The letter is addressed to Energy Secretary Steven Chu, Commerce Secretary Gary Locke, Defense Secretary Robert Gates and United States Trade Representative Ron Kirk.

Markey asks whether the administration has determined whether China is in fact blocking rare earth mineral exports to the United States (China has denied the reports) and what implications a a shortage of the minerals would have on national security and clean energy technology. Rare earth minerals are used in key military communications and smart bomb technology as well as in wind turbines and hybrid vehicles.

Markey also said he was planning on having a hearing on the issue.

For background on the rare earth mineral issue, see the following posts:
Obama Administration Says It Will Investigate China’s Green Tech Trade Policies
China Dismisses U.S. Investigation of Its Green Tech Trade Policies as Midterm Politicking
Report: China Blocking Rare Earth Mineral Shipments to U.S.
DOD Near Completion of Report on Military’s Use of Rare Earth Minerals

Here’s the letter, via The Hill.

Yesterday, The New York Times reported that China is blocking shipments of rare earth minerals to the United States. Though China has said the report is false, it still underscores U.S. vulnerability to Chinese trade decisions. This all comes as the Obama administration is investigating China’s green technology trade policies. U.S. Trade Representative Ron Kirk is looking into a lengthy petition by the United Steelworkers that accuses China of violating World Trade Organization rules by unfairly subsidizing exports of clean energy technology and controlling its rare earth minerals supplies.

Rare earth minerals, or rare earth elements, are essential components of scores of important products, including wind turbines, hybrid vehicles and cell phones. China has worked over the last two decades to develop its rare earth minerals, and now much of the world is dependent on the country for the vital resources. China currently produces 97 percent of the world’s rare earth minerals.

Rare earth minerals are also components of key technologies used by the military, including in communications equipment and smart bombs. But the U.S. military has never undertaken a comprehensive inventory of how reliant it is on rare earth minerals. The survey is now finished, and is currently being reviewed by key military officials, DOD spokeswoman Cheryl Irwin said.

Christine Parthemore, a fellow at the Center for New American Security, said the DOD review was essential because the U.S. military has very little sense of how much it relies on rare earth minerals.

“In defense equipment, because stuff is manufactured by the private sector, and [the private sector] is not involved in the end-use of these products. … There’s sort of a detachment of information that happens,” Parthemore said, explaining that the U.S. military is often not privy to suppliers’ use of rare earth minerals because it is considered proprietary information.

Although the men did not sue the government directly, the Bush administration intervened in the case two years ago and convinced a judge to dismiss all claims on the grounds that allowing the lawsuit to proceed would reveal sensitive “state secrets” and endanger national security.

The plaintiffs appealed, and the Obama administration has adopted its predecessor’s position, arguing before the appellate court that allowing the five men the opportunity to prove their case would jeopardize national security. At the same time, the  administration claims it has ended the program of “extraordinary rendition,” whereby terror suspects are abducted in one location and sent to another country for interrogation, where they are likely to be tortured. The administration says it still renders suspects to other countries, but only for legitimate court proceedings.  Nevertheless, it has insisted that any information about the Bush administration’s program would pose a current danger.

That argument doesn’t sit well with the plaintiffs in the case, like Binyam Mohamed, an Ethiopian-born British resident who says he was kidnapped by CIA agents in Pakistan and flown to Morocco and Afghanistan, where he was brutally tortured into falsely confessing to crimes he did not commit.

In court yesterday, American Civil Liberties Union attorney Ben Wizner, representing the five men, argued that it was absurd to suggest that allowing the truth about the program to come out, while still protecting any classified evidence, would endanger national security.

“The facts of this case are known throughout the world,” Wizner said. The Bush administration’s CIA directors had previously testified about the rendition program, and President George W. Bush had acknowledged it. As for the plaintiffs involved in the case against Jeppesen, the Swedish government has already apologized and offered to compensation one of the plaintiffs who was seized from Sweden, where he had sought asylum. The plaintiff claims he was taken to Egypt, where he was tortured with electrical shocks.

Whoever wins this round before the Ninth Circuit could still seek review from the Supreme Court.

As Carol Rosenberg at The Miami Herald reports, though, the charges were dropped last Thursday “without prejudice” — meaning the same charges could still be re-filed against him.

