That’s just one of several sure-to-be-controversial recommendations the group makes in a new report released Tuesday.

CAP also wants the president to prosecute the suspected 9/11 conspirators in civilian federal courts, contrary to the calls of some lawmakers, like Senators Graham, Lieberman, McCain and others who insisted they be tried only in military commissions. (Their efforts to push through legislation to that effect failed last week.)

And, despite the fact that these five men are accused of the largest mass-murder ever on U.S. soil, CAP wants the president not to seek the death penalty for any of them. “It is in the strategic interests of the United States to deny these most heinous Al Qaeda terrorists what they want most: martyrdom,” writes Ken Gude, Associate Director of the International Rights and Responsibility Program and author of the new report.

As for the use of the military commissions that the president just revived by signing new legislation last week, those “remain tainted by Bush-era mistakes, and must be limited—if used at all—to battlefield crimes in order to gain a measure of legitimacy.”

Gude also recommends limiting military detention to actual enemy fighters captured in combat zones. Right now, the administration claims the right to seize and detain indefinitely suspected al-Qaeda or Taliban terrorists found anywhere in the world.

Those concerned that the Bagram detention center in Afghanistan is becoming “Obama’s Gitmo,” as it’s increasingly called, may not appreciate Gude’s final recommendation. While Gude would imprison anyone convicted in U.S. criminal courts in U.S. prisons, as we usually do, he recommends transferring anyone now at Guantanamo who will remain in military custody — either to be tried by a military commission or simply to be detained indefinitely — to the U.S.-run prison at Bagram.

While that might sound logical, particularly given the strong political objections to transferring Guantanamo detainees to the United States, civil and human rights advocates are likely to point out that it would not only allow the Obama administration to continue — indefinitely — the troubling practice of indefinite detention, but would place those indefinitely detained even further beyond the reach of U.S. courts than they were at Guantanamo. After all, the Supreme Court ruled that Guantanamo detainees have the right to challenge their detention through a writ of habeas corpus in federal courts; most Bagram detainees, on the other hand, do not have that right.

Advocates such as Human Rights First, which issued a new, highly critical report on the detention and trials of detainees in Afghanistan this month, have complained that the military procedures there don’t afford prisoners a meaningful way to challenge their detention. The report, based on interviews conducted in April, found that prisoners were often not informed of the specific reasons for their detention, were not provided with lawyers to represent them, and were not allowed to bring witnesses to speak on their behalf or challenge the evidence presented against them.

New detention review procedures implemented in September could solve some of those problems, although detainees still don’t get legal representation. In Gude’s view, while the administration “can and should do more,” Obama officials “are making good progress on procedures at Bagram.”  Ultimately, he says, the U.S. detention system there has to be better connected to Afghan law.

Whether we ought to be placing our hopes for due process and rule of law in the Afghan legal system, which suffers from plenty of its own serious problems, is a whole other question.

Yesterday, Jonathan Hafetz, the American Civil Liberties Union lawyer who represented Al-Marri in his challenge to military detention, told The New York Times that the sentence by a federal judge was “a powerful reminder that America’s civilian courts can deliver justice even in the most challenging circumstances.” But David Rivkin, a former Reagan-era Justice Department official and strong supporter of military commissions to try suspected terrorists had a different take. Criminal courts are “ill-suited” to terror cases because the sentences are “a crap-shoot,” he said, adding that military commissions “arrive at a better judgment, being comprised of warriors, as to what level of danger the person poses.”

Al-Marri, a legal U.S. resident living in Peoria, Ill., before his arrest in late 2001, spent almost six years in a U.S. Navy brig in South Carolina without charge, mostly in isolation. Shortly before his case questioning the legality of his indefinite detention on U.S. soil was set to reach the Supreme Court,  the Obama administration transferred him to civilian custody, incarcerated him in a federal prison and prepared for his trial in federal court. But prosecutors agreed to accept a plea bargain, in which Al-Marri admitted that he’d been ordered by al-Qaeda official Khalid Shaikh Mohammed to move to the United States from his native Qatar and await instructions. Al-Marri moved his wife and five children to Peoria and he enrolled at Bradley University, where he had studied earlier. He admitted in his plea that he “researched online information related to various cyanide compounds” and communicated with other al-Qaeda operatives.

