Washington Independent

The Myth of Voter Fraud

Earlier this month, Republicans in Ohio lost their lawsuit challenging a state rule that allows voters to register and vote early on the same day. But the state party had no intention of conceding the point. GOP officials demanded records from all 88 county boards of election identifying every person who took advantage of same-day registration and voting. In one county, the Republican district attorney even opened a grand jury investigation.

"He's investigating people who the law says are allowed to vote," said Ohio ACLU lawyer Carrie Davis. After it was revealed that the district attorney was also the local chairman of the McCain campaign, he was forced to appoint a special prosecutor to handle the case.

There's no indication that any of these voters did anything illegal. But the attempt to investigate voters who took advantage of a state rule designed to encourage voter participation exemplifies the kinds of attacks on new voters that are going on across the country.

Even when the challenges fail, Republican officials persist in their claims of voter fraud in what appears to be an effort to lay the groundwork for challenging the outcome of Election Day. In about a dozen interviews, legal scholars and voting experts say this broad-based attack could lead to serious and continuing challenges to the legitimacy of the next president.

"(Republicans are) trying to do what they can to poison the well on the eve of the election because they're not winning on the issues," contends Charles Lichtman, statewide lead counsel for the Florida Democratic Party. The party, like the Obama campaign, is assembling a team of volunteer lawyers to take on unwarranted challenges and obstruction to voters on Election Day. "They know there are more Democrats registered than Republicans," said Lichtman, "so they're calling out fraud where it didn't occur."

For months now, Republicans have been claiming that voter fraud is rampant and that government officials aren't sufficiently cracking down. Democrats insist that voter fraud is practically nonexistent -- the real problem is intimidation and harassment of voters at the polls, they say.

Voting-rights experts tend to agree with the Democrats. A study by the Brennan Center for Justice, for example, found that, "It's more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls."

Another study, by Barnard College political scientist Lori Minnite, similarly concluded that voter fraud is "extremely rare." The Brennan Center also showed that the sort of strict rules advocated by Republicans in Wisconsin, Ohio and elsewhere would disenfranchise thousands of people -- usually the poor, elderly and minorities.

Even the most rigorous studies, however, haven't made the issue any less of a political football. Republicans like Cleta Mitchell, an election lawyer who chairs the Republican National Lawyers Assn., says such experts are just part of "the professional vote-fraud deniers industry," insisting that voting fraud exists even if it's nearly impossible to prove.

"If you just deny it," Mitchell said, "then that means that anyone who wants to take any steps to protect the integrity of the process can only be doing that because they're a racist."

In fact, even official Justice Dept. policy had acknowledged until recently that individual voter fraud has "only a minimal impact on the integrity of the voting process" and therefore usually wasn't worth trying to prosecute. Then last year, the Bush administration changed that to allow individual prosecutors to pursue such cases at their discretion.

When some U.S. attorneys refused because of a lack of evidence, several were fired, contributing to the scandal that ultimately forced the resignation of Atty. Gen. Alberto Gonzales. Since then, Democrats have become even more vigilant in fighting back against claims of voter fraud.

In many states -- including Florida, Ohio, Wisconsin and Oregon -- Republican officials have insisted that states square new voters' registration information with that in other state databases, such as motor vehicle or Social Security. While such matching is required by the Help America Vote Act of 2002, Republicans in swing states are insisting that the match be exact as a condition to vote.

Some of these "no-match, no-vote" states allow voters whose registration doesn't match to fill out a provisional ballot, but they must provide matching verification information to election officials within 48 hours or their votes won't count. In close swing states, which votes are counted could make all the difference to the outcome.

In Ohio, for example, Republicans sued Secretary of State Jennifer Brunner to make matching a condition of voting. In response, she argued that adopting such a rule could get some 200,000 Ohio voters kicked off the rolls. The problem is not that they're ineligible, for the most part. It's that the information doesn't match because voters have changed their names or because state workers have made clerical errors.

