Soldiers at Bagram Air Base, Afghanistan (army.mil)

GUANTANAMO BAY — His nickname wasn’t “Monster,” he admonished the lawyer. It was “The Monster.” That was what the Bagram Collection Point’s interrogators, guards — and most especially detainees — called Army interrogator Damien Corsetti. And it was important to him that the court correctly record his story.

Back then — in 2002 at Bagram, and later at Iraq’s notorious Abu Ghraib prison — Corsetti was as fearsome as his handle. Although acquitted, he went before a court-martial proceeding related to the abuse of a detainee in Iraq. Now, Corsetti is an unemployed veteran of two wars, unable to work because of post-traumatic stress disorder, and an infamous figure in the U.S.’s post-9/11 history of torture.

[Security1] But he testified on Wednesday morning from a remote location on behalf of one of the former inmates at Bagram whom he used to intimidate and brutalize: Omar Khadr, the 23-year old Canadian citizen who has been in U.S. custody for nearly eight years. The large man once known as “The Monster” — the nickname is tattooed in Italian on his stomach — provided rare sworn testimony about the abuse of detainees in U.S. custody in the Afghanistan war’s early days, the product of what he described as command pressure for intelligence and unclear rules about permissible interrogator behavior.

Corsetti didn’t directly interrogate Khadr, he told the court, but he spoke to Khadr at least two to three times a week from August to October 2002, after which Khadr was transferred here. “He was a child,” said an occasionally emotional Corsetti. “He was a 15-year old child who had been blown up, shot and grenaded. He was in one of the worst places on the earth. How could you not have compassion for that? … He was in the wrong place for a 15-year old child to be.”

It was the first moment during seven days of Khadr’s pre-trial hearing, meant to determine whether the statements Khadr gave to his interrogators may be used against him in his July military commission, that an interrogator described Khadr as a “child.” Other interrogators, testifying for the prosecution, described him clinically as a “15-year old” or “mature” or otherwise resisted the characterization of Khadr as a juvenile. Almost simultaneously with Corsetti’s testimony, Radhika Coomaraswamy, the United Nations special representative for children and armed conflict, called for Khadr’s release and decried the “dangerous international precedent” the Obama administration is setting by prosecuting him for war crimes.

That wasn’t the only time Corsetti contradicted earlier testimony. The witness before Corsetti, Army Col. Donna Hershey, the former chief nurse at Bagram, testified that she never allowed any interrogators to question detainees in Bagram’s hospital. But Corsetti testified that the first time he met Khadr, and the only time he was present for any questioning of Khadr, occurred in the hospital, on July 29, 2002, two days after Khadr suffered near-fatal wounds during his capture after a Khost, Afghanistan firefight.

“I would assume from his condition he was under excruciating pain,” Corsetti said. Despite the pain, and despite the questioning’s presentation to the court as a preliminary, in-processing brief, the questioning appeared to involve the acquisition of intelligence information, including “what kind of military training” Khadr had; what Khadr believed his offenses were that landed him in Bagram; his “knowledge of Soviet-issued weapons”; and general questions to assess “his cooperation and knowledgeability.” That spoke directly to the purpose of the hearing: To determine whether Khadr’s statements to interrogators, and information that followed from them, were coerced from him to a point rendering them unusable by the government at trial.

The pressure to acquire intelligence information was the overriding theme of Corsetti’s testimony. His unit, Alpha Company of the 519th Military Intelligence Battalion, then stationed at Bagram, had to file between “20 to 40 reports a week” or hear from higher command to complain about them “stagnat[ing].” That pressure, Corsetti said, came from the Afghanistan war command and the “Office of the Secretary of Defense” — and produced a command environment that encouraged detainee abuse.

“The only clear cut rules I remember was we weren’t allowed to strike the prisoners,” Corsetti said, and that interrogators couldn’t directly threaten detainees. “But we could do what we called ‘plant the seed’” of threats, and “let their imagination run wild with it.” One example, consistent with an affidavit Khadr submitted about his treatment at Bagram, was to suggest that detainees cooperate with interrogators to avoid being sent for more brutal treatment in other countries. “Egypt and Israel were the two big ones,” he said.

