, 2007 Wednesday

Education that doubles as advertising for drug companies occurs in all branches of medicine. Merck promoted Vi- oxx for arthritis by using programs for continuing medical education, which helped contribute to the more than 100 million prescriptions of the drug before it was pulled from the market. According to Dr. David Graham, a safety researcher for the Food and Drug Administration, Vioxx was responsible for up to 140,000 cases of serious heart disease from 1999 until 2004, when it was withdrawn. But the potential cardiac dangers of Vioxx were played down in the courses paid for by Merck. In one instance, the company canceled lectures it had sponsored by a Stanford researcher who had mentioned, in talks to doctors, the cardiac risks from taking Vioxx. Drug companies should never have been allowed to become the primary educator for America's doctors. The Ac- creditation Council for Continuing Medical Education, a nonprofit organization composed of the major medical associations, establishes the rules that govern continuing medical education. According to the guidelines, companies are for- bidden from directly paying doctors who teach continuing medical education courses. But the standards have a loophole that allows drug companies to circumvent the regulations. They hire for-profit ''medical education communication companies'' to organize the courses. These companies receive millions of dollars from drug companies to create course work and to pay doctors to deliver the content. Sometimes, they pay doctors to give lectures to other doctors. Other times, prominent doctors are paid to be listed as the authors of journal articles that are written by ghost writers, a practice that was extensively documented in court records from a lawsuit against Pfizer. Either way, the content is rarely developed by the identified experts. Instead, it is developed by the undisclosed communication company, which is paid by the sponsoring pharmaceutical company. Essentially, this is a new twist on that well-known instrument of corruption, money laundering. Drug companies don't directly pay doctors to teach courses. Instead, they pay someone else to cut the checks. Similarly, the drug companies don't explicitly tell doctors to say good things about their products. Instead, they hire a company to write good things about their products and to pay doctors to deliver the messages. These shenanigans were recently spotlighted by Senator Max Baucus, Democrat of Montana, and Senator Charles Grassley, Republican of Iowa, of the Senate Finance Committee. In April, their committee released a report, two years in the making, concluding that drug companies have used educational grants unethically as a way of marketing their products. In response, the guidelines regarding commercial support for continuing medical education are being reviewed. The solution could hardly be simpler: any continuing medical education that is paid for by the drug industry should not be accredited. Drug companies could still pay for any educational event, article or pamphlet they choose, but their courses and materials would no longer bear the imprimatur and implied credibility of accreditation. Doctors, in turn, would be encouraged to seek medical education from sources that are not financed by drug companies. A renewed commitment to unbiased education would allow doctors to learn about drug risks sooner. This would be good for doctors, and even better for their patients.

URL: http://www.nytimes.com

LOAD-DATE: June 13, 2007

Forbes.com: Face Of The Year: David Graham http://www.forbes.com/2004/12/13/cx_mh_1213faceoftheyear_print.html

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Free Trial Issue of Forbes Gift Subscriptions Pharmaceuticals Face Of The Year: David Graham Matthew Herper, 12.13.04, 6:00 AM ET E-Mail Alerts

On Nov. 18, an unassuming safety researcher from the U.S. Food and Drug Administration sat down before a Senate committee and tore his bosses to shreds. Companies The FDA, he said, had ignored AZN WYE warnings that the pain pill Vioxx was killing people by causing SNY MRK heart attacks and strokes--and he said the agency was incapable of defending the public against Topics another drug disaster. "I could Face Of The Year David Graham have given a very mealy-mouthed statement," says David Graham, FDA Drugs the scientist. "But then I would have been part of the problem." Enter E-Mail Address: FAQ | Privacy Policy For his steadfast advocacy of drug Sign Me Up! safety and his willingness to blow the whistle on his bosses, we're naming David Graham our Face of the Year. "I don't represent the views of the FDA," says drug safety researcher David Graham. "I think that's pretty clear to everyone in America." Without Graham, the Vioxx debacle might have been seen as an isolated event. But because he was willing to step into the spotlight, the withdrawal of Vioxx from the market looks like part of a systemic failure to properly weigh the risks and Mortgage Center more > benefits of drugs. To hear Graham tell it, this is part of a systemic failure to address drug safety on the part of the FDA, a story that reaches back over the entirety of his 20-year career at the agency. That could kick-start a broad debate over what risks we're willing to take every time we swallow pills. In the long run, change would be good for regulators and drug companies.

Graham is an unlikely whistleblower. For years, he has toiled at the FDA's offices, presenting data to advisory committees but not putting his face before the public. He would seem out of place in the often secular world of academic science. A father of six, Graham is a deeply religious Catholic and taught himself biblical Greek so he would be able to read the New Testament in its original language.

During his medical residency, Graham trained as a neurologist. But though he loved solving puzzles, he didn't enjoy day-to-day patient care.

1 of 3 5/28/2008 4:36 PM Forbes.com: Face Of The Year: David Graham http://www.forbes.com/2004/12/13/cx_mh_1213faceoftheyear_print.html

After his residency, he began studying epidemiology--the science of conducting experiments on large groups of people. That led him to public The system cannot find the path specified. health, and the FDA. "Instead of an individual patient at the bedside," he says, "I've got 290 million patients."

Graham's research has been unique in its ability to overcome problems in side effect detection. Drug risks are notoriously hard to track. It's easy to find isolated cases, but hard to know how often a problem is occurring.

Graham has overcome this problem by using only large samples of data collected by managed-care organizations. When big, controlled clinical trials designed to compare two medicines emerge, the results often resemble what Graham managed with a supposedly less-sensitive study. "You don't have a better standard than that," says Bruce Psaty, a safety researcher at the University of Washington. CEO Book Club more > This technique has allowed Graham to raise the alarm early and often about potentially dangerous drugs. He has rarely cried wolf--most of the NEW & NOTABLE medicines he flagged were eventually pulled from the market. Graham Boardroom Bad Boys can be credited to some degree with the withdrawals of Abbott BOOK REVIEW Laboratories' (nyse: ABT - news - people ) Omniflox, Wyeth's (nyse: Hard News WYE - news - people ) Fen-Phen and Redux, Warner-Lambert's Rezulin, Bruce Janicke the over-the-counter drug PPA and, of course, Merck's (nyse: MRK - Seth Mnookin shows how scandal--and news - people ) Vioxx). hubris--toppled a powerful editor, The New York Times' Howell Raines. In his U.S. Senate testimony on Vioxx, Graham expressed reservations about Roche's drug Accutane, Sanofi-Aventis' (nyse: SNY - news - people ) Arava, Pfizer's (nyse: PFE - news - people ) Bextra, AstraZeneca's (nyse: AZN - news - people ) Crestor and Abbott Labs' Search Books Meridia. Title Advanced Search

But Graham says that for his entire career, he's been getting heat from Go his bosses. "You don't get rewards for doing the work that gets a drug New & Notable taken off the market," he says.

At a 1999 advisory panel for Rezulin, a Pfizer diabetes drug that was eventually pulled from the market for causing liver problems, Graham's slide projector broke. His data helped identify a dangerous medicine, but he only received a letter of reprimand for not having backup slides on Beginner Stock Trading Go acetate. "Nobody ever said to me, 'Oh, good job,' " Graham says.

The FDA does not comment on personnel matters. While the agency has said it believes the safeguards on drugs are more than adequate, it has commissioned a report from the Institute of Medicine to analyze the issue in more detail.

But the response to Vioxx, which was taken by 4 million Americans at the time of the recall and which Graham thinks caused 140,000 heart attacks, has been more of the same. Vioxx's maker, Merck, conducted a big trial to prove the drug caused fewer ulcers than an older medicine did. There were more heart attacks and strokes in people taking Vioxx than among those taking the other drug, but the trial's safety monitoring board let the study continue because the potential heart risk had to be balanced against the ulcer benefit.

But the labeling changes for the drug minimized the cardiovascular risk while stating the ulcer benefit--exactly what one would expect if the FDA were going easy on Merck. Alastair Wood, associate dean at Vanderbilt Medical School, says Merck should have been forced to conduct a trial in higher-risk patients sooner. Instead, during Senate testimony, the FDA's Sandra Kweder, deputy director of the office of new drugs, said that the deaths Graham pointed to were just the predictions of a mathematical model.

2 of 3 5/28/2008 4:36 PM Forbes.com: Face Of The Year: David Graham http://www.forbes.com/2004/12/13/cx_mh_1213faceoftheyear_print.html

"What's a theoretical death?" asks Wood. "I guess it's someone else's."

Kweder said during her testimony, "Detecting, assessing, managing and communicating the risks and benefits of prescription and over-the-counter drugs is a highly complex and demanding task. FDA is determined to meet this challenge by employing cutting-edge science, transparent policy and sound decisions based on the advice of the best experts in and out of the agency."

With all this against him, why doesn't Graham just bolt to a comfy job at a university? For one thing, he says, he wouldn't be able to get some of his data. For another, he would have to apply for funding with the National Institutes of Health or, worse, get it from a drug company. But he does not see change coming fast at the FDA. "It's an agency in denial," he says.

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3 of 3 5/28/2008 4:36 PM EXHIBIT 3 FDA defends actions on Vioxx safety - Arthritis - MSNBC.com http://www.msnbc.msn.com/id/6520630/print/1/displaymode/1098/

MSNBC.com

FDA defends actions on Vioxx safety Congress probes agency on arthritis drug safety warnings MSNBC News Services updated 10:08 a.m. ET, Fri., Nov. 19, 2004

WASHINGTON - The American public is “virtually defenseless” if another medication such as Vioxx proves to be unsafe after it is approved for sale, a government drug safety reviewer told a congressional committee Thursday.

The U.S. Food and Drug Administration failed the public in its oversight of Merck & Co Inc.’s withdrawn painkiller Vioxx and is “incapable of protecting America” from another dangerous drug, agency researcher David Graham told Congress.

“I would argue that the FDA as currently configured is incapable of protecting America against another Vioxx,” said Graham, who had warned that the arthritis drug had been linked to an increased risk of heart attack and stroke.

He called the FDA’s actions “a profound regulatory failure.”

Concerns about a possible link between Vioxx and heart problems were building during the drug’s more than four years on the market. The FDA required a warning about heart risks but felt the drug’s benefits made it worth keeping on the market.

Merck Chief Executive Raymond Gilmartin said the company had believed wholeheartedly in Vioxx and had followed a rigorous scientific procedure every step of the way.

“In fact, my wife was taking Vioxx, using Vioxx, up until the day we withdrew it from the market,” Gilmartin told the Senate Finance Committee.

Other dangerous drugs Graham told the committee that there were at least five other drugs on the market today that should be looked at seriously to see whether they should remain there. He cited the acne drug Accutane, the weight loss drug Meridia, the anti-cholesterol drug Crestor, the pain reliever Bextra, and the asthma drug Serevent.

AstraZeneca Pharmaceuticals, maker of Crestor, said it was confident that the drug was safe. “To date, the FDA has not given us any indication of a major concern regarding Crestor,” said spokeswoman Emily Denney.

Another official, Dr. Sandra Kweder, said that she did not agree with Graham’s assessment with the risk posed by the five drugs singled out by Graham.

She said “there is no magic formula” to determine the drugs that pose the most pressing safety concerns. She said there are thousands of drugs on the market, each one carrying risks and benefits. “That is clearly Dr. Graham’s opinion” regarding the five drugs, she said, denying that the FDA intimidates scientists whose opinions differ with superiors.

Merck pulled the drug from the market on Sept. 30 after a study indicated the popular painkiller doubled the risk of heart attacks and stroke when taken for longer than 18 months.

Raymond V. Gilmartin, the company president, said in prepared testimony that Merck acted within four days of learning about the risk.

“Given the availability of alternative therapies and the questions raised by the data withdrawing Vioxx was consistent with an ethic that has driven Merck actions and decisions for more than 100 years,” he said.

The FDA has defended its actions regarding Vioxx. In a statement issued late Wednesday, the agency cited its “well-documented and long-standing commitment to openness and transparency in its review of marketed drugs.”

However, Sen. Charles Grassley, R-Iowa, who chaired the hearing, suggested that an independent board of drug safety might be needed to ensure the safety of medications after they’re approved for the market.

“Consumers should not have to second-guess the safety of what’s in their medicine cabinet,” he said.

Graham told the committee that research indicated that Vioxx caused up to 160,000 heart attacks and strokes. It was responsible for an additional 27,785 deaths from heart ailments from 1999 to 2003, he concluded.

He questioned the agency’s commitment to removing unsafe drugs from the market, since it would call into question their earlier approval.

1 of 2 5/28/2008 4:46 PM FDA defends actions on Vioxx safety - Arthritis - MSNBC.com http://www.msnbc.msn.com/id/6520630/print/1/displaymode/1098/

Sen. Jeff Bingaman, D-New Mexico, said the problem was within the FDA’s own culture.

“The culture within the FDA, being one where the pharmaceutical industry, which the FDA is supposed to regulate, is seen by the FDA as its client instead,” he said.

He called on President Bush to appoint a new head for the agency. Lester Crawford has been acting commissioner of the agency.

Pressure to soften conclusions? In the FDA statement, Crawford said the FDA initiated and paid for reviews of Vioxx and antidepressants after those drugs had hit the market. “That is evidence the system is working,” Crawford said.

Critics contend the agency ignored risks in both instances, then intimidated its own reviewers when they pointed to safety concerns.

In October, the FDA ordered that all antidepressants carry warnings that they “increase the risk of suicidal thinking and behavior” in children who take them.

The FDA’s statement disturbed lawyer Andy Birchfield, who is evaluating thousands of potential cases against Merck on behalf of injured patients.

“How can they see that type of problem and look back and say ’We did everything right’?” Birchfield said. “When they’re not willing to recognize mistakes, we have no hope for them voluntarily taking measures to correct the situation.”

Crawford’s statement did not mention Graham by name, but suggested that the reviewer was a maverick who did not follow agency protocol.

Graham was lead author on a research project that studied the records of almost 1.4 million Kaiser Permanente patients, including 40,405 treated with Pfizer’s Celebrex and 26,748 treated with Vioxx. The study found that high doses of Vioxx tripled risks of heart attacks and sudden cardiac death.

He has told congressional investigators that superiors pressured him to soften his conclusions.

Crawford said in his statement that the reviewer “voluntarily chose to revise his conclusions, and he did so, in his own words, “without compromising my deeply held convictions.”’

The Associated Press and Reuters contributed to this report

URL: http://www.msnbc.msn.com/id/6520630/

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MotherJones.com / News / Feature The Side Effects of Truth In exposing the deadly threat posed by Vioxx, FDA researcher David Graham was serving the public interest. His bosses had other interests in mind." />

Michael Scherer" /> May 01" /> , 2005" />

DR. DAVID GRAHAM IS LOSING WEIGHT AGAIN. His wife noticed first, then his colleagues at the Food and Drug Administration. Graham is a skinny man, and when he drops weight, his cheekbones seem to sit higher on his face. His striped cotton shirts, the frumpy uniform of a government scientist, hang more loosely on his narrow frame. But he isn't eating, and no wonder: Graham, the scientist who brought the Vioxx scandal to the nation's attention, feels like a marked man.

"I'm no longer welcome," he says, sitting in a Rockville, Maryland, coffee shop in early February. He has just left another frustrating day at work, where his boss warned him not to disclose new safety findings about a popular class of painkillers called Cox-2 inhibitors. In a few minutes, he is due at his son's Boy Scout meeting, but all he can talk about now is the exhaustion of working in a drug-safety system in turmoil. "I'm hoping things will calm down, but I don't think the FDA will let that happen," he says. "How do you get off the merry-go-round?"

In August 2004, Graham told his supervisors that, in light of his research, high-dose prescriptions of the painkiller Vioxx, which appeared to triple heart attack rates, should be banned. They told him to be quiet. Their reasoning was circular: That's not the FDA's position; you work here; it can't be yours. Dr. John Jenkins, the FDA director of new drugs, argued that because Graham's findings didn't replicate the drug's warning label, Graham shouldn't be raising the warning. Another supervisor, Anne Trontrell, called Graham's position "particularly problematic since FDA funded this study." Days after Graham's pronouncement, the agency approved Vioxx for use in children.

But Graham was right. The following month, Merck pulled Vioxx from the market after its own research found that the drug, even when taken at low dosages, doubled the risk of heart attack. The announcement provided Graham no vindication. With a scandal on the horizon, the FDA brass now saw him as a danger. They couldn't silence the message, so they tried to take out the messenger.

Dr. Steven K. Galson, the acting director of the drug-evaluation division at the FDA, told reporters that Graham's work "constitutes junk science." Then he sent an email to an editor at the prestigious British medical journal The Lancet, questioning the "integrity" of Graham's data—a suspicion that proved baseless. The FDA's acting commissioner, Dr. Lester Crawford, criticized Graham for evading the agency's "long-established peer review and clearance process." Another official made calls to at least one Senate staffer, disparaging Graham personally and professionally.

Eventually, he was heard. In November he went before the Senate Finance Committee hearing on

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Vioxx. Gaunt (he'd lost 12 pounds over three months) but very lucid, Graham took his place before a bank of cameras, wearing his only sport coat, a 20-year-old blue blazer with brass buttons. He explained his conclusion that patients taking high doses of Vioxx were suffering heart attacks. "The estimates range from 88,000 to 139,000 Americans," he said. "Of these, 30 to 40 percent probably died. For the survivors, their lives were changed forever." According to the top end of those projections, the toll Vioxx had already taken was comparable to the number of Americans killed in Vietnam. "The FDA, as currently configured," Graham told the committee, "is incapable of protecting America against another Vioxx. We are virtually defenseless."

But three months later, as Graham sips iced tea in a Rockville cafe, the FDA is again trying to suppress his research, this time on the effects of pain medications similar to Vioxx. "I think we've already articulated our preference," his supervisor, Dr. Paul Seligman, wrote him in a terse email. The agency doesn't want Graham presenting his latest research to scientists who will be meeting in a few days to discuss the drugs.

David Graham is headstrong, but not insubordinate. He cannot afford to lose his job. His family has just moved to a new house. His wife, Nancy, stopped working as a lawyer so she could homeschool their six children. Really, though, he has no more time to sit here worrying. The Boy Scouts are competing for their merit badges this evening. He finishes his iced tea.

"I've made a commitment," he says, before walking out the door. "I'll weigh myself this evening."

WE LIVE IN THE pharmaceutical era of medicine, a time of tablet-sized miracles and blockbuster serums. More than 70 new drugs are approved every year, adding to the thousands for which American doctors already write some 3 billion annual prescriptions. The medications prolong countless lives and cause millions of harmful side effects. For most patients, the benefits far outweigh the dangers. An aging man will risk diarrhea to restore his virility. A cancer patient will lose her hair in the hope that chemotherapy will save her life. FDA safety officers like Graham spend their lives searching out the other type of pills, the unexpected killers that harm patients after the FDA has approved them.

Since 1988, Graham has called for the removal of 12 drugs from pharmacy shelves, leading to 10 recalls that have likely saved hundreds, if not thousands, of lives. Each recall is an embarrassment for Graham's employer, the FDA's Center for Drug Evaluation and Research, which approved the drugs in the first place. The trouble is that the roughly 2,300 staffers who support the approval process, and the 109, like Graham, who study the safety of drugs after their release, all fall under the same leadership, and that leadership is highly responsive to industry. In recent years, nearly half of the center's $400 million budget has been paid for by drug companies. This arrangement stems from a 1992 agreement, made partly at the urging of AIDS activists, that the FDA would speed up approvals in exchange for "user fees" from industry. "The focus at FDA is efficacy," says Dr. Curt Furberg, a scientist at Wake Forest University who advises the agency. "Safety is a stepchild."

For the pharmaceutical companies the system works just fine. "The drug-approval process [in the United States] is second to none," says Jeff Trewhitt, a spokesman for PHRMA, the drug industry's trade group. "This is an exhaustive process."

Companies eventually recall about 3 percent of their drugs for safety reasons. Behind many of these recalls are scientists like Graham, who often find themselves pitted against their own supervisors.

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"If you say something negative about a drug, they try to shut you up," says Dr. Sidney Wolfe, an FDA watchdog for the group Public Citizen, which has been exposing dangerous drugs for three decades. "David is not the only one, by any means, who has raised issues that later proved to be correct."

In 1998, for instance, an FDA drug reviewer named Dr. Robert Misbin wrote a paper showing that the diabetes drug Rezulin had caused liver failure in a patient during a controlled study. When his bosses tried to prevent him from publishing, Misbin saw firsthand how the system encouraged the sacrifice of public health to the interests of the industry. "One of my supervisors said something to me that I have never forgotten," Misbin says, "that we have to maintain good relations with the drug companies because they are our customers." Misbin eventually went public with his concerns, and the drug was pulled a year later. But he has paid for sticking to his principles. "I am no longer given any good projects," he says.

Dr. Andrew Mosholder, another FDA reviewer, faced similar pressures last year when he completed a study showing that antidepressants increased suicidal behavior in children. Further studies proved that Mosholder's science was spot on. But his bosses told him not to report the findings. When someone with access to the study passed his results to the press, the FDA launched an investigation into the leak. According to Tom Devine at the Government Accountability Project, who later became Graham's lawyer, several scientists were interrogated and threatened with possible jail time.

Such intimidation has worked. In 2002, about one in five FDA scientists told federal investigators that they felt pressure to approve drugs despite reservations about safety and efficacy. Two-thirds said they lacked confidence that the agency adequately monitors drug safety after approval.

DAVID GRAHAM IS A CHILD of the Bronx. One of six children, he spent his teenage years in a cramped home in northern New Jersey, sleeping three to a room. It wasn't until he reached college, at Franklin & Marshall, that he decided to become a doctor. Johns Hopkins Medical School offered him a chance at early admission, and he accepted. His plan was to become a general practitioner in Vermont, where he'd live with Nancy Peterson, a girl he had met in the freshman dormitory. He graduated from med school with the second-highest grades in his class–not the highest, he points out, owing to a single B in the medical history course he cut every other Friday, when he'd ride a bus 75 miles to spend the weekend with Nancy. She married him a year later. "It was worth it," he says.

Hopkins, however, was geared toward academic research, not producing family doctors for the Green Mountain State. And Graham never took to working with patients anyway. "What I really enjoyed was problem solving," he says. So after residencies in internal medicine at Yale and neurology at the University of Pennsylvania, Graham took a job at the FDA in epidemiology. His first major safety review, in 1988, focused on a pill called Accutane, intended for patients with severe, previously untreatable acne. The study proved to be a crash course in the ways of the FDA.

At the time, Accutane was seen as a miracle cure by people just like Graham, who still bears the scars of teenage acne. But the side effects could be horrible. One in four children born to women who got pregnant while using the medication suffered from birth defects. Many women didn't bring their babies to term at all, losing them to miscarriage, and most pregnancies ended in abortion. Graham looked at the data and sounded an alarm. Attempts to educate young women about

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Accutane's risks were failing. "Only the immediate withdrawal of Accutane from the market will work," he wrote to his supervisors in 1990. "The delay only compounds the body count."

That statement was both scientific and political. Graham is opposed to abortion, and the bodies he was referring to were those of the thousands of unborn children whose mothers had taken the drug. Devoutly Catholic, Graham keeps a postcard image of Jesus on his office wall and speaks easily about his calling to service as a Christian. He taught himself ancient Greek so he could read the New Testament as it was written. For him, the scientific process is an extension of his faith. "He really does believe that to know what is real is to know something about the Author of the truth," says John Cavanaugh-O'Keefe, a pro-life activist who met Graham at a prayer group.

But for his managers at the FDA, under pressure from dermatologists and Roche, the drug's manufacturer, Graham's religion was an irrational excuse for his unreasonable claims. "They'd call him the right-to-life nut," says Rep. Bart Stupak (D-Mich.), who recently introduced legislation to restrict patient access to Accutane. "But everything he said has pretty much been proven."

The FDA sided with Roche, rejecting Graham's calls to withdraw the drug and his later pleas to restrict its distribution. In the years that followed, the drug's use among young women nearly tripled, and Roche's annual Accutane revenues exceeded $1 billion. The company designed a voluntary program to encourage birth control among users, but the number of pregnancies continued to rise. Nonetheless, Roche described the program as a success, noting that occasional pregnancies were the inevitable result of birth-control failures. "You can't control everything when you are dealing with human behavior," explains Gail Safian, a Roche spokeswoman.

In 2002, when Roche's patent expired, the FDA helped create a stricter program to ensure that women on the drug used birth control, requiring monthly proof of a negative pregnancy test. Two years later, a panel of scientists found the system was still failing. In November, as the FDA was attacking Graham for his work on Vioxx, the agency announced still stronger restrictions. These measures echo changes Graham asked for more than a decade ago.

SHORTLY AFTER Merck pulled Vioxx from the market last September, Graham began carrying an index card full of phone numbers in his breast pocket. The little scribbles of red and black ink were his lifelines, contacts to a dozen supportive congressional staffers and reporters who'd sought him out after he went public. It had become clear that he wouldn't survive long in his job without help from some heavyweight defenders.

Iowa Senator Chuck Grassley, the Republican chairman of the Finance Committee, became his primary protector. "It's people like this who give us the opportunity to know that something is wrong, helping me do my job," Grassley says. He believes the industry has far too much influence on FDA deliberations over safety. "There should only be one chair at the table," he says, "and that is for the American people."

The only way to resolve the FDA's dangerous conflict of interest, according to Graham, is to create an independent center for drug safety, situated on one side of a fire wall; those who study efficacy and recommend approvals would be on the other side. Researchers would report their findings to scientists with no stake in the performance of the drug. But this is a more drastic change than the agency is likely to implement of its own accord. The FDA has made other gestures: It has announced a new committee to monitor safety issues, asked for an investigation of its procedures by the Institute of Medicine, and proposed reassigning about 20 scientists to work on drug safety.

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Jeff Trewhitt, the spokesman for PHRMA, rejects Graham's solution out of hand. "He seems to start from the premise that the drug-safety program is broken, and we don't accept that premise at all," Trewhitt says, adding that any new regulation "could mean slower delivery of new medicines to patients." That view has also been embraced by the White House, which maintains close ties to the drug industry and its more than 600 lobbyists. During a television interview, Andy Card, chief of staff to President Bush, said that the administration's handling of the Vioxx recall was "a testament to the FDA and how they do their job."

This leaves the prospect of real systemic change at the FDA in the hands of Congress. Indeed, throughout history, safety scandals have regularly sparked congressional action. The agency itself was established by Congress in 1906 after a wave of adulterated or dangerous drugs was exposed in the press, including a "headache powder" containing acetanilide that caused heart attacks. In 1962, Congress began forcing pharmaceutical companies to test drugs after doctors distributed doses of a pill called thalidomide to pregnant mothers, a sedative later shown to cause birth defects.

But the scale of the Vioxx scandal appears, in sheer numbers, far greater than any other in the nation's history, and Congress has yet to respond. Not only has the drug been widely used—peaking in 2001 at 25 million prescriptions—but it has increased by two- or threefold the risk of one of the most common causes of death, heart attack.

IN FEBRUARY, six months after the Vioxx scandal broke, Graham still finds himself struggling to get the word out. His latest research, based on the records of 651,000 California Medicaid patients, raises safety concerns about other drugs in the same class as Vioxx. Mobic, a popular painkiller still viewed as safe, appears to be increasing heart attack rates by about 37 percent. Celebrex, a blockbuster pain medication from Pfizer, increases rates by about 25 percent in high doses. Although the findings are not statistically conclusive, the study adds key data to the medical literature. But Graham's superiors aren't interested. The email Graham receives before heading to his son's Boy Scout meeting asks him to focus only on "the key studies in the published literature." According to Graham, he can present only one unpublished study, a report paid for by Merck.

Graham's most powerful defender comes to his aid: Senator Grassley sends a terse letter to the acting FDA commissioner, Lester Crawford, demanding an explanation of why Graham can't present his data. Grassley gives Crawford a deadline for responding: February 16, opening day of the three-day FDA advisory committee meeting. The gathering is held in an overstuffed Hilton conference room in Gaithersburg, Maryland, a suburb of Washington, D.C., covered with rolling parking lots and B-rated shopping malls. Broadcast trucks ring the hotel, and the hallways are crowded with cameras. Just hours before Steven Galson, Graham's supervisor, is to welcome the 32 scientists assembled from around the country, Crawford intervenes. The backtracking is brazen. "It goes without saying," Galson says in his opening remarks, "that all FDA staff are free to make any presentation without fear of any retaliation." Graham, who is scheduled to speak the next day, leaves the meeting to hastily redesign his presentation.

When he returns the following day, he's wearing the same coat and the same tie. In the previous three weeks, he has lost two more pounds. "I'd like to take this moment to thank Dr. Crawford for his leadership, for making it possible for me to present our preliminary data from a study from California Medicaid," he tells the gathered scientists. He presents his findings on the dangers of Mobic and Celebrex in high doses. About Vioxx, he says the risks associated with taking high doses are "probably more significant than smoking or diabetes or hypertension." Then he challenges the

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FDA to begin shifting its assumptions when it considers a new drug. "Let's start out at the beginning assuming the drug isn't safe."

On the third day of the conference, Graham dips outside the meeting room for a break and is immediately surrounded by a scrum of reporters. The committee of 32 scientists was nearly unanimous in acknowledging the dangers Graham presented to the FDA six months earlier. But they voted by a narrow margin to keep the two most troublesome painkillers, Vioxx and Bextra, on the market, calling instead for tighter restrictions on distribution. Ten of the scientists were consultants for the manufacturers of the drugs in question. Had they not been allowed to vote, according to an analysis by the Center for Science in the Public Interest, both Vioxx and Bextra would have been recalled.

The reporters ask Graham for his reaction. "The fact is, debate is happening," he says. It may be one of the last times he finds himself in the public spotlight as a federal researcher. If the experience of others is repeated, he'll be sidelined within the agency and denied any meaningful projects over the coming year. Despite Grassley's backing, he expects to be pushed out of his job. Standing outside the conference, however, Graham still has the power to speak out—and infuriate his government employer. "Sunlight is the best disinfectant," he tells the surrounding crowd. "This is more sunlight on the problem."

Michael Scherer is the Washington correspondent for Mother Jones.

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6 of 6 7/10/2008 2:28 PM SECTION: A Section; A23

LENGTH: 531 words

HEADLINE: FDA Official Alleges Pressure to Suppress Vioxx Findings

BYLINE: Marc Kaufman, Washington Post Staff Writer

BODY:

A Food and Drug Administration official who sought to estimate the harm done to patients by side effects of the painkiller Vioxx said yesterday that his supervisors tried to suppress his conclusions, according to Sen. Charles Grassley (R-Iowa).

Grassley said in a news release that David Graham, associate science director of the Office of Drug Safety, told him that agency officials "ostracized" him and subjected him to "veiled threats" as he tried to have his study cleared for publication. When a top FDA official suggested "watering down" the report, Graham responded in an e-mail: "I've gone about as far as I can without compromising my deeply-held conclusions about this safety question."

Graham gave Grassley a copy of an e-mail in which another top official wrote that Merck & Co., which made Vioxx, "needs to know before it becomes public so they can be prepared for extensive media attention that this will likely provoke." Merck decided to pull Vioxx from the market last week after a major clinical trial, unrelated to the FDA review, indicated the drug was causing an increased risk of heart attacks and strokes.

Steven Galson, acting director of the FDA's drug center, called Graham's accusations, as relayed by Grassley, "baloney." He said that Graham's study was going through the same review process used for all major drug-safety issues, and that the agency was frustrated by Graham's inability to produce the data he promised. "There was no battle because there was no data," Galson said. "We were waiting all summer, but he missed his deadline."

Graham's analysis was based on a review of 1.4 million Kaiser Permanente patients given Vioxx or one of its competitors, Celebrex. In a limited presentation at a conference in France this summer, Graham said the data showed that more than 27,000 heart attacks and sudden cardiac deaths would have been avoided if the patients had used Celebrex rather than Vioxx.

Grassley, who as chairman of the Senate Finance Committee has initiated a series of reviews of controversial FDA decisions, said: "It seems that while Merck was taking a fresh look at its clinical data in search of trouble, the Food and Drug Administration was challenging its own researcher. Merck knew it had trouble on its hands and took action. At the same time, instead of acting as a public watchdog, the Food and Drug Administration was busy challenging its own expert and calling his work 'scientific rumor.' "

Just after Merck announced that it would recall Vioxx, Galson said in a teleconference that the FDA had received only an abstract of Graham's work and was awaiting the data and full report.

In a statement yesterday, the FDA said that after discussing his abstract with agency officials, "it was Dr. Graham's decision to revise the abstract. . . . He transmitted his completed report to his agency supervisors on September 30. The standard agency review process for this type of report is a more rigorous scientific peer review."

Grassley, however, likened Graham's experience to that of another FDA scientist, Andrew D. Mosholder, who had conflicts with his superiors this year over antidepressants and suicide in young people.

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December 18, 2004 Saturday Late Edition - Final

SECTION: Section A; Column 6; Business/Financial Desk; PFIZER AND CELEBREX: THE OVERVIEW; Pg. 1

LENGTH: 1450 words

HEADLINE: DRUG TRIAL FINDS BIG HEALTH RISKS IN 2ND PAINKILLER

BYLINE: By GARDINER HARRIS; Sheryl Stolberg and Alex Berenson contributed reporting for this article.

DATELINE: WASHINGTON, Dec. 17

BODY: Celebrex, a huge-selling painkiller sold by Pfizer, more than tripled the risk of heart attacks, strokes and death among those taking high doses in a national trial, the company said Friday. The results raised new questions about how well federal drug regulators protect the public and worsened drug makers' already dismal image. Investors reacted by pummeling shares of Pfizer, while some in Congress demanded change at the Food and Drug Administration. Dr. Lester Crawford, the F.D.A.'s acting commissioner, said doctors should consider switching patients who are taking Celebrex to other drugs. He said the F.D.A. had ''great concerns'' about Celebrex and Bextra, and was considering regulatory measures that could include forcing Celebrex's withdrawal or placing severe warnings on its label. Pfizer said that it had no plans to withdraw Celebrex and noted that other studies of the drug had found no increased risk of heart disease. The national trial found that patients taking 800 milligrams a day of Celebrex had 3.4 times the risk of heart disease as those given a placebo, while those taking 400 milligrams had 2.5 times the risk. A study sponsored by Pfizer in a similar patient group given 400 milligrams a day found no increased risk of heart disease. The differing study results are ''confounding,'' said Dr. Joseph Feczko, president for development at Pfizer. He added that regulators needed to analyze all studies of the drug before making any decisions. Celebrex is approved to treat osteoarthritis and rheumatoid arthritis. Physicians in the United States wrote more than 21 million prescriptions for the drug last year to treat a wide range of chronic aches and pains. Celebrex and the other so-called COX-2 inhibitors, Vioxx and Bextra, were originally developed to be easier on the stomach than older medicines like aspirin and Advil. Merck withdrew Vioxx in September after it found that the medicine more than doubled the risk of heart attacks. A recent study of Bextra, a similar drug made by Pfizer, found that it increased the risk of heart attacks among those undergoing heart surgery. Dr. Wayne Ray, a professor of preventive medicine at Vanderbilt University School of Medicine, said doctors should avoid prescribing Celebrex. Dr. Ray wrote a letter to be printed next week in The New England Journal of Medi- cine calling on doctors to stop prescribing Bextra. ''Patients should avoid both drugs until there's better proof of their safety,'' said Dr. Ray, who has served as a consultant to Pfizer. Page 2 DRUG TRIAL FINDS BIG HEALTH RISKS IN 2ND PAINKILLER The New York Times December 18, 2004 Saturday

Dr. David Lynch, a family practice physician in Bellingham, Wash., said that he intended to continue prescribing Celebrex. ''There is a class of patients who are getting tremendous relief from this drug,'' he said. That such dire concerns about an entire class of medicines should arise years after their introduction has led many to suggest that the F.D.A.'s system for uncovering the dangers of drugs is broken. Earlier this year, the agency said that some antidepressants marketed since at least 1988 cause some children and teenagers to become suicidal. Senator Chuck Grassley, Republican of Iowa, who has been holding hearings on the agency's recent actions, said yesterday that ''the status quo can't stand.'' ''At this point, no one can say with confidence whether the worst drug safety problems are behind us or ahead of us,'' he said. Mr. Grassley suggested that a committee of experts evaluate the agency. Dr. David Graham, an F.D.A. critic who works in the agency's office of drug safety, said the Celebrex trial ''is yet more evidence that the F.D.A.'s system for identifying the risks of drugs -- both before and after approval -- is inadequate.'' The five-year study of Celebrex undertaken by the National Cancer Institute was intended to explore whether the drug prevented colon polyps and colorectal cancer. More than 2,000 patients were split into three groups and given either Celebrex or a placebo for an average of 33 months. Those taking Celebrex were given either 200 milligram pills twice a day or 400 milligrams twice a day. A special data-safety monitoring committee looked at interim results from the study and found that those given the higher dose of Celebrex had 3.4 times the risk of a cardiac event -- like heart attacks and strokes -- as those given a placebo, and those given the lower dose had 2.5 times the risk of such an event. There were six cardiac events among those given a placebo, 15 among those on the lower dose of Celebrex and 20 among those on the higher dose. The problems led the cancer institute to end the trial early. In the wake of the results, Dr. Elias Zerhouni, director of the National Institutes of Health, called for a full review of the more than 40 N.I.H.-sponsored trials involving Celebrex. Patients in all of these trials will be told of the study results, and study investigators and safety committee will be asked to review whether the trials should continue, Dr. Zerhouni said. Drug-safety experts said the latest news about Celebrex demonstrated that the F.D.A.'s systems for uncovering the dangers of drugs needed to be fixed. ''It's just further evidence that the F.D.A. has inadequate resources and inadequate authorization to protect the public,'' said Dr. Ray Woosley, vice president for health sciences at the University of Arizona. Dr. David Kessler, a former F.D.A. commissioner, said many problems discovered about Vioxx, Celebrex and Bextra did not result from anything the F.D.A. had done. ''It's all through happenstance that we're finding these problems,'' Dr. Kessler said. ''We need to take a very hard look at the agency's drug surveillance system.'' But Dr. John K. Jenkins, director of the F.D.A.'s office of new drugs, said that it was ''not happenstance'' that these problems were being discovered. Dr. Jenkins agreed that the F.D.A.'s own surveillance system was incapable of uncovering the kind of dangers associated with Vioxx, Bextra and Celebrex. He said the agency still did not know the relative cardiac safety of drugs like Advil and Aleve that had been on the market for decades. ''But I don't see that as a failure of the system,'' Dr. Jenkins said. ''This is how drug approval and surveillance is done in the U.S.'' Many drug-safety experts say that the dangers of marketed drugs could be uncovered relatively quickly if the F.D.A. routinely mined the huge databases of patient information that large health maintenance organizations like Kai- ser Permanente have constructed in recent years. The F.D.A. has never had the money to do so, however, in part because of a 1992 funding formula that forces it to rely increasingly on fees from drug makers. Drug makers did not want their fees to pay for large drug-safety efforts, and funding from Congress was not enough to do so. Shortly after the Vioxx withdrawal, Pfizer officials insisted there was no evidence that Celebrex could hurt the heart. Indeed, the company announced that it would begin a study that would determine whether Celebrex actually pro- Page 3 DRUG TRIAL FINDS BIG HEALTH RISKS IN 2ND PAINKILLER The New York Times December 18, 2004 Saturday tected the heart in a manner similar to aspirin. The company said yesterday that plans for such a study were being pursued. ''I still think we're on good grounds with Celebrex'' to do such a study, said Dr. Gail Cawkwell, a Pfizer worldwide medical team leader. Dr. Feczko of Pfizer said that a study sponsored by Pfizer that was quite similar to the one conducted by the Na- tional Cancer Institute has found no increased risk of heart events among those given 400 milligrams of Celebrex daily. A panel of experts convened by the F.D.A. is to discuss the safety of the entire class of COX-2 inhibitors in Febru- ary. As measured by initial sales, the introduction of Celebrex in late 1998 was the most successful in the history of the industry, with Vioxx's introduction a few months later a close second. Indeed, Merck officials once said that Vioxx would save the company. Now, some are predicting that liability problems arising from its risks may destroy Merck. For Pfizer, the financial impact of Celebrex's problems will be serious but not unmanageable, especially if the F.D.A. does not force the drug to be withdrawn from the market, analysts said yesterday. Before the announcement, Celebrex was expected to account for about $3.9 billion in sales in 2005, up from $3.3 billion this year, as some patients who had been taking Vioxx switched, according to Merrill Lynch. Instead, sales will probably fall next year to $2.5 billion, cutting Pfizer's profits by as much as $900 million, Merrill said. Pfizer's shares tumbled yesterday, at one point knocking $41 billion off the value of the company. The shares closed at $25.75, a drop of $3.23, or 11.2 percent.

URL: http://www.nytimes.com

GRAPHIC: Photo: Henry McKinnell, chief executive of Pfizer, the maker of Celebrex. (Photo by Steven E. Frischling/Bloomberg News)(pg. C3)Chart: ''Black Eyes for an Industry''In recent years, pharmaceutical companies have had a number of setbacks involving drug recalls and fines for misconduct.DRUG STOCKSAmex Pharmaceutical index, weekly -- 2000-2004*MARCH 2000DRUGS: Rezulin (diabetes), Propulsid (heartburn)MANUFACTURERS: Warner-Lambert (Rezulin), Johnson & Johnson (Propulsid)PROBLEM: Rezulin was linked to cases of liver failure and Propulsid to fatal heart rhythm disturbances.*AUGUST 2001DRUG: Baycol (cholesterol)MANUFACTURER: Bayer- PROBLEM: Linked to deaths caused by muscle tissue breakdown.+MAY 2002Schering-Plough agrees to pay a $500 million fine for repeated manufacturing problems at four drug factories.+MAY 2004Pfizer pleads guilty to charges that it paid doctors to prescribe Neurontin, an epilepsy drug, for ailments the drug was not approved to treat. The company pays $430 million in fines.*SEPTEMBER 2004F.D.A. says that antidepressants can cause some children to become suicidal.*SEPTEMBER 2004DRUG: Vioxx (painkiller)MANUFACTURER: MerckPROBLEM: Increased risk of heart attacks.*DRUG RECALLS OR WARNINGS+FINED FOR CONDUCT(Source by Bloomberg Financial Markets)(pg. C3)

LOAD-DATE: December 18, 2004

F.D.A. Failing In Drug Safety, Official Asserts The New York Times November 19, 2004 Friday

November 19, 2004 Friday Late Edition - Final

SECTION: Section A; Column 1; Business/Financial Desk; Pg. 1

LENGTH: 1535 words

HEADLINE: F.D.A. Failing In Drug Safety, Official Asserts

BYLINE: By GARDINER HARRIS

DATELINE: WASHINGTON, Nov. 18

BODY:

Federal drug regulators are ''virtually incapable of protecting America'' from unsafe drugs, a federal drug safety reviewer told a Congressional panel on Thursday, and he named five drugs now on the market whose safety needs ''to be seriously looked at.''

In testimony before the Senate Finance Committee, Dr. David Graham, the reviewer in the Food and Drug Administration's Office of Drug Safety, used fiery language to denounce his agency as feckless and far too likely to surrender to demands of drug makers.

''We are faced with what may be the single greatest drug safety catastrophe in the history of this country or the history of the world,'' Dr. Graham concluded.

Dr. Steven Galson, the director of the F.D.A.'s Center for Drug Evaluation and Research and one of the agency's top civil servants, later said that Dr. Graham's new numbers ''constitute junk science'' and were ''irresponsible.''

Dr. Graham, with more than 20 years of service at the Food and Drug Administration, cited the anti-cholesterol drug Crestor, the pain pill Bextra, the obesity pill Meridia, the asthma drug Serevent and the acne drug Accutane. Makers of each drug defended the medicines as safe.

Dr. Sandra Kweder, deputy director of the F.D.A.'s office of new drugs, told the panel that Dr. Graham was not describing ''the F.D.A. that I know'' and that she did not see the five drugs he cited as ''more concerning than any others.''

The clash was a rare public airing of tensions that have simmered in the agency for decades. It is a fight between those who focus on the potential of drugs to cure the sick and dying and those who see many medicines as high-priced commercial products with potentially risky side effects, between those who view pharmaceutical makers as beneficial partners and those who see the drug makers as antagonists needing to be curbed.

''My personal view is that our system works very well,'' Dr. Kweder said.

The exchange came during a hearing called by Senator Charles E. Grassley, a Republican of Iowa and the chairman of the Finance Committee.

Using his broad authority over much of the government's budget, Senator Grassley and his staff have been investigating the F.D.A. for months after several controversies swept the agency this year.

The hearing focused on the last of these controversies: Merck's decision in September to withdraw Vioxx, a pain pill that became a $2.5 billion seller and one of the most widely advertised drugs in the world.

Merck withdrew Vioxx when a study it sponsored found that after 18 months of use the drug doubled the risk of heart attack or stroke.

Critics of the F.D.A. have said that studies from as early as 1999 and 2000 showed that Vioxx was a risk to the heart, and many asked why the F.D.A. had not forced the drug's withdrawal earlier.

The critics' case has been bolstered by many e-mail messages from Merck and by company documents disclosed in lawsuits by users of Vioxx. In many of the documents, Merck executives and scientists discussed the possible link between Vioxx and heart damage years before the company publicly admitted that the drug could cause harm.

Merck executives have said the documents are being taken out of context.

Raymond V. Gilmartin, Merck's chief executive, testified Thursday that his company followed a ''rigorous scientific process'' as it examined the risks and benefits of Vioxx.

But Dr. Graham and other witnesses severely criticized Merck, saying the company should have acted years earlier to confirm the risks of Vioxx. Dr. Graham raised his estimates of those in the United States who had suffered heart attacks or stroke as result of taking Vioxx to a range of 88,000 to 139,000, up from 28,000. As many as 40 percent of these people, or about 55,000, died as a result, he said.

Dr. Gurkirpal Singh, an adjunct clinical professor at Stanford University, said at the hearing that Merck scientists had tried to intimidate him after he publicly raised questions about the effects of Vioxx.

Dr. Singh, a rheumatologist and science officer of the Institute of Clinical Outcomes Research and Education in Woodside, Calif., said: ''I was warned that if I continued in this fashion there would be serious consequences for me. I was told that Dr. Louis Sherwood, a Merck senior vice president and a former chief of medicine at a medical school, had extensive contacts within academia and could make life very difficult for me at Stanford and outside.''

Dr. Graham said that in his years at the F.D.A., he had recommended that 12 drugs be withdrawn. Only two are still being sold, he said.

His list of the five most worrisome drugs angered pharmaceutical makers, although objections to most of these drugs have long been known. For instance, Accutane, a drug for severe acne, can cause birth defects. The drug's label has warnings about this risk, and the F.D.A. has long been trying to get physicians to confine prescriptions to those women who cannot become pregnant or who are taking birth control.

Dr. Graham said that the F.D.A. needed to do a better job restricting the drug's sales.

Carolyn Glynn, a spokeswoman for Roche, which makes Accutane, said that her company had worked with the F.D.A. for years to ''address the risk of birth defects.''