Earlier this month, the U.S. Supreme Court sided with Brunner. Ruling on procedural grounds, it found that the state GOP likely didn't have the right under federal law to challenge the Ohio law's application. So Ohio Republicans are taking their fight elsewhere. Last week, they sent a letter to U.S. Atty. Gen. Michael Mukasey asking him to force Ohio to require matching under federal law.

And on Friday, President George W. Bush himself got involved, asking Mukasey to investigate the status of the 200,000 non-matching Ohio voters.

The Republican attorney general in Wisconsin brought a similar challenge against his state's elections board, but it failed last week. (The attorney general plans to appeal the decision.) A Dane County judge ruled that, "Nothing in state or federal law requires that there be a data match as a condition on the right to vote." A matching requirement, the elections board had found, could have disenfranchised more than 20 percent of Wisconsin's registered voters.

Republicans have lost most of their legal challenges claiming states aren't adequately protecting against voter fraud. But legal experts worry that the steady barrage of legal attacks in battleground states is part of a broader effort to lay the groundwork for undermining the legitimacy of the outcome of the presidential election. That could further fuel the anger of the Republican base against the Democratic candidate -- and possibly the next president.

"If it's close, and if, in the grand scheme of things, Ohio would make a difference in the Electoral College or the finally tally, all these aspersions could come into play in challenging those results," said Davis, the Ohio ACLU attorney. Either party could bring a legal challenge questioning the validity of provisional or absentee ballots.

While experts say it's rare to see the sort of scenario that occurred in Florida in 2000, where the outcome of the presidential election hinged on a few hundred votes in one state, the increased focus on voter problems and recent changes in voting laws means litigation over the outcome remains a real possibility.

"Besides Florida, you'd have to go back to the 19th century in the United States to get to an election that was that close," said Daniel Tokaji, a law professor at Ohio State University and an expert in election law. "Then again, in 2004 we weren't that far away -- there were about 100,000 votes in Ohio on which the outcome depended. If we'd had a second litigated election in 2004, it would have been like lightning striking twice. So it could happen again."

Because of the close elections and revelations of voting problems in 2000 and 2004, said Tokaji, "we've got people paying much closer attention to the mechanics of elections." Also, "there are a lot of changes in the law. That always leads to more litigation, because there are issues of how those laws should be interpreted and applied."

Even if the election weren't close enough to merit legal challenges, many Democrats worry that the GOP claims of voter fraud are a preemptive attempt to undermine the legitimacy of a Barack Obama presidency.

"It's a desperate attempt to unfairly flavor and throw something out there and take people away from the real issues," said Lichtman of the Florida Democratic Party. Florida's voter registration rules, which require all voter registration information to match the state databases, have been the subject of ongoing litigation.

The History of Voter Fraud

Claims of voter fraud before an election are nothing new, of course. For centuries, strict-voter registration rules have been applied to limit access to voting, often targeting the poor and minority citizens.

"We've seen it throughout American history," said Tokaji. "In the 19th century, claims of fraud were made to exclude immigrants, ethnic minorities and laborers. And throughout most of the 20th century, the disenfranchisement of African-Americans in the South was done through voter-registration requirements that local officials claimed were to prevent voter fraud."

More recently, Republicans have been claiming widespread voter fraud to tighten requirements on who can vote. "They're trying to use the so-called epidemic of voter fraud to justify voter ID laws," said Gerald Hebert, a senior elections official at the Justice Dept. from 1973-1994 and who is executive director of the Campaign Legal Center, a nonpartisan organization focusing on election reform.

That's how Indiana came to pass its voter-identification law. When that law was challenged, the Supreme Court acknowledged there was no evidence of voter fraud in Indiana. Still, the court upheld, by a vote of 6 to 3, the state's requirement that voters present a state-issued photo identification card before casting a ballot, finding that it did not impose an unjustified burden on the poor, minorities or others less likely to have such a photo ID

Associate law professor Michael Pitts at Indiana University studied the effects of the new law. He found the votes of 80 percent of Indiana residents forced to fill out a provisional ballot because they didn't have the required I.D. card were never counted.

The ACORN Controversy

Recent revelations that some workers from the Association of Community Organizations for Reform Now, or ACORN, have turned in fraudulent registration forms has fanned the flames of this dispute, leading to calls for more voter-identification laws, as well as no-match, no-vote requirements.

