The Obama administration, like the Bush administration before it, has argued in this case that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.

The four men — Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal al-Harith — were captured in late 2001 in Afghanistan and transferred to Guantanamo in early 2002. They were returned to the United Kingdom in 2004.

Represented by the Center for Constitutional Rights and Washington, D.C., lawyer Eric Lewis, the four men sued former Secretary of Defense Donald Rumsfeld, the Chairmen of the Joint Chiefs of Staff, and senior military officers for prolonged arbitrary detention, torture, cruel and unusual punishment, and denial of their religious rights. The former prisoners say they were subjected to repeated beatings, sleep deprivation, extremes of hot and cold, forced nakedness, death threats, interrogations at gun point, menacing with unmuzzled dogs, and religious and racial harassment.

In the process, he came across a curious fact. About three years ago, he says, the “entire prisoner death reporting system was turned off in Afghanistan.” And in Iraq, it was “turned off” at the beginning of 2008.

Before that time, says Miles, who’s on the board of the Center for Victims of Torture, the Department of Defense issued press releases about deaths of detainees in its custody. Miles was tracking those deaths and the role of physicians for his book, which was recently updated and republished as Oath Betrayed: America’s Torture Doctors by the University of California Press.  (The Pentagon never reported the deaths of detainees subjected to “extraordinary rendition,” he says — that is, those sent to other countries for interrogation, and sometimes to be tortured.) But the Pentagon did, at least, report some deaths of the prisoners it acknowledged it had in its custody.

Then “they just stopped reporting it,” says Miles. The press releases stopped.

It couldn’t be that no one died, Miles added, because “you have a certain expected death rate based on the size of the population. I’ve been able to trace all public death reports and can show when they turned them off.”

According to a draft paper he’s written, now being prepared for publication in the American Journal of Bioethics:

In May 2004, shortly after media published photographs of lethal abuse at Abu Ghraib prison, DoD disclosed 22 prisoner deaths; of which 12 (54%) were attributed to natural causes. DOD did not disclose another 67 deaths that occurred during that same period. Only 13 (15%) of the total 89 deaths were due to natural causes. By the end of 2008, 93 of 165 known decedents (56%) are unnamed. Death certificates are available for 37 (22%). Homicides and shelling of prisons are the leading causes of death. DoD has completely suppressed prisoner death reports from Afghanistan since 2004 and adopted a similar policy for Iraq in 2008.

The New York Times also reported back in 2004 that the Defense Department had provided incomplete or inaccurate information about deaths of prisoners in its custody.

I’ve asked several different spokesmen at the Department of Defense over the last few days to respond to this charge, to explain its policy for reporting detainee deaths, and to explain if that policy has changed since 2003. So far, I have received no response. 

But Devon Chaffee, Advocacy Counsel at Human Rights First, which reported in 2006 on about 100 deaths in U.S. custody since 2002 that it was able to learn about, was not surprised.

“Our report found that commanders failed to report deaths in custody. Sometimes they reported them days or weeks later. But there clearly was a reporting problem. Some were simply not reported at all,” she added, although Army regulations require that any deaths in U.S. custody be reported within 24 hours.

The report issued by Human Rights First, called Command’s Responsibility, found that from August 2002 until the release of the report in February 2006, nearly 100 detainees had died “while in the hands of U.S. officials in the global ‘war on terror.’”  Although the military had classified 34 of those cases as suspected or confirmed homicides, Human Rights First “identified another 11 in which the facts suggest death as a result of physical abuse or harsh conditions of detention. In close to half the deaths Human Rights First surveyed, the cause of death remains officially undetermined or unannounced. Overall, eight people in U.S. custody were tortured to death.”

In an ordinary war, the deaths of detainees would have to be reported publicly pursuant to the Geneva Conventions. But because President Bush early on declared that detainees in the “war on terror” are not technically “Prisoners of War” entitled to the protections the Geneva Conventions affords them, the U.S. military was apparently able to get around that reporting requirement.

Although at least some officials in the Obama administration have declared the “war on terror” over, the Obama DOD appears not to have resumed regular reporting on the deaths of prisoners in custody, says Miles. “It’s still shut down,” says Miles of the reporting system. “Obama hasn’t opened it up. It’s just mysterious to me.”

In the meantime, human rights organizations such as Human Rights First and others haven’t had the resources to keep their report of detainee deaths up-to-date, says Chafee.

I’ll report more as soon as I hear back from the Department of Defense about what their reporting policy is, whether it’s changed, and why human rights organizations have counted more deaths in custody than the government has acknowledged.

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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.