Dr. Graham mentioned Crestor because, he said, it was the only cholesterol-lowering drug on the market that caused acute kidney failure. And the drug is more likely to cause a serious muscle-weakening disease than similar drugs, he said.

AstraZeneca introduced Crestor last year, but sales have been disappointing largely because of worries about the drug's safety. Public Citizen, a Washington advocacy group, has called for it to be withdrawn.

''We are confident in the safety profile of Crestor,'' said Rachel Bloom-Baglin, a spokeswoman for AstraZeneca. ''To date, the F.D.A. has not given us any indication of a major concern regarding Crestor.''

But Dr. Kweder of the F.D.A. told the panel that Crestor's risks are ''something that we are in the process of and have been evaluating very, very closely.''

Studies of the painkiller Bextra, also mentioned by Dr. Graham, have shown that it increases the risks of heart attack in patients undergoing cardiac surgery. In rare cases, the drug can also cause a fatal skin reaction. Despite these risks, Bextra, which is similar to Vioxx, has never been proved to be any more effective at reducing pain or protecting the stomach than older medicines like ibuprofen that are a fraction of the price and pose none of these suggested or proven risks.

Susan Bro, a spokeswoman for Pfizer, the maker of Bextra, said that the drug ''has been found to be safe and effective when used as indicated to treat osteoarthritis, rheumatoid arthritis and menstrual pain.'' She said the F.D.A. planned to ask a panel of experts early next year to examine the safety of Bextra and Celebrex, a Pfizer pain drug.

Meridia is a weight-loss pill, made by Abbott Laboratories, that can cause substantial increases in blood pressure in some patients. Public Citizen has called for Meridia's withdrawal because it has been associated with 124 reports of serious cardiovascular problems, including 49 deaths, said Dr. Sidney Wolfe, director of Public Citizen's health research group.

Dr. Graham testified that few patients were able to withstand Meridia's side effects long enough to benefit from its use. ''What's the utility of the drug?'' he asked.

Laureen Cassidy, a spokeswoman for Abbott, said, ''Science continues to support the safe use of Meridia as a treatment for obesity.''

The fifth drug named by Dr. Graham was Serevent, an asthma medication made by GlaxoSmithKline, which stopped a large trial last year after an interim analysis revealed an increased risk of asthma-related deaths and life-threatening episodes among those given the drug.

''We have case reports of people dying clutching their Serevent inhaler,'' Dr. Graham said.

After the study was released, the F.D.A. placed a ''black box'' warning, its most severe, on the drug's label. The agency concluded that the drug's benefits outweighed its risks.

In a statement Thursday, GlaxoSmithKline said that it ''stands firmly behind Serevent, which is safe and effective when used appropriately and in accordance with labeling and treatment guidelines.''

Dr. Galson of the F.D.A. emphasized that the drugs mentioned by Dr. Graham ''are all approved and are safe and effective like other drugs that are approved, recognizing that safe does not mean risk-free.''

Dr. Kweder of the F.D.A. defended the agency's handling of Vioxx and said that Merck had ''acted responsibly'' when it sold Vioxx. She said that Dr. Graham's estimates of Vioxx's toll were simply mathematical guesses and ''not real deaths.'' And she said that it was not unusual when a drug went on the market ''to have ongoing concerns about particular aspects of its safety.''

In his testimony, Mr. Gilmartin of Merck retraced many of the steps his company had undertaken and noted that while some early studies suggested that the drug might be a risk to the heart other studies found no problems. He said he believed so thoroughly in the drug that his wife took it until the day the company withdrew it. Bunnatine H. Greenhouse Exhibits EXHIBIT 1 Page 1

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The Associated Press

August 29, 2005, Monday, BC cycle

SECTION: Business News; Washington Dateline

LENGTH: 398 words

HEADLINE: Corps of Engineers removed a senior official who criticized no-bid contract for oil services giant Halli- burton

BYLINE: By ROBERT BURNS, AP Military Writer

DATELINE: WASHINGTON

BODY: A high-ranking Army Corps of Engineers official who publicly criticized the Pentagon's decision to award Halli- burton Co. a no-bid contract for work in Iraq has been demoted, officials said Monday. Bunnatine H. Greenhouse, who had been the Corps of Engineers' top procurement official since 1997, was removed, effective Saturday, for what Corps of Engineers officials called a poor job performance. Her lawyer, however, said her removal constitutes "blatant discrimination" and violates an earlier agreement with the Army to suspend her demotion until "a sufficient record" pertaining to her complaints is complete. "The failure to abide by prior commitments and the circumstances surrounding Ms. Greenhouse's removal are the hallmark of illegal retaliation," her attorney, Michael D. Kohn, wrote in the letter to Defense Secretary Donald H. Rumsfeld. "Her removal will send a message to all concerned that if they dare stand up to corrupting influences within the Army contracting world their careers will be destroyed," he added. Greenhouse was reassigned to a lesser job in the Corps of Engineers and removed from the Senior Executive Ser- vice, the top rank of civilian government employees. Rumsfeld's chief spokesman, Lawrence Di Rita, referred questions about the Greenhouse matter to the Army. Carol Sanders, a spokeswoman for the Corps of Engineers, said that as a matter of policy she could not comment on a personnel matter. She confirmed, however, that Greenhouse no longer holds the title of principal assistant responsible for contracting, which is the chief overseer of Corps of Engineer contracts. She also said that the Department of the Army is responsible for actions involving members of the Senior Executive Service. Kris Kolesnik, executive director of the National Whistleblower Center, which is advising Greenhouse on contacts with members of Congress and the news media, said in an interview that Kohn was informed by the Pentagon's Inspec- tor General's office that it is still preparing a report based on Greenhouse's allegations. Greenhouse went public last year with her criticism of Iraq-related work awarded to Halliburton by the Corps of Engineers. Her main objection was the issuance to Halliburton subsidiary Kellogg, Brown & Root of a no-bid, five-year contract to restore Iraqi oil fields shortly before the Iraq war began in 2003.

LOAD-DATE: August 30, 2005

EXHIBIT 2 Page 1

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August 29, 2005 Monday Late Edition - Final

SECTION: Section A; Column 3; Foreign Desk; REACH OF WAR: PROCUREMENT; Pg. 9

LENGTH: 835 words

HEADLINE: Army Contract Official Critical of Halliburton Pact Is Demoted

BYLINE: By ERIK ECKHOLM

BODY: A top Army contracting official who criticized a large, noncompetitive contract with the Halliburton Company for work in Iraq was demoted Saturday for what the Army called poor job performance. The official, Bunnatine H. Greenhouse, has worked in military procurement for 20 years and for the past several years had been the chief overseer of contracts at the Army Corps of Engineers, the agency that has managed much of the reconstruction work in Iraq. The demotion removes her from the elite Senior Executive Service and reassigns her to a lesser job in the corps' civil works division. Ms. Greenhouse's lawyer, Michael Kohn, called the action an ''obvious reprisal'' for the strong objections she raised in 2003 to a series of corps decisions involving the Halliburton subsidiary Kellogg Brown & Root, which has garnered more than $10 billion for work in Iraq. Dick Cheney led Halliburton, which is based in Texas, before he became vice president. ''She is being demoted because of her strict adherence to procurement requirements and the Army's preference to sidestep them when it suits their needs,'' Mr. Kohn said Sunday in an interview. He also said the Army had violated a commitment to delay Ms. Greenhouse's dismissal until the completion of an inquiry by the Pentagon's inspector general. Carol Sanders, spokeswoman for the Army Corps of Engineers, said Sunday that the personnel action against Ms. Greenhouse had been approved by the Department of the Army. And in a memorandum dated June 3, 2005, as the demotion was being arranged, the commander of the corps, Lt. Gen. Carl A. Strock, said the administrative record ''clearly demonstrates that Ms. Greenhouse's removal from the S.E.S. is based on her performance and not in retaliation for any disclosures of alleged improprieties that she may have made.'' Known as a stickler for the rules on competition, Ms. Greenhouse initially received stellar performance ratings, Mr. Kohn said. But her reviews became negative at roughly the time she began objecting to decisions she saw as improperly favoring Kellogg Brown & Root, he said. Often she hand-wrote her concerns on the contract documents, a practice that corps leaders called unprofessional and confusing. In October 2004, General Strock, citing two consecutive performance reviews that called Ms. Greenhouse an un- cooperative manager, informed her that she would be demoted. Ms. Greenhouse fought the demotion through official channels, and publicly described her clashes with Corps of Engineers leaders over a five-year, $7 billion oil-repair contract awarded to Kellogg Brown & Root. She had argued that if urgency required a no-bid contract, its duration should be brief. Ms. Greenhouse had also fought the granting of a waiver to Kellogg Brown & Root in December 2003, approving the high prices it had paid for fuel imports for Iraq, and had objected to extending its five-year contract for logistical Page 2 Army Contract Official Critical of Halliburton Pact Is Demoted The New York Times August 29, 2005 Monday support in the Balkans for 11 months and $165 million without competitive bidding. In late June, ignoring warnings from her superiors, Ms. Greenhouse appeared before a Congressional panel, calling the Kellogg Brown & Root oil contract ''the most blatant and improper contract abuse I have witnessed during the course of my professional career.'' She also said the defense secretary's office had improperly interfered in the awarding of the contract. Her demotion was delayed when the Army's senior legal officials said they would first seek an independent investigation of her reprisal complaint. ''The Army has referred this matter to the Department of Defense inspector general for their review and action, as appropriate,'' said an Oct. 22, 2004, letter to Ms. Greenhouse's lawyer from Robert M. Fano, the Army's chief of civilian personnel law. The acting secretary of the Army, Mr. Fano wrote, had also directed the Corps of Engineers to ''suspend any adverse personnel action so that Ms. Greenhouse remains in her current position until a sufficient record is available to address the specific matters you raised.'' But on July 14, the Army secretary approved Ms. Greenhouse's demotion, effective Aug. 27. With his request to proceed, General Strock had provided an unsigned nine-page memorandum, reviewing Ms. Greenhouse's recent performance ratings and responding to her allegations of impropriety. Mr. Kohn said Sunday that the inspector general had not finished investigating the matter and that the demotion violated the Army secretary's commitment to wait on any action. Mr. Kohn said that when he telephoned Dan Meyer, director of civilian reprisal investigations in the inspector general's office, on Aug. 24, Mr. Meyer was ''shocked'' to learn that the corps had proceeded against Ms. Greenhouse. Mr. Meyer said that he was immediately opening a ''civilian reprisal'' investigation and faxed forms to Mr. Kohn to ini- tiate the process, Mr. Kohn said. A Pentagon spokesman said Sunday that the inspector general's office could not be reached for comment.

URL: http://www.nytimes.com

GRAPHIC: Photo: Bunnatine H. Greenhouse, a contracting official, spoke in June before a Congressional panel studying reports of overcharges by Halliburton. (Photo by Dennis Cook/Associated Press)

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November 8, 2004

SECTION: U. S. EDITION; NOTEBOOK; Pg. 24

LENGTH: 315 words

HEADLINE: Pentagon Hostilities

BYLINE: Adam Zagorin; Timothy J. Burger

BODY: As if charges of cronyism weren't bad enough, the inside story of the government's decision to award a controversial no-bid contract to Halliburton is taking on overtones of even uglier "isms": racism and sexism. Whistle-blower Bunnatine (Bunny) Greenhouse, the most senior civilian contracting official in the Army Corps of Engineers, is battling the Army's attempt to demote her after she objected in writing not just to, but literally on approval documents for the up to $ 7 billion contract awarded to a Halliburton subsidiary in March 2003 for the repair of Iraq's oil wells. (The FBI is investigating whether Greenhouse's allegations of favoritism, first reported in TIME last week, merit an expansion of its criminal investigation into Halliburton for overcharging the Pentagon.) Meanwhile, TIME has obtained a new document that suggests Greenhouse, who is African American and the sister of NBA great Elvin Hayes, may have been operating in a racially hostile environment. Lieut. General Joseph Ballard, her former boss, said in a sworn affidavit that when he was Corps commander, colleagues told him that "members of the upper Corps management made racist remarks" about her and that a senior official repeatedly said he "was going to get 'that bitch fired.'" Ballard, who retired in good standing in 2000, made those statements in a September 2003 Army personnel proceeding against Greenhouse that cleared her of any wrongdoing. Calling her job performance "outstanding," Ballard, who is black, added that he strongly believed her race and gender "ruffled a lot of feathers in the Corps Command and also contributed to the disparate and highly critical treatment she has received." Asked for comment, a Corps spokesman told TIME, "Army policy is to treat all employees fairly and with dignity and respect." --By Adam Zagorin and Timothy J. Burger

GRAPHIC: COLOR PHOTO, Ballard and Greenhouse in 1997; B/W PHOTO

LOAD-DATE: October 31, 2004

EXHIBIT 4 TESTIMONY OF BUNNATINE H. GREENHOUSE

Senate Democratic Policy Committee Hearing

“Abuses in Private Security and Reconstruction Contracting in Iraq: Ensuring Accountability, Protecting Whistleblowers”

Friday, September 21, 2007

My name is Bunnatine Greenhouse. I thank the Committee for allowing me to appear here today. As you may be aware, I was the United States Army Corps of Engineers’ Procurement Executive and Principal Assistant Responsible for Contracting (PARC). I am the first black female to have held a Senior Executive Service position within the Army Corps of Engineers. A career spanning over 23 years ended on August 27, 2005, when I was removed from the Senior Executive Service and from contracting. I was removed after I raised concerns over the award of a $7 billion sole source, no compete, cost plus contract to Halliburton subsidiary Kellogg Brown & Root (“KBR”) known as the Restore Iraqi Oil (RIO) contract. The award of this contract and other contracts related to the RIO contract represent the worst contract abuse I witnessed during my professional career.

Before the contract was awarded, I voiced great concern over the legality of the selection of KBR, the total lack of competition and the excessive duration of the RIO contract. I explained to representatives from the Department of Defense, the Department of the Army and the Army Corps that granting a contract for two base years with the potential to extend the contract for an additional three years was simply unconscionable under the compelling emergency justification that was identified as the basis for awarding the contract to KBR. All of my objections were ignored and so in February 2003 I chose to pen next to my signature on a critical contracting document my concern over the duration of the contract that was going to be awarded to Halliburton/KBR.

In October of 2004 I received notice that I was to be demoted and removed from the SES. At that juncture the concerns I had over the award of the RIO contract and other contract abuses related to Halliburton/KBR were brought to the attention of members of Congress and the public. In response to the substance of my concerns, the Acting Secretary of the Army directed that my concerns were to be referred to the Department of Defense Inspector General for review and action and that I was not to be demoted or removed from the SES until “a sufficient record is available to address the specific matters” I had raised. Yet, the DOD IG has failed to conduct any investigation of my concerns.

In June of 2005 I was asked to appear before this Committee and I agreed to do so. Just prior to my appearance, the Army Corps’ Acting General Counsel let me know in no uncertain terms that it would not be in my best interest to do so. I ignored this threat to my professional career and swiftly thereafter I was removed from the SES and from contracting.

Things have not fared well for me since then.

After having a full year to figure out where I should be placed upon my demotion, I was directed to report to the Army Corps’ Civil Works Engineering and Construction Division, where I was supposed to function as a “program manager.” As I was about to report to the Engineering and Construction Division Katrina was poised to strike New Orleans. Indeed, the horrific breach of the New Orleans levies commenced less than 24 hours from the time I was directed to report to the Civil Works division.

The response to the Katrina disaster was one of the largest contracting civil works efforts the Army Corps has ever faced. But, the Corps had no leadership in contracting; an SES was moved into my position who was not a Contracting Careerist and had not served a day as a contracting officer – and had to seek a waiver for the experience and training requirements that were established by Congress.

On the contracting side, I had long been acknowledged as the most knowledgeable and critical thinking contracting professional within the Army Corps, yet there was no role for me to play in response to Katrina.

On the civil works side, I am a Defense Systems Management College certified program manager, with a master’s degree in engineering management from George Washington University, and a War College master’s degree in national resources strategy, a master’s degree in Business Management and a graduate of the Defense Senior Acquisition Course, yet there was no role for me to play in the face of the Katrina disaster.

Instead, I was systematically excluded from the Katrina management meetings that were held in my office area, behind closed doors.

I was born and raised in Louisiana and am a member of the Louisiana Hall of Fame for Women in Government, and I can assure you that it pained me greatly that I was not permitted to assist with the Katrina disaster.

Ultimately, the only reason given for having failed to give me performance standards for nine months was that my supervisor was too busy responding to the Katrina emergency to give me something to do. I don’t believe that for one minute.

Since my demotion I have experienced isolation; I continue to receive inappropriately down-graded performance reviews; my top secret clearance has been withdrawn; individuals have attempted to take credit for my work, no training opportunities have been identified since I have no Engineering and Construction mission responsibilities, and I have been prevented from returning to my contracting career field.

Additionally, I had to fight off efforts to cripple the Defense Base Act (“DBA”) insurance pilot program – a program where I single-handedly wrote the concept of operations, and all solicitation documentation; responded to all questions from industry; conducted an industry forum with more than fifty insurance brokers in attendance; and engineered the procurement process to its final stages. The Congressional Budget Office has recognized the benefit of my DBA insurance program, which saved the government $45 million in its first year alone, with even greater savings forecast for the years to come. The intensity of battle I had to fight to maintain the DBA insurance program leads me to believe that the Army Corps was more than willing to sacrifice my program then allow me to garner credit for its success.

Finally, it is paramount for this Committee to recognize that my removal has caused a deep chill to descend over the government contracting community and the SES Corps. Contracting officers now know that speaking up against contracting abuses will not bring them praise but can cost them their jobs.

3 EXHIBIT 5 Page 1

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October 25, 2004 Monday Correction Appended Late Edition - Final

SECTION: Section A; Column 1; Foreign Desk; THE CONFLICT IN IRAQ: THE BILLIONS; Pg. 13

LENGTH: 1105 words

HEADLINE: A Top U.S. Contracting Official for the Army Calls for an Inquiry in the Halliburton Case

BYLINE: By ERIK ECKHOLM

BODY: The top civilian contracting official for the Army Corps of Engineers, charging that the Army granted the Hallibur- ton Company large contracts for work in Iraq and the Balkans without following rules designed to ensure competition and fair prices to the government, has called for a high-level investigation of what she described as threats to the ''integrity of the federal contracting program.'' The official, Bunnatine H. Greenhouse, said that in at least one case she witnessed, Army officials inappropriately allowed representatives of Halliburton to sit in as they discussed the terms of a contract the company was set to receive. Her accusations offer the first extended account of arguments that roiled inside the military bureaucracy over contracts with the company. In an Oct. 21 letter to the acting Army secretary, Ms. Greenhouse said that after her repeated questions about the Halliburton contracts, she was excluded from major decisions to award money and that her job status was threatened. In response, Army officials referred her accusations to the Pentagon's investigations bureau for review and promised to protect her position in the meantime. Ms. Greenhouse, 62, is a veteran of military procurement and serves the Corps of Engineers as the principal assistant responsible for contracting -- the top civilian overseeing the agency's contracts. She also has chief responsibility for reviewing adherence to Pentagon rules intended to shield awards from outside influence and promote competition. The contracts to Halliburton, a Houston-based conglomerate headed by Dick Cheney before he became vice president, have stirred controversy and charges of favoritism because some were granted on an emergency basis, without competitive bidding. The company's operations in Iraq, involving work for more than $10 billion, have also been dog- ged by charges of overbilling and waste and have been an issue in the presidential campaign. The Pentagon has asserted that, as the invasion of Iraq began, Halliburton was the only company able to provide services with the required speed and secrecy. But Pentagon auditors later questioned the company's billing practices and found examples of reckless spending or unjustified charges. Halliburton has repeatedly denied any wrongdoing, saying it has performed well in a war zone and that many of its critics are politically motivated. Ms. Greenhouse's lawyers sent the letter on her behalf to the acting secretary of the Army, Les Brownlee, calling for a high-level investigation of what the letter describes as threats to the ''integrity of the federal contracting program.'' They sent copies to several Congressional committees, and a copy was provided to The Times by a Congressional staff member. Portions of the letter were described in Time magazine on Sunday. Page 2 A Top U.S. Contracting Official for the Army Calls for an Inquiry in the Halliburton Case The New York Times October 25, 2004 Monday Correction Appended

In a response dated Oct. 22, Robert Fano, a senior lawyer in the Department of the Army, said that the acting secretary had referred her letter to the Pentagon inspector general ''for review and action as appropriate'' and that he had directed the Army Corps of Engineers ''to suspend any adverse personnel actions'' against Ms. Greenhouse. Some of the contracts Ms. Greenhouse says she questioned, including a noncompetitive agreement with the Halli- burton subsidiary Kellogg Brown & Root in early 2003 for Iraqi oil repairs that was initially worth up to $7 billion over five years, have already attracted debate in Congress and the news media. In the resulting firestorm, the contract was later shortened to one year and supplanted by a competitive process, just as Ms. Greenhouse had recommended initially. Another decision, made this spring to extend for an extra 11 monthswithout bidding a K.B.R. contract providing logistical services in the Balkans, has received less notice. In this case, Ms. Greenhouse asserted, where operations have continued for four years, claims of an emergency or that Kellogg Brown & Root was the only feasible provider were not tenable. The company is expected to draw $165 million from the extension. Mr. Kohn said Ms. Greenhouse was ''absolutely not'' seeking financial rewards through a lawsuit under the federal whistle-blower act, which offers substantial sums to government workers who expose fraud. Nor, given her senior executive status, can she be easily fired by the agency, though she could be moved to a less responsible position. ''The contracting process at the Army Corps of Engineers has broken down, and she feels she can't continue to do her job as she sees it,'' said Michael D. Kohn, a partner of Kohn, Kohn & Colapinto, which represents Ms. Greenhouse and signed the Oct. 21 letter, in a telephone interview. Ms. Greenhouse said she would not grant interviews without permission from her employer, fearing possible retribution, Mr. Kohn said. ''Employees of the U.S. government have taken improper action that favored K.B.R.'s interests,'' the letter said, and Ms. Greenhouse ''experienced repeated interference with her role'' as chief monitor. In the case of the 2003 Iraq oil award, Kellogg Brown & Root was given a secret contract months before to draw up plans for fixing oil facilities. Once the invasion began, as the letter relates, it was then deemed the only company in a position to carry out the plan. Ms. Greenhouse says she argued strenuously that a noncompetitive contract should not be given for more than one year. Instead, the company was given a five-year contract worth up to $7 billion. As they worked on the final contract, she asserts, Army officials held a meeting on Feb. 26, 2003, to discuss tasks and costs, and Kellogg Brown & Root representatives were invited to attend. ''Eventually the discussions turned to matters that Ms. Greenhouse concluded were outside the scope of information K.B.R. should be privy to'' before the contract was fully defined, the letter said. On her protest, the company officials left the room, but ''the line between government officials and K.B.R. had become so blurred that a perception of a conflict of interest existed,'' the letter said. The company gained $2.4 billion on the oil contract in the first year, before the Pentagon cut it short and put out competitive bids. The company won a part of the continued work. In another case, in late 2003 when Pentagon auditors found that Halliburton may have overcharged the government $61 million for fuel, the Army Corps of Engineers issued an unusual waiver calling the price reasonable. Ms. Green- house says in her letter that officials deliberately excluded her from the decision and had one of her subordinates sign off on the waiver.

URL: http://www.nytimes.com

CORRECTION-DATE: November 10, 2004

CORRECTION: An article on Oct. 25 about allegations of favoritism by the Army Corps of Engineers in awarding large contracts to the Halliburton Company in Iraq and the Balkans misstated the age of the corps' chief contracting officer, Bunnatine H. Greenhouse, who made the allegations. She is 60, not 62. Page 3 A Top U.S. Contracting Official for the Army Calls for an Inquiry in the Halliburton Case The New York Times October 25, 2004 Monday Correction Appended

GRAPHIC: Photo: Bunnatine H. Greenhouse, chief contracting officer for the Army Corps of Engineers, has called for an investigation of procurement practices. (Photo by U.S. Army Corps of Engineers)

LOAD-DATE: October 25, 2004

James Hansen Exhibits EXHIBIT 1 Page 1

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January 29, 2006 Sunday Late Edition - Final

SECTION: Section 1; Column 6; National Desk; Pg. 1

LENGTH: 1580 words

HEADLINE: CLIMATE EXPERT SAYS NASA TRIED TO SILENCE HIM

BYLINE: By ANDREW C. REVKIN

BODY: The top climate scientist at NASA says the Bush administration has tried to stop him from speaking out since he gave a lecture last month calling for prompt reductions in emissions of greenhouse gases linked to global warming. The scientist, James E. Hansen, longtime director of the agency's Goddard Institute for Space Studies, said in an interview that officials at NASA headquarters had ordered the public affairs staff to review his coming lectures, papers, postings on the Goddard Web site and requests for interviews from journalists. Dr. Hansen said he would ignore the restrictions. ''They feel their job is to be this censor of information going out to the public,'' he said. Dean Acosta, deputy assistant administrator for public affairs at the space agency, said there was no effort to silence Dr. Hansen. ''That's not the way we operate here at NASA,'' Mr. Acosta said. ''We promote openness and we speak with the facts.'' He said the restrictions on Dr. Hansen applied to all National Aeronautics and Space Administration personnel. He added that government scientists were free to discuss scientific findings, but that policy statements should be left to policy makers and appointed spokesmen. Mr. Acosta said other reasons for requiring press officers to review interview requests were to have an orderly flow of information out of a sprawling agency and to avoid surprises. ''This is not about any individual or any issue like global warming,'' he said. ''It's about coordination.'' Dr. Hansen strongly disagreed with this characterization, saying such procedures had already prevented the public from fully grasping recent findings about climate change that point to risks ahead. ''Communicating with the public seems to be essential,'' he said, ''because public concern is probably the only thing capable of overcoming the special interests that have obfuscated the topic.'' Dr. Hansen, 63, a physicist who joined the space agency in 1967, directs efforts to simulate the global climate on computers at the Goddard Institute in Morningside Heights in Manhattan. Since 1988, he has been issuing public warnings about the long-term threat from heat-trapping emissions, domi- nated by carbon dioxide, that are an unavoidable byproduct of burning coal, oil and other fossil fuels. He has had run- ins with politicians or their appointees in various administrations, including budget watchers in the first Bush administration and Vice President Al Gore. In 2001, Dr. Hansen was invited twice to brief Vice President Dick Cheney and other cabinet members on climate change. White House officials were interested in his findings showing that cleaning up soot, which also warms the atmosphere, was an effective and far easier first step than curbing carbon dioxide. Page 2 CLIMATE EXPERT SAYS NASA TRIED TO SILENCE HIM The New York Times January 29, 2006 Sunday

He fell out of favor with the White House in 2004 after giving a speech at the University of Iowa before the presidential election, in which he complained that government climate scientists were being muzzled and said he planned to vote for Senator John Kerry. But Dr. Hansen said that nothing in 30 years equaled the push made since early December to keep him from publicly discussing what he says are clear-cut dangers from further delay in curbing carbon dioxide. In several interviews with The New York Times in recent days, Dr. Hansen said it would be irresponsible not to speak out, particularly because NASA's mission statement includes the phrase ''to understand and protect our home planet.'' He said he was particularly incensed that the directives had come through telephone conversations and not through formal channels, leaving no significant trails of documents. Dr. Hansen's supervisor, Franco Einaudi, said there had been no official ''order or pressure to say shut Jim up.'' But Dr. Einaudi added, ''That doesn't mean I like this kind of pressure being applied.'' The fresh efforts to quiet him, Dr. Hansen said, began in a series of calls after a lecture he gave on Dec. 6 at the annual meeting of the American Geophysical Union in San Francisco. In the talk, he said that significant emission cuts could be achieved with existing technologies, particularly in the case of motor vehicles, and that without leadership by the United States, climate change would eventually leave the earth ''a different planet.'' The administration's policy is to use voluntary measures to slow, but not reverse, the growth of emissions. After that speech and the release of data by Dr. Hansen on Dec. 15 showing that 2005 was probably the warmest year in at least a century, officials at the headquarters of the space agency repeatedly phoned public affairs officers, who relayed the warning to Dr. Hansen that there would be ''dire consequences'' if such statements continued, those officers and Dr. Hansen said in interviews. Among the restrictions, according to Dr. Hansen and an internal draft memorandum he provided to The Times, was that his supervisors could stand in for him in any news media interviews. Mr. Acosta said the calls and meetings with Goddard press officers were not to introduce restrictions, but to review existing rules. He said Dr. Hansen had continued to speak frequently with the news media. But Dr. Hansen and some of his colleagues said interviews were canceled as a result. In one call, George Deutsch, a recently appointed public affairs officer at NASA headquarters, rejected a request from a producer at National Public Radio to interview Dr. Hansen, said Leslie McCarthy, a public affairs officer responsible for the Goddard Institute. Citing handwritten notes taken during the conversation, Ms. McCarthy said Mr. Deutsch called N.P.R. ''the most liberal'' media outlet in the country. She said that in that call and others, Mr. Deutsch said his job was ''to make the president look good'' and that as a White House appointee that might be Mr. Deutsch's priority. But she added: ''I'm a career civil servant and Jim Hansen is a scientist. That's not our job. That's not our mission. The inference was that Hansen was disloyal.'' Normally, Ms. McCarthy would not be free to describe such conversations to the news media, but she agreed to an interview after Mr. Acosta, at NASA headquarters, told The Times that she would not face any retribution for doing so. Mr. Acosta, Mr. Deutsch's supervisor, said that when Mr. Deutsch was asked about the conversations, he flatly denied saying anything of the sort. Mr. Deutsch referred all interview requests to Mr. Acosta. Ms. McCarthy, when told of the response, said: ''Why am I going to go out of my way to make this up and back up Jim Hansen? I don't have a dog in this race. And what does Hansen have to gain?'' Mr. Acosta said that for the moment he had no way of judging who was telling the truth. Several colleagues of both Ms. McCarthy and Dr. Hansen said Ms. McCarthy's statements were consistent with what she told them when the conversations occurred. ''He's not trying to create a war over this,'' said Larry D. Travis, an astronomer who is Dr. Hansen's deputy at God- dard, ''but really feels very strongly that this is an obligation we have as federal scientists, to inform the public.'' Page 3 CLIMATE EXPERT SAYS NASA TRIED TO SILENCE HIM The New York Times January 29, 2006 Sunday

Dr. Travis said he walked into Ms. McCarthy's office in mid-December at the end of one of the calls from Mr. Deutsch demanding that Dr. Hansen be better controlled. In an interview on Friday, Ralph J. Cicerone, an atmospheric chemist and the president of the National Academy of Sciences, the nation's leading independent scientific body, praised Dr. Hansen's scientific contributions and said he had always seemed to describe his public statements clearly as his personal views. ''He really is one of the most productive and creative scientists in the world,'' Dr. Cicerone said. ''I've heard Han- sen speak many times and I've read many of his papers, starting in the late 70's. Every single time, in writing or when I've heard him speak, he's always clear that he's speaking for himself, not for NASA or the administration, whichever administration it's been.'' The fight between Dr. Hansen and administration officials echoes other recent disputes. At climate laboratories of the National Oceanic and Atmospheric Administration, for example, many scientists who routinely took calls from reporters five years ago can now do so only if the interview is approved by administration officials in Washington, and then only if a public affairs officer is present or on the phone. Where scientists' points of view on climate policy align with those of the administration, however, there are few signs of restrictions on extracurricular lectures or writing. One example is Indur M. Goklany, assistant director of science and technology policy in the policy office of the Interior Department. For years, Dr. Goklany, an electrical engineer by training, has written in papers and books that it may be better not to force cuts in greenhouse gases because the added prosperity from unfettered economic activity would allow countries to exploit benefits of warming and adapt to problems. In an e-mail exchange on Friday, Dr. Goklany said that in the Clinton administration he was shifted to nonclimate- related work, but added that he had never had to stop his outside writing, as long as he identified the views as his own. ''One reason why I still continue to do the extracurricular stuff,'' he wrote, ''is because one doesn't have to get clearance for what I plan on saying or writing.''

URL: http://www.nytimes.com

GRAPHIC: Photo: James E. Hansen, top NASA climate scientist, on Friday at the Goddard Institute in Upper Manhat- tan. (Photo by Fred R. Conrad/The New York Times)(pg. 20)

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June 24, 2008 Tuesday 12:00 AM GMT

SECTION: WASHINGTON DATELINE

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HEADLINE: NASA warming scientist: 'This is the last chance'

BYLINE: By SETH BORENSTEIN, AP Science Writer

DATELINE: WASHINGTON

BODY: Exactly 20 years after warning America about global warming, a top NASA scientist said the situation has gotten so bad that the world's only hope is drastic action. James Hansen told Congress on Monday that the world has long passed the "dangerous level" for greenhouse gases in the atmosphere and needs to get back to 1988 levels. He said Earth's atmosphere can only stay this loaded with man- made carbon dioxide for a couple more decades without changes such as mass extinction, ecosystem collapse and dramatic sea level rises. "We're toast if we don't get on a very different path," Hansen, director of the Goddard Institute of Space Sciences who is sometimes called the godfather of global warming science, told The Associated Press. "This is the last chance." Hansen brought global warming home to the public in June 1988 during a Washington heat wave, telling a Senate hearing that global warming was already here. To mark the anniversary, he testified before the House Select Committee on Energy Independence and Global Warming where he was called a prophet, and addressed a luncheon at the National Press Club where he was called a hero by former Sen. Tim Wirth, D-Colo., who headed the 1988 hearing. To cut emissions, Hansen said coal-fired power plants that don't capture carbon dioxide emissions shouldn't be used in the United States after 2025, and should be eliminated in the rest of the world by 2030. That carbon capture technology is still being developed and not yet cost efficient for power plants. Burning fossil fuels like coal is the chief cause of man-made greenhouse gases. Hansen said the Earth's atmosphere has got to get back to a level of 350 parts of carbon dioxide per million. Last month, it was 10 percent higher: 386.7 parts per million. Hansen said he'll testify on behalf of British protesters against new coal-fired power plants. Protesters have chained themselves to gates and equipment at sites of several proposed coal plants in England. "The thing that I think is most important is to block coal-fired power plants," Hansen told the luncheon. "I'm not yet at the point of chaining myself but we somehow have to draw attention to this." Frank Maisano, a spokesman for many U.S. utilities, including those trying to build new coal plants, said while Hansen has shown foresight as a scientist, his "stop them all approach is very simplistic" and shows that he is beyond his level of expertise. The year of Hansen's original testimony was the world's hottest year on record. Since then, 14 years have been hot- ter, according to the National Oceanic and Atmospheric Administration. Page 2 NASA warming scientist: 'This is the last chance' The Associated Press June 24, 2008 Tuesday 12:00 AM GMT

Two decades later, Hansen spent his time on the question of whether it's too late to do anything about it. His answer: There's still time to stop the worst, but not much time. "We see a tipping point occurring right before our eyes," Hansen told the AP before the luncheon. "The Arctic is the first tipping point and it's occurring exactly the way we said it would." Hansen, echoing work by other scientists, said that in five to 10 years, the Arctic will be free of sea ice in the summer. Longtime global warming skeptic Sen. James Inhofe, R-Okla., citing a recent poll, said in a statement, "Hansen, (former Vice President) Gore and the media have been trumpeting man-made climate doom since the 1980s. But Americans are not buying it." But Rep. Ed Markey, D-Mass., committee chairman, said, "Dr. Hansen was right. Twenty years later, we recognize him as a climate prophet." On the Net: Hansen's speech: http://www.columbia.edu/ 7/8jeh1/2008/TwentyYearsLater 20080623.pdf

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SHOW: 60 Minutes 7:00 PM EST CBS

March 19, 2006 Sunday

LENGTH: 1934 words

HEADLINE: Rewriting The Science: Government scientists working on environmental issues don't believe the truth is being told about dangers of global warming

ANCHORS: SCOTT PELLEY

BODY: REWRITING THE SCIENCE SCOTT PELLEY, co-host: As a government scientist, James Hansen is taking a risk. He says there are things the White House doesn't want you to hear, but he's going to say them anyway. Hansen is arguably the world's leading researcher on global warming. He's the head of NASA's top institute studying the climate. But this eminent scientist says the Bush administration is restricting who he can talk to and editing what he can say. Politicians, he says, are rewriting the science. Well, there'll be none of that tonight because James Hansen is telling what he knows on 60 MINUTES. You believe that the administration is censoring what you can say to the public? Mr. JAMES HANSEN: Well, they're censoring whether or not I can say it. I mean, I--I say what I believe if I'm allowed to say it. (Footage of glaciers; penguins; sea lions) PELLEY: (Voiceover) What James Hansen believes is that global warming is accelerating. He points to the melting Arctic and to Antarctica, where new data show massive losses of ice to the sea. Is it fair to say at this point that humans control the climate? Is that possible? Mr. HANSEN: There's no doubt about that. The natural changes, the speed of the natural changes is now dwarfed by the changes that humans are making to the atmosphere and to the surface. (Footage of clouds of smoke being emitted from building; glacial ice; penguins; glacial ice) PELLEY: (Voiceover) Those human changes, he says, are driving by burning fossil fuels which pump out greenhouse gases like CO2, carbon dioxide. Hansen says that his research shows man has just 10 years to begin to reduce greenhouse gas emissions or global warming will reach what he calls "a tipping point" and will become unstoppable. He says the White House is blocking that message. Mr. HANSEN: In my more than three decades in the government, I've never witnesses such restrictions on the ability of scientists to communicate with the public. (Footage of e-mail with quote highlighted; Hansen speaking to group; Pelley speaking to Ralph Cicerone) PELLEY: (Voiceover) Restrictions like this e-mail, which Hansen's institute received from NASA in 2004. "There is a new review process. The White House [is] now reviewing all climate related press releases." Page 2 Rewriting The Science: Government scientists working on environmental issues don't believe the truth is being told about dangers of global warming CBS News Transcripts March 19, 2006 Sunday

Why the scrutiny of Hansen's work? Well, his Goddard Institute for Space Studies is the source of respected but sobering research on warming. It recently announced 2005 was the warmest year on record. Hansen started at NASA more than 30 years ago and spent nearly all of that time studying the earth. How important is his work? We asked someone at the top, Ralph Cicerone, president of the nation's leading institute of science, the National Academy of Sci- ences. Mr. RALPH CICERONE: I can't think of anybody who I would say is better than Hansen. You might argue that there's two or three others as good, but nobody better. (Footage of Pelley speaking with Cicerone) PELLEY: (Voiceover) And Cicerone, who's an atmospheric chemist, said the same thing that every leading scientist told us. Mr. CICERONE: Climate change is really happening. PELLEY: So what is causing the changes? Mr. CICERONE: Well, the greenhouse gases, carbon dioxide and methane and chlorofluorocarbons and a couple of others, which are all--the increases in their concentrations in the air are due to human activities. It's that simple. (Footage of report; Bush and Cheney) PELLEY: (Voiceover) But if it is that simple, why do climate science reports look like this after they've been edited at the White House, with science labeled "not sufficiently reliable"? It's a tone of scientific uncertainty that the president set in his first months in office after he pulled out of a treaty to reduce global greenhouse gas emissions. President GEORGE W. BUSH: We do not know how much our climate could or will change in the future. We do not know how fast change will occur, or even how some of our actions could impact it. (Footage of Hansen and colleagues working) PELLEY: (Voiceover) That ambiguity annoyed Hansen, so he went public a year and a half ago, saying this about the Bush administration in a talk at the University of Iowa. Mr. HANSEN: I find a willingness to listen only to those portions of scientific results that fit predetermined, in- flexible positions. This, I believe, is a recipe for environmental disasters. (Footage of Pelley interviewing Hansen with woman sitting in) PELLEY: (Voiceover) Ever since he said that, NASA's been keeping an eye on Hansen. NASA let us sit down with him, but only with a NASA representative taping the interview. Other interviews have been denied. Mr. HANSEN: And I--I object to the fact that I'm not able to freely communicate via the media. National Public Radio wanted to interview me and they were told that they would need to instead interview someone at NASA headquarters. And--and the comment was made that they didn't want Jim Hansen going on the most liberal media in the nation. So I don't think that kind of decision should be made on that kind of basis. I think we should be able to communicate the science. (Footage of Pelley speaking with Hansen; Bill Clinton) PELLEY: (Voiceover) Politically, Hansen calls himself an independent, and he's had trouble with both parties. He says from time to time, the Clinton administration wanted to hear that warming was worse that it was, but Hansen refused to spin the science that way. Mr. HANSEN: Should we be simply doing our science and reporting it rigorously or to what degree the administration in power has the right to assume that you're--should be a spokesman for the administration? I tried to be a straight scientists, doing the science and reporting it as best I can. (Footage of White House; edited climate report; Pelley speaking with Rick Piltz) PELLEY: (Voiceover) Dozens of federal agencies report science, and much of it is edited at the White House before it's sent to Congress and the public. It appears that climate science is edited with a heavy hand. These drafts of climate reports were co-written by Rick Piltz for the Federal Climate Change Science program. But Piltz says his work was edited by the White House to make global warming seem less threatening. Page 3 Rewriting The Science: Government scientists working on environmental issues don't believe the truth is being told about dangers of global warming CBS News Transcripts March 19, 2006 Sunday

Mr. RICK PILTZ: The strategy of political agenda to avoid this issue is to say, `There's so much to study way up- stream here that we can't even begin to discuss impacts and response strategies. There's much too much uncertainty.' And it's not climate scientists who are saying that, it's lawyers, it's politicians. (Footage of Piltz at an event; photo of Piltz at his desk; report) PELLEY: (Voiceover) Piltz worked under the Clinton and Bush administrations. And each year, he helped write a report to Congress called Our Changing Planet. You're responsible for editing Our Changing Planet, and you send a review draft to the White House. What happens? Mr. PILTZ: It comes back with a large number of edits, handwritten on the hard copy by the chief of staff of the Council on Environmental Quality. PELLEY: And the chief of staff is whom? Mr. PILTZ: Phil Cooney. PELLEY: He's a scientist? Mr. PILTZ: No, he's a lawyer. He was a lobbyist for the American Petroleum Institute before going into the White House. (Footage of White House; edited report) PELLEY: (Voiceover) Phil Cooney, the former oil industry lobbyist, became chief of staff at the White House Council on Environmental Quality. Piltz says Cooney edited climate reports in his own hand. Here, a line that said Earth is undergoing rapid change becomes "may be undergoing change." "Uncertainty" becomes "significant remaining uncertainty." This line that says "energy production contributes to warming" is just crossed out. Mr. PILTZ: He was obviously passing it through a political screen. He would put in the world "potential" or "may" or "weaken" or delete text if it had to do with the likely consequences of climate change. (Footage of edited report; Pelley interviewing Piltz) PELLEY: (Voiceover) Here, Piltz says that Cooney added this line: "The uncertainties remain so great as to pre- clude meaningfully informed decision making." References to human health are marked out. We obtained the drafts from the Government Accountability Project. The edits you're seeing made it into the final report. Here's that phrase, "Earth may be undergoing change" in the report to Congress. Piltz says there wasn't room at the White House for those who disagreed, so he resigned. Mr. PILTZ: I mean, even to raise issues internally is immediately career limiting. That's why you will find not too many people in the federal agencies who will speak freely about all the things they know, unless they're retired or unless they're ready to resign. (Footage of Hansen working in his office; helicopter flying over icy landscape) PELLEY: (Voiceover) Jim Hansen isn't retiring or resigning because he believes Earth is nearing a point of no return. He urges to look north, to the Arctic, where temperatures are rising twice as fast as the rest of the world. We saw for ourselves the accelerating melt of the largest ice sheet in the north. Here in Greenland, about 15 years ago, the ice sheet extended to right about where I'm standing now. Today, it's back there, between those hills in that shaded area. Glaciologists call this a melt stream, but these days, it's more like a melt river. (Footage of helicopter; man setting up equipment in Arctic) PELLEY: (Voiceover) The Bush administration doesn't deny global warming or that man plays a role. The administration is spending billions of dollars on climate research. Hansen gives the White House credit for the research but he says what's urgent now is action. Mr. HANSEN: We have to, in the next 10 years, get off of this exponential curve and begin to decrease the rate of growth of CO2 emissions, and then flatten it out. And before we get to the middle of the century, we've got to be on a declining curve. Page 4 Rewriting The Science: Government scientists working on environmental issues don't believe the truth is being told about dangers of global warming CBS News Transcripts March 19, 2006 Sunday

PELLEY: And if that doesn't start within 10 years, what happens? Mr. HANSEN: If that doesn't start within 10 years then I don't think we can keep global warming, additional global warming under one degree Celsius. And that means we're going to--that--there's a great danger of passing some of these tipping points. If the ice sheets once begin to disintegrate, what can you do about it? You can't tie a rope around the ice sheet, you can't build a wall around the ice sheets. It will be a situation that is out of our control. (Footage of edited report; Hansen speaking to a group) PELLEY: (Voiceover) But it's not a situation you'll find in this federal report. Government scientists wanted to tell you about the ice sheets, but before this draft left the White House, the paragraph on glacial melt and flooding was crossed out and this was added: "straying from research strategy into speculative findings and musings here." Hansen says that kind of editing happened to him once during a presentation, when a top official scolded him for using the word "danger." Mr. HANSEN: I think we know a lot more about tipping points. I think we know about the dangers of even a moderate degree of additional global warming, about the potential effects in the Arctic, about the potential effects on the ice sheets. PELLEY: You just used that word again that you're not supposed to use: "danger." Mr. HANSEN: Yeah. It is a danger. PELLEY: For months, we've been trying to talk to the president's science adviser but we were finally told that he would never be available. Phil Cooney, the editor at the Council on Environmental Quality, didn't return our calls, but in June, he left the White House and went to work for ExxonMobil. (Announcements)

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The Washington Post

June 3, 2008 Tuesday Suburban Edition

SECTION: A-SECTION; Pg. A02

DISTRIBUTION: Maryland

LENGTH: 544 words

HEADLINE: Climate Findings Were Distorted, Probe Finds; Appointees in NASA Press Office Blamed

BYLINE: Juliet Eilperin; Washington Post Staff Writer

BODY: An investigation by the NASA inspector general found that political appointees in the space agency's public affairs office worked to control and distort public accounts of its researchers' findings about climate change for at least two years, the inspector general's office said yesterday. The probe came at the request of 14 senators after The Washington Post and other news outlets reported in 2006 that Bush administration officials had monitored and impeded communications between NASA climate scientists and reporters. James E. Hansen, who directs NASA's Goddard Institute for Space Studies and has campaigned publicly for more stringent limits on greenhouse gases that contribute to global warming, told The Post and the New York Times in Sep- tember 2006 that he had been censored by NASA press officers, and several other agency climate scientists reported similar experiences. NASA and the National Oceanic and Atmospheric Administration are two of the government's lead agencies on climate change issues. From the fall of 2004 through 2006, the report said, NASA's public affairs office "managed the topic of climate change in a manner that reduced, marginalized, or mischaracterized climate change science made available to the general public." It noted elsewhere that "news releases in the areas of climate change suffered from inaccuracy, factual in- sufficiency, and scientific dilution." Officials of the Office of Public Affairs told investigators that they regulated communication by NASA scientists for technical rather than political reasons, but the report found "by a preponderance of the evidence, that the claims of inappropriate political interference made by the climate change scientists and career public affairs officers were more persuasive than the arguments of the senior public affairs officials that their actions were due to the volume and poor quality of the draft news releases." The political interference did not extend to the research itself or its dissemination through scientific journals and conferences, the investigators said. "We found no evidence indicating NASA blocked or interfered with the actual research activities of its climate scientists," the report said, but as a result of the actions of the political appointees, "trust was lost, at least temporarily, between the agency and some of its key employees and perhaps the public it serves." Page 2 Climate Findings Were Distorted, Probe Finds; Appointees in NASA Press Office Blamed The Washington Post June 3, 2008 Tuesday

Kristin Scuderi, a spokeswoman for the White House Office of Science and Technology Policy, said in an e-mail that director John H. Marburger III "would not comment until he's reviewed the report, and he has not yet done so yet. Therefore, OSTP has no comment at this time." Sen. Frank Lautenberg (D-N.J.), one of the senators who pressed for the investigation, said in a statement that the report showed that citizens had been denied access to critical scientific information that should inform public policy. "Global warming is the most serious environmental threat we face -- but this report is more evidence that the Bush Administration's appointees have put political ideology ahead of science," Lautenberg said. "Our government's response to global warming must be based on science, and the Bush Administration's manipulation of that information violates the public trust."

