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.

Glenn Greenwald has pointed out the irony of Republicans now raising fears of another terror attack simply because the president has decided to prosecute terror suspects in a way that’s consistent with American values.

But some important points are being drowned out by the hysteria. Retired Adm. John Hutson, now the dean of Franklin Pierce Law Center, yesterday observed that “there’s no particular reason to believe that if terrorists are going to take vengeance on the US for prosecuting these people, that that’s going to happen at the location or at a hard target.” A federal supermax prison or high-security New York City jail is actually “the least likely place for vengeance to be taken,” given the obstacles presented by all the security, he said on a conference call organized by Human Rights First. “The logical consequence of that stream of logic is that we not prosecute them at all to avoid some form of retribution.”

The other point largely overlooked is that while Attorney General Eric Holder announced plans to try the alleged 9/11 plotters in federal court, he also announced that the suspected USS Cole bomber, among others who’ve attacked U.S. soldiers or military targets, would be tried in the newly reconstituted military commissions. So are they getting a lesser trial?

“Despite the changes enacted by Congress this year, that untested system does not have the track record of fairness and justice that our criminal justice system has,” said Sen. Russell Feingold (D-Wis.) yesterday, after praising the decision to try KSM and his alleged co-conspirators in federal court.

Col. Morris Davis, the former chief military prosecutor for the commissions, made this important point Sunday in The Wall Street Journal: having two different justice systems “establish[es] a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantanamo and justice are mutually exclusive.”

Another former military prosecutor, Lt. Col. Darrel Vandeveld, who resigned his post in protest last September, echoed that yesterday. “To say that you’ve achieved the gold standard for certain defendants by holding their trials in federal courts, and the rest can go to Gtmo, doesn’t necessarily resurrect the image of Gtmo or the military commissions as beacons of fairness. And if one of the stated goals in closing Gtmo is to restore America’s moral position in the world, the decision taken today won’t get us closer to accomplishing that.”

Holder’s justification for trying the Cole bomber and others by military commission is that in each case, their targets were a U.S. soldier or military installation. But isn’t that what we use our regularly constituted military courts for? Isn’t that why Major Nidal Malik Hassan, who last week apparently shot up 13 soldiers at the Fort Hood military base, is being tried by court martial? The only difference would appear to be that the suspects headed for military commissions are not American citizens. So that’s why they get an inferior justice system?

That decision combined with the implicit acknowledgment in Holder’s  announcement yesterday that U.S. federal courts a superior form of justice to the military commissions just highlights a question that’s becoming increasingly difficult to answer:  Just what is the purpose of those new military commissions?

These latest documents provide a glimpse of the early struggles between the FBI and the Pentagon over just how to conduct the “war on terror” and how to interrogate and treat that war’s detainees. Sadly, they reveal that the FBI knew perfectly well — and repeatedly warned Defense Department officials, as well as Justice Department lawyers — that the abusive interrogation techniques being used on detainees at Guantanamo Bay were likely to be ineffective and make subsequent prosecutions impossible.

As one memo says, while the interrogation techniques based on tactics used in the U.S. Army Search, Escape, Resistance and Evasion (SERE) training “may be effective in eliciting tactical intelligence in a battlefield context, the reliability of information obtained using such tactics is highly questionable, not to mention potentially legally inadmissible in court.”

That memo was written in May 2003.  The “enhanced” interrogation techniques, such as stress positions and prolonged sleep deprivation, were still being used and justified in memos as late as July 2007. The memo raises several important questions. Did the Office of Legal Counsel lawyers drafting those later memos for the CIA not know about the FBI’s earlier objections? Or did they just dismiss them out of hand? Were they told to ignore those earlier conclusions?

Then there’s the fact that senior officials from the Criminal Investigative Task Force, including the chief psychologist with the Naval Criminal Investigative Service “repeatedly argued for implementation of a rapport-based approach” and “lamented the fact that many DHS [Defense Human Intelligence Services] interrogators seem to believe that the only way to elicit information from uncooperative detainees is to use aggressive techniques on them.”