The last time I wrote about the case of Mohamed v. Jeppesen, the Obama Justice Department was asking the Ninth Circuit Court of Appeals to re-hear the case, after a three-judge panel of that court refused to dismiss the victims’ claims on the grounds that the lawsuit would allegedly reveal sensitive “state secrets.” (For an excellent piece about the “state secrets” privilege and its dubious origins, listen here to “The Secret Life of Secrets” from last Sunday’s NPR program, This American Life.)

Because the lawsuit has so far been stalled and there’s no other apparent recourse with the U.S. government, the ACLU, which represents the plaintiffs in the Jeppesen case, has asked the U.N. human rights experts to investigate the circumstances surrounding Britel’s arrest, detention and interrogation in Pakistan and his secret transfer to Morocco; his imprisonment there without charge or trial; and his abusive interrogation there.

According to the ACLU, “Britel is one of the few victims of the United States’ “extraordinary rendition” program whose identities are known, and the only European citizen, to our knowledge, still detained. To this day, Britel remains incarcerated in a Moroccan prison.”

Nahal Zamani of the ACLU’s Human Rights Program recently spoke with Britel’s wife, Italian citizen Khadija Anna Lucia Pighizzini, and has posted an excerpt and translation of their conversation here.

It ends with this statement of hope from Pighizzini, which is extraordinary given that her husband has been imprisoned, tortured and abused since 2002, all without any logical explanation:

As for me, I am always tired, and always waiting. It’s been over seven long years since Kassim disappeared. These years have been so painful, but I know that the injustice that I’ve gone through will soon be over. I haven’t given way to hate; nor has Kassim. Instead, we’re waiting for his liberation. We want to live our lives, and to reclaim our rights to live in dignity as citizens and human beings. We look towards to the future; when truth will be heard, when our rights will be restored and when justice will finally be served.

Senior Democrats have told me that they might look at the possibility of were there false statements made to Congress, was there any perjury, when some of the people involved in policy and legal parts of all of that appeared before Congress a few years ago. Now things have been declassified, compare them and see, is there anything there. A different way to go at accountability of the so-called torture memos.

Here’s the video, via Think Progress (after the jump):

The Inter-American Commission, an arm of the Organization of American States — of which the United States is a member — normally sits in judgment of countries like Argentina and Chile, whose histories of torturing and “disappearing” political opponents and committing war crimes are notorious. But there were the commissioners, from various Latin American countries, listening to the arguments of Center for Constitutional Rights President Michael Ratner and ACLU human rights program director Jamil Dakwar, that the Bush administration had enacted laws and taken steps in litigation to shield itself from accountability for such crimes — and so far, the Obama administration had not changed those policies.

In particular, Ratner was talking about provisions of the Military Commissions Act of 2006 that provides immunity for Bush administration officials who authorized torture of military combatants, violated the Geneva Conventions or otherwise broke the law on the advice of government lawyers. He also cited the positions that the Bush and Obama Justice Departments have taken in seeking to dismiss cases on the grounds that they would expose “state secrets” or otherwise interfere with executive powers.

Dakwar recounted the story of German citizen Khaled el-Masri, an ACLU client who claims he was tortured at a CIA “black site” but whose case was dismissed because of that “state secrets” privilege.

And both lawyers argued that a truth commission, along the lines of one proposed by Senator Patrick Leahy (D-Vt), if it provided immunity and foreclosed prosecutions would never be an adequate substitute for criminal prosecutions, which they argued are critical to holding the United States accountable for violations of international law.

“That’s the way to demonstrate that those violations will not be tolerated and wil not be repeated,” said Ratner. “Otherwise what you’re faced with is impunity … A commission can’t be used as a substitute for criminal liability.”

Lewis Amselem, the U.S. representative to the commission, for his part, respectfully listened to the list of charges and nodded. He responded with his own list of all the pronouncements the Obama administration has made about closing Guantanamo, ensuring the prison meets Geneva Conventions standards, and reviewing the cases of every detainee to facilitate their eventual transfer. He didn’t defend any of the particular provisions of the Military Commissions Act or the legal positions of the Justice Department as described, but promised to bring the concerns back to the State Department. He promised to report back to the commission with the administration’s policy on a truth commissions, as well as to answer questions from the commissioners about how many Americans have been prosecuted for torture in military and civilian courts.

Ratner, however, was ready with the answer:  “None.”

Although there have been cases brought through the military system charging assault of prisoners, only lower level military people at Abu Ghraib were charged, “under the theory of the Bush Administration that this was not a policy or practice of the United States, it was just a few bad apples.”  Prosecutors “only had authority to look down the chain of command, not up the chain of command,” said Ratner.

While the commission’s rulings are not binding, it has authority to make recommendations to the U.S. government. Lawyers involved said they expected those to be issued within the next few weeks.