GRAPHIC: IMAGE; James Hansen told of being censored.

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John P. Higgins Jr. Exhibits EXHIBIT 1 Page 1

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November 1, 2005

SECTION: Pg. 12(1) Vol. 41 No. 11 ISSN: 1537-5749

ACC-NO: 138660002

LENGTH: 471 words

HEADLINE: Investigation finds no propaganda but questions linger; Government Accountability Office's report on government education policies advertising contracts

BYLINE: Pascopella, Angela

BODY: An investigation of the U.S. Department of Education's public relations contracts found both "covert propaganda" in one contract and "no covert propaganda" in other contracts. An investigation by the Government Accountability Office found theBush administration violated the law by buying favorable coverage ofgovernment education policies via payments to conservative commentator Armstrong Wil- liams and by hiring a company to analyze media perceptions of the Republican Party. While the Williams situation was found to be "covert propaganda," a separate investigation found that there was "no covert propaganda" among other contracts. The "Final Inspection Report" by the Office of Inspector General John P. Higgins Jr., released in September, found that millions of dollars were used to promote Bush administration policies in newspapers and brochures, which is standard procedure, but it did not reveal they received taxpayer funds, which is required under law. The two investigations started with Williams' past promotion of NoChild Left Behind. Williams' public relations firm, Graham Williams Group, bought ad space in 2003 on a television show he owns and hostspromoting Bush's education law, and then used his column to support the legislation. Higgins' report found that three previous grants investigated resulted in newspaper op-ed pieces and did not include disclaimer language to reveal that they were paid for with taxpayer money. But, the report states there was no evidence the department awarded these grants with "intent to influence public opinion." But according to Rep. George Miller's office, which requested the probe, the finding of "no covert propaganda" is "ridiculous." When the grant recipients' did not divulge they were using DOE funds to promote Bush's policies, the DOE is either incompetent or ignorant, according to Tom Kiley, Miller's spokesman. "It's about incompetence that rises to an unbelievable level because ... they're not assessing where the money is going. Or they are turning a blind eye to this," Kileysays. The U.S. Department of Education declined to comment, saying all information was in the report. Rep. Miller says the issue represents a bigger picture of "a sort of breakdown of accountability and responsibility in the administration," Kiley says. "People should know their taxpayer funds are used wisely. This is not a wise use of their money." www.ed.gov Full Disclosure Page 2 Investigation finds no propaganda but questions linger; Government Accountability Office's report on government education policies advertising contracts District Administration November 1, 2005

The Final Inspection Report also found that in 10 of 11 cases examined, the groups that received funds and promoted Bush education policies did not disclose in media--like pamphlets, radio ads, brochures,videos or postcards--that taxpayer funds were used. The contracts totaled $4.7 million. The Office of Inspector General's report recommends administration officials consider asking for some of that money back.

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April 25, 2005 Monday FINAL EDITION

SECTION: DENVER & THE WEST; Pg. B-07

LENGTH: 414 words

HEADLINE: EDITORIAL Pundit payola doesn't pay off

BODY: The U.S. Education Department has gotten nothing but grief since word leaked out that it had paid commentator Armstrong Williams to promote its No Child Left Behind education policy. Now it turns out the government didn't even get its money's worth. A report released last week said that the department paid Williams for advertisements that were sometimes of poor quality or never reached the targeted audiences. Some of the advertisements it paid for were never even made. The investigation by Education Department inspector general John P. Higgins Jr. concluded that hiring Williams was not illegal or unethical but reflected poor judgment and bad management on the part of then-education secretary Rod Paige and his top aides. Paige had denied that Williams was hired to promote policy, but new education secretary Margaret Spellings has distanced the department from the deal in no uncertain terms. Spellings, who took office in January, acknowledged "serious lapses in judgment by senior department officials" and said those responsible are no longer at the agency. Spellings called the hiring "stupid" and "ill advised." The department approved $240,000 for Williams to promote President Bush's No Child Left Behind initiative. The contract was to fund production of TV ads promoting the initiative and called for Williams to "regularly comment" on the law during his syndicated broadcasts - and to encourage other producers to do so the same. The deal was part of a $1.3 million agreement with the public relations firm Ketchum Inc. We take a special interest in the inspector general's report because The Denver Post subscribed to Williams' syndicated column for almost a year. We canceled the column when the government arrangement was discovered by USA Today. Williams has properly apologized for the ethical lapse that utterly compromised his independence as a columnist. President Bush has said that the White House did not know in advance of the pundit's hiring and that it was wrong. But administration officials have hired two other conservative columnists to promote its agenda, leaving one to wonder if the practice is even more widespread than is known. Higgins' report did not touch on whether the administration violated the federal ban on covert domestic propaganda. Investigators at the Government Accountability Office are looking into that. No matter the finding, it's clear the Armstrong Williams contract was an egregious mistake - and no bargain for the taxpayer.

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The Washington Post

April 21, 2007 Saturday Met 2 Edition

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DISTRIBUTION: Maryland

LENGTH: 917 words

HEADLINE: Key Initiative Of 'No Child' Under Federal Investigation; Officials Profited From Reading First Program

BYLINE: Amit R. Paley; Washington Post Staff Writer

BODY: The Justice Department is conducting a probe of a $6 billion reading initiative at the center of President Bush's No Child Left Behind law, another blow to a program besieged by allegations of financial conflicts of interest and cronyism, people familiar with the matter said yesterday. The disclosure came as a congressional hearing revealed how people implementing the $1 billion-a-year Reading First program made at least $1 million off textbooks and tests toward which the federal government steered states. "That sounds like a criminal enterprise to me," said Rep. George Miller (D-Calif.), chairman of the House education committee, which held a five-hour investigative hearing. "You don't get to override the law," he angrily told a panel of Reading First officials. "But the fact of the matter is that you did." The Education Department's inspector general, John P. Higgins Jr., said he has made several referrals to the Justice Department about the five-year-old program, which provides grants to improve reading for children in kindergarten through third grade. Higgins declined to offer more specifics, but Christopher J. Doherty, former director of Reading First, said in an interview that he was questioned by Justice officials in November. The civil division of the U.S. attorney's office for the District, which can bring criminal charges, is reviewing the matter. Doherty, one of the two Education Department employees who oversaw the initiative, acknowledged yesterday that his wife had worked for a decade as a paid consultant for a reading program, Direct Instruction, that investigators said he improperly tried to force schools to use. He repeatedly failed to disclose the conflict on financial disclosure forms. "I'm very proud of this program and my role in this program," Doherty said in the interview. "I think it's been implemented in accordance with the law." The management of Reading First has come under attacks from members of both parties. Federal investigators say program officials improperly forced states to use certain tests and textbooks created by those officials. Page 2 Key Initiative Of 'No Child' Under Federal Investigation; Officials Profited From Reading First Program The Washington Post April 21, 2007 Saturday

One official, Roland H. Good III, said his company made $1.3 million off a reading test, known as DIBELS, that was endorsed by a Reading First evaluation panel he sat on. Good, who owns half the company, Dynamic Measurement Group, told the committee that he donated royalties from the product to the University of Oregon, where he is an associate professor. Two former University of Oregon researchers on the panel, Edward J. Kame'enui and Deborah C. Simmons, said they received about $150,000 in royalties last year for a program that is now packaged with DIBELS. They testified that they received smaller royalties in previous years for the program, Scott Foresman Early Reading Intervention, and did not know it was being sold with DIBELS. Members of the panel said they recused themselves from voting on their own products but did assess their competitors. Of 24 tests approved by the committee, seven were tied to members of the panel. "I regret the perception of conflicts of interest," said Kame'enui, former chairman of the committee, who now works at the department as commissioner of the National Center for Special Education Research. "But there was no real conflict of interest being engaged in." The intricate financial connections between Reading First products and program officials extend beyond issues the committee explored yesterday. Another researcher, Sharon Vaughn, worked with Kame'enui, Simmons and Good to design Voyager Universal Literacy, a program that Reading First officials urged states to use. Vaughn was director of a center at the University of Texas that was hired to provide states advice on selecting Reading First tests and books. The publisher of that product, Voyager Expanded Learning, was founded and run by Randy Best, a major Bush campaign contributor, who sold the company in 2005 for more than $350 million. Now Best runs Higher Ed Holdings, a company that develops colleges of education, where former education secretary Roderick R. Paige is a senior adviser and G. Reid Lyon, Bush's former reading adviser, is an executive vice president. "I'm very disappointed and saddened by the information that was provided at the hearing today," said Lyon, who had been a strong defender of Reading First, which he said had nothing to do with his new job. "The issues appear much more serious than I had been led to understand." Despite the controversy surrounding Reading First's management, the percentage of students in the program who are proficient on fluency tests has risen about 15 percent, Education Department officials said. School districts across the country praise the program. Members of both parties continue to support the goals of Reading First even as they attack its management. Miller and Senate education committee Chairman Edward M. Kennedy (D-Mass.) joined Republicans yesterday in pledging to tighten restrictions on conflicts of interest in No Child Left Behind. Education Secretary Margaret Spellings, who declined to comment yesterday, has said management problems with Reading First "reflect individual mistakes." But Doherty said nearly every aspect of the program was carefully monitored by the department and the White House, where Spelling was Bush's top education adviser. "This program was always firmly under the watch and control of the highest levels of the government," Doherty said. Staff writer Carol D. Leonnig contributed to this report.

LOAD-DATE: April 21, 2007

EXHIBIT 3 Bush Brother’s Firm Faces Inquiry Over Purchases - New York Times Page 1 of 4

HOME PAGE MY TIMES TODAY'S PAPER VIDEO MOST POPULAR TIMES TOPICS My

Washington

WORLD U.S. N.Y. / REGION BUSINESS TECHNOLOGY SCIENCE HEALTH SPORTS OPINION ARTS S

AUTOS

POLITICS WASHINGTON EDUCATION

Bush Brother’s Firm Faces Inquiry Over Purchases More Art

By MARILYN W. THOMPSON Published: November 7, 2007 Today' E-MAIL

WASHINGTON, Nov. 6 — The inspector general of the Department of PRINT

Education has said he will examine whether federal money was REPRINTS

inappropriately used by three states to buy educational products from SAVE

a company owned by Neil Bush, the president’s brother. SHARE

MOST PO John P. Higgins Jr., the inspector E-MAILE general, said he would review the

matter after a group, Citizens for 1. N Responsibility and Ethics in Washington, detailed at least 2. M $1 million in spending from the No Child Left Behind 3. Th program by school districts in Texas, Florida and Nevada 4. W Ca to buy products made by Mr. Bush’s company, Ignite Learning of Austin, Tex. Mr. Higgins stated his plans in a letter to the group sent last week.

Members of the group and other critics in Texas contend Luis M. Alvarez/Associated Press that school districts are buying Ignite’s signature product, Ignite Learning is owned by Neil Bush, the president’s brother. the Curriculum on Wheels, because of political considerations. The product, they said, does not meet standards for financing under the No Child Left Behind Act, which allocates federal money to help students raise their achievement levels, particularly in elementary school reading.

Ignite, founded by Neil Bush in 1999, includes as investors his parents, former President

http://www.nytimes.com/2007/11/07/washington/07neil.html?scp=1&sq=bush%20brother%... 6/5/2008 Bush Brother’s Firm Faces Inquiry Over Purchases - New York Times Page 2 of 4

George H. W. Bush and his wife, Barbara. Company 5. Sta officials say that about 100 school districts use the 6. The Curriculum on Wheels, known as the Cow, which is a Far portable classroom with software to teach middle-school 7. Op social studies, science and math. The units cost about 8. Pet $3,800 each and require about $1,000 a year in 9. Ma maintenance. His 10. Per Wo Ken Leonard, the vice president and chief financial officer Ignite Learning Go to Co The Curriculum on Wheels. at Ignite, said the company had no way of knowing if districts were using federal money to buy its products. Ignite’s Web site advises potential clients that it is appropriate to make purchases with No Child Left Behind dollars, as well as federal money for poor and disadvantaged children and special education students.

“We have absolutely no influence or control over decisions our individual customers make about how they choose to purchase our products,” Mr. Leonard said, adding that Ignite sold its products in “an ethical, straightforward manner.”

Ignite also has a program called Adopt-a-Cow in which corporations buy the equipment Ali Lo and donate it to schools or to charities supporting school districts. An Ignite spokesman Also in T said seven Cows were donated last year to the Fund for Public Schools in New York City. Where Very | More f The citizens’ group obtained documents through a Freedom of Information Act request showing that the Katy Independent School District west of Houston used $250,000 in state and federal Hurricane Katrina relief money last year to buy the Curriculum on ADVERTI Wheels. All the ne

The district’s director of special education, Fred Shafer, supported the purchases, telling In a world facts first

other officials that “all the kids love the Cow, and it really meets the needs of the students Which m list? with disabilities,” according to an internal e-mail message obtained by the citizens’ group. Need to Mr. Shafer did not return calls for comment. Get 50% Times. Neil Bush has assertively marketed the Cow and, according to the company, the product has been placed in 22 states. This summer, Ignite announced plans to expand into China.

The citizens’ group says it has documented only a small part of the federal money spent on Ignite products. Ignite has had strong support from districts in Texas, President Bush’s home state. This week, the Houston Independent School District is set to consider whether

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to authorize schools to spend an additional $300,000 from various financing sources on the Curriculum on Wheels.

Jay Spuck, a former curriculum director for the district, has criticized spending on the Ignite product, saying: “It’s not helping kids at all. It’s not helping teachers. The only way Neil has gotten in is by his name.”

Much of the product’s success in Texas dates from a March 2006 donation by Barbara Bush, who gave eight units to schools attended by large numbers of hurricane evacuees.

Neil Bush followed up with an e-mail message telling the district that “in order for the schools to keep the Cows in subsequent years they will have to pay an annual fee of $1,000,” according to documents obtained by the citizens group.

Melanie Sloan, executive director of the group, referring to No Child Left Behind, said: “A constant principle of N.C.L.B. is that children must be taught using scientifically proven methods. Ignite’s Cows simply don’t meet N.C.L.B. standards. This suggests that the real reason N.C.L.B. funds are expended on Ignite is because the founder and C.E.O. is the president’s brother.”

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21 of 24 DOCUMENTS

October 10, 2006

SECTION: JUSTICE DEPARTMENT PRESS RELEASES

LENGTH: 933 words

HEADLINE: Oracle Agrees to Pay $98.5 Million for False Pricing Information Provided by PeopleSoft to Obtain Government Contract; Firm Allegedly Misrepresented Its Discounting Practices

BODY: WASHINGTON -- Oracle Corporation (Oracle) has agreed to pay the United States $98.5 million to settle its liability for defective pricing disclosures made by PeopleSoft Inc. (PeopleSoft) during the negotiation of a contract under the General Services Administration (GSA) Multiple Award Schedule (MAS) program, Deputy Attorney General Paul J. McNulty, Assistant Attorney General Peter D. Keisler of the Justice Department's Civil Division, United States Attor- ney Rod J. Rosenstein of the District of Maryland, and GSA Inspector General Brian D. Miller, announced today. The settlement resolves allegations that PeopleSoft made pricing disclosures to GSA that were not current, accurate and complete concerning the sale of software licenses and related maintenance services. As a result of the defective disclosures, most federal purchasers under PeopleSoft's MAS contract paid inflated prices for purchases of software and services between March 17, 1997, and Sept. 30, 2005. Due to Oracle's acquisition of PeopleSoft, it inherited PeopleSoft's liability under the GSA contract. "GSA's Multiple Award Schedule program serves vendors and government purchasers by eliminating red tape while insuring that government agencies get a fair deal for the American taxpayer's procurement dollars," said Deputy Attorney General McNulty. "The program works well when vendors follow the disclosure rules and provide GSA with the information it needs to negotiate good prices for government purchasers. This agreement demonstrates the Depart- ment's determination to hold vendors accountable for abusing GSA's trust and damaging its programs." The payment is the largest ever obtained by the United States in a civil settlement under the False Claims Act involving the GSA's MAS program. Under the MAS Program, vendors agree to disclose their commercial pricing policies and practices in exchange for an opportunity to gain access to the broad federal marketplace and the ease of administration that comes from selling to hundreds of government purchasers under one central contract. GSA regulations require that vendors seeking an MAS contract disclose their "current, accurate and complete" commercial pricing policies and practices to GSA during negotiations. "I am proud of the collaborative efforts of the Commercial Litigation Branch, the U.S. Attorney's Office, the GSA Office of the Inspector General, and relator's counsel to protect the public fisc and strengthen the integrity of the federal procurement system," said Assistant Attorney General Keisler. "All companies that want to avoid their disclosure obligations while selling products to the United States government are on notice today that we will use the False Claims Act and all other civil legal tools at our disposal to fight fraud and abuse." The lawsuit alleged that during PeopleSoft's negotiation of its initial contract and two extensions of the contract's term, PeopleSoft understated the discounts it provided to commercial customers. More specifically, the suit alleged that PeopleSoft failed to disclose the true nature of its multiple product discounting practice, a program that afforded buyers incrementally steeper discounts off list prices or software products based on the number of products purchased at one time. This, plus the use of non-standard discounts, caused at least one 1994 customer to obtain discounts of up to 74 percent off the listed price. GSA relied on the faulty disclosures and negotiated MAS Program discounts for federal Page 2 Oracle Agrees to Pay $98.5 Million for False Pricing Information Provided by PeopleSoft to Obtain Government Contract; Firm Allegedly Misrepresented Its Discounting Practices Justice Department Docume customers that were much less favorable than the total discounts PeopleSoft's best commercial customers enjoyed. As a result, federal agencies overpaid for software and related maintenance. "Because PeopleSoft did not give GSA accurate pricing information, it negotiated higher prices for its products and services than it would have obtained if GSA had known the truth," said U.S. Attorney Rosenstein. "The substantial recovery in this case will help to ensure that vendors provide truthful information and the government pays a fair price for products and services." GSA Inspector General Miller said, "I want to commend the outstanding work of the Department of Justice, U.S. Attorney Rod Rosenstein and his office, and the GSA IG team for bringing this matter to a successful conclusion. GSA's MAS contracting program -- with sales of well over $30 billion in the last fiscal year -- depends on vendors' honesty in negotiations. PeopleSoft misled and overcharged the government for years. Without the auditors' specialized training and years of experience examining federal contracting arrangements, the wool would have remained over everyone's eyes and the taxpayers might have again taken a fleecing." This case was filed under the qui tam or whistleblower provisions of the False Claims Act by James A. Hicks in the U. S. District Court for the District of Maryland. Mr. Hicks is a former employee of PeopleSoft and the conduct alleged in the qui tam suit predated Oracle's acquisition of PeopleSoft. Hicks will receive $17,730,000 of the total recovery as his statutory award. Under the whistleblower provisions of the False Claims Act, private citizens known as "relators" can sue on behalf of the government to recover federal funds that were obtained by false or fraudulent claims, and receive a portion of the proceeds of a settlement or judgment awarded against the defendant. The settlement resulted from an investigation by the Civil Division of the Department of Justice, the U.S. Attor- ney's Office for the District of Maryland, and GSA's Office of Inspector General. ### 06-689

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August 27, 2007 Monday

SECTION: DAILY NEWS Vol. 1 No. 1

LENGTH: 397 words

HEADLINE: Grassley to GSA: Nix Sun deal; Vendor refuses to provide audit information

BYLINE: Matthew Weigelt, Washington Technology

BODY: Sen. Charles Grassley (R-Iowa) has asked the General Services Administration Administrator Lurita Doan to cancel its controversial Multiple Award Contract with Sun Microsystems. During the last several months, Grassley has been pushing GSA and Sun to address his concerns over the vendor's pricing strategy. The senator believes the vendor is not giving government customers its lowest pricing as required by its GSA Schedule contract. According to GSA's inspector general, Sun has overcharged the government by more than $25 million. But despite the pressure, the company has not provided information for an audit the senator requested, even after requests by a GSA contract officer and Inspector General Brian Miller, according to the senator. Sun also has not provided Grassley's office with its plan for bringing its pricing strategy back into compliance. "Quite frankly, Administrator Doan, I do not understand why Sun would refuse to cooperate fully with this audit," he wrote in an Aug. 24 letter. He questioned why Sun is refusing to hand over contract information and open its books for inspection. "It makes me wonder: Does Sun have something to hide?" he wrote. Sun supplied more information on Aug. 20. Although the new material is still under review, Grassley believe it lacks complete sales data and has no information on the plan. Grassley is especially concerned about the plan, writing that it was a major determining factor in the awarding of a contract extension to Sun. "If Sun is failing to comply with the terms of the contract, then I respectfully request that you consider initiating the cancellation of the contract as recommended by the Inspector General," Grassley wrote. Grassley and Sun's chairman, Scott McNealy, exchanged letters in July. Both want to reach a reasonable examination of Sun's GSA Multiple Award Schedule contract, especially its Price Reduction Clause. "We share the same goal of a fair and transparent process," McNealy wrote to Grassley on July 25. "Our only dispute is over how to get there." McNealy wrote that Sun believes Miller and his auditors "have a significant and well-documented conflict of interest and a demonstrated predisposition" against the company, and has asked that a third party conduct the audit. Grassley disagrees. Matthew Weigelt writes for Federal Computer Week, an 1105 Government Information Group publication.

Page 2 Grassley to GSA: Nix Sun deal; Vendor refuses to provide audit information Washington Technology August 27, 2007 Monday

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March 28, 2007 Wednesday

SECTION: Washington General News

LENGTH: 661 words

HEADLINE: GSA CHIEF TAKES HEAT FOR POLITICS IN AGENCY, NO-BID CONTRACT

BYLINE: JULIA MALONE

BODY: WASHINGTON - Democrats expressed outrage Wednesday at accounts that Scott Jennings, assistant to White House aide Karl Rove, briefed personnel at the General Services Administration on the top Republican "targets" for winning back Senate and House seats in the 2008 elections. Members of the House Oversight Committee said the gathering, an invitation-only brown bag lunch for presidential appointees, appeared to violate the federal Hatch Act, which bans most partisan activities in federal government offices. General Services Administrator Lurita Doan, testifying at the contentious hearing, told the panel that the teleconference session had been planned at the White House and not at the GSA, a normally obscure agency that oversees contracting and purchasing for much of the federal government. Chairman Henry Waxman, D-Calif., called the gathering a "textbook example of what should not happen" at a federal agency. Doan told the House investigators that she remembered almost nothing about the "PowerPoint" presentation at the Jan. 26 event, which she said was one of her staff's regular monthly "team-building" meetings. Democrats asked repeatedly whether she had made a statement such as, "How can we help our candidates?" as was reported by a handful of the attendees in interviews with the House committee staff. "I cannot recollect making that statement," Doan answered each time she was asked. An entrepreneur who built up a technology company and sold it before taking the GSA post last June, she offered an energetic and unapologetic defense. Telling the panel that she felt like the embattled lead character in the movie "Mr. Smith Goes to Washington," Doan said, "I'm facing a gazillion allegations." She asserted that all came as a reaction to "my attempt to impose fiscal discipline throughout GSA." Doan has come under fire on several fronts, including her attempt to give a $20,000 no-bid contract to a friend. Doan, who is African-American, said she was troubled to discover that her agency was graded "F" in accessibility to businesses owned by women, minorities and disabled veterans. She said she wanted to move quickly to correct the problem by hiring Diversity Best Practices, owned by Edie Fraser, who had been a consultant for Doan's private enterprise. "It is a passion of mine," she said of diversity efforts. She was forced to drop her plan when she was told such contracts require competitive bidding. The GSA chief was also challenged for her agency's renewal of a contract with Sun Microsystems, the technology provider, after a lengthy dispute and allegations of pricing fraud that have been relayed to the Department of Justice. Page 2 GSA CHIEF TAKES HEAT FOR POLITICS IN AGENCY, NO-BID CONTRACT Cox News Service March 28, 2007 Wednesday

The agency's inspector general, Brian D. Miller, a fellow Bush administration appointee, told the congressional hearing that Doan had broken with GSA precedent by intervening in the contracting process against the advice of career officers. Moreover, Miller said Doan had exhibited a "lack of candor" when questioned by his staff about her plans to grant a no-bid contract. The inspector general said his office had been forced to make cutbacks after Doan cut his budget allowance for investigations. Joining the critics was another Republican, Iowa Sen. Charles Grassley, who took the unusual step of speaking out at the House hearing. Grassley, long a defender for the role of inspectors general, added his concerns about the Sun Mi- crosystems contract. Republican House members stopped short of defending the White House-led political briefing at the GSA, but Rep. Tom Davis of Virginia brushed off the Democratic probe as "trifling" and filled with "accusatory conjecture." However, Democrat Stephen Lynch of Massachusetts listened to more than three hours of the hearing and told Doan that he was "deeply disappointed in your testimony" for the memory lapses and conflicting details. The lawmaker promised to "do everything I possibly can to get to the bottom of this." Julia Malone's email address is [email protected]

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EXHIBIT 8 Page 1 Sun withdraws from GSA Schedule Washington Technology September 14, 2007 Friday

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September 14, 2007 Friday

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LENGTH: 343 words

HEADLINE: Sun withdraws from GSA Schedule

BYLINE: Michael Hardy, Washington Technology

BODY: Sun Microsystems Inc. is canceling its General Services Administration schedule contract, the company has confirmed. The cancellation will take effect Oct. 12, according to Sun. A brief statement the company issued said, "We took this step reluctantly, as we have always valued our relationship with GSA and its team of committed professionals. Sun and GSA have enjoyed a successful relationship as partners for a number of years during which Sun has provided government agencies with some of the industry's most innovative, energy-efficient, open source and secure computing systems." The company has come under fire recently for allegedly not giving government customers its lowest prices, as the schedules program requires. Sen. Charles Grassley (R-Iowa) had been pushing both GSA and Sun to address his concerns over the company's pricing strategy. He has criticized the vendor for foot-dragging and refusing to turn over documents as part of a GSA Inspector General inquiry. In an exchange of letters between Grassley and Sun chairman Scott McNealy earlier this year, McNealy expressed concern that GSA IG Brian Miller had a conflict of interest and a bias against Sun. The IG recently concluded that Sun had overcharged government agencies by more than $25 million for its products, leading Grassley to call on GSA to cancel the contract. GSA Administrator Lurita Doan had earlier this week asked the President's Council on Integrity and Efficiency to help sort out the conflict. Doan, however, had said she would not cancel the contract. The contract would have expired in August 2009, according to GSA. Consultant Mark Amtower, partner at Amtower & Co., said Sun's decision comes as no surprise. "Although this issue was probably resolvable, it became less so with each statement from Sun or GSA, and worse when Grassley stepped in," Amtower said. "GSA is the big loser," because Sun has other governmentwide acquisition contracts to sell through, he said. Amtower said other manufacturers may consider leaving GSA now that Sun has shown it to be possible.

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April 2, 2007

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HEADLINE: GSA reputation takes a hit amid contracting impropriety charges

BYLINE: Ted Mckenna

BODY: WASHINGTON: A contentious congressional hearing held last week on allegedly improper General Services Ad- ministration (GSA) contracting and political activities threatened to further mar the reputation of an agency that helps oversee billions of dollars in annual government procurement, according to PR and marketing executives who specialize in government contracting. At a March 28 US House Committee on Oversight and Government Reform hearing, GSA head Lurita Doan stri- dently repeated in testimony previous assertions that her attempt to award a no-bid, dollars 20,000 research contract on diversity within the GSA to Diversity Best Practices and Business Women's Network, two PR firms owned by a former business associate, may have violated GSA procedures, but was an innocent and quickly fixed mistake. She said the contract had been terminated and no money changed hands. Participating Republican members railed against the hearing as part of a 'witch hunt' to unfairly impugn the GSA's reputation and that of the Bush administration as a whole. However, GSA inspector general (IG) Brian Miller testified that Doan was, at the time, determined to award the contract to the PR firms, despite advice from GSA's then-general counsel, Alan Swendiman, who told IG investigators Doan 'refused to sign the termination letter (Swendiman) prepared for her,' Miller said. Edward Blakely, GSA associate administrator for citizen services and communications, said that while no organization likes to have 'bad stories' told about it, Doan and GSA workers in general are very proud of the work the agency does and that Doan did a good job of defending herself at the hearing. 'I think our reputation wasn't damaged at all,' he said. 'We're pleased internally with how (she) made her case. It's a political town, and given the divided government, it's just the nature of the beast that these things happen. Who knows where this story will go?' A January 19 Washington Post article on Doan's dealings with the two PR firms triggered the committee's investigation, but this isn't the first time the GSA has been entangled in partisan politics. In 2006, David Safavian was found guilty of making false statements and obstructing investigations into his dealings with Republican lobbyist Jack Abramoff while Safavian was GSA chief of staff in 2002. The hearing also delved into a contract extension to Sun Microsystems that the IG claimed should have involved more favorable pricing terms. Eva Neumann, president of ENC Marketing & Communications, a consulting firm that specializes in federal procurement, said regardless of whether the allegations are true, they unfortunately contribute to a general perception that government contracting is mainly subject to personal connections and backroom dealing, as opposed to strict rules and regulations. Page 2 GSA reputation takes a hit amid contracting impropriety charges PR Week (US) April 2, 2007

'(When people) hear about someone in government allegedly misusing their authority - and, of course, they're not guilty until proven guilty - it's a stain on all the government workers who (do) a good job and work hard to make procurement fair and equitable,' Neumann said, even though most procurements are done fairly. O'Keeffe & Co. founder Stephen O'Keeffe, whose company works extensively with government IT contractors, noted that accusations about the propriety of the GSA's actions are extremely important because the agency's basic role is to arrange for fairly bid procurement contracts throughout the US government. 'GSA has to be beyond reproach,' he said. 'It's not just for (the sake of) American taxpayers, but also for other agencies because (they) are looking at GSA (in) trying to make decisions about how to handle their own procurements.' Doan was also grilled about partisan activities. She was questioned about a January 26 lunchtime meeting at GSA headquarters involving herself, White House deputy director of political affairs Scott Jennings, and 40-plus Bush administration political appointees at the GSA, attending in person or via teleconference - a meeting Democratic committee members and the IG characterized as a violation of the Hatch Act, which prohibits federal employees from engaging in political activities while on duty. Presented with the PowerPoint presentation used at the lunchtime meeting - which identified 'weak' Democratic candidates in the 2008 election - as well as statements by other meeting attendees that Doan had asked at its conclusion, 'How can we help our candidates?' or words to that effect, Doan repeatedly asserted that she had no memory of what she said and couldn't comment on it.

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Robert Misbin Exhibits EXHIBIT 1 Los Angeles Times http://www.888injured.com/propulsid/rezulinarticle.html

Sunday, June 4, 2000 Home Edition Section: Part A Page: A-1

SUNDAY REPORT

The Rise and Fall of the Killer Drug Rezulin

People were dying as specialists waged war against their FDA superiors. Patient safety was at stake in the scramble to keep a 'fast-track' pill on the U.S. market, research reveals.

By: DAVID WILLMAN TIMES STAFF WRITER

WASHINGTON -- The suffering persisted for more than two years. Initially, there were four known victims. Then 21. Then 33. Finally, 63 confirmed fatalities.

All the while, federal authorities watched, waited and hoped the deaths would stop.

It was not until a disparate collection of physicians inside the U.S. Food and Drug Administration waged a remarkable revolt that the agency was forced to reverse course. These specialists--dubbed the "Termites" by one medical officer--combined meticulous research and bluntly worded e-mail messages to upbraid their government superiors for contributing to the needless deaths of patients.

How the Termites prevailed in toppling Rezulin, a blockbuster diabetes drug that generated $2.1 billion in sales, illuminates one of the most important reversals in FDA history.

A reconstruction of Rezulin's rise and fall shows that senior government officials repeatedly played down the drug's propensity to cause liver failure and death. Before it was withdrawn on March 21, the FDA assured doctors and patients that Rezulin's potential benefits in lowering blood-sugar levels outweighed its grave risks.

Diary entries, internal correspondence and interviews with participants reveal the pivotal roles of separate factions inside the FDA: the Termites, spearheaded by the efforts of Dr. David J. Graham, and the agency's most senior officials, led by Dr. Murray M. "Mac" Lumpkin.

As deputy director of the FDA's drug-evaluation center, Lumpkin helped make Rezulin the nation's fastest-approved diabetes pill and, to the end, resisted its withdrawal.

Lumpkin said that he had no misgivings about keeping Rezulin on the market for so long. The drug finally was pulled, Lumpkin said, only when it became "outmoded" in comparison to newer pills for adult-onset diabetes.

After listening to Lumpkin defend the handling of Rezulin on May 19 at an FDA advisory committee meeting, one panelist, Dr. Jules Hirsch of Rockefeller University,

1 of 17 7/11/2008 1:11 PM Los Angeles Times http://www.888injured.com/propulsid/rezulinarticle.html

shook his head.

"I don't share the point of view of a wonderfully happy outcome, of how well the system has worked," Hirsch said. "Because a lot of people died of this thing. And a lot more people than we know died."

Indeed, the FDA's sustained support of Rezulin had consequences: 63 confirmed deaths from liver failure and thousands of liver injuries. Because adverse events from prescription drugs are reported voluntarily, typically by doctors and hospitals, Rezulin's estimated toll is perhaps 10 times higher, experts say.

As the deaths kept escalating, the FDA responded by recommending multiple regimens of blood testing, called "monitoring," as a means of safeguarding patients from liver failure. From the fall of 1997 through mid-1999, the FDA and the manufacturer, Warner-Lambert Co. of New Jersey, agreed to four liver-monitoring recommendations.

Yet no scientific proof existed then, or now, that monitoring would protect Rezulin patients, according to the FDA's own research and interviews with physicians.

"It was a hope," said Dr. Srini R. Vasa, a liver specialist based in Kansas City, Mo., who treated three Rezulin patients with liver failure, two of whom died. "There were a lot of lives lost and a lot of lives changed. . . . It did not make the drug safer."

The FDA has overseen withdrawals of nine prescription drugs since fall 1997, an unprecedented number within such a short span. However, of those nine, the agency granted "fast-track" approval to only one: the oval, tan pill marketed as a diabetes breakthrough.

Rezulin thus becomes a touchstone for federal policymakers and for the doctors, patients and family members so directly affected by the government's decisions.

This chronology of the struggle over Rezulin is based on previously undisclosed documents and scores of interviews conducted over the last three years with government and private physicians. Doctor Learns of Liver Failure Deaths

Anxiety washed over him in a flash.

It was a Friday afternoon in early October 1997 and Dr. Robert I. Misbin had just gotten vexing news from two Warner-Lambert executives: Patients taking Rezulin were beginning to die of liver failure.

When he hung up the phone at his government desk, Misbin felt a singular anguish. As an FDA diabetes specialist who advocated the approval of Rezulin, he had failed to confront the danger posed by the drug.

After relaying word to his supervisor, Misbin was alone with a central question:

How could this have happened?

Standing 5 feet, 11 inches, with prominent cheekbones, a graying beard and dark features, Misbin is not easily pigeonholed. His mien at first impression is one of unflinching seriousness.

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Next to an affinity for opera (he attends regularly and keeps a black-and-white picture of the late soprano Maria Callas framed in his living room), Misbin's passion is medical ethics. He has fundamental concerns about how patients are treated in clinical trials.

After graduating from Boston University Medical School, Misbin in 1976 arrived at Ceiba-Geigy, a drug company that then was defending its own lethal diabetes pill, called Phenformin.

Misbin, now 53, said that he found himself unable to accept the company's basic defense of Phenformin: Patients were dying because of preexisting complications or other factors, but not because of the drug itself.

In July 1977, the government declared Phenformin an "imminent hazard" and ordered its immediate banishment. Two decades later, Misbin would have feelings of deja vu about another flawed diabetes drug. Firm Seeks to Make Drug a 'Blockbuster'

By May 15, 1995, Misbin's first day as an FDA medical officer, Warner-Lambert was moving to position Rezulin for heavy sales. The company, a conglomerate that makes products ranging from Chiclets chewing gum to Listerine mouthwash, launched a multitiered strategy for transforming Rezulin into a "billion-dollar blockbuster."

Early slide-show pitches were made to Wall Street analysts, emphasizing the market of America's 15 million adult-onset diabetics and touting Rezulin's "new mechanism of action."

Warner-Lambert and its affiliates paid speaking or other fees to more than 300 doctors, from endocrinologists to family practitioners. The company flew diabetes specialists to the 1996 Olympic Games in Atlanta and provided accommodations at the Chateau Elan Winery and Resort.

Warner-Lambert also put on its payroll the government's top diabetes researcher, Dr. Richard C. Eastman, who at the same time oversaw the selection of Rezulin for use in a National Institutes of Health clinical trial.

Much of the excitement surrounding the emergence of Rezulin stemmed from its status as the first of a new class of drugs for treating adult-onset diabetes. Rezulin promised to lower blood sugar much the same as Glucophage, the market's top-selling diabetes pill, by helping the body better use its own insulin. Most of the eight other diabetes pills worked by stimulating the pancreas to secrete more insulin.

Patients with adult-onset, or Type 2, diabetes do not produce enough of their own insulin at the right moments or their bodies do not make efficient use of this hormone, which regulates the metabolism of blood sugar. Type 2 diabetes also can be treated effectively with changes in diet and exercise. The disease is distinguished from juvenile-onset, Type 1, diabetes, in which patients cannot produce their own insulin and would die without daily injections or infusions.

Soon after Warner-Lambert submitted its new-drug application for Rezulin in July 1996, the FDA for the first time in its history granted a six-month fast-track review to a diabetes pill. The FDA then was taking a year or more to examine standard new-drug applications.

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The assignment of vetting Rezulin's safety and effectiveness initially fell to Dr. John L. Gueriguian, a veteran FDA medical officer. Gueriguian "emphasized that [Rezulin] offered very little significant therapeutic advantage" over existing diabetes medications, according to a summary of an FDA staff meeting on Aug. 22, 1996.

By the fall of 1996, Gueriguian concluded that Rezulin was unfit for approval and warned of its potential to harm both the liver and the heart. But Gueriguian came under fire from Warner-Lambert executives, who contacted the FDA's Lumpkin to complain about Gueriguian's use of intemperate language.

Effective Nov. 4, 1996, Lumpkin ordered Gueriguian removed from the evaluation of Rezulin and any further dealings with Warner-Lambert, according to physicians familiar with the matter. Gueriguian's medical review also was purged from agency files.

These actions sent an early and enduring message within the FDA: Challenging Rezulin was not without risk to one's career. More Study Brings Unsettling Conclusion

"We have real trouble."

With this entry in his personal diary in October 1997, Misbin described prophetically the darkening turn of events.

He recalls being startled the afternoon of Friday, Oct. 10, when the two Warner-Lambert executives informed him of the first liver failures.

Before recommending a regulatory response, Misbin studied Warner-Lambert's original research and the recent cases of liver damage. He reached an unsettling conclusion.

"We knew the essential truth--that Rezulin could cause liver failure," Misbin recalled. "There was a potential for a disaster."

The FDA is obligated under federal law to ensure that new and existing prescription drugs are safe and effective for their intended use. The agency's quandary of what to do about Rezulin, medical experts say, was framed by this reality:

Compared to the constant risk of liver failure, patients would need to take Rezulin for years to gain potential benefits that could lessen the serious complications of diabetes, such as blindness or amputation. And Rezulin was one of 10 pills available to lower blood-sugar levels for adult-onset diabetics.

On the other hand, many doctors who were prescribing the drug urged the government not to take away a new anti-diabetes treatment.

At the FDA, the official who manages the agency's response to unexpected deaths from a prescription drug is Lumpkin. He also is the official directly responsible for ensuring that new drugs are reviewed and approved faster than ever before.

The FDA's newfound emphasis on speed--as well as less-adversarial dealings with industry--has been pushed by lawmakers from both political parties. Pharmaceutical companies in the past have criticized the FDA for taking longer than European authorities to approve new drugs. Lumpkin and his boss, Dr. Janet Woodcock, are the two FDA officials directly responsible for meeting the agency's new objectives.

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Stocky and hard-driving, Lumpkin, 46, graduated from Wake Forest University School of Medicine. He specialized in pediatric infectious disease at the Mayo Clinic and directed international research for Abbott Laboratories, a major pharmaceutical firm, before coming to the FDA in 1989. As deputy director of the FDA's Center for Drug Evaluation and Research, Lumpkin was the chief firefighter for Rezulin's wildfires.

And by the fall of 1997--seven months after its arrival on the U.S. market in March-- Rezulin had become a difficult-to-contain blaze. Patient Monitoring Seen as a Remedy

Within three weeks of the first acknowledged liver failure cases on Oct. 10, 1997, the FDA and Warner-Lambert jointly devised a remedy: Rezulin patients should have their liver functions monitored by blood test every two to three months during the first year of use.

The FDA and the company hoped that blood testing would detect liver injury early enough to alert patients to stop taking Rezulin and avert the catastrophe of organ failure. The FDA predicted in a statement on Nov. 3, 1997, that "few, if any of these patients will go on to develop permanent liver damage if the drug is stopped." At this point, the agency confirmed four liver failure deaths.

But less than a month after announcing this remedy, officials at the FDA learned of a disturbing development. Authorities in Britain were planning to announce Rezulin's withdrawal from the British market on Dec. 1, 1997.

British officials, informed of six fatalities linked to Rezulin, had concluded that the drug's risks outweighed its benefits.

The mind-set of British authorities was detailed in a Nov. 26, 1997, e-mail message from Lumpkin to Woodcock, his superior and director of the FDA's drug review center.

"They believe that the deaths and serious toxicities are primarily seen after greater than 3 months exposure," Lumpkin wrote in his e-mail. This analysis made "the apparent incidence of serious toxicity much greater than originally thought."

Lumpkin told Woodcock that "unless there is some leak," the revelation from Britain would stay sealed five more days.

The FDA, viewed for decades as upholding the gold standard for drug safety, was about to be upstaged by its counterpart, the British Medicines Control Agency. But the FDA, together with Warner-Lambert, raced to offset the pending news out of London.

Warner-Lambert maintained that the frequency of liver failure was extremely rare and insisted that the drug should remain on the U.S. market. In a Nov. 27 e-mail to the FDA, a Warner-Lambert vice president wrote:

"We are concerned about misleading physicians and patients as to the relative risk of Rezulin therapy."

The company's position was embraced at the FDA by Lumpkin. Instead of withdrawing Rezulin, the FDA and Warner-Lambert announced a second change in the drug's labeling.

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Rezulin patients were now advised to have their liver functions monitored monthly, instead of every two to three months, for the first half-year of use.

In a statement on Dec. 1, the same day that Rezulin's withdrawal was announced in Britain, the FDA said: "The increased monitoring of patients taking Rezulin is designed to detect those few patients in whom use of the drug can lead to serious liver damage."

Five months later, tragedy struck in St. Louis with the liver failure and death of Audrey LaRue Jones, a vivacious 55-year-old high school teacher.

Jones had been monitored closely as a volunteer participant in testing of Rezulin by the prestigious National Institutes of Health. Her death on May 17, 1998, challenged the usefulness of monthly liver monitoring.

"It had terrible implications for the drug itself," the FDA's Misbin said. "Because if the NIH couldn't protect a patient, then who could?"

Since the nationwide clinical trial explored whether Rezulin could prevent diabetes, none of the 580 participants taking the drug had the disease.

Within three weeks of Jones' death, officials at the NIH banished Rezulin from the clinical trial, citing safety concerns.

At the FDA, however, regulators did not broach even the possibility of withdrawing Rezulin, said several physicians familiar with the matter.

On July 28, Warner-Lambert announced that the company and the FDA had agreed to a third labeling change: Instead of monthly monitoring for half a year, patients were advised to submit to testing for the first eight months of use.

By now, 21 patients had died of Rezulin-related liver failure.

In Britain, meanwhile, authorities were considering whether to allow reintroduction of Rezulin. A doctor at the British Medicines Control Agency wrote Lumpkin on Sept. 4 requesting any "new data" showing "additional benefits" of Rezulin over other diabetes pills. A subordinate to Lumpkin responded on Oct. 16: "We do not have any recent . . . data regarding additional benefits of" Rezulin.

The British, again citing safety concerns, later refused to allow reintroduction of Rezulin. British authorities explained their position during a video conference with their FDA counterparts. According to an FDA participant, one British official said that the benefits offered by Rezulin were "nothing that isn't already there with other drugs." New Commissioner Seeks Reevaluation

Newly appointed FDA Commissioner Jane E. Henney ordered a reevaluation of Rezulin in January 1999, in response to a Los Angeles Times investigative series that disclosed at least 33 liver failure deaths attributable to Rezulin.

Graham, the agency's leading specialist in evaluating and preventing deaths caused by prescription drugs, was assigned the job.

Wiry, with closely cropped auburn hair, Graham, 46, is a rare breed at the FDA. He has

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nothing to do with reviewing new drugs. His responsibility is to examine medicines already on the market.

At a time when nearly half of all Americans regularly take one or more prescription drugs, Graham's work is of crucial importance.

Trained at Yale and Johns Hopkins medical schools, Graham's straight-arrow approach was unaffected by the rough-and-tumble of 15 years inside the FDA: Delivering bad news about a hot-selling drug could stymie a career. Senior FDA officials could not be counted on to provide support. Full-throated opposition often would come from the product's manufacturer.

While Warner-Lambert tapped an array of specialists to defend Rezulin, Graham had the assistance of one colleague, pharmacist Lanh Green. They began studying the harm done to patients, the extent to which liver-monitoring recommendations had been followed and the ongoing risks of taking Rezulin.

Within two months, Graham amassed an indictment of Rezulin. He presented his research on March 26 to an FDA advisory committee--the same panel that had unanimously endorsed the drug's approval. Among Graham's findings:

* An estimated 430 or more Rezulin patients had suffered liver failure.

* Patients incurred 1,200 times more risk of liver failure by taking Rezulin.

* One of every 1,800 Rezulin patients could be expected to suffer liver failure, a far cry from the 1-in-100,000 risk espoused by a Warner-Lambert spokesman.