When al-Marri was arrested in December 2001 on charges of financial fraud, he hadn’t carried out any terrorist acts. But 18 months after his arrest, the government dropped the criminal charges and named al-Marri an “enemy combatant,” which in the Bush administration’s view, gave the government the right to hold him indefinitely in military custody. He remained at the Navy big, without charge or trial, until February.

Whether it’s legal for the United States to imprison indefinitely a lawful U.S. resident in a military prison on U.S. soil remains an open question, largely because the Obama administration did not give the Supreme Court an opportunity to rule on it. That may have been a strategic move designed to leave open the possibility of using that power again, particularly since President Obama promised to close the Guantanamo Bay prison by January 2010, but hasn’t yet decided what to do with many of the detainees imprisoned there.

For Al-Marri, however, it means he will now serve another eight years in prison. (He faced up to 15 years, but the judge agreed to consider the time he’d already served.) Al-Marri yesterday tearfully apologized for helping al-Qaeda and said he no longer wants to harm the American people.

Notwithstanding Rivkin’s criticism of the federal court’s sentence, it’s worth noting that in the two contested cases where terror suspects were sentenced by military commissions for similarly assisting al-Qaeda, both received lighter sentences. Salim Hamdan, for example, Osama bin Laden’s driver, was sentenced by a military jury of “warriors” to just five and a half years in prison, and given credit for time served. He’s already back home in Yemen. In the other case, Australian David Hicks pleaded guilty to providing material support for terrorism and was sentenced to only nine months in prison. A former kangaroo-skinner, Hicks is now home.

Somehow, these documents had slipped through the cracks before, the administration acknowledged recently. That is, the Justice Department learned that they existed due to references to them in court filings made during the Bush administration. But Obama Justice officials just couldn’t find them. (The government’s detailed explanation of how this all happened can be found here.) The documents were apparently discovered in September, according to the government’s court filing, and sent to the CIA and other agencies for review. Depending on whether the contents turn out to be classified or can otherwise be held under the FOIA, we may see more torture-related documents released Friday.

As TWI reported last week, the biggest ongoing controversy is over where to try the five suspected 9/11 co-conspirators. The administration has said it prefers to try terror suspects in federal court, whenever possible, and legal experts say that Khalid Sheikh Mohammed and his four alleged co-conspirators have all committed crimes easily triable in civilian court.

On the other hand, Congress last week passed amendments to the Military Commissions Act, giving military commissions broad jurisdiction over so-called “unprivileged enemy belligerents” (what the Bush administration called “enemy combatants”), suggesting that many lawmakers prefer trials by military commission.

Newsweek’s Michael Isikoff acknowledged in his story late Friday that in fact, no final decisions have yet been made on where any of the detainees will be tried. As TWI reported, the U.S. Attorneys’ offices in four different federal jurisdictions are vying for the opportunity to try the cases, with prosecutors in Manhattan, the principal site of the 9/11 terrorist attacks, making the strongest case.

Security concerns, as well as the ability to offer terror suspects a fair trial before a local New York jury, remain among the major challenges.

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.

Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

As the pressure grows on the Obama administration to close the prison camp at Guantanamo Bay by January, so too does the risk that some of the Guantanamo detainees cleared for release could be returned to countries where they’ll face persecution or torture, say human rights experts. The men remaining at Guantanamo mostly come from countries that are notorious for torturing prisoners. And the Obama administration has not ruled out returning the men to those places, even though, labeled “enemy combatants” by the Bush administration, they could face retaliation back home.