Corsetti also testified that detainees at Bagram were “regularly” placed in forced contorted positions known as “stress positions” (and, later, “safety positions,” according to an interrogator who testified on Tuesday). “Stress positions were used to inflict pain on the prisoners, to elicit information from them,” Corsetti said, rocking back and forth in his chair. “At any given time, there was always one airlock occupied by a prisoner shackled, blindfolded, earmuffed with his hands above his head.” That description came close to matching one given by an anonymous Bagram medic, known as Mr. M, who testified Monday to seeing Khadr shackled to the outermost door of his cell — known as an airlock or sallyport — with his hands shackled at about forehead-level. The level of positioning for a detainee’s restrained arms would “depend on the length of the chain they used from the top of the cage,” Corsetti calmly recounted.

Asked if he knew if Khadr would have been put in a stress position, Corsetti replied, “I can’t say if it was done to him, but it was something I would have done.”
Corsetti’s lack of direct knowledge of Khadr’s treatment repeatedly aroused objections from the chief government prosecutor, Jeffrey Groharing, a retired Marine major, pushing Corsetti’s testimony to nearly two hours. Groharing argued that the defense could only question Corsetti about any treatment of Khadr that Corsetti directly observed. But Col. Patrick Parrish, the judge presiding over Khadr’s military commission, responded that the hearing’s admission of hearsay evidence — ironically, one of the biggest civil-libertarian objections to the commissions — could work in the defense’s favor, as it had for the prosecution.

Groharing has called eight interrogators to testify so far about direct interactions with Khadr. All have largely portrayed their interrogations and interviews with him as free and uncoerced. But later this week, the defense intends to call to the stand someone known to the court as “Interrogator #1,” who interrogated Khadr at Bagram and who is expected to testify to threatening Khadr with rape.

For all the command pressure for intelligence and the harsh treatment that resulted at Bagram, Corsetti said he wasn’t sure whether it resulted in accurate intelligence. “I got some very good information while I was there and I got some very bad information while I was there,” he said.

He last saw Khadr shortly before the detainee’s October 2002 transfer to Guantanamo Bay. “I can’t say if he was afraid or not,” Corsetti said. “I remember he went from a smiling 15 year old kid to a look of defeat before he left.”

A sketch by courtroom artist Janet Hamlin of defendant Omar Khadr with his defense team as FBI Special Agent Robert Fuller testifies in front of a video of Khadr posing while allegedly making IEDs. (EPA/ZUMApress.com)

GUANTANAMO BAY — The pre-trial hearing for a 23-year old Canadian citizen tried before a military commission is likely to host some of the most dramatic testimony of the post-9/11 era this week. That is, if the government and defense attorneys don’t reach a plea deal to settle the case of Omar Khadr, who has been held in detention for nearly eight years and charged with the murder of a U.S. Special Forces soldier.

Khadr’s attorneys plan to call someone known only as “Interrogator #1″ to testify this week. According to attorneys Barry Coburn and Kobie Flowers, Interrogator #1 will testify to having personally threatened Khadr in 2002 with sending the then-15 year old son of an Osama bin Laden associate to Egypt to be raped if he did not cooperate with interrogators at Bagram Air Field in Afghanistan.

[Security1]Additionally, during cross-examination during the first four days of the hearing — in which Khadr’s attorneys are asking a military judge to exclude all of their client’s statements to his interrogators from the government’s case against him, arguing that they occurred under coercion and even torture — Khadr’s attorneys have asserted that the first person to have ever interrogated Khadr at Bagram was court-martialed from the military for participating in the abuse of detainees.

This interrogator appears to be a different person than Interrogator #1, since Coburn said in a Saturday press conference that the court-martialed interrogator was “someone whom I’d very much like to be here,” and Interrogator #1 is scheduled to testify. “If that person is not here, and testifies electronically, that would be disappointing to me, but the most important thing is that that witness testify,” Coburn continued. He would not answer any substantive questions about either interrogator or their possible testimony.

If either Interrogator #1 or the other “First Interrogator” testifies, their faces will be visible in the super-secure courtroom here and their names will not be revealed. But published reports indicate a few likely possibilities for their identities. Former Army Spc. Damien Corsetti, a military interrogator at Bagram in 2002, was acquitted by a court-martial of various disciplinary infractions, but has confessed to involvement in the abuse of detainees. “I firmly believe it was torture and unfortunately I took part in it,” Corsetti said of Khadr’s treatment at Bagram in a 2009 interview with the Toronto Star’s Michelle Shephard.