The government had originally accused al Rabia of providing “material support” to al-Qaeda by running a supply depot at the battle of Tora Bora during the U.S. invasion of Afghanistan in 2001. But after imprisoning him for eight years, a U.S. District Court judge in September ruled that the evidence against him was “surprisingly bare” and not credible. Even government interrogators hadn’t believed it, the judge noted. She also ruled that al Rabia had been coerced and abused into “confessing” to activities which likely had been committed by someone else with a similar nickname.

Al Rabiah’s lawyers, meanwhile, demanded an investigation into their client’s treatment by U.S. officials, but as in the case of Mohammed Jawad, whose defense lawyer similarly sought an investigation into his abuse, the lawyers received no response.

Although the government did not appeal the district court’s order that the government was detaining al Rabia unlawfully, the Pentagon still refused for months to drop the military commission charges against him.

His return to Kuwait appears to have forced the military’s hand. Although he’s not likely to be charged again, the dismissal “without prejudice” may be the military’s way of avoiding an implicit admission that U.S. officials picked up the wrong guy in the first place.

After all, we already knew that the U.S. government has relied more on private military contractors in its “war on terror” than in any war in the past. We also knew that private security outfits such as Blackwater were providing heavily armed guards for the U.S. war effort, not just protecting supply lines. The military’s reasoning has always been that hiring contractors provides a flexibility that the military doesn’t have, and compensates for the lack of full-fledged U.S. soldiers in our nation’s all-volunteer army.

But are there other reasons that Blackwater and other private security guards have been used for some of the CIA and military’s highest-risk operations? Maybe.

For one thing, private security companies operate in secrecy — a secrecy that’s guaranteed to the government in their contracts. What’s more, while the death of a U.S. soldier is publicly reported and investigated by the U.S. military, the death of a private contractor is not. The circumstances surrounding deaths of private contractors on the battlefield have remained largely secret. Unlike in the military, family members aren’t entitled to an investigation that reveals how they died. And when those family members have sued to get that information, their cases have usually been dismissed — contractors and the government argue that to let the families have their day in court would endanger national security and military secrets. In the best case scenario for the families, the families’ case was shunted off to private, confidential arbitration, as happened when four Blackwater guards were torched by Iraqi insurgents and hung from a bridge in Fallujah.

The deaths of private security guards also don’t get counted as “U.S. casualties”, the way the deaths of U.S. soldiers do.

That sort of secrecy is something that the contractors, and the government, in most cases require.

So is the U.S. military relying more heavily on private security guards to do its dirty work in this war because it knows that whatever happens in Afghanistan will stay in Afghanistan? Is it a way to keep secret its military operations, and to get around having to acknowledge any resulting U.S. casualties?

Those are the sorts of questions to be asking now.

Defense Secretary Robert Gates in mid-November invoked his new authority under the law to keep the photos concealed, saying that distribution of the photos would endanger U.S. troops abroad.

The Associated Press reports that the ACLU vows to continue fighting for the photos’ release.

Both of the newspapers cautioned that none of the reports could be independently corroborated. But the stories emphasize the point I’ve been making for a while now that even if President Obama manages to close the Guantanamo Bay detention center in the next several months (he’s already conceded he’s not going to meet his original January deadline), that’s not going to completely solve the United States’ image problem when it comes to prisoner mistreatment and abuse — because we still have Bagram.

Bagram has already been called “Obama’s Gitmo,” and “The Next Guantanamo” given that the administration is holding about 700 terror suspects there indefinitely without charge, with little meaningful opportunity to challenge their detention, no right to habeas corpus, and in conditions far more secretive than at Guantanamo Bay. We know that several detainees died from abuse at Bagram during the Bush administration, and conveniently, the Defense Department just stopped reporting detainee deaths in Afghanistan sometime in 2006.

So the latest reports of abuse shouldn’t come as a huge surprise. Just last summer inmates were protesting their indefinite detention at Bagram, refusing to leave their cells or even speak to family members. That supposedly led to a military review and overhaul of the U.S. detention center in Afghanistan, and recently the United States opened a new and improved prison facility on the air base, designed to improve inmates’ living conditions and quiet some of the complaints. The former detainees interviewed by the Times and Post reporters may not have had the benefit of those reported improvements. But given the secrecy that still surrounds the Bagram facility and its inmates, and the fact that the wing of the prison operated by Special Operations forces is even more secretive and closed to the ICRC, the Obama administration is going to have a hard time answering these latest claims.

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