Meanwhile, it remains unclear whether the courts can step in and stop the administration from returning prisoners to countries known to torture. In April, the D.C. Circuit Court of Appeals ruled that the federal courts have no authority to interfere with where the administration wants to send a Guantanamo detainee. The lawyers on that case, Kiyemba v. Obama, plan to appeal to the Supreme Court this month, but in the meantime, men from Algeria, Tunisia, Libya and other countries notorious for abusing prisoners could be returned to those countries over their objections. Their lawyers are now scrambling to try to stop that.

Illustration by: Matt Mahurin

On Tuesday, the Supreme Court deferred its decision in a related case on whether to review a ruling that judges have no authority to order Guantanamo detainees released into the United States. The court’s punt came in the case of 13 Uighurs, the Chinese Muslim prisoners who have been cleared for release by the U.S. government but cannot return to China for fear of persecution there. But while the Uighurs in that case have been denied the right to be released into the United States, in a way, they’re lucky; the Obama administration has said it will not return them to China.

To be sure, the administration has also promised not to send any detainees to countries where they’re likely to be tortured. But it has also said that in some situations it will accept “diplomatic assurances” from those countries that it will treat the returning detainees humanely. These are, essentially, promises from a torturing country that it won’t torture a particular individual being sent there. But how reliable are those “assurances” really?

Human rights advocates say they’re not at all.

“The record on diplomatic assurances is extremely poor,” said Joanne Mariner, Director of the Terrorism and Counterterrorism program at Human Rights Watch. “It’s rare we see the text of the assurances, so it’s not clear what they consist of, and whether there’s a post-return monitoring mechanism. But there are some very well known cases in which people were sent to Egypt and Syria with diplomatic assurances, and then were tortured.”

Judy Rabinovitz, Deputy Director of the ACLU’s Immigrants’ Rights Project, agrees. “We think there are real problems inherently with the reliability of such assurances and the ability to monitor them,” she said. After all, she noted, most of these countries have signed the United Nations Convention Against Torture, but they’re still torturing prisoners. “When you have a country that’s notorious for torturing, how can diplomatic assurances be reliable? They know they’re not supposed to torture. They’ve signed a treaty. How is an assurance worth more than a treaty?”

One of the most infamous recent cases of torture following assurances from a foreign government involved the Canadian citizen Maher Arar, arrested at JFK airport and sent to Syria for interrogation, supposedly with diplomatic assurances that he’d be treated humanely. Arar says he was brutally tortured there. Human Rights watch has released several reports on the increasing reliance of the United States and other countries on such “diplomatic assurances,” and documented that in many cases, they have not worked. What’s more, it’s often impossible to know whether an individual returned has been tortured, since the country that returns the prisoner has no credible way of determining how he was treated, and both countries have an incentive to say the detainee was treated humanely.

Technically, the United States is bound by the Convention Against Torture and the International Covenant on Civil and Political Rights not to send people to countries where they face a real risk of torture. (The Bush administration argued those laws did not apply to prisoners held abroad.) But as Mariner explained, that often leads those countries to rely on “diplomatic assurances” to say the risk has been diminished. That’s exactly what the Bush administration said it did when it sent terror suspects for questioning under its “extraordinary rendition” program, and many of those suspects claim they were subsequently tortured.

The choice, says Mariner, is either to trust the discretion of the executive branch, or to have some sort of system for deciding the legitimacy of the prisoner’s fears. The D.C. Circuit ruling eliminated the possibility of the federal courts playing that role. That ruling took effect in early September, clearing the way for the U.S. government to begin to return Guantanamo detainees to countries known to torture prisoners.

The administration announced earlier this week that it has cleared 75 Guantanamo detainees for release. The list includes nine prisoners from Tunisia, seven from Algeria, four from Syria, three from Libya, three from Saudi Arabia, two each from Uzbekistan, Egypt, the West Bank and Kuwait, and one each from Azerbaijan and Tajikistan. None of these countries has a strong human rights record.

