Not testifying is anyone from the diplomatic or development or rule-of-law fields (although one of Flournoy’s advisers, Rosa Brooks, can help her out on that latter concern). Which may be jurisdictional, given that this is an armed services committee hearing, but it’s also problematic from the point of view of a war strategy that’s overwhelmingly focused on civilian concerns like legitimacy and capable governance and, now, peace-process outreach to insurgent groups. The already-underway “process” in Kandahar explicitly judges civilian attitudes to be decisive.

And this round of testimony occurs in the shadow of Afghan President Hamid Karzai forcing aside two of his security-sector ministers, Interior Minister Haneef Atmar and intelligence chief Amrullah Saleh, whom the U.S. held in high esteem.

But if you’d rather not wait for Flournoy and Petraeus to give their take on the situation, check out Anthony Cordesman at the Center for Strategic and International Studies (PDF). “For the first time in a war lasting more than eight years, there is some practical prospect of victory,” Cordesman writes. But:

It is still far from clear that the mission can be accomplished:

1. The Ability of the Insurgent Threat to Adapt and Respond.The insurgent threat may still be relatively small and unpopular, but it has expanded into a near power vacuum in many areas of the country, and key ISAF leaders agree that its momentum has been arrested but not yet reversed. Its divisions cost it some capability but complicate attacks on its hierarchy in spite of growing successes by US UCAVs and elite forces. It has now had eight years of experience in irregular warfare, and has created far better trained cadres. For all of its weaknesses, it is often less abusive, and virtually always far less corrupt than the various elements of the Afghan government. It has learned to avoid direct combat when this only brings defeat, to infiltrate and create shadow governments, and exploit its ties with Pakistani extremist movements, Al Qa’ida, and a variety of foreign movements. It will win if it can adapt and outlast ISAF and GIRoA in a war of political attrition.

2. Far too much of GIRoA is still part of the “threat.” The Afghan government has honest and capable elements at every level, but their impact is outweighed by a virtual kleptocracy at every level from the President’s office and family through Provincial and District Governors down to the lowest levels in the field. Eight years of capacity building have had limited effects. Training and advisory efforts are often more than offset by the constant flow of military and civilian contract and aid money to power brokers and corrupt officials. Afghan politics have become more divisive and power oriented since the election campaign in 2009, civil servants and judges remain grossly underpaid, and the efforts of the many honest Afghan officials and civil servants are either hamstrung or countered by the wealth and power of power brokers, cronies, and the corrupt. The lack of Afghan government integrity and capability remains a more serious threat to winning the war than the Taliban, and it is still unclear that the US, ISAF, and allied governments can work with honest and capable Afghans to counter this threat during the course of the coming campaign.

3. There is still a critical lack of unity of effort and effectiveness within ISAF. The international command structure of NATO/ISAF has shown considerable strength, competence, and unity. The nations who contribute, however, still apply caveats and restrictions to key national forces that gravely limit their effectives. Pledges to provide trainers and mentors for the ANSF are not kept. Parts of the Afghan population are not properly protected. Military contracts of all kinds, including virtually every road shipment, often lack sufficient control to avoid empowering corrupt officials and power brokers, police and other elements of the ANSF, and sometimes the Taliban.

Michele Flournoy, left, created the Office for Rule of Law and International Humanitarian Policy, which is led by Rosa Brooks. (ZUMA, Bloggerama)

For the first time, the Department of Defense has established an office to guide policy on emerging non-traditional military activities like compliance with the rule of law, humanitarian emergencies and human rights. It’s a bureaucratic change that effectively frames international legitimacy as a security issue, a reflection of the legacy of the Iraq and Afghanistan wars among some policymakers. And the office’s first test may be its perspective on the thorny questions surrounding how the department handles al-Qaeda and Taliban detainees.

[Security1] Announced within the Pentagon in late May, the Office for Rule of Law and International Humanitarian Policy is being led by Rosa Brooks, a senior adviser to Undersecretary of Defense for Policy Michele Flournoy and a former director of Georgetown Law School’s Human Rights Center. It endeavors to ensure that the broad strategic aims of the Obama administration regarding adherence to a rules-based international order don’t get lost in the pressures of military contingencies. It will also advise senior Pentagon officials on their contributions to interagency planning and White House requests for advice on rule-of-law compliance, and will work with Congress and non-governmental organizations focusing on its host of issues.