While Corsetti is not believed to have interrogated Khadr, he might still have threatened the 15-year old during detainee operations at Bagram, where Khadr was held after his July 2002 capture by U.S. troops before his transference to Guantanamo in October 2002. A Saudi man who was detained at Bagram has said that Corsetti threatened him with rape, according to a 2005 New York Times expose into detainee abuse at the prison.

That same report identified Joshua Claus as an Army specialist responsible for the violent deaths of two detainees at Bagram, named Habibullah and Dilawar, a few months after Khadr was transfered to Guantanamo. Claus served five months in military prison in 2005 after pleading guilty to assault and misrepresenting his involvement in the deaths to investigators. A former lawyer for Khadr said in 2008 that Claus conducted “virtually all” of Khadr’s Bagram interrogations.

Testimony from any interrogator about personal involvement in detainee abuse on behalf of an abused detainee will be a milestone for the military commissions, or for any other forum for post-9/11 justice. No other case has featured such a dramatic and potentially self-incriminatory development. Asked last week why an interrogator would potentially incriminate himself, Coburn replied, “I don’t know the answer to that.”

Any account from former interrogators about abusing Khadr will contrast sharply with the accounts of five interrogators who have testified thus far on behalf of the prosecution. Those interrogators, who worked for the FBI, the Naval Criminal Investigative Service and the Defense Intelligence Agency, have testified  that Khadr was a cooperative and good-natured detainee who cooperated with his Bagram and Guantanamo detainees without any coercion. All interrogated Khadr when he was 16 years old, and said he responded positively to such inducements as food from McDonald’s, car and motorcycle magazines, and the promise of what one called “Islamic children’s books.”

“If you notice the way the government is presenting evidence in this hearing, what we’re hearing from overwhelmingly are FBI agents or Naval Criminal Investigative Service agents who talked to Omar Khadr way later, long after he was initially detained,” Coburn told reporters Saturday when challenged about their accounts, indicating his witnesses would pre-date the government’s. “This was just sort of renegade conduct that occurred for a certain period of time, which is, from our point of view… something that poisoned the well.”

This week’s hearing will not resolve Khadr’s case. It’s to adjudicate the defense’s contention that initial mistreatment of Khadr in Bagram “poisoned the well” of evidence that the government can use against him during his scheduled July military commission — hence the testimony of the interrogators on the question of Khadr’s treatment.

But it’s possible that all remaining questions in Khadr’s case — from his treatment in detention to his alleged killing of U.S. Army SFC Christopher Speer — could be rendered moot.

Both the government and the defense have now publicly acknowledged negotiations to resolve Khadr’s case out of court. Anonymous administration officials told The Washington Post that they do not want the first military commission of the Obama administration to be against someone who was a juvenile when he was detained. Additionally, if the government loses the hearing to suppress ostensibly coerced evidence, it could threaten the viability of the commissions themselves, as all other detainees charged before the commissions could potentially cite Khadr’s case to argue that the circumstances of their detention are inherently coercive — thereby weakening the government’s cases against them, even in a forum like the military commissions that afford fewer rights to defendants than civilian courts.

But Coburn said on Saturday that his highest priority was securing the most favorable outcome possible for his client, not potentially assisting other detainees by pressing on with the so-called “suppression” hearing. “I don’t think that either I or Mr. Khadr or the other members of our team are thinking that much about the precedential value of what’s happening here as far as it might effect other detainees,” he said.

Even if there isn’t a plea deal announced this week, there’s another procedural snarl that would, at the least, delay the proceedings. Army Col. Patrick Parrish, the military judge presiding over Khadr’s case, said he would rule Monday on a request by the prosecution to subject Khadr to its own psychological screening — without defense counsel present. The prosecution said when it unveiled its request on court Wednesday that it anticipated needing “five weeks” for the desired examination. That would essentially freeze the suppression hearing in place for approximately a month without a resolution, making it more difficult to open Khadr’s actual military commission on schedule in July.

Detainees at Guantanamo Bay (The Toronto Star/ZUMApress.com)

The Supreme Court dealt a harsh blow on Monday to victims of abuse by U.S. officials during the “war on terror.” The court announced it would not review a federal appeals court ruling that dismissed a lawsuit by four British citizens who claim they were wrongly arrested, detained and mistreated by American officials at the U.S. detention facility at Guantanamo Bay, Cuba. The U.S. Circuit Court of Appeals in Washington, D.C., had ruled in April that government officials were entitled to “qualified immunity” from suit because it wasn’t clear at the time that abusing Guantanamo prisoners at was illegal.