About 30 of the prisoners cleared for release fear return to their home countries, said Mariner.

Ahmed Belbacha is one such prisoner at risk. He fled his home country of Algeria in 1999 during a civil war between government forces and a militant Islamic group. A former soldier in the Algerian army, he was at risk from both sides. He sought asylum in the UK, where he worked cleaning rooms in a hotel. In 2001, however, while traveling in Pakistan where he was offered free Islamic education, he was captured by the Pakistani Army and turned over to the U.S. military shortly after the U.S. invasion of Afghanistan. The U.S. military deemed Belbacha an “enemy combatant” because he had attended prayer services led by a fundamentalist sheik, travelled on a fake French passport and received small arms training in Afghanistan. Belbacha was sent to the prison at Guantanamo Bay in 2002. But in 2007, the Bush administration decided that he did not pose a threat and cleared him for release. But by this time, Belbacha was afraid to go home; he fears retaliation and torture from both the Algerian government and radical Islamists.

In 2007, Belbacha’s lawyers told the court that they’d learned that the U.S. government planned to return their client to Algeria, and filed an emergency motion asking the court to prevent his transfer. The court ruled it did not have the power to do that, and Belbacha appealed. The court of appeals held off deciding the case though, while waiting for the Supreme Court to rule on whether detainees have the right to challenge their detention in federal courts. (It ruled they did last year in Boumediene v. Bush.) In the meantime, the court temporarily enjoined the U.S. government from sending Belbacha to Algeria.

Then, in April, the D.C. Circuit ruled in Kiyemba v. Obama that the courts have no authority over where the government sends the men. Now, Belbacha is worried again, and his lawyers are scrambling to keep the court from issuing an order that will allow the government to transfer Belbacha to Algeria. His lawyers say he’s now even more likely to be tortured by the Algerian government if he returns there because his struggle to avoid transfer there has drawn international attention and support from human rights groups. As his lawyers put in their brief to the court: “He believes that his strenuous and widely-publicized efforts to avoid transfer to Algeria place him in the government’s crosshairs.”

Belbacha’s lawyers have filed a motion with the court asking that his case be “held in abeyance” until the lawyers handling the Kiyemba case have an opportunity to file a petition to the Supreme Court, and then until the Supreme Court decides whether to hear the case. Holding the case off would leave in effect a June 2008 district court order prohibiting the government from transferring him to Algeria.

The Department of Justice, meanwhile, is vigorously fighting to lift that order, arguing that the D.C. Circuit has already decided that the courts don’t have authority to prevent a detainee’s transfer, and that the government has promised not transfer any detainee to a country where “he is more likely than not to be tortured.”

That’s not sufficient assurance for Belbacha and his lawyers, however. “The U.S. has not assured Belbacha that he won’t be sent back,” said David Remes, Executive Director of Appeal for Justice and a lawyer for Belbacha. As the law stands now, there is no court or independent arbiter to whom Belbacha can appeal.

Human rights advocates say that Algeria’s abusive treatment of two other prisoners recently returned there by the UK raises serious concerns. According to Human Rights Watch, the men were reportedly threatened and beaten in custody. Statements coerced from them were used against them at trial, and both were sentenced to several years’ imprisonment.

Lawyers for Guantanamo detainees from Libya and Tajikistan who similarly fear persecution if returned home have also asked federal judges to at least temporarily prevent their clients’ transfer until the Supreme Court can consider whether courts have any authority over the administration’s decisions about where to send them.

The Obama administration, in another context, has similarly indicated that it is willing to send people to countries known to torture. In making recommendations on the transfer of terror suspects to other countries for interrogation – commonly known as renditions – an Obama administration task force recommended that renditions be permitted to countries known to practice torture, so long as the administration obtains assurances that the suspect will be treated humanely. Although the Obama administration has promised to monitor and enforce those assurances, Human Rights Watch has found that “monitoring is no panacea” because the prisoners cannot be guaranteed confidentiality. Their reports of abuse to foreign monitors would be easily traceable to them, placing them at serious risk of retaliation.

