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

CREW Executive Director Melanie Sloan praised the White House, saying, “The Obama administration has proven its pledge to usher in a new era of government transparency was more than just a campaign promise. The Bush administration fought tooth and nail to keep secret the identities of those who visited the White House. In contrast, the Obama administration — by putting visitor records on the White House web site — will have the most open White House in history.”

CREW sued the current administration when it refused to turn over records of visits by health care and coal executives to the White House.

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.

A few weeks ago, while reporting from Alaska, I filed a request for all of the resumes submitted for the governor’s consideration for appointments to boards and committees. I heard back Friday afternoon that it would cost TWI $1,063.20 to get the 400 resumes, at a cost of about $193 per hour.

Palin’s administration estimates it will take about five hours to fill my request, plus $96.30 for photocopies  — a reasonable 10-cent per copy fee.

To be sure, the fee isn’t close to the whopping $15 million Palin’s administration told The Associated Press it would cost to track down the governor’s email, but still, a person making $193 an hour would make $7,720 per week or roughly $400,000 a year — about two and a half times what the governor is paid.

I was inspired to request the resumes after taking a look at Lewis D. Bradley’s, the man Palin appointed to the Board of Game. Bradley was Palin’s midde-school basketball coach.

Palin has appointed other friends to cushy or important positions in her administration, including naming one friend to run the multi-billion-dollar Permanent Fund Dividend program.

I’m waiting to hear back from the office of administration in Alaska on when I’ll receive the resumes before we consider whether to shell out the money for the copies.