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.

So now we’ve gone from 74 prisoners released from Guantanamo that “have returned to terrorism or military activity,” according to the Pentagon, but only 5 of those are verifiable?  On what evidence is the Pentagon basing the other 69? Is it the same sort of evidence that the government used to hold people in Guantanamo that judges have lately been saying is wholly insufficient, such as that the person was arrested while staying at a guest house where some al-Qaeda operatives also stayed? (That was the bulk of the flimsy evidence used to imprison Alla Ali Bin Ali Ahmed, which a federal court judge recently said was not sufficient. Apparently lots of innocent university students stayed there, too.)

It’s worth noting that the 534 prisoners were released by President Bush, not President Obama, and most releases did not follow any sort of systematic review of the danger they pose, but were usually based on whether the U.S. government could negotiate a deal with their native country to take them back. So if any of them were plotting anything against the United States, it’s not all that surprising that the Bush administration’s system of returning them didn’t weed those individuals out.

By contrast, the Obama administration has released only two Guantanamo prisoners so far. It’s worth wondering if this newly leaked report and all its inconclusive speculation is being leaked now to allow President Obama to either keep the Guantanamo prison open beyond the deadline he set in his first days in office, and/or to justify his plans for continued indefinite detention of those prisoners the Pentagon believes are dangerous, but against whom it doesn’t have any solid, “verifiable” evidence.

Secretary of Defense Robert Gates (defenselink.mil)

Defense Secretary Gates took a major step toward rebalancing U.S. defense priorities on Monday, announcing a budget request that would severely cut or restrict cherished and expensive Cold War-era programs and institutionalize support for counterinsurgency and irregular warfare.

The long-awaited fiscal 2010 budget request, which has a price tag of $534 billion and climbs to $663.7 billion when the Iraq and Afghanistan wars are factored in, cancels the Army’s major vehicle-modernization program, stops the production of the Air Force’s F-22 Raptor fighter jet, halts the increase of ground-based missile defense programs in favor of more limited missile defense approaches, and treats the Navy’s large surface-warfare platforms like the DDG-1000 with skepticism. It gives priority to the needs of a military at war in Iraq and Afghanistan, Gates said, by providing $11 billion to increase the size of the Army and Marine Corps and expanding intelligence, surveillance and helicopter programs that have performed well in the two ongoing wars — including the Predator drone used by the CIA to attack extremists in Pakistan — as well as to support partner militaries’ counterinsurgency development. “This is a reform budget,” Gates, who was Pentagon chief under George W. Bush and remained on in the Obama administration, told reporters Monday.

Several defense reformers agreed. “The boom finally lowered on the Pentagon’s budget today,” said Laura Peterson, defense budget analyst at Taxpayers for Common Sense. “We applaud [Gates'] rigor in wielding the budget axe.” Robert Work of the Center on Strategic and Budgetary Assessments called it a “very, very encouraging first step.” Winslow Wheeler of the Center for Defense Information was more cautious, but said “Secretary Gates deserves much good credit,” especially for making warfighter support “his first priority.”

The White House indicated its support for the budget request, though it has already come under fire from some members of Congress. Kenneth Baer, a spokesman for the Office of Management and Budget, where the budget request will first go before it reaches Capitol Hill, said it was a “very important step” to “stop the era of irresponsibility, and no longer kick down the road tough decisions we need to make.” He said the budget submission was part of a process to “reorient the Department of Defense and the nation” to “invest in things that work.” Where it identified programs that put a “drain on resources, we have to bite the bullet, if you’ll pardon the expression, and end them.” It is unclear how the request will fare on the Hill, but all sides anticipate a battle.

Gates told reporters that he could not specify precisely how much his proposed cuts would save taxpayers, saying that he had only given the plan to Pentagon comptroller Robert Hale on Thursday. “A lot of this work has to be done in detail,” he said, adding that only after the budget request will be sent to Capitol Hill in the coming days “will we be in a position to talk with some clarity about savings to the five-year defense plan.” A Taxpayers for Common Sense estimate identified at least $108.4 billion in cuts to existing programs, but since some programs will be replaced with others — Gates said there would be a review process to award a contract for an as-yet-undeveloped new Army vehicle to replace the one he scrapped, for instance — it is unclear what, if any, net savings will result.