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Noting both the pressures to leave the past behind on one hand, but also to prosecute Bush officials on the other, Leahy reiterated his call for a “middle ground” that would involve the “formation of a commission of inquiry dedicated to finding out what happened.”  This is “not for the purpose of criminal indictments, but to assemble the facts, to know what happened, and to make sure mistakes are not repeated.”  He reminded the senators that a recent Gallup poll found that more than 62 percent of Americans polled favored some sort of investigation of criminal activity by the Bush administration.

“I’ve seen what’s happened before with prosecutions,” added Leahy, clearly anticipating some objections from the left. “We don’t find the whole truth, but prosecute those on the way bottom of the chain of command.”

Noting that former Vice President Dick Cheney has continued to defend the Bush administration’s tactics, including torture, Leahy said: “We need an independent inquiry that’s beyond reproach and outside of partisan politics.”

Sen. Sheldon Whitehouse (D-R.I.), spoke afterward in support of Leahy’s proposal.

Under the previous administration, Whitehouse said, “we saw U.S. attorneys fired for political reasons, the civil rights division run amok, we saw theories that the president can secretly ignore his own executive orders, and saw those office of legal counsel memos approving interrogation techniques long understood and long known to be torture.”

“If we blind ourselves to this history, we deny ourselves these lessons,” he continued. “We cannot set aside our responsibility to take an accounting of where we are, what was done and what must now be repaired.”

According to Leopold, OPR director H. Marshall Jarrett reached “damning” conclusions about the advice of John Yoo and other lawyers in the Office of Legal Counsel during the Bush administration, which rose to the level of “misconduct.”

“OPR investigators determined that Yoo blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals,” Leopold writes, based on confidential sources who’ve seen the report.

The OPR report criticizes, for example, Yoo’s reliance on an obscure Medicare reimbursement statute to narrow the definition of torture so much that it would permit waterboarding and other extreme interrogation techniques that have long been considered torture under U.S. law.

To those who have been following the politicization of the Justice Department under former President George W. Bush and the origins of Yoo and other OLC lawyers’ legal memos, none of this will come as a big surprise.  But the fact that a office within the Justice Department reached those conclusions is significant, as it provides one more official piece of evidence that the Bush administration’s defense that it was just relying on the advice of its lawyers when it came to the treatment of detainees, and that the lawyers’ advice shields all those senior officials from prosecution, is disingenuous.

As I’ve explained before, if those legal memos were not reasonable professional opinions, or if they were solicited to justify existing policies rather than to set new ones in accordance with existing law, then Bush officials could see their presumed “golden shield” quickly disintegrate into a heap of worthless straw.

Sens. Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) reportedly sent a letter to Jarrett this morning seeking more information about why the report is being kept secret.

Let’s add this OPR report to the growing list of documents that President Obama ought to quickly de-classify under his new Freedom of Information Act policy.

Update: Here’s a key paragraph from the Durbin/Whitehouse letter, which Jason Leopold just sent me:

We agree with Attorney General Eric Holder and CIA Director Leon Panetta that our intelligence professionals should be able to rely in good faith on the Justice Department’s legal advice.  This good faith is undermined when Justice Department attorneys provide legal advice so misguided that it damages America’s image around the world and the Justice Department is forced to repudiate it.  If the officials who provide such advice fail to comply with professional standards, they must be held accountable in order to maintain the faith of the intelligence community and the American people in the Justice Department.

The lead story in The New York Times Sunday serves as a sobering reminder of what can happen when government tries to spend a lot of money quickly, but doesn’t bother to keep track of where it’s going. In Iraq, no-bid contracts and nonexistent oversight led not only to brand-new trucks abandoned on roadsides and $45 cases of soda, but also to tens of thousands of dollars in cash delivered in pizza boxes and distributed as payoffs in paper sacks at drop-off spots around the Green Zone, according to a widening government investigation detailed by The Times.

The stimulus package goes a long way to keep that particular history from repeating itself.

For example, the bill creates a new board to oversee and coordinate federal spending and prevent “waste, fraud and abuse.” Any agency’s inspector general can review concerns about spending under the program, and the General Accountability Office (GAO) will conduct regular and reports on how the money is being spent. All this, plus a summary of the contracts themselves (the House bill had promised to put the entire contracts online—this was a concession to government contractors) are required to be posted online at www.recovery.gov.

The bill also requires the government to put most contracts up for competitive bidding  — a sharp departure from business-as-usual under the Bush administration — and if for some reason the contract is not competitive, the government must publish a  justification for the exception.

But it’s disappointing that Congress scaled back its pledge to post the final contracts. Government contractors’ lobbyists had pushed hard against publishing the contracts, claiming they were worried about proprietary information (which the draft bill would have allowed them to redact) and in the end, they won out. It’s not clear what a “summary” of the contracts means and how much detail they’ll include. For example, will we know if KBR is again charging $100 to wash a bag of laundry?

