The federal judge who helped draft Justice Department memos on torture has set up a legal defense fund to pay the costs of defending against possible disciplinary or impeachment proceedings. Jay Bybee, a U.S. Court of Appeals judge in Las Vegas, quietly set up the fund last July following widespread news reports that he and a former deputy, John Yoo, were the focus of a long-running investigation by the Justice Department’s internal ethics unit, the Office of Professional Responsibility (OPR), over their role in crafting the memos.

Attorney General Holder said yesterday he expected the Justice Department would finally release a version of the OPR report by the end of the month. Judge Bybee is evidently prepared for the rather nettlesome case of his former employer considering him unfit to practice law: Isikoff reports that he’s got Liz Cheney’s advocacy group, Keep America Safe, on his side.

One interesting question arises. Bybee’s former deputy John Yoo helped him craft the torture memos in 2002. Yoo faces similar criticism and legal difficulty, and is reportedly implicated in the OPR report alongside his old boss. But Yoo’s personal legal expenses are, risably, covered by the American taxpayer. Will Bybee similarly stick us with the bill?

From a statement issued by the trio:

We are confident that the government can preserve national security without resorting to sweeping and radical departures from an American constitutional tradition that has served us effectively for over two centuries.

Civilian federal courts are the proper forum for terrorism cases. Civilian prisons are the safe, cost effective and appropriate venue to hold persons convicted in federal courts. Over the last two decades, federal courts constituted under Article III of the U.S. Constitution have proven capable of trying a wide array of terrorism cases, without sacrificing either national security or fair trial standards.

Likewise the federal prison system has proven itself fully capable of safely holding literally hundreds of convicted terrorists with no threat or danger to the surrounding community.

The scaremongering about these issues should stop.

Barr has a unique position in the conservative coalition–he left the GOP to run for president as a Libertarian candidate, but his campaign is not seen to have spoiled anything for the McCain-Palin ticket. Keene and Norquist remain conservative powerhouses, and the former played key role in making Doug Hoffman’s NY-23  campaign into a national cause.

An Italian judge sentenced 23 former CIA agents to up to eight years in prison on Wednesday for the abduction of a Muslim cleric in a landmark ruling against the “rendition” flights used by the former U.S. government.

The Americans were tried in absentia for the 2003 kidnapping, in a case that garnered headlines around the world.

President Barack Obama (WDCpix)

In signing the Defense Authorization Act, which, among other things, amends the laws governing military commissions, President Obama confirmed Wednesday that he plans to keep the controversial military commissions alive. The effect is to deny at least some suspected terrorists — now called “unprivileged enemy belligerents” — the right to a trial in a civilian federal court. And though Obama has promised to use the commissions sparingly, the new law sets up a parallel justice system that could outlive the Obama administration and leave an indelible stamp on its legacy.

Image by: Matt Mahurin

Even those who fiercely oppose trying suspected terrorists in military commissions acknowledge that the months of wrangling over the legislation in Congress led to significant improvements over the Bush-era military commissions approved in the Military Commissions Act of 2006. Still, there are many lingering concerns. The new commissions allow the admission of coerced evidence in certain narrow circumstances. They allow the government to try children as war criminals. And, the new law would allow trials by military commission for offenses that are not traditionally considered war crimes. Those provisions leave even the new-and-improved military commissions vulnerable to constitutional challenge, and their verdicts open to reversal on appeal. And that could undermine the entire purpose of creating military commissions, which is ordinarily to provide swift justice when ordinary courts are not available.

Many legal experts and human rights advocates say the improvements over the 2006 Military Commissions Act are significant.

Under the amendments, an “unprivileged enemy belligerent” — what the Bush administration used to call an “enemy combatant” — is entitled to competent, experienced defense counsel, particularly if the suspect might face the death penalty. The previous commissions did not provide for defense lawyers with significant experience handling capital cases.

The new commissions also require that most statements of the accused must have been “voluntary” to be admitted at trial. That’s in addition to the requirement that the statements were not solicited by torture, or by cruel, inhuman or degrading treatment, as defined by the Detainee Treatment Act. Of course, the Detainee Treatment Act was interpreted by the Bush administration’s lawyer very liberally, so even extreme sleep and food deprivation, stress positions, threatening dogs and confinement with an insect in a small box was deemed lawful under that standard. But adding that the statement must also be “voluntary” — a change pressed by the Obama administration at several Congressional hearings — raises the bar significantly higher.

