While conceding that “Torture is illegal under federal law, and the United States government repudiates it”, even now the Solicitor General stops short of acknowledging that torture directed, approved and implemented by officials of the United States is so repugnant that it also violates fundamental rights; no less so when hidden from public view at Guantánamo Bay. Respondents appear willing to let the final word on torture and religious abuse at Guantánamo be that government officials can torture and abuse with impunity and will be immune from liability for doing so. Yet whether United States officials are free to engage in despicable acts in a place wholly controlled by the United States is the pre-eminent constitutional issue of our time, and it is squarely presented to this Court for decision in this case.

Rasul v. Rumsfeld, as I’ve explained before, is one of the first lawsuits brought by victims of the Bush administration’s torture and abuse policies. The plaintiffs claim they were in Afghanistan to do humanitarian relief work when they were captured by the Northern Alliance and turned over (or sold for bounty) to U.S. authorities. They were eventually shipped to Guantanamo Bay, where they were imprisoned in cages and, they claim, tortured and humiliated, forced to shave their beards and watch their Korans desecrated. All of these claims are backed up by the legal memos that have since been produced from the Department of Justice that authorized such techniques as part of “enhanced” interrogations. The men were returned home to the UK without charge in 2004.

Many other victims of the Bush administration’s abuse policies have been precluded from suing because in 2006, Congress passed the Military Commissions Act, which stripped the federal courts of jurisdiction over claims challenging the “detention, transfer, treatment, or conditions of confinement” of detainees who were considered “enemy combatants” by the U.S. military and detained abroad. (That provision of the law is being challenged in another lawsuit filed recently, which I describe here.) The plaintiffs in the Rasul case, however, were never even deemed “enemy combatants” by the U.S. military.

Still, the Obama administration is arguing, as it is in other cases, that it was not clear that foreigners picked up in Afghanistan and sent to Guantanamo Bay had a right not to be tortured by the U.S. government. But more than that, it’s arguing — as the lawyers in the Rasul case emphasize in the excerpt from their brief I quoted above — that there is no right under the Constitution not to be tortured at Guantanamo Bay, or at any offshore American-run prison.

As the Department of Justice recently wrote in another torture case: The “Fifth and Eighth Amendments do not extend to Guantánamo Bay detainees.”

In other words, it’s not just that former detainees can’t sue Bush administration officials for torture because the law wasn’t clear back in 2002 or 2003, but the Obama administration is arguing also that there is no fundamental right not to be tortured, and therefore any government official in the future could similarly claim to be immune from a lawsuit for torture.

Eric Lewis and the Center for Constitutional Rights, who represent the four British men in the Rasul case, are now pleading with the U.S. Supreme Court to say it isn’t so, and accept their appeal from a D.C. Circuit Court ruling that dismissed the case.

The government seeks “to leave the law unsettled and to pull a cloak of immunity, now and in the future, over government torturers,” they write in their brief.

It is essential that this Court lay down a strong and clear message that officially ordered torture is abhorrent and always a violation of fundamental rights. Without this Court’s guidance, the court of appeals’ studied indifference to the torture of Guantanamo detainees remains the final word on the issue and, indeed, could provide further cover for a claim of qualified immunity in the future in the unfortunate event that the specter of torture recurs.

The men had brought the case, Turkmen v. Ashcroft, claiming that they were wrongly arrested as suspected terrorists based on racial profiling by immigration officials. They claim they were abused in detention in New York, and held for months after they were no longer suspected of being terrorists. As is usually the case with a settlement, the government did not admit wrongdoing. However, the government in 2007 charged several guards at the Metropolitan Detention Center in Brooklyn, where the men were detained, with prisoner abuse.

Another case that had similarly charged abuse of prisoners after Sept. 11, Iqbal v. Ashcroft, was dismissed by a divided Supreme Court in May on the grounds that the plaintiffs there had not alleged sufficient facts of discrimination based on race, ethnicity or religion. Lawyers in the Turkmen case at the time said that they’d had more opportunity to collect evidence supporting their case because the district court had allowed it to move forward.

Two more men who are plainitffs in the Turkmen suit did not reach an agreement with the government and will continue to pursue the case. CCR is also asking the court for permission to add five more plaintiffs to the case.

JURIST has more details.