* Regular liver monitoring offered no safety guarantee, in part because Rezulin could so quickly and unpredictably damage the liver, sometimes within days. And more than 99% of patients taking Rezulin for four months or longer failed to follow the liver-monitoring recommendations.

Graham also described the deaths of Audrey Jones and another woman, Rosa Delia Valenzuela, who had died in a clinical trial despite undergoing monitoring. Valenzuela, 63, of Arcadia, Calif., was struck with liver failure about a month after taking Rezulin as a participant in a Warner-Lambert clinical trial.

Warner-Lambert's representatives told the advisory committee that Rezulin could not be held responsible for many of the liver failures. They cited factors such as preexisting medical conditions.

The committee was unpersuaded by Graham and voted, 11 to 1, to recommend keeping Rezulin on the market. Three of the panelists had received compensation from Warner- Lambert or an affiliate; they were granted conflict-of-interest waivers by the FDA.

After the meeting, the FDA's Woodcock promptly distanced herself from Graham's presentation. She said that it was based on "a very broad range . . . of best guesses."

Graham also was admonished by his immediate boss for the breadth of his report to the committee, he told acquaintances. The FDA declined to allow Graham to comment for this article.

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As the advisory committee members dispersed from the March 26 meeting, tragedy again was unfolding. Another Rezulin patient, despite undergoing monthly monitoring in a Warner-Lambert clinical trial, lay near death.

Three days later, 37-year-old Adrian C. Seay died at nearby Washington Hospital Center. The District of Columbia medical examiner identified the cause of death as liver failure "following treatment with" Rezulin.

On June 16, the FDA agreed to yet another labeling change, the fourth for Rezulin.

Patients and doctors were advised that liver monitoring should be conducted monthly for the entire first year, instead of eight months. The FDA also said that new diabetes patients should no longer use Rezulin initially as a stand-alone treatment. New Recommended Use for Drug OKd

But the FDA was hardly renouncing Rezulin. In addition to keeping the drug on the market, the agency approved Warner-Lambert's request for a new recommended use of Rezulin, in combination with two other popular blood-sugar-lowering pills.

The FDA's handling of Rezulin was ridiculed at a June conference sponsored by Georgetown University Medical Center. Dr. Alastair J.J. Wood, a Vanderbilt University professor who also is drug therapy editor of the New England Journal of Medicine, likened the FDA's label changes to managing the risk posed by a steep cliff.

"The point was, you don't keep putting up more and more signs if people continue falling off the cliff," Wood said. "You try to do something more definitive, like try to prevent them from falling off. You put up a fence."

By late 1999, the tragedies persisted.

The Times disclosed on Dec. 15 that the FDA had received reports of 21 additional liver failure deaths since Graham's presentation. Graham, acting with the knowledge of his supervisor, began preparing an updated analysis.

At the start of the new year, Graham told his fellow Termites that he was readying a knockout blow of Rezulin. He had amassed a case so strong that no one at the FDA could resist any longer.

Or so Graham hoped.

On Jan. 6 of this year, Graham shared his latest findings regarding Rezulin's toll at an FDA staff meeting. In attendance was Dr. Robert J. Temple, one of the agency's most respected scientists. As director of one of the FDA's five drug-review offices, Temple was a subordinate, on paper, to Lumpkin and Woodcock. But his reputation, built over 28 years inside the agency, was without peer. In a room of mostly mid-level medical officers, Temple's every word and gesture counted.

First, he raised the precedent of the "imminent hazard" withdrawal in 1977 of Phenformin, the diabetes drug Misbin had dealt with at Ceiba-Geigy.

This was useful context. But where, his colleagues wanted to know, did Temple stand on Rezulin? All eyes were fixed on him.

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Temple briskly slashed two fingers across his throat. Specialists Asked to Look at 2 Other Drugs

As the session ended, the Termites were emboldened. A consensus had formed for Rezulin's prompt withdrawal.

But any such hope was doused on Jan. 13, when Lumpkin met with the same FDA specialists.

Lumpkin directed them to shift focus and assess the safety of two newer chemical cousins of Rezulin. The FDA had granted rapid approval to these diabetes drugs, Avandia and Actos, in mid-1999 after they were found to be far less toxic to the liver.

Several FDA physicians viewed Lumpkin's approach as diversionary. Rezulin, they said, should stand or fall on its own merits.

Lumpkin created further delay by scheduling two private meetings between FDA staff members and Warner-Lambert executives on Feb. 2 and March 1.

At the first meeting, Graham pointed out that the FDA had received reports of liver failure among patients who had taken Rezulin for eight to 18 months. This clashed with the company's earlier claim that the risk "substantially declines after six to eight months of therapy."

Some of the most pointed questions came from Temple and Misbin. They were skeptical of the company's claims that liver monitoring worked.

"How many more unnecessary deaths will it take before you take action?" Misbin asked the company.

As of early February, the FDA press office confirmed 85 cases of liver failure, including 58 deaths. This was nearly twice the number of liver failures acknowledged by the FDA a year earlier.

Nevertheless, the FDA brass continued to endorse Rezulin.

On Feb. 24, Woodcock issued a statement reaffirming the agency's confidence in the drug, saying that "in many patients it has proven to be very effective." Her remarks showed that Rezulin continued to enjoy deep and well-connected support.

And doctors kept prescribing the drug. According to the pharmaceutical information company IMS Health, Rezulin during the preceding year generated $674 million in sales.

"People who felt that the drug was too risky really shouldn't have prescribed it," Woodcock said in an interview. "The information was available to them. . . . Everything we've done [has been] out in the open." FDA Session With Firm Seen as Pivotal

The Termites, their ranks now swollen to about a dozen agency specialists, did not retreat. They made known to colleagues their conclusion that Rezulin should be withdrawn.

The March 1 meeting with Warner-Lambert loomed pivotal. The Termites were bracing

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for more resistance from the top. Senior FDA officials were determined to keep the session shrouded in confidentiality.

Saying that they suspected a Times reporter was inside the agency's high-security headquarters in Rockville, Md., officials at midday shifted the 4 p.m. meeting a few miles north, to a conference room next to the sixth-floor offices of Woodcock and Lumpkin.

Behind closed doors, Lumpkin broached the option of bringing Rezulin for a third time to the FDA advisory committee, the panel that had overwhelmingly endorsed the drug in December 1996 and again in March 1999.

Lumpkin's suggestion, several participants said, meant that the drug might stay on the market indefinitely.

Warner-Lambert proposed that Rezulin remain on the market for as long as two years while the company conducted new studies measuring the frequency of liver failure.

Dr. Solomon Sobel, until recently director of the FDA's endocrine drug division, questioned the company's claim that doctors and patients at last had complied with the monitoring recommendations.

Sobel, a hulking, soft-spoken man, had helped supervise the original fast-track approval of Rezulin. Now he too was telling colleagues that the drug should be withdrawn.

Another mid-level medical officer with responsibility over diabetes drugs, Dr. Saul Malozowski, also joined the Termites in pushing for Rezulin's withdrawal.

Lumpkin indicated to Warner-Lambert that no regulatory conclusion had been reached. But, Lumpkin made clear afterward, he was unconvinced that withdrawal of Rezulin was warranted. On March 2, one day after the meeting, Lumpkin wrote in an e-mail that his subordinates were relying on "soft hypotheses."

Lumpkin then left the agency for several days, traveling to the French Riviera for a meeting of the Drug Information Assn., an industry group on whose board he sits.

The Termites feared the FDA would stand pat and that avoidable deaths would continue.

By March 3, Graham had seen and heard enough.

He dropped a bomb: an e-mail addressed to Lumpkin and 13 other FDA officials. Graham's message could embarrass, if not render untenable, the position of Rezulin's defenders.

He wrote that Warner-Lambert's claims of safety, long accepted by senior FDA officials, were "contradicted" by the scientific record.

"There are no existing data anywhere to suggest or support the hypothesis that monthly monitoring can or in fact does prevent drug-induced liver failure," he declared. "This idea, translated into policy through labeling, is entirely unproven and represents an imagined, artificial hope, not reality."

Graham concluded:

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"At each juncture in the management of Rezulin's liver failure risk, hindsight shows that we had little or no effect and that [Warner-Lambert's] assertions that the liver failure problem was solved, were proved false. . . . The data at hand should persuade us that Rezulin is unsafe compared to other available therapies and that its marketing be stopped." Doctor Takes on Role of Whistle-Blower

Until early March, the Termites had confined their opposition to within the FDA.

That was about to change.

Misbin, the longtime champion of Rezulin, had concluded that the drug must go.

"I consistently underestimated the rapidity with which Rezulin could damage the liver . . . ," Misbin recalled in a recent interview. "I have underestimated the virulence of Rezulin."

Misbin seized the role of whistle-blower. He reached for an audience the FDA could not ignore: Congress.

Misbin wrote to Rep. Henry A. Waxman (D-Los Angeles) and seven other lawmakers. He turned over internal e-mails regarding the agency's handling of Rezulin. He shared damning correspondence sent to him by a St. Louis physician who conducted early research for Warner-Lambert.

The doctor, Janet B. McGill, alleged that the company "deliberately omitted reports of liver toxicity and misrepresented serious adverse events experienced by [Rezulin] patients in their clinical studies."

Misbin soon, however, found himself under an FDA internal-affairs investigation for allegedly disseminating confidential agency materials. The inquiry was initiated based on a complaint by Warner-Lambert that "someone had leaked nonpublic information" from agency files, according to Melinda K. Plaisser, an FDA associate commissioner.

On March 13, a senior FDA official warned Misbin:

"You are required to cooperate with the investigation and failure to cooperate may result in disciplinary actions up to an[d] including dismissal from federal service."

Misbin was undeterred. He refused to answer investigators' questions unless they were posed in writing.

Another agency medical officer, 72-year-old Dr. Leo Lutwak, also was targeted. Two internal affairs agents asked Lutwak if he had given The Times a Jan. 24 e-mail written by Misbin. After the interrogation, Lutwak said, the agents warned that if his statements were proved to be untruthful he was at risk of imprisonment.

First the defrocking of Gueriguian. Then the admonishing of Graham. Now an investigation of Misbin and Lutwak. For many inside the FDA, the message was unmistakable: Oppose Rezulin at your peril. FDA Briefing Yields No Pronouncement

The FDA at this point had linked 89 voluntarily reported liver failures, including 61 deaths, to the use of Rezulin.

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On March 15, Woodcock and Lumpkin were summoned to the 14th-floor office of FDA Commissioner Henney for a confidential discussion of Rezulin.

On the job since June 1998, Henney had said virtually nothing publicly about Rezulin. Her detachment contrasted with her predecessor, Dr. David A. Kessler, whose activism made him a formidable national figure.

Following the briefing, Henney again made no pronouncement about Rezulin. The drug's day-to-day fate remained in the hands of Woodcock and Lumpkin. They scheduled another staff meeting to discuss Rezulin.

For the Termites, this was perhaps their last chance.

At 2:30 p.m. on Tuesday, March 21, Woodcock, Lumpkin, Misbin, Graham, Temple, Sobel and nearly a dozen other agency specialists gathered for a round-table discussion at the FDA's "Woodmont 2" office building in Rockville.

Graham focused on how, in his view, patients incurred increased risk of liver failure the longer they stayed on Rezulin. He estimated that 20 liver failures were occurring each month.

After two hours, Woodcock adjourned the meeting without declaring her or the agency's position. She then huddled in her office with a handful of subordinates, including Lumpkin and Temple.

The moment reflected more than one drug's destiny: Lumpkin and Woodcock had captained the FDA's shift to accelerated approvals and less-adversarial relations with drug companies, a new paradigm epitomized by Rezulin.

By this point, the FDA had overseen the withdrawal of seven medications in 2 1/2 years. The fate of Rezulin posed unique sensitivity: It was the only therapy approved on a fast-track--and by the same FDA officials who were now sitting in final judgment of the drug.

Lumpkin and Woodcock had cited the absence of more withdrawals as evidence that the agency's faster approvals were not compromising safety. "The steady, if not declining, rate of withdrawals is particularly reassuring," they wrote in a May 1999 issue of the Journal of the American Medical Assn.

All of which meant that, if Lumpkin and Woodcock sought the withdrawal of Rezulin, they risked further discrediting the FDA's faster, less-adversarial approach.

For Rezulin, the agency had confirmed 63 liver failure deaths by the deliberations of March 21.

Nightfall was approaching. Lumpkin made one last attempt to avert Rezulin's immediate withdrawal, according to officials familiar with the discussion. He suggested scheduling another meeting with the advisory committee to reassess Rezulin. Temple objected, saying that more delay was unjustified.

The decision was now Woodcock's. It had been 29 months and 11 days since the FDA received the first reports of liver failure. She phoned executives at Warner-Lambert's

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headquarters in Morris Plains, N.J.

By 7:30 p.m., the FDA issued a statement disclosing that the company had agreed to immediately withdraw Rezulin. In the statement, Woodcock observed:

"We are now confident that patients have safer alternatives."

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC) FDA Senior Officials

FDA decision-makers who kept Rezulin on the market despite scores of confirmed liver failure deaths:

* * *

Dr. Jane E. Henney

53, the commissioner of the FDA, ordered a reassessment of Rezulin in January 1999 following disclosures in The Times concerning the agency's handling of the drug. Unlike her predecessor, Dr. David A. Kessler, Henney has maintained a low profile on the national stage.

* * *

Dr. Murray M. "Mac" Lumpkin

46, deputy director of the FDA's drug evaluation center, managed the "fast-track" approval of Rezulin. Lumpkin sided with the manufacturer of Rezulin in keeping the drug on the market for more than 29 months after the first reported liver failures and deaths.

* * *

Dr. Janet Woodcock

51, director of the FDA's drug evaluation center, distanced herself from Dr. David J. Graham's findings in March 1999 and insisted that the benefits of Rezulin outweighed its risks. Woodcock, who has led the FDA's shift to faster drug approvals and less-adversarial relations with industry, sought withdrawal of Rezulin on March 21.

* * *

Sources: FDA records, "Who's Who in America," interviews;

compiled by DAVID WILLMAN and JANET LUNDBLAD / Los Angeles Times

* * *

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC) The Termites

A collection of about a dozen FDA specialists whose revolt helped topple Rezulin. Among them:

* * *

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Dr. John L. Gueriguian

64, opposed approval of the diabetes pill Rezulin in 1996 while serving as an FDA medical officer. He warned of the pill's potential danger to the liver and heart.

* * *

Dr. David J. Graham

46, a senior scientist for the FDA, spearheaded the Termites within the FDA. He warned in March 1999 that no reliable way existed to protect Rezulin patients from liver failure. Graham, whose findings were dismissed by senior FDA officials, renewed his challenge to Rezulin in January of this year.

* * *

Dr. Robert I. Misbin

53, an FDA diabetes specialist, advocated the approval and the expanded use of Rezulin. Misbin seized the role of whistle-blower early this year and argued strongly for withdrawal of the drug.

* * *

Sources: FDA records, "Who's Who in America," interviews; compiled by DAVID WILLMAN and JANET LUNDBLAD / Los Angeles Times A Remedy Without Merit?

As the number of deaths among Rezulin users escalated over a 29-month period, the FDA issued four separate recommendations for blood testing, called "monitoring," to safeguard patients from liver failure. But no scientific proof existed then, or now, that monitoring would protect patients.

* * *

Date: Nov. 3, 19971

Toll: death

FDA remedy: Recommended liver testing within the first two months of treatment and then every three months during the first year of use.

* * *

Date: Dec. 1, 1997

Toll: 4 deaths

FDA remedy: Recommended liver testing every month for the first six months of use and then every other month for the next six months.

* * *

Date: July 28, 1998

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Toll: 21 deaths

FDA remedy: Recommended liver testing monthly for the first eight months and then every two months for the remainder of the first year.

* * *

Date: June 16, 1999

Toll: 35 deaths

FDA remedy: Recommended liver testing monthly for the first year, then quarterly. FDA no longer recommends Rezulin as an initial treatment for diabetes.

* * *

Times researchers Janet Lundblad in Los Angeles and Sunny Kaplan in Washington contributed to this story.

The complete series of Times investigative reports on the fast-track approval of Rezulin is available on The Times' Web site. Go to: http://www.latimes.com/rezulin

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC) Dr. Alistair J.J. Wood

53, a professor of medicine and pharmacology at Vanderbilt University, ridiculed the FDA's handling of Rezulin at a drug safety conference. Wood likened the FDA's approach to posting signs, instead of a fence, at the edge of a steep cliff.

Sources: interviews, Vanderbilt University

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC) Rezulin--From Fast Approval to Slow Withdrawal

1997

Jan. 29: U.S. Food and Drug Administration approves Rezulin as a new prescription drug for Type 2 diabetics.

March: Warner-Lambert Co. begins selling Rezulin in the United States.

Dec. 1: Rezulin is withdrawn from the British market because of safety concerns.

* * *

1998

May 17: A high school teacher taking Rezulin in a National Institutes of Health diabetes prevention experiment dies after liver failure and a transplant. Officials quickly banish the drug from the study.

Dec. 6: The Los Angeles Times reports that the FDA dismissed explicit warnings of danger while racing to grant Rezulin "fast-track" approval.

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* * *

1999

Jan. 15: FDA officials announce they will reevaluate the benefits and risks of Rezulin.

March 22: British authorities refuse to allow reintroduction of Rezulin in Britain.

June 16: The FDA announces that Rezulin will remain on the U.S. market.

Dec. 15: A Times examination of FDA files shows that 215 reported fatalities related to liver failure and other factors have been linked to the drug since it was introduced in March 1997. *

* * *

2000

Jan. 6: Five FDA physicians conclude that Rezulin should be withdrawn from the market to prevent additional cases of liver failure and death.

February 18: The FDA confirms 85 reported cases of liver failure, including 58 deaths, linked to patients' use of Rezulin.

March 21: The FDA announces that Warner-Lambert has agreed to immediately withdraw Rezulin from the market.

* * *

Sources: FDA, Los Angeles Times; researched by JANET LUNDBLAD / Los Angeles Times

PHOTO: Dr. Jane E. Henney PHOTO: Dr. Murray M. "Mac" Lumpkin PHOTO: Dr. Janet Woodcock PHOTO: Pharmaceutical manufacturer Warner-Lambert Co. agreed in March to withdraw Rezulin from the market after the FDA acknowledged 90 reported cases of liver failure, including 63 deaths, linked to the drug. Dr. John L. Gueriguian Dr. David J. Graham Dr. Robert I. Misbin PHOTO: (no caption) PHOTO: (no caption) PHOTO: Dr. Alistair J.J. Wood GRAPHIC: Rezulin--From Fast Approval to Slow Withdrawal, Los Angeles Times Type of Material: Related Sidebar Accompanies this Story Descriptors: REZULIN (DRUG); MEDICAL RESEARCH; DRUG SIDE EFFECTS; FOOD AND DRUG ADMINISTRATION (U.S.); WARNER LAMBERT CO; DIABETES; PRESCRIPTION DRUGS; MEDICAL ETHICS;

16 of 17 7/11/2008 1:11 PM Page 1 The Straits Times (Singapore) January 23, 2005 Sunday

FOCUS - 1 of 12 DOCUMENTS

January 23, 2005 Sunday

SECTION: Think

LENGTH: 736 words

HEADLINE: Fast-track approval, slow-motion recall: Three examples

BODY: Lotronex, a drug for irritable bowel syndrome Patients who suffer from the syndrome only experience tummy aches and frequent diarrhoea. Still, the Food and Drug Administration (FDA) agreed to fast-track Lotronex in July 1999, despite studies suggesting that the drug may reduce blood flow to the colon, causing ischaemic colitis, which is frequently fatal. Moreover, Lotronex was effective only in 10-20 per cent of cases. After a seven-month review, the FDA unanimously approved it in February 2000 on a mere pledge by GlaxoSmithKline, the maker, that it would undertake a major safety study to rule out ischaemic colitis the following year. A black-box warning for Lotronex's label was proposed - the thick black border for heightened risks is more noticeable - but the maker objected, so the idea was nixed. In March 2000, the drug went on the market. By April, the FDA had received its first report of ischaemic colitis and by July, the first fatality. By October, 49 cases, with five deaths, had been reported. Finally, in November, Lotronex was recalled, at which time the promised study had enrolled not one patient. In its nine months on the United States market - the drug was never sold elsewhere - it made US$56 million (S$91 million) for GlaxoSmithKline. -- Source: LA Times Rezulin, a drug for adult-onset diabetes After a review of just six months, the FDA approved Rezulin in August 1997. Pushed as a wonder drug that liberated many diabetics from insulin injections, it went on to cause 89 reported cases of liver failure, with 63 deaths, including three who had undergone liver transplants. The FDA approved it even after discovering that people on Rezulin were 1,200 times more likely to suffer liver failure, something that was discussed in internal FDA e-mail that a whistle-blower revealed to The Los Angeles Times. In fact, Parke-Davis/Warner-Lambert, the manufacturer might even have known as early as in 1993 of at least one test subject who had suffered liver damage with the drug. The whistle-blower, Dr Robert Misbin, wrote to Congress to pull Rezulin from the market. The FDA retaliated with an internal investigation in 2000, at which he had his first negative job performance review. Threatened with dismissal in March, he resigned in October that year. In fact, as far back as October 1996, another analyst, Dr John Gueriguian, was stripped of his role in reviewing Rezulin after he recommended against approval. The FDA even assured the drugmaker that his review had only been in draft form and the agency then purged the document from its files, an LA Times investigation showed. After four rounds of label changes, the agency finally recalled the drug in March 2000. In three years, the drug generated US$2.1 billion in US sales alone for its maker. -- Source: LA Times Propulsid, for nocturnal heartburn (Sold here as Prepulsid) Page 2 The Straits Times (Singapore) January 23, 2005 Sunday

This drug was approved in July 1993 by FDA gastroenterologists who had no time to consult in-house cardiologists, thus missing a telltale heart rhythm sign called a 'prolonged QT interval', which signals that irregular heartbeats may be triggered, resulting in sudden death. Once in common use, by early 1995, deaths were reported with prolonged QTs. Five label changes followed, which kept the drug on the market over the next five years, during which paediatricians took to Propulsid in droves to treat colicky infants who would cry at night, disturbing their parents' sleep. In fact, the FDA had surmised in August 1996 that Propulsid was 'not approvable' for children, after eight youngsters given Propulsid had died in clinical studies. Yet it never once warned doctors. From 1998, the British were warning against use of Propulsid in children but, in the US, the manufacturer, Janssen Pharmaceutica, a Johnson & Johnson subsidiary, objected strenuously, so the FDA relented. It was only in March 2000 that the FDA recalled the drug, by which time 341 cases of heart-rhythm abnormalities, including 80 deaths, had been reported. This for night-time heartburn for which alternative treatments existed, like Milk of Magnesia or Zantac. At the time, Janssen said it would continue marketing the drug in 90 other countries. In Singapore, the Health Ministry asked Janssen to voluntarily withdraw Prepulsid. In China, however, Prepulsid sales would skyrocket even after its US withdrawal. -- Source: LA Times

LOAD-DATE: January 24, 2005

EXHIBIT 2 Physician Who Opposes Rezulin Is Threatened by FDA With Dismissal - ... http://articles.latimes.com/2000/mar/17/news/mn-9908

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You are here: LAT Home > Articles > 2000 > March > 17 > News Physician Who Opposes Rezulin Is Threatened by FDA With Dismissal

By David Willman March 17, 2000

Food and Drug Administration officials are threatening to fire an agency medical officer who has pushed in recent weeks for withdrawal of the diabetes pill Rezulin, government documents show.

The FDA’s threatened dismissal of Dr. Robert I. Misbin–detailed this week in e-mail correspondence obtained by The Times–comes as the agency is facing mounting questions about its handling of Rezulin.

Misbin examined in depth the risks and benefits of Rezulin before the FDA approved the drug in 1997 and before the agency twice subsequently endorsed widening its recommended use. He had supported each of the FDA’s previous actions.

However, since early January, Misbin and at least four other FDA physicians–most of them more senior–have told colleagues that Rezulin should be withdrawn because of its propensity to cause liver failure and death.

As of last week, the FDA had linked 89 voluntarily reported liver failures, including 61 deaths, to the use of Rezulin. Through January of this year, Rezulin had generated sales topping $1.8 billion.

The FDA physicians’ repudiation of the drug was captured, in part, in e-mail correspondence that Misbin provided recently to members of Congress. Now, Misbin’s distribution of that correspondence appears to have placed him in jeopardy with his superiors and with FDA internal affairs investigators.

In an e-mail dated March 13, the acting chief of the FDA’s endocrine drugs division, Dr. John K. Jenkins, warned Misbin: “You are required to cooperate with the investigation and failure to cooperate may result in disciplinary actions up to an[d] including dismissal from federal service.”

Jenkins told Misbin that the investigation was “related to possible inappropriate release of information to individuals outside the FDA” and was “separate from the ongoing internal discussions regarding what, if any, regulatory actions are warranted at this time with regard to Rezulin.”

The threat of disciplinary action was underscored in a subsequent e-mail to Misbin from investigator David S. Bodge.

The e-mails show that Misbin, 52, was informed that he could not bring a witness with him while being interrogated by an FDA internal affairs investigator. Misbin’s request that all questions be put to him in writing was also rejected, according to the correspondence.

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Citing policy, an FDA spokeswoman, Laura Bradbard, said Thursday that the agency could not comment. Misbin said that he too would not discuss the matter.

Jenkins distributed a copy of the March 13 e-mail to his boss, Dr. Murray M. Lumpkin, director of the FDA’s Center for Drug Evaluation and Research. Lumpkin serves as the FDA’s point man for ensuring that the agency reviews and approves new drugs more quickly than in the past.

Previously undisclosed government records and interviews show that Lumpkin has provided crucial support for Rezulin over the last 3 1/2 years:

In October 1996, Lumpkin stripped another FDA medical officer, Dr. John L. Gueriguian, of further involvement in reviewing Rezulin after Gueriguian, citing potential liver and heart toxicity, recommended that the agency reject the drug. Lumpkin acted at the request of Rezulin’s manufacturer, Warner-Lambert Co., whose executives complained that Gueriguian had used intemperate language in a meeting to discuss Rezulin.

“Mac [Lumpkin] basically was hoping that the Gueriguian thing would go away and we could just kind of lose the review,” one physician, who was involved with the FDA’s “fast-track” approval of Rezulin, said this week. “The company didn’t feel that [it] should have to respond to anything that Gueriguian was saying.”

Lumpkin agreed with Warner-Lambert, according to the physician involved, who spoke on condition of anonymity. “He just said that the Gueriguian review doesn’t exist because it was in draft form and hadn’t been finalized… . Obviously, in hindsight, it should have been handled differently.”

This physician and others have said that, before approving Rezulin, the FDA shared Gueriguian’s review with Warner-Lambert and later purged the document from agency files.

A year later, in fall 1997, Lumpkin oversaw the FDA’s decision to keep Rezulin on the U.S. market, despite the drug’s withdrawal in Britain. On Nov. 26, 1997, Lumpkin spoke by phone with an official at the Medicines Control Agency in London.

According to an e-mail that Lumpkin distributed that day to his boss, drug center director Janet Woodcock, Misbin and six other FDA officials, the British agency thought it was “reasonable” to withdraw Rezulin, based on deaths and liver injuries in the United States and Japan. The impetus for the withdrawal had come from Glaxo-Wellcome, the company with rights to market Rezulin in Europe.

Glaxo officials had concluded, Lumpkin wrote, that “they no longer believed the risks outweighed the benefits” for at least two reasons: There was no way to predict which Rezulin patients would be harmed, and the pace of liver injuries and deaths was by that point “unacceptably high.”

The next day a Warner-Lambert executive, Irwin G. Martin, wrote to the FDA, proposing “a meeting to review the status of the Rezulin safety reports and to finalize” a change in Rezulin’s safety labeling. Martin said that the company “would encourage Dr. Lumpkin’s participation” at the meeting, along with two other senior officials.

On Dec. 1, 1997, the FDA announced a safety-labeling change, the second in less than a month for Rezulin. The newer label recommended that patients should submit to more frequent liver-function tests.

Lumpkin also oversaw the third and fourth changes in Rezulin’s labeling, in July 1998 and June 1999. Each labeling change called for more frequent liver-function testing. Each was followed by an increase in the total number of Rezulin patients suffering liver failure and death. Lumpkin has declined to be interviewed and did not return calls Thursday.

Misbin, the FDA medical officer who now finds himself at risk of being fired, noted a contrast in the agency’s response to the dangers of Rezulin and in the public disclosure of his and others’ alarm.

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“The ‘inappropriate release of information to individuals outside the FDA’ could undermine [public] trust and should be the subject of a timely and vigorous investigation,” Misbin wrote in a March 14 e-mail response to Jenkins, his boss. “But had FDA been equally vigorous in dealing with the Rezulin problem, we would not be at the impasse that we currently face.”

The FDA is also reviewing a letter issued Tuesday by Dr. Sidney M. Wolfe of the Ralph Nader-founded group, Public Citizen, asking FDA Commissioner Jane E. Henney to seek “criminal prosecution” of Warner-Lambert for the manner in which the company depicted certain severe cases of liver toxicity during original clinical testing of Rezulin.

In interviews with The Times in the fall of 1998, a Warner-Lambert executive, Dr. Randall W. Whitcomb, and a senior FDA official, Dr. James M. Bilstad, said that the liver cases now called into question by Wolfe were reported to the agency before the drug was approved on Jan. 29, 1997.

Wolfe on Thursday did not dispute that the cases may have been reported in a timely manner to the FDA but speculated that Warner-Lambert buried them “within three feet of other data.” A spokeswoman for the company called Wolfe’s letter “baseless.”

Times researcher Janet Lundblad in Los Angeles contributed to this story.

Related Articles FDA Warns Against Initial Use of Rezulin Jun 17, 1999 Events Shake Doctor's Faith in Drug Safety Jun 04, 2000 Diabetes Drug Rezulin Pulled Off the Market Mar 22, 2000 The Rise and Fall of the Killer Drug Rezulin Jun 04, 2000 Rezulin's Maker Now Says Drug Linked to as Many as 35 Deaths Mar 19, 1999

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3 of 3 7/11/2008 2:27 PM Key Physician Urges Rezulin Be Withdrawn - Los Angeles Times http://articles.latimes.com/2000/feb/19/news/mn-511

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You are here: LAT Home > Articles > 2000 > February > 19 > News Key Physician Urges Rezulin Be Withdrawn

By David Willman February 19, 2000

The physician most closely involved with the government’s approval and continued support of the controversial diabetes pill Rezulin has urged its withdrawal from the U.S. market.

“I see no reason why any well-informed physician would continue to prescribe [Rezulin],” Medical Officer Robert I. Misbin wrote in a Jan. 24 e-mail to his superiors at the Food and Drug Administration. “Neither do I see any reason why FDA should delay in taking steps to remove [Rezulin] from the market.”

Unless the FDA withdraws the drug, Misbin warned, “additional cases of preventable liver failure” may occur. A copy of the two-page e-mail was obtained by The Times.

Misbin’s correspondence and interviews with people familiar with the matter suggest that pressure is building within the FDA to take Rezulin off the market, despite opposition from the drug’s manufacturer, New Jersey-based Warner-Lambert Co. Misbin, 52, is a veteran diabetes specialist whose job at the FDA is to evaluate the safety and effectiveness of proposed and existing drugs.

Rezulin, which the FDA made one of the fastest-approved prescription drugs over the last decade, has generated $1.8 billion in sales since March 1997. It is used to treat adult onset diabetes, a disease characterized by high blood-sugar levels.

The number of injuries and deaths attributable to Rezulin has continued to mount since the first fatalities were acknowledged in the fall of 1997. New data gathered by the FDA reveal that nearly twice as many Rezulin patients have suffered liver failure than officials cited at a public hearing just 11 months ago.

Dr. Janet Woodcock, director of the agency’s drug review center, said in a prepared statement this week that the FDA has received 85 reports of liver failure that are considered “possibly or probably related” to use of Rezulin. Of those, 58 patients died and 10 required liver transplants, Woodcock said.

Last March, FDA officials acknowledged that 43 liver-failure cases, including 28 deaths, could be attributed to use of Rezulin.

Woodcock said in her statement to The Times that the agency “at this time” believes the benefits of Rezulin still outweigh its risks; she would not elaborate. Misbin said Friday that he would not comment.

At Warner-Lambert, Dr. Robert L. Zerbe, the company’s senior vice president of worldwide clinical research, said Friday that he was unable to discuss the number of liver failure cases attributable to Rezulin. Company officials did not respond to requests for any elaboration. Warner-Lambert repeatedly has sought to assure doctors and patients that the drug is safe and effective if used as recommended.

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‘I Would Not Use It, Myself’

A member of the 12-person FDA advisory committee that examined Rezulin 11 months ago said Friday that he was “not surprised” to hear of the doubling of reported liver-failure cases associated with use of the drug.

“I’m really very concerned about the continued use of it,” said Dr. Jules Hirsch, physician-in-chief emeritus, at Rockefeller University in New York. “I would not use it, myself.”

Rezulin’s propensity to cause liver failure and the inability of doctors to predict which diabetic patients might be stricken has helped make the drug among the most controversial in the American marketplace. Rezulin was withdrawn in Britain in December 1997, and officials there have refused to allow its reintroduction.

Officials at the FDA have kept Rezulin on the market, while overseeing four safety-related changes in the drug’s labeling.

Within the agency, Misbin had been an advocate of Rezulin. He supported the original approval in January 1997. When fatalities were first reported, Misbin assumed responsibility for overseeing the drug’s safety risks. Based in part on his medical reviews, the agency twice approved expanded recommended uses of the drug, most recently in June.

While he consistently backed keeping Rezulin on the market, Misbin also warned his supervisors in November 1997 that as many as 2,000 patients then taking Rezulin could suffer serious liver injury unless they were monitored closely.

Long before Misbin’s change of view toward Rezulin, two other FDA physicians who studied the drug closely had raised alarms.

In October 1996, Medical Officer John L. Gueriguian cited Rezulin’s potential to harm the liver in his recommendation not to approve the drug.

Last March, Dr. David J. Graham, a senior agency epidemiologist, publicly warned the FDA advisory committee that every Rezulin patient was at risk of sudden liver failure and that no reliable way existed to protect them. Graham said that the longer patients stay on Rezulin, the greater their risk of liver failure.

Graham presented data indicating that the monitoring of liver functions recommended for Rezulin patients–monthly blood tests for one year–was insufficient to save them from spiraling into sudden liver failure.

The FDA in June followed the advice of the committee and Misbin by approving a new recommended use for Rezulin, in combination with two other diabetes pills. At the same time, the agency suggested that Rezulin no longer be used as a drug of first choice in treating adult-onset diabetes. No fewer than 11 other prescription drugs are available on the U.S. market for the disease.

Debate Continues Over Drug

Now, Rezulin’s status is once again at a crossroads.

In his e-mail, Misbin noted, “there appeared to be broad agreement that continued marketing of [Rezulin] was not justified” during a Jan. 6 staff meeting of specialists at the FDA’s drug-review center.

Misbin wrote that he was “perplexed by what happened” when agency officials next convened on Jan. 13.

At that meeting, a deputy director of the FDA’s drug-review center, Dr. Murray M. Lumpkin, unveiled steps that would slow any movement toward withdrawal, according to people familiar with the session. For instance, Lumpkin scheduled meetings with representatives of Warner-Lambert on Feb. 2 and March 1.

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Lumpkin has directed that, before any decision is reached to withdraw Rezulin, FDA physicians must first reassess the safety of Avandia and Actos, two newer, chemically similar pills, officials said. The FDA’s obligation under law is to ensure that no drug is approved or remains on the market unless it is safe and effective for its recommended use.

Lumpkin did not return messages seeking his comment.

As for Avandia and Actos, the FDA staff does not believe that Actos has been associated with liver failure. The agency staff believes that the liver failure of one Avandia patient, who recovered, was “possibly or probably” related to the drug, according to Dr. Woodcock. The FDA approved Avandia in May and Actos in July.

The FDA over the last 2 1/2 years has overseen the withdrawal of seven prescription drugs. In each of those instances, the company involved either acted without prompting or at the encouragement of the FDA.

If a company asked to withdraw a drug is intransigent, the government is empowered under law to remove the compound immediately if it poses an “imminent hazard to the public health.”

In his recent e-mail, Misbin said that FDA officials on Jan. 6 “seriously entertained” declaring Rezulin an imminent hazard.

In 1977, Health, Education and Welfare Secretary Joseph A. Califano Jr. invoked this provision to ban another diabetes drug, called phenformin.

The decision of whether to withdraw Rezulin rests ultimately with FDA Commissioner Jane E. Henney. She referred all questions posed by The Times to her subordinate, Dr. Woodcock.

Rezulin prescriptions have declined over the last year, from 488,000 in January 1999 to 309,000 that were started or refilled last month, according to IMS Health, a health care information company.

Times researcher Janet Lundblad in Los Angeles contributed to this report.

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3 of 3 7/11/2008 2:29 PM EXHIBIT 3 How a New Policy Led to Seven Deadly Drugs http://www.drugawareness.org/Archives/Miscellaneous/122002Howanew...

12/20/2000 How a New Policy Led to Seven Deadly Drugs

http://www.latimes.com/news/nation/reports/fda/lat_fda001220.htm

By DAVID WILLMAN

WASHINGTON--For most of its history, the United States Food and Drug Administration approved new prescription medicines at a grudging pace, paying daily homage to the physician's creed, "First, do no harm."

Then in the early 1990s, the demand for AIDS drugs changed the political climate. Congress told the FDA to work closely with pharmaceutical firms in getting new medicines to market more swiftly. President Clinton urged FDA leaders to trust industry as "partners, not adversaries."

The FDA achieved its new goals, but now the human cost is becoming clear.

Seven drugs approved since 1993 have been withdrawn after reports of deaths and severe side effects. A two-year Los Angeles Times investigation has found that the FDA approved each of those drugs while disregarding danger signs or blunt warnings from its own specialists. Then, after receiving reports of significant harm to patients, the agency was slow to seek withdrawals.

According to "adverse-event" reports filed with the FDA, the seven drugs were cited as suspects in 1,002 deaths. Because the deaths are reported by doctors, hospitals and others on a voluntary basis, the true number of fatalities could be far higher, according to epidemiologists.

An adverse-event report does not prove that a drug caused a death; other factors, such as preexisting disease, could play a role. But the reports are regarded by public health officials as the most reliable early warnings of danger.

The FDA's performance was tracked through an examination of thousands of pages of government documents, other data obtained under the Freedom of Information Act and interviews with more than 60 present and former agency officials.

The seven drugs were not needed to save lives. One was for heartburn. Another was a diet pill. A third was a painkiller. All told, six of the medicines were never proved to offer lifesaving benefits, and the seventh, an antibiotic, was ultimately judged unnecessary because other, safer antibiotics were available.

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The seven are among hundreds of new drugs approved since 1993, a period during which the FDA has become known more for its speed than its caution. In 1988, only 4% of new drugs introduced into the world market were approved first by the FDA. In 1998, the FDA's first- in-the-world approvals spiked to 66%.

The drug companies' batting average in getting new drugs approved also climbed. By the end of the 1990s, the FDA was approving more than 80% of the industry's applications for new products, compared with about 60% at the beginning of the decade.

And the companies have prospered: The seven unsuccessful drugs alone generated U.S. sales exceeding $5 billion before they were withdrawn.

Once the world's unrivaled safety leader, the FDA was the last to withdraw several new drugs in the late 1990s that were banned by health authorities in Europe.

"This track record is totally unacceptable," said Dr. Curt D. Furberg, a professor of public health sciences at Wake Forest University. "The patients are the ones paying the price. They're the ones developing all the side effects, fatal and non-fatal. Someone has to speak up for them."

The FDA's faster and more lenient approach helped supply pharmacy shelves with scores of new remedies. But it has also yielded these fatal missteps, according to the documents and interviews:

1. Only 10 months ago, FDA administrators dismissed one of its medical officer's emphatic warnings and approved Lotronex, a drug for treating irritable bowel syndrome. Lotronex has been linked to five deaths, the removal of a patient's colon and other bowel surgeries. It was pulled off the market on Nov. 28.

2. The diet pill Redux, approved in April 1996 despite an advisory committee's vote against it, was withdrawn in September 1997 after heart-valve damage was detected in patients put on the drug. The FDA later received reports identifying Redux as a suspect in 123 deaths.

3. The antibiotic Raxar was approved in November 1997 in the face of evidence that it may have caused several fatal heart- rhythm disruptions in clinical studies. FDA officials chose to exclude any mention of the deaths from the drug's label. The maker of the pill withdrew it in October 1999. Raxar was cited as a suspect in the deaths of 13 patients.

4. The blood pressure medication Posicor was approved in June 1997 despite findings by FDA specialists that it might fatally disrupt heart rhythm and interact with certain other drugs, posing

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potentially severe risk. Posicor was withdrawn one year later; reports cited it as a suspect in 100 deaths.

5. The painkiller Duract was approved in July 1997 after FDA medical officers warned repeatedly of the drug's liver toxicity. Senior officials sided with the manufacturer in softening the label's warning of the liver threat. The drug was withdrawn 11 months later. By late 1998, the FDA had received voluntary reports citing Duract as a suspect in 68 deaths, including 17 that involved liver failure.

6. The diabetes drug Rezulin was approved in January 1997 over a medical officer's detailed opposition and was withdrawn this March after the agency had linked 91 liver failures to the pill. Reports cite Rezulin as a suspect in 391 deaths.

7. The nighttime heartburn drug Propulsid was approved in 1993 despite evidence that it caused heart-rhythm disorders. The officials who approved the drug failed to consult the agency's own cardiac specialists about the signs of danger. The drug was taken out of pharmacies in July after scores of confirmed heart- rhythm deaths. Overall, Propulsid has been cited as a suspect in 302 deaths.

The FDA's handling of Propulsid put children at risk.

The agency never warned doctors not to administer the drug to infants or other children even though eight youngsters given Propulsid in clinical studies had died. Pediatricians prescribed it widely for infants afflicted with gastric reflux, a common digestive disorder.

Parents and their doctors had no way of knowing that the FDA, in August 1996, had found Propulsid to be "not approvable" for children.

"We never knew that," said Jeffrey A. Englebrick, a heavy-equipment welder in Shawnee, Kan., whose 3-month-old son, Scott, died on Oct. 28, 1997, after taking Propulsid. "To me, that means they took my kid as a guinea pig to see if it would work."

By the time the drug was pulled, the FDA had received reports of 24 deaths of children under age 6 who were given Propulsid. By then the drug had generated U.S. sales of $2.5 billion for Johnson & Johnson Co.

Questions also surround the recent approvals of other compounds that remain on the market, including a new flu drug called Relenza. In February of 1999, an FDA advisory committee concluded that Relenza had not been proved safe and effective. The agency nevertheless approved it. Following the deaths of seven patients, the FDA in January issued a "public health advisory" to doctors.

A 'Lost Compass'

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A total of 10 drugs have been pulled from the market in just the past three years for safety reasons, including three pills that were approved before the shift that took hold in 1993. Never before has the FDA overseen the withdrawals of so many drugs in such a short time. More than 22 million Americans--about 10% of the nation's adult population--took those drugs.

With many of the drugs, the FDA used tiny-print warnings or recommendations in package labeling as a way to justify approvals or stave off withdrawals. In other instances, the agency has withheld safety information from labels that physicians say would call into question the use of the product.

Present and former FDA specialists said the regulatory decisions of senior officials have clashed with the agency's central obligation, under law, to "protect the public health by ensuring . . . that drugs are safe and effective."

"They've lost their compass and they forget who it is that they are ultimately serving," said Dr. Lemuel A. Moye, a University of Texas School of Public Health physician who served from 1995 to 1999 on an FDA advisory committee. "Unfortunately the public pays for this, because the public believes that the FDA is watching the door, that they are the sentry."

The FDA's shift is felt directly in the private practice of medicine, said Dr. William L. Isley, a Kansas City, Mo., diabetes specialist. He implored the agency to reassess Rezulin three years ago after a patient he treated suffered liver failure taking the pill.

"FDA used to serve a purpose," Isley said. "A doctor could feel sure that a drug he was prescribing was as safe as possible. Now you wonder what kind of evaluation has been done, and what's been swept under the rug."

FDA officials said that they have tried conscientiously to weigh benefits versus risks in deciding whether to approve new drugs. They noted that many doctors and patients complain when a drug is withdrawn. "All drugs have risks; most of them have serious risks," said Dr. Janet Woodcock, director of the FDA's drug review center. She added that some of the withdrawn drugs were "very valuable, even if not lifesaving, and their removal from the market represents a loss, even if a necessary one." Once a drug is proved effective and safe, Woodcock said, the FDA depends on doctors "to take into account the risks, to read the label. . . . We have to rely on the practitioner community to be the learned intermediary. That's why drugs are prescription drugs."

In a May 12, 1999, article co-authored with FDA colleagues and published by the Journal of the American Medical Assn., Woodcock said, "The FDA and the community are willing to take greater safety

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risks due to the serious nature of the [illnesses] being treated."

Compared to the volume of new drugs approved, they wrote, the number of recent withdrawals "is particularly reassuring."

However, agency specialists point out that both approvals and withdrawals are controlled by Woodcock and her administrators. When they consider a withdrawal, they face the unpleasant prospect of repudiating their original decision to approve.

Woodcock, 52, received her medical degree at Northwestern University and is a board-certified internist. She alluded in a recent interview to the difficulty she feels in rejecting a proposed drug that might cost a company $150 million or more to develop. She also acknowledged the commercial pressures in a March 1997 article.

"Consumer protection advocates want to have drugs worked up well and thoroughly evaluated for safety and efficacy before getting on the market," Woodcock wrote in the Food and Drug Law Journal. "On the other hand, there are economic pressures to get drugs on the market as soon as possible, and these are highly valid."

But this summer--following the eighth and ninth drug withdrawals-- Woodcock said the FDA cannot rely on labeling precautions, alone, to resolve safety concerns.

"As medical practice has changed . . . it's just much more difficult for [doctors] to manage" the expanded drug supply, Woodcock said in an interview. "They rely upon us much more to make sure the drugs are safe."

Another FDA administrator, Dr. Florence Houn, voiced similar concern in remarks six months ago to industry officials: "I think the lessons learned from the drug withdrawals make us leery."

Yet the imperative to move swiftly, cooperatively, remains.

"We are now making decisions more quickly and more predictably while maintaining the same high standards for product safety and efficacy," FDA Commissioner Jane E. Henney said in a National Press Club speech on Dec. 12.

Motivated by AIDS The impetus for change at the FDA emerged in 1988, when AIDS activists paralyzed operations for a day at the agency's 18-story headquarters in Rockville, Md. They demanded immediate approval of experimental drugs that offered at least a ray of hope to those otherwise facing death.

The FDA often was taking more than two years to review new drug applications. The pharmaceutical industry saw a chance to loosen the

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regulatory brakes and expedite an array of new products to market. The companies and their Capitol Hill lobbyists pressed for advantage: If unshackled, they said, the companies could invent and develop more remedies faster.