On the other hand, there is an exception. Statements are admissible even if not “voluntary” if “the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence.”  It remains to be seen how narrowly a judge will construe that.

The admission of hearsay evidence has been narrowed as well. The new law requires whoever introduces the evidence to give the other side enough advance warning to see the evidence and prepare a response, and the judge, in weighing the evidence, must “take into account all of the circumstances surrounding the taking of the statement, including the degree to which the statement is corroborated, the indicia of reliability within the statement itself, and whether the will of the declarant was overborne…” Then, in addition, the judge has to find that the statement is relevant and probative of a fact of the case, that it’s impractical to get direct testimony from the witness, and that “the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.” That essentially mirrors the hearsay exception for evidence provided in a civilian federal court.

As for the admission of classified evidence, the military commission has to follow the same procedures a civilian federal court would to determine how and if the evidence can be used, and to what extent and in what form the accused and his lawyer are entitled to see it.

But if the procedural safeguards are so similar to those in federal court, then why have the military commissions at all? The question is even more important because Congress, in passing this law, defined the court’s jurisdiction to include crimes that are not traditionally war crimes, such as conspiracy, and suspects who are not traditionally considered war criminals, such as those who provide “material support” for terrorism. Even Assistant Attorney General David Kris, testifying before Congress, testified that it’s not clear that those crimes — which are commonly charged against terror suspects in civilian federal courts — can constitutionally be brought before a military commission. Justice Stevens, in the case of Hamdan v. Rumsfeld, in an opinion joined by three other justices, specifically notes that “conspiracy” has not traditionally been considered a war crime. (The court did not ultimately rule on that basis, so it’s not clear how a majority would rule on it now.) Therefore, defense lawyers could argue that for Congress to make it a war crime after the suspect’s crime was committed would be an unconstitutional “ex post facto” law, says Shayana Kadidal, senior managing attorney of the Guantanamo Global Justice Initiative at the Center for Constitutional Rights.

For the administration to bring a terrorism case before a military commission and be sure to avoid this issue, then, it would have to avoid charging conspiracy and substantial support for terrorism. Those charges are made in almost all terrorism cases.

Which raises the question, why bring cases in military commissions at all?

Justice John Paul Stevens in Hamdan argued that the purpose of military commissions is “military necessity.” Yet in this situation, as many legal experts have pointed out, it’s not at all clear that these commissions are necessary.

As the ACLU’s Jameel Jaffer said in a statement released yesterday after the President signed the new law: “The commissions remain not only illegal but unnecessary – the federal courts have proven themselves capable of handling complex terrorism cases while protecting both the government’s national security interests and the defendants’ rights to a fair trial.”

Many other lawyers and advocates agree. A study conducted by former prosecutors for Human Rights First, for example, found that civilian federal courts had successfully prosecuted more than 214 terrorism cases since September 11, 2001. Prosecutors won 195 convictions, and successfully handled the challenges of unavailable witnesses, classified evidence, undercover informants and other complexities that arise in terrorism cases, the report found. By contrast, the military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases. In only one of those did the defendant even put on a defense. In that case, Salim Hamdan, Osama bin Laden’s driver, was sentenced to only five and a half years in prison, with credit for the more than five years he’d already served. He was released to his home country of Yemen in January.

Part of the reason the military commissions have been so ineffective is because they were vulnerable to constitutional challenge. But legal experts say that even the new commissions would be vulnerable. As ACLU attorney Chris Anders put it, “they’ve narrowed the gap, but they still fall far short of the due process guarantees in Article III courts, which will still make them vulnerable to reversals.”

“This is a brand-new system, for the third time,” said Kadidal, referring to the two earlier incarnations of the military commissions during the Bush administration. The first commission system was invalidated by the U.S. Supreme Court, and the second was suspended by the Obama administration.

“This lesser degree of process is not justice,” said Virginia Sloan, president of the bipartisan Constitution Project, in a statement released yesterday. “Furthermore, these modest improvements cannot save the irretrievably tainted military commissions.”

The Obama administration surely knows that these cases are vulnerable to challenge, particularly since Congress included provisions in them that Justice Department lawyers admitted were legally questionable. And it’s not clear that it wants to bring important cases in the military commissions, and risk having convictions of major terrorists reversed on appeal.