But Republicans' claims against ACORN have gone further. Legislators and party officials have used the false registrations to claim that ACORN is engaging in an effort to steal the election for the Democratic Party. Investigations of fraudulent activity are going on in at least 10 states, and the Justice Dept. has reportedly begun an investigation of ACORN, a community-organizing group that advocates on behalf of low-income families, following requests from numerous Republicans.

Sen. John Cornyn (R-Tex.), for example, a member of the Senate Judiciary Committee, wrote to Mukasey earlier this month, urging him to investigate ACORN as a "criminal enterprise."

The Obama campaign and former Dept. of Justice lawyers involved in voting-rights issues say such an investigation before the election might intimidate legitimate voters and violate Justice Dept. policy.

ACORN has repeatedly explained that when its workers submitted false registrations, the fraud was against ACORN, not against voters or the elections process. That's because the duplicate or made-up registration forms were mostly turned in by workers who ACORN paid to sign up voters in their neighborhoods.

That some of those workers copied names out of the phone book, or listed their favorite cartoon characters, doesn't mean those people are going to show up to vote. But it does mean that ACORN didn't get it's money's worth. The group checks all submitted registration forms and flags for local election officials those that are suspect. In most states, it's still required by law to turn all forms in.

"The overwhelming evidence is that fraudulent voter registrations do not lead to fraudulent voting," said Wendy Weiser, a deputy director specializing in voting rights at New York University's Brennan Center for Justice. "It's a big resource drain on election officials, but it doesn't affect the outcome."

That hasn't stopped the allegations. Sen. John McCain's claim in the last debate that ACORN is potentially committing "one of the greatest frauds of voter history in this country, maybe destroying the fabric of democracy" has helped set the stage for broad claims of a stolen election after Nov. 4.

McCain's remarks were followed by violence. Within days, two ACORN offices were vandalized, and one organizer received a death threat. People for the American Way reports that ACORN offices have received a barrage of racist and threatening voicemails and emails.

ACORN's own exaggerations about its effectiveness in registering voters haven't helped. Last Thursday, the group admitted it had vastly overstated the number of legitimate new voters it registered this year, acknowledging that about 30 percent of the 1.3 million new voters it had claimed credit for were either duplicates or not real.

Though some percentage of erroneous applications is expected, both the large number of registered voters and the colorful news stories -- about how characters like Mickey Mouse have registered, for example -- encouraged Republicans to keep hammering away at charges that the liberal-leaning group, which advocates on behalf of low-income Americans expected to favor Sen. Barack Obama, is planning to steal the presidential election for Democrats.

Given the latest polls, it probably wouldn't need to. But election lawyers worry that the problems of voter registration by groups like ACORN provide an easy way for Republicans to later claim, if Obama wins, that he's not the legitimate president.

"It does seem like there is an attempt to cast the specter of voter fraud over this election," said Hebert. "Like there's an attempt to get people all riled up in the base of the Republican Party, to say, 'We're not going to let people steal our election.'"

From Your Site Articles

Petraeus Talk Bolsters Obama


Throughout Sen. John McCain’s presidential campaign, the Republican nominee has wrapped himself in the mantle of U.S. Army Gen. David H. Petraeus, proclaiming himself the leading advocate of the former commanding general in Iraq who devised last year’s controversial troop surge. Yet during a talk Wednesday about Iraq at the Heritage Foundation, a conservative Washington policy organization, Petraeus repeatedly made statements that bolstered the foreign-policy proposals of Sen. Barack Obama, McCain’s Democratic rival, or cut against McCain’s own lines.



Petraeus relinquished command in Iraq last month. He assumes responsibility for U.S. Central Command later this month, putting him in charge of U.S. forces in the Middle East and South Asia.

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin



As a serving military officer, Petraeus attempted to avoid any explicit political discussion. “I’m not walking into minefields now,” Petraeus said, to laughter, when asked a question that referred to Tuesday night’s presidential debate. In fact, the general averred that he didn’t watch the debate.


