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.

Also tomorrow, after numerous delays, the Obama administration is expected to produce a much-anticipated 2004 CIA inspector general’s report with more details and criticism of the Bush administration’s interrogation tactics.

As I explained in my last post on the Jawad case, the Obama administration is trying to keep holding Jawad — who’s been in U.S. custody without charge for almost seven years — based on those tortured confessions, which even a military judge previously deemed too unreliable to use in his military commission case.

The ACLU will argue tomorrow that the federal judge in Jawad’s habeas corpus case should rule that evidence gathered through torture is still too unreliable — and therefore inadmissible — to be the basis for continuing to keep him in prison indefinitely.

Although the Jawad case appears to be the first in which the Obama is seeking to rely on evidence obtained through torture, it’s just one of many examples of the government’s refusal to acknowledge the legacy of torture under the Bush administration — and its consequences.

There are, of course, the now-notorious photographs of detainee abuse that the Obama administration has kept from being released, despite the orders of a federal court to turn them over. And then there’s the fact, which Glenn Greenwald, Marcy Wheeler, Daily Kos and John Sifton have been writing about, that there are a whole lot of unsolved murders and mysterious autopsy reports concerning the brutal deaths of detainees in U.S. custody, for which almost no one has been held accountable.

In many cases, these deaths weren’t the result of waterboarding or some other act that Obama administration officials have admitted are torture; they seem to have been the result of ordinary “enhanced” interrogations:  beatings, stress positions, food and sleep deprivation and the like.

According to a report from Human Rights First, about 100 detainees have died in U.S. custody since August 2002, but only 12 deaths have resulted in punishment of any kind for U.S. officials.

The ACLU has embarked on an important campaign for accountability for the torture and abuse that U.S. officials have inflicted on detainees. That includes ongoing efforts to unearth more information, to press for prosecutions of those who authorized the abuse, and to compensate the victims, many of whom, like Jawad, still remain in U.S. custody.

Tomorrow’s brief arguing that tortured evidence shouldn’t be the basis for continuing to hold detainees is a small but important step.

Supreme Court of the United States (WDCpix)

In denying the right of a Muslim Pakistani immigrant to sue former Attorney General John Ashcroft and FBI director Robert Mueller for his prolonged imprisonment and harsh treatment based on his religion and national origin, the Supreme Court on Monday raised the bar for plaintiffs seeking to sue high-level government officials for policies carried out by their subordinates.

Illustration by: Matt Mahurin

Some in the media have reported that the decision revokes a detainee’s right to sue a public official for wrongful detention or mistreatment. In fact, the ruling was tailored narrowly, leaving the door open to such suits in the future. Yet it remains unclear how specific the plaintiff’s claims must be for a court to allow the case to proceed against high-level officials who condone unconstitutional practices.

In a sharply divided 5-4 opinion, Justice Anthony Kennedy, writing for the majority and joined by the conservative wing of the court, wrote that Javaid Iqbal had not set out sufficient specific facts to present a plausible case. Iqbal had claimed that after the Sept. 11, 2001 terrorist attacks the Justice Department and FBI, led by Attorney General Ashcroft and FBI director Mueller, instituted a policy that resulted in the arrests and mistreatment of thousands of men based solely on their race, religion or national origin.

Iqbal claims that in November 2001, he was arrested at his Long Island home for using fraudulent identification documents. He was designated a person “of high interest,” however, purely because he is a Muslim from Pakistan, he says. Iqbal was held for almost six months in extremely restrictive conditions in a maximum security prison in Brooklyn, N.Y., where he was segregated from the rest of the prison population and confined to a cell for 23 hours a day under a constant, blinding light. He claims that while there, his jailers “kicked him in the stomach, punched him in the face, and dragged him across” his cell without justification; “subjected him to serial strip and body-cavity searches when he posed no safety risk to himself or others,” and “and refused to let him and other Muslims pray because there would be ‘[n]o prayers for terrorists,’” according to the Supreme Court.