President Barack Obama (WDCpix)

Although the Obama administration’s much-anticipated new policy on the use of the so-called “state secrets” privilege, announced this morning, has drawn some praise, civil liberties lawyers and other critics of the use of the privilege don’t think it solves the problem.

The state secrets privilege allows the government to conceal certain evidence in a court case that, if disclosed, would endanger national security by revealing “state secrets”. But who gets to decide what is a state secret and whether it will actually endanger national security has long been a point of contention. The Department of Justice, first under President Bush and then under President Obama, has invoked the privilege to ask courts to dismiss every single legal case that has come before them seeking compensation for torture or warrantless wiretapping by the government. That’s led critics to charge that the administration is trying to use the evidentiary privilege not to protect national security, but to conceal government wrongdoing and avoid embarrassment, or worse.

Today’s announcement says the government will use the privilege more sparingly, and requires the attorney general himself to sign off on its use. But the provision does not bar the government from using the privilege to try to dismiss cases alleging government wrongdoing.

“They don’t anywhere say, ‘we will not seek dismissal on state secrets grounds at the outset’” of a case, said Ben Wizner, a staff attorney at the American Civil Liberties Union who’s come up against the privilege while representing victims of torture. “They say we’re going to make an effort to apply it as narrowly as possible. But that doesn’t change what they’ve been doing all along.”

What the Department of Justice has been doing all along is essentially what the Obama administration has done in one case Wizner’s working on, in which a victim of torture due to the CIA’s “extraordinary rendition” program sued Jeppesen Dataplan, a subsidiary of Boeing, claiming the company was partly responsible for helping transport CIA prisoners to other countries to be tortured. The government claimed that allowing the case to go forward would reveal state secrets and endanger national security, and asked the court to dismiss it. Eventually, the ACLU won the right to proceed with the litigation, but the Obama administration in June asked the court of appeals to reconsider and dismiss the case.

“Any new policy will be an empty gesture if the administration continues to assert the same expansive theory of state secrets to dismiss cases brought by torture victims,” Wizner said Wednesday. “At the same time that they are rolling out this new policy with fanfare, they are asking the Ninth Circuit [Court of Appeals] to reverse its own decision and rehear the case because of state secrets.”

The Jeppesen case is one of several where the Obama administration has made the same expansive arguments that entire cases should be dismissed to protect state secrets, rather than simply excluding the particular piece of evidence that could actually endanger national security.

The real problem, say critics, is that the Obama administration is trying to use its new policy as a way to prevent the passage of legislation that will clarify the role of the executive versus the role of the courts.

“The Bush administration’s approach to state secrets was wrong-headed, causing significant public distrust and potentially shielding government wrongdoing and embarrassing mistakes behind a questionable legal doctrine,” said Sen. Russ Feingold (D-Wis.) in a statement released after the Justice Department’s announcement today. Feingold is a cosponsor of the proposed State Secrets Protection Act, which would provide guidance to federal courts considering cases where the government has asserted the state secrets privilege. “While I am pleased that the Obama administration recognizes that the Bush approach was a mistake, its new policy is disappointing because it still amounts to an approach of ‘just trust us.’ ”

Or as Wizner put it, “this is voluntary executive self-policing.” Legislation would “bind not just this president but the next one. That’s critical.”

What’s more, the new policy doesn’t really address the role of judges in cases where the privilege is invoked. The proposed legislation, on the other hand, “says courts cannot dismiss cases simply on the basis that the government claims the case involves state secrets. The legislation says courts are required to look at the underlying evidence” and decide for themselves.  In many of these cases that have come up so far, it’s the government agency being sued — such as the CIA — that submits a statement to the court saying that the evidence that it committed a crime would endanger national security. “The court shouldn’t be able to rely just on an affidavit filed by the perpetrator,” said Wizner.