“It does not appear that the basic [Defense Department] budget has changed,” Wheeler said in an email. “This set of decisions may be budget neutral, or it may even hold in its future expanded net spending requirements.”

Not all of Gates’ cuts were dramatic, nor did every program that has attracted criticism get cut. The Navy will continue to build DDG-1000 Destroyers — blasted by the liberal Center for American Progress as archaic in a report last year — until it completes the three currently on order, but the program will phase out in favor of the DDG-51 Destroyer after that. By 2040, the Navy will drop from 11 aircraft carriers to 10. At the same time, Gates requested increased purchases of the Littoral Combat Ship from two to three this year, and called the much-smaller ship “a key capability for presence, stability, and counterinsurgency operations in coastal regions.” But taken together, the changes indicate that “the large surface-combatant program in the Navy needs to be looked at hard” in a coming defense review later this year, Work said.

One of the more dramatic cuts that Gates did pursue came to the Air Force’s F-22 Raptor. The service and its manufacturer, Lockheed Martin, pursued a campaign earlier this year to pressure Gates and President Obama to keep the plane — a fighter jet built during the Cold War that has never been used in combat in Iraq or Afghanistan — off the chopping block. In January, 44 senators of both parties wrote to Obama pleading with him to save the Raptor, which they said provided valuable jobs.

Gates was unpersuaded. He said it was “not a close call” to stop the production of the jet at 187 planes. The Air Force currently has 183 F-22s, and the chief of the service, Gen. Norton Schwartz, suggested to reporters last month that he wanted another 60 of them. Gates insisted that the meager increase and then termination of the planes amounted to the Pentagon “fullfill[ing]” the basic requirements of the program. “It’s not like we’re killing the F-22,” he said. When asked if the Air Force’s generals backed Gates’ decision that stopping the program at 187 planes represented responsible military planning, he replied, “That was their advice as well.” No Air Force official reached for comment would even discuss the F-22 cancellation on background, and Lockheed Martin’s F-22 spokesman did not return requests for comment.

Beginning with last year’s National Defense Strategy issued by the Pentagon, Gates has frequently criticized the Defense Department for being insufficiently supportive of troops in Iraq and Afghanistan, preferring to fund and pursue favored defense programs developed before the outbreak of the wars rather than be responsive to the emergent needs of the wars themselves. A speech Gates gave at the National Defense University last year said the Pentagon’s prudential focus on anticipating future conflict risked overlooking current conflict. “We must not be so preoccupied with preparing for future conventional and strategic conflicts that we neglect to provide, both short-term and long-term, all the capabilities necessary to fight and win conflicts such as we are in today,” Gates said last year.

The budget proposal follows the National Defense Strategy, Work observed, especially as it presumes for the near-term that the U.S. did not face a threat of conventional conflict from a rival state, one of the strategy’s foundational presumptions. “He started to take programmatic decisions to align the program budget with that reality,” Work said.

Accordingly, Gates shifted the budget request to allow for institutionalized support for irregular warfare — a key goal of the generation of counterinsurgency theorist-practitioners who have emerged from Iraq and Afghanistan. Support for programs desired by counterinsurgents, such as training and mentoring partner militaries in counterinsurgency, have been funded through ad-hoc budgeting during the two wars, but Gates heralded an end to that practice. “Our contemporary wartime needs must receive steady long-term funding and a bureaucratic constituency similar to conventional modernization programs,” he said. Training partner militaries, for instance, will be part of a $500 million effort to “boost global partnership capacity efforts.”