“Despite objections raised by the [Behavioral Analysis Unit of the FBI], the DHS initiated an aggressive interrogation plan for #63,” who elsewhere in the document is identified as Mohammed al-Qatani. “This plan incorporated a confusing array of physical and psychological stressors which were designed, presumably, to elicit #63’s cooperation. Needless to say, this plan was eventually abandoned when the DHS realized it was not working and when #63 had to be hospitalized briefly.”

Officials from the Criminal Investigative Task Force and the Behavioral Analysis Unit drafted a letter “reiterating the strengths of the FBI/CITF approach” and providing “a detailed historical record of the development of interagency policies regarding aggressive interrogation techniques in GTMO.” The letter also argued that they were a bad idea.

Not only did the officials not succeed in convincing DHS to abandon the techniques, but the document described how the military and DHS inaccurately portrayed to the Pentagon that the FBI’s Behavioral Analysis Unit approved of and helped design the very techniques that the BAU warned would backfire.

Although we knew before that the FBI had disagreed with the so-called “enhanced” interrogation techniques and refused to participate in them, this latest release of previously classified information reveals the extent to which FBI officials made both the legal and practical case to senior Pentagon and Justice Department officials for why the usual rules on interrogations should be followed.

That they were so blatantly ignored suggests more than just bad judgment. It suggests a deliberate indifference to the facts and the law, which cries out for a more thorough investigation.

09 Memos

The issue in Kiyemba v. Obama is whether the courts have the power to order an “alien” (non-U.S. resident) detainee held at Guantanamo Bay released into the United States, after determining the government has no grounds to keep holding him. But what if Congress then makes it impossible for the government to release the prisoner in the United States by withholding all necessary funding? Two separate bills signed yesterday — specifically, Sec. 1041 of the National Defense Authorization Act and Sec. 552(a) of the Homeland Security appropriations bill — appear to do just that. As Denniston points out, those laws open up a key question about Congress’ constitutional powers. In effect, it would mean that Congress could effectively suspend the prisoner’s right to habeas corpus – that is, to be released from unlawful detention.

Of course, by the time the court gets around to hearing the case this winter, President Obama may have already announced a new detainee policy, and Congress may have agreed to alter its spending restrictions. And if the Uighurs are all resettled, their case before the high court will be moot. But if the case survives until late winter, when the Supreme Court is expected to hear it, the administration and Congress may both get slapped down.

The Military Commissions Act amendments to the National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647) were approved in Congress yesterday and are en route to the President for his signature. The full text of the bill is here.

Interestingly, despite the President’s statements and other indications that the Obama administration prefers Article III civilian federal courts to try terrorism cases, the new Military Commissions Act explicitly favors seems to favor trials in military commissions for “unprivileged enemy belligerents” (previously known as “enemy combatants”), who make up the bulk of detainees at Guantanamo Bay not yet cleared for release, by keeping the commissions’ jurisdiction over them broad. Attempts at narrowing who is subject to military commission jurisdiction failed.

Significantly, however, the final bill dropped an earlier provision, which explicitly stated that it is the “sense of Congress” that military commissions are “the preferred forum for the trial of alien unprivileged enemy belligerents”.

Here’s the provision:

Sec. 948e. Trial by military commission of alien unprivileged belligerents for violations of the law of war

(a) Sense of Congress- It is the sense of Congress that the preferred forum for the trial of alien unprivileged enemy belligerents subject to this chapter for violations of the law of war and other offenses made punishable by this chapter is trial by military commission under this chapter.

An “unprivileged enemy belligerent” is defined in the law as someone who: “(A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; or (C) is a member of al Qaeda.”

In other words, it’s a suspected terrorist. With its amendment to the Military Commissions Act, then, Congress has just directly contradicted the repeated statements of President Obama, Attorney General Eric Holder and the task force advising them, all of whom have stated that they prefer to try suspected terrorists in civilian courts wherever possible.