Yet Petraeus, whether intentionally or not, often waded into areas of dispute between Obama and McCain involving Afghanistan, negotiating with adversaries and other recent campaign controversies. Each time, the general either lent tacit support to Obama or denied tacit support to McCain.


Unbidden, Petraeus discussed whether his strategy in Iraq — protecting the population while cleaving apart the insurgency through reconciliation efforts to crush the remaining hard-core enemies — could also work in Afghanistan. The question has particular salience as Petraeus takes over U.S. Central Command, which will put him at the helm of all U.S. troops in the Middle East and South Asia, thereby giving him a large role in the Afghanistan war.
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Are Contractors in War Zones Above the Law?

In January of 2008, Staff Sgt. Ryan Maseth, 24, was electrocuted while showering in his Baghdad barracks. His death prompted last week's congressional report concluding that defense contractor KBR, (until a year ago a subsidiary of the oil services giant Halliburton) was well aware that the electrical system in Maseth's complex was faulty. An accident like this, the report found, was bound to happen. But this report also now raises a larger and thornier question about military defense contractors: can they be held legally liable for their actions -- or inactions? Will anyone be held responsible for Maseth's death?

This is an increasingly important question as the U.S. government hires ever more military contractors to do work that used to be done by U.S. soldiers. The war in Iraq has already involved more outsourcing of military functions than any previous war in American history. An estimated 180,000 civilian contractors now work in Iraq and Afghanistan to support the U.S. government there. They do everything from guard U.S. officials and dignitaries to truck fuel, food and other supplies to military bases -- all jobs that used to be done by soldiers.

Private contractors operating in Iraq are not subject to U.S. military authority, or to U.S. or Iraqi law. Their employees are not subject to the rigors of Army basic training; and their superiors are not held to the strict rules and ethics that apply to the U.S. military. As a result, notes Peter W. Singer, a senior fellow at the Brookings Institution, in his book, "Corporate Warriors: The Rise of the Privatized Military Industry," "When the means of security are privatized, certain mechanisms of moral hazard and adverse selection might lead firms astray. Just as in the rest of commerce, war is business where nice firms do not always finish first."


Indeed, whistle-blowers at these companies run the risk of being fired. In 2007, shortly after one KBR electrician reported to a defense contracting agency official that logs were being created to make it appear that nonexistent electrical safety systems at the base were working properly, he lost his job, according to The New York Times. Another employee "said his KBR bosses mocked him for raising safety issues."

Yet, the Pentagon inspector general's interim report provided to the House Oversight Committee on July 28 said it "has not found any credible evidence that representatives from KBR were aware of imminent, life-threatening hazards" in Maseth's complex prior to his death. This is despite that fact that the Army itself had issued an urgent bulletin (pdf) in 2004 warning soldiers of the threat.

Of course, the Pentagon may have an interest in protecting its contractors. The Defense Dept. indicated, in a 2006 review, that it intends to increase its reliance on private military companies and other outsourced support services. Its handling of the death of Maseth certainly suggests that the Pentagon is defensive on the subject: the soldier's mother, Cheryl Maseth, was originally told that her son had carried an electrical appliance into the shower.

As of January, more than 1,000 private civilian contractors -- including 110 KBR employees -- had been killed in Iraq, and another 13,000 wounded. Deaths of American soldiers in battle, meanwhile, have climbed to more than 4,100. So what happens when the military contracting companies themselves are to blame for the deaths? For years now, KBR and other military contractors have argued that as a matter of law, regardless of the circumstances, they are not responsible. As government contractors, they say, just like the military, they're immune from legal suits. That's been KBR's defense in a series of cases over the past few years when the company has been accused of knowingly sending unarmed civilian employees into active combat zones -- sometimes to their deaths.

In a case I wrote about in January for The American Lawyer, KBR denied responsibility for sending an unarmed convoy of trucks down a dangerous road under active insurgent attack. In what's come to be known as the Good Friday Massacre, in April 2004, six KBR drivers were killed and 14 were wounded. One driver is still officially missing, and presumed dead.