The political pressure mounted, and the FDA began to bow. By 1991, agency officials told Congress they were making significant progress in speeding the approval process.

The emboldened companies pushed for more. They proposed that drugs intended for either life-threatening or "serious" disorders receive a quicker review.

"The pharmaceutical companies came back and lobbied the agency and the Hill for that word, 'serious,' " recalled Jeffrey A. Nesbit, who in 1991 was chief of staff to FDA Commissioner David A. Kessler. "Their argument was, 'Well, OK, there's AIDS and cancer. But there are drugs [being developed] for Alzheimer's. And that's a serious illness.' They started naming other diseases. They began to push that envelope."

The wielding of this single, flexible adjective--"serious"--swung wide the regulatory door knocked ajar by the AIDS crisis.

New Order Takes Hold In 1992, Kessler issued regulations giving the FDA discretion to "accelerate approval of certain new drugs" for serious or life-threatening conditions. That same year a Democrat-controlled Congress approved and President Bush signed the Prescription Drug User Fee Act. It established goals that call for the FDA to review drugs within six months or a year; the pharmaceutical companies pay a user fee to the FDA, now $309,647, with the filing of each new drug application.

The newly elected Clinton administration climbed aboard with its "reinventing government" project. Headed by Vice President Al Gore, the project called for the FDA, by January 2000, to reduce "by an average of one year the time required to bring important new drugs to the American public." As Clinton put it in a speech on March 16, 1995, the objective was to "get rid of yesterday's government."

For the FDA's medical reviewers--the physicians, pharmacologists, chemists and biostatisticians who scrutinize the safety and effectiveness of emerging drugs--a new order had taken hold.

The reviewers work out of public view in secure office buildings clustered along Maryland's Route 355. At the jet-black headquarters building, the decor is institutional, the corridors and third-floor cafeteria without windows. The reviewers examine truckloads of scientific documents. They are well-educated; some are highly motivated to do their best for a nation of patients who unknowingly count on their expertise.

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One of these reviewers was Michael Elashoff, a biostatistician who arrived at the FDA in 1995 after earning degrees from UC Berkeley and the Harvard School of Public Health. "From the first drug I reviewed, I really got the sense that I was doing something worthwhile. I saw what a difference a single reviewer can make," said Elashoff, the son and grandson of statisticians.

Last year he was assigned to review Relenza, the new flu drug developed by Glaxo Wellcome. He recommended against approval.

"The drug has no proven efficacy for the treatment of influenza in the U.S. population, no proven effect on reducing person-to-person transmissibility, and no proven impact on preventing influenza," Elashoff wrote, adding that many patients would be exposed to risks "while deriving no benefit."

An agency advisory committee agreed and on Feb. 24 voted 13 to 4 against approving Relenza. After the vote, senior FDA officials upbraided Elashoff. They stripped him of his review of another flu drug. They told him he would no longer make presentations to the advisory committee. And they approved Relenza as a safe and effective flu drug.

Lost Faith in the System Elashoff and other FDA reviewers discern a powerful message. "People are aware that turning something down is going to cause problems with [officials] higher up in FDA, maybe more problems than it's worth," he said. "Before I came to the FDA I guess I always assumed things were done properly. I've lost a lot of faith in taking a prescription medicine."

Elashoff left the FDA four months ago.

"Either you play games or you're going to be put off limits . . . a pariah," said Dr. John L. Gueriguian, a 19-year FDA medical officer who opposed the approval of Rezulin, the ill-fated diabetes drug. "The people in charge don't say, 'Should we approve this drug?' They say, 'Hey, how can we get this drug approved?' "

Said Dr. Rudolph M. Widmark, who retired in 1997 after 11 years as a medical officer: "If you raise concern about a drug, it triggers a whole internal process that is difficult and painful. You have to defend why you are holding up the drug to your bosses. . . . You cannot imagine how much pressure is put on the reviewers."

The pressure is such that when a union representative negotiated a new employment contract for the reviewers last year, one of his top priorities was to defend what he called the "scientific integrity" of their work.

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"People feel swamped. People are pressured to go along with what the agency wants," said Dr. Robert S.K. Young, an FDA medical officer who in 1998 formed a union chapter to represent the reviewers. "You're paying for these highly educated, trained people, and they're not being allowed to do their job."

Each new drug application is accompanied by voluminous medical data, enough at times to fill 1,000 or more phone books. The reviewers must master this material in less than six months or a year, while juggling other tasks.

"The devil is in the details, and detail is something we no longer have the time to go into," said Gurston D. Turner, a veteran pharmacologist with the FDA's scientific investigations division who retired this year. "If you know you must have your report done by a certain date, you get something done. That's what they [top FDA officials] count, that's all they count. And that is really, to me, a worrisome thing." The FDA did spur reviewers to move at record speed.

In 1994, the FDA's goal was to finish 55% of its new drug reviews on time; the agency achieved 95%. In 1995, the goal was 70%; the FDA achieved 98%. In 1996, the goal was 80%; the FDA achieved 100%. In both 1997 and 1998, the goal was 90% and the FDA achieved 100%.

From 1993 to 1999 the agency approved 232 drugs regarded as "new molecular entities," compared with 163 during the previous seven years, a 42% increase.

The time-limit goals quickly were treated as deadlines within the FDA--imposing relentless pressure on reviewers and their bosses to quickly conclude their work and approve the drugs.

"The goals were to be taken seriously. I don't think anybody expected the agency to make them all," said William B. Schultz, a deputy FDA commissioner from 1995 to 1999.

Schultz, who helped craft the 1992 user-fee act as a congressional staff lawyer, added: "You can meet the goal by either approving the drug or denying the approval. But there are some who argue that what Congress really wanted was not just decisions, but approvals. That is what really gets dangerous."

Indeed, the FDA drug center's 1999 annual report referred to the review goals as "the law's deadlines." And, Dr. Woodcock, the center director, elaborated in a subsequent agency newsletter:

"In exchange [for the user fees], FDA makes a commitment to meet certain goals for review times. [The agency] has exceeded almost all of the goals, and it expects to continue to exceed them. Basically, the number of new approved drugs has doubled, and the review times have been cut in half."

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The user fees have enabled the FDA to hire more medical reviewers. Last year, 236 medical officers examined new drugs compared with 162 officers on duty in 1992, the year before the user fees took effect.

Even so, Woodcock acknowledged in an FDA publication this fall that the workloads and tight performance goals "create a sweatshop environment that's causing high staffing turnover."

An FDA progress report in 1998, describing the work of agency chemists, said that "too many reviews are coming 'down to the wire' against the goal date. . . . This suggests a system in stress."

Said Nesbit, the former aide to Commissioner Kessler: "The clock is always running, whereas before the clock was never running. And that changes people's behavior."

Dozens of officials interviewed by The Times made similar observations.

"The pressure to meet deadlines is enormous," said Dr. Solomon Sobel, 65, director of the FDA's metabolic and endocrine drugs division throughout the 1990s. And the pressure is not merely to complete the reviews, he said. "The basic message is to approve."

Over the last seven years, "there has been a huge shift," said Kathleen Holcombe, a former FDA legislative affairs staffer and congressional aide who now is a drug industry consultant. "FDA, historically, had an approach of, 'Regulate, be tough, enforce the law [and] don't let one thing go wrong,' " Holcombe said, adding that now, "the FDA sees itself much more in a cooperative role."

How Deaths Were Calculated Reports of adverse drug reactions to the Food and Drug Administration are considered by public health officials to be the most reliable early warnings of a product's danger. The reports are filed to the FDA by health professionals, consumers and drug manufacturers. The Los Angeles Times inspected all reports filed in connection with seven drugs that were approved and withdrawn since 1993. By hand and by computer, The Times counted 1,002 deaths in which the filer identified the drug as the leading suspect. Since fall 1997, this top category has been termed "primary suspect." The Times did not count any death in which the drug was identified as the "secondary suspect" or less. The methodology and results were reviewed by Sheila R. Weiss, a former FDA epidemiologist who is an assistant professor at the University of Maryland's department of pharmacy practice and sciences.

The perception of coziness with drug makers is perpetuated by potential conflicts of interest within the FDA's 18 advisory committees, the influential panels that recommend which drugs deserve approval or should remain on the market. The FDA allows some appointees to

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double as consultants or researchers for the same companies whose products they are evaluating on the public's behalf. Such was the case during committee appraisals of several of the recently withdrawn drugs, including Lotronex and Posicor, The Times found.

Few doubt the $100-billion pharmaceutical industry's clout. Over the last decade, the drug companies have steered $44 million in contributions to the major political parties and to candidates for the White House and both houses of Congress.

The FDA reviewers said they and their bosses fear that unless the new drugs are approved, companies will erupt and Congress will retaliate by refusing to renew the user fees. This would cripple FDA operations--and jeopardize jobs.

The companies' money now covers about 50% of the FDA's costs for reviewing proposed drugs--and agency officials say that persuading Congress to renew the user fees into 2007 is now a top priority.

Yet even if the user fees remain, the FDA is prohibited from spending the revenue for anything other than reviewing new drugs. So while the budget for pre-approval reviews has soared, the agency has gotten no similar increase of resources to evaluate the safety of the drugs after they are prescribed.

"It's shocking," said Dr. Brian L. Strom, chairman of epidemiology at the University of Pennsylvania. "How can you say, 'Release drugs to the market sooner,' and not know if they're killing people? . . . It really is a dramatic statement of public priorities."

More than 250,000 side effects linked to prescription drugs, including injuries and deaths, are reported each year. And those "adverse-event" reports by doctors and others are only filed voluntarily. Experts, including Strom, believe the reports represent as few as 1% to 10% of all such events. "There's no incentive at all for a physician to report [an adverse drug reaction]," said Strom, who has documented the phenomenon. "The underreporting is vast."

Even when deaths are reported, records and interviews show that companies consistently dispute that their product has caused a given death by pointing to other factors, including preexisting disease or use of another medicine.

To be sure, a chain of events affects the safe use of a prescription drug: The companies' conduct of clinical studies; the FDA's regulatory actions; the doctor's decision to prescribe; the pharmacist's filling of a handwritten prescription; the patient's ability to take the drug as directed. A lapse at any link could prove fatal.

And once a pill is approved by the FDA, the manufacturer often spends heavily on promotion to seize the largest possible market share. This

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can exacerbate the risk to public health, according to experts.

"Aggressive promotion increases exposure--and doesn't give you the time to find the problem before patients get hurt," said Dr. Raymond L. Woosley, pharmacology department chairman at Georgetown University and a former FDA advisory committee member.

When serious side effects emerge, the FDA officials have championed using package labeling as a way to, in their words, "manage" risks. Yet the agency typically has no way to know if the labeling precautions-- dense, lengthy and in tiny print--are read or followed by doctors and their patients.

The FDA often addresses unresolved safety questions by asking companies to conduct studies after the product is approved. But the research frequently is not performed--prompting the inspector general of the Department of Health and Human Services to say in 1996 that "FDA can move to withdraw drugs from the market if the post-marketing studies are not completed with due diligence."

Since that report was issued, the FDA has not withdrawn any drug due to a company's failure to complete a post-approval safety study. Officials conceded this week that they still do not know how often the studies are performed.

One consequence is that greater risk is shifted to doctors and patients.

For example, Woodcock and her senior aides allowed Rezulin to remain on the U.S. market nearly 2 years after it was withdrawn in Britain in December 1997. The FDA recommended frequent laboratory testing of patients using the drug but had no scientific assurance that the tests would prevent Rezulin-induced liver failure.

"They kept increasing the number of liver-function tests you should have," noted Dr. Alastair J.J. Wood, a former FDA advisory committee member who is a professor of medicine at Vanderbilt University. "That was clearly designed to protect the FDA, to protect the manufacturer, and to dump the responsibility on the patient and the physician. If the patient developed liver disease and he hadn't had his [tests] done, somebody was to blame and it wasn't the manufacturer and it wasn't the FDA."

Industry Assurances Leading industry officials say Americans have nothing to fear from the wave of drug approvals.

"Do unsafe drugs enter and remain in the marketplace? Absolutely not," said Dr. Bert A. Spilker, senior vice president for scientific and regulatory affairs for the Pharmaceutical Research and Manufacturers of America, in remarks last year to industry and FDA scientists.

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But during interviews over the last two years, current and former FDA specialists cited repeated instances when drugs were approved with less than compelling evidence of safety or effectiveness. They also said that important information has been excluded from the labels on some medications.

Elashoff, for instance, was surprised at the labeling for a drug called Prograf, approved in 1997 to prevent rejection of transplanted kidneys. The drug first had been approved in 1994 for use among liver- transplant patients.

The new label notes that Prograf was proved effective in a study of 412 U.S. kidney transplant patients. But no mention is made of the company's 448-patient European study, in which 7% of the patients who took Prograf died--double the 3.5% death rate among those who received a different anti-rejection drug, documents show.

Contributors to this Report Design director: Joe Hutchinson Photographer: Brian Walski Photo editor: Steve Stroud Graphics: Rebecca Perry Graphics editor: Chris Erskine Researchers: Janet Lundblad, Sunny Kaplan Editors: Roger Smith, Nan Williams, Steve Devol, Bobbi Olson, Kathie Bozanich Web site Editors: Sarah D. Wright, Clare Sup

An auditor from the FDA's scientific investigations unit, Antoine El-Hage, examined the European study results and concluded the "data are reliable." Elashoff agreed in his review. Yet the only way for doctors or patients to find that data is to search the medical literature or seek the FDA's review documents.

Excluding the European study from the Prograf label, Elashoff said, "was just a total whitewash. . . . I think any rational person would reconsider taking this drug if they knew what happened in Europe."

A spokesman for the manufacturer of Prograf said the company had no objection to including the European study results in the labeling. William E. Fitzsimmons, a vice president of drug development for Fujisawa Healthcare Inc., said the decision to exclude the results was entirely the FDA's.

"We submitted that data," he said. "It came down to what the FDA was comfortable putting in the label. We certainly have no interest in trying to hide that information. We presented it at major meetings on transplantation. . . . We're comfortable with that information being out in the public domain."

But if the FDA had included the European results in the label, it would have impugned the agency's basis for approving the new, expanded use

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for Prograf, according to Elashoff and others.

Asked why the agency excluded the information, Woodcock said the European results were "unreliable and could be potentially misleading to doctors and patients in the U.S. if these were included in the label."

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HEADLINE: FDA Official Calls for Additional Studies for New Diabetes Drugs

BODY:

Rather than testing against placebo, new diabetes drugs should be compared with other anti-diabetes agents that are in use, and additional safety trials should be done before a new drug is approved, an FDA official says.

Writing in the December 2007 issue of the professional journal Diabetes Care, Robert Misbin says, "The time has come to reassess what should be expected of a new drug to treat diabetes. ... A plan should be in place at the time of approval that will determine what benefit and harm can be expected from chronic use."

Misbin, a medical doctor with the FDA's Division of Metabolic and Endocrine Drug Products, was involved in the original FDA review of GlaxoSmithKline's new drug application for its controversial diabetes drug Avandia (rosiglitazone maleate). Although not speaking for the FDA, he discusses three lessons learned from the Avandia controversy in the article.

First, reducing A1C (a measure of blood glucose control) is necessary but may not be sufficient.

Second, outcomes trials should be considered but not required as a condition of approval as this could delay the release of new drugs.

Finally, combination therapy trials should be reevaluated. Requiring efficacy trials for each situation, such as monotherapy and combinations with metformin, sulfonylureas and insulin, appears to be unnecessary. By contrast, safety problems have emerged in some situations but not others. Therefore, combination trials with insulin should be structured to evaluate safety.

Misbin suggests requiring four clinical trials for new oral diabetes drugs. The American Diabetes Association's recommendation that patients with Type 2 diabetes generally be treated with metformin at the time of diagnosis should be followed, which will make it difficult to conduct placebo-controlled monotherapy trials, he adds.

Therefore, the first clinical trial, involving placebo-only treatment, should be planned to last eight to 12 weeks. The second study would be a pivotal monotherapy trial and should be designed to last six to 12 months. It would compare the new drug with metformin.

The third study, which would be a second pivotal trial, should compare the investigational drug with placebo in patients who are receiving metformin but whose hyperglycemia is not adequately controlled.

The fourth study should be a safety trial that does not exclude patients who may be at risk of adverse events. This is necessary because, as emerged from the Avandia trials, "cardiac adverse events are more likely to be found in insulin-treated patients," Misbin says. This safety trial should compare one or more doses of the investigational drug, including the maximum dose to be marketed, with placebo in patients who are receiving insulin with or without oral agents.

Extensions of all four trials should continue while the FDA reviews the new drug application, which takes 10 months for a standard review and six months for a priority review. The extension studies should continue for another two years after approval. "As already required, a safety update on ongoing trials should be submitted to the FDA before regulatory action," Misbin writes.

While the FDA cannot require that a new drug be superior to existing drugs, it does not have to prove that a new drug is unsafe to reject it. Therefore, the agency "should set a high standard for drugs that offer no advantage over existing therapy. Even for a novel agent, a few cases of a rare but life-threatening event, such as agranulocytosis, may be sufficient to prevent approval," Misbin says. -- Martin Gidron

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HEADLINE: Government whistle-blower sounds alarm on edited science documents from White House office coordinating climate research

ANCHORS: ROBERT SIEGEL

REPORTERS: ELIZABETH SHOGREN

BODY: ROBERT SIEGEL, host: A 10-year veteran of the office that coordinates government climate research recently quit and is crying foul. He says the White House office has been consistently rewriting documents to low-ball the science on global warming, and he's got documents to prove his point. NPR's Elizabeth Shogren has this report. ELIZABETH SHOGREN reporting: The person making the accusation is Rick Piltz. Until March, he was a senior associate of the federal Climate Change Science Program. Mr. RICK PILTZ (Former Senior Associate, Climate Change Science Program): What I'm observing is what appears to be an orchestrated effort to downplay the seriousness of the climate change issues and their potential consequences for society. SHOGREN: To make his case, he points to major government reports on climate change that were edited by White House official Philip Cooney. Mr. PILTZ: The White House counselor on environmental quality, the chief of staff who is a former oil industry lobbyist, was marking up these documents. And not just on the policy issues, but changing the language of how science was expressed or what the science priorities were. And all of it was designed to minimized the global warming problem. SHOGREN: For example, Piltz reads from a Cooney edit of the early draft of the government's strategic plan for the Climate Change Science Program. Mr. PILTZ: `Warming temperatures will also affect arctic land areas' is changed to `Warming temperatures may also affect arctic land.' SHOGREN: In another edit, Cooney adds the words `significant' and `fundamental' before the phrase `uncertainties in climate science.' In another, he deleted a section highlighting the impacts of warming, such as reducing the size of glaciers and causing flooding. Cooney worked for the American Petroleum Institute as an industry lobbyist before joining the White House. He doesn't have a background in science. Neither does Piltz. Piltz worked for the Democrats on the House Science Com- mittee before he took his current job. Some industry representatives raise questions about his motives. Page 2 Government whistle-blower sounds alarm on edited science documents from White House office coordinating climate research National Public Radio (NPR) June 8, 2005 Wednesday

The White House would not make Cooney available for an interview. At the White House briefing, spokesman Scott McClellan was peppered with questions about Piltz's accusations. He defended Cooney's role in editing the documents and said he was only one of many people who did so. Mr. SCOTT McCLELLAN (White House Spokesman): There are policy people and scientists who are involved in this process, in the interagency re-read process, and he's one of the policy people involved in that process and someone who's very familiar with the issues relating to climate change and the environment. SHOGREN: The key point, McClellan says, is that after all the officials weigh in, the White House Office of Sci- ence and Technology Policy has the final say. Mr. McCLELLAN: They have signed off on these reports because they know that they are scientifically sound. The facts are that our policies in our reports are based on the best available science. SHOGREN: Cooney's edits and Piltz's accusations first appeared this morning in a New York Times story. The timing is awkward for the White House. They come as British Prime Minister Tony Blair's visit to Washington has put President Bush's climate change policy in the spotlight. Blair is pushing the White House to adopt a more aggressive global warming policy. The US is the world's biggest emitter of greenhouse gases; coal-fired power plants and vehicles are the biggest sources. President Bush rejected the Kyoto protocol, an international treaty designed to reduce greenhouse gas emissions, and he opposes mandatory emission cuts, saying they would be too costly. Eileen Claussen is the president of the Pew Center on Global Climate Change and a former assistant secretary of State under the Clinton administration. She says the edits go beyond the kind of normal editing that any administration would do when publishing major scientific reports. Ms. EILEEN CLAUSSEN (President, Pew Center on Global Climate Change): It's sort of symptomatic of the view that science can be changed by policy preferences rather than that science sort of stands on its own and then you decide your policy. I mean, I think it fits into the way the administration has dealt with other matters of science. SHOGREN: Claussen says the edits are not surprising because the administration has consistently emphasized the uncertainties about global warming science. But just yesterday, academies of science of 11 leading nations reported that significant global warming is occurring, and humans are the likely cause of most of it. Elizabeth Shogren, NPR News, Washington.

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HEADLINE: Scientists Criticize White House Stance on Climate Change Findings

BYLINE: By CORNELIA DEAN

BODY: Under its new Democratic chairman, Representative Henry A. Waxman of California, the House Committee on Oversight and Government Reform took on the Bush administration's handling of climate change science yesterday, and even the Republicans on the panel had little good to say about the administration's actions. The subject of the hearing was accusations of administration interference with the work of government climate scientists. Almost to a person, Republicans on the panel introduced themselves by proclaiming their agreement that the earth's climate was warming and that the principal culprit was greenhouse gases generated by people and their machin- ery. And when witnesses spoke in defense of the administration, it was often to say only that there were still some scientists who doubted that climate view or that the administration's approach was not unique. ''Cherry-picking'' science to suit policy or political goals is at least as old as the Eisenhower administration, said Roger Pielke Jr., a professor in the Environmental Studies Program at the University of Colorado. The committee itself is guilty of it, he added, pointing to a news release linking rising ocean temperatures to bigger and more frequent coastal storms, something about which there is still debate. But the other witnesses spoke about how the administration had delayed, altered or watered down the findings of government scientists, the kind of thing they said they had not experienced in the Clinton administration. Drew Shindell, a NASA scientist who said he was speaking as an individual, not for his agency, described research he and his colleagues did on ozone depletion and greenhouse gases over Antarctica. Dr. Shindell said the findings helped explain recent cooling on the continent, a phenomenon cited by climate dis- sidents as challenging the mainstream view. And, he said, the findings suggested Antarctica might warm rapidly in the future, melting ice and sharply raising sea levels. By the time the administration had signed off on the work, he said, its importance had been played down and references to ''rapid warming'' had been deleted. Another witness, Rick Piltz, said he resigned in protest in 2005 from his job with the federal Climate Change Sci- ence Program when he became convinced that the administration's goal was to ''impede'' the understanding of climate science among the public and even the Congress. Part of his job, Mr. Piltz said, was to compile periodic assessments of government climate research for the Con- gress. ''This report has essentially been made to vanish by the Bush administration,'' he said. The fourth witness was Francesca Grifo, who directs the scientific integrity program of the Union of Concerned Scientists, a private group that researches environmental, arms control and other issues. Dr. Grifo's testimony drew largely from a report produced by the Union of Concerned Scientists and the Govern- ment Accountability Project, a private group that defends whistle-blowers. The report, made public yesterday, is based Page 2 Scientists Criticize White House Stance on Climate Change Findings The New York Times January 31, 2007 Wednesday on a Union of Concerned Scientists survey of federal climate scientists and interviews and document searches by the Government Accountability Project. It says it is common for scientists to be pressured to eliminate references to climate change, for their work to be changed to misrepresent their findings, and for climate-related materials to disappear from Web sites. Almost 60 percent of the scientists who responded to the survey said they had personally experienced such an incident in the last five years, the report says, and those who said their work was most closely related to climate change experienced the most interference. (Information about the report is available at www.ucsusa.org.) Representative Darrell Issa, Republican of California, noted that a majority of scientists queried had not responded to the survey. Dr. Grifo said she attributed that to the ''chilling effect'' of administration actions. Anyway, she said, scores of scientists reported problems. ''That number should be zero,'' she said.

URL: http://www.nytimes.com

GRAPHIC: Photos: Representatives Henry A. Waxman, left, and Darrell Issa were among House committee members hearing from scientists yesterday. (Photo by Hayne Palmour IV/North County Times) (Photo by Lauren Victoria Burke/ABC News)

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HEADLINE: Bush administration accused of doctoring scientists' reports on climate change: Inconvenient conclusions censored, hearing told: Researchers warned not to talk about global warming

BYLINE: Suzanne Goldenberg, Washington

BODY: The Bush administration was yesterday accused of systemic tampering with the work of government climate scientists to eliminate politically inconvenient material about global warming. At a hearing of Congress, scientists and advocacy groups described a campaign by the White House to remove references to global warming from scientific reports and limit public mention of the topic to avoid pressure on an administration opposed to mandatory controls on greenhouse gas emissions. Such pressure extended even to the use of the words "global warming" or "climate change", said a report released yesterday by the Union of Concerned Scientists and the Government Accountability Project. The report said nearly half of climate scientists at government agencies had been advised against using those terms. Yesterday's hearings, overseen by the new Democratic chair of the House committee on oversight and government reform, Congressman Henry Waxman, follow years of complaints by scientists that the Bush administration was seeking to put its own spin on scientific research at government agencies. They also complain of a reduction in funding for climate research since the 1990s. The committee was warned that the campaign by the Bush administration discouraged free academic inquiry. "If you know what you are writing has to go through a White House clearance before it is to be published, people start writing for the class," said Rick Piltz, a former senior associate at the US Climate Change Science Programme. "An antici- patory kind of self-censorship sets in." The balance appears to have shifted somewhat since the Democrats took control of Congress this month. At least five bills proposing mandatory caps on greenhouse gas emissions - an idea that is anathema to the White House - have been introduced in the House and Senate. However, Mr Piltz told Congress even he was taken aback by the extent of the political interference, in technical reports, public meetings as well as exchanges with the media, in which scientists were assigned minders from the administration. In the survey of 1,600 government scientists by the Union of Concerned Scientists, 46% had been warned against using terms like global warming in speech or in their reports. The scientists interviewed were working at seven government agencies, from Nasa to the Environmental Protection Agency. Forty-three percent of respondents said their published work had been revised in ways that altered the meaning of scientific findings. Some 38% said they had direct knowledge of cases where scientific infor mation on climate was stripped from websites and printed reports. Page 2 Bush administration accused of doctoring scientists' reports on climate change: Inconvenient conclusions censored, hearing told: Researchers warned not to talk about global warming The Guardian (

"There were a very large number of edits that came at the 12th hour after all the earlier science people had signed off," said Mr Piltz, who eventually resigned from his job because of such pressure. In one such case, a White House appointee, Phil Cooney, demanded 400 last-minute changes which significantly changed the meaning and tone of the report. No detail was beyond the scrutiny of administration officials, it seemed. Drew Shindell, a scientist at Nasa's God- dard Institute for Space Studies, described how officials repeatedly objected to the title of a report which measured rapid warming in Antarctica before dictating their own choice. "Word came back from above that it should be: 'Scientists study Antarctic Climate Change'," Dr Shindell said. "I thought it was so watered down it would be of little interest to anybody." Much of the testimony yesterday centred on the influence exerted by Mr Cooney, a former lobbyist for the petroleum industry who was put in charge of the Council on Environmental Quality. Mr Cooney now works for Exxon Mo- bil, the committee was told. In one instance, Mr Cooney personally edited out a key section of an Environmental Protec- tion Agency report to Congress on the dangers of climate change. "He called it speculative musing," Mr Piltz said. Mr Waxman said he knew of further evidence of such tampering but had been stonewalled by a White House which had repeatedly resisted requests for documents about Mr Cooney's involvement in controlling information. guardian.co.uk/usa >=

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HEADLINE: CLIMATE: Democratic probe finds 'systematic' WH censorship of scientists

BODY: Lauren Morello, Greenwire reporter A 16-month investigation of the Bush administration editing of federal climate studies has revealed "a systematic White House effort to censor climate scientists," House Democrats said in a report today. "The evidence before the committee leads to one inescapable conclusion: The Bush administration has engaged in a systematic effort to manipulate climate change science and mislead policymakers and the public about the dangers of global warming," the report by Oversight and Government Reform Committee Chairman Henry Waxman (Calif.) says. "White House officials and political appointees in the agencies censored congressional testimony on the causes and impacts of global warming, controlled media access to government climate scientists, and edited federal scientific reports to inject unwarranted uncertainty into discussions of climate change and to minimize the threat to the environment and the economy," it continues. The analysis is the culmination of a probe that began in July 2006, when then-committee Chairman Tom Davis (R- Va.) and Waxman asked the White House for documents related to the role played by former Council on Environmental Quality chief of staff Phillip Cooney in editing climate reports. Cooney resigned from the White House in spring 2006 amidst news reports that he improperly altered government documents to soften the link between global warming and industrial emissions of greenhouse gases. Over the course of the investigation, the House panel examined more than 27,000 pages of documents from CEQ and the Commerce Department, held two hearings, and collected depositions from former and current administration employees. In the report today, Democrats say they have gathered evidence to prove that CEQ edited several climate reports -- including the strategic plan for the Climate Change Science Program, U.S. EPA's draft "Report on the Environment" and its "Air Trends Report" -- to "exaggerate or emphasize scientific uncertainties" or the human contribution to climate change. CEQ Chairman Jim Connaughton also personally edited EPA's decision denying California's request for a Clean Air Act waiver that would allow the state to limit greenhouse gas emissions, the report says. CEQ also vetted reporters' requests to speak with climate change scientists at the National Oceanic and Atmos- pheric Administration, the Democrats' analysis concludes. In statements, the White House and Connaughton denied that the administration in any way distorted climate science in federal reports or other communications. "We believe this report is a thinly veiled attempt to distract attention from the administration's effort to advance its commitment to the pursuit of sound environmental, energy and economic policy at the Bali summit," White House spokeswoman Emily Lawrimore said, referring to United Nations climate negotiations in Indonesia. Page 2 CLIMATE: Democratic probe finds 'systematic' WH censorship of scientists Greenwire December 10, 2007 Monday

Meanwhile, Connaughton released a statement touting the administration's "unparalleled record of supporting, funding, advancing, and publicizing climate change research," spending nearly $12 billion since 2001. But Rick Piltz, a former Climate Change Science Program employee who resigned in protest of what he said were improper White House edits of government climate documents, said he believed the report offers the most comprehensive view yet of the administration's attitude toward climate change science. "They begin with and validate a number of issues we raised earlier about the censoring of CCSP reports to play down the global warming problem, and interference with people's media contacts on hurricanes and global warming," said Piltz, now the director of Government Accountability Program's Climate Science Watch. "This is the first time I've seen [the administration] be drawn out to the point that they have to acknowledge rather than spin ... the extent of the corrupting influence of the White House Council on Environmental Quality on everybody who had to deal with them," Piltz said. "Everybody was complicit. Everybody knew what was going on, although nobody had the full story, because the tentacles of CEQ were out in so many different directions." Panel will discuss report The Oversight Committee will consider the report at a business meeting Wednesday, a Democratic spokeswoman said. A vote in favor of the document would make it an official report of the committee, rather than a proposed report. But the analysis, the product of an investigation begun by Davis, has provoked the ire of panel Republicans. Davis' office released a statement today calling the Democrats' report "a partisan diatribe against the Bush administration" that is "seriously flawed." "This investigation was never directed at interference with science anyway," the Republicans said. "This investigation was directed at the role of policymakers in -- guess what -- making and expressing administration policy. But a report entitled 'Political Interference in Climate Change Policy' would sound ridiculous -- because that is what policymakers in the executive branch do." Oversight Committee Republicans will attempt to attach the statement to Democrats' report Wednesday. Click here for Oversight Committee Democrats' proposed report. Click here for Oversight Committee Republicans' response to the proposed report.

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HEADLINE: THE NATION; Climate change program in peril

BYLINE: John Johnson Jr., Times Staff Writer

BODY: America will lose much of its ability to monitor global warming from space unless the Bush administration reverses course and restores funding for the next generation of climate instruments, according to a confidential report prepared by government scientists. Cost overruns and technology problems recently caused the federal government to cut the number of planned monitoring satellites from six to four. Those four will focus on weather prediction rather than climate research, according to the report. "The recent loss of climate sensors ... places the overall climate program in serious jeopardy," said the report, which was drafted by government atmospheric and space scientists for the White House Office of Science and Technol- ogy. The report was posted on the Internet Monday by Climate Science Watch, a Washington-based watchdog group. America depends on a variety of satellites operated by the Department of Defense, NASA and the National Oceanic and Atmospheric Administration to compile information on everything from sea level change to the erosion of the pro- tective ozone layer in Antarctica. NASA alone has 14 Earth-observing satellites in orbit, according to the agency. NASA spokesman David Mould insisted NASA remains committed to climate science. Seven more launches are planned in the next few years, he said. But Climate Science Watch said that cancellation of the satellites would compromise the ability to recover information about ice sheets, the surface levels of lakes and seas, and atmospheric carbon dioxide. Among the instruments eliminated from the next generation of satellites are sensors measuring solar energy, climate energy, ocean topography and aerosols, the report said. "This is going to create a crisis in the science community's ability to monitor global warming, starting in 2010," said Rick Piltz, director of Climate Science Watch. "This gives the lie to the idea that the Bush administration is placing a high priority on climate change." President Bush has requested $331 million for work on the pared-down satellite system in his 2008 budget, which has yet to be acted upon by Congress. [email protected]

Colleen Rowley Exhibits EXHIBIT 1 TIME Magazine: The Bombshell Memo Page 1 of 9

Coleen Rowley's Memo to FBI Director Robert Mueller An edited version of the agent's 13-page letter

May 21, 2002

FBI Director Robert Mueller FBI Headquarters Washington, D.C.

Dear Director Mueller:

I feel at this point that I have to put my concerns in writing concerning KENNETH LAMBERT/AP the important topic of the FBI's response to evidence of terrorist activity SENATORS Announced a series of hearings on in the United States prior to September 11th. The issues are 9/11 and intelligence Friday in Washington fundamentally ones of INTEGRITY and go to the heart of the FBI's law enforcement mission and mandate. Moreover, at this critical juncture in fashioning future policy to promote the most effective handling of ongoing and future threats to United States citizens' security, it is of absolute importance that an unbiased, completely accurate picture How The FBI Blew the Case emerge of the FBI's current investigative and management strengths The inside story of the FBI whistle-blower who and failures. accuses her bosses of ignoring warnings of 9/11

The Remaining Threat To get to the point, I have deep concerns that a delicate and subtle Al-Qaeda operatives are still plotting against the shading/skewing of facts by you and others at the highest levels of FBI U.S., but can we figure out what they'll do next, management has occurred and is occurring. The term "cover up" would and how to stop them? be too strong a characterization which is why I am attempting to carefully (and perhaps over laboriously) choose my words here. I base Decoding the Chatter my concerns on my relatively small, peripheral but unique role in the Parsing the latest terror warnings Moussaoui investigation in the Minneapolis Division prior to, during and after September 11th and my analysis of the comments I have heard The Memo both inside the FBI (originating, I believe, from you and other high levels The explosive letter to the head of the FBI of management) as well as your Congressional testimony and public comments. The FBI's 'Phoenix Memo' Unmasked From FORTUNE: The only journalist to see Ken I feel that certain facts, including the following, have, up to now, been Williams' prescient memo reveals its true nature omitted, downplayed, glossed over and/or mis-characterized in an effort to avoid or minimize personal and/or institutional embarrassment on the part of the FBI and/or perhaps even for improper political reasons:

The FBI 1) The Minneapolis agents who responded to the call about Moussaoui's Rowley's Diagnosis—and Mueller's Rx flight training identified him as a terrorist threat from a very early point. The decision to take him into custody on August 15, 2001, on the INS The Threat: Al-Qaeda "overstay" charge was a deliberate one to counter that threat and was Tracking the terror at home...and the upsurge based on the agents' reasonable suspicions. While it can be said that abroad Moussaoui's overstay status was fortuitous, because it allowed for him

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to be taken into immediate custody and prevented him receiving any A TIME/CNN Poll more flight training, it was certainly not something the INS coincidentally 9/11. Who's responsible and what about the undertook of their own volition. I base this on the conversation I had warnings? when the agents called me at home late on the evening Moussaoui was taken into custody to confer and ask for legal advice about their next course of action. The INS agent was assigned to the FBI's Joint Terrorism Task Force and was therefore working in tandem with FBI agents. Did the FBI do all it could to foil the 9/11 plot?

2) As the Minneapolis agents' reasonable suspicions quickly ripened Yes into probable cause, which, at the latest, occurred within days of Moussaoui's arrest when the French Intelligence Service confirmed his No affiliations with radical fundamentalist Islamic groups and activities connected to Osama Bin Laden, they became desperate to search the computer lap top that had been taken from Moussaoui as well as conduct a more thorough search of his personal effects. The agents in particular believed that Moussaoui signaled he had something to hide in the way he refused to allow them to search his computer.

3) The Minneapolis agents' initial thought was to obtain a criminal Did It Have to Happen? search warrant, but in order to do so, they needed to get FBI Did the FBI and the White House do Headquarters' (FBIHQ's) approval in order to ask for DOJ OIPR's enough to prevent Sept. 11? approval to contact the United States Attorney's Office in Minnesota. Prior to and even after receipt of information provided by the French, 5/27/2002 FBIHQ personnel disputed with the Minneapolis agents the existence of probable cause to believe that a criminal violation had occurred/was Can We Stop the Next Attack?: occurring. As such, FBIHQ personnel refused to contact OIPR to Six months after 9/11, a TIME attempt to get the authority. While reasonable minds may differ as to investigation shows how vulnerable whether probable cause existed prior to receipt of the French we still are intelligence information, it was certainly established after that point and 3/11/2002 became even greater with successive, more detailed information from the French and other intelligence sources. The two possible criminal Photo Essay: Digging Out Ground Zero violations initially identified by Minneapolis Agents were violations of Title 18 United States Code Section 2332b (Acts of terrorism Cover Collection: Browse every TIME cover transcending national boundaries, which, notably, includes "creating a related to September 11 and its aftermath substantial risk of serious bodily injury to any other person by destroying or damaging any structure, conveyance, or other real or personal America on Alert: From Ground Zero to the war property within the United States or by attempting or conspiring to in Afghanistan, a guide to our most compelling destroy or damage any structure, conveyance, or other real or personal coverage property within the United States") and Section 32 (Destruction of aircraft or aircraft facilities). It is important to note that the actual search warrant obtained on September 11th was based on probable cause of a violation of Section 32.1 Notably also, the actual search warrant obtained on September 11th did not include the French intelligence E-mail your letter to the editor information. Therefore, the only main difference between the information being submitted to FBIHQ from an early date which HQ personnel continued to deem insufficient and the actual criminal search warrant which a federal district judge signed and approved on September 11th, was the fact that, by the time the actual warrant was obtained, suspected terrorists were known to have highjacked planes which they then deliberately crashed into the World Trade Center and the Pentagon. To say then, as has been iterated numerous times, that probable cause did not exist until after the disasterous event occurred, is really to acknowledge that the missing piece of probable cause was only the FBI's (FBIHQ's) failure to appreciate that such an event could occur. The probable cause did not otherwise improve or change. When we went to the United States Attorney's Office that morning of September 11th, in the first hour after the attack, we used a disk containing the same information that had already been provided to FBIHQ; then we quickly added Paragraph 19 which was the little we knew from news reports of the actual attacks that morning. The problem with chalking this all up to the "20-20 hindsight is perfect" problem, (which I, as all attorneys who have been involved in deadly force training or the defense of various lawsuits are fully appreciative of), is that this is not a case of everyone in the FBI failing to appreciate the potential consequences. It is obvious, from my firsthand knowledge of the events and the detailed documentation that exists, that the agents in Minneapolis who were closest to the action and in the best position to gauge the situation locally, did fully appreciate the terrorist risk/danger posed by Moussaoui and his possible co-conspirators even prior to September 11th. Even without knowledge of the Phoenix communication (and any number of other additional intelligence

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communications that FBIHQ personnel were privy to in their central coordination roles), the Minneapolis agents appreciated the risk. So I think it's very hard for the FBI to offer the "20-20 hindsight" justification for its failure to act! Also intertwined with my reluctance in this case to accept the "20-20 hindsight" rationale is first-hand knowledge that I have of statements made on September 11th, after the first attacks on the World Trade Center had already occurred, made telephonically by the FBI Supervisory Special Agent (SSA) who was the one most involved in the Moussaoui matter and who, up to that point, seemed to have been consistently, almost deliberately thwarting the Minneapolis FBI agents' efforts (see number 5). Even after the attacks had begun, the SSA in question was still attempting to block the search of Moussaoui's computer, characterizing the World Trade Center attacks as a mere coincidence with Misseapolis' prior suspicions about Moussaoui.2

4) In one of my peripheral roles on the Moussaoui matter, I answered an e-mail message on August 22, 2001, from an attorney at the National Security Law Unit (NSLU). Of course, with (ever important!) 20-20 hindsight, I now wish I had taken more time and care to compose my response. When asked by NSLU for my "assessment of (our) chances of getting a criminal warrant to search Moussaoui's computer", I answered, "Although I think there's a decent chance of being able to get a judge to sign a criminal search warrant, our USAO seems to have an even higher standard much of the time, so rather than risk it, I advised that they should try the other route." Leaked news accounts which said the Minneapolis Legal Counsel (referring to me) concurred with the FBIHQ that probable cause was lacking to search Moussaoui's computer are in error. (or possibly the leak was deliberately skewed in this fashion?) What I meant by this pithy e-mail response, was that although I thought probable cause existed ("probable cause" meaning that the proposition has to be more likely than not, or if quantified, a 51% likelihood), I thought our United States Attorney's Office, (for a lot of reasons including just to play it safe) in regularly requiring much more than probable cause before approving affidavits, (maybe, if quantified, 75%-80% probability and sometimes even higher), and depending on the actual AUSA who would be assigned, might turn us down. As a tactical choice, I therefore thought it would be better to pursue the "other route" (the FISA search warrant) first, the reason being that there is a common perception, which for lack of a better term, I'll call the "smell test" which has arisen that if the FBI can't do something through straight-up criminal methods, it will then resort to using less-demanding intelligence methods. Of course this isn't true, but I think the perception still exists. So, by this line of reasoning, I was afraid that if we first attempted to go criminal and failed to convince an AUSA, we wouldn't pass the "smell test" in subsequently seeking a FISA. I thought our best chances therefore lay in first seeking the FISA. Both of the factors that influenced my thinking are areas arguably in need of improvement: requiring an excessively high standard of probable cause in terrorism cases and getting rid of the "smell test" perception. It could even be argued that FBI agents, especially in terrorism cases where time is of the essence, should be allowed to go directly to federal judges to have their probable cause reviewed for arrests or searches without having to gain the USAO's approval.4

5) The fact is that key FBIHQ personnel whose job it was to assist and coordinate with field division agents on terrorism investigations and the obtaining and use of FISA searches (and who theoretically were privy to many more sources of intelligence information than field division agents), continued to, almost inexplicably,5 throw up roadblocks and undermine Minneapolis' by-now desperate efforts to obtain a FISA search warrant, long after the French intelligence service provided its information and probable cause became clear. HQ personnel brought up almost ridiculous questions in their apparent efforts to undermine the probable cause.6 In all of their conversations and correspondence, HQ personnel never disclosed to the Minneapolis agents that the Phoenix Division had, only approximately three weeks earlier, warned of Al Qaeda operatives in flight schools seeking flight training for terrorist purposes!

Nor did FBIHQ personnel do much to disseminate the information about Moussaoui to other appropriate intelligence/law enforcement authorities. When, in a desperate 11th hour measure to bypass the FBIHQ

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roadblock, the Minneapolis Division undertook to directly notify the CIA's Counter Terrorist Center (CTC), FBIHQ personnel actually chastised the Minneapolis agents for making the direct notification without their approval!

6 ) Eventually on August 28, 2001, after a series of e-mails between Minneapolis and FBIHQ, which suggest that the FBIHQ SSA deliberately further undercut the FISA effort by not adding the further intelligence information which he had promised to add that supported Moussaoui's foreign power connection and making several changes in the wording of the information that had been provided by the Minneapolis Agent, the Minneapolis agents were notified that the NSLU Unit Chief did not think there was sufficient evidence of Moussaoui's connection to a foreign power. Minneapolis personnel are, to this date, unaware of the specifics of the verbal presentations by the FBIHQ SSA to NSLU or whether anyone in NSLU ever was afforded the opportunity to actually read for him/herself all of the information on Moussaoui that had been gathered by the Minneapolis Division and the French intelligence service. Obviously verbal presentations are far more susceptible to mis-characterization and error. The e-mail communications between Minneapolis and FBIHQ, however, speak for themselves and there are far better witnesses than me who can provide their first hand knowledge of these events characterized in one Minneapolis agent's e-mail as FBIHQ is "setting this up for failure." My only comment is that the process of allowing the FBI supervisors to make changes in affidavits is itself fundamentally wrong, just as, in the follow-up to FBI Laboratory Whistleblower Frederic Whitehurst's allegations, this process was revealed to be wrong in the context of writing up laboratory results. With the Whitehurst allegations, this process of allowing supervisors to re-write portions of laboratory reports, was found to provide opportunities for over-zealous supervisors to skew the results in favor of the prosecution. In the Moussaoui case, it was the opposite -- the process allowed the Headquarters Supervisor to downplay the significance of the information thus far collected in order to get out of the work of having to see the FISA application through or possibly to avoid taking what he may have perceived as an unnecessary career risk.7 I understand that the failures of the FBIHQ personnel involved in the Moussaoui matter are also being officially excused because they were too busy with other investigations, the Cole bombing and other important terrorism matters, but the Supervisor's taking of the time to read each word of the information submitted by Minneapolis and then substitute his own choice of wording belies to some extent the notion that he was too busy. As an FBI division legal advisor for 12 years (and an FBI agent for over 21 years), I can state that an affidavit is better and will tend to be more accurate when the affiant has first hand information of all the information he/she must attest to. Of necessity, agents must continually rely upon information from confidential sources, third parties and other law enforcement officers in drafting affidavits, but the repeating of information from others greatly adds to the opportunities for factual discrepancies and errors to arise. To the extent that we can minimize the opportunity for this type of error to arise by simply not allowing unnecessary re-writes by supervisory staff, it ought to be done. (I'm not talking, of course, about mere grammatical corrections, but changes of some substance as apparently occurred with the Moussaoui information which had to be, for lack of a better term, "filtered" through FBIHQ before any action, whether to seek a criminal or a FISA warrant, could be taken.) Even after September 11th, the fear was great on the part of Minneapolis Division personnel that the same FBIHQ personnel would continue their "filtering" with respect to the Moussaoui investigation, and now with the added incentive of preventing their prior mistakes from coming to light. For this reason, for weeks, Minneapolis prefaced all outgoing communications (ECs) in the PENTTBOM investigation with a summary of the information about Moussaoui. We just wanted to make sure the information got to the proper prosecutive authorities and was not further suppressed! This fear was probably irrational but was nonetheless understandable in light of the Minneapolis agents' prior experiences and frustrations involving FBIHQ. (The redundant preface information regarding Moussaoui on otherwise unrelative PENTTBOM communications has ended up adding to criminal discovery issues, but this is the reason it was done.)