“They’ve made it really clear that the president right now is not supportive of a public commission of inquiry,” Killmer said in a phone conversation this morning.

Killmer has had better luck in Congress, where at least some Representatives support creating a House Select Committee to investigate torture. Although that would be more political than an independent commission, he said, at least it’s something. “There are a significant number of members of the House who know this isn’t done,” says Killmer, whose group has had more than 60 meetings with House members on the issue since June.

The religious campaign has made some headway on related issues, working with Rep. Rush Holt (D-N.J.), chair of the House Select Intelligence Oversight panel, to convince Congress to pass a bill that would require the taping of all interrogations of detainees in U.S. military custody. The House passed the bill last week as part of the 2010 Defense Authorization Act. It could be voted on by the full Congress next week.”Our constituents understand the need for videotaping interrogations,” says Kilmer, “and the videotapes have to be protected so they’re an ongoing part of our history. It’s one way of making sure it doesn’t happen again.”

The religious groups also hope to achieve a codification of the terms of President Obama’s executive order mandating that all interrogations follow the rules of the Army Field Manual, and that the U.S. basically follows the “Golden Rule” when it comes to interrogations: we don’t do to others what we wouldn’t want them to do to our soldiers.

Still, Killmer said, codifying this for the future isn’t enough. After all, we had a Convention Against Torture and that still didn’t stop the U.S. government from torturing people.

In addition to a commission that would expose everything that happened and why, Killmer and other religious leaders are exploring the possibility of asking the government for an apology.”I think it’s extremely important,” says Killmer. Other countries have taken that step, such as Canada, which apologized — and paid $10 million – to Canadian citizen Maher Arar who, with the help of bad intelligence from Canada, was sent by U.S. authorities to Syria for interrogation under torture.

“This was wrong behavior,” says Killmer of the entire U.S. “enhanced interrogation” practice. And an apology “would help grow the moral consensus that torture is wrong,” he says, something he assumed existed before 2001, but now isn’t sure.

“Dick Cheney gets more credence than I would have imagined,” says Killmer. “The American people are still wrestling with this stuff.”

Killmer and his colleagues were dismayed when a Pew Research Center poll last spring found that a majority of Catholics and even evangelicals believe that torture is sometimes necessary. “That says we have a lot to do,” says Killmer. His group has put together this short interfaith video on U.S.-sponsored torture which they plan to show at churches, synagogues and mosques across the country, in part to explain that yes, torture really is a violation of all the dominant religions in the United States, and to encourage believers to join the anti-torture campaign.

Whether religious support is ever going to be strong enough to get that official apology is another matter. Although the U.S. has apologized for some things in the past — the Japanese internment during WWII, and slavery — in both cases, it came many decades after the deed. Killmer is cautiously hopeful: “It would be terrific if this could happen much more quickly.”

While the prison offers inmates books and videos on Harry Potter and the World Cup, which are among the more than 16,000 items it holds, leftist intellectual commentary from an 80-year-old MIT linguistics professor is apparently taboo. U.S. military censors rejected the donation of an Arabic-language copy of the 2007 anthology called Interventions, donated by a Pentagon lawyer.

A defense department spokesman didn’t say exactly why the book was rejected, but the slip accompanying the book’s return listed among the categories of books banned from the Guantanamo Bay prison library anything promoting “Anti-American, Anti-Semitic, Anti-Western” ideology, literature on “military topics,” and works that portray “excessive graphic violence” and “sexual dysfunctions.”

“This happens sometimes in totalitarian regimes,” Chomsky told Miami Herald reporter Carol Rosenberg in an email after he learned his book had been banned.

As I’ve noted before, the vast majority of legal experts, including leading defense lawyers and many former prosecutors, appear to believe that suspected terrorists can be tried more successfully in regular civilian federal courts — which have prosecuted hundreds such cases since the 9/11 terror attacks, as opposed to just three convictions in eight years of military commissions. Still, the Obama administration and Congress have refused to let the commissions go. And while yesterday’s bill appears to make some improvements to their rules — such as ensuring that the military commissions actually have defense lawyers qualified to handle death-penalty cases, which they didn’t before — the commissions would still allow the admission of hearsay and coerced testimony so long as the judge thinks it’s reliable. It also allows for military trials of children.