[Law1] That appeals court decision in Rasul v. Rumsfeld effectively doomed many more cases that might have been brought by the more than 500 detainees who’ve been released from the Guantanamo prison, many of whom were subjected to so-called “enhanced interrogation techniques.” Those techniques include a broad range of abusive tactics, from weeks of sleep and food deprivation to stress positions, sexual humiliation, death threats and “waterboarding,” or simulated drowning. The four men who sued former Defense Secretary Donald Rumsfeld and other senior military officers for approving those techniques claim that between 2001 and 2004, when they were released, they were subjected to repeated beatings, prolonged sleep deprivation, extremes of hot and cold, forced nakedness, death threats, interrogations at gun point, menacing with unmuzzled dogs, and religious and racial harassment. The use of such techniques has been documented in Congressional reports, and Justice Department memos reveal that such tactics were explicitly approved by Bush administration lawyers.

The court’s decision not to review the Rasul case does not mean it agrees with the lower court’s decision. But it leaves the court of appeals’ ruling in effect and places a stumbling block in the path of Guantanamo detainees who claim they have been abused in U.S. custody and seek redress in court.

“When the court decides not to hear a case, it doesn’t say anything about the merits,” said Stephen Vladeck, professor at American University’s Washington College of Law and expert on national security and constitutional law. “But it leaves intact a fairly sweeping opinion by the D.C. Circuit — one that I think will be hard to overcome for any future plaintiffs suing based on abuse that allegedly occurred at Guantanamo.”

Shayana Kadidal, a senior attorney at the Center for Constitutional Rights and one of the lawyers who brought the Rasul case, agreed. “This decision is certainly bad news for the majority of people who could conceivably want to sue for damages at some point,” he said. In addition to monetary compensation, he said, many former Guantanamo detainees are seeking rulings to clears their names, because when they return to their home countries they’re often still suspected of terrorism and unable to secure employment.

At issue is an aspect of the D.C. Circuit’s opinion that found that government officials cannot be held legally responsible for any mistreatment because when the plaintiffs sued in 2004, “it wasn’t clearly established in the law that they were entitled not to be tortured or subjected to religious abuse,” said Kadidal. Since then, several Supreme Court cases have ruled that Guantanamo detainees have at least some constitutional rights. Which ones, however, remain unclear.

The D.C. Circuit’s ruling “reads out the good faith requirement in qualified immunity,” said Eric Lewis, a Washington, D.C., attorney who brought the Rasul case with CCR. “The whole notion of qualified immunity is that officials acting in good faith should have some protections.” But the law has long been clear that torture is not legal, said Lewis, citing the Convention Against Torture, among other laws. The Rasul decision, and the Supreme Court’s refusal to review it, he said, “makes it hard to know, what’s the law for next time?”

In fact, the D.C. Circuit’s latest Rasul opinion (the appeals court has ruled twice in this case) suggests in non-binding language that Guantanamo detainees have no constitutional rights other than the right of habeas corpus (the right to challenge the lawfulness of government detention), which the Supreme Court had already ruled applied to Guantanamo detainees. That finding cleared the way for the Obama administration, like the Bush administration before it, to argue that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.

The high court today refused to weigh in on that issue. “I was hoping that the Supreme Court wouldn’t allow the last word on torture at Guantanamo to be that [detainees] have no rights and if they do, nobody knew at the time,” said Lewis. “That’s very disappointing.”

The D.C. Circuit opinion is not binding on courts in other parts of the country, however, which still could rule differently on some of these issues. A federal court in San Francisco, for example, ruled in June that Jose Padilla, an American citizen imprisoned as an “enemy combatant” without charge at a U.S. Naval brig in South Carolina, can sue former Justice Department lawyer John Yoo , whose legal opinions during the Bush administration approved the harsh and abusive treatment Padilla received. The court in that case denied Yoo’s claim to qualified immunity. That case is now on appeal in the Ninth Circuit.

Qualified immunity is hardly the only obstacle to holding government officials liable for torture and other abuse, however. Other cases, brought on behalf of former prisoners who were deemed “enemy combatants,” are barred by the Detainee Treatment Act of 2005, in which Congress stripped the courts of jurisdiction over any lawsuits complaining about the treatment of enemy combatants. (At least one case, Al-Zahrani v. Rumsfeld, is now challenging the constitutionality of that law.)