Maher Arar is a Canadian citizen who was seized in 2002 while changing planes at John F. Kennedy airport in New York and sent to Syria, where he says he was interrogated under torture and kept in a tiny grave-like cell. He was released almost a year later without charge, and with an acknowledgment by the Syrian government that it had no evidence against him.

After conducting its own investigation, the Canadian government confirmed that Arar had done nothing wrong, apologized for its role in providing faulty information to U.S. authorities, and paid Arar about $10 million in compensation for his ordeal. The United States, on the other hand, has never officially acknowledged the error (although former National Security Adviser Condoleezza Rice once conceded in a congressional hearing that the case had been “mishandled”) and still refuses to allow Arar to enter the country.

Represented by the Center for Constitutional Rights, Arar sued former Attorney General John Ashcroft in January 2004, FBI Director Robert Meuller and other U.S. officials for sending him to Syria where they knew he was likely to be tortured. Today, the full Second Circuit Court of Appeals, which heard the case en banc in a dramatic 2-hour oral argument last December, ruled that Arar has no right to compensation from U.S. officials.

Although the opinion is long and complex, the essence of the court’s decision is that the lawsuit cannot be allowed to go forward because it would “have the natural tendency to affect diplomacy, foreign policy, and the security of the nation.” As for his claims under the Torture Victims Protection Act, Arar can’t claim compensation from U.S. authorities since it was the Syrians who tortured him, even if U.S. officials knew that he was likely to be tortured when they sent him to Syria.

The case does not bode well for other victims of the Bush administration’s “extraordinary rendition” and other abusive interrogation policies, since virtually all of those cases could similarly implicate national security concerns. The other major extraordinary rendition case, brought by five British victims of the policy against a Boeing subsidiary that assisted the CIA, is pending before the Ninth Circuit Court of Appeals. The Obama administration recently won a re-hearing in that case, which it seeks to dismiss on the grounds that the litigation itself would reveal “state secrets” and endanger national security.

The Second Circuit judges voted seven to four to dismiss Arar’s case today. In a strongly worded dissent, Judge Guido Calabresi wrote: “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

Here is the court’s opinion, filed today:

The NSA authorized its warrantless wiretapping program shortly after September 11, 2001.

After defense lawyers representing Guantanamo detainees discovered they might have been wiretapped, CCR challenged the practice in a lawsuit in New York in May 2007. But the government refused to say whether it wiretapped the lawyers or not, citing national security concerns. The federal district court sided with the government, ruling that the NSA could refuse to either confirm or deny the existence of any related records because to do so “would reveal information about the NSA’s capabilities and activities.”

The case is Wilner v. NSA and it’s being argued before the Second Circuit Court of Appeals today.

Previous cases have been dismissed on grounds that government officials had “qualified immunity” for their actions — meaning they’re immune from suit if it wasn’t clearly established that what they did was illegal — or based on the government’s claim that the case would expose “state secrets” and endanger national security.

Will the case of Mohammed Jawad, arrested around age 12, tortured and held in U.S. custody in Afghanistan and then Guantanamo Bay for the next six and a half years with no reliable evidence he’d committed a crime, be any different?

Eric Montalvo, one of Jawad’s military defense lawyers who recently entered private practice and paid his own way to accompany Jawad back home earlier this week, hopes he’ll have a better case. The fact that a U.S. military judge confirmed that Jawad was tortured by Afghan authorities, then interrogated under a range of abusive and threatening conditions by U.S. authorities, could help.

“The short answer is, factually we have a different set up given that we have judicial findings of mistreatment,” Montalvo wrote to me yesterday in an email, since he’s not back in the United States yet. “I will have to figure out which way to go to be most successful,” he added, saying it will take some time to develop and file the case.

In the meantime, the Supreme Court could weigh in on the issues. Earlier this week lawyers representing four British former detainees who claim they were tortured at CIA black sites filed a petition asking the court to review dismissal of their clients’ cases. In that case, Rasul v. Myers, the Court of Appeals in the D.C. Circuit dismissed the men’s claims, ruling that it wasn’t clear at the time that the U.S. wasn’t allowed to torture detainees. The court also ruled that they’re not “persons” within the meaning of the Religious Freedom Restoration Act, so their claims that they were denied the right to practice their religion in custody don’t count. The court interpreted that federal law to apply only to U.S. citizens or lawful U.S. residents.