What’s more, there’s no “sunset provision” in the legislation, so the military commissions can exist indefinitely. That’s also contrary to what the administration itself asked for. David Kris, testifying before the Senate Armed Services Committee, noted that traditionally, “military commissions have been associated with a particular conflict of relatively short duration.” Buy contrast, the current conflict “could continue for a much longer time.”

The result is that the military commissions could outlast the Obama presidency, raising another potentially sticky point that the Obama administration might prefer to avoid. “By not having a sunset provision,” said Kadidal, “this system will be a permanent part of President Obama’s legacy.”

Center for Constitutional Rights Executive Director Vincent Warren yesterday made the point even more starkly: “These are now President Obama’s military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”

The Ninth Circuit Court of Appeals ruled for the victims and reinstated the case last spring, after it was dismissed by the U.S. District Court in Northern California.  The lower court had accepted the government’s argument (then made by the Bush administration) that letting the lawsuit move forward would expose “state secrets” and endanger national security, even though the Obama administration says it no longer engages in extraordinary rendition. But the plaintiffs appealed, and a three-judge panel of the Ninth Circuit, historically a liberal-leaning court, reversed the district court and reinstated the case. The panel ruled that there were no grounds to claim that a lawsuit against a government contractor must be dismissed just because the contractor was working with the CIA. “Nothing the plaintiffs have done supports a conclusion that their ‘lips [are] to be for ever sealed respecting’ the claim on which they sue, such that filing this lawsuit would in itself defeat recovery,” wrote the court.

The Obama administration, however, was not prepared to accept that ruling. So it asked the full court of appeals to reconsider the case — something it does only rarely. Yesterday, the court granted that request, handing the Justice Department another chance to argue that the case against the private Boeing subsidiary should be dismissed to protect “state secrets.”

Like its predecessor, the Obama administration has sought to dismiss several important cases involving torture and warrantless wiretapping under the so-called “state secrets privilege,” which seeks to protect genuine government secrets that, if disclosed, would endanger national security. The government’s actions have prompted anger from civil libertarians and proposed legislation in Congress to limit the president’s power to invoke the state secrets privilege to dismiss cases alleging government wrongdoing. President Obama’s new policy on his administration’s use of the state secrets privilege, announced in September, did not satisfy many critics.

In the Jeppesen case, the Obama Justice Department has been adamant that the details of the Bush administration’s rendition-to-torture program remain secret — hence it’s request to the full Ninth Circuit to re-hear the case en banc, meaning all 11 active judges, rather than just the three-judge panel that ordinarily hears cases.  Courts of appeals reserve en banc hearings for unusually controversial and important cases, usually when there’s significant disagreement among the judges in the circuit. The judges vote on whether the case should be re-heard, but the outcome of the vote is not made public.

Apparently there is significant disagreement in this case, because the judges voted to accept the request for rehearing, the court announced yesterday.

While that sounds good, remember that the Detainee Treatment Act was interpreted by the Bush administration’s Justice Department to allow such “enhanced interrogation techniques” as sleep deprivation, food deprivation, shackling, forced standing in stress positions, and a variety of “corrective techniques” that include physical slaps and grabs – either alone or in combination. The new “protections” in the MCA amendments are therefore not all that reassuring.

The amendments also continue to allow judges to admit hearsay evidence, even though the source of the evidence is unavailable for cross-examination by defense counsel. Classified evidence can also still be used against a defendant, although he does not have the right to see it. Protections were added, however, so that the procedures used to protect classified evidence essentially mirror those used in a civilian federal court.

This post has been updated.

After the jump, Slaughter’s full remarks made this morning on the House floor about why FOIA should not be amended and the photos should not be concealed. 

There are few things that say more about our country and our trust in the public’s right to know than the Freedom of Information Act.

It’s one of the most powerful statements of openness and transparency we have. It affords ordinary people the ability to peer behind the curtains of power and see inside the many bureaucracies that define the federal, state and local governments in this country.

It’s a symbol for all that despite anything else that our government does in the name of the people, there should be no secrets.

Over the years, FOIA laws have been used for a wide range of purposes. FOIA helped us discover the ugly truth about the use of Agent Orange in Vietnam, Laos and Cambodia during the 1960’s. And FOIA was also used to uncover data showing that Ford Pintos were built with serious fuel

system defects that made them more prone to fire and explosions.