Although most of the mistreatment was allegedly committed by low-level guards and other officials at the prison, Iqbal claims that Ashcroft and Mueller were at the very least aware of the discriminatory detention and treatment and condoned it — or devised it — in violation of his First and Fifth Amendment rights.

Still, the court concluded that “the complaint does not show, or even intimate, that petitioners purposefully housed detainees in the ADMAX SHU [the federal prison] due to their race, religion, or national origin. All it plausibly suggests is that the Nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity.”

Since filing his legal complaint, Iqbal’s lawyers say they’ve obtained much more evidence that Ashcroft and Mueller were actively involved in developing the policy that led to the discriminatory detention of Muslim immigrants, partly because they were allowed to proceed with the case against the lower level federal defendants. In addition, three reports from the Office of Inspector General issued in 2003 confirm many of the charges that after Sept. 11, pursuant to federal policies, Muslim immigrants were rounded up and detained for prolonged periods without justification in harsh conditions, denied access to lawyers, and physically and verbally abused. But Iqbal and his lawyers didn’t know the exact role of high-level Justice Department and FBI officials when they filed the case.

In fact, plaintiffs usually don’t have all the evidence when they file a case; the evidence is usually produced in the course of the litigation. “Rarely will you know the inner workings of what happened, especially where the government is trying to keep things secret, such as after 9-11,” said Alex Reinhardt, a lawyer representing Iqbal in his case and now a professor at Cardozo Law School. “If the decision is over-read, it could have significant ramifications,” he said on Monday. “If courts require up front that you know your whole case before you file, it would be impossible to bring most cases.”

In a vigorous dissent, Justice David Souter, joined by Justices John Paul Stevens, Stephen Breyer and Ruth Bader Ginsburg, objected to the court’s imposition of these hurdles to government officials’ liability. In their view, the court’s opinion effectively “does away with supervisory liability,” because it implies that even if Ashcroft and Mueller knew that their subordinates were denying prisoners their constitutional rights and condoned it, they would not be legally responsible. The court does this, Souter wrote, even though Ashcroft and Mueller had conceded that “they could be held liable on a theory of knowledge and deliberate indifference. By overriding that concession, the Court denies Iqbal a fair chance to be heard on that question.”

Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrant Rights Project, warned on Monday that “there’s going to be a tendency to over-read the decision as creating an insurmountable barrier to these kinds of lawsuits. I think that’s a mistake. I don’t think the court’s suggesting you need to have detailed knowledge of what high-ranking officials were doing before you can have any discovery. This case turned in large part on the especially sparse allegations in the complaint,” he said, noting that much of the evidence supporting those allegations has since been produced. If they’d been cited in the case when it was filed, he said, “I think the court under its plausibility standard would have found it sufficient.”

Rachel Meeropol, a lawyer at the Center for Constitutional Rights who is representing former prisoners making very similar claims in another case, Turkmen v. Ashcroft, said that because the district court allowed her case to move forward, “we have all of that information that shows high-level official involvement in the practices we’ve complained of.” But when lawyers first bring a case, she said, they’re usually not in that position. In cases involving victims of government abuse, then, the court’s decision “gives [government officials] a sort of practical immunity from suit because only they have the specific information about what actions they may have taken,” she said.

Souter’s dissent, interpreting the majority as eliminating supervisory liability, is “a broad reading of the case,” she said. “I hope it’s not interpreted as being that far-reaching. It’s never been the case that you can hold high-level officials accountable simply because their employees did something wrong, but if they’re deliberately indifferent to the fact that their subordinates are acting unconstitutionally, that may be the basis for liability. That basis is called into question by this decision.”

Although the Supreme Court remanded the case to the court of appeals, which could allow Iqbal to replead his case, the precedent set by the court’s decision will not be so easily undone.

While some of the guards may indeed be that sensitive, given the complaints of torture and brutality we’ve heard from former Guantanamo prisoners — and recent reports that the abuse has gotten worse — I’m skeptical that they’re all quite so thoughtful.

As Guantanamo detainee defense lawyer David Remes put it to me this morning:  “Had National Geographic been to Abu Ghraib, you’d have had a similarly flattering portrait.”

Check out a clip from National Geographic after the jump.