The men are British citizens who were abducted by U.S. officials and imprisoned from 2002 to 2004 at the U.S.-run detention center at Guantanamo Bay. None was a member of any sort of terrorist group or ever charged with a crime.

Here’s CCR’s statement:

Responsibility for the torture program cannot be laid at the feet of a few low-level operatives. Some agents in the field  may have gone further than the limits so ghoulishly laid out by the lawyers who twisted the law to create legal cover for the program, but it is the lawyers and the officials who oversaw and approved the program who must be investigated.

The Attorney General must appoint an independent special prosecutor with a full mandate to investigate those responsible for torture and war crimes, especially the high ranking officials who designed, justified and orchestrated the torture program. We call on the Obama administration not to tie a prosecutor’s hands but to let the investigation go as far up the chain of command as the facts lead. We must send a clear message to the rest of the world, to future officials, and to the victims of torture that justice will be served and that the rule of law has been restored.

As Spencer wrote today, someone in the administration told ProPublica’s Dafna Linzner and The Washington Post’s Peter Finn that yes, civil liberties groups support the idea of an order that “would embrace claims by former President George W. Bush that certain people can be detained without trial for long periods under the laws of war.” That statement amazed the civil liberties groups that Spencer then spoke to. I’ve gotten similar reactions from civil liberties lawyers I’ve been speaking to since Friday as well.

But it turns out that there are some progressives, and some who’d even traditionally be called civil libertarians — though not representatives of the traditional civil liberties groups Spencer and I have spoken to — who have been floating the idea, but in a more limited way than the Post story suggested.

Specifically, a group of prominent military and criminal defense lawyers and academics on June 8 sent President Obama a letter urging him not to create a new system of preventive detention, but instead, to rely on the one we already have — with modifications, if necessary. Although they don’t specifically recommend an executive order, that’s the logical way for the administration to modify and clarify its authority.

“Our country can achieve its legitimate goals through existing laws which authorize the detention of those who should be detained in the fight against international terrorism,” says the letter, which I received just this afternoon. It’s signed by 11 prominent lawyers, including Retired Rear Admirals Donald Guter and John Hutson of the Navy’s Judge Advocate General’s Corps; Abner Mikva, a former federal appellate court judge, University of Chicago law professor, White House counsel under President Bill Clinton and a mentor to president Obama; and Thomas Wilner, a prominent corporate defense lawyer who’s represented Guantanamo detainees in some of the landmark cases decided by the U.S. Supreme Court.

“Longstanding law-of-war principles authorize the detention for the duration of armed hostilities of those who engage in armed conflict against the United States or its allies,” these experts write, adding: “Some modifications to the existing system may be warranted, but no new system is necessary.”

The letter specifically tries to steer President Obama away from proposing or supporting any new legislation that would create a new preventive detention authority.

Ken Gude at the influential Center for American Progress has also suggested that the president should clarify his authority of detention under the laws of war. In a recent memo he co-authored with Kate Martin of the Center for National Security Studies, he and Martin write that the “ambiguities” left by the Bush administration over who is detainable under the laws of war “compound the lack of fundamental fairness in treating suspected criminals as combatants and holding them without trial.” Given how the detention authority has been used over the past eight years, “the new administration should now reassert the traditional understanding of the limits of the law of war and reject the former administration’s effort to read the word “organization” in the AUMF [Authorization for the Use of Military Force] as effecting an unprecedented extension of the traditional understanding of the military’s extraordinary powers of detention during war.”

In an e-mail this afternoon that he sent from Paris, Gude says he never specifically proposed an executive order, but supports the idea and adamantly opposes new legislation.

Gude laid out his support publicly for a limited system of preventive detention, authorized by the laws of war which allow detention of combatants during a military conflict, on CAP’s site and in The Guardian.

Even David Cole, the normally staunch civil libertarian law professor at Georgetown, has argued that the administration has that authority, calling it “an appropriate and necessary means of dealing with enemy fighters during wartime.” (Cole was pilloried for taking that position by Kenneth Anderson in Opinio Juris, who asks, “if it’s sensible and legal now, why wasn’t it sensible and legal during the Bush years? Is this the same David Cole who appeared on panels with me over the last few years and who didn’t seem in those years to have any daylight between him and the Center for Constitutional Rights, Human Rights Watch, or Human Rights First on the principle of try-or-release?”)