In some ways, FOIA is simply a reminder to the public that there is an avenue to pursue if they believe the government is keeping secrets. At the heart of FOIA is the concept that the people’s right to know is more important than the government’s desire to keep things secret.

The FOIA laws in this country have enabled reporters and citizens from all spectrums access to information that otherwise might never see the light of day.

Signed into law by President Johnson in 1966, FOIA laws allow for the full or partial disclosure of information and documents with only a narrow list of exemptions.

So it was with some dismay when we learned recently that the House and Senate conferees on the Homeland Security appropriations bill had slipped in a provision that gives the government the option of making old photos of detainee abuse exempt from FOIA laws.

This case has already followed a lengthy path, beginning with a lawsuit filed by the ACLU against the Pentagon. Last spring, when it appeared that the lawsuit might go against the government, this Administration responded by asking some members of the House and Senate to insert language into legislation to make sure the photos stay secret.

Joining the ACLU against the Pentagon was the American Society of News Editors, The Associated Press, Cable News Network, Inc., the E.W. Scripps Company, Gannett Co., Inc., the Hearst Corporation, Military Reporters and Editors, the National Press Club, NBC Universal, Inc., the New York Times Company, the Newspaper Association of America, the Newspaper Guild-CWA, the Radio-Television News Directors Association, the Society of Professional Journalists and The Washington Post.

Never mind that the photos in question likely have very little value, given that a similar set of photos showing abuse were released under the Bush Administration. Despite some complaints that releasing the photos would put servicemen and women in danger, the fact is there was absolutely no increase in violence or attacks after the previous detainee photos were released. My guess is that if we were to release new photos the result would be the same.

And many observers argue that releasing the photos was actually a clear break from the abuses of the past – and a signal to our allies and everyone else that the days of this type of detainee mistreatment were over and that the United States is willing to come to terms with its past practices.

In June, I and other House leaders prevailed and the FOIA exemption was dropped from legislation.

However, the conferees – apparently under direct orders from the Administration – quietly put it back into the bill this month.

It’s hard for me to express how disappointed I am with that decision. I am sorry because I believe that we had turned a page from the cloud of suspicion and secrecy that marked the previous Administration. It runs so counter to our principals and stated desire to reject the abuses of the past. The FOIA laws in this country form a pillar of our First Amendment principals.

It’s unfortunate given that this Administration promised that openness and transparency would be the norm. We should never do anything to circumvent FOIA and I believe that our country would gain more by coming to terms with the past than we would by covering it up. I hope that the President will follow judicial rulings and consider voluntarily releasing these photos so we can put this chapter in history behind us.

Update: C-SPAN has video of Slaughter’s remarks, which begin shortly after the 50-minute mark here.

2nd Update: Here’s the video.

Morning prayer for detainees in Camp 4 of the Guantanamo Bay Detention Facility (Zuma Press)

When he took office, President Obama made clear that torture is illegal and that the United States would not abuse detainees in its custody. He immediately ordered the CIA as well as the rest of the U.S. government to adhere to the rules set out in the Army Field Manual, which forbid the torture, abuse or humiliation of prisoners.

But when it comes to those tortured during the Bush administration, the Obama administration refuses to say that Bush officials violated existing law. In fact, in litigation over the torture and abuse of detainees that in some cases may have resulted in their deaths, the Obama administration has surprisingly endorsed the same legal positions as its predecessor, insisting that there is no constitutional right to humane treatment by U.S. authorities outside the United States, and that victims of torture and abuse and their survivors have no right to compensation or even an acknowledgment of what occurred.

Illustration by: Matt Mahurin

Several cases making their way through the courts now are challenging that position. In each, the Obama administration is taking essentially the same legal positions as did the Bush Justice Department before it.

The case of Al-Zahrani v. Rumsfeld, brought on behalf of two former Guantanamo detainees found dead in their cells in June 2006, is among the most recent filed. It’s now being actively litigated in a Washington, D.C. federal court. Neither Yasser Al-Zahrani nor Salah Al-Salami was ever charged with a crime, but both were deemed “enemy combatants” by a Defense Department procedure that the Supreme Court later declared inadequate. They spent four years in U.S. custody at Guantanamo Bay without charge, without seeing the evidence against them, and without ever even meeting with a lawyer who could press their case. On June 10, 2006, the men were found hanged in their cells on a rope made from bed sheets and T-shirts. The military declared both deaths suicides. Al-Zahrani was 17 years old when he was transferred to Guantanamo and 22 when he died. Al-Salami died at age 37.