John Nagl, the president of the Center for a New American Security and a longtime advocate of an institutional capability within the Army for training foreign militiaries, praised Gates’ move. “The most important military component of the Long War against radical extremism may not be the fighting we do ourselves, but how well we enable and empower our friends to fight against our common enemies,” Nagl said. This budget takes significant steps in the direction of helping our friends defeat the internal threats to their stability that also threaten us.”

Gates cautioned against reading the budget submission as a triumph of irregular warfare over conventional capabilities, arguing that it “crudely” provides “about 10 percent for irregular warfare, about 50 percent for traditional, strategic and conventional conflict, and about 40 percent dual-purpose capabilities.” His goal was not to see irregular warfare replace conventional warfare in defense budgeting, but rather to give the “irregular-war constituency” a “seat at the table for the first time when it comes to the base budget.”

Already the budget submission has attracted its share of critics, several of them Democrats. Rep. Jack Murtha (D-Pa.), who helms the defense subcommittee on the House Appropriations Committee, has indicated support for splitting a program to build Air Force refueling tankers between two contractors, anticipating the position Gates took Monday that the tanker deal should be awarded to a single contractor. The chairman of the House Armed Services Committee, Rep. Ike Skelton (D-Mo.), issued only tepid support for the budget proposal, saying it was “a good faith effort” but that the “the buck stops with Congress, which has the critical Constitutional responsibility to decide whether to support these proposals.” Sen. Carl Levin (D-Mich.), the chairman of the Senate Armed Services Committee, did not issue a statement by press time.

Reformers anticipated a fight for the budget submission in Congress, where champions of the expensive programs cut by Gates may seek to restore funding for them against his will. “Overcoming parochial (read, Congressional) interests will be challenging when appropriations season sets in since the champions of these systems remained largely intact through the last election,” Peterson said in an official statement from Taxpayers for Common Sense.

Gates said he tried not to pay attention to the politics of the defense budget. “I, frankly, decided that I would not take the political issues associated with any of these programs into account; I would just do what I thought was best for the country,” Gates said. “And my hope is that in the months ahead, that, first, the president will approve this budget, and then second, that the Congress, after careful deliberation, will support as much of it as possible.”

Defense Sec. Robert Gates (WDCpix) and F-22 Raptors (Air Force photo)

On Monday, an Iraq veteran named John Guardiano took to the right-leaning op-ed page of The Washington Examiner, a free daily paper in the district, to inveigh against the “Secret Defense Budget Tribunals” of Pentagon chief Bob Gates. Guardiano, troubled by the unusual steps taken by Gates to hold the details of his fiscal-2010 budget close to the vest, compared Gates’ efforts to the ill-fated efforts of then-first lady Hillary Rodham Clinton to construct a universal health-care regime in secret that ended in 1994. Needless to say, he disapproved. “Democracy can be messy and untidy, noisy and boisterous,” he wrote, “it can disrupt the work of the ruling class, who think they know better than we the people.” After all, Guardiano reminded, “America is not the Soviet Union or China.”

Guardiano’s bio for the paper quickly noted that his views “do not necessarily reflect the views of the U.S. military or his employer, a defense contractor.” The paper didn’t see fit to name the contractor.

Illustration by: Matt Mahurin

Still, Guardiano’s op-ed was indicative of two facts that remain salient as Gates is expected to deliver the substance of his long-awaited Pentagon budget to the White House next week. First, defense contractors and their Capitol Hill allies are alarmed at how Gates has shut them out of the the decision-making process about the Pentagon budget as he has publicly warned, in vague terms, about making “hard choices” that will place defense systems and weapons programs beloved by the armed services and their contractors on the chopping block. And second, Gates has adopted a strategy for his budget that presumes that most of the defense industry is an obstacle at best and an adversary at worst.

“Leaks are used by people opposed to the changes being considered,” said one Pentagon official supportive of Gates’ effort. “It’s about opposition [to the budget] mobilizing on outside and stopping that, from certain members of Congress, the [armed services] committees, the news media, what have you.”