Let’s set aside for now the very legitimate question of whether these progressive civil libertarians would have taken the same position during the Bush years, or if they just inherently trust President Obama to handle battlefield detention against a non-traditional enemy better than Bush did. The positions these people are taking is informed, at least, by what the Supreme Court ruled in Hamdi v. Rumsfeld, although that case pertained only to the detention of Taliban fighters, while we were at war with Afghanistan. And it’s in line with what the federal courts have been ruling, with some variations, in a string of habeas corpus cases.

The proposal for an executive order to clarify the Obama administration’s position on the extent of its wartime authorities of preventive detention is very different, however, from the controverisal position that some more conservative lawyers and think-tank scholars like Jack Goldsmith, Benjamin Wittes and Neal Katyal (traditionally a moderate Democrat and now deputy solicitor general in the Obama administration) have been promoting. The Wittes proposal released on Friday with Brookings colleague Colleen Peppard, for example, would create an entirely new system of preventive detention that’s not limited to the president’s authority under the laws of war.

On Monday, Goldsmith, a Harvard law professor and former head of the Office of Legal Counsel at DOJ under President Bush, joined Wittes, a Brookings scholar, in a Washington Post op-ed to argue that a preventive detention scheme should be debated in Congress and spelled out clearly through legislation, not by the president by executive order. To them, an executive order would be “a nearly wholesale adoption of the Bush administration’s unilateral approach to detention.”

That, it seems, is where the current debate lies. Committed civil liberties advocates such as the ACLU, Center for Constitutional Rights, Human Rights Watch and others may still be arguing against a preventive detention scheme entirely, but given that the Obama administration has consistently argued its right to detain “combatants” (however they’re defined) during what it continues to call a “war” — not only in the Gitmo habeas cases but in regards to the detention of some 600 men imprisoned at the U.S. Air base in Bagram, Afghanistan — it’s impossible to imagine that the administration is going give up that authority in the future.

Although as Spencer pointed out, White House spokesman Robert Gibbs did say on Monday that the president is not considering issuing an order that “relies on legal theories that we have the inherent authority to detain people,” he certainly didn’t rule out basing a preventive detention system on some other authority — whether granted by the laws of war, or by an act of Congress.

I’ll be writing more soon about what that Congressional act might look like.

Jose Padilla is escorted into a Florida courtroom in 2007 (Photo: Florida Southern District Court)

Since U.S. District Judge Jeffrey White ruled late Friday in San Francisco that former “enemy combatant” Jose Padilla can proceed with his lawsuit against “torture memo” author John Yoo, the decision has been interpreted by many in the media as a broad vindication of detainees’ rights to sue former Bush administration officials.

In fact, the ruling’s implications are narrower than that, and could also be appealed. But, still, the opinion has heartened some civil rights lawyers because it rejects many of the claims made by former Bush officials that they’re not liable for their actions formulating policy in the “war on terror.” That could persuade judges hearing other claims against former officials as well. The ruling also allows the civil case to move forward against John Yoo, and could in the process reveal significant new information not only about Yoo, but about his interaction with the White House, and exactly how he reached the legal conclusions that he did. That information could, in turn, be used against him in future criminal or congressional proceedings.

Illustration by: Matt Mahurin

But Padilla’s situation was highly unusual, which is one reason the decision’s implications are limited. A U.S. citizen arrested in Chicago in 2002, he was declared an enemy combatant by President George W. Bush and held in a U.S. military prison in South Carolina without charge for the next three and a half years. He claims that while there, he was subjected to a range of harsh and arguably illegal interrogation techniques, such as sleep deprivation, exposure to extreme hot and cold temperatures, threats to torture and to kill him, stress positions, and more. (Padilla was eventually transferred to civilian custody and tried in federal court on criminal conspiracy charges and sentenced to 17 years in prison.) Represented by private lawyers working with a Yale Law School clinic, Padilla and his mother are now suing Yoo, among others, for orchestrating the policies that led to his treatment by U.S. officials. (Padilla has a similar case pending in South Carolina against former Attorney General John Ashcroft and former Defense Secretary Donald Rumsfeld.)