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7) Although the last thing the FBI or the country needs now is a witch hunt, I do find it odd that (to my knowledge) no inquiry whatsoever was launched of the relevant FBIHQ personnel's actions a long time ago. Despite FBI leaders' full knowledge of all the items mentioned herein (and probably more that I'm unaware of), the SSA, his unit chief, and other involved HQ personnel were allowed to stay in their positions and, what's worse, occupy critical positions in the FBI's SIOC Command Center post September 11th. (The SSA in question actually received a promotion some months afterward!) It's true we all make mistakes and I'm not suggesting that HQ personnel in question ought to be burned at the stake, but, we all need to be held accountable for serious mistakes. I'm relatively certain that if it appeared that a lowly field office agent had committed such errors of judgment, the FBI's OPR would have been notified to investigate and the agent would have, at the least, been quickly reassigned. I'm afraid the FBI's failure to submit this matter to OPR (and to the IOB) gives further impetus to the notion (raised previously by many in the FBI) of a double standard which results in those of lower rank being investigated more aggressively and dealt with more harshly for misconduct while the misconduct of those at the top is often overlooked or results in minor disciplinary action. From all appearances, this double standard may also apply between those at FBIHQ and those in the field.

8) The last official "fact" that I take issue with is not really a fact, but an opinion, and a completely unsupported opinion at that. In the day or two following September 11th, you, Director Mueller, made the statement to the effect that if the FBI had only had any advance warning of the attacks, we (meaning the FBI), may have been able to take some action to prevent the tragedy. Fearing that this statement could easily come back to haunt the FBI upon revelation of the information that had been developed pre-September 11th about Moussaoui, I and others in the Minneapolis Office, immediately sought to reach your office through an assortment of higher level FBIHQ contacts, in order to quickly make you aware of the background of the Moussaoui investigation and forewarn you so that your public statements could be accordingly modified. When such statements from you and other FBI officials continued, we thought that somehow you had not received the message and we made further efforts. Finally when similar comments were made weeks later, in Assistant Director Caruso's congressional testimony in response to the first public leaks about Moussaoui we faced the sad realization that the remarks indicated someone, possibly with your approval, had decided to circle the wagons at FBIHQ in an apparent effort to protect the FBI from embarrassment and the relevant FBI officials from scrutiny. Everything I have seen and heard about the FBI's official stance and the FBI's internal preparations in anticipation of further congressional inquiry, had, unfortunately, confirmed my worst suspicions in this regard. After the details began to emerge concerning the pre-September 11th investigation of Moussaoui, and subsequently with the recent release of the information about the Phoenix EC, your statement has changed. The official statement is now to the effect that even if the FBI had followed up on the Phoenix lead to conduct checks of flight schools and the Minneapolis request to search Moussaoui's personal effects and laptop, nothing would have changed and such actions certainly could not have prevented the terrorist attacks and resulting loss of life. With all due respect, this statement is as bad as the first! It is also quite at odds with the earlier statement (which I'm surprised has not already been pointed out by those in the media!) I don't know how you or anyone at FBI Headquarters, no matter how much genius or prescience you may possess, could so blithely make this affirmation without anything to back the opinion up than your stature as FBI Director. The truth is, as with most predictions into the future, no one will ever know what impact, if any, the FBI's following up on those requests, would have had. Although I agree that it's very doubtful that the full scope of the tragedy could have been prevented, it's at least possible we could have gotten lucky and uncovered one or two more of the terrorists in flight training prior to September 11th, just as Moussaoui was discovered, after making contact with his flight instructors. It is certainly not beyond the realm of imagination to hypothesize that Moussaoui's fortuitous arrest alone, even if he merely was the 20th hijacker, allowed the hero passengers of Flight 93 to overcome their terrorist hijackers and thus spare more lives on the ground. And even greater casualties, possibly of our Nation's highest government officials, may have been prevented if Al Qaeda intended for Moussaoui to pilot an entirely different aircraft. There is,

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therefore at least some chance that discovery of other terrorist pilots prior to September 11th may have limited the September 11th attacks and resulting loss of life. Although your conclusion otherwise has to be very reassuring for some in the FBI to hear being repeated so often (as if saying it's so may make it so), I think your statements demonstrate a rush to judgment to protect the FBI at all costs. I think the only fair response to this type of question would be that no one can pretend to know one way or another.

Mr. Director, I hope my observations can be taken in a constructive vein. They are from the heart and intended to be completely apolitical. Hopefully, with our nation's security on the line, you and our nation's other elected and appointed officials can rise above the petty politics that often plague other discussions and do the right thing. You do have some good ideas for change in the FBI but I think you have also not been completely honest about some of the true reasons for the FBI's pre-September 11th failures. Until we come clean and deal with the root causes, the Department of Justice will continue to experience problems fighting terrorism and fighting crime in general.

I have used the "we" term repeatedly herin to indicate facts about others in the Minneapolis Office at critical times, but none of the opinions expressed herin can be attributed to anyone but myself. I know that those who know me would probably describe me as, by nature, overly opinionated and sometimes not as discreet as I should be. Certainly some of the above remarks may be interpreted as falling into that category, but I really do not intend anything as a personal criticism of you or anyone else in the FBI, to include the FBIHQ personnel who I believe were remiss and mishandled their duties with regard to the Moussaoui investigation. Truly my only purpose is to try to provide the facts within my purview so that an accurate assessment can be obtained and we can learn from our mistakes. I have pointed out a few of the things that I think should be looked at but there are many, many more.8 An honest acknowledgment of the FBI's mistakes in this and other cases should not lead to increasing the Headquarters bureaucracy and approval levels of investigative actions as the answer. Most often, field office agents and field office management on the scene will be better suited to the timely and effective solution of crimes and, in some lucky instances, to the effective prevention of crimes, including terrorism incidents. The relatively quick solving of the recent mailbox pipe- bombing incidents which resulted in no serious injuries to anyone are a good example of effective field office work (actually several field offices working together) and there are hundreds of other examples. Although FBIHQ personnel have, no doubt, been of immeasurable assistance to the field over the years, I'm hard pressed to think of any case which has been solved by FBIHQ personnel and I can name several that have been screwed up! Decision-making is inherently more effective and timely when decentralized instead of concentrated.

Your plans for an FBI Headquarters' "Super Squad" simply fly in the face of an honest appraisal of the FBI's pre-September 11th failures. The Phoenix, Minneapolis and Paris Legal Attache Offices reacted remarkably exhibiting keen perception and prioritization skills regarding the terrorist threats they uncovered or were made aware of pre- September 11th. The same cannot be said for the FBI Headquarters' bureaucracy and you want to expand that?! Should we put the counterterrorism unit chief and SSA who previously handled the Moussaoui matter in charge of the new "Super Squad"?! You are also apparently disregarding the fact the Joint Terrorism Task Forces (JTTFs), operating out of field divisions for years, (the first and chief one being New York City's JTTF), have successfully handled numerous terrorism investigations and, in some instances, successfully prevented acts of terrorism. There's no denying the need for more and better intelligence and intelligence management, but you should think carefully about how much gate keeping power should be entrusted with any HQ entity. If we are indeed in a "war", shouldn't the Generals be on the battlefield instead of sitting in a spot removed from the action while still attempting to call the shots?

I have been an FBI agent for over 21 years and, for what it's worth, have never received any form of disciplinary action throughout my career.

http://www.time.com/time/covers/1101020603/memo.html 5/29/2008 TIME Magazine: The Bombshell Memo Page 7 of 9

From the 5th grade, when I first wrote the FBI and received the "100 Facts about the FBI" pamphlet, this job has been my dream. I feel that my career in the FBI has been somewhat exemplary, having entered on duty at a time when there was only a small percentage of female Special Agents. I have also been lucky to have had four children during my time in the FBI and am the sole breadwinner of a family of six. Due to the frankness with which I have expressed myself and my deep feelings on these issues, (which is only because I feel I have a somewhat unique, inside perspective of the Moussaoui matter, the gravity of the events of September 11th and the current seriousness of the FBI's and United States' ongoing efforts in the "war against terrorism"), I hope my continued employment with the FBI is not somehow placed in jeopardy. I have never written to an FBI Director in my life before on any topic. Although I would hope it is not necessary, I would therefore wish to take advantage of the federal "Whistleblower Protection" provisions by so characterizing my remarks.

Sincerely

Coleen M. Rowley Special Agent and Minneapolis Chief Division Counsel

NOTES

1) And both of the violations originally cited in vain by the Minneapolis agents disputing the issue with FBIHQ personnel are among those on which Moussaoui is currently indicted.

2) Just minutes after I saw the first news of the World Trade Center attack(s), I was standing outside the office of Minneapolis ASAC M. Chris Briesse waiting for him to finish with a phone call, when he received a call on another line from this SSA. Since I figured I knew what the call may be about and wanted to ask, in light of the unfolding events and the apparent urgency of the situation, if we should now immediately attempt to obtain a criminal search warrant for Moussaoui's laptop and personal property, I took the call. I said something to the effect that, in light of what had just happened in New York, it would have to be the "hugest coincidence" at this point if Moussaoui was not involved with the terrorists. The SSA stated something to the effect that I had used the right term, "coincidence" and that this was probably all just a coincidence and we were to do nothing in Minneapolis until we got their (HQ's) permission because we might "screw up" something else going on elsewhere in the country.

4) Certainly Rule 41 of the Federal Rules of Criminal Procedure which begins, "Upon the request of a federal law enforcement officer or an attorney for the government" does not contain this requirement. Although the practice that has evolved is that FBI agents must secure prior approval for any search or arrest from the United States Attorneys Office, the Federal Rule governing Search and Seizure clearly envisions law enforcement officers applying, on their own, for search warrants.

5) During the early aftermath of September 11th, when I happened to be recounting the pre-September 11th events concerning the Moussaoui investigation to other FBI personnel in other divisions or in FBIHQ, almost everyone's first question was "Why?--Why would an FBI agent(s) deliberately sabotage a case? (I know I shouldn't be flippant about this, but jokes were actually made that the key FBIHQ personnel had to be spies or moles, like Robert Hansen, who were actually working for Osama Bin Laden to have so undercut Minneapolis' effort.) Our best real guess, however, is that, in most cases avoidance of all "unnecessary" actions/decisions by FBIHQ managers (and maybe to some extent field managers as well) has, in recent years, been seen as the safest FBI career course. Numerous high-ranking FBI officials who have made decisions or have taken actions which, in hindsight, turned out to be mistaken or just turned out badly (i.e. Ruby Ridge, Waco, etc.)

http://www.time.com/time/covers/1101020603/memo.html 5/29/2008 TIME Magazine: The Bombshell Memo Page 8 of 9

have seen their careers plummet and end. This has in turn resulted in a climate of fear which has chilled aggressive FBI law enforcement action/decisions. In a large hierarchal bureaucracy such as the FBI, with the requirement for numerous superiors approvals/oversight, the premium on career-enhancement, and interjecting a chilling factor brought on by recent extreme public and congressional criticism/oversight, and I think you will see at least the makings of the most likely explanation. Another factor not to be underestimated probably explains the SSA and other FBIHQ personnel's reluctance to act. And so far, I have heard no FBI official even allude to this problem-- which is that FBI Headquarters is staffed with a number of short term careerists* who, like the SSA in question, must only serve an 18 month- just-time-to-get-your-ticket-punched minimum. It's no wonder why very little expertise can be acquired by a Headquarters unit! (And no wonder why FBIHQ is mired in mediocrity! -- that maybe a little strong, but it would definitely be fair to say that there is unevenness in competency among Headquarters personnel.) (It's also a well known fact that the FBI Agents Association has complained for years about the disincentives facing those entering the FBI management career path which results in very few of the FBI's best and brightest choosing to go into management. Instead the ranks of FBI management are filled with many who were failures as street agents. Along these lines, let me ask the question, why has it suddenly become necessary for the Director to "handpick" the FBI management?) It's quite conceivable that many of the HQ personnel who so vigorously disputed Moussaoui's ability/predisposition to fly a plane into a building were simply unaware of all the various incidents and reports worldwide of Al Qaeda terrorists attempting or plotting to do so.

*By the way, just in the event you did not know, let me furnish you the Webster's definition of "careerism - - the policy or practice of advancing one's career often at the cost of one's integrity". Maybe that sums up the whole problem!

6) For example, at one point, the Supervisory Special Agent at FBIHQ posited that the French information could be worthless because it only identified Zacarias Moussaoui by name and he, the SSA, didn't know how many people by that name existed in France. A Minneapolis agent attempted to surmount that problem by quickly phoning the FBI's legal Attache (Legat) in Paris, France, so that a check could be made of the French telephone directories. Although the Legat in France did not have access to all of the French telephone directories, he was able to quickly ascertain that there was only one listed in the Paris directory. It is not known if this sufficiently answered the question, for the SSA continued to find new reasons to stall.

7) Another factor that cannot be underestimated as to the HQ Supervisor's apparent reluctance to do anything was/is the ever present risk of being "written up" for an Intelligence Oversight Board (IOB) "error." In the year(s) preceding the September 11th acts of terrorism, numerous alleged IOB violations on the part of FBI personnel had to be submitted to the FBI's Office of Professional Responsibility (OPR) as well as the IOB. I believe the chilling effect upon all levels of FBI agents assigned to intelligence matters and their manager hampered us from aggressive investigation of terrorists. Since one generally only runs the risk of IOB violations when one does something, the safer course is to do nothing. Ironically, in this case, a potentially huge IOB violation arguably occurred due to FBIHQ's failure to act, that is, FBIHQ's failure to inform the Department of Justice Criminal Division of Moussaoui's potential criminal violations (which, as I've already said, were quickly identified in Minneapolis as violations of Title 18 United States Code Section 2332b [Acts of terrorism transcending national boundaries] and Section 32 [Destruction of aircraft or aircraft facilities]). This failure would seem to run clearly afoul of the Attorney General directive contained in the "1995 Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations" which mandatorily require the FBI to notify the Criminal Division when "facts or circumstances are developed" in an FI or FCI investigation "that reasonably indicate that a significant federal crime has been, is being, or may be committed." I believe that Minneapolis agents actually brought this point to FBIHQ's attention on August 22, 2001, but HQ personnel apparently ignored the directive,

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ostensibly due to their opinion of the lack of probable cause. But the issue of whether HQ personnel deliberately undercut the probable cause can be sidestepped at this point because the Directive does not require probable cause. It requires only a "reasonable indication" which is defined as "substantially lower than probable cause." Given that the Minneapolis Division had accumulated far more than "a mere hunch" (which the directive would deem as insufficient), the information ought to have, at least, been passed on to the "Core Group" created to assess whether the information needed to be further disseminated to the Criminal Division. However, (and I don't know for sure), but to date, I have never heard that any potential violation of this directive has been submitted to the IOB or to the FBI's OPR. It should also be noted that when making determinations of whether items need to be submitted to the IOB, it is my understanding that NSLU normally used/uses a broad approach, erring, when in doubt, on the side of submitting potential violations.

8) For starters, if prevention rather than prosecution is to be our new main goal, (an objective I totally agree with), we need more guidance on when we can apply the Quarles "public safety" exception to Miranda's 5th Amendment requirements. We were prevented from even attempting to question Moussaoui on the day of the attacks when, in theory, he could have possessed further information about other co-conspirators.} (Apparently no government attorney believes there is a "public safety" exception in a situation like this?!)

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FOCUS - 4 of 55 DOCUMENTS

January 1, 2005, Saturday, Metro Edition

SECTION: NEWS; Pg. 1A

LENGTH: 552 words

HEADLINE: Coleen Rowley retires from the FBI; Whistle-blower spoke out about Sept. 11, Iraq

BYLINE: Greg Gordon; Staff Writer

DATELINE: Washington, D.C.

BODY: Coleen Rowley, the Minneapolis FBI agent whose outspoken criticisms triggered a furor over lapses in the government's pre-Sept. 11 counterterrorism efforts, retired from the bureau Friday. Rowley ended her 24-year FBI career just 11 days after turning 50, a milestone that made her eligible for a full pension. Though she has traversed the country speaking about ethics, integrity and civil liberties since gaining celebrity, Rowley said she has no immediate plans. She said, however, that she would like to be considered for appointment to the new federal Privacy and Civil Liberties Oversight Board. The new law overhauling the nation's intelligence apparatus directs the Department of Homeland Security to create the board to ensure that counterterrorism investigations and arrests do not infringe on people's rights. "Although it's widely presumed to not be very effective, because they don't have subpoena powers," she said. But it would give her a chance to use her background as a constitutional law adviser at the bureau, she said. She has written articles about the importance of preserving civil liberties in the nation's anti-terrorism climate. Rowley considered quitting her job last year - and taking a hit on her pension - to run for a U.S. House seat in Minnesota's Second District, but decided against it. She was hailed as a hero by Minneapolis agents in 2002 when she wrote a letter to FBI Director Robert Mueller bluntly accusing bureau headquarters of blowing a chance to unravel the Sept. 11 hijacking plot. She charged that FBI supervisors in Washington blundered when they blocked requests from Minneapolis agents for a special warrant to search the possessions of terror suspect Zacarias Moussaoui, who had been learning to fly a 747 jumbo jet at an Eagan flight school. Moussaoui is now the only figure facing U.S. trial in connection with the attacks. For her whistle-blowing, Time magazine named her one of its Persons of the Year in 2002. But in early 2003 Rowley stirred controversy and angered fellow agents by making public a letter she wrote urging Mueller to oppose a U.S. invasion of Iraq. Rowley argued that a war in Iraq could result in a "flood of terrorism" on a scale the bureau was not prepared to handle. The FBI Agents Association said her comments, about an area in which she lacked expertise, were "demoraliz- ing to the many FBI employees who have been achieving significant successes in this area." Page 2 Coleen Rowley retires from the FBI;Whistle-blower spoke out about Sept. 11, Iraq Star Tribune (Minneapolis, MN) January 1, 2005, Saturday, Metro Edition

Mueller, who had promised there would be no reprisals for her earlier criticisms, kept true to his word. Rowley did request reassignment from her job as the chief division counsel in the Minneapolis office, accepting a lower-level job and a pay cut. With FBI clearances to talk about ethics and civil liberties, she has traveled the country, speaking to the Ameri- can Civil Liberties Union, officials of the National Aeronautics and Space Administration, nuclear power plant security officials, accountants, health care compliance officers, church groups and college students. Rowley said she celebrated her 50th birthday on Dec. 20 by bringing an ice cream cake and lobster tails to the office. Greg Gordon is at [email protected].

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115 of 178 DOCUMENTS

May 28, 2002, Newsweek Web Exclusive

SECTION: NATIONAL AFFAIRS

LENGTH: 1180 words

HEADLINE: Between the Lines Online: Who Let the Terrorists Succeed?

BYLINE: By Jonathan Alter

HIGHLIGHT: The real culprit is someone very familiar

BODY: Who was asleep at the switch before September 11? We now have the answer. It was not just the FBI, nor the CIA or INS, though those agencies and several others must be remade if we're to have real security. It was not just senior administration officials, though I wish they'd quit dodging the much-needed and highly patriotic accountability that the nation deserves. It turns out the main culprit was someone else, someone much more familiar. It was that guy on the 17th floor, or downtown, or back in the home office--you know, one of the "suits." It was every foot-dragging, fanny-covering bu- reaucrat in every company or government home office, each just "doing my job" by-the-book. It was Mr. Mooney from "The Lucy Show" or Dabney Coleman from "9 to 5." Who let the terrorists get away with it? Ask Dilbert. Better yet, subpoena him. The greatest crime in our history is also the story of a bureaucratic SNAFU ("Situation Normal, All F--ked Up,"), a word--and experience--that dates at least to World War II. The SNAFU must be unraveled and inspected. Careers will be ruined. Some people will be unfairly scapegoated. But it must be done, no matter what Dick Cheney says in that sonorous I-know-best tone. The fact is, the authorities didn't know best. If they did, we would- n't be in this pickle. At least that's what I took from the now-famous memo Minneapolis agent Coleen Rowley sent to Robert Mueller, director of the FBI, now widely known as the Federal Bureau of Incompetence. The May 21, 2002 memo, obtained by Time, is one scary document. It suggests that we have a bunch of time-servers protecting our security, that no one is in charge of anything. If any of this changed after September 11, Rowley, a highly regarded veteran of the bureau, does not say so. Without mentioning names, Rowley basically fingers a mid-level FBI supervisory agent in the Hoover Building (in Washington) named Dave Frasca, who was supposed to be running the task force on religious fanatics. After the Min- neapolis office took flight-student and hijacker-wannabe Zacarias Moussaoui into custody and obtained intelligence from the French indicating that he had terrorist ties, alert Minnesota agents didn't just passively push the case up the chain of command. They became, in Rowley's words, "desperate to search his computer laptop." So desperate that they risked the wrath of higher ups by committing a real pre-9-11 no-no: contacting the CIA. Headquarters personnel didn't just deny the request to probe Moussaoui further. Even though they were "privy to many more sources of intelligence information than field agents," as Rowley plaintively put it, they "continued to, almost inexplicably, throw up roadblocks and undermine Minneapolis' by-now desperate attempts to obtain a search warrant." Page 2 Between the Lines Online: Who Let the Terrorists Succeed? Newsweek May 28, 2002,

Because Frasca's not commenting publicly, we haven't heard the other side of the story. But as anyone who has ever worked in an office knows, HQ always has its own take on events, and sometimes it's even right. In this case a federal judge in Washington, Royce C. Lambreth, grew annoyed at the poor documentation involved in requests from federal prosecutors for search warrants and wiretaps. One prosecutor so angered Lambreth that he was actually barred from seeking any more approvals from judges, a move that sent a chilling career message down through the ranks of the Jus- tice Department. So Frasca, knowing which way the wind was blowing in Washington, wasn't just going to rubber stamp the Minneapolis request. Moreover, the very fact that HQ is, in Rowley's words, "privy to many more sources of intelligence" is actually a hindrance, not necessarily a sign of negligence. The more intelligence chaff that comes in, the harder it is to find the wheat. Frasca should have the chance to explain that, and Judge Lambreth should explain why he thought the warrant process was being abused. But Rowley's certainly correct when she tells Mueller that "the problem with chalking this all up to the '20/20 hindsight is perfect' problem ... is that this is not a case of everyone in the FBI failing to appreciate the potential consequences. It is obvious that the agents in Minneapolis who were closest to the action and in the best position to gauge the situation locally did fully appreciate the terrorist risk/danger posed by Moussaoui." Doesn't that sound familiar in your company? The branch offices never think headquarters knows what's really going on, while the home office VPs think the branch guys are a bunch of whiners without the chops to make it in the big time at HQ. But in this evergreen of bureaucratic in-fighting, one of HQ's best arguments is usually that unlike the branch offices, it sees the "big picture." This time, as Rowley notes, Frasca and company not only failed to see the big picture, they worked actively to keep others from trying to see it. That's quite an indictment. And only part of her bombshell. Rowley, who is, fortunately for her, close to retirement, also goes after Mueller himself. "I have deep concerns that a delicate and subtle shading/skewering of facts by you and others at the highest levels of the FBI has occurred and is occurring." She argues that Mueller's reorganization, which would further em- power the FBI's Washington headquarters, is exactly the wrong approach to preventing terrorism. As if to confirm Rowley's harsh judgment, Mueller last week classified her memo, though we learned after it was leaked that there is nothing even vaguely compromising about FBI sources and methods contained in it. He classified it for the same reason Bush and Cheney don't want an independent commission to investigate what happened: It's embarrassing. Now it's up to the rest of us to decide. Is embarrassment a proper standard for classifying documents and sweeping poor performance under the carpet? Or is it perhaps more patriotic--and better for preventing a future attack to get to the bottom of what happened in order to make the necessary bureaucratic changes? This is a deep question for American democracy. The issue is not accountability versus security; it's accountability versus embarrassment and political discomfort. Mueller argues that the reform of the FBI is already underway, and need not be disrupted by a lot of finger- pointing. Let him do it in private, the administration asks. Let "the company" handle its own affairs. But that assumes a universe where Mr. Mooney doesn't need Lucy's suggestions, and Dolly Parton, Jane Fonda and Lily Tomlin should just shut up. It assumes a world where Dilbert has no cause for complaint. That wasn't life before September 11, or after. Bureaucracies ossify. Office politics grows more bitter with time. Sometimes the only answer is the kind of wholesale reorganization we don't seem to be getting so far. At a minimum, it's time to investigate, ventilate and rejuvenate. The bureaucrats will be back to their old tricks soon enough, but maybe we can buy a few years or security before we need gutsy whistleblowers like Coleen Rowley once more.

LOAD-DATE: June 14, 2002

EXHIBIT 3 FBI Flaws Alleged by Field Staff (washingtonpost.com) http://www.washingtonpost.com/ac2/wp-dyn/A531-2002May23?languag...

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Print This Article FBI Flaws Alleged by Field Staff E-Mail This Article Moussaoui Probe Lapses Blamed on Headquarters

MOST VIEWED ARTICLES By Dan Eggen and Bill Miller Nation On the Site Washington Post Staff Writers Updated 12:03 p.m. ET Friday, May 24, 2002; Page A01 • Doctors' Group Plans Apology For Racism Minneapolis FBI agents investigating terror suspect Zacarias • Findings on Katrina Trailers Moussaoui last August were severely hampered by officials at FBI Went Undisclosed, Maker Says headquarters, who resisted seeking search warrants and • Mukasey Vows Smooth admonished agents for seeking help from the CIA, according to a Transition At Justice for Next letter from the general counsel for the FBI's Minneapolis field RSS NEWS FEEDS office. Top News Investigation Coleen Rowley also wrote in a letter Tuesday to FBI Director What is RSS? | All RSS Feeds Robert S. Mueller III that evidence gathered in the Moussaoui case, combined with a July 10 FBI warning that al Qaeda operatives might be taking flight training in Arizona, should have prompted stronger suspicion at FBI headquarters that a terror attack was planned, according to officials familiar with Rowley's letter.

"There was a great deal of frustration expressed on the part Search Story Archive by Keyword: of the Minneapolis office toward what they viewed as a Advanced Search less than aggressive attitude

from headquarters," said one _____New From AP_____ official. "The bottom line is that • 9/11 Hearings Set for June (The headquarters was the problem." Washington Post, May 25, 2002)

The sharply worded letter from _____America at War News_____ • Sept. 11 Suspects Go on Trial In Rowley stands in stark contrast Madrid (The Washington Post, Apr 22, to statements by Mueller and 2005) • Fireproofing Blown Off Twin Towers other FBI officials, who have (The Washington Post, Apr 6, 2005) insisted that the bureau did all it • Views of Va. Muslim Leader Differ as Terror Trial Opens (The Washington could to determine whether Post, Apr 5, 2005) Moussaoui was part of a • Full Coverage terrorist plot. It is also the

clearest sign of dissent within _____Q & A_____ the FBI over whether the bureau • The Question of the Day on terrorism is answered by the Council on Foreign mishandled clues to the Sept. 11 Relations. attacks last summer, an issue _____Primers on the News_____ that has mushroomed this • Iraq and the War on Terrorism • Iran and the War on Terrorism month amid increasingly fierce • The Philippines and the War on questioning from lawmakers. Terrorism • The Conflict in Kashmir FEATURED ADVERTISER LINKS

1 of 4 7/10/2008 12:10 PM FBI Flaws Alleged by Field Staff (washingtonpost.com) http://www.washingtonpost.com/ac2/wp-dyn/A531-2002May23?languag...

Mueller released a statement last Asbestos Lawyer, Heparin, Adv. Bionics, Asbestosis NY • Understanding Pakistan night saying that he has referred Cool gadgets, hot deals. Visit CircuitCity.com today Rowley's complaints to the • National Security News 12 Zombie Stocks to Sell Now—Free Report Justice Department's inspector ID theft is happening everywhere. Get Protected general for investigation. • Espionage Special Report Escape from everyday life on The Islands Of The Bahamas. HP has unique products to protect all your critical data "While I cannot comment on Free E-mail Newsletters the specifics of the letter, I am Earn 3.00% APY at ING DIRECT. No Fees and No Minimums. Today's Headlines & Columnists convinced that a different See a Sample | Sign Up Now Tips from small business experts: make more now! approach is required," Mueller Daily Politics News & Analysis See a Sample | Sign Up Now said. "New strategies, new Federal Insider analytical capacities and a See a Sample | Sign Up Now Breaking News Alerts different culture makes us an See a Sample | Sign Up Now agency that is changing post-9/11. There is no room after the attacks for the types of problems and attitudes that could inhibit our efforts."

In her classified 13-page letter, which includes detailed footnotes, Rowley said Minneapolis investigators had significant evidence of Moussaoui's possible ties to terrorists, including corroboration from a foreign source that Moussaoui posed a major threat, sources said.

But agent Dave Rapp and his colleagues in Minnesota faced resistance from headquarters staff that Rowley considered unnecessary and counterproductive, according to officials who have seen the letter.

FBI attorneys in Washington determined there was not enough evidence to ask a judge for warrants to search Moussaoui's computer under routine criminal procedures or a special law aimed at terrorists. Officials have said there was no evidence of a crime and no solid connections between Moussaoui and any designated terrorist group.

Moussaoui, who was detained Aug. 16 after arousing suspicions at a Minnesota flight school, has been charged as a conspirator in the Sept. 11 attacks on the World Trade Center and the Pentagon.

Mueller, who took over as FBI director on Sept. 4, was questioned about the letter during an appearance Wednesday before the Senate Intelligence Committee, sources said. One official said Mueller "was very forthright in saying the course of action should have been more aggressive."

Rowley, who officials said has worked for the FBI for more than 20 years, declined to comment yesterday. "Our office has been very diligent in not leaking anything," Rowley said. "I'm going to have to stick with that in this case."

In Berlin yesterday, President Bush said he opposed having an independent commission investigate intelligence failures before the Sept. 11 attacks. The House and Senate intelligence committees are currently conducting a probe.

More than a month before Moussaoui was arrested on immigration charges, Phoenix FBI agent Kenneth Williams wrote a memo July 10 to FBI headquarters outlining his investigation of Islamic radicals enrolled at a Prescott, Ariz., aviation school. He cited bin Laden and raised the possibility that the al Qaeda terror network was using U.S. flight schools as a training ground.

Williams's suggestion that the FBI canvass U.S. flight schools was rejected within weeks by FBI counter-terror division mid-level managers, who decided they lacked the manpower to pursue it. The memo was not shared with agents who later investigated Moussaoui, and it was never given to any other intelligence agency.

2 of 4 7/10/2008 12:10 PM FBI Flaws Alleged by Field Staff (washingtonpost.com) http://www.washingtonpost.com/ac2/wp-dyn/A531-2002May23?languag...

Williams told lawmakers in closed-door briefings this week, however, that he did not expect his request to be acted on immediately and did not believe his memo could have thwarted the Sept. 11 attacks. None of the men named in the document, including several associated with a militant London group that has praised bin Laden, has been connected to the deadly hijackings.

Rowley's correspondence, by contrast, underscores the depth of frustration within the Minneapolis field office over the way the Moussaoui case was handled.

"It really paints a very grim and troubling picture about the institution of the FBI at the end of August last year and how many obstacles the Minnesota office ran into," said one official familiar with the letter's contents. "Clearly she feels this was handled very poorly."

At one point, according to accounts of Rowley's letter, agents in Minnesota went to the CIA for help, only to be admonished by headquarters.

The FBI first notified the CIA about Moussaoui soon after arresting him, a U.S. government official said. The CIA found nothing in an initial check of Moussaoui's name, but over the next couple of weeks, French intelligence interviewed Moussaoui's brother and the parents of a man who blamed Moussaoui for radicalizing their son, according to U.S. sources, and turned over the information.

In late August, CIA officials learned from "FBI agents in the field" that they hoped to obtain a warrant under the Foreign Intelligence Surveillance Act, which would have allowed the government to search Moussaoui's laptop computer without notifying him, one government official said. He could not confirm that this was the contact that brought the admonishment.

The hard drive of Moussaoui's computer, which was finally searched several hours after the Sept. 11 attacks, was found to include detailed information on crop-dusting and on the type of jetliner hijacked. The computer also included the names of Moussaoui associates in Singapore and elsewhere that could have opened new paths for investigators, two sources said.

"The argument is that there was already probable cause and headquarters didn't move aggressively enough," one source said. "If you had the analysis from Phoenix, that would have made the case even better."

Two officials who have read the letter said Rowley indicated she was upset by Mueller's public statements about the extent of the FBI's knowledge before Sept. 11.

In testimony earlier this month before the Senate Judiciary Committee, Mueller acknowledged that the FBI should have responded more aggressively to the Phoenix memorandum, but he argued that the FBI did all it could in pursuing Moussaoui.

"The agent in Minneapolis did a terrific job in pushing as hard as he could to do everything we possibly could with Moussaoui," Mueller said. "But did we discern from that that there was a plot that would have led us to September 11th? No. Could we have? I rather doubt it."

Staff writer Dana Milbank in Berlin contributed to this report.

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3 of 4 7/10/2008 12:10 PM Print Story : FBI Culture Blamed for Missteps on Moussaoui - PoliceOne.com http://www.policeone.com/pc_print.asp?vid=51967

05/27/2002

FBI Culture Blamed for Missteps on Moussaoui

Agent Says 'Climate Of Fear' Hurt Probe

by Bill Miller and Dan Eggen, Washington Post

The FBI operates in "a climate of fear which has chilled aggressive . . . law enforcement action," whistle-blower Coleen Rowley charges in the 13-page letter that faults the FBI's leadership for hindering the investigation of a suspected terrorist prior to Sept. 11,according to excerpts of the letter obtained yesterday.

The letter from Rowley, general counsel of the FBI's Minneapolis field office, to FBI Director Robert S. Mueller III was described yesterday as a scathing indictment of FBI culture and its impact on the way FBI headquarters handled the case of Zacarias Moussaoui, the alleged "20th hijacker" in the Sept. 11 attacks.

Moussaoui was arrested Aug. 16 after he aroused suspicion at a Minnesota flight school. Mueller has testified that the FBI did all it could in trying to determine what Moussaoui and alleged co-conspirators were planning for Sept. 11. Rowley argued that officials at headquarters hindered the probe and top leadership has played down the Minneapolis field office's efforts to avoid embarrassment.

"The agents in Minneapolis who were closest to the action, and in the best position to gauge the situation locally, did fully appreciate the terrorist risk/danger posed by Moussaoui and the possible co-conspirators even prior to Sept. 11," Rowley wrote in her letter, which she hand-delivered this week to Mueller and some members of Congress.

The new details about Rowley's letter emerged yesterday as leaders of a joint Senate-House intelligence committee said they plan to investigate the way the Moussaoui case was handled, part of a broader probe into what agencies knew before Sept. 11.

"I would think she would be someone high up on the list of people that we would like to interview further, and potentially to call as a witness," said Sen. Bob Graham (D-Fla.), chairman of the Senate Select Committee on Intelligence.

Graham said the committee intends to begin hearings on June 4 and continue the sessions into the fall. The initial hearings will be closed, he said, but the committee hopes to elicit public testimony whenever possible. It plans to hear from Mueller and CIA Director George J. Tenet during the last week of June.

Sen. Charles E. Grassley (R-Iowa), a frequent FBI critic, yesterday expressed outrage after he was briefed on the letter.

"Director Mueller can label this letter classified and the FBI can circle the wagons, but a coverup is not going to work," Grassley said in a statement. "This letter documents exactly what headquarters knew and when, and how mid-level officials sabotaged the Moussaoui case before the attacks."

Rowley wrote that the careers of high-ranking FBI officials have in the past been ruined by poor decisions in high-profile cases. "This in turn resulted in a climate of fear which has chilled aggressive FBI law enforcement action/decisions," she wrote.

She said this atmosphere stems from the FBI's organization as a large hierarchy with numerous layers of supervisors who don't want to risk facing criticism from Congress and the public for their decisions.

The investigation of Moussaoui, who faces a federal death penalty trial in Alexandria, has emerged as a focal point of concerns over whether the FBI mishandled clues prior to the Sept. 11 attacks on New York and Washington. Congressional investigators are also looking into a July 10 memo from Phoenix FBI agent Kenneth Williams, which warned that followers of Osama bin Laden might be taking aviation training in the United States.

The memo was not acted upon or shared with FBI agents in Minneapolis or other intelligence agencies. Mueller, who took over as FBI director Sept. 4, has acknowledged that the FBI did not respond aggressively enough to Williams's request that aviation schools be canvassed.

1 of 2 7/10/2008 12:12 PM Print Story : FBI Culture Blamed for Missteps on Moussaoui - PoliceOne.com http://www.policeone.com/pc_print.asp?vid=51967

Rowley asserted in her letter that Minneapolis field agents could have obtained a search warrant for Moussaoui's computer if headquarters had told them about the Phoenix memo. But FBI staff there resisted trying to obtain search warrants and scolded agents for seeking last-minute help from the CIA, she alleged, according to sources.

She wrote that resistance to requests from Minneapolis was so fierce that agents there joked that Osama bin Laden must have infiltrated FBI headquarters.

In one example, Rowley alleges that officials in Washington removed crucial information from an affidavit in support of a search of Moussaoui's computer, causing FBI lawyers to ultimately reject the application, according to several sources who have read the letter.

An FBI official in Washington said the incident is open to interpretation and that there was no effort to undermine the request.

Rowley maintained that even without the Phoenix memo, Minneapolis agents had enough evidence to secretly search Moussaoui's laptop by securing a warrant under the Foreign Intelligence Surveillance Act.

But because FBI lawyers had nixed the idea, Rowley argued in her letter this week, the Phoenix memo would have bolstered the effort to open the computer, which was later discovered to contain detailed information about jetliners, wind patterns and crop-dusting aircraft.

"In all of their conversations and correspondence, headquarters personnel never disclosed to the Minneapolis agents that the Phoenix Division had only three weeks earlier warned of al Qaeda operatives in flight schools seeking flight training for terrorist purposes," Rowley wrote, according to one official familiar with the letter.

FBI attorneys in Washington maintain that Rowley's letter is mistaken, and that the FBI did not have enough evidence to proceed prior to Sept. 11. Senior U.S. officials told The Washington Post in January that Rowley had agreed with that assessment; one official stood by that account yesterday.

As the chief division counsel for the Minneapolis office, Rowley was the agent who helped prepare warrant applications and dealt directly with headquarters staff.

Rowley's letter is very specific, according to sources who have seen it, and names those who Rowley alleged threw a "roadblock" into the Moussaoui investigation.

Classified federal documents revealed yesterday show that Moussaoui told Hussein al-Attas, the man who drove him from Oklahoma to the Minnesota flight school, that it was "acceptable to kill civilians who harm Muslims," two sources said. The information was first reported by the New York Times.

U.S. law enforcement officials have previously said that al-Attas described Moussaoui as a hotheaded Muslim radical, but that he did not believe Moussaoui was a terrorist. Al-Attas, a student from Yemen, has been held for eight months as a material witness in the Moussaoui case.

Rowley personally delivered her letter Tuesday to the offices of Sen. Richard C. Shelby (R-Ala.), the ranking Republican on the Senate intelligence committee, Sen. Dianne Feinstein (D-Calif.) and the staff of the joint House-Senate intelligence panel conducting the investigation. She also met with the staff of that committee on Tuesday, according to sources. She came to Washington this week at the invitation of the joint committee, the sources said.

Rowley, a 47-year-old mother of four who competes in triathlons, lives in Apple Valley, a suburb of St. Paul, and is a graduate of the University of Iowa law school, according to records and acquaintances. A native of northeast Iowa, Rowley came to the Minneapolis field office more than a decade ago from New York, where she had worked on organized crime and other sensitive cases, acquaintances said.

Friends and colleagues describe Rowley as sharp and serious. "She's not a crackpot or anything; she's a good agent and a sharp lawyer," one former colleague said.

Another former co-worker agreed: "She's very straightforward. She's intelligent, thoughtful and outspoken, but she's not out of control. . . . If she sees something she believes is wrong, she is not going to sweep it under the carpet."

Paul A. McCabe, the chief spokesman of the Minneapolis office, said neither Rowley nor D. Strebel Pierce, the special agent in charge, would comment about the letter.

Back to previous page

2 of 2 7/10/2008 12:12 PM EXHIBIT 4 Page 1

4 of 178 DOCUMENTS

June 1, 2002 U.S. Edition

SECTION: UNITED STATES

LENGTH: 986 words

HEADLINE: Where gumshoes fear to tread

BODY: LAST week, Washington was obsessed by one question: what did the president know before September 11th? This week, a new question has taken its place: what did the FBI know before September 11th? The first debate died a well- deserved death. The second debate is leading to the biggest shake-up of the FBI in its history. It is now clear that FBI agents out in the field were investigating the behaviour of suspicious Arabs before Septem- ber 11th, and that their bosses buried their investigations. Last July, an agent in the bureau's Phoenix office told FBI headquarters that he was worried that al-Qaeda agents were training in American flight schools. The Washington bureaucrats did nothing. A little later, Minneapolis agents, excited by their arrest of Zacarias Moussaoui (the alleged 20th hijacker), asked for a search warrant to examine his laptop computer. The bureaucrats refused, despite receiving reports from French intelligence about Mr Moussaoui's involvement with Islamic terrorism. It is easy to be wise after the event: big bureaucracies like the FBI are inundated with information every day. Yet there are growing reasons to think that a more willing headquarters could have put the information together and prevented the September attacks. After all, the two memos were both sent to the same place: the FBI's radical- fundamentalist unit. And Mr Moussaoui's computer contained the phone number of a room-mate of Muhammad Atta, one of the hijackers. Is it too far-fetched to imagine that a visit to Mr Atta's room-mate, combined with an investigation of Arabs at American flight schools, might have persuaded the terrorists to abort their mission? It gets worse. FBI headquarters did not just bury these memos under a pile of paper. It went out of its way to frus- trate the investigators. One supervisor complained that there were plenty of men named Moussaoui in France. How did the agents know this was the same man? The agency may even have removed key information from the Minnesota office's warrant application before sending it to the legal department. For months after September 11th, Robert Mueller, the head of the FBI, swore that his agency had not received any warnings that Islamic terrorists were planning a September 11th-style attack. Last week the Minnesota office's legal counsel, Coleen Rowley, infuriated by the stonewalling, wrote a 6,000-word memo to the director. Mr Mueller's response was to stamp "classified" on it, but it was promptly leaked to the press. Why did the bureau make such an almighty hash of things? Because beneath all the usual turf-protection and incompetence lie two fundamental weaknesses. The biggest is that the FBI is a police force rather than a counterintelligence body. America's spies are all overseas. It has no equivalent of Britain's MI5. The first instinct of domestic spooks would have been to subject Arizona's aeronautical Arabs to covert observation. The first instinct of the FBI's policemen was to see if they had broken any laws, which they had not. The other big reason why the FBI failed to follow up the Phoenix and Minneapolis memos was fear of being accused of "racial profiling". Last month, Mr Mueller told the Senate Judiciary Committee that investigating the 20,000 students attending American flight schools would have been "a monumental undertaking without any specificity as to particular persons". Nonsense. If the search had been narrowed down to Arabs, it would have been manageable. But the FBI, which had been accused of racial profiling when it claimed Wen Ho Lee had spied for China, and failed to prove it, did not dare to do it. Page 2 Where gumshoes fear to tread The Economist June 1, 2002 U.S. Edition

Can it change either of these things? This week, Mr Mueller attempted to right the first; he announced a change in the bureau's mission, making counter-terrorism a priority. Henceforth, the FBI's target will be Osama bin Laden rather than Bonnie and Clyde. He has even moved towards building a form of embryonic MI5, reassigning several hundred agents from traditional crimes to terrorism, putting the accent on prevention, and inviting officers from the CIA into the bureau's field offices. This revolution is rife with practical problems. It will take more than a few name-changes to transform policemen into counter-terrorism experts. (For all the hype, the fraction of agents devoted to terrorism will rise from under a fifth to under a quarter.) The idea that the CIA and the FBI will suddenly start working together amicably seems unlikely; and anyway, who would want to take spying lessons from the CIA, which was only slightly less culpable in the Sep- tember 11th mess? Spooks and snoops Yet the biggest problem will be cultural. Americans deeply resent the idea of their government being able to snoop on them. A post-war attempt to set up a domestic security agency was killed by that famous liberal, J. Edgar Hoover, on the grounds that it would be an American Gestapo. Americans still object to things--like video cameras in malls--that Europeans take for granted. They will surely circumscribe their new domestic spooks with all sorts of privacy laws that will make their job extraordinarily difficult. As for profiling, an increasing number of people seem to think there is a big difference between policemen picking on speeding black drivers and spies targeting Arabs who might harbour plans to set off nuclear bombs. The chairman of the House Intelligence Committee, Porter Goss, has promised to raise the subject. That does not mean anything will be done. "C'est magnifique", one worldly foreigner observed as the Light Brigade charged to their doom at Balaclava, "mais ce n'est pas la guerre." Are principles about privacy and discrimination worth clinging on to in war? Many Americans may feel that nothing justifies sacrificing the freedoms that make their country special. But that debate is slowly beginning to happen.

GRAPHIC: Fixing the FBI may entail some decidedly unAmerican thinking about political correctness and privacy

LOAD-DATE: June 3, 2002

EXHIBIT 5 Page 1

21 of 187 DOCUMENTS

July 23, 2004 Friday CITY EDITION

SECTION: MAIN; Pg. A9

LENGTH: 580 words

HEADLINE: REPORT: MOUSSAOUI IN ON PLOT MINNEAPOLIS FBI WAS STYMIED BY BUREAUCRATIC ROADBLOCKS IN CASE

BYLINE: TOM WEBB, Washington Correspondent

BODY: WASHINGTON -- Thursday's Sept. 11 commission report lays out the missed opportunities and bureaucratic battles surrounding Zacarias Moussaoui, who was arrested in Minnesota in 2001 as he tried to take flight lessons. The report says evidence suggests Moussaoui was being trained to participate in the Sept. 11 attacks, not a follow- up event, as some believe. Moussaoui is the only person charged in the United States in connection with al-Qaida's Sept. 11 plot. He is being held in Virginia as the government prepares for his trial. Moussaoui was arrested about a month before the terrorist attacks. Within days of being detained, Minneapolis FBI agents had uncovered his jihadist beliefs, his unexplained bank account of $32,000 and noted his angry response to questions about his foreign travels, the report said. But suspicious agents, including now-famed FBI whistleblower Coleen Rowley, faced bureaucratic roadblocks as they tried to push the investigation further, according to the Sept. 11 report. Eventually, the Minneapolis FBI turned to foreign governments for more information. The French provided information about Moussaoui's ties to a rebel leader in Chechnya, yet officials at FBI headquarters, despite a "spirited debate," still couldn't be persuaded to issue a special search warrant. The FBI agents also turned to the British government, which revealed that Moussaoui had attended an al-Qaida training camp in Afghanistan -- but that information didn't surface until two days after Sept. 11. "Had this information been available in late August 2001, the Moussaoui case would almost certainly have received intense, high-level attention," the commission reported Thursday. "If Moussaoui had been connected to al-Qaida, questions should have instantly arisen about a possible al-Qaida plot that involved piloting airliners, a possibility that had never been seriously analyzed by the intelligence community," it later added. But even before Sept. 11, the Moussaoui case got some high-level notice. CIA Director George Tenet learned about it on Aug. 23, 2001, in a briefing titled, "Islamic Extremist Learns to Fly." The Minneapolis FBI also attempted to alert the Federal Aviation Administration about the Moussaoui case, but again, agents felt they faced roadblocks. According to the commission report, "Although the Minneapolis agents wanted to tell the FAA from the beginning about Moussaoui, FBI headquarters instructed Minneapolis that it could not share the more complete report the case agent had prepared for the FAA." Page 2 REPORT: MOUSSAOUI IN ON PLOTMINNEAPOLIS FBI WAS STYMIED BY BUREAUCRATIC ROADBLOCKS IN CASE Saint Paul Pioneer Press (Minnesota) July 23, 2004 Friday CITY EDITION

Rowley, the Minneapolis FBI agent and whistleblower, said Thursday she is barred by the judge in the Moussaoui trial from speaking about the case. But she did give credit to the commission's work. "From what I've seen, and I have to caveat that I haven't read their report, but from the ongoing news coverage, it seems that they were being very diligent and thorough and serious about it," Rowley said. Still, she added, "I know it's diligent and thorough, but in a way, it's kind of unfortunate that it took almost three years. Because in the three years since then, the issues have changed, the climate has changed, greatly, because some of the things that are coming forth really no longer apply. The mistakes that happened before 9/11 (are cited), but guess what -- new issues have arisen that haven't been mentioned before." Tom Webb can be reached at [email protected] or 202-383-6049.