Gates has taken extraordinary steps to keep the details of the fiscal 2010 budget to himself. First, he announced that he would withhold the substance of the budget from the Obama administration’s overall budget, delivered in February, and just divulge the overall spending request of $534 billion. ($663.7 billion when counting the costs of the Iraq and Afghanistan wars for the year, which will be funded through a supplemental budget request later this year.) Then he announced that he would empanel a review to determine what defense systems needed to be scaled back in funding or were no longer relevant for national security. He went so far as to insist that defense officials and military officers consulted by the review sign non-disclosure agreements to prevent them from leaking. “In principle, you’re not supposed to talk about this thing outside of the building, or share it within,” said an official who requested anonymity and who was one of several dozen officials asked to sign the non-disclosure agreement.

The agreement, first disclosed by DefenseNews in February, requires signatories to affirm “I recognize that a significant factor in the successful and proper presentation and completion of the President’s budget is the strict confidentiality that must be observed by all government participants.” That includes all discussions about “planning, programming and budget system documents and databases, and any other information … concerning the Administration’s deliberation of the nature and amounts of the President’s budget for Fiscal Year 2010.” The agreement placed into conflict two values that the Obama administration espoused during last year’s campaign: openness and reform.

The budget effort, according to insiders, had two main phases: first, solicitation of perspectives and advice from a variety of officials and servicemembers; and second, final decision-making by a comparative few officials. While Assistant Secretary of Defense Michael Vickers was part of a “small group” of Pentagon officials leading the review, officials influential during the final phase were Gates; Adm. Mike Mullen, chairman of the Joint Chiefs of Staff; Gen. James Cartwright, the vice chairman; and Brad Berkson, director of program analysis and evaluation.

Gates’ allies say that keeping the decision-making process open would have empowered defense contractors to lobby Congress to protect beloved — and expensive — defense programs at a time when the economy is forcing the closure of what Gates has called the “spigot” of defense cash opened by the 9/11 attacks. While the budget still represents an increase over last year’s defense spending, Gates testified to Congress in January about restricting Cold War-era systems or those of uncertain value to irregular conflicts like the Iraq and Afghanistan wars. “This budget going to involve very significant shifts and changes from what was done in past,” the Pentagon official said, but declined to characterize how the budget would change.

Defense reformers look at such claims with skepticism. Winslow Wheeler, a three-decade veteran of defense budget fights as a Capitol Hill staffer who now works for the Center for Defense Information, expected the budget to cut “low-hanging fruit” and leave many sacred-cow programs intact. But he said that the secrecy-centric approach to the budget would only delay the inevitable fight when it gets delivered to Congress. “They’re delaying the services running around behind their backs and [asking] Congress to please rescue” favored defense programs. “But it’s not question of if, it’s a question of when that happens. The service representatives — colonels, whomever — will come over to Congress to complain about the decisions — if Gates make some good ones.”

Even in the absence of specific information about the budget, defense lobbyists have wasted little time mobilizing to guard against cuts. In January, Lockheed Martin unveiled a Website called Preserve Raptor Jobs, arguing that the F-22 fighter jet it produces for the Air Force was a jobs engine during trying economic times. A spokesman for Lockheed told TWI last month that the site was merely intended to “provide information” primarily to the jet’s “supplier base,” but lawmakers from F-22-producing states warned Gates against cutting funding for the jet — which costs approximately $143 million per plane, of which there are currently 183 — using talking points that sounded much like text on the site. Similarly, defenders of the Army’s Future Combat Systems program for tech-enabled land warfare — the target of a Government Accountability Office report this week that criticized its “staggering” cost-overruns of $300 million — have argued in recent days that the program is crucial to soldier safety against insurgent attacks, even though it has yet to be deployed in full. The Politico reported this week that Boeing has deployed 100 lobbyists to Washington to push back against potential cuts.

The Pentagon official acknowledged that secrecy over the budget could hardly last forever. Lobbyists “have a sense of where the trajectory is going” in terms of prospective budget cuts,” the official said. “What usually happens is happening. But at least [the secrecy] is something that mitigates it somewhat.”