Unlike Padilla, most of the hundreds of other detainees deemed “enemy combatants” by the Bush administration were foreign nationals captured abroad and imprisoned at Guantanamo Bay, which at least technically is not U.S. soil. Judge White acknowledges that those detainees will have a harder time suing government officials. In his opinion, he cites the U.S. Circuit Court of Appeals for Washington, D.C.’s ruling in In re Iraq and Afghanistan Detainees Litigation (pdf), where the court held that “foreign citizens detained abroad” could not sue “for deprivation of their constitutional rights.” A judge-created remedy, the court reasoned, “would invite enemies to use our own federal courts to obstruct the Armed Forces’ ability to act decisively and without hesitation in defense of our liberty and national interests” and would risk “aiding our enemies” by giving them a means of learning information about U.S. military affairs.

That’s not relevant to Padilla, who was a Brooklyn-born U.S. citizen detained in South Carolina.

Still, several points Judge White made in the decision do bear on other cases, and although not binding on other courts, could be persuasive. Most importantly, Judge White rejected Yoo’s claim that he is entitled to immunity from lawsuits because the right of an “enemy combatant” not to be tortured and abused by U.S. authorities was not clear at the time. Former Bush administration officials have repeatedly made similar claims in other cases, often with success.

“The Court finds that the complaint alleges conduct that would be unconstitutional if directed at any detainee, and therefore finds that the rights allegedly violated were clearly established at the time of the alleged conduct,” wrote Judge White.

“My own feeling is that the qualified immunity section of his opinion could be read broadly,” said Jonathan Freiman, a lawyer representing Padilla in the case, who was pleased with Friday’s decision.

Ruthann Robson, a constitutional law professor at the City University of New York and contributor to Constitutional Law Prof Blog, agreed that “getting past the qualified immunity argument was a big hurdle for the plaintiff.”

Yoo also claimed that he can’t be sued because the connection between his writing legal memos that justified brutal interrogation tactics and any actual tactics used on Padilla is too tenuous. Judge White rejected that argument as well. “Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct,” wrote Judge White, who was appointed to the court by President George W. Bush. That mistreatment would follow from an authoritative legal memo advising the executive branch that those specific acts of abuse were lawful is not a stretch, he found, which could bode well for other plaintiffs. The legal complaint also specifically charges that Yoo helped develop the government’s policy in the “war on terror”, and specifically recommended that the government designate Jose Padilla as an “enemy combatant.” Judge White wrote that if that turns out to be true (the facts alleged are assumed true at this stage of the case), then Yoo could be legally liable for Padilla’s treatment.

Interestingly, one important factor that the court found weighed in favor of Padilla’s right to sue is that the United States had not afforded him an alternative remedy for the abuse he claims he suffered. Habeas corpus proceedings in federal court, for example, were not sufficient because they don’t provide a remedy against the individual federal officials who developed the challenged policies. The fact that the U.S. government has not developed an alternative means of compensating people who were tortured, mistreated or wrongly deemed “enemy combatants” also weighed in Padilla’s favor.

Interestingly, the fact that the U.S. government has no current plans to prosecute anyone for developing and carrying out illegal policies under the previous administration also helped Padilla. The court quoted news reports such as one in The New York Times saying that “President Obama has shown little interest in prosecuting officials of the previous administration, and it is not clear whether there will be a government sponsored investigation of Bush administration policies.”

“This ruling gives hope that the courts will not shy away from accountability for those who designed and implemented the last administration’s torture policy,” said Freiman, Padilla’s lawyer.

Indeed, the part of the opinion that seemed to most hearten constitutional lawyers was the court’s refusal to allow Yoo to shield the writing of his memos from judicial review.

The court noted what it called “the irony” of Yoo’s position, that “Yoo drafted legal cover to shield review of the conduct of federal officials” and now argues to the court “that the very drafting itself should be shielded from judicial review.”

As Warren describes it, Judge White’s ruling means that legal memos like Yoo’s “should not be a defense for people who are implicated in torture and abuse that they should have known was wrong.”

That could have implications for some of the cases that have been brought against Yoo in Europe, said Warren. A case is pending against Yoo in Spain, and CCR has filed a case in Germany under the theory of “universal jurisdiction” for human rights abuses. The judge is saying that “the mere writing of these memos can’t shield the writer,” said Warren.