Then there’s the lawsuit brought by Canadian citizen Maher Arar, arrested while changing planes in New York and sent to Syria by U.S. officials, where he claims he was interrogated under torture. That case was recently dismissed by the Second Circuit Court of Appeals in New York on the grounds that “special factors” — such as potential implications for national security and foreign relations — counseled against allowing the case to proceed. (Arar could still seek review in the Supreme Court.)

Other cases have been dismissed on similar grounds. “The more structural, fundamental problem is where the cause of action comes from,” said Vladeck , referring to the basis for a victim’s right to sue. Although in some cases federal courts will imply a right to sue government officials for a constitutional violation, “the Supreme Court over the last 20 years has been incredibly hostile to damages suits against federal officers,” said Vladeck.

In its latest move, the Supreme Court’s refusal to consider whether government officials can reasonably claim they didn’t know it was unlawful to torture prisoners in U.S. custody reinforces the viability of that argument for the future.

The court’s inaction also effectively ends the four British plaintiffs’ quest for a remedy — and likely stymies similar actions from many more former Guantanamo prisoners who hoped for official acknowledgment or compensation for what they endured. “Nothing legally would stop the executive branch or Congress from conceding that mistakes were made and these guys are entitled to some kind of reparations,” said Vladeck. “But I cannot imagine that’s going to be very politically feasible.”

The Justice Department has said it will not appeal the Sept. 17 order of Judge Judge Colleen Kollar-Kotelly, who granted Al Rabiah’s petition for release in a scathing ruling that criticized the U.S. government and described how interrogators used coercion and abuse to extract false confessions from him. Al Rabiah’s lawyer, David Cynamon, has demanded an investigation from the Senate Armed Services Committee and the inspectors general of the Defense and Justice departments, as well as from Attorney General Eric Holder. He has not received a response.

The situation sounds reminiscent of the case of Mohammed Jawad, an Afghan teenager who a military commission judge had similarly ruled was “tortured” and coerced into confessing to throwing a grenade at U.S. soldiers. The bulk of his case was based on his coerced statements, and was eventually thrown out by the military commissions and dropped by the Justice Department.

Jawad’s military lawyer, David Frakt, complained repeatedly to senior Defense Department officials that he believed U.S. military personnel had committed war crimes in connection with his client. As TWI documented in September, Frakt never received a response, and the matter appears never to have been investigated.

Jawad is now back in Afghanistan. Al Rabiah’s future, however, remains in doubt. Although the Justice Department has said it won’t appeal his order of release, a military commission case is still pending against him.

Somehow, these documents had slipped through the cracks before, the administration acknowledged recently. That is, the Justice Department learned that they existed due to references to them in court filings made during the Bush administration. But Obama Justice officials just couldn’t find them. (The government’s detailed explanation of how this all happened can be found here.) The documents were apparently discovered in September, according to the government’s court filing, and sent to the CIA and other agencies for review. Depending on whether the contents turn out to be classified or can otherwise be held under the FOIA, we may see more torture-related documents released Friday.

Running through the list of situations that we’ve been reporting on in which the Obama administration continues to conceal evidence of torture — from the efforts of British resident Binyam Mohamed to seek justice for his “extraordinary rendition” and torture; to the administration’s continued efforts to dismiss cases alleging government-sponsored torture and illegal wiretapping by raising the “state secrets” privilege; to President Obama’s continued insistence on hiding photos of brutal detainee abuse — The Times highlights how President Obama, despite his grand promises of openness and accountability in the early days of his administration, has caved to Republicans and some conservative Democrats who want to bury the evidence of criminal and moral wrongdoing by the United States government.

“We do not take seriously the government’s claim that it is trying to protect intelligence or avoid harm to national security,” The Times writes. And it shouldn’t. As we’ve pointed out repeatedly at TWI, the outlines of our government’s abusive and in some cases criminal conduct is already well-known and can hardly endanger us further. Only by unearthing, acknowledging and accounting completely for the past can the new administration finally move beyond it to focus, unencumbered, on making sure it does not happen in the future.

In September 2008, a U.S. military judge ruled that Mohammed Jawad, an Afghan arrested as an adolescent in 2002, imprisoned at Bagram and then at Guantanamo Bay, had been subjected to “cruel and inhuman treatment” by the U.S. military.

