I admit I overlooked this case, because it was initially reported as a suicide. But it’s no longer so clear that that’s the case.  now looks like that may not have been the case. Guantanamo spokesman Lt. Cmdr. Brook DeWalt told According to journalist Naomi Wolf, “the status of the investigation into Mr al-Hanashi’s death … is now a Naval criminal investigation – meaning that he is no longer considered a suicide but a victim of a murder or a negligent homicide.”

Guantanamo spokesman Lt. Cmdr Brook DeWalt, however, who I spoke to after initially writing this post, denies that interpretation. According to DeWalt, “any death is investigated by NCIS [Naval Criminal Investigative Service] on navy bases. Whether it be natural causes, whether it be suicide, criminal, across the board.”

Wolf’s “news” has just gotten a little fuzzier. What is clear, though, is that five months after al-Hanashi’s death, we still don’t know what happened to him.

In all the discussion of where the administration is going to try Guantanamo detainees, the news about Hanashi has been buried.  It’s In fact, both the Bush and Obama administrations have been extremely tight-lipped about the deaths of detainees in U.S. custody. Although the government reports when a Guantanamo detainee dies, As I’ve pointed out before, at some point the military stopped reporting the deaths of its prisoners in Iraq and Afghanistan. I’ve repeatedly asked why, and I’ve asked the Pentagon to define its current policy for reporting deaths of detainees in U.S. custody overseas.

I’ve never received any explanation. I’ll keep trying.

This post has been updated for clarification, based on DeWalt’s statement that Wolf misinterpreted his remarks.

That’s just one of several sure-to-be-controversial recommendations the group makes in a new report released Tuesday.

CAP also wants the president to prosecute the suspected 9/11 conspirators in civilian federal courts, contrary to the calls of some lawmakers, like Senators Graham, Lieberman, McCain and others who insisted they be tried only in military commissions. (Their efforts to push through legislation to that effect failed last week.)

And, despite the fact that these five men are accused of the largest mass-murder ever on U.S. soil, CAP wants the president not to seek the death penalty for any of them. “It is in the strategic interests of the United States to deny these most heinous Al Qaeda terrorists what they want most: martyrdom,” writes Ken Gude, Associate Director of the International Rights and Responsibility Program and author of the new report.

As for the use of the military commissions that the president just revived by signing new legislation last week, those “remain tainted by Bush-era mistakes, and must be limited—if used at all—to battlefield crimes in order to gain a measure of legitimacy.”

Gude also recommends limiting military detention to actual enemy fighters captured in combat zones. Right now, the administration claims the right to seize and detain indefinitely suspected al-Qaeda or Taliban terrorists found anywhere in the world.

Those concerned that the Bagram detention center in Afghanistan is becoming “Obama’s Gitmo,” as it’s increasingly called, may not appreciate Gude’s final recommendation. While Gude would imprison anyone convicted in U.S. criminal courts in U.S. prisons, as we usually do, he recommends transferring anyone now at Guantanamo who will remain in military custody — either to be tried by a military commission or simply to be detained indefinitely — to the U.S.-run prison at Bagram.

While that might sound logical, particularly given the strong political objections to transferring Guantanamo detainees to the United States, civil and human rights advocates are likely to point out that it would not only allow the Obama administration to continue — indefinitely — the troubling practice of indefinite detention, but would place those indefinitely detained even further beyond the reach of U.S. courts than they were at Guantanamo. After all, the Supreme Court ruled that Guantanamo detainees have the right to challenge their detention through a writ of habeas corpus in federal courts; most Bagram detainees, on the other hand, do not have that right.

Advocates such as Human Rights First, which issued a new, highly critical report on the detention and trials of detainees in Afghanistan this month, have complained that the military procedures there don’t afford prisoners a meaningful way to challenge their detention. The report, based on interviews conducted in April, found that prisoners were often not informed of the specific reasons for their detention, were not provided with lawyers to represent them, and were not allowed to bring witnesses to speak on their behalf or challenge the evidence presented against them.

New detention review procedures implemented in September could solve some of those problems, although detainees still don’t get legal representation. In Gude’s view, while the administration “can and should do more,” Obama officials “are making good progress on procedures at Bagram.”  Ultimately, he says, the U.S. detention system there has to be better connected to Afghan law.

Whether we ought to be placing our hopes for due process and rule of law in the Afghan legal system, which suffers from plenty of its own serious problems, is a whole other question.