Now KBR could be facing many such claims. According to the Defense Dept.'s own inspector general, as of July 10, there have been 16 deaths due to faulty electrical wiring on U.S. military bases that KBR was supposed to be maintaining. Companies like KBR rely on a range of legal defenses when accused of wrongdoing, but the gist is always the same: working for the U.S. military means they're beyond the authority of the U.S. courts -- therefore immune from U.S. law.

That's exactly the tack KBR appears to be taking in the case of Maseth, whose mother has sued KBR, claiming that the company knew of the danger and was responsible for fixing it, but didn't. In other words, KBR, she asserts, could have prevented her son's death.

KBR, which has received $20 billion in Iraq war contracts since 2003, vehemently denies this. KBR's actions "were not the cause of any of these terrible accidents," company executive Thomas Bruni told the House Oversight and Government Reform Committee on Wednesday. An interim DOD inspector general report, obtained by The Associated Press last Tuesday, reached the same conclusion.

But at least some evidence suggests otherwise. Under KBR's multi-billion-dollar contract with the Army, the company was responsible for maintaining U.S. military bases and facilities in Iraq. According to documents produced to the Oversight Committee, KBR had inspected and found problems with the building's electrical infrastructure at least four times in the months prior to Maseth's death. Documents show, for example, that another soldier in the complex had experienced electrical shocks while showering and submitted a work order (pdf) to KBR on July 8, 2007, stating: "Pipes have voltage, get shocked in the shower." A KBR electrician that day found a faulty pressure switch and noted: "Plumber needs to repair." On July 9, 2007, after KBR workers replaced the pressure switch and the water pump, the work order was stamped "finished".

Still, on Jan, 2, 2008, when Maseth turned on the shower, an ungrounded water pump short-circuited and electrified the water pipes. The current traveled through the pipes, the shower head and the water itself, electrocuting Maseth. He was dead within seconds. The congressional report concludes, based on the evidence, that KBR had installed the water pump that malfunctioned and caused the death.

Whether a court will hold the company liable, however, may depend less on the facts than whether a judge accepts KBR's claim of immunity. According to KBR's legal papers, even if the company knew of the problem and failed to fix it, KBR will claim that it's not legally liable because it was working for the U.S. government. In its motion to remove the case from state to federal court, KBR's lawyers wrote that they plan to invoke the "government contractor defense" - meaning the government approved the work so it is not responsible; the "official immunity doctrine" - that, as a government contractor, it's entitled to the same immunity as the U.S. military itself, and the "political question" doctrine -- a KBR favorite on which it's won several cases before. Under this, KBR argues that the court should dismiss the case because it would require the court to judge the actions of the U.S. military -- province of the president and Congress, not the federal courts.

KBR has relied on this same "political question" defense to win at least two previous cases involving the death of U.S. soldiers or of its own employees. But the courts are now starting to question the legitimacy of those defenses.

In the case of the Good Friday Massacre, the traditionally conservative Fifth Circuit Court of Appeals last May reversed a Texas district court's order that had dismissed the case under the political question doctrine. The three-judge panel noted that, contrary to KBR's argument, it may well be possible to resolve the cases without engaging in a "constitutionally impermissible review of wartime decision-making." Though the court cannot judge the military decisions of the Defense Dept., the court acknowledged, that doesn't shield every action taken by a military contractor. Judge Leslie Southwick wrote, "these tort-based claims of civilian employees against their civilian employers can be separated from the political questions that loom so large in the background."

The same reasoning likely applies to the electrocutions. Whether the political question doctrine applies "is partly determined by how closely intertwined the contractor is with the government officials," said Laura Dickinson, an expert on military contractor law at the University of Connecticut Law School. "One of the interesting things that I think we're seeing is that courts are not willing to throw these cases out when the contractor has a fair degree of discretion."

In this case, either KBR was responsible for repairing the electrical problems at the military base, or it wasn't. That is a factual dispute that would emerge as the lawyers gather evidence. It is not a legal matter that warrants dismissal of the case.

Unless carefully applied, contractor immunity defenses preclude a real investigation into what happened and who is responsible. If, as has happened over and over in this war, nobody is held responsible for the failures of military contractors, then there can be no incentive to do better next time.