Specifically, Judge Stephen Henley, a U.S. Army colonel, found that the military had subjected Jawad to the so-called “frequent flyer” program: he’d been “moved from cell to cell 112 times from 7 May 2004 to 20 May 2004, on average of about once every three hours.” Jawad was shackled but not interrogated; “the scheme was calculated to profoundly disrupt the his mental senses.” Jawad was accused of throwing a hand grenade at U.S. soldiers, though a court later found there was no reliable evidence to support the charge.

The alleged purpose of the “frequent flyer” program, Judge Henley wrote, was “to create a feeling of hopelessness and despair in the detainee and set the stage for successful interrogations.” But by the time Jawad was subjected to it, he “was of no intelligence value to any government agency,” Judge Henley ruled. “The infliction of the ‘frequent flyer’ technique upon the Accused thus had no legitimate interrogation purpose.” (It’s worth noting that interrogation experts say sleep deprivation doesn’t help interrogations even if the subject does know something.)

This 13 consecutive days of sleep deprivation, the judge concluded, constituted “abusive conduct and cruel and inhuman treatment.”  Judge Henley also acknowledged that it violated the United Nations Convention Against Torture, to which the United States is a signatory.

What’s more, 13 days of “frequent flying” also violates the rules set out by the Justice Department’s Office of Legal Counsel. As I’ve pointed out before, those allowed anywhere from 48 hours to 180 hours of sleep deprivation on “high-value” detainees. But OLC memos never condoned 13 days straight of sleep deprivation on anyone, let alone someone like Jawad, who was at best an al-Qaeda or Taliban foot soldier.

In fact, as the Senate Armed Services Committee report on the treatment of detainees by the U.S. military notes, the “frequent flyer” program “was not on the list of 24 techniques OLC advised the DoD General Counsel were permitted.” The report added: “The Committee is unaware of a request from DoD to OLC for legal guidance on whether that technique comported with techniques on that list of 24 approved by the Secretary.”

Last week, Walter Pincus wrote in The Washington Post about the case of Lt. Col. Allan West, who allowed his soldiers to beat up an Iraqi police officer and threaten him with a knife and a gun to convince him to give up information. The CIA is now reportedly outraged that Attorney General Eric Holder would authorize an investigation of its agents for crossing the lines of permissible interrogations while the military guys are getting away with it.

Walter Pincus and his CIA source were right: the Department of Defense violated the rules just like the CIA did.  When it comes to whether the attorney general should prosecute, the difference may simply be that soldiers are subject to the military’s own disciplinary system rather than the usual criminal laws.

Jawad’s case is actually worse than the West case, since the military knew by the time they abused Jawad that he was of no intelligence value; so with Jawad, it was cruel and inhuman treatment just for the sake of it.

But what if the military didn’t discipline or prosecute anyone, or even investigate? The military judge’s ruling in Jawad’s case was only for the purpose of deciding whether his military commissions case should be dismissed or the evidence of his confessions under torture suppressed. (The judge chose the latter.)

Yesterday I spoke to Eric Montalvo, Jawad’s former military defense lawyer who’s now in private practice and plans to represent Jawad in a lawsuit against the U.S. government. He said that during the military commission proceedings, Jawad’s defense team “asked for an investigation that was never conducted.” He’s not aware of any investigation conducted since then.

If the military refuses to investigate, should the Department of Justice step in?  Or if it’s beyond the DOJ’s jurisdiction, how about a commission inquiry?  The military judge’s ruling in the Jawad case would seem to provide even more support for the argument that a broader investigation is necessary.

David Johnston of The New York Times reports today, based on an anonymous source briefed on the report, that despite the fact that the Justice Department under President George W. Bush refused to prosecute, the Justice Department’s Office of Professional Responsibility believes, as an ethical matter, the DOJ now has to prosecute those abuse cases.

The OPR report was apparently provided to Holder at some point over the last few weeks.  And its conclusions are being leaked to the media just as Holder is expected to make a decision to re-open those cases that the Bush administration had rejected.

Last week, GOP senators — including Kit Bond (R-Mo.), Jeff Sessions (R-Ala.) and Jon Kyl (R-Ariz.) –  wrote to Holder and urged him not to prosecute those cases, warning that prosecutions would “chill future intelligence activities.” (Never mind whether or not the conduct was illegal.)

The latest ethics report now strengthens Holder’s hand.