Ahmed al Darbi, the brother-in-law of one of the 9/11 hijackers, supposedly plotted a never-realized 2001-2002 attack on an unnamed ship in the Strait of Hormuz. He also allegedly met Osama bin Laden and trained at an al-Qaeda camp. And he’s been imprisoned by the U.S. military since 2003 waiting to be tried on the charges.

On Wednesday, a military judge yielded to the Obama administration’s request to put off Darbi’s trial once again, postponing till January Darbi’s opportunity to present his defense.

Darbi claims the evidence against him consists of statements elicited through beatings, threats of rape, sleep and sensory deprivation, and sexual humiliation, first at the Bagram air base in Afghanistan and then at the prison camp in Guantanamo Bay.

If he’s convicted as an al-Qaeda conspirator, Darbi, 34, could face life in prison.

This is the third time the Obama administration has won a delay in Darbi’s trial on charges of a crime he allegedly committed 9 years ago.  The administration has sought to delay all military commission trials while it decides whether it should proceed with the cases in military court, drop the charges or shift them to federal civilian courts.

The Washington Post reports today that President Obama’s Guantanamo policy is in some disarray, as the administration has faced more obstacles than it expected in shutting down the detention center and deciding what to do with the 220 or so detainees still imprisoned there.

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.

The decision suggests that Guantanamo detainees may get more access to evidence that could prove their innocence than the government has hoped.

What’s gotten less attention, though, is how and why the Defense and Justice Departments “adamantly opposed” the prisoner’s request, as the judge described it in his opinion.

According to Urbina, the government claimed that allowing lawyers to submit even written questions to KSM would impose an “impermissible burden” on the government — even though KSM is imprisoned, like Rabanni, within easy reach of government officials, right at Guantanamo Bay. The government also argued that KSM could likely “transmit through any discovery responses, information that is classified at higher security levels” and that “it is impossible to know what he may reveal in his responses to interrogatories” — even if the government gets to read the responses and redact any sensitive information before turning them over to the court. (I guess the government worries he’ll be communicating to his compatriots in code, but it’s hard to imagine that after being in U.S. custody for more than six years he’d have any useful information to share.)

Urbina, quite reasonably, didn’t see how that would endanger national security, and ruled that he’ll allow the questions, so long as they’re narrowly tailored to proving Rabanni’s role, and the government gets to review and redact any sensitive information in them.

But there’s more. The government also objected to producing information about the circumstances surrounding the Rabbani’s questioning at the Bagram prison in Afghanistan and at Guantanamo Bay. Rabanni, like many detainees at Bagram and Gitmo, claims he was tortured and subjected to abusive interrogation techniques. But the government says that while he was at Bagram, he “recanted the inculpatory statements” he made in Pakistan and Afghanistan — so any other statements he made later on must not have been the result of abuse, even if he was abused again later. Therefore, the government claims, any evidence of his treatment at U.S.-run facilities is irrelevant.

Urbina didn’t buy that argument, either.  His own words explain it best:

Here, the petitioner asserts that after his capture, he was taken to the “Dark Prison,” where he was held for approximately seven months kept in the pitch dark, deprived of food and sleep, chained to a wall and threatened with hanging.  It was during this period that the petitioner allegedly “confessed” to having had a relationship with Osama Bin Laden. The petitioner asserts that he was then taken to an underground prison, where he was held for nine months, during which time he was kept cold and hungry and was subjected to frequent, threatening interrogations. The petitioner was then transferred first to Bagram and then to Guantanamo Bay, all the while subjected to harsh treatment and constant interrogation.  These allegations detail an unbroken stream of coercion, abuse and torture stretching from the petitioner’s capture in Pakistan to his more recent interrogations in Guantanamo Bay.

The mere fact that the petitioner allegedly recanted his prior inculpatory statements while at Bagram is insufficient to insulate subsequent statements from the taint of prior coerced statements, given the unbroken stream of interrogations to which the petitioner was subjected before and after Bagram as well as the highly coercive nature of the conduct alleged.

In other words, Urbina said the fact that the prisoner confessed under torture, then took back his confession doesn’t mean statements that he made later, after allegedly being tortured and abused some more, are any more reliable than his phony confession (or, for that matter, his recantation). And it certainly doesn’t mean that any evidence of his treatment at the hands of his captors is irrelevant.

Could that really be what the Obama administration’s Justice and Defense Department were arguing to the court?

You betcha.

The IG report also apparently reveals that at least one detainee was threatened with a gun and a power drill during the course of CIA interrogation.