The result is that, as long as something is done in a war zone, even the shoddiest work gets a pass -- regardless of the consequences.

How the Pentagon Turned an Interrogation Resistance Program into a Blueprint for Torture

In August 2004, a Defense Dept. panel convened to investigate detainee abuse after the Abu Ghraib scandal issued its much-anticipated report. Interrogation techniques designed for use at Guantánamo Bay, which President George W. Bush had decreed outside the scope of the Geneva Conventions, had "migrated" to Iraq, which Bush recognized was under Geneva, concluded panel chairman James Schlesinger, a former defense secretary. Schlesinger's panel, however, did not explain which officials ordered the abusive techniques to transfer across continents -- or how and why they became Pentagon policy in the first place.

(On Wednesday) the Senate Armed Services Committee answered those questions. In a marathon hearing spanning eight hours and three separate panels, the committee revealed, in painstaking detail, how senior Pentagon officials transformed a program for Special Forces troops to resist torture -- known as Survival Evasion Resistance Escape, or SERE -- into a blueprint for torturing terrorism detainees.

The committee, chaired by Sen. Carl Levin (D-Mich.), released numerous classified documents from the crucial period of mid-2002 to early 2003, when the policies of abuse took shape inside the Defense Dept. "Senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality and authorized their use against detainees," Levin said. "In the process, they damaged our ability to collect intelligence that could save lives."

The SERE program -- first introduced to many by a 2005 article by the New Yorker's Jane Mayer -- is not an interrogation program. Nor is it an intelligence-collection program. Instead, it's an obscure program across the different military services' special-forces wings that teaches troops how to withstand torture if captured. Instructors subject students -- under the rigorous watch of psychologists and physicians -- to various torture techniques, including waterboarding, prolonged stress positions, sleep deprivation and sensory manipulation. Waterboarding "is an overwhelming experience that induces horror, triggers a frantic survival instinct," Malcolm Nance, a former Navy SERE instructor who was himself waterboarded, testified to Congress in November. "As the event unfolded, I was fully conscious of what was happening: I was being tortured."

On July 25, 2002, the Defense agency that oversees the SERE program, known as the Joint Personnel Recovery Agency, or JPRA, was contacted by a representative of Pentagon General Counsel William Haynes for information about SERE practices for the "exploitation process" -- that is, getting detainees to cooperate with their interrogators. The next day, JPRA's chief of staff, Air Force Lt. Col. Daniel Baumgartner, sent Haynes a lengthy memorandum explaining how the program worked.

Before the Senate panel, Baumgartner said he did not realize that Haynes wanted to use SERE techniques on enemy combatants. "I had no idea how it would be used," he testified. "When tasked by my higher headquarters … I can't really turn around and tell the flag officers and the senior executive service people no."

Haynes, who retired from the Pentagon in April, after his nomination to the federal judiciary foundered, pled ignorance. "No, sir, I don't remember it at the time," Haynes said when asked if he had received Baumgartner's memorandum. "But I saw it a long time ago … it's possible I saw it at the time."

Pressed by Levin on how he could not have seen a memorandum concerning terrorism detentions and interrogations, Haynes replied, "the recipient is the Office of the Secretary of Defense General Counsel, which [was] not my precise title."

Baumgartner's memorandum was not the last time SERE techniques were introduced into the interrogation bloodstream. On the week of Sept. 16, 2002, JPRA officials invited a contingent of senior Guantánamo-based officers to a briefing session at Ft. Bragg, N.C. Haynes and his legal counterparts at the Central Intelligence Agency, Justice Dept. and the Vice President's office visited Guantánamo the following week for an update on interrogations. The minutes of that meeting record that the commander of the detention facility "did take Mr. Haynes and a few others aside for private conversations."

Just the week after that, a senior CIA lawyer, Jonathan Fredman, instructed Guantánamo officers on various SERE-pedigreed torture methods, including waterboarding. "If the detainee dies," Fredman said, "you're doing it wrong." In response, the chief Guantánamo Bay attorney, Lt. Col. Diane Beaver, said, "We will need documentation to protect us."