“There are no court rules or rules in the military commissions that would prohibit showing detainees photos “as long as you obtained them from an unclassified source, and they weren’t otherwise covered by a protective order,” said Dratel.

In general, lawyers cannot show their clients information that is classified. And like anyone else, they can’t intentionally reveal the identity of a covert CIA agent knowing that the agent is or recently was playing a covert role with the CIA. It’s not clear if any lawyers showed their clients photos of interrogators who were acting covertly, but it’s also unclear how an official questioning a terror suspect on behalf of the CIA would be covert.

In any event, defense lawyers are troubled that the Justice Department decided to leak news of the investigation to reporters. The Washington Post and The New York Times both reported the story this morning.

“It’s unfortunate that someone in a position to know better decided to go public with this and attempt to smear people in a way that they can’t do legally,” Dratel said. “The investigation is something that’s extraordariny not only for the fact that it’s occurring, but for how it’s occurring, with people being confronted by law enforcement,” said Dratel.

Government agents reportedly approached three lawyers from the Judge Advocates General’s Corps two weeks ago and informed the military lawyers of their right to remain silent, then asked whether they’d shown their clients photos of CIA officials.

“Normally, when a prosecutor wants to subpoena a lawyer, they have to get permission and jump through a lot of hoops,” said Dratel. “I see this as heavy-handed.”

It also could be a way to intimidate the lawyers from aggressively defending their clients. Yesterday, American Civil Liberties Union president Anthony Romero vigorously defended the defense lawyers, who are receiving assistance from the ACLU through the John Adams Project, which has organized private attorneys to assist the military lawyers in defending terror suspects.

“Identifying who tortured our clients and what they did to them and when is an essential part of defending their interests in these sham proceedings,” Romero told The Times.

If, as the latest reports indicate, Attorney General Eric Holder is serious about prosecuting the worst torture and abuse of “war on terror” prisoners that occurred during the Bush administration, then there’s some key evidence he’s going to want to take a look at:  photographs. Although Bush Justice Department prosecutors claimed they didn’t have the facts to support prosecuting anyone for the mysterious deaths and disappearances of detainees hauled out of Bagram and Abu Ghraib in body bags, the photographs – which two courts have now ordered the Obama administration to turn over – would seem likely to provide some of the missing evidence.

The photos I’m talking about are the same ones that, back in April, President Obama promised to release to the public by May. Then, after consulting with Defense Department and CIA leaders, he changed his mind. After the American Civil Liberties Union filed a Freedom of Information Act lawsuit to obtain them, the photographs were ordered released by  a federal district court in New York in 2005 and then the court of appeals in 2008; both courts agreed that the photos are critical to the public debate over torture and the U.S. government’s counterterrorism tactics, and don’t fall under any exemption to the freedom of information law. Still, the Obama administration isn’t budging.

While the case was on appeal, lawyers from the same Washington law firm that Holder was then working at, Covington & Burling, wrote a powerful brief on behalf of 22 legal experts on the laws of war arguing for the photos’ release. These sorts of images are in part responsible for the regime of international humanitarian law that we have today, they argued.

The cornerstone of modern international humanitarian law — the Geneva Conventions of 1949 — was adopted after the release of vivid images of Nazi concentration camp survivors. And it was the United States and General Dwight D. Eisenhower himself who insisted on distributing huge volumes of these photos to the media. The images of corpses, prisoner remains and emaciated survivors helped persuade nations around the world to develop and adopt new universal humanitarian norms.

It’s because images can be so powerful and can motivate action that the Obama administration now wants to suppress them.

On Friday, the Justice Department filed a petition with the Supreme Court arguing that releasing the photos of detainee abuse would so inflame public opinion against the United States abroad that it would endanger the lives of U.S. soldiers stationed in Iraq and Afghanistan.

(Initially, the government refused to turn them over on the grounds that they would violate the privacy rights of the detainees. After the ACLU and the court agreed to have the photos redacted to conceal identifying information and protect personal privacy, the government came up with this second reason to object.)

On its face, the argument sounds pretty reasonable. I have to admit that when the administration first announced its change of heart, though Glenn Greenwald, Andrew Sullivan and many others were immediately outraged, I was somewhat sympathetic. After all, the Freedom of Information Act does include an exception to releasing information if it would reasonably be expected to “endanger the life or physical safety of any individual.” The photos of abuse at Abu Ghraib were certainly alarming. And who would want to endanger the lives of U.S. troops?