John Yoo, for his part, has consistently maintained that the San Francisco lawsuit is an abuse of the civil justice system. As he wrote last year about the case in The Wall Street Journal: “The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement via the ballot box.”

Here’s what the Center for Constitutional Rights has to say about the “just following orders defense”, at least as regards waterboarding, which Attorney General Eric Holder has previously called torture:

It is one of the deepest disappointments of this administration that it appears unwilling to uphold the law where crimes have been committed by former Bush officials. Whether or not CIA operatives who conducted waterboarding are guaranteed immunity, it is the high level officials who conceived, justified and ordered the torture program who bear the most responsibility for breaking domestic and international law and must be prosecuted. Further, by redacting  portions of the infamous torture memos before agreeing to release them today, as the news is reporting they will, the Obama administration is complicit in covering up the torture team’s crimes. The president issued a statement today full of contradictions, the most troubling being ‘This is a time for reflection, not retribution,’ followed shortly by, ‘The United States is a nation of laws.’ Government officials broke very serious laws: for there to be no consequences not only calls our system of justice into question, it leaves the gate open for this to happen again.

I don’t have the numbers yet, and many of the agreements are confidential, but at least one, now on file in a federal district court, reveals that Yaser Esam Hamdi — who was captured in Afghanistan in 2001, deemed an “illegal enemy combatant” and sent to Guantanamo Bay, where he was imprisoned for almost three years without charges — signed a promise not to sue the U.S. government as a condition of his release.

Evidently, the government knew it was vulnerable to suit for unlawful indefinite detention and abuse in custody — exactly the claims that some other former detainees have made since then.

“It was certainly a condition that the goverment insisted on,” says Geremy Kamens, an Assistant Federal Public Defender in the Eastern District of Virginia who represented Hamdi at the time.

Hamdi, who was born in Baton Rouge, La. and is therefore a U.S. citizen, insisted he was never a member of the Taliban or fighting the United States, as the U.S. government claimed. Still, to secure his release from prison (he was eventually transferred to the same Navy Brig in South Carolina that held Ali Saleh Kahlah Al-Marri), he signed the following statement:

Except in case of breach of this Agreement by the United States, Hamdi hereby releases, waives, forfeits, relinquishes and forever discharges the United States, its departments, agencies, officers, employees, instrumentalities and agents, in their individual or official capacities, from acts or omissions occurring prior to the official date of this Agreement, and from any and all challenges to the terms and conditions imposed by this Agreement.

Hamdi also agreed to relinquish his U.S. citizenship, be deported to Saudi Arabia, and face a host of travel and other restrictions.

But say Hamdi was tortured, abused, humiliated or otherwise mistreated while in U.S. custody, in violation of U.S. and international law, as many other former Guantanamo detainees claim they were?  Would his promise to not sue hold up in court?

Not necessarily.

As Shayana Kadidal of the Center for Constitutional Rights explains in an e-mail: “A nearly universal principle of contract law is that courts should refuse to enforce agreements made under duress, or that are against public policy (like gag rules). So one could make the argument against enforceability on those grounds.”

Of course, one could say that any plea agreement by a criminal defendant is entered into under duress, and those are virtually impossible to challenge in court. Then again, Hamdi did not plead guilty to anything, so this situation is a little different.

As Cornell University Law Professor Michael Dorf has written, “if Hamdi one day brings a lawsuit, the government will bear the burden of establishing ‘that the agreement is neither involuntary nor the product of an abuse of the criminal process’ ” — the standard set in a 1987 Supreme Court decision.

Although Hamdi has not filed a lawsuit against the United States — at least, not yet — a lawyer could certainly make a strong argument that requiring a former prisoner who was never convicted of anything to renounce his claims against a country that held him indefinitely without charge, and interrogated him under torture (if that’s what happened), is asking a victim to renounce his human rights.

And that, in itself, might well be viewed by a court as “an abuse of the criminal process.”

Dorf, by the way, said he the Hamdi case is similar to a “release-dismissal agreement” — in which the government agrees to drop criminal charges if the person charged will drop his civil suit against the government — and said he thinks that Hamdi’s agreement likely would not hold up in court.

Whether other detainees have been asked to sign similar agreements as a condition of their release isn’t clear, although Kamens said he’s heard that some have. I’ll keep trying to track those down.

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