NOTES: THE 9: 11 COMMISSION REPORT

LOAD-DATE: August 29, 2005

Charles Smith Exhibits EXHIBIT 1 Army Overseer Tells of Ouster Over KBR Stir The New York Times June 17, 2008 Tuesday

June 17, 2008 Tuesday Late Edition - Final

SECTION: Section A; Column 0; Foreign Desk; Pg. 1

LENGTH: 1358 words

HEADLINE: Army Overseer Tells of Ouster Over KBR Stir

BYLINE: By JAMES RISEN

DATELINE: WASHINGTON

BODY:

The Army official who managed the Pentagon's largest contract in Iraq says he was ousted from his job when he refused to approve paying more than $1 billion in questionable charges to KBR, the Houston-based company that has provided food, housing and other services to American troops.

The official, Charles M. Smith, was the senior civilian overseeing the multibillion- dollar contract with KBR during the first two years of the war. Speaking out for the first time, Mr. Smith said that he was forced from his job in 2004 after informing KBR officials that the Army would impose escalating financial penalties if they failed to improve their chaotic Iraqi operations.

Army auditors had determined that KBR lacked credible data or records for more than $1 billion in spending, so Mr. Smith refused to sign off on the payments to the company. ''They had a gigantic amount of costs they couldn't justify,'' he said in an interview. ''Ultimately, the money that was going to KBR was money being taken away from the troops, and I wasn't going to do that.''

But he was suddenly replaced, he said, and his successors -- after taking the unusual step of hiring an outside contractor to consider KBR's claims -- approved most of the payments he had tried to block.

Army officials denied that Mr. Smith had been removed because of the dispute, but confirmed that they had reversed his decision, arguing that blocking the payments to KBR would have eroded basic services to troops. They said that KBR had warned that if it was not paid, it would reduce payments to subcontractors, which in turn would cut back on services.

''You have to understand the circumstances at the time,'' said Jeffrey P. Parsons, executive director of the Army Contracting Command. ''We could not let operational support suffer because of some other things.''

Mr. Smith's account fills in important gaps about the Pentagon's handling of the KBR contract, which has cost more than $20 billion so far and has come under fierce criticism from lawmakers.

While it was previously reported that the Army had held up large payments to the company and then switched course, Mr. Smith has provided a glimpse of what happened inside the Army during the biggest showdown between the government and KBR. He is giving his account just as the Pentagon has recently awarded KBR part of a 10-year, $150 billion contract in Iraq.

Heather Browne, a spokeswoman for KBR, said in a statement that the company ''conducts its operations in a manner that is compliant with the terms of the contract.'' She added that it had not engaged in any improper behavior.

Ever since KBR emerged as the dominant contractor in Iraq, critics have questioned whether the company has benefited from its political connections to the Bush administration. Until last year, KBR was known as Kellogg, Brown and Root and was a subsidiary of Halliburton, the Texas oil services giant, where Vice President Dick Cheney previously served as chief executive.

When told of Mr. Smith's account, Representative Henry A. Waxman, the California Democrat who is chairman of the House Oversight and Government Reform Committee, said it ''is startling, and it confirms the committee's worst fears. KBR has repeatedly gouged the taxpayer, and the Bush administration has looked the other way every time.''

Mr. Smith, a civilian employee of the Army for 31 years, spent his entire career at the Rock Island Arsenal, the Army's headquarters for much of its contracting work, near Davenport, Iowa. He said he had waited to speak out until after he retired in February.

As chief of the Field Support Contracting Division of the Army Field Support Command, he was in charge of the KBR contract from the start. Mr. Smith soon came to believe that KBR's business operations in Iraq were a mess. By the end of 2003, the Defense Contract Audit Agency told him that about $1 billion in cost estimates were not credible and should not be used as the basis for Army payments to the contractor.

''KBR didn't move proper business systems into Iraq,'' Mr. Smith said.

Along with the auditors, he said, he pushed for months to get KBR to provide data to justify the spending, including approximately $200 million for food services. Mr. Smith soon felt under pressure to ease up on KBR, he said. He and his boss, Maj. Gen. Wade H. McManus Jr., then the commander of the Army Field Support Command, were called to Pentagon meetings with Tina Ballard, then the deputy assistant secretary of the Army for policy and procurement.

Ms. Ballard urged them to clear up KBR's contract problems quickly, but General McManus ignored the request, Mr. Smith said. Ms. Ballard declined to comment for this article, as did General McManus.

Eventually, Mr. Smith began warning KBR that he would withhold payments and performance bonuses until the company provided the Army with adequate data to justify the expenses. The bonuses -- worth up to 2 percent of the value of the work - - had to be approved by special boards of Army officials, and Mr. Smith made it clear that he would not set up the boards without the information.

Mr. Smith also told KBR that, until the information was received, he would withhold 15 percent of all payments on its future work in Iraq.

''KBR really did not like that, and they told me they were going to fight it,'' Mr. Smith recalled.

In August 2004, he told one of his deputies, Mary Beth Watkins, to hand deliver a letter about the threatened penalties to a KBR official visiting Rock Island. That official, whose name Mr. Smith said he could not recall, responded by saying, ''This is going to get turned around,'' Mr. Smith said.

Two officials familiar with the episode confirmed that account, but would speak only on the condition of anonymity out of concern for their jobs.

The next morning, Mr. Smith said he got a call from Brig. Gen. Jerome Johnson, who succeeded General McManus when he retired the month before. ''He told me, ''You've got to pull back that letter,''' Mr. Smith recalled. General Johnson declined to comment for this article.

A day later, Mr. Smith discovered that he had been replaced when he went to a meeting with KBR officials and found a colleague there in his place. Mr. Smith was moved into a job planning for future contracts with Iraq. Ms. Watkins, who also declined to comment, was reassigned as well.

Mr. Parsons, the contracting director, confirmed the personnel changes. But he denied that pressure from KBR was a factor in the Army's decision making about the payments. ''This issue was not decided overnight, and had been discussed all the way up to the office of the secretary of defense,'' he said.

Soon after Mr. Smith was replaced, the Army hired a contractor, RCI Holding Corporation, to review KBR's costs. ''They came up with estimates, using very weak data from KBR,'' Mr. Smith said. ''They ignored D.C.A.A.'s auditors,'' he said, referring to the Defense Contract Audit Agency.

Lt. Col. Brian Maka, a Pentagon spokesman, disputed that. He said in a statement that the Army auditing agency ''does not believe that RCI was used to circumvent'' the Army audits.

Paul Heagen, a spokesman for RCI's parent company, the Serco Group, said his firm had insisted on working with the Army auditors. While KBR did not provide all of the data Mr. Smith had been seeking, Mr. Heagen said his company had used ''best practices'' and sound methodology to determine KBR's costs.

Bob Bauman, a former Pentagon fraud investigator and contracting expert, said that was unusual. ''I have never seen a contractor given that position, of estimating costs and scrubbing D.C.A.A.'s numbers,'' he said. ''I believe they are treading on dangerous ground.''

The Army also convened boards that awarded KBR high performance bonuses, according to Mr. Smith.

High grades on its work in Iraq also allowed KBR to win more work from the Pentagon, and this spring, KBR was awarded a share in the new 10-year contract. The Army also announced that Serco, RCI's parent, will help oversee the Army's new contract with KBR.

''In the end,'' Mr. Smith said, ''KBR got what it wanted.''

URL: http://www.nytimes.com

GRAPHIC: PHOTO: An employee of KBR serving dinner to an American soldier at a base in Baghdad. In 2004, a civilian official questioned KBR's request for about $200 million in payments for food services. (PHOTOGRAPH BY SHAWN BALDWIN/REFLEX NEWS, FOR THE NEW YORK TIMES)

LOAD-DATE: June 17, 2008 Bruce C. Swartz Exhibits EXHIBIT 1 Interrogation Tactics Were Challenged at White House The Washington Post May 22, 2008 Thursday

The Washington Post

May 22, 2008 Thursday Suburban Edition

SECTION: A-SECTION; Pg. A07

DISTRIBUTION: Maryland

LENGTH: 1074 words

HEADLINE: Interrogation Tactics Were Challenged at White House

BYLINE: Carrie Johnson and Josh White; Washington Post Staff Writers

BODY:

Five years ago, as troubling reports emerged about the treatment of detainees at Guantanamo Bay, Cuba, a career lawyer at the Justice Department began a long and relatively lonely campaign to alert top Bush administration officials to a strategy he considered "wrongheaded."

Bruce C. Swartz, a criminal division deputy in charge of international issues, repeatedly questioned the effectiveness of harsh interrogation tactics at White House meetings of a special group formed to decide detainee matters, with representatives present from the Pentagon, the State Department and the CIA.

Swartz warned that the abuse of Guantanamo inmates would do "grave damage" to the country's reputation and to its law enforcement record, according to an investigative audit released earlier this week by the Justice Department's inspector general. Swartz was joined by a handful of other top Justice and FBI officials who said the abuse would almost certainly taint any legal proceedings against the detainees.

Now their predictions appear to be coming true. A top Pentagon official chose this month to drop charges against a detainee who was roughly interrogated at Guantanamo, and U.S. officials believe it may be difficult to charge him at all. Defense lawyers for a group of alleged Sept. 11 conspirators in U.S. custody have said they plan to raise concerns about harsh techniques used by the CIA and will seek to keep evidence derived from such tactics out of court.

Concerns among FBI agents about the interrogations first came to light in 2004, when a series of internal memos disclosed to the American Civil Liberties Union made clear that the bureau withdrew its agents from interrogation rooms in protest. But the degree of dissent over the administration's aggressive tactics within the bureau's top ranks and within the Justice Department was unclear until the release of this week's report, which starkly describes some of these protests and the cool reception the dissenters got among some officials at the White House and elsewhere.

Besides Swartz, the others depicted as raising sustained objections are then-FBI assistant general counsel Marion "Spike" Bowman, who documented his concerns in written reports, and Pasquale D'Amuro, then the bureau's assistant director for counterterrorism. Michael Chertoff, who was then assistant attorney general in charge of the criminal division, raised concerns in November 2002 about the effectiveness of the military's methods, although he said later he did not recall hearing assertions that they were illegal.

One of Chertoff's concerns, according to the report, was that even if FBI agents interviewed detainees after they were harshly interrogated by the CIA, "he did not think this approach would successfully prevent the statement from being 'tainted' by any prior enhanced interview techniques."

At one point, FBI agents went so far as to collect allegations of abuse in what they labeled a "war crimes file," the inspector general's report said, but the file was closed without action shortly afterward.

Two major policy splits are highlighted in the report's account of the long to-and-fro over the tactics. One reflected a clash of cultures between the experienced interrogators at the FBI who were looking to prosecute terrorism crimes, and military and CIA officials who were seeking rapid information about al-Qaeda and were willing to push legal boundaries to do it. The report shows that FBI agents appeared more concerned about the long view, while others wanted detainees to break immediately in the panicked days after Sept. 11, 2001.

A softer split occurred within the Justice Department itself. On one side was its Office of Legal Counsel, where attorney John C. Yoo -- acting in direct consultation with Vice President Cheney's then-counsel David S. Addington -- wrote a series of memos that gave legal backing to harsh interrogation techniques. On the other side were career officials such as Swartz and some top Justice political appointees, even including then-Attorney General John D. Ashcroft, who sources say disliked some of Yoo's conclusions and resented his back-channel discussions with the White House.

Officials at the Justice Department and the FBI declined comment on the report or did not return calls yesterday, underscoring the sensitivity of these debates, even five years after they occurred. But the 370-page report says that after Ashcroft and FBI Director Robert S. Mueller III pressed their concerns, the interrogation tactics did not change.

"Attorney General Ashcroft raised concerns about the difference between FBI interrogation techniques and the Department of Defense methods at the highest levels of the interagency group," spokesman Mark Corallo said. "It is well-known that the Department of Justice was confident that the FBI methods would produce more valuable intelligence."

The government's response to the first and most serious flare-up -- in which an FBI agent complained in 2002 that the CIA's treatment of al-Qaeda commander Abu Zubaida at a secret detention site was "borderline torture" -- was complicated, the report said.

One agent at the site, called "Thomas" in the report, objected strongly to the tactics and was ordered by D'Amuro to depart immediately. But another, called "Gibson" in the report, told investigators that he did not morally object to having FBI agents present, because he had undergone similarly harsh interrogation techniques as part of Army training.

"Gibson" was allowed by the FBI to remain at the CIA facility for several weeks, continuing to work with intelligence operatives, and to take part in the interrogations of Zubaida, about which he briefed FBI supervisors by telephone.

D'Amuro told the investigators that he protested the tactics at a meeting with Mueller at the time, an account confirmed by his colleagues. D'Amuro stated that such aggressive interrogation techniques would not be effective, that they would impede the ability of FBI agents to appear as witnesses at trials, and that the tactics would blacken the country's reputation by helping al-Qaeda spread negative views.

D'Amuro recognized that the bureau would have a "taint problem" if the FBI did the interviews after the CIA had used its aggressive approaches, the report said. Mueller subsequently decided that the FBI agents would not go back to the sessions.

Staff writer Spencer S. Hsu and staff researcher Julie Tate contributed to this report.

LOAD-DATE: May 22, 2008 EXHIBIT 2 More of F.B.I. Memo Criticizing Guantanamo Methods Is Released The New York Times March 22, 2005 Tuesday

March 22, 2005 Tuesday Late Edition - Final

SECTION: Section A; Column 2; National Desk; Pg. 17

LENGTH: 460 words

HEADLINE: More of F.B.I. Memo Criticizing Guantanamo Methods Is Released

BYLINE: By DAVID JOHNSTON

DATELINE: WASHINGTON, March 21

BODY:

The Justice Department on Monday released an F.B.I. memorandum dated May 10, 2004, in which departmental lawyers dismissed intelligence obtained by coercive methods used by the military at Guantanamo Bay, Cuba, as ''suspect at best.''

The existence of the memorandum has been known for months. But when it was first made public by the government, the memorandum was released in heavily edited form, in response to a Freedom of Information Act request by the American Civil Liberties Union.

In February, Senator Carl Levin, Democrat of Michigan, asked the Justice Department to restore the deleted parts of the document after confirmation hearings on Michael Chertoff's nomination to be secretary of the Department of Homeland Security.

''The facts related to interrogation practices used against some detainees are slowly being forced to the surface, and we will keep pushing for more,'' Mr. Levin said in a statement in which he referred to the Department of Defense as D.O.D. ''Today we were able to obtain some information that had previously been blacked out in an F.B.I. document critical of D.O.D. interrogation practices. As I suspected, the previously withheld information had nothing to do with protecting intelligence sources or methods, and everything to do with protecting D.O.D. from embarrassment.''

Mr. Chertoff said at his confirmation hearing that he did not engage in detailed discussions of interrogation policies and never offered specific advice when he headed the criminal division at the Justice Department from 2001 to 2003, when he left the department to take an appointment to a federal appeals court.

But the newly released version of the memorandum identified for the first time four of Mr. Chertoff's top deputies who, according to the document, attended weekly meetings with F.B.I. officials in which the military's interrogation methods were frequently discussed and criticized as ineffective and unproductive.

The four Chertoff aides, whose names were edited from the previous version of the memorandum, were identified in the newly released version as Alice Fisher, David Nahmias, Laura Parsky and Bruce Swartz.

Ms. Fisher was Mr. Chertoff's chief of staff. Mr. Nahmias was his senior counterterrorism adviser and is now the United States attorney in Atlanta.

The author of the memorandum, an F.B.I. employee whose identity is still unknown, wrote that the group often discussed how the military's tactics were not working and might be a problem in its efforts to try Guantanamo prisoners in special tribunals.

''We all agreed D.O.D. tactics were going to be an issue in the military commission cases,'' the memorandum said.

The author said it was Mr. Swartz who took the group's complaints to the Pentagon's general counsel.

URL: http://www.nytimes.com

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Anne Whiteman Exhibits EXHIBIT 1 Page 1

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October 6, 2005 Thursday

LENGTH: 639 words

HEADLINE: FAA WHISTLEBLOWER ANNE WHITEMAN RECEIVES 2005 SPECIAL COUNSEL'S PUBLIC SERVANT AWARD

BYLINE: States News Service

DATELINE: DALLAS

BODY: The following information was released by the Office of Special Counsel: The U.S. Office of Special Counsel (OSC) today announced its selection of Anne Whiteman, an 18-year air traffic controller at Dallas Fort Worth International Airport (DFW), as a recipient of the Special Counsel's Public Servant Award. Ms. Whiteman disclosed to OSC that air traffic controllers and management at the DFW Terminal Radar Ap- proach Control (TRACON) routinely covered up serious operational errors, in violation of an FAA order. Ms. White- man's disclosures triggered an investigation by the Department of Transportation Inspector General (DOT IG) that substantiated her allegations. The investigation confirmed that air traffic controllers and management systemically covered up operational errors and that for the past seven years an improper management practice had been in place at DFW which was responsible for covering up and failing to investigate these errors. The DOT IG concluded that the cover-ups represented safety deficiencies and undermined the public's confidence in the air traffic control system. (See OSC press release, 6/23/05, detailing transmittal of the report.) Due to Ms. Whiteman's courageous efforts, FAA was able to correct a dangerous policy and serious mismanagement at one of its major TRACON facilities. Operational errors at DFW are now reported and investigated in a timely manner. All personnel involved in the cover-up of operational errors were disciplined and all air traffic controllers were required to undergo training and recertification to continue working at DFW. Whiteman has provided a great benefit to the flying public. Special Counsel Scott J. Bloch presented the 2005 Public Servant Award today to Ms. Whiteman for her contributions as a whistleblower to the public safety and airline safety. In announcing the award at OSC's Dallas field office, Special Counsel Bloch praised Ms. Whiteman for her courage in speaking out. Bloch stated, "Thankfully, as a result of the investigation prompted by Ms. Whiteman's disclosures, DFW's operations have been brought into line with the FAA order. In addition, the facility is subject to periodic review by FAA to ensure its continued compliance with its order and its proper reporting and investigating of operational errors. To me this is a perfect example of a case where a civil servant was willing to take on "the establishment" to protect us all. She believed in this job and more than anything, believed in our nation's safety." Bloch continued, "Today I am here to recognize in some small way, the contribution and courage of Anne Whiteman. Her disclosure had a happy ending: safer, more efficient management of air traffic at the Dallas Fort Worth International Airport. We thank her for her courage in reporting these allegations. We thank her for persistence in repeating allegations that apparently no one wanted to hear or listen to. We thank her for working so hard to help correct the misconduct of some of her FAA supervisors, and ultimately, helping to protect the public." Ms. Whiteman is the fifth federal employee to receive such an award. The program was established in 2001 to recognize the contributions that federal employees make to the public interest when - often at great personal risk - they make significant disclosures of violations of law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or, as was the case here, a substantial and specific danger to public health and safety. The Public Servant Award is a non-monetary and merit-based award. Its purpose is to publicly recognize the most significant contributions made by federal whistleblowers who have either filed disclosures with OSC or who have sought relief from OSC on the grounds that they have suffered retaliation.

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THE DALLAS MORNING NEWS

June 24, 2005 Friday SECOND EDITION

SECTION: NEWS; Pg. 12A

LENGTH: 529 words

HEADLINE: Whistle-blower is vindicated But she still struggles with the job, friends she lost on her journey

BYLINE: TERRY MAXON, Staff Writer

BODY: Anne Whiteman doesn't feel like a hero, even though the U.S. Office of Special Counsel credited her Thursday with bringing to light serious problems at Dallas-Fort Worth's air traffic control system. "No, right now, I guess the first word that comes to mind is 'sad,'" Ms. Whiteman said, her voice breaking. "I lost a job that I loved; I lost a lot of friends. I never wanted it to come to this point. I did everything I could to let the FAA take care of this, and they never would." Ms. Whiteman first raised safety issues in a letter to Jane Garvey, then the Federal Aviation Administration's head, in 1998. When the problems didn't get fixed, she kept pushing. She got vindication when the U.S. Department of Transportation's Office of Inspector General backed up her claims in March, its conclusions seconded by the Office of Special Counsel. "It may be hard for the public to appreciate how difficult it is for whistle-blowers to report wrongdoing in the government," special counsel Scott Bloch said in a prepared statement. "Ms. Whiteman should be commended for bringing to light these serious operational errors that threaten our very air safety and security," he said. But she doesn't feel as if the FAA is really cleaning up the situation. The results she can document from her efforts are threats, one controller's attempt to drive her into the ditch, and her transfer from her job as a radar controller. She's now a manager at the FAA's tower at Dallas/Fort Worth International Airport, with the clear understanding that it will never be safe for her to work in the radar center. "I don't know if 'disillusioned' is a good term. Disappointed. At times, shocked," she said. "It's such a neat job, a job I loved with all my heart, and for me, it's over and has been over. I know people go through a lot worse things in life, but it's taken its toll." She's lost all but a few of her friends who work as radar controllers. She's had to endure threats. "They started out with threats against my personal safety. In one instance, a controller was so busy yelling and screaming at me and calling me names and laughing that he forgot his own airplane that was on a course to collide with another airplane," she said. In another instance, "I had a controller tell me that if he found out if I disclosed this, I would wish that I had never worked at D/FW," she said. "I had a controller try to run me off the road on the way to work." Page 2 Whistle-blower is vindicated But she still struggles with the job, friends she lost on her journey THE DALLAS MORNING NEWS June 24, 2005 Friday

The second controller, on another occasion, called her an obscene name and slapped her on the back of the head while a supervisor watched and did nothing. Ms. Whiteman says the Office of Special Counsel puts too much of the blame on Ross Schulke, a former air traffic manager who retired in January 2003, and puts too little responsibility on other managers who remain at the D/FW Terminal Radar Approach Control. "Nobody has been severely reprimanded," she said. Ms. Whiteman, who began working for the FAA in August 1982 just before she turned 26, had hoped to stay at the FAA until she turns 56 in 2012. "I'm not sure I'll make it. I don't know how many times I've come home and told my husband I've got to quit," she said. E-mail [email protected]

GRAPHIC: PHOTO(S): (JOHN F. RHODES/Staff Photographer) Anne Whiteman says she was transferred from a job she loved and threatened with physical harm because she tried to point out errors at D/FW Terminal Radar Approach Control.

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SHOW: All Things Considered 9:00 PM EST

April 23, 2008 Wednesday

LENGTH: 801 words

HEADLINE: FAA Accused of Ignoring Safety Warnings

ANCHORS: ROBERT SIEGEL, MELISSA BLOCK

BODY: ROBERT SIEGEL, host: From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel. MELISSA BLOCK, host: And I'm Melissa Block. More trouble looms for the Federal Aviation Administration that's already fielded loud criticism from missed safety inspections. And now, there are more allegations. This time, the people sounding the alarm are air traffic controllers. They say supervisors have been hiding mistakes that could passengers at risk. Government investigators have been looking into this complaints. They're expected to release their findings later this week. As NPR's Kathleen Schalch reports, the FAA is now admitting these problems occurred. KATHLEEN SCHALCH: For years, veteran air traffic controller Anne Whiteman was alarmed by what was going on at the Dallas Forth Worth airport. Ms. ANNE WHITEMAN (Air Traffic Controller, Dallas Fort Worth International Airport): For lack of a better term, everything was helter-skelter. BLOCK: She says too often, planes where veering too close together, and no one was taking these operational errors seriously. In fact, Whiteman says, they were covering them up. She reported it, and she says colleagues and supervisors acted decisively against her. She says they physically harassed and threatened her. She says one air traffic controller repeatedly hit her, another would bump into her and knock her down. Ms. WHITEMAN: He did it in front of a supervisor one day, and I felt so ridiculous. SCHALCH: She says neither one of then got reprimanded. Ms. WHITEMAN: I was locked in an office, and I was removed. I received the harsher reprimand than anyone. SCHALCH: In 2004, Whiteman contacted government investigators. They verified that she was right. There have been a seven-year cover up. Scott Block runs the Office of Special Counsel, an independent federal agency that probes whistleblower complaints and protects the whistleblowers. He says the FAA claimed it had dealt with the situation. Mr. SCOTT BLOCK (Director, Special Counsel): FAA assured everyone, including the inspector general and the Office of Special Counsel that they have complied with the directives and they had cleaned up the problem. Page 2 FAA Accused of Ignoring Safety Warnings National Public Radio (NPR) April 23, 2008 Wednesday

SCHALCH: But Block says they hadn't. Mr. BLOCK: Things hadn't change at all. They only got worse. SCHALCH: Last year, Anne Whiteman and two other whistleblowers at Dallas Forth Worth came forward again. They told Block the FAA had simply shifted its strategy. Mr. BLOCK: And we substantiated their allegations that this cover up had never terminated, but rather had simply morphed into a different kind of cover up. SCHALCH: Officials were now reporting more mistakes. But rather than blaming air traffic controllers, they were blaming the pilots. Anne Whiteman says it was obvious. She had tracked pilot errors for over a decade. Ms. WHITEMAN: We had maybe and average of 10 or 12 pilot deviations a year. I think last year, they had 200. SCHALCH: Special Counsel Scott Block says he's seen the same pattern at the FAA before. Mr. BLOCK: As soon as the coast is clear, we have found, they will find a way to continue doing what they were doing, maybe even do it worse. SCHALCH: Block told the Department of Transportation's inspector general to launch a new probe. The results of that investigations are due out later this week. The FAA says it won't comment on the specifics of the case until that report's released. But the agency's chief spokesperson, Lynn Tierney, told NPR the FAA has looked into the new allegations and confirmed them. Ms. LYNN TIERNEY (Assistant Administrator for Communications, Federal Aviation Administration): There were mistakes that were recorded improperly. What I can tell you is that that situation has been rectified. There have been personnel changes. SCHALCH: Because these people were implicated in the reclassifying of these errors. Ms. TIERNEY: Yes. SCHALCH: And yes, she says, misclassifying incidents this way can pose a safety risk. Because when planes get too close together, the FAA needs to know why. Ms. TIERNEY: And you want to be able to stop the trend before it gets more serious, and that's why the precise re- cording of every incident is imperative. SCHALCH: Tierney says the FAA is putting programs in place to track errors more closely and to make sure nothing like this ever happens again anywhere in the country. She says she cannot comment on the way whistleblower Anne Whiteman was treated. Ms. TIERNEY: But what I can say is that under no circumstances should anyone be ostracized for stating the belief that they feel that safety is compromised. SCHALCH: Still, some air traffic controllers say they're afraid to come forward. The Office of Special Counsel is investigating more cases of possible retribution against FAA whistleblowers. One is an air traffic controller in Mem- phis. Kathleen Schalch, NPR News, Washington.

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The Associated Press

June 24, 2005, Friday, BC cycle

SECTION: Domestic News

LENGTH: 480 words

HEADLINE: Investigation reveals underreporting of airplane near misses at Dallas-Fort Worth

DATELINE: DALLAS

BODY: Air traffic controllers in the Dallas-Fort Worth area routinely covered up errors and their supervisors failed to investigate cases that included airplanes flying too close to each other, federal officials said. The incidents date back seven years at D-FW Terminal Radar Approach Control, which oversees air traffic at all of the area's airports, including Dallas-Fort Worth International Airport. The investigation by the Office of Special Counsel, an independent government agency, was prompted by whistle- blower Anne Whiteman, an air traffic controller at the radar approach control. "It was to the point that I was fearful that two airplanes would collide," Whiteman told the Dallas Morning News for a story in Friday's papers. "I can say that without hesitation." Also Friday, the Los Angeles Times reported that airplanes came alarmingly close to each other four times in the last month at Los Angeles International Airport, reviving concerns about safety at the airport, which has an outdated and confusing runway. And The Boston Globe reported that the National Transportation Safety Board is investigating a near-collision earlier this month of two passenger jets that were mistakenly cleared to take off at the same time on intersecting runways at Logan International Airport. In Dallas-Fort Worth, Special Counsel Scott Bloch said there was documentation of Whiteman's allegations that supervisors failed to investigate some cases. In other cases, the radar approach control investigated errors but did not notify the Federal Aviation Administration as required, he said. The investigation also showed the radar approach control underreported errors. For example, the control center reported two operational errors in the first half of 2004, but the Office of Inspector General for the Transportation Department found that in the last half of 2004, there were 36 errors, including 28 of moderate severity, the report found. In one of those cases, two airplanes came dangerously close to each other as they neared a runway, according to the report. Each was 300 feet apart vertically and about a half-mile apart horizontally - but federal minimums require verti- cal distances of 1,000 feet and horizontal distances of three miles when they are within 40 miles of Dallas-Fort Worth. A Dallas-Fort Worth airport spokesman referred all questions to the FAA. "We take these charges very seriously," FAA spokesman Greg Martin said. "As we became aware of them, we took immediate and thorough action." Page 2 Investigation reveals underreporting of airplane near misses at Dallas-Fort Worth The Associated Press June 24, 2005, Friday, BC cycle

D-FW Terminal Radar Approach Control was put on probation for two years while inspectors conducted checks unannounced. Some employees were reassigned, decertified or placed on probation. It is unclear how many were disciplined. "Their performance has vastly improved, and they're now in compliance with strict FAA procedures," Martin said.

LOAD-DATE: June 25, 2005

Joseph Wilson Exhibits EXHIBIT 1 What I Didn't Find in Africa http://www.nytimes.com/2003/07/06/opinion/06WILS.html?ei=5007&en...

July 6, 2003

OP-ED CONTRIBUTOR

What I Didn't Find in Africa

By JOSEPH C. WILSON 4th

ASHINGTON -- Did the Bush administration manipulate intelligence about Saddam Hussein's weapons programs to justify an invasion of Iraq?

Based on my experience with the administration in the months leading up to the war, I have little choice but to conclude that some of the intelligence related to Iraq's nuclear weapons program was twisted to exaggerate the Iraqi threat.

For 23 years, from 1976 to 1998, I was a career foreign service officer and ambassador. In 1990, as chargé d'affaires in Baghdad, I was the last American diplomat to meet with Saddam Hussein. (I was also a forceful advocate for his removal from Kuwait.) After Iraq, I was President George H. W. Bush's ambassador to Gabon and São Tomé and Príncipe; under President Bill Clinton, I helped direct Africa policy for the National Security Council.

It was my experience in Africa that led me to play a small role in the effort to verify information about Africa's suspected link to Iraq's nonconventional weapons programs. Those news stories about that unnamed former envoy who went to Niger? That's me.

In February 2002, I was informed by officials at the Central Intelligence Agency that Vice President Dick Cheney's office had questions about a particular intelligence report. While I never saw the report, I was told that it referred to a memorandum of agreement that documented the sale of uranium yellowcake — a form of lightly processed ore — by Niger to Iraq in the late 1990's. The agency officials asked if I would travel to Niger to check out the story so they could provide a response to the vice president's office.

After consulting with the State Department's African Affairs Bureau (and through it with Barbro Owens- Kirkpatrick, the United States ambassador to Niger), I agreed to make the trip. The mission I undertook was discreet but by no means secret. While the C.I.A. paid my expenses (my time was offered pro bono), I made it abundantly clear to everyone I met that I was acting on behalf of the United States government.

In late February 2002, I arrived in Niger's capital, Niamey, where I had been a diplomat in the mid-70's and visited as a National Security Council official in the late 90's. The city was much as I remembered it. Seasonal winds had clogged the air with dust and sand. Through the haze, I could see camel caravans crossing the Niger River (over the John F. Kennedy bridge), the setting sun behind them. Most people had wrapped scarves around their faces to protect against the grit, leaving only their eyes visible.

The next morning, I met with Ambassador Owens-Kirkpatrick at the embassy. For reasons that are understandable, the embassy staff has always kept a close eye on Niger's uranium business. I was not surprised,

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then, when the ambassador told me that she knew about the allegations of uranium sales to Iraq — and that she felt she had already debunked them in her reports to Washington. Nevertheless, she and I agreed that my time would be best spent interviewing people who had been in government when the deal supposedly took place, which was before her arrival.

I spent the next eight days drinking sweet mint tea and meeting with dozens of people: current government officials, former government officials, people associated with the country's uranium business. It did not take long to conclude that it was highly doubtful that any such transaction had ever taken place.

Given the structure of the consortiums that operated the mines, it would be exceedingly difficult for Niger to transfer uranium to Iraq. Niger's uranium business consists of two mines, Somair and Cominak, which are run by French, Spanish, Japanese, German and Nigerian interests. If the government wanted to remove uranium from a mine, it would have to notify the consortium, which in turn is strictly monitored by the International Atomic Energy Agency. Moreover, because the two mines are closely regulated, quasi-governmental entities, selling uranium would require the approval of the minister of mines, the prime minister and probably the president. In short, there's simply too much oversight over too small an industry for a sale to have transpired.

(As for the actual memorandum, I never saw it. But news accounts have pointed out that the documents had glaring errors — they were signed, for example, by officials who were no longer in government — and were probably forged. And then there's the fact that Niger formally denied the charges.)

Before I left Niger, I briefed the ambassador on my findings, which were consistent with her own. I also shared my conclusions with members of her staff. In early March, I arrived in Washington and promptly provided a detailed briefing to the C.I.A. I later shared my conclusions with the State Department African Affairs Bureau. There was nothing secret or earth-shattering in my report, just as there was nothing secret about my trip.

Though I did not file a written report, there should be at least four documents in United States government archives confirming my mission. The documents should include the ambassador's report of my debriefing in Niamey, a separate report written by the embassy staff, a C.I.A. report summing up my trip, and a specific answer from the agency to the office of the vice president (this may have been delivered orally). While I have not seen any of these reports, I have spent enough time in government to know that this is standard operating procedure.

I thought the Niger matter was settled and went back to my life. (I did take part in the Iraq debate, arguing that a strict containment regime backed by the threat of force was preferable to an invasion.) In September 2002, however, Niger re-emerged. The British government published a "white paper" asserting that Saddam Hussein and his unconventional arms posed an immediate danger. As evidence, the report cited Iraq's attempts to purchase uranium from an African country.

Then, in January, President Bush, citing the British dossier, repeated the charges about Iraqi efforts to buy uranium from Africa.

The next day, I reminded a friend at the State Department of my trip and suggested that if the president had been referring to Niger, then his conclusion was not borne out by the facts as I understood them. He replied that perhaps the president was speaking about one of the other three African countries that produce uranium: Gabon, South Africa or Namibia. At the time, I accepted the explanation. I didn't know that in December, a month before the president's address, the State Department had published a fact sheet that mentioned the Niger case.

Those are the facts surrounding my efforts. The vice president's office asked a serious question. I was asked to help formulate the answer. I did so, and I have every confidence that the answer I provided was circulated to the appropriate officials within our government.

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The question now is how that answer was or was not used by our political leadership. If my information was deemed inaccurate, I understand (though I would be very interested to know why). If, however, the information was ignored because it did not fit certain preconceptions about Iraq, then a legitimate argument can be made that we went to war under false pretenses. (It's worth remembering that in his March "Meet the Press" appearance, Mr. Cheney said that Saddam Hussein was "trying once again to produce nuclear weapons.") At a minimum, Congress, which authorized the use of military force at the president's behest, should want to know if the assertions about Iraq were warranted.

I was convinced before the war that the threat of weapons of mass destruction in the hands of Saddam Hussein required a vigorous and sustained international response to disarm him. Iraq possessed and had used chemical weapons; it had an active biological weapons program and quite possibly a nuclear research program — all of which were in violation of United Nations resolutions. Having encountered Mr. Hussein and his thugs in the run-up to the Persian Gulf war of 1991, I was only too aware of the dangers he posed.

But were these dangers the same ones the administration told us about? We have to find out. America's foreign policy depends on the sanctity of its information. For this reason, questioning the selective use of intelligence to justify the war in Iraq is neither idle sniping nor "revisionist history," as Mr. Bush has suggested. The act of war is the last option of a democracy, taken when there is a grave threat to our national security. More than 200 American soldiers have lost their lives in Iraq already. We have a duty to ensure that their sacrifice came for the right reasons.

Joseph C. Wilson 4th, United States ambassador to Gabon from 1992 to 1995, is an international business consultant.

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washingtonpost.com Man Behind the Furor Wilson: Envoy With an Independent Streak

By Richard Leiby Washington Post Staff Writer Wednesday, October 1, 2003; Page A01

Former diplomat Joseph Wilson used to tell reporters he felt certain how his obituary would read. It went: "Joseph C. Wilson IV, who was the last American diplomat to meet with Iraqi President Saddam Hussein, died . . . "

But "it seems to change," Wilson said yesterday, smiling across his desk in his Washington office. He has kept mentally revising the obituary to keep up with the political maelstrom over Iraq policy and White House leaks that is swirling around him.

A recent version began: "Joseph C. Wilson IV, the Bush I administration political appointee who did the most damage to the Bush II administration . . ."

The current version goes: "Joseph C. Wilson IV, the husband of the spy the White House outed, . . ."

Wilson, 53, is also now known as the man the CIA sent to Niger in February 2002 to investigate rumors that Hussein was trying to buy uranium there -- and who came back with denials from Niger officials. As President Bush repeated the allegation -- most prominently in the "16 words" in the State of the Union address Jan. 28 -- Wilson said he grew increasingly perplexed. And by July, he was annoyed enough to say publicly that U.S. officials had exaggerated the public case for invading Iraq.

At the time, he said he feared that the White House would retaliate. It allegedly did when administration officials called reporters to identify Wilson's wife as a clandestine CIA operative.

As the world now knows, Wilson is married to Valerie Wilson, nee Plame. She is his third wife. She is 40, slim, blonde and the mother of their 3-year-old twins. In the photos in his office, she has the looks of a film star.

"She is really quite amazing," Wilson said. "We were just discussing today who would play her in the movie," he cracked.

Wilson himself seems to have a theatrical streak. He is the son of journalists and calls himself a "former hippie, surf bum and ski bum." He is far more obliging of the spotlight than most diplomats, active or retired, and more flamboyant, wearing his graying mane on the shaggy side, slinging his feet onto his desk while taking calls -- more than 50 before noon -- from the media.

His fingers threaded a string of ornate black worry beads, common in the Arab world. They're from his days in Baghdad, where he was acting U.S. ambassador. In 1990, while sheltering more than a hundred Americans at the U.S. Embassy and diplomatic residences, he briefed reporters while wearing a hangman's noose instead of a necktie -- a symbol of defiance after Hussein threatened to execute anyone who didn't turn over foreigners.

The message, Wilson said: "If you want to execute me, I'll bring my own [expletive] rope."

This toughness impressed President George H.W. Bush, who called Wilson a "truly inspiring" diplomat who exhibited "courageous leadership" by facing down Hussein and helping to gain freedom for the Americans

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before the 1991 war began.

But last summer, in the run-up to the Iraq war, he became a persistent critic of the current President Bush's policies, appearing on TV and writing opinion pieces that argued against a rush to war. "I felt it was important to correct the record," he said. Most recently, he has accused the White House -- loudly -- of blowing his wife's CIA cover in retaliation.

Wilson makes no secret of being a left-leaning Democrat and said yesterday he intends to endorse Sen. John F. Kerry (D-Mass.) for president. Wilson, a former ambassador to Gabon who served as an Africa expert in the second Clinton administration, has long been friendly with leading Democrats.

In the mid-1980s he worked for then-Sen. Al Gore (D-Tenn.) as a congressional fellow. He briefed Gore by phone from Baghdad as the senator was preparing to vote to authorize force in the Gulf War. Wilson argued then that force was required.

Wilson said he was a nonpartisan civil servant during his nearly 23 years in government. Yesterday he was sporting a set of presidential-seal cufflinks given to him by either Clinton or the first President Bush -- he couldn't recall which. He wears each set with equal pride.

Some who know Wilson well say he isn't pushing an agenda and note that he held off disclosing his role in the Niger matter until after the war in Iraq was over. Other friends said they wish he had been more patient in the imbroglio over his wife -- and had not publicly accused White House senior adviser Karl Rove of being involved in the leaks.

The White House has called allegations of Rove's involvement "ridiculous."

Richard N. Perle, an influential hawk who has run into Wilson on the talk-show circuit, questioned his motives. "I don't know that his objectivity can be assumed in this case," Perle said. "He has to be regarded as someone who had a strong opinion against the war . . . He made no bones about it, he had a strong bias."

In a July 18 column in the Wall Street Journal, former defense secretary Caspar Weinberger ridiculed Wilson's trip to Niger as a "sloppy tea-drinking 'investigation' from . . . a retired ambassador with a less than stellar record."

Others who know Wilson defended him. "I don't believe he started out with the intention of developing a controversy for political purposes, in opposition to the president," said one-time House speaker Thomas Foley, a friend of Wilson since 1985.

"The fact that somebody worked in the White House for a particular administration does not brand them," said Chester A. Crocker, an assistant secretary of state under President Ronald Reagan. He called Wilson "eminently professional."

Wilson is also a glad-hander with an irreverent sense of humor. It may be in his genes: His parents were foreign correspondents who filed "idiosyncratic cultural dispatches" from Europe, he said. His family roots are in San Francisco, but he also spent some of his teenage years in France.

Wilson graduated from the University of California at Santa Barbara in 1972 with a degree in "history, volleyball and surfing," he said. For the next few years -- his hippie period -- he worked as a carpenter, but he also won a graduate fellowship and studied public administration. Fluent in French, he entered the Foreign Service in 1976.

"We have a place for you where they speak French," he quoted a State Department official as telling him. He ended up as a general services officer -- responsible for keeping the power on and the cars running, among

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other duties -- in Niamey, Niger. "It was the lowest possible job in the embassy in the most remote part of the world," he recalled. Still, "I fell in love with Africa."

He worked his way into better postings around Africa. In 1988 he was posted to Baghdad, and was running the embassy after Hussein invaded Kuwait in August 1990.

He recalled saying at the time, "The good news is we've been training for this all of our careers. The bad news is: Oh, [expletive], we're in charge -- what do we do now?"

Wilson may laugh now, but in the eyes of hostages, he was a hero. "He stuck his neck out in our behalf . . . He worked so hard to keep us from falling apart," recalled Roland O. Bergheer, 75, a Bechtel Corp. manager who was trapped in Baghdad.

A conservative who lives in Las Vegas, Bergheer added: "I love Joe Wilson. . . . I don't give a damn what his politics are."

Even though the White House has said Rove wasn't involved, Wilson made clear yesterday that he has no intention of backing off from his assertion that Rove at least condoned someone's making telephone calls to reporters about his wife. He said he took a call from a reporter who quoted Rove as saying: "Joe Wilson's wife is fair game."

Wilson said he and his wife have attended the same Episcopal church as Rove. Wilson quoted Valerie as saying, "Perhaps the next time we are taking communion I should introduce myself so he can see that I have a face and a name other than 'fair game.' "

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News Front Page Last Updated: Thursday, 20 October 2005, 17:30 GMT 18:30 UK E-mail this to a friend Printable versio n Profile: Joseph Wilson

CIA LEAK INQUIRY Africa Ambassador Joseph Wilson Americas had already earned a KEY STORIES Asia-Pacific footnote in history before Bush spares Libby from jail term his wife was revealed as a Europe Bush decision angers Democrats CIA agent, prompting a Papers react to Libby clemency Middle East furious political storm in Jail sentence for ex-Cheney aide South Asia Washington. White House official Libby guilty UK Armitage admits to CIA Business As acting ambassador to Iraq disclosure Health in the run-up to the first Gulf Wilson first defied Saddam Hussein, then ANALYSIS & BACKGROUND Science/Nature War, he was the last US George W Bush Secrets revealed Technology diplomat to meet with Saddam Hussein, in 1991. Trial shows how White Entertainment House acted as its Also in the news He very publicly defied the Iraqi strongman by giving refuge case for the Iraq war ------to more than 100 US citizens at the embassy and in the came under attack Video and Audio homes of US diplomats - at a time when Saddam Hussein CIA leak trial: At-a-glance ------was threatening to execute anyone who harboured Q&A: The CIA leak case Have Your Say foreigners. Key players at-a-glance In Pictures Profile: Lewis 'Scooter' Libby He then addressed journalists wearing a hangman's noose Country Profiles Profile: Joseph Wilson instead of a necktie. Special Reports Q&A: The Niger link

RELATED BBC SITES He later told the Washington Post newspaper that the HAVE YOUR SAY SPORT message to Saddam Hussein was: "If you want to execute Libby spared jail: Your reaction WEATHER me, I'll bring my own [expletive] rope." ON THIS DAY TOP AMERICAS STORIES Africa mission EDITORS' BLOG End Farc 'hate', Betancourt urges Microsoft still keen on Yahoo bid He returned to the headlines 12 years later, when he Languages Nicole Kidman gives birth to girl revealed in 2003 that he was the envoy sent to Africa to investigate reports that the Iraqi president had tried to buy | News feeds nuclear material there. MOST POPULAR STORIES NOW

MOST E-MAILED MOST READ He reported privately after his I have little choice but to February 2002 trip to the conclude that some of the Porn appears on rugby African state of Niger that the intelligence related to Iraq's programme allegation was not true - but it nuclear weapons programme was twisted Mann sentenced for E Guinea appeared in President George plot W Bush's State of the Union Joseph Wilson Iraqi police discover Uday's cars address 11 months later Nicole Kidman gives birth to girl anyway. Day in pictures

In July 2003, Mr Wilson announced that his trip had Most popular now, in detail disproved the allegations Mr Bush later repeated.

"I have little choice but to conclude that some of the intelligence related to Iraq's nuclear weapons programme was twisted to exaggerate the Iraqi threat," he wrote in the New York Times.

A week later, syndicated columnist Robert Novak reported that part of the reason Mr Wilson - a known critic of the Bush

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administration who is close to the Democrats - had been given the Niger mission was that his wife - a CIA agent - recommended him.