Wheeler said the ultimate decision when the budget is fully unveiled will be Obama’s. “The president will have to decide if he’s going to fight for his own budget and the decisions that Gates makes, assuming Gates makes good ones,” he said, “or whether to engage in the slippery-slope compromises with Congress. And the everyone-gets-happy route just makes everything worse in terms of an aging, shrinking and less ready to fight” military.

One option is to set up a PR campaign to portray the jobs created by manufacturing the F-22 as crucial in these dark economic times. But another is to tell reporters that — magnanimously! — you’re going to consider asking for fewer than 381 planes. So said the Air Force Chief of Staff, Gen. Norton Schwarz, as Roxana Tiron of The Hill reports:

Gen. Norton Schwartz said that the Air Force is looking to buy more than the 183 radar-evading F-22s now ordered, but fewer than the 381 planes the Air Force has insisted on in past years. …

The Air Force’s position is “driven by analysis as opposed to some other formulation, and I think it will withstand scrutiny,” Schwartz said.

Um. It’s a savvy move: you’re not going to be so unreasonable as to seek the huge numbers of aircraft that you’re not using in either hot war; you’re just going to ask for some larger number of the F-22. (Schwartz said he wasn’t going to comment on the specific number of F-22s he’ll tell Secretary Bob Gates he needs by March 1.) And it can work! Somehow, the Wall Street Journal portrayed the service’s abandonment of the 321-plane dream as a cut to the program, even though Schwartz is explicit about asking for more than the 183 aircraft. Savvy negotiating. But for a more, uh, skeptical view of an aircraft that isn’t used in either Iraq or Afghanistan, read this and this.

Update: Colin Clark at DODBuzz says the Air Force is going to ask for 60 more F-22s. That’s via Noah Shachtman.

Although the other judges all readily complied, as was widely expected, Army Colonel James Pohl decided that he found the government’s reasons for delaying proceedings “unpersuasive” and that he doesn’t have to follow the popular new president’s wishes.

“Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future,” Judge Pohl wrote, according to The Post.

Nashiri is scheduled for arraignment on Feb. 9.  White House spokesman Robert Gibbs said the administration is consulting with the Justice Department to figure out what to do next.

Here’s the ACLU’s take on the situation, in a statement just released by Exec. Director Anthony Romero:

Judge Pohl’s decision to unabashedly move forward in the al-Nashiri military commission case shows how officials held over from the Bush administration are exploiting ambiguities in President Obama’s executive order as a strategy to undercut the president’s unequivocal promise to shut down Guantánamo and end the military commissions. Judge Pohl’s decision to move forward despite a clear statement from the president also raises questions about Secretary of Defense Gates – is he the ‘new Gates’ or is he the same old Gates under a new president? Secretary Gates has the power to stop the military commissions and ought to follow his new boss’ directives.

Testifying before the Senate panel Tuesday, Defense Secretary Robert Gates said stringent ethics rules are a major reason it is difficult to fill top posts at the Pentagon.

It’s funny because it’s true.

Ironically, Gates was testifying in support of Lynn’s confirmation. In his attempt to defend his colleague, Gates inadvertently indicted his department and the entire defense industry as a morass of crony capitalism.

Let’s assume that ethics regulations are a significant obstacle to obtaining top talent at the Pentagon. Let’s assume it’s hard to find senior public servants who haven’t already cashed in on their expertise in the private sector. What does that say about the system?

The Lynn affair is another illustration of the real-world consequences of an unchecked revolving door and the institutions that treat this kind of back-and-forth between government and industry as the norm.

Here is a guy who is probably highly qualified, but who will take office under a cloud. His efficacy may suffer as a result. In a lot of people’s minds, he’s always going to be the lobbyist from Raytheon. That may not be fair to him, and it’s certainly not fair to the institution he serves.