Under the proposed State Secrets Protection Act, if a court looks at the evidence and determines that some piece of it really does constitute a state secret — say, the identity of a CIA agent — then that evidence would be removed from the case. But before making that determination, the judge would have to explore every alternative, to see if other tools, such as protective orders, could be used to protect the evidence but still allow it to be used. If carefully and narrowly applied, says Wizner, only particular pieces of evidence that are not important to the litigation would have to be excluded. “No one’s saying we can litigate the identity of covert agents in civil cases,” says Wizner.

Ken Gude, Associate Director of the International Rights and Responsibility Program at the progressive Center for American Progress, expressed similar concerns about the Obama administration’s new state secrets policy. “My main concern is that the government should not be able to have a whole case dismissed simply by asserting a state secrets claim,” he said in an e-mail on Wednesday. “There may be instances when it’s simply not possible to proceed without certain evidence, but that should result from a subsequent decision after the plaintiffs have had a chance to plead their case without the material.”

That seemed to be what President Obama supported, too, when he first spoke about the state secrets privilege back in April. At an April 29 press conference, he called the state secrets doctrine “overbroad.” He went on to say that “searching for ways to redact, to carve out certain cases, to see what can be done, so that a judge in chambers can review information, without it being an open court — you know, there should be some additional tools, so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that, as we speak.”
Today’s announcement is the policy that resulted from that process. But critics aren’t convinced it that it will actually accomplish what the president has promised.

As Feingold said today: “Independent court review of the government’s use of the state secrets privilege is essential. I urge the administration to work with Congress to develop legislation that sets reasonable limits on the privilege and will not be subject to change under each successive president.”

–

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“The current administration claims to be the most transparent in American history, yet it’s been hiding a report showing its cap-and-trade energy plan would cost up to $200 billion every year,” he told The Washington Post on Wednesday.

Lamar’s statements also disregard the Department of Treasury’s debunking of the “secret” memo. “The reporting on the Treasury analysis is flat out wrong,” said Alan B. Krueger, Treasury assistant secretary for economic policy. “Treasury’s analysis is consistent with public analyses … and the reporting and blogging on this issue ignores the fact that the revenue raised from emission permits would be returned to consumers under both administration and legislative proposals.”

Homeowners who were hoping for lower payments are discovering to their dismay that lenders roll late fees, back taxes or other costs into the principal, sometimes turning a difficult payment into an impossible one. That is one reason that many reworked mortgages are sliding back into default.

Yep. There’s a big difference between writing down the loan balance on a house, and merely setting up an “extend and pretend” repayment plan. If you can’t afford the house now, you’re probably not going to be able to afford it later, especially with all the new fees added on.

The problem is the same one that has plagued loan modifications from the start: Lenders don’t want to write down loan balances. There’s no cramdown provision in bankruptcy court to force them to do so, thanks to opposition in Congress and inaction by the Obama administration.

Yet, as loan modifications fail to stem the foreclosure crisis, the government continues to offer financial incentives to servicers and calls them to Washington occasionally to give them a hard time about not doing more loan mods.

And in the end, here’s what we’re left with, according to USA Today:

“Payments have gone up …. (and) the payment relief can last for the first few years and then go up (again),” says Alan White, assistant professor of law at the Valparaiso University School of Law in Valparaiso, Ind. He has studied the subprime mortgage situation for 10 years. “(The lenders) focus on today and not on the future.” Even under the Obama plan, they don’t focus on permanent debt reduction, White says.

The majority of borrowers who’ve gotten mortgage modifications have seen their overall principal balance go up, according to an analysis by CreditSights and ICP of about 660,000 mortgages modified this year. In about 90% of the modifications, the principal balance after a modification was larger, CreditSights said.

If you’ve ever wondered why the foreclosure crisis doesn’t seem to be easing, despite the government’s vow to help homeowners, loan mods that actually increase a borrower’s monthly payment are an obvious reason why.

