Since the time that captured “enemy combatants” were first brought to Guantanamo Bay in 2002, the detainment facility has undermined America’s image as the model of justice and protector of human rights around the world. Holding prisoners for an indefinite period of time, without charging them with a crime goes against our values, ideals and principles as a nation governed by the rule of law. Further, Guantanamo Bay has become a liability in the broader global war on terror, as allegations of torture, the indefinite detention of innocent men, and international objections to the treatment of enemy combatants has hurt our credibility as the beacon for freedom and justice. Its continued operation also threatens the safety of U.S. citizens and military personnel detained abroad.

Marcy’s emphasis. Now Emanuel, the White House chief of staff, is horsetrading with Sen. Lindsey Graham (R-S.C.) about closing the Guantanamo Bay detention facility — the consistent thread here — in exchange for a military trial for Khalid Sheikh Mohammed and, Graham hopes, some entrenched system of indefinite detention. Of course, the Justice Department task force on Guantanamo has already recommended over 40 detainees to be held indefinitely without trial, so perhaps Graham is merely offering a quantitative addition.

(Full disclosure: My personal blog appears on FDL.)

The ACLU, meanwhile, has identified an important point about the chronology of the CIA’s internal communications about the tapes. Although the communications remain classified, the dates and summaries of their content provided by the government reveals that a request to destroy the 92 tapes were  made just days after The Washington Post reported on the existence of secret overseas CIA prisons known as “black sites.” Another request was made on the day The New York Times reported that the CIA inspector general had issued a report questioning the legality of the agency’s interrogation methods.

The tapes were destroyed that same day.

The White House was also dissatisfied with Craig’s handling of political appointments, believing that Craig should have spent more time working with the Justice Department and with Congress to force through some of the president’s most eagerly awaited principals, like Dawn Johnsen, whose nomination to be head of the Justice Department’s Office of Legal Counsel still languishes. The issue of nominations is especially sensitive for the president, a constitutional law lecturer in his former life.

My colleague Daphne Eviatar has reported extensively on the parliamentary machinations keeping Johnsen bottled up in the Senate.

What’s particularly interesting about the assertion this time, though, is that it doesn’t appear to be simply covering up Bush-era government misconduct. The case, Shubert v. Bush, suggests an ongoing illegal government data-mining program that intercepts and listens in on a huge range of communications by U.S. citizens. The complaint (PDF), filed by ordinary U.S. citizens living in Brooklyn, N.Y., who communicate with people in different countries, is a fascinating read that charges the government is engaged in a bizarrely vast surveillance dragnet. On the one hand, it sounds completely paranoid; on the other hand, it could be true.

We may never know, however, because if Attorney General Eric Holder has his way, the case will be dismissed before the lawyers even get a chance to investigate. That’s because the government has “to protect against a disclosure of highly sensitive, classified information that would irrevocably harm the national security of this country,” as Holder said in a statement released late on Friday. Holder has once again invoked the so-called “state secrets privilege,” this time reluctantly, he says, because “there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.”

In fact, federal courts handle classified and sensitive information all the time without disclosing it publicly, by filing records under seal and requiring the lawyers involved in the case to obtain security clearance. It’s unclear why that wouldn’t work in this case. But one implication of Holder’s statement is that the spying and data-mining program is ongoing, so to reveal it would harm national security.

Another equally disturbing implication of Holder’s statement is that even if the government were engaged in blatantly illegal conduct that violates the U.S. Constitution, the Foreign Intelligence Surveillance Act, the Wiretap Act and other federal laws, there would be no way for any U.S. citizen targeted by the government’s illegal conduct to find out, let alone to hold anyone accountable.

As Ilann Maazel, a lawyer representing the plaintiffs who filed the case, told the National Law Journal earlier today, “In the Justice Department’s view, the government is free to violate any law” based on the assertion that national security is involved. “What the government is doing is avoiding any inquiry into the program.”

Judge Vaughn Walker in the Northern District of California, where the case is pending, has previously greeted the government’s assertion of the state secrets privilege with skepticism, and, in at least one case against an Islamic charity that claimed it was wiretapped, allowed the case to proceed.

We’ll be following closely to see what he does with this one.

That may be true, but there’s an aspect of one of Brennan’s recent speeches that, if actually implemented, would have the opposite effect.

As Spencer Ackerman reported here earlier, Brennan, in his speech to the Center for Strategic and International Studies, declared an end to the “war on terror.”

“This is not a ‘war on terror,’” Brennan said. “We cannot let the terror prism guide how we’re going to interact and be involved in different parts of the world.”

Well, if that’s the case, then how is the Obama administration going to justify “preventive detention” of terror suspects under the laws of war?

That power to detain supposedly “dangerous” people who can’t be proven guilty in any sort of court is a power the Bush administration relied on heavily and the Obama administration continues to claim. It’s at the core of President Obama’s claim that there’s a class of people who cannot be tried in criminal court or even by military commission, yet still must be held in prison because they’re “dangerous.”  That’s all been justified legally by saying that we’re at “war,” and terror suspects are warriors in the “war on terror.”

Now that the Brennan has declared an end to that war, is the Obama administration willing to relinquish its right to detain terror suspects picked up anywhere in the world?