Tougher institutional controls on the revolving door, such as those Obama tried to impose with his executive order, are part of the solution. Sustained public pressure is also important. It’s  harder for lobbyists to slip quietly back into government now that Jack Abramoff is a household name.

If journalists and watchdog groups keep up the pressure, politically ambitious people will eventually learn that a lobbying background can be a long-term liability, and not just an easy way to make a quick buck.

One thing is clear, ad hoc ethics waivers like the one Obama gave to Lynn, will only exacerbate the problem. Rules can slow the revolving door, but the problem won’t go away until decision-makers impose real career consequences for candidates who rack up conflicts of interest.

The unusual request by Mr. Gates, whom President-elect Barack Obama has asked to continue in his Cabinet post, ensures that key policy positions will not be left to “acting” subordinates as typically occurs when political appointees are directed to resign during a presidential transition.

“I have received authorization from the president-elect’s transition team to extend a number of Department of Defense political appointees an invitation to voluntarily remain in their current positions until replaced,” Mr. Gates said in a Friday e-mail.

There’s nothing “unusual” about this. (Except, of course, that a Pentagon leader is carrying over during a transition of power between political parties.) Ned Walker, president of the Middle East Institute and as forceful a critic of neoconservatism as you’ll find, was assistant secretary of state for Near East affairs for the first eight months of the Bush administration. Ideological heresy? No, he was just assistant secretary for the final years of the Clinton administration, and replacing people takes time. So it goes. You have to read pretty far down into the story before you come to this choice part of Gates’ email:

“To the extent you are willing and in a position to continue to serve, I am deeply appreciative,” Mr. Gates said in the e-mail. “However, I encourage you to continue to prudently plan for the transition from DOD employment, as the pace of personnel decisions by the incoming administration is likely to accelerate.”

I’m actually going to have some fun on this subject in a piece tomorrow morning, but for now, let’s simply note that this isn’t really out of the ordinary. Jim Clapper, the undersecretary for intelligence — actually a really important job — is singled out by Gertz as someone “expected to stay.” Until he leaves. Sometime next year. When the Obama people name his replacement.

The Pentagon hopes to deploy two additional combat brigades to Afghanistan by next summer, Defense Secretary Robert Gates said Wednesday, accelerating the shift of resources from Iraq.

Which units, precisely, haven’t been decided yet, but Dreazen reports that one of them may be “diverted from Iraq.” With the new brigade combat team that’s going to be positioned (mostly) in the Logar-Wardak area, the additional troop component now stands at three brigades by (maybe) the summer, one shy of the four that Gen. David McKiernan, commander of U.S. forces in Afghanistan, has requested.

So the U.S. will get three new brigades for Afghanistan. The Marine Corps wants to go all-in. But what the U.S. still doesn’t have is a clear achievable strategy, as Jack Murtha pointed out yesterday. There’s a strategy review being conducted by Gen. David Petraeus. Inevitably there’ll be a review conducted by the Obama administration once it takes office. But unless those reviews address the hard questions — what are the right goals for the U.S. in Afghanistan? What’s it going to take to achieve them? What’s a reasonable and what’s an unreasonable cost for success? — all that Afghanistan is going to bring the U.S. is more suffering. Jim Jones, the incoming national security adviser, has given indications that he agrees. But we’ll have to wait and see.

So it’s fortuitous that Julian Barnes — no, not the novelist, the Pentagon correspondent for the Los Angeles Times — has a piece today about precisely that:

The decision to keep Gates could spell the end of the Army’s $160-billion Future Combat Systems program and dim Air Force hopes for large numbers of new high-tech F-22 fighter jets. At the same time, smaller projects — perhaps blimps or light planes useful for ongoing conflicts — are likely to find new support.

“It is going to be more of a Wal-Mart approach than a Gucci approach,” a senior Pentagon official said.

As it happens, those are two programs that Korb himself singles out for criticism in the Center for American Progress’ brand-new defense-reform report that I highlighted yesterday. More on this later, as I’m off to the rollout of the CAP report.