Meanwhile, the Justice Department had collected sworn statements from top military generals — including General Richard Myers, then the Chairman of the Joint Chiefs of Staff and the Nation’s highest ranking military officer — saying that releasing the photos would do just that. Who are we to question the top brass?

Amrit Singh, an ACLU lawyer handling the case, answered that for me yesterday. “The argument the government has put forward is unacceptable because it would afford the greatest protection from disclosure to records that depict the worst kind of government misconduct. That is fundamentally inconsistent with FOIA. And it’s fundamentally inconsistent with democracy.”

It’s a good point. Though I want to protect our troops as much as anybody, it turns out the law wasn’t drafted to protect Americans from retaliation that might result because their country did something illegal, or even just really embarrassing. If it were, then evidence of any illegal or upsetting U.S. government conduct would be exempt from disclosure. And that would defeat the entire purpose of the Freedom of Information law.

According to the Supreme Court, the purpose of FOIA is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” So you can see how that would be seriously compromised by the government’s interpretation of the law here.

It turns out that when you look at the language of FOIA, the government’s interpretation doesn’t make much sense either.

Exemption 7(f) allows an agency to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information … could reasonably be expected to endanger the life or physical safety of any individual.”

But does “any individual” mean any conceivable individual out there, or some specific individual that the government can identify?

The appeals court ruled that because Congress said the release must endanger “any individual” rather than just “endanger life or physical safety” generally to be considered exempt, Congress must have meant some identifiable individual – a particular witness to a crime or subject of a law enforcement investigation, for example. If Congress had meant to include any member of a group of people who could possibly become the target of someone’s anger, it would have used the more general phrase, the court reasoned. So the court ruled the exemption doesn’t apply, and the Obama administration has to turn over the photographs.

Now, the administration faces a dilemma. When it released the Office of Legal Counsel memos written by the now-infamous John Yoo authorizing the administration to torture prisoners abroad, it wasn’t prepared for the media firestorm that erupted — and the growing public pressure to prosecute. Reluctant to face that again, Obama and senior officials in his administration are trying hard now not to stoke the fires. (Even if they can go along with a limited prosecution along the lines of what Holder has described, they certainly don’t want to face calls for prosecuting senior Bush officials.)

But it looks like they can’t legally stop this release.

Sill, they can delay it. Supreme Court review could delay the case months or even years, depending on what the court decides to do. In the meantime, other reports will be released about the Bush era anti-terror tactics. Those include the Senate Intelligence committee’s investigation led by Sen. Dianne Feinstein (D-Calif.), the report from the ethics division of the Justice Department, the Office of Professional Responsibility, on the work of the Justice Department lawyers who crafted the memos, and, of course, the 2004 CIA inspector general report I wrote about earlier that’s supposed to be released by Aug. 24.

Which raises the question whether the government will invoke Exemption 7(f) of FOIA to try to withhold that report. After all, couldn’t the government make the exact same argument about the CIA report that it’s making about the photos? You see the slippery slope we’re on.

The CIA report apparently describes cases of murder and abuse so horrific that Holder was moved to consider initiating prosecutions. And that’s despite the fact that the Justice Department under President George W. Bush investigated those cases, but decided not to prosecute them. That report must be pretty upsetting.

So don’t be surprised if we start hearing that we shouldn’t be allowed to see that one either, because someone somewhere might get hurt.

The administration could, of course, try to distinguish the report from the photographs, arguing that, essentially, a picture is worth a thousand words. The photos may be just too powerful.

When faced with the atrocities of the Nazi concentration camps at the close of World War II, Eisenhower found that words failed him:

I have never felt able to describe my emotional reactions when I first came face to face with indisputable evidence of Nazi brutality and ruthless disregard of every shred of decency. Up to that time I had known about it only generally or through secondary sources. I am certain, however that I have never at any other time experienced an equal sense of shock . . . as soon as I returned to Patton’s headquarters that evening I sent communications to both Washington and London, urging the two governments to send instantly to Germany a random group of newspaper editors and representative groups from the national legislatures. I felt that the evidence should be immediately placed before the American and British publics in a fashion that would leave no room for cynical doubt.

-Dwight D. Eisenhower, Crusade in Europe (1977), at 408-09.

One can only conclude that the Obama administration is taking refuge in that doubt, or is not prepared to face the consequences in this country once the veil of doubt is lifted.