All of this comes on the heels of a district court judge’s ruling at the end of June dismissing a habeas corpus petition by a Bagram prisoner on the grounds that the U.S. government has deemed the prisoners “enemy combatants” and Congress in the Military Commissions Act stripped federal courts of jurisdiction over their cases. In other words, they have no right to federal court review. (The Supreme Court has held that prisoners at Guantanamo Bay have the right to habeas corpus review, but has never addressed the situation of prisoners at Bagram.)

A district court had previously ruled that Bagram prisoners captured outside of Afghanistan do have habeas rights, but the Obama administration has appealed that ruling.

The new Defense Department review of the matter, reported in The New York Times today, appears to be focused not particularly on the rights of Bagram prisoners, though, but on growing worries that abuses in the Afghan prison system — to which the U.S. military transfers many Bagram prisoners — is helping the Taliban recruit new militants.

According to the Times, while the conditions at Bagram have improved since 2002, when at least two inmates died from severe beatings and abusive interrogations in U.S. custody, “conditions worsened in the larger Afghan-run prison network, which houses more than 15,000 detainees at three dozen overcrowded and often violent sites.”

The country’s justice system provides little in the way of due process for those prisoners, either. “Trials” for prisoners, often held at the prisons, involve the presentation of little or no evidence and little opportunity for the prisoners to defend themselves. The U.S. government is reportedly planning to build new courthouses in Afghanistan, but those plans aren’t very far along.

Human Rights First, which has done some of the most extensive work on the Bagram prison and the justice system in Afghanistan, is expected to release a new report on the problems there this week.

The ICRC explains that Abu Zubaydah’s narrative begins in “May 2002,” after he had “been held in hospital for what he believes were several weeks” as he convalesced from a gunshot to his leg during his capture. Soufan discusses interrogating Abu Zubaydah from “March to June 2002, before the harsh techniques were introduced later in August.” I can’t really adjudicate the dispute. It could be that Abu Zubaydah is misremembering and the ICRC is going off what he told them. Or it’s possible that Abu Zubaydah is excluding discussions he had with people like Soufan or the CIA’s John Kiriakou from his hospital bed.  (Additionally, the ICRC said the interrogation took place in Afghanistan; I had understood it to take place in a Thai safe house.) I can’t explain it.

Continuing, this is all from stuff that Abu Zubaydah said took place before “the real torturing started.” He’s describing being “naked, strapped to a bed, in a very white room” that had “metal bars separating it from a larger room.” He was “shackled by hands and feet for what I think was the next 2 to 3 weeks,” which led to blistering on his legs.

I was given no solid food during the first two or three weeks, while sitting on the chair. I was only given Ensure [a nutrient supplement] and water to drink. At first the Ensure made me vomit, but this became less with time.

The cell and room were air-conditioned and were very cold. Very loud, shouting type music was constantly playing. It kept repeating about every fifteen minutes twenty-four hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise.

The guards were American, but wore masks to conceal their faces. My interrogators did not wear masks.

During this first two to three week period I was questioned for about one to two hours each day. American interrogators would come to the room and speak to me through the bars of the cell. During the questioning the music was switched off, but was then put back on again afterwards. I could not sleep at all for the first two to three weeks. If I started to fall asleep one of the guards would come and spray water in my face.

Presumably Soufan was one such interrogator. Even if we’re to go by the ICRC’s timetable, we’d still be in either late May or early June at this point, which overlaps with the time Soufan gives for his interrogations of Abu Zubaydah. Anyhow, during this time he “began to receive food, rice, to eat on a daily basis.” But he was kept “naked and in shackles,” a situation that continued for “another one and a half months.” A woman doctor “who asked why I was still naked” examined him after “about one and a half to two months,” which by the ICRC’s timetable would be mid June to early July for the period in which he was kept naked. After that he was given clothing. But:

[T]he next day guards came into my cell. They told me to stand up and raise my arms above my head. Then they cut the clothes off of me so that I was again naked and put me back on the chair for several days. I tried to sleep on the chair, but was again kept awake by the guards spraying water in my face.

When my interrogators had the impression I was cooperating and providing the information they required, the clothes were given back to me. When they felt I was being less cooperative the clothes were again removed and I was again put back on the chair. This was repeated several times.

There followed a period of either one month or two months — Abu Zubaydah seems like he’s repeating himself in the narrative — with no questioning. But then, “about two and a half or three months after I arrived in this place… the real torturing started.” This would, in either case, be either August or September, going off the May 2002 baseline. What he then describes is consistent with the post-August 2002 OLC approval of techniques like the “confinement box” and “walling”:

Two black wooden boxes were brought into the room outside my cell. One was tall, slightly higher than me and narrow. Measuring perhaps in area 1m x 0.75m and 2m in heigh. The other was shorter, perhaps only 1m in height. I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face. As I was still shackled, the pushing and pulling around meant that the shackles pulled painfully on my ankles.

I was then put into the tall back [I think this should be 'black'] box for what I think was about one and a half to two hours. The box was totally black on the inside as well as the outside…

And it goes on in that fashion, with descriptions of waterboarding, forced shaving and more, including an account that “I was told during this period I was one of the first to receive these interrogation techniques, so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people.”