In January, the men’s fathers sued Defense Department officials. Represented by the Center for Constitutional Rights and the Human Rights Law Clinic at Washington College of Law at American University, the fathers claim their sons were subjected to conditions and treatment that the International Red Cross has described as “tantamount to torture.” They also claim that Defense Department officials ignored obvious signs of their deteriorating mental health, their growing despair, and the high risk of suicide.

In letters found after their deaths, the two prisoners described being beaten, deprived of sleep for up to 30 days, held in freezing cold or excruciatingly hot temperatures, subjected to humiliating and degrading body searches, prevented from practicing their religion, forcibly shaved contrary to their religious beliefs, and denied necessary medication. Both men were also isolated from the outside world and their families, and even separated from other detainees. According to their lawyers, they “spent the majority of each day confined alone in a small cell with numbingly little activity or stimuli and deprived of basic personal care items.” Al-Zahrani, who was one of the first detainees to arrive at Camp X-Ray in Guantanamo Bay, was held for the first few months of his detention in a small wire cage.

To protest their detention and conditions, the two men, along with dozens of other detainees, went on a hunger strike for several months. The government responded not by improving the conditions, but by restraining the men in chairs, forcing tubes down their noses and throats, and pumping food into their stomachs, their lawyers claim.

Meanwhile, they argue, it was clear that the prisoners’ mental health was deteriorating. In August 2003, nearly two dozen prisoners tried to hang themselves in their cells. And according to the complaint filed in this case, a military official acknowledged that shortly before the deaths of Al-Zahrani and Al-Salami, there was a high risk of mass suicide in the prison.

The relatives filed their lawsuit against 24 military officials, including former Secretary of Defense Donald Rumsfeld and former Chairman of the Joint Chiefs of Staff, Gen. Richard Myers, seeking acknowledgment of wrongdoing and compensation for the two prisoners’ deaths. But in June, the Obama administration’s Justice Department moved to dismiss the case. The government’s lawyers argued, among other things, that the Military Commissions Act, passed by Congress in 2006, had 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.

Although lawsuits were brought during the Bush administration similarly suing Bush military officials for abuse, wrongful imprisonment and torture, none of those cases involved detainees who the military had decided were “enemy combatants.” But a slew of cases were brought on behalf of so-called “enemy combatants” seeking review of the legality of their detention in federal court.

In one of those cases decided last year, the Supreme Court held that part of that provision of the Military Commissions Act was an unconstitutional suspension of the right of habeas corpus, which allows a prisoner to challenge his detention. But that case, Boumediene v. Bush, did not rule specifically on whether prisoners have the right to challenge the conditions of their detention or their treatment in prison. The decision pertained solely to the right to challenge the detention itself.

Now, for the first time, the lawyers representing the families of Al-Zahrani and Al-Salami are arguing that the part of the Military Commissions Act that deprived the courts of hearing challenges to the treatment of detainees and conditions of their confinement is unconstitutional as well, and that Congress lacked the authority to strip the federal courts of jurisdiction over constitutional claims.

“Article III [of the U.S. Constitution] demands some federal court review—whether original or appellate—over all federal question claims,” writes the Center for Constitutional Rights in its brief to the D.C. federal court filed last week. “Because MCA Section 7 purports to eliminate all such review, it is unconstitutional and void.”

As CCR lawyer Shayana Kadidal explained it in an e-mail: “the text of Article III of the Constitution (the article dealing with the judicial branch) expressly says ‘the judicial power shall extend to all cases’ involving questions of federal law.” The Military Commissions Act contradicts that, says Kadidal: “The MCA says no court anywhere can review even constitutional claims.”

The Obama administration is insisting, however, that Congress had the power to eliminate judicial review of these claims. It also argues that the Defense Department officials are immune from suit, because, as the Bush Justice Department argued in previous cases, it wasn’t clear at the time that detainees had a right not to be tortured by U.S. officials at Guantanamo. They therefore have “qualified immunity” from suit.

But the Justice Department goes further than that. Under President Obama, the government is arguing not only that it wasn’t clear what rights detainees were entitled to back in 2006, but that even today the prisoners have no right to such basic constitutional protections as due process of law or the right to be free from cruel and unusual punishment. The “Fifth and Eighth Amendments do not extend to Guantánamo Bay detainees,” writes the Justice Department in its brief.