Although Bush administration officials investigated the cases discussed in the report and concluded that no prosecutions were warranted, Attorney General Eric Holder is now considering re-opening some of those cases to see if perhaps some CIA officials, despite the wide latitude they were given by the Bush administration, went even farther than Bush-era legal memoranda said was allowed.

Lawyers have been making that argument for years now, but the United States has insisted that the prisoners at Bagram have no right to challenge their detention in a U.S. court. The Obama administration recently appealed a federal court’s ruling that some of the prisoners do indeed have that right.

Now, notwithstanding any constitutional concerns, Maj. Gen. Doug Stone is reportedly recommending that the United States completely revamp its detention policy in Afghanistan, focusing on rehabilitating rather than simply imprisoning the detainees. He also acknowledges that the vast majority of the men held at Bagram were likely swept up in raids yet had not engaged in hostilities against the United States.

As I’ve written before, many of the prisoners at Bagram have been held there for six or seven years without charge or access to lawyers. Stone worries that imprisoning them without charge or an ability to defend themselves for years will turn them into hardened anti-American radicals.

Stone’s 700-page report is not yet available, but he has reportedly briefed senior U.S. officials on his findings, including the top commander in Afghanistan, Gen. Stanley McChrystal; Ambassador Richard Holbrooke, special envoy for Afghanistan and Pakistan; and Secretary of State Hillary Rodham Clinton. Stone earlier helped revamp the prison system in Iraq.

McChrystal is expected to address the issue of detention facilities in an assessment of Afghanistan due within the next few weeks.

That may be true, but there’s an aspect of one of Brennan’s recent speeches that, if actually implemented, would have the opposite effect.

As Spencer Ackerman reported here earlier, Brennan, in his speech to the Center for Strategic and International Studies, declared an end to the “war on terror.”

“This is not a ‘war on terror,’” Brennan said. “We cannot let the terror prism guide how we’re going to interact and be involved in different parts of the world.”

Well, if that’s the case, then how is the Obama administration going to justify “preventive detention” of terror suspects under the laws of war?

That power to detain supposedly “dangerous” people who can’t be proven guilty in any sort of court is a power the Bush administration relied on heavily and the Obama administration continues to claim. It’s at the core of President Obama’s claim that there’s a class of people who cannot be tried in criminal court or even by military commission, yet still must be held in prison because they’re “dangerous.”  That’s all been justified legally by saying that we’re at “war,” and terror suspects are warriors in the “war on terror.”

Now that the Brennan has declared an end to that war, is the Obama administration willing to relinquish its right to detain terror suspects picked up anywhere in the world?

So far, Obama has not made clear how he intends to use this “preventive detention” authority he claims that he has, though it’s as broad a detention authority as Bush Attorney General Michael Mukasey claimed over a year ago. But if Brennan really has the sway over the administration that Wheeler suggests he does, then maybe Obama will soon have to concede that the “war on terror” is over — and so is his corresponding power to seize and imprison its supposed “warriors” anywhere in the world.

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.

All of this comes on the heels of a district court judge’s ruling at the end of June dismissing a habeas corpus petition by a Bagram prisoner on the grounds that the U.S. government has deemed the prisoners “enemy combatants” and Congress in the Military Commissions Act stripped federal courts of jurisdiction over their cases. In other words, they have no right to federal court review. (The Supreme Court has held that prisoners at Guantanamo Bay have the right to habeas corpus review, but has never addressed the situation of prisoners at Bagram.)

A district court had previously ruled that Bagram prisoners captured outside of Afghanistan do have habeas rights, but the Obama administration has appealed that ruling.

The new Defense Department review of the matter, reported in The New York Times today, appears to be focused not particularly on the rights of Bagram prisoners, though, but on growing worries that abuses in the Afghan prison system — to which the U.S. military transfers many Bagram prisoners — is helping the Taliban recruit new militants.

According to the Times, while the conditions at Bagram have improved since 2002, when at least two inmates died from severe beatings and abusive interrogations in U.S. custody, “conditions worsened in the larger Afghan-run prison network, which houses more than 15,000 detainees at three dozen overcrowded and often violent sites.”

The country’s justice system provides little in the way of due process for those prisoners, either. “Trials” for prisoners, often held at the prisons, involve the presentation of little or no evidence and little opportunity for the prisoners to defend themselves. The U.S. government is reportedly planning to build new courthouses in Afghanistan, but those plans aren’t very far along.

Human Rights First, which has done some of the most extensive work on the Bagram prison and the justice system in Afghanistan, is expected to release a new report on the problems there this week.