In the process, he came across a curious fact. About three years ago, he says, the “entire prisoner death reporting system was turned off in Afghanistan.” And in Iraq, it was “turned off” at the beginning of 2008.

Before that time, says Miles, who’s on the board of the Center for Victims of Torture, the Department of Defense issued press releases about deaths of detainees in its custody. Miles was tracking those deaths and the role of physicians for his book, which was recently updated and republished as Oath Betrayed: America’s Torture Doctors by the University of California Press.  (The Pentagon never reported the deaths of detainees subjected to “extraordinary rendition,” he says — that is, those sent to other countries for interrogation, and sometimes to be tortured.) But the Pentagon did, at least, report some deaths of the prisoners it acknowledged it had in its custody.

Then “they just stopped reporting it,” says Miles. The press releases stopped.

It couldn’t be that no one died, Miles added, because “you have a certain expected death rate based on the size of the population. I’ve been able to trace all public death reports and can show when they turned them off.”

According to a draft paper he’s written, now being prepared for publication in the American Journal of Bioethics:

In May 2004, shortly after media published photographs of lethal abuse at Abu Ghraib prison, DoD disclosed 22 prisoner deaths; of which 12 (54%) were attributed to natural causes. DOD did not disclose another 67 deaths that occurred during that same period. Only 13 (15%) of the total 89 deaths were due to natural causes. By the end of 2008, 93 of 165 known decedents (56%) are unnamed. Death certificates are available for 37 (22%). Homicides and shelling of prisons are the leading causes of death. DoD has completely suppressed prisoner death reports from Afghanistan since 2004 and adopted a similar policy for Iraq in 2008.

The New York Times also reported back in 2004 that the Defense Department had provided incomplete or inaccurate information about deaths of prisoners in its custody.

I’ve asked several different spokesmen at the Department of Defense over the last few days to respond to this charge, to explain its policy for reporting detainee deaths, and to explain if that policy has changed since 2003. So far, I have received no response. 

But Devon Chaffee, Advocacy Counsel at Human Rights First, which reported in 2006 on about 100 deaths in U.S. custody since 2002 that it was able to learn about, was not surprised.

“Our report found that commanders failed to report deaths in custody. Sometimes they reported them days or weeks later. But there clearly was a reporting problem. Some were simply not reported at all,” she added, although Army regulations require that any deaths in U.S. custody be reported within 24 hours.

The report issued by Human Rights First, called Command’s Responsibility, found that from August 2002 until the release of the report in February 2006, nearly 100 detainees had died “while in the hands of U.S. officials in the global ‘war on terror.’”  Although the military had classified 34 of those cases as suspected or confirmed homicides, Human Rights First “identified another 11 in which the facts suggest death as a result of physical abuse or harsh conditions of detention. In close to half the deaths Human Rights First surveyed, the cause of death remains officially undetermined or unannounced. Overall, eight people in U.S. custody were tortured to death.”

In an ordinary war, the deaths of detainees would have to be reported publicly pursuant to the Geneva Conventions. But because President Bush early on declared that detainees in the “war on terror” are not technically “Prisoners of War” entitled to the protections the Geneva Conventions affords them, the U.S. military was apparently able to get around that reporting requirement.

Although at least some officials in the Obama administration have declared the “war on terror” over, the Obama DOD appears not to have resumed regular reporting on the deaths of prisoners in custody, says Miles. “It’s still shut down,” says Miles of the reporting system. “Obama hasn’t opened it up. It’s just mysterious to me.”

In the meantime, human rights organizations such as Human Rights First and others haven’t had the resources to keep their report of detainee deaths up-to-date, says Chafee.

I’ll report more as soon as I hear back from the Department of Defense about what their reporting policy is, whether it’s changed, and why human rights organizations have counted more deaths in custody than the government has acknowledged.

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