The nonpartisan watchdog Taxpayers for Common Sense has been cautiously optimistic about the stimulus bill, while applauding the tracking Website, the oversight panel, and the nearly $200 million to be provided for inspectors general and $25 million for the Government Accountability Office — which provide critical independent oversight.

But there are also some concerns. In addition to the unpublished contracts, some of the important accountability measures proposed by Sen. Claire McCaskill (D-Mo.), who has been a strong proponent for accountability in this bill, were not adopted. (McCaskill proposed and won important new whistleblower protections for employees of government contractors that had been left out of earlier versions of the bill.)

As Clint Hendler of Columbia Journalism Review reports, the oversight portion of the final bill (pdf) cut McCaskill’s proposed requirement for transparency in local and state contracts funded by stimulus money. McCaskill had been trying to get those contracts tracked on the recovery.gov website as well; instead, only federal funds will be tracked.

That’s too bad. But as Hendler also points out, the bill creates a floor, not a ceiling, for accountability of stimulus spending.

President Obama, meanwhile, has touted recovery.gov as a site that will “report on where the money is going in your community, how it’s being spent, how many jobs are being created so that all of you can be the eyes and ears. … The key is that we’re going to have strong oversight and strong transparency to make sure this money isn’t being wasted.”

It’s up to his administration now to make sure that happens.

Ever since Pentagon official Susan Crawford said she had to suspend the military commission prosecution of Mohammad al-Qahtani because he was tortured by U.S. officials, and Attorney General-nominee  Eric Holder said unequivocally last week that waterboarding is indeed torture –- something legal experts have been saying for a long time — legal scholars, advocates and bloggers have been buzzing that it may now be impossible for Obama, and Holder, to simply ignore the evidence of war crimes.

As Jennifer Daskal, a senior lawyer at Human Rights Watch told the New York Times: “It would be contrary to the principles of the criminal justice system for the attorney general to say he believes a very serious crime has been committed and then to do nothing about it.”

Salon’s Glenn Greenwald laid out the case in his blog on Sunday, arguing that it’s no longer optional. Given that the United States is a party to the United Nations Convention on Torture – a treaty signed by President Ronald Reagan –- and that the U.S. Constitution holds that international treaties are the highest law of the land, the United States really doesn’t have a choice: “U.S. law requires prosecutions for those who authorize torture,” writes Greenwald.

Even Charles Stimson, the top official on detainee affairs at the Defense Department from 2004 to 2007 and now a senior fellow at the Heritage Foundation, told The Times that last week’s statements from Holder and Crawford “certainly will increase the pressure on Holder to mount some kind of investigation.”

Internally, Obama has likely gotten plenty of mixed advice on the subject. As I’ve written before, senior Obama advisor Cass Sunstein — a TWI contributor who’s since been named to head the Office of Information and Regulatory Affairs — is one of many close to Obama who’ve been, at best, lukewarm about the idea of prosecutions in the past.  And Holder, though he’s taken a clear stand against torture — and now waterboarding — has never said directly that the United States must prosecute the crime, even if American officials have committed it.

Here’s what Holder said at his confirmation hearing last week, responding to Senate Judiciary Chairman Pat Leahy (D-Vt.):

HOLDER: Mr. Chairman, no one is above the law. The president has a constitutional obligation to faithfully execute the laws of the United States. There are obligations that we have as a result of treaties that we have signed — obligations, obviously, in the Constitution. Where Congress has passed a law, it is the obligation of the president, or the commander-in-chief, to follow those laws.

But is it also the obligation of the president, and his attorney general, to prosecute when those laws have been broken?

Eugene Volokh over at The Volokh Conspiracy doesn’t think so. “Prosecutors have enormous discretion,” he writes, and “the DOJ has more pressing concerns,” which is why it didn’t prosecute Eliot Spitzer for cavorting with call girls.

Still, officially-sanctioned torture is much more serious, and has far more broad-reaching implications, both domestically and for U.S. foreign relations, than Eliot Spitzer’s strange (and costly) sex habits.

But Volokh makes one good point. The next administration’s decision about whether to prosecute the current one will ultimately come down to a political calculation: Is the public really clamoring for it, and how loudly?  And is it worth embarrassing the Democratic senators and representatives in Congress who were briefed on the torture, humiliation and other “extreme” techniques being used to squeeze information out of detainees, and failed to object?

Despite the strong case being made in favor of prosecution, Volokh’s probably right that it will come down to politics.  That means it will depend on how strongly Americans insist that the new administration deliver what Eric Holder has promised: faithful execution of the law.