In outline form, Abu Zubaydah’s account correlates with Soufan’s. There’s a period in which things are a certain way, and then a period where they get much worse for Abu Zubaydah. Examined with greater scrutiny, though, that earlier period is not a nice or pleasant one. Soufan never explicitly says otherwise. But he does say that during the period in which he interrogated Abu Zubaydah, he used “traditional interrogation methods.” Yet if Abu Zubaydah is to be believed, during this period he was subjected to a cold cell, prolonged nudity, prolonged shackling, constant noise, and what appears to be the manipulation of his sleep patterns. FBI agents might not recognize that as “traditional.”

Again, it could be that Abu Zubaydah is simply misremembering or misrepresenting his experience. But these are discrepancies worth exploring.

At least three dozen others who were held in the CIA’s secret prisons overseas appear to be missing as well. Efforts by human rights organizations to track their whereabouts have been unsuccessful, and no foreign governments have acknowledged holding them.

The CIA isn’t commenting on Linzer’s list of the known-suspected ghost detainees, but a spokesman calls such compilations “typically flawed.”

“That’s an overt act; lying to the Red Cross, hiding prisoners from them,” Mayer said.

The ICRC is supposed to be the neutral body that monitors’ countries compliance with the Geneva Conventions and other international law. So, is lying to the Red Cross akin to obstruction of justice?

Panetta, of course, has to win the support of his agency’s staff, many of whom weren’t so happy that President Obama picked a man with no intelligence agency background. Saying they shouldn’t be punished for following orders is one way to start doing that. And given that most people are more interested in going after the architects of the Bush administration’s torture policies than in prosecuting those who carried it out, Panetta might have thought his statement wouldn’t be all that controversial.

But I’m not sure it’s a good idea to start handing out blanket immunity to the people who carried out “extreme” interrogations that included torture and that they might well have known were illegal. Setting aside the fact that we didn’t buy that “just following orders” defense at Nuremberg, as a practical matter, excusing all those people from the start could doom the prosecution of higher-ups. (But maybe that’s the point.)

From a prosecutor’s perspective, the people carrying out the orders are precisely the ones who can provide the key evidence against the officials that gave them. But if you declare from the beginning that they’re all free to go, you’ve just thrown out any incentive you can offer them to cooperate. How smart is that?

What’s more, as John Sifton wrote in The Daily Beast, Panetta’s message also looks pretty self-serving, given that lots of the CIA officials who could be implicated in the torture policy, such as Stephen Kappes, are still at high levels in the agency, and are now Panetta’s advisers.

The other odd thing about Panetta’s message is what it says — or doesn’t say, rather — about current CIA policy and operations.

Panetta said he’s closing down the controversial CIA “black sites” where people were tortured during the Bush administration. But from his letter, it’s not clear if they’re closed or not, or if he just plans to close them in the future, and what exactly is taking so long?

Here’s his statement:

CIA no longer operates detention facilities or black sites and has proposed a plan to decommission the remaining sites. I have directed our Agency personnel to take charge of the decommissioning process and have further directed that the contracts for site security be promptly terminated. It is estimated that our taking over site security will result in savings of up to $4 million.

Is he closing the sites down or taking over site security? Is the CIA still operating secret black sites or not? And why does it take so long to “decommission” a bunch of secret prisons anyway?

Panetta’s going to have to be more clear about his intentions if he’s going to have any credibility — with his own staff, as well as with the public.

When it comes to prosecutions, though, as Sifton pointed out, it’s not really Panetta’s call anyway. Those decisions will be left up to President Obama and Attorney General Eric Holder.  So far, both have been doing everything possible to avoid the politically contentious issue by hemming and hawing about not wanting to look backward, while still believing in the rule of law.

Given the recent publication of the ICRC report by Mark Danner, which revealed wrenching accounts of torture of prisoners by U.S. authorities; the Senate Armed Services Committee Report that revealed the orders came from the top; the ongoing Senate Intelligence Committee Investigation; and the Office of Professional Responsibility Report that’s still floating around the Department of Justice and reportedly details how the legal memos justifying the Bush torture policies were essentially dictated from the White House, Obama and Holder may eventually have to take a stand.

As Pennsylvania Republican Sen. Arlen Specter said at a recent Senate Judiciary Committee hearing, if there’s reason to believe that government officials “have given approval for things that they know not to be lawful and sound, go after them.”

Barack asks that you give to the Red Cross…

The short message encouraged supporters to give money online, by calling an 800 number, or, in a first for presidential politics, by using a dedicated text message number. Supporters could donate the pre-determined amount of five dollars by simply texting “GIVE” to 24357. Obama sent a similar message to supporters via email:

At times like this, it is our compassion and resilience that define who we are as a nation. Please give whatever you can afford, even $10…. and I hope you will join Michelle and me in praying for the safety of those in the path of the storm and the first responders who are doing all they can to ensure the safety of their communities.

Sen. John McCain and GOP leaders are also responding to the hurricane, as TWI’s Suemedha Sood reports, by paring back political convention activities. The McCain campaign released a round-up of relief activity on Monday afternoon:

The governors of the states affected by the hurricane recommended five charitable organizations that Americans can donate to if they wish to contribute to the relief efforts. The 2008 Republican National Convention is working to coordinate and encourage donations to these groups. In addition, the McCain 2008 campaign has set up a phone bank at the Hilton in Minneapolis, which will help coordinate donations to these groups.

Both campaigns are using their political networks for relief, with an emphasis on depoliticizing the activities.