The office — created by Flournoy with support from Defense Secretary Robert Gates and run by a staff that will eventually number 20 people — reflects a recent recognition that the legitimacy of the U.S. military in combat plays its own battlefield role, especially in conflicts like Afghanistan, where perceptions by civilians about whether to support America’s allies or its adversaries are considered decisive. “The counterinsurgency and counterterrorism doctrine has really moved in the direction of saying that these issues are not luxuries,” Brooks explained in a Monday interview at the Pentagon. “These issues are absolutely central to achieving our military objectives in a counterinsurgency or a counterterrorism environment, where the name of the game is ‘Do you have credibility? Do you have legitimacy? Are you building the structures that support long-term stability?’”

Many of the office’s emerging responsibilities will center on entrenching respect for the rule of law and human rights as a core focus within the Defense Department. Previously, Pentagon officials who worked on those issues were spread throughout the policy directorate, in bureaus as disparate as Counternarcotics and Detainee Affairs, a reflection of the secondary — Brooks called it “ad hoc” — treatment the department has traditionally provided to humanitarian concerns. Karen Greenberg, the director of New York University’s Center on Law and Security, said the office needs to “restore the notion that the rule of law is there on the table no matter what.” Matthew Waxman, a deputy assistant secretary of defense for detainee affairs at the end of the Bush administration, added that “sometimes important strategic issues can fall into bureaucratic seams, and redrawing parts of the organizational map can help address that.”

That contrasts with the previous administration’s perspective that human rights and the rule of law were impediments to effective military operations. President Bush famously judged in 2002 that al-Qaeda and Taliban detainees ought to be treated humanely “to the extent appropriate and consistent with military necessity.”

While building a staff and a budget means that Brooks anticipates the office’s agenda will take shape over the next several months, she said some early priority “areas to look at” include the Defense Department’s security assistance and training for partner militaries — to ensure it “not inadvertently undermin[e]” the U.S. interest in promoting the rule of law — and the effectiveness of department support to judicial systems.

Developing broader policy guidance to protect civilians during combat is another likely focus for the office, Brooks said, citing Gen. Stanley McChrystal’s guidance to his troops in Afghanistan about the need to secure civilian support for NATO military operations. “Reducing civilian casualties supports achieving military objectives,” Brooks said. “If the population is furious at you because bombs keep falling on schools, it’s harder to achieve your objectives.” She added that the propriety of “a global directive of that sort” required further study, but anticipated that any such study would have “potential consequences” for crafting military doctrine on protecting civilians.

“The goal would be to see if we need to make changes,” Brooks said, stressing that her agenda is still preliminary. “It’s a moral goal, and it is a tactical and strategic goal, to minimize civilian casualties. Are we doing it as effectively as we could? Do we have the systems in place, the doctrine in place, the training in place, to do as well as we could, while recognizing that doctrine, training, et cetera matters?”

In some cases, like U.S. compliance with treaty obligations, Brooks said she expects her office to serve in a supporting role to other agencies, while taking the lead on issues where the military has the greatest stake. “The State Department can’t determine whether DOD needs to revise its doctrine to better protect civilians,” she said.

Some human-rights advocates greeted the establishment of the new office with optimism. “To the extent the Pentagon is engaging directly with foreign governments, having a human rights voice in that room is extremely important, so the U.S. speaks with a single voice,” said Tom Malinowski of Human Rights Watch. “You don’t want the State Department coming in one day with a broad policy agenda [including] respect for human rights and humanitarian principles and the Pentagon coming in the next day talking about basing rights without the two being coordinated.”

Greenberg said the big test for the office will be its ability to help influence the emerging shape of detainee policy. Administration officials and congressional leaders have discussed the creation of frameworks for indefinite detention without charge, an idea that found its way into the National Security Strategy under the rubric of creating an “approach that can be sustained by future Administrations, with support from both political parties and all three branches of government.” Malinowski cautioned against viewing detainee policy as a crucible for the new office, but said he hopes the office can “guard against the tendency of the Pentagon as an institution to reflexively defend the expanded powers that it received in the last administration.”

Brooks said that her office “will work very closely” with Col. William Lietzau, the deputy assistant secretary for detainee affairs, but did not specify any programmatic agenda. “Bill Lietzau is someone who’s already attuned to those issues anyway, so those are the kinds of conversations that we’re always having,” Brooks said, concerning how to “make sure that as we try to work through these thorny inherited detainee issues that we’re doing it in a way that buttresses our broad commitments to rule-of-law norms.”

“And it’s not easy on those issues,” she added. “The briar patch we started out with has been a tough one to get ourselves out of without sustaining a lot of little scratches.”

Waxman wrestled with those issues while he ran detainee policy for the Rumsfeld Pentagon. He hailed Brooks’