It would be a fateful decision. On Oct. 11, 2002, Beaver's boss, Maj. Gen. Michael Dunleavy, the commander of Guantánamo's detention center, sent a request to his boss, Southern Command chief James Hill, for harsher, SERE-derived interrogation techniques. Beaver attached to that request a certification that "the proposed strategies do not violate applicable federal law."

Beaver testified (Wednesday) for the first time since Haynes declassified her guidance in mid-2004. She said she intended for the techniques to be used under supervised and restricted circumstances. It turned out that not a single other military lawyer submitted written guidance in support of the SERE-derived techniques. "In hindsight," Beaver told the Senate panel, "I can only conclude that others chose not to write on this issue in order not to be linked to it. For me, that was not an option."

The result of Haynes' efforts were to transform "stress positions" -- forcing someone into uncomfortable contortions for hours on end -- from something U.S. special forces had to withstand to something U.S. interrogators would place on Guantánamo inmates like Mohamed al-Qatani, also known as Guantánamo Detainee 063. Qatani was at one point believed to be the intended 20th 9/11 hijacker, but last month the Pentagon unceremoniously dropped the charges against him.

Nor did the SERE techniques remain only at Guantánamo Bay. In the summer of 2003, the new Guantánamo detentions and interrogations commander, Maj. Gen. Geoffrey Miller, visited Iraq at the behest of Rumsfeld intelligence deputy Steve Cambone to "Gitmo-ize" detention operations there. It was revealed (Wednesday) that Beaver accompanied Miller on the trip.

The wages of this turn to what Vice President Dick Cheney once euphemistically described as "the dark side" were made clear in March. A deputy to Gen. David Petraeus, the commander of U.S. forces in Iraq, briefed reporters on an emerging profile of recruits to the terrorist organization Al Qaeda in Iraq (AQI) that his command had compiled from interviews with AQI detainees. In many cases, the recruits were convinced to join the terrorist group after being shown images of abuse emerging from Abu Ghraib or Guantánamo Bay.

Near the conclusion of the hearing, Sen. Jack Reed (D-R.I) glowered at Haynes, frustrated at the former Pentagon official's faulty memory. Reed said that Haynes, Rumsfeld and Bush had deprived U.S. troops of clear guidance for legal interrogations, exposing them to potential prosecution in the U.S. -- and likely torture if captured by enemies who no longer have reason to believe that their own soldiers won't be tortured in U.S. custody. "You did a disservice to the soldiers of this nation," Reed told Haynes.

Anti-Abortion Law Targets Native American Women

Following scant debate, the Senate last week approved an amendment to an Indian health care bill that would permanently prohibit the use of federal dollars to fund abortions for Native Americans except in rare cases. The move has prompted an outcry from women’s health advocates -- who point out that a similar ban has existed on a temporary basis for years -- and from tribal groups, who are asking why Native American women should be subject to restrictions not applicable to other ethnic groups. Some charge that the Senate proposal is overtly racist.

The issue is a sensitive one in American Indian communities, where women are statistically more likely to be victims of rape or sexual assault than other American women -- but also where victims very rarely use the exceptions to the current federally funded abortion ban in the wake of those crimes. In the face of that discrepancy, advocates say, Congress should encourage victims to take advantage of the available services, not impose tighter restrictions.

The debate pits anti-abortion lawmakers on both sides of the aisle against health-care advocates who fear the latest move could set the stage for broader abortion prohibitions under federal programs outside the realm of Indian health services. In addition, there is the intrigue of scandal, for the sponsor of the controversial amendment, Sen. David Vitter (R-La.), made headlines last year for his earlier entanglement in a prostitution ring. Several abortion-rights sources suggested that Vitter -- who built his political career on family-values issues -- is trying to bolster his conservative credentials in the wake of that embarrassment.

The controversy swirls around a federal law -- known as the Hyde amendment -- that prohibits abortion coverage under Medicaid, Medicare and Indian Health Service programs. While the Hyde law must be renewed by Congress each year, the Vitter amendment -- which the Senate approved on Feb. 26 -- would apply Hyde’s restrictions permanently to IHS beneficiaries. For that reason, tribal health advocates charge that the Vitter language treads on the sovereignty of Indian communities and places unique constraints on native women.