Little notice was taken of the revelation that Valerie Plame Wilson was a CIA agent until September 2003, when it emerged that the CIA had asked for an investigation into who leaked the information.

It is a crime to reveal the name of an active CIA operative.

Critics of the Bush administration say that the White House leaked Mrs Wilson's name in revenge for her husband's behaviour.

Mr Wilson, who turns 56 on 6 November, was a career diplomat from 1976 until 1998, specialising in Africa.

He is now a business consultant. He and Mrs Wilson, his third wife, have three-year-old twins.

He is said to have backed Al Gore in 2000 and was an unabashed supporter and donor to the Kerry/Edwards campaign for the presidency in 2004.

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2 of 2 7/7/2008 2:29 PM EXHIBIT 3 CNN.com - Bush's State of the Union speech - Jan. 29, 2003 http://cnn.allpolitics.printthis.clickability.com/pt/cpt?action=cpt&title=C...

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Bush's State of the Union speech

WASHINGTON (CNN) --Transcript of President Bush's second State of the Union address, delivered to Congress Tuesday night.

Mr. Speaker, Vice President Cheney, members of Congress, distinguished citizens and fellow citizens, every year, by law and by custom, we meet here to consider the state of the union. This year, we gather in this chamber deeply aware of decisive days that lie ahead.

You and I serve our country in a time of great consequence. During this session of Congress, we have the duty to reform domestic programs vital to our country, we have the opportunity to save millions of lives abroad from a terrible disease. We will work for a prosperity that is broadly shared, and we will answer every danger and every enemy that threatens the American people.

In all these days of promise and days of reckoning, we can be confident.

During the last two years we have seen what can be accomplished when we work together.

To lift the standards of our public schools, we achieved historic education reform which must now be carried out in every school and in every classroom so that every child in American can read and learn and succeed in life.

To protect our country, we reorganized our government and created the Department of Homeland Security, which is mobilizing against the threats of a new era.

To bring our economy out of recession, we delivered the largest tax relief in a generation.

To insist on integrity in American business, we passed tough reforms, and we are holding corporate criminals to account.

Some might call this a good record. I call it a good start. Tonight I ask the House and the Senate to join me in the next bold steps to serve our fellow citizens.

Our first goal is clear: We must have an economy that grows fast enough to employ every man and woman who seeks a job.

After recession, terrorist attacks, corporate scandals and stock market declines, our economy is recovering. Yet it is not growing fast enough, or strongly enough.

With unemployment rising, our nation needs more small businesses to open, more companies to invest and expand, more employers to put up the sign that says, "Help Wanted."

Jobs are created when the economy grows; the economy grows when Americans have more money to spend and invest; and the best and fairest way to make sure Americans have that money is not to tax it away in the first place.

I am proposing that all the income tax reductions set for 2004 and 2006 be made permanent and effective this year.

And under my plan, as soon as I've signed the bill, this extra money will start showing up in workers' paychecks.

Instead of gradually reducing the marriage penalty, we should do it now.

Instead of slowly raising the child credit to $1,000, we should send the checks to American families now.

This tax relief is for everyone who pays income taxes, and it will help our economy immediately. Ninety-two million Americans will keep this year an average of almost $1,100 more of their own money. A family of four with an income of $40,000 would see their federal income taxes fall from $1,178 to $45 per year.

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And our plan will improve the bottom line for more than 23 million small businesses.

You, the Congress, have already passed all these reductions, and promised them for future years.

If this tax relief is good for Americans three or five or seven years from now, it is even better for Americans today.

We should also strengthen the economy by treating investors equally in our tax laws. It's fair to tax a company's profits. It is not fair to again tax the shareholder on the same profits.

To boost investor confidence, and to help the nearly 10 million seniors who receive dividend income, I ask you to end the unfair double taxation of dividends.

Lower taxes and greater investment will help this economy expand. More jobs mean more taxpayers and higher revenues to our government.

The best way to address the deficit and move toward a balanced budget is to encourage economic growth and to show some spending discipline in Washington, D.C.

We must work together to fund only our most important priorities. I will send you a budget that increases discretionary spending by 4 percent next year, about as much as the average family's income is expected to grow. And that is a good benchmark for us: Federal spending should not rise any faster than the paychecks of American families.

A growing economy and a focus on essential priorities will be crucial to the future of Social Security. As we continue to work together to keep Social Security sound and reliable, we must offer younger workers a chance to invest in retirement accounts that they will control and they will own.

Our second goal is high quality, affordable health for all Americans.

The American system of medicine is a model of skill and innovation, with a pace of discovery that is adding good years to our lives. Yet for many people, medical care costs too much, and many have no coverage at all.

These problems will not be solved with a nationalized health care system that dictates coverage and rations care.

Instead, we must work toward a system in which all Americans have a good insurance policy, choose their own doctors, and seniors and low-income Americans receive the help they need.

Instead of bureaucrats and trial lawyers and HMOs, we must put doctors and nurses and patients back in charge of American medicine.

Health care reform must begin with Medicare; Medicare is the binding commitment of a caring society.

We must renew that commitment by giving seniors access to the preventive medicine and new drugs that are transforming health care in America.

Seniors happy with the current Medicare system should be able to keep their coverage just the way it is.

And just like you, the members of Congress, and your staffs and other federal employees, all seniors should have the choice of a health care plan that provides prescription drugs.

My budget will commit an additional $400 billion over the next decade to reform and strengthen Medicare. Leaders of both political parties have talked for years about strengthening Medicare. I urge the members of this new Congress to act this year.

To improve our health care system, we must address one of the prime causes of higher cost: the constant threat that physicians and hospitals will be unfairly sued.

Because of excessive litigation, everybody pays more for health care, and many parts of America are losing fine doctors. No one has ever been healed by a frivolous lawsuit; I urge the Congress to pass medical liability reform.

Our third goal is to promote energy independence for our country, while dramatically improving the environment.

I have sent you a comprehensive energy plan to promote energy efficiency and conservation, to develop cleaner technology, and to produce more energy at home.

I have sent you clear skies legislation that mandates a 70 percent cut in air pollution from power plants over the next 15 years.

I have sent you a healthy forest initiative to help prevent the catastrophic fires that devastate communities, kill wildlife and burn away millions of acres of treasured forests.

I urge you to pass these measures for the good of both our environment and our economy.

Even more, I ask you to take a crucial step and protect our environment in ways that generations before us could not have imagined.

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In this century, the greatest environmental progress will come about not through endless lawsuits or command-and-control regulations, but through technology and innovation.

Tonight I'm proposing $1.2 billion in research funding so that America can lead the world in developing clean, hydrogen-powered automobiles.

A simple chemical reaction between hydrogen and oxygen generates energy, which can be used to power a car, producing only water, not exhaust fumes.

With a new national commitment, our scientists and engineers will overcome obstacles to taking these cars from laboratory to showroom, so that the first car driven by a child born today could be powered by hydrogen, and pollution-free.

Join me in this important innovation to make our air significantly cleaner, and our country much less dependent on foreign sources of energy.

Our fourth goal is to apply the compassion of America to the deepest problems of America. For so many in our country -- the homeless, and the fatherless, the addicted -- the need is great. Yet there is power -- wonder-working power -- in the goodness and idealism and faith of the American people.

Americans are doing the work of compassion every day: visiting prisoners, providing shelter for battered women, bringing companionship to lonely seniors. These good works deserve our praise, they deserve our personal support and, when appropriate, they deserve the assistance of the federal government.

I urge you to pass both my faith-based initiative and the Citizen Service Act to encourage acts of compassion that can transform America one heart and one soul at a time.

Last year, I called on my fellow citizens to participate in the USA Freedom Corps, which is enlisting tens of thousands of new volunteers across America.

Tonight I ask Congress and the American people to focus the spirit of service and the resources of government on the needs of some of our most vulnerable citizens: boys and girls trying to grow up without guidance and attention, and children who have to go through a prison gate to be hugged by their mom or dad.

I propose a $450 million initiative to bring mentors to more than a million disadvantaged junior high students and children of prisoners.

Government will support the training and recruiting of mentors, yet it is the men and women of America who will fill the need. One mentor, one person, can change a life forever, and I urge you to be that one person.

Another cause of hopelessness is addiction to drugs. Addiction crowds out friendship, ambition, moral conviction, and reduces all the richness of life to a single destructive desire.

As a government, we are fighting illegal drugs by cutting off supplies and reducing demand through anti-drug education programs. Yet for those already addicted, the fight against drugs is a fight for their own lives.

Too many Americans in search of treatment cannot get it. So tonight I propose a new $600 million program to help an additional 300,000 Americans receive treatment over the next three years.

Our nation is blessed with recovery programs that do amazing work. One of them is found at the Healing Place Church in Baton Rouge, Louisiana. A man in the program said, "God does miracles in people's lives, and you never think it could be you."

Tonight, let us bring to all Americans who struggle with drug addiction this message of hope: The miracle of recovery is possible, and it could be you.

By caring for children who need mentors, and for addicted men and women who need treatment, we are building a more welcoming society, a culture that values every life.

And in this work we must not overlook the weakest among us. I ask you to protect infants at the very hour of their birth and end the practice of partial-birth abortion.

And because no human life should be started or ended as the object of an experiment, I ask you to set a high standard for humanity and pass a law against all human cloning.

The qualities of courage and compassion that we strive for in America also determine our conduct abroad. The American flag stands for more than our power and our interests. Our founders dedicated this country to the cause of human dignity, the rights of every person and the possibilities of every life.

This conviction leads us into the world to help the afflicted, and defend the peace, and confound the designs of evil men.

In Afghanistan, we helped to liberate an oppressed people, and we will continue helping them secure their country, rebuild their society and

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educate all their children, boys and girls.

In the Middle East, we will continue to seek peace between a secure Israel and a democratic Palestine.

Across the Earth, America is feeding the hungry. More than 60 percent of international food aid comes as a gift from the people of the United States.

As our nation moves troops and builds alliances to make our world safer, we must also remember our calling, as a blessed country, is to make the world better.

Today, on the continent of Africa, nearly 30 million people have the AIDS virus, including 3 million children under the age of 15. There are whole countries in Africa where more than one-third of the adult population carries the infection. More than 4 million require immediate drug treatment. Yet across that continent, only 50,000 AIDS victims -- only 50,000 -- are receiving the medicine they need.

Because the AIDS diagnosis is considered a death sentence, many do not seek treatment. Almost all who do are turned away.

A doctor in rural South Africa describes his frustration. He says, "We have no medicines, many hospitals tell people, 'You've got AIDS. We can't help you. Go home and die'."

In an age of miraculous medicines, no person should have to hear those words.

AIDS can be prevented. Anti-retroviral drugs can extend life for many years. And the cost of those drugs has dropped from $12,000 a year to under $300 a year, which places a tremendous possibility within our grasp.

Ladies and gentlemen, seldom has history offered a greater opportunity to do so much for so many.

We have confronted, and will continue to confront, HIV/AIDS in our own country. And to meet a severe and urgent crisis abroad, tonight I propose the Emergency Plan for AIDS Relief, a work of mercy beyond all current international efforts to help the people of Africa.

This comprehensive plan will prevent 7 million new AIDS infections, treat at least 2 million people with life-extending drugs and provide humane care for millions of people suffering from AIDS and for children orphaned by AIDS.

I ask the Congress to commit $15 billion over the next five years, including nearly $10 billion in new money, to turn the tide against AIDS in the most afflicted nations of Africa and the Caribbean.

This nation can lead the world in sparing innocent people from a plague of nature.

And this nation is leading the world in confronting and defeating the man-made evil of international terrorism.

There are days when our fellow citizens do not hear news about the war on terror. There's never a day when I do not learn of another threat, or receive reports of operations in progress or give an order in this global war against a scattered network of killers.

The war goes on, and we are winning.

To date we have arrested or otherwise dealt with many key commanders of Al Qaida. They include a man who directed logistics and funding for the September the 11th attacks, the chief of Al Qaida operations in the Persian Gulf who planned the bombings of our embassies in East Africa and the USS Cole, an Al Qaida operations chief from Southeast Asia, a former director of Al Qaida's training camps in Afghanistan, a key Al Qaida operative in Europe, a major Al Qaida leader in Yemen.

All told, more than 3,000 suspected terrorists have been arrested in many countries.

And many others have met a different fate. Let's put it this way: They are no longer a problem to the United States and our friends and allies.

We are working closely with other nations to prevent further attacks. America and coalition countries have uncovered and stopped terrorist conspiracies targeting the embassy in Yemen, the American embassy in Singapore, a Saudi military base, ships in the Straits of Hormuz and the Straits of Gibraltar. We've broken Al Qaida cells in Hamburg and Milan and Madrid and London and Paris -- as well as Buffalo, New York.

We've got the terrorists on the run. We're keeping them on the run. One by one the terrorists are learning the meaning of American justice.

As we fight this war, we will remember where it began: here, in our own country. This government is taking unprecedented measures to protect our people and defend our homeland.

We've intensified security at the borders and ports of entry, posted more than 50,000 newly trained federal screeners in airports, begun inoculating troops and first responders against smallpox, and are deploying the nation's first early warning network of sensors to detect biological attack.

And this year, for the first time, we are beginning to field a defense to protect this nation against ballistic missiles.

I thank the Congress for supporting these measures. I ask you tonight to add to our future security with a major research and production

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effort to guard our people against bio-terrorism, called Project Bioshield.

The budget I send you will propose almost $6 billion to quickly make available effective vaccines and treatments against agents like anthrax, botulinum toxin, ebola and plague. We must assume that our enemies would use these diseases as weapons, and we must act before the dangers are upon us.

Since September the 11th, our intelligence and law enforcement agencies have worked more closely than ever to track and disrupt the terrorists. The FBI is improving its ability to analyze intelligence, and is transforming itself to meet new threats.

Tonight, I am instructing the leaders of the FBI, the CIA, the Homeland Security and the Department of Defense to develop a Terrorist Threat Integration Center, to merge and analyze all threat information in a single location.

Our government must have the very best information possible, and we will use it to make sure the right people are in the right places to protect our citizens.

Our war against terror is a contest of will in which perseverance is power. In the ruins of two towers, at the western wall of the Pentagon, on a field in Pennsylvania, this nation made a pledge, and we renew that pledge tonight: Whatever the duration of this struggle and whatever the difficulties, we will not permit the triumph of violence in the affairs of men; free people will set the course of history.

Today, the gravest danger in the war on terror, the gravest danger facing America and the world, is outlaw regimes that seek and possess nuclear, chemical and biological weapons.

These regimes could use such weapons for blackmail, terror and mass murder. They could also give or sell those weapons to terrorist allies, who would use them without the least hesitation.

This threat is new; America's duty is familiar.

Throughout the 20th century, small groups of men seized control of great nations, built armies and arsenals, and set out to dominate the weak and intimidate the world.

In each case, their ambitions of cruelty and murder had no limit. In each case, the ambitions of Hitlerism, militarism and communism were defeated by the will of free peoples, by the strength of great alliances and by the might of the United States of America.

Now, in this century, the ideology of power and domination has appeared again and seeks to gain the ultimate weapons of terror.

Once again, this nation and our friends are all that stand between a world at peace, and a world of chaos and constant alarm. Once again, we are called to defend the safety of our people and the hopes of all mankind. And we accept this responsibility.

America is making a broad and determined effort to confront these dangers.

We have called on the United Nations to fulfill its charter and stand by its demand that Iraq disarm. We are strongly supporting the International Atomic Energy Agency in its mission to track and control nuclear materials around the world. We are working with other governments to secure nuclear materials in the former Soviet Union and to strengthen global treaties banning the production and shipment of missile technologies and weapons of mass destruction.

In all of these efforts, however, America's purpose is more than to follow a process. It is to achieve a result: the end of terrible threats to the civilized world.

All free nations have a stake in preventing sudden and catastrophic attacks, and we're asking them to join us, and many are doing so.

Yet the course of this nation does not depend on the decisions of others.

Whatever action is required, whenever action is necessary, I will defend the freedom and security of the American people.

Different threats require different strategies. In Iran we continue to see a government that represses its people, pursues weapons of mass destruction and supports terror.

We also see Iranian citizens risking intimidation and death as they speak out for liberty and human rights and democracy. Iranians, like all people, have a right to choose their own government, and determine their own destiny, and the United States supports their aspirations to live in freedom.

On the Korean Peninsula, an oppressive regime rules a people living in fear and starvation. Throughout the 1990s, the United States relied on a negotiated framework to keep North Korea from gaining nuclear weapons. We now know that that regime was deceiving the world and developing those weapons all along.

And today the North Korean regime is using its nuclear program to incite fear and seek concessions.

America and the world will not be blackmailed.

America is working with the countries of the region -- South Korea, Japan, China and Russia -- to find a peaceful solution and to show the North Korean government that nuclear weapons will bring only isolation, economic stagnation and continued hardship.

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The North Korean regime will find respect in the world and revival for its people only when it turns away from its nuclear ambitions.

Our nation and the world must learn the lessons of the Korean Peninsula and not allow an even greater threat to rise up in Iraq. A brutal dictator, with a history of reckless aggression, with ties to terrorism, with great potential wealth will not be permitted to dominate a vital region and threaten the United States.

Twelve years ago, Saddam Hussein faced the prospect of being the last casualty in a war he had started and lost. To spare himself, he agreed to disarm of all weapons of mass destruction.

For the next 12 years, he systematically violated that agreement. He pursued chemical, biological and nuclear weapons even while inspectors were in his country.

Nothing to date has restrained him from his pursuit of these weapons: not economic sanctions, not isolation from the civilized world, not even cruise missile strikes on his military facilities.

Almost three months ago, the United Nations Security Council gave Saddam Hussein his final chance to disarm. He has shown instead utter contempt for the United Nations and for the opinion of the world.

The 108 U.N. inspectors were sent to conduct -- were not sent to conduct a scavenger hunt for hidden materials across a country the size of California. The job of the inspectors is to verify that Iraq's regime is disarming.

It is up to Iraq to show exactly where it is hiding its banned weapons, lay those weapons out for the world to see and destroy them as directed. Nothing like this has happened.

The United Nations concluded in 1999 that Saddam Hussein had biological weapons materials sufficient to produce over 25,000 liters of anthrax; enough doses to kill several million people. He hasn't accounted for that material. He has given no evidence that he has destroyed it.

The United Nations concluded that Saddam Hussein had materials sufficient to produce more than 38,000 liters of botulinum toxin; enough to subject millions of people to death by respiratory failure. He hasn't accounted for that material. He's given no evidence that he has destroyed it.

Our intelligence officials estimate that Saddam Hussein had the materials to produce as much as 500 tons of sarin, mustard and VX nerve agent. In such quantities, these chemical agents could also kill untold thousands. He's not accounted for these materials. He has given no evidence that he has destroyed them.

U.S. intelligence indicates that Saddam Hussein had upwards of 30,000 munitions capable of delivering chemical agents. Inspectors recently turned up 16 of them, despite Iraq's recent declaration denying their existence. Saddam Hussein has not accounted for the remaining 29,984 of these prohibited munitions. He has given no evidence that he has destroyed them.

From three Iraqi defectors we know that Iraq, in the late 1990s, had several mobile biological weapons labs. These are designed to produce germ warfare agents and can be moved from place to a place to evade inspectors. Saddam Hussein has not disclosed these facilities. He has given no evidence that he has destroyed them.

The International Atomic Energy Agency confirmed in the 1990s that Saddam Hussein had an advanced nuclear weapons development program, had a design for a nuclear weapon and was working on five different methods of enriching uranium for a bomb.

The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.

Our intelligence sources tell us that he has attempted to purchase high-strength aluminum tubes suitable for nuclear weapons production.

Saddam Hussein has not credibly explained these activities. He clearly has much to hide.

The dictator of Iraq is not disarming. To the contrary, he is deceiving.

From intelligence sources, we know, for instance, that thousands of Iraqi security personnel are at work hiding documents and materials from the U.N. inspectors, sanitizing inspection sites and monitoring the inspectors themselves.

Iraqi officials accompany the inspectors in order to intimidate witnesses. Iraq is blocking U-2 surveillance flights requested by the United Nations.

Iraqi intelligence officers are posing as the scientists inspectors are supposed to interview. Real scientists have been coached by Iraqi officials on what to say.

Intelligence sources indicate that Saddam Hussein has ordered that scientists who cooperate with U.N. inspectors in disarming Iraq will be killed, along with their families.

Year after year, Saddam Hussein has gone to elaborate lengths, spent enormous sums, taken great risks to build and keep weapons of mass destruction. But why?

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The only possible explanation, the only possible use he could have for those weapons, is to dominate, intimidate or attack.

With nuclear arms or a full arsenal of chemical and biological weapons, Saddam Hussein could resume his ambitions of conquest in the Middle East and create deadly havoc in that region.

And this Congress and the American people must recognize another threat. Evidence from intelligence sources, secret communications and statements by people now in custody reveal that Saddam Hussein aids and protects terrorists, including members of Al Qaida. Secretly, and without fingerprints, he could provide one of his hidden weapons to terrorists, or help them develop their own.

Before September the 11th, many in the world believed that Saddam Hussein could be contained. But chemical agents, lethal viruses and shadowy terrorist networks are not easily contained.

Imagine those 19 hijackers with other weapons and other plans, this time armed by Saddam Hussein. It would take one vial, one canister, one crate slipped into this country to bring a day of horror like none we have ever known.

We will do everything in our power to make sure that that day never comes.

Some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike?

If this threat is permitted to fully and suddenly emerge, all actions, all words and all recriminations would come too late. Trusting in the sanity and restraint of Saddam Hussein is not a strategy, and it is not an option.

The dictator who is assembling the world's most dangerous weapons has already used them on whole villages, leaving thousands of his own citizens dead, blind or disfigured.

Iraqi refugees tell us how forced confessions are obtained: by torturing children while their parents are made to watch. International human rights groups have catalogued other methods used in the torture chambers of Iraq: electric shock, burning with hot irons, dripping acid on the skin, mutilation with electric drills, cutting out tongues, and rape.

If this is not evil, then evil has no meaning.

And tonight I have a message for the brave and oppressed people of Iraq: Your enemy is not surrounding your country, your enemy is ruling your country.

And the day he and his regime are removed from power will be the day of your liberation.

The world has waited 12 years for Iraq to disarm. America will not accept a serious and mounting threat to our country and our friends and our allies.

The United States will ask the U.N. Security Council to convene on February the 5th to consider the facts of Iraq's ongoing defiance of the world. Secretary of State Powell will present information and intelligence about Iraqi's -- Iraq's illegal weapons programs, its attempts to hide those weapons from inspectors and its links to terrorist groups.

We will consult, but let there be no misunderstanding: If Saddam Hussein does not fully disarm for the safety of our people, and for the peace of the world, we will lead a coalition to disarm him.

Tonight I have a message for the men and women who will keep the peace, members of the American armed forces. Many of you are assembling in or near the Middle East, and some crucial hours may lay ahead.

In those hours, the success of our cause will depend on you. Your training has prepared you. Your honor will guide you. You believe in America and America believes in you.

Sending Americans into battle is the most profound decision a president can make. The technologies of war have changed. The risks and suffering of war have not.

For the brave Americans who bear the risk, no victory is free from sorrow.

This nation fights reluctantly, because we know the cost, and we dread the days of mourning that always come.

We seek peace. We strive for peace. And sometimes peace must be defended. A future lived at the mercy of terrible threats is no peace at all.

If war is forced upon us, we will fight in a just cause and by just means, sparing, in every way we can, the innocent.

And if war is forced upon us, we will fight with the full force and might of the United States military, and we will prevail.

And as we and our coalition partners are doing in Afghanistan, we will bring to the Iraqi people food and medicines and supplies and freedom.

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Many challenges, abroad and at home, have arrived in a single season. In two years, America has gone from a sense of invulnerability to an awareness of peril, from bitter division in small matters to calm unity in great causes.

And we go forward with confidence, because this call of history has come to the right country.

Americans are a resolute people, who have risen to every test of our time. Adversity has revealed the character of our country, to the world, and to ourselves.

America is a strong nation and honorable in the use of our strength. We exercise power without conquest, and we sacrifice for the liberty of strangers.

Americans are a free people, who know that freedom is the right of every person and the future of every nation. The liberty we prize is not America's gift to the world; it is God's gift to humanity.

We Americans have faith in ourselves, but not in ourselves alone. We do not claim to know all the ways of Providence, yet we can trust in them, placing our confidence in the loving god behind all of life and all of history.

May he guide us now, and may God continue to bless the United States of America.

Thank you.

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8 of 8 7/7/2008 2:50 PM EXHIBIT 4 A Libby Verdict - New York Times http://www.nytimes.com/2007/03/07/opinion/07weds1.html?pagewanted...

March 7, 2007

EDITORIAL A Libby Verdict

Correction Appended

There will be a great deal written and said in coming days about the frustrations of the Scooter Libby verdict — that it did not tell us whether someone deliberately blew Valerie Plame Wilson’s cover or erase serious concerns about the prosecutor’s abuse of the First Amendment. Let’s focus first on what the verdict does say.

One of the most senior officials in the White House, Lewis Libby, the chief of staff for Vice President Dick Cheney, was caught lying to the F.B.I. He appears to have been trying to cover up a smear campaign that was orchestrated by his boss against the first person to unmask one of the many untruths that President Bush used to justify invading Iraq. He was charged with those crimes, defended by the best lawyers he could get, tried in an open courtroom and convicted of serious felonies. Mr. Libby walked freely out of the court, had his say in public and will be allowed to appeal.

It was another reminder of how precious the American judicial system is, at a time when it is under serious attack from the same administration Mr. Libby served. That administration is systematically denying the right of counsel, the right to evidence and even the right to be tried to scores of prisoners who may have committed no crimes at all.

And although we still do not know the answer to the original mystery, the case provided a look at the methodical way that Mr. Cheney, Mr. Libby, Karl Rove and others in the Bush inner circle set out to discredit Ms. Wilson’s husband, Joseph Wilson IV. Mr. Wilson, a career diplomat, was sent by the State Department in 2002 to check out a British intelligence report that Iraq had tried to buy uranium from the government of Niger for a secret nuclear weapons program. In his 2003 State of the Union address, Mr. Bush said: “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.”

In July 2003, Mr. Wilson wrote in an Op-Ed article in The Times that what he had found did not support that claim. The specter of a nuclear-armed Iraq was central to Mr. Bush’s case for rushing to war. So, the trial testimony showed, Mr. Cheney orchestrated an assault on Mr. Wilson’s credibility with the help of Mr. Libby and others. They whispered to journalists that Mr. Wilson’s wife worked at the C.I.A. and that nepotism was the reason he had been chosen for the trip.

That is what we know from the Libby trial, and it is some of the clearest evidence yet that this administration did not get duped by faulty intelligence; at the very least, it cherry-picked and hyped intelligence to justify the war. What Mr. Wilson found, and subsequent investigations confirmed, was that there was one trip in 1999 — not “recently,” but four years before Mr. Bush’s statement — by an Iraqi

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official to Niger and that during that trip, uranium was never discussed.

What we still do not know is whether a government official used Ms. Wilson’s name despite knowing that she worked undercover. That is a serious offense, which could have put her and all those who had worked with her in danger. We also do not understand why the federal prosecutor, Patrick Fitzgerald, chose to wage war with the news media in assembling his case, going so far as to jail a Times reporter, Judith Miller, for refusing to reveal the name of a confidential source.

The potential damage from that decision remains of real concern. But it was still a breath of fresh air to see someone in this administration, which specializes in secrecy, prevarication and evading blame, finally called to account.

Correction: March 13, 2007

A March 7 editorial on the conviction of Lewis Libby said incorrectly that Joseph Wilson IV was sent by the State Department in 2002 to Niger to check out a report that Iraq had tried to buy uranium there. Mr. Wilson was sent by the C.I.A.

2 of 2 7/7/2008 5:08 PM EXHIBIT 5 108th Congress S. Report SENATE 2d Session I 108-301

REPORT

OF THE SELECT COMMITTEE ON INTELLIGENCE

on the US. INTELLIGENCE COMMUNITY'S PREWAR INTELLIGENCE ASSESSMENTS ON IRAQ

together with

ADDITIONAL VIEWS

July 9, 2004.-Ordered to be printed

VerDate jul 14 2003 22:16 Jul09,2004 Jkt 094712 PO 00000 Frm 00001 Fmt 6015 Sfmt 6015 E:\HR\OC\SR301 .XXX SR301 - 73 - EXHIBIT 6 Debunking Distortions About My Trip to Niger (washingtonpost.com) Page 1 of 3

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E-Mail This Article Debunking Distortions About My Trip to Niger Print This Article

Saturday, July 17, 2004; Page A17 _____Letters to the E • A New Pope Who Defe For the second time in a year, your paper has published an article [news story, Truths (Post, April 24, 20 July 10] falsely suggesting that my wife, Valerie Plame, was responsible for the • Pedestrians, Beware trip I took to Niger on behalf of the U.S. government to look into allegations 2005) that Iraq had sought to purchase several hundred tons of yellowcake uranium • Whose Space Center? April 24, 2005) from that West African country. Last July 14, Robert Novak, claiming two • More Letters senior sources, exposed Valerie as an "agency operative [who] suggested sending him to Niger." Novak went ahead with his column despite the fact that the CIA had urged him not to disclose her identity. That leak to Novak may _____What's Your Op well have been a federal crime and is under investigation. • Share Your Views About Editorials and In the year since the betrayal of Opinion Pieces on Our Message Boards Valerie's covert status, it has • About Message been widely understood that Boards she is irrelevant to the unpaid mission I undertook or the conclusions I reached. But your _____Free E-mail News paper's recent article acted as a • News Headlines • News Alert funnel for this scurrilous and extraneous charge, uncritically citing the Republican-written Subscribe to Senate Select Committee on Intelligence report. FEATURED ADVERTISER Mesothelioma Attorney, As The decision to send me to Cochlear Implants Niger was not made, and could Cool gadgets, hot deals. V not be made, by Valerie. At the conclusion of a meeting that she did not attend, CircuitCity.com today I was asked by CIA officials whether I would be willing to travel to Niger. 8 Secrets Your Credit Card While a CIA reports officer and a State Department analyst, both cited in the Tell You report, speculate about what happened, neither of them was in the chain of ID theft is happening every

http://www.washingtonpost.com/wp-dyn/articles/A56501-2004Jul16.html 5/28/2008 Debunking Distortions About My Trip to Niger (washingtonpost.com) Page 2 of 3

command that made the decision to send me. Reams of documents were given Protected over to the Senate committee, but the only quotation attributed to my wife on HSBC Direct: Earn 3.05%A this subject was the anodyne "my husband has good relations with both the PM savings. (Prime Minister) and the former Minister of Mines (not to mention lots of Escape from everyday life French contacts), both of whom could possibly shed light on this sort of Of The Bahamas. activity." In fact, with 2-year-old twins at home, Valerie did not relish my HP has unique products to absence for a two-week period. But she acquiesced because, in the zeal to be critical data responsive to the legitimate concerns raised by the vice president, officials of Earn 3.00% APY at ING DIR her agency turned to a known functionary who had previously checked out and No Minimums. uranium-related questions for them. We can stop global warmin

But that is not the only inaccurate assertion or conclusion in the Senate report uncritically parroted in the article. Other inaccuracies and distortions include the suggestion that my findings "bolstered" the case that Niger was engaged in illegal sales of uranium to Iraq. In fact, the Senate report is clear that the intelligence community attempted to keep the claim out of presidential documents because of the weakness of the evidence.

The facts surrounding my trip remain the same. I traveled to Niger and found it unlikely that Iraq had attempted to purchase several hundred tons of yellowcake uranium. In his 2003 State of the Union address, President Bush referred to Iraqi attempts to purchase uranium "from Africa." Between March 2003 and July 2003, the administration refused to acknowledge that it had known for more than a year that the claim on uranium sales from Niger had been discredited, until the day after my article in the New York Times. The next day the White House issued a statement that "the sixteen words did not rise to the level of inclusion in the State of the Union address." Those facts are amply supported in the Senate report.

-- Joseph C. Wilson IV

Washington

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http://www.washingtonpost.com/wp-dyn/articles/A56501-2004Jul16.html 5/28/2008 EXHIBIT 7 Jury convicts Libby on four charges - Politics - MSNBC.com http://www.msnbc.msn.com/id/17479718/print/1/displaymode/1098/

MSNBC.com

Jury convicts Libby on four charges Cheney’s ex-aide faces jail time in CIA leak case; sentencing set for June NBC News and news services updated 9:18 p.m. ET, Tues., March. 6, 2007

WASHINGTON - Vice President Dick Cheney's former chief of staff, I. Lewis "Scooter" Libby, was convicted Tuesday of lying and obstructing a leak investigation that reached into the highest levels of the Bush administration.

Libby is the highest-ranking White House official to be convicted of a felony since the Iran-Contra scandal of the mid-1980s. The case brought new attention to the Bush administration's much-criticized handling of weapons of mass destruction intelligence in the run-up to the Iraq war.

The verdict culminated a nearly four-year investigation into how CIA official Valerie Plame's name was leaked to reporters in 2003. The trial revealed that top members of the administration were eager to discredit Plame's husband, former Ambassador Joseph Wilson, who accused the administration of doctoring prewar intelligence on Iraq.

Libby, who was once Cheney's most trusted adviser and an assistant to President Bush, was expressionless as the jury verdict was announced on the 10th day of deliberations. His wife, Harriet Grant, choked out a sob and lowered her head.

Libby could face up to 25 years in prison when he is sentenced June 5 but under federal sentencing guidelines is likely to face far less. Defense attorneys immediately promised to ask for a new trial or appeal the conviction.

Cheney said late Tuesday he was disappointed with the verdict.

"I am saddened for Scooter and his family," Cheney said. "Scooter has served our nation tirelessly and with great distinction through many years of public service."

“We have every confidence Mr. Libby ultimately will be vindicated,” defense attorney Theodore Wells told a throng of reporters. “We believe Mr. Libby is totally innocent and that he didn’t do anything wrong.”

Libby did not speak to reporters.

No more charges “The results are actually sad,” Special Prosecutor Patrick Fitzgerald said. “It’s sad that we had a situation where a high-level official person who worked in the office of the vice president obstructed justice and lied under oath. We wish that it had not happened, but it did.”

Fitzgerald said the CIA leak investigation was now inactive. “I do not expect to file any additional charges,” he said. “We’re all going back to our day jobs.”

White House deputy press secretary Dana Perino said Bush watched news of the verdict on TV in the Oval Office. Perino said the president respected the jury’s verdict but “was saddened for Scooter Libby and his family.”

Perino said “I would not agree” with any characterization of the verdict as embarrassing for the White House.

“I think that any administration that has to go through a prolonged news story that is unpleasant and one that is difficult — when you’re under the constraints and the policy of not commenting on an ongoing criminal matter — that can be very frustrating,” she said.

Libby was convicted of one count of obstruction, two counts of perjury and one count of lying to the FBI about how he learned Plame’s identity and whom he told. Prosecutors said he learned about Plame from Cheney and others, discussed her name with reporters and, fearing prosecution, made up a story to make those discussions seem innocuous.

Democratic presidential candidate John Edwards told Chris Matthews on MSNBC's "Hardball" that Libby "absolutely should not be pardoned."

"This is a situation where he has been convicted of a crime committed as part of his official responsibilities and working for the vice president," he said Tuesday. "He absolutely should not be pardoned. There should be accountability."

‘It seemed very unlikely’

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Libby said he told investigators his honest recollections and blamed any misstatements on a faulty memory. He was acquitted of one count of lying to the FBI about his conversation with Time magazine reporter Matthew Cooper.

One juror who spoke to reporters outside court said the jury had 34 poster-size pages filled with information they distilled from the trial testimony. They discerned that Libby was told about Plame at least nine times, and they did not buy the argument that he had forgotten all about it.

“Even if he forgot that someone told him about Mrs. Wilson, who had told him, it seemed very unlikely he would not have remembered about Mrs. Wilson,” the juror, Denis Collins, said.

Collins, a former Washington Post reporter, said jurors wanted to hear from others involved in the case, including Bush political adviser Karl Rove, who was one of two sources for the original leak. Defense attorneys originally said both Libby and Cheney would be witnesses, and Rove was on the potential witness list.

“I will say there was a tremendous amount of sympathy for Mr. Libby on the jury. It was said a number of times, ‘What are we doing with this guy here? Where’s Rove? Where are these other guys?”’ Collins said. “I’m not saying we didn’t think Mr. Libby was guilty of the things we found him guilty of. It seemed like he was, as Mr. Wells put it, he was the fall guy.”

‘A callous disregard’ Reaction to the conviction was swift in Congress.

“The testimony unmistakably revealed — at the highest levels of the Bush administration — a callous disregard in handling sensitive national security information and a disposition to smear critics of the war in Iraq,” said House Speaker Nancy Pelosi.

Senate Majority Leader Harry Reid welcomed the jury’s verdict and urged a pledge from Bush that he would not pardon Libby. Before the trial began, the Justice Department said it had no pardon file active for Libby.

“It’s about time someone in the Bush administration has been held accountable for the campaign to manipulate intelligence and discredit war critics,” Reid said.

Although Libby was the one convicted, Reid said, “his trial revealed deeper truths about Vice President Cheney’s role in this sordid affair. Now President Bush must pledge not to pardon Libby for his criminal conduct.”

White House sidesteps pardon issue Asked about that, Perino said, “I’m not commenting on a hypothetical situation” and added that “I’m aware of no such request.”

U.S. District Judge Reggie B. Walton ordered a pre-sentencing report be completed by May 15. Judges use such reports to help determine sentences.

Libby faced two counts of perjury, two counts of lying to the FBI and one count of obstruction of justice. Prosecutors said he discussed Plame’s name with reporters and, fearing prosecution, made up a story to make those discussions seem innocuous.

Libby’s defense team said he learned about Plame from Cheney, forgot about it, then learned it again a month later from NBC newsman Tim Russert of NBC’s “Meet the Press.” Anything he told reporters about Plame, Libby said, was just chatter and rumors, not official government information.

Fitzgerald said that was a lie. But Libby’s defense team had argued that it would be unfair to convict Libby in a case where so many witnesses changed their stories or had memory problems.

Wells said he would ask the court for a new trial by April 13. Such requests are common following criminal convictions.

“Despite our disappointment in the jurors’ verdict, we believe in the American justice system and we believe in the jury system,” Wells told reporters outside the federal courthouse. “We intend to file a motion for a new trial, and if that is denied, we will appeal the conviction. We have every confidence that ultimately Mr. Libby will be exonerated. ... We intend to keep fighting to establish his innocence.”

‘No citizen is above the law’ “We take great comfort that no citizen is above the law,” Wilson said in a conference call with reporters.

Wilson and Plame have sued Libby and Cheney, as well as White House advisor Rove and former State Department official Richard Armitage, in federal court.

Attorneys at the liberal watchdog group Citizens for Responsibility and Ethics, which brought the lawsuit, also

2 of 3 7/7/2008 2:54 PM Jury convicts Libby on four charges - Politics - MSNBC.com http://www.msnbc.msn.com/id/17479718/print/1/displaymode/1098/

praised the conviction and Fitzgerald’s team.

Acquittal on one count The jury acquitted Libby of one count of lying to the FBI about his conversation with former Time magazine reporter Matthew Cooper.

Said Fitzgerald: “Any lie under oath is serious. We cannot tolerate perjury. The truth is what drives our judicial system. If people don’t come forward and tell truth, we have no hope of making judicial system work.”

During the trial, prosecutors said Libby made up a ludicrous lie to save his job during the CIA leak investigation by telling investigators he’d forgotten Cheney told him about the CIA status of Wilson’s wife. Cheney had passed the information to Libby more than a month before Plame’s identity was outed by conservative columnist Robert Novak.

Libby told investigators he learned of Plame’s identity from NBC’s Tim Russert, saying that he’d forgotten at the time he talked to the reporter that he’d been told of it earlier by Cheney.

Russert testified he never told Libby about Wilson’s wife, and he underwent a grueling cross-examination as Libby’s legal team tried to discredit Russert’s testimony.

The Associated Press, Reuters and NBC News contributed to this report.

URL: http://www.msnbc.msn.com/id/17479718/

3 of 3 7/7/2008 2:54 PM EXHIBIT 8 Bush Commutes Libby's Prison Sentence - washingtonpost.com http://www.washingtonpost.com/wp-dyn/content/article/2007/07/02/AR...

Bush Commutes Libby's Prison Sentence

By Amy Goldstein Washington Post Staff Writer Tuesday, July 3, 2007; A01

President Bush commuted the sentence of I. Lewis "Scooter" Libby yesterday, sparing Vice President Cheney's former chief of staff 2 1/2 years in prison after a federal appeals court had refused to let Libby remain free while he appeals his conviction for lying to federal investigators.

Bush, who for months had sidestepped calls from conservatives to come to Libby's aid, broke his silence early yesterday evening, touching off an immediate uproar from Democrats who accused the White House of circumventing the rule of law to protect one of its own.

The president announced his decision in a written statement that laid out the factors he had weighed. Bush said he decided to "respect" the jury's verdict that Libby was guilty of four felonies for lying about his role in the leak of a covert CIA officer's identity. But the president said Libby's "exceptional public service" and prior lack of a criminal record led him to conclude that the 30-month sentence handed down by a judge last month was "excessive."

The president noted that he had promised before not to intervene until Libby had exhausted his appeals. But he stepped in short of that point. "With the denial of bail being upheld and incarceration imminent," Bush said, "I believe it is now important to react to that decision."

Although he eliminated Libby's prison term, Bush did not grant him a full pardon, which was sought by some conservatives and would have erased his conviction. As a consequence, Libby will still have to pay a $250,000 fine and will remain on probation for two years. The president said Libby's punishment remained "harsh," in part because his professional reputation "is forever damaged."

Bush commuted the sentence hours after a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected Libby's request to postpone his prison term while he pursued appeals. The panel concluded that his grounds for appeal were unlikely to be strong enough to prevail in higher courts.

The appellate judges' unanimous opinion upheld an identical ruling slightly more than two weeks ago by U.S. District Judge Reggie B. Walton, the trial judge in Libby's case. After a month-long trial that forced presidential aides and prominent journalists onto the witness stand, Libby was found guilty of two counts of perjury and one count each of lying to FBI agents and obstructing a federal investigation into whether administration officials illegally disclosed the name of CIA officer Valerie Plame.

Bush has granted far fewer pardons and commutations than any of his predecessors, dating to John F. Kennedy. He commuted three previous prison terms during his 6 1/2 years in office.

At a time when his popularity is as low as any president's in modern history, Bush's action also defied public opinion. Shortly after Libby was convicted in March, three national public opinion polls found that seven in 10 Americans said they would oppose a pardon of Libby.

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Still, the president appeared to calculate that he would antagonize his conservative base too severely if he did not provide Libby some form of reprieve, according to people close to the White House.

Lea Anne McBride, a spokeswoman for Cheney, declined to say whether the vice president had a role in the decision, other than to say that Cheney supports it.

Last night, an array of Democrats, including several presidential candidates, reacted to Bush's move with derision. Former senator John Edwards (N.C.), a White House hopeful, said: "Only a president clinically incapable of understanding that mistakes have consequences could take the action he did today."

House Judiciary Committee Chairman John Conyers Jr. (Mich.) said in a statement that "until now, it appeared that the President merely turned a blind eye to a high ranking administration official leaking classified information. The President's action today makes it clear that he condones such activity."

Conyers was expected to move swiftly to conduct hearings on the commutation, congressional sources said.

All but a few Republicans were conspicuously silent. House Minority Whip Roy Blunt (Mo.) said: "President Bush did the right thing today in commuting the prison term for Scooter Libby. The prison sentence was overly harsh, and the punishment did not fit the crime."

Former senator Fred D. Thompson (Tenn.), an unannounced presidential candidate who has helped lead Libby's defense fund and called for Bush to pardon Libby, said: "This will allow a good American who has done a lot for his country to resume his life."

Libby did not comment publicly on his reprieve from the sentence he received from Walton four weeks ago. One of his attorneys, William H. Jeffress Jr., said yesterday that the legal team learned of Bush's decision just 15 minutes before it was announced publicly.

Theodore V. Wells Jr., Libby's lead attorney, said in a statement last night, "Mr. Libby and his family wish to express their gratitude for the President's decision today." Wells signaled an intent to keep pursuing appeals, saying, "We continue to believe in Mr. Libby's innocence."

Special Counsel Patrick J. Fitzgerald, who led the three-year leak investigation and was the chief prosecutor during Libby's trial, said he did not challenge the president's prerogative under the Constitution to commute prison sentences.

But Fitzgerald disputed Bush's characterization of Libby's sentence as excessive, saying: "An experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws. It is fundamental to the rule of law that all citizens stand before the bar of justice as equals."

Fitzgerald said Libby "remains convicted by a jury of serious felonies," and he vowed to continue to fight Libby's efforts to overturn his conviction through appeals.

Libby, a 56-year-old lawyer, was Cheney's right-hand man for nearly five years and helped write the administration's national security policies. He was the only person charged in the leak investigation, which penetrated to the highest echelons of the White House. No one was charged with the leak itself.

Fitzgerald interviewed both Bush and Cheney as part of the probe. The vice president had been expected to be a star witness at the trial, but he ultimately did not testify.

Libby was convicted March 6. Prosecutors convinced the jury that Libby deliberately obscured his role in a White House campaign in 2003, shortly after the Iraq war began, to discredit Plame's husband, former ambassador Joseph C. Wilson IV.

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The CIA had sent Wilson to the African nation of Niger in 2002 to assess reports that Iraq had tried to buy nuclear material there for weapons. He concluded that the reports were groundless. Later, when Bush and his aides repeated them anyway, Wilson accused the president of twisting his findings to justify the war to the public.

Prosecutors maintained that administration officials, including Libby, leaked Plame's identity and CIA position to insinuate that the agency had chosen Wilson for the Niger mission because of nepotism. Defense attorneys said that Libby had not sought to deceive investigators but had innocently misremembered what he knew and said about Plame, because she was insignificant to him.

In a statement yesterday, Wilson said that he and his wife are "deeply disappointed" by Bush's decision. "The president's actions send the message that leaking classified information for political purposes is acceptable," he said. "Mr. Libby not only endangered Valerie and our family, but also our country's national security."

Douglas A. Berman, a law professor at Ohio State University who is an expert on federal criminal sentencing policies, said it is "hypocritical and appalling from a president whose Justice Department is always fighting" attempts by judges and lawmakers to lower the punishment called for under federal sentencing guidelines. Berman said Bush's message amounted to "My friend Scooter shouldn't have to serve 30 months in prison because I don't want him to."

Margaret Colgate Love, the pardon attorney in the Justice Department from 1990 to 1997, primarily in the Clinton administration, called Bush's action "very unusual" and recalled that her office would not consider applications for a commutation "unless the person had already started serving his sentence." But she said that the president, as Bill Clinton showed in the controversial pardons he issued the day he left office, has wide discretion.

Staff writers Robert Barnes and Christopher Lee, political researcher Zachary A. Goldfarb, and washingtonpost.com staff writer Paul Kane contributed to this report.

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