So far, Obama has not made clear how he intends to use this “preventive detention” authority he claims that he has, though it’s as broad a detention authority as Bush Attorney General Michael Mukasey claimed over a year ago. But if Brennan really has the sway over the administration that Wheeler suggests he does, then maybe Obama will soon have to concede that the “war on terror” is over — and so is his corresponding power to seize and imprison its supposed “warriors” anywhere in the world.

Also tomorrow, after numerous delays, the Obama administration is expected to produce a much-anticipated 2004 CIA inspector general’s report with more details and criticism of the Bush administration’s interrogation tactics.

As I explained in my last post on the Jawad case, the Obama administration is trying to keep holding Jawad — who’s been in U.S. custody without charge for almost seven years — based on those tortured confessions, which even a military judge previously deemed too unreliable to use in his military commission case.

The ACLU will argue tomorrow that the federal judge in Jawad’s habeas corpus case should rule that evidence gathered through torture is still too unreliable — and therefore inadmissible — to be the basis for continuing to keep him in prison indefinitely.

Although the Jawad case appears to be the first in which the Obama is seeking to rely on evidence obtained through torture, it’s just one of many examples of the government’s refusal to acknowledge the legacy of torture under the Bush administration — and its consequences.

There are, of course, the now-notorious photographs of detainee abuse that the Obama administration has kept from being released, despite the orders of a federal court to turn them over. And then there’s the fact, which Glenn Greenwald, Marcy Wheeler, Daily Kos and John Sifton have been writing about, that there are a whole lot of unsolved murders and mysterious autopsy reports concerning the brutal deaths of detainees in U.S. custody, for which almost no one has been held accountable.

In many cases, these deaths weren’t the result of waterboarding or some other act that Obama administration officials have admitted are torture; they seem to have been the result of ordinary “enhanced” interrogations:  beatings, stress positions, food and sleep deprivation and the like.

According to a report from Human Rights First, about 100 detainees have died in U.S. custody since August 2002, but only 12 deaths have resulted in punishment of any kind for U.S. officials.

The ACLU has embarked on an important campaign for accountability for the torture and abuse that U.S. officials have inflicted on detainees. That includes ongoing efforts to unearth more information, to press for prosecutions of those who authorized the abuse, and to compensate the victims, many of whom, like Jawad, still remain in U.S. custody.

Tomorrow’s brief arguing that tortured evidence shouldn’t be the basis for continuing to hold detainees is a small but important step.

But the President’s speech seemed primarily aimed at stopping torture abroad, which is presumably why he’s called on the State Department to get involved. But what about torture committed by our own government?

I know some are still debating which techniques constitute “torture” — such as in this scolding piece from The Washington Times — but because the Convention Against Torture, which the president was commemorating, prohibits torture AND cruel, inhuman and degrading treatment, as I’ve noted before, at this point we can put that debate aside. There’s little question that the sort of techniques engaged in by U.S. government officials — whether partial drowning, “walling,” weeks of sleep and food deprivation or locking detainees inside a tiny box with what were believed to be deadly insects is, at the very least, cruel and degrading.

It’s odd, therefore, as Marcy points out, to see the president — who vowed on his third day in office to end torture — refusing to prosecute those who engaged in acts that clearly violate the anti-torture convention he commemorated on Friday.

As Marcy put it: “Mr. President, the agency that must take the lead in stopping torture is the Department of Justice. The effective policies for stopping torture you’re looking for? They start with prosecuting torture.”

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Yeah, if only. The Obama administration won’t release the document today. According to the ACLU, it’s asked for a three-day reprieve. ACLU’s consented. Game Day is now supposed to be July 1.

Helgerson’s 2004 report is a crucial one. As disclosed through references in the footnotes of the 2005 Office of Legal Counsel memos, it documents how the agency took the OLC’s legal imprimatur for certain abusive interrogation techniques and expanded those techniques in practice to, among other things, waterboard Khalid Sheikh Mohammed 183 times, denying him sleep for a week by contorting his body into unnatural positions, and restrict his diet to between 1000 and 1500 calories a day. Marcy Wheeler has an excellent couple of posts about what torture questions the report should answer. And Helgerson, who recently retired from CIA, suffered for his work, tussling with former Director Michael Hayden, who attempted to limit his independence.

Maybe we’ll see the answers to those torture questions early next week, but it’s sure not looking good. I’ll have the government’s letter seeking the reprieve shortly.

UPDATE: Here’s the letter from the Justice Department:

One thing, substantively: I’ve seen some people mock the idea that what the memos show is actually indicative of a torture regime. Caterpillars in a box? C’mon. .. Let’s cede that objection for the sake of argument.

What the 2005 memos show — and really, it’s what the 2004 CIA Inspector General report shows, since it’s that still-unreleased report that the 2005 memos reference to deal with how the interrogation regime worked in practice — is that once you relax the restrictions on torture, it’s extremely difficult in practice to not cross the subsequently established lines. If it’s acceptable to waterboard someone once, why not twice, and three times, and so forth. But the Senate Armed Services Committee report last year found that the torture techniques for the exceptional cases of Abu Zubaydah and Khalid Shaikh Mohammed wound up in use at Guantanamo Bay; and the Schlesinger report on Abu Ghraib in 2004 found that the torture techniques “migrated” from Guantanamo Bay (Geneva Conventions-free) to Iraq (Geneva Conventions-required).