Human rights advocates maintain that the whole process of trying people outside the normal justice system is illegitimate and counterproductive. As Human Rights Watch Terrorism and Counterterrorism Program director Joanne Mariner said yesterday: “Tinkering with the discredited military commissions system is not enough. Although the pending military commissions legislation makes important improvements on the Bush administration’s system, the commissions remain a substandard system of justice.”

Chris Anders, Senior Legislative Counsel for the ACLU, put it this way:

While the bill takes positive steps by restricting coerced and hearsay evidence and providing greater defense counsel resources, it still falls short of providing the due process required by the Constitution. The military commissions were created to circumvent the Constitution and result in quick convictions, not to achieve real justice.

Part of the problem is that even if the military commissions were fair to defendants, critics say that because of their tainted history — which includes the resignation of several prosecutors in protest — they won’t be perceived as fair to the rest of the world. What’s more, defense lawyers representing the detainees will likely challenge the courts’ constitutionality, delaying the resolution of these cases for many more years to come.

The ACLU has been trying to get its hands on those photos, as well as other records, since 2003 through the Freedom of Information Act, which is supposed to make them public. But the Bush administration objected, and the ACLU’s been litigating the issue ever since. Although President Obama at first promised to turn over the photos, he later changed his mind, and despite two court orders to turn them over, the administration has still so far refused. It’s appealed the matter to the U.S. Supreme Court, which is supposed to decide whether to hear the case on October 9.

Some members of Congress, however, are not prepared to leave it to the courts to decide. Senator Joe Lieberman (I-Conn.) has introduced an amendment to the appropriations bill that would allow the defense department to exempt the photos of abuse from the scope of the Freedom of Information law.

Here’s part of the response from Jameel Jaffer, director of the ACLU National Security Project, from a statement released on Wednesday:

Congress should not give the government the authority to hide evidence of its own misconduct, and if it does grant that authority, the Secretary of Defense should not invoke it. If this shameful provision passes, Secretary Gates should take into account the importance of transparency to the democratic process, the extraordinary importance of these photos to the ongoing debate about the treatment of prisoners, and the likelihood that the suppression of these photos will ultimately be far more damaging to our national security than their disclosure would be.

Nor is the subcommittee talking about the recent case of Mohammed Jawad, the Afghan who was tortured, and whose treatment was deliberately not investigated despite repeated written pleas from Jawad’s military defense lawyer alerting senior military officials that he believed U.S. officials had committed war crimes.

No, that’s not coming up at this hearing. Instead, Justice Department official Lanny Breuer just testified to how proud he is that the DOJ has for the first time prosecuted a case under the U.S. anti-torture statute, against Roy Belfast, aka “Chuckie” Taylor in Liberia. He didn’t mention that the Justice Department under President George W. Bush maintained that the same statute didn’t apply to U.S. actions in U.S.-run prisons abroad.

Breuer is also apparently very proud that the United States extradited John Demjanjuk — who committed human rights violations on behalf of the Nazis more than 50 years ago.

Breuer also failed to address any of the human rights violations that the Department of Justice approved under Bush, or those that the Obama administration now refuses to prosecute, all in the interest of “looking forward” rather than backwards.

Oddly, neither Sen. Richard Durbin (D-Ill.) nor Sen. Russ Feingold (D-Wis.), both normally strong human rights advocates, are noting these omissions either. Feingold simply mentioned that “we lack credibility when we within our own government can’t stop violation of human rights on our own borders, yet we’re proclaiming we’re going to prosecute it against everyone that comes here. So it’s an important inconsistency we need to resolve.”

Feingold was referring to cases committed by foreigners smuggling people across the border from Mexico, not to the U.S. citizens in the previous administration who committed and approved human rights violations against prisoners in their own custody.