And, the government argues, the courts should not imply a right to sue under the Constitution, in part because that could lead to “embarrassment of our government abroad.”

Ultimately, the Obama administration is arguing, victims of torture at a U.S.-run detention center abroad have no right to redress from the federal government. Only the military can take action in such cases, by disciplining military officers for abuse of prisoners. Yet during the Bush administration, military officials were rarely held accountable for abuse, even when it resulted in the deaths of detainees, as Human Rights First documented in a 2005 report. Senior officials in particular were exempt from accountability, and as retired Rear Admiral John Hutson, dean of the Franklin Pierce Law Center, noted at the time, “the highest punishment for anyone handed down in the case of a torture-related death has been five months in jail.”

TWI has also documented that the Pentagon has repeatedly ignored claims from its own military counsel that Defense Department employees abused, tortured and committed war crimes against detainees, as in the case of Guantanamo prisoner Mohammed Jawad.

Pardiss Kebriaei, the lead attorney on the case for the Center for Constitutional Rights, insists that the government is misreading Supreme Court precedent when it comes to the rights of Guantanamo detainees. “The Supreme Court has ruled three times that Guantanamo is not beyond the reach of the law, yet the government is claiming, in 2009, that the base is still a legal black hole and what happens at Guantanamo stays at Guantánamo,” said Kebriaei.

Eric Lewis, who represents four British former detainees who sued the federal government for their wrongful imprisonment and torture while in custody, and whose case was dismissed under the Bush administration (they recently filed a petition for review by the Supreme Court,) thinks the parents of Al-Zahrani and Al-Salami have a strong argument that the part of the law that strips the courts of jurisdiction over their claims is unconstitutional.

“If there’s a constitutional right, you need to provide some forum,” he said. “You can’t deprive them of all forums.”

Although the government officials are also claiming immunity on the grounds that they didn’t know it was unconstitutional to torture prisoners, Lewis argues that in the Al-Zahrani case, unlike earlier ones, there’s a case to be made that by 2006, when the men died, the Supreme Court had already ruled in Rasul v. Bush that detainees have the constitutional right to challenge their detention at the Guantanamo Bay prison camp, where the U.S. has “plenary and exclusive jurisdiction” even if it doesn’t have “ultimate sovereignty.” In other words, the court had already ruled that Guantanamo detainees have some constitutional rights.

The government, for its part, argues that it still wasn’t clear what specific rights Guantanamo detainees were entitled to, even in June 2006. And that argument could prevail. As Richard Seamon, a professor at the Idaho School of Law who has written extensively about torture lawsuits notes in a recent article posted on JURIST, federal officials in such cases may be granted qualified immunity “because of the paucity of case law clearly establishing the unconstitutionality of the use of torture in the war on terrorism and high-level executive-branch actions seemingly endorsing the torture, such as the Department of Justice’s infamous ‘torture memo.’”

Then again, as Lewis put it: “I would argue that when you’re the secretary of defense, you don’t need special notice to know it’s wrong to torture people.”

According to the Justice Department’s latest briefs filed in the Al-Zahrani case, however, the Obama administration does not agree.

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.

Americans’ surprise at the announcement may be best explained by a quick look at Obama’s domestic policies when it comes to the international war on terror — so let’s take a glance at Glenn Greenwald’s page today at Salon. Just below his discussion of Obama’s Nobel prize is a lengthy analysis of how the president, now with the help of Congress, has repeatedly suppressed evidence of war crimes committed by the previous administration.

From trying to exempt abuse photos from the Freedom of Information Act to dismissing torture cases on “state secrets” grounds, encouraging Congress to limit civil liberties protections against broad-based FBI snooping and refusing even to investigate cases where the Defense Department appears to have tortured detainees in its custody (let alone investigating the policymakers who approved of the abuse), the Obama administration has so far amassed a disappointing record on “peace”-related activities at home.

The Nobel Committee was obviously looking at different things when it made its award, and emphasized Obama’s ability to “capture the world’s attention” and offer people hope for the future. That’s a good start, and hopeful rhetoric is important and a welcome change for the so-called “leader of the free world.” But true diplomacy and progress and “peace” can’t come from hiding the brutality of the past.

So far, just as he’s promised a new diplomacy, the President has made lots of hopeful promises about a new transparency and accountability in government. He has yet to follow up on them.