"It’s a very racist amendment," said Charon Asetoyer, executive director of the Native American Women’s Health Education Resource Center, "[because] it puts another layer of restrictions on the only race of people whose health care is governed primarily by the federal government. All women are subject to the Hyde amendment, so why would they put another set of conditions on us?"

Vitter’s office did not return several calls and e-mails requesting comment.

A number of women’s health groups have criticized the Vitter amendment as well, claiming it will have no practical effect on women’s health services.

"Apart from being bad public health policy," Planned Parenthood said in a statement, "this language is duplicative of current law and serves only to politicize important legislation regarding comprehensive health care for Native Americans."

Though the Hyde amendment -- named for its sponsor, the late Illinois Rep. Henry Hyde -- first took effect in 1977, Congress must reapply it annually through the appropriations process. That, according to Vitter, puts the Hyde language "in a tenuous and precarious posture. It puts it up for debate and possible change of policy every year, every time we debate a new Health and Human Services appropriations bill. Therefore, it doesn’t make the policy very solid, very secure, or very clear."

Vitter’s amendment, attached last week to the Indian Health Care Improvement Act, would eliminate that uncertainty by codifying the Hyde amendment as a matter of authorization, not appropriation. "I suggest that would be a positive statement for life, for positive values for the future," he said on the Senate floor Jan. 22 -- the same day that thousands of anti-abortion marchers descended on Washington. A month later, the Senate approved Vitter’s amendment by a vote of 52 to 42.

But critics say the creation of a second law governing IHS-funded abortion services might confuse the issue if inconsistencies are found between the two mandates. Indeed, certain elements of Vitter’s amendment stray from the Hyde language. For example, while Hyde allows federally funded abortions for victims of incest at any age, Vitter specifies that the incest exception pertains only to minors.

Marlene Fried, a founding board member of the National Network of Abortion Funds, said the practical implications of that difference would be minimal. Still, she added, the change is significant as "another way of narrowing the [Hyde] exceptions."

The issue is especially charged because Native American women are more than three times as likely to suffer rape and sexual abuse as other women in the United States. Yet despite that statistic, only 25 abortions were performed at all IHS facilities between 1981 and 2001, according to figures gathered from the IHS by the Native American Women’s Health Education Resource Center. (An IHS spokeswoman declined to release more recent IHS-funded abortion figures, suggesting that a reporter file a Freedom Of Information Act request.)

But, advocates say, Indian women continue to have the procedure off the reservation. "Native American women have abortions," Asetoyer said, "and anyone who tells you differently is out of touch with their community."

Susan Cohen, the director of government affairs at the Guttmacher Institute, a nonprofit reproductive health research group, said the Hyde restrictions don’t prevent abortions, but they can delay them as low-income women are forced to save the money to fund the procedures out-of-pocket. That delay, Cohen added, can lead to dangerous complications. "Having later abortions is in no one’s best interest," she said.

Meanwhile, some tribal advocates are concerned that the Vitter amendment might carry additional political significance, as the Senate bill now moves to the House for consideration. Several sources said the controversial amendment is potentially a poison pill for the overall bill, for House Democratic leaders have been loathe to codify the Hyde amendment.

Not that the issue is entirely partisan. A number of Democratic lawmakers voted to approve the Vitter provision last week, including Sens. Ken Salazar (Col.), Evan Bayh (Ind.), Robert Byrd (W.Va.), Robert Casey (Pa.), Tim Johnson (S.D.), Mary Landrieu (La.), Ben Nelson (Neb.), Mark Pryor (Ark.) and Majority Leader Harry Reid (Nev.). Of that group, Landrieu and Johnson are up for reelection this year in relative conservative states, with Landrieu facing a tight race.

Three Republicans�Sens. Susan Collins (Me.), Olympia Snowe (Me.) and Arlen Specter (Pa.)�voted against the amendment. All three have historic records of bucking their party on the abortion issue.

Vitter, for his part, voted against the final IHCIA bill on the same day that his amendment passed. The final bill was approved, however, by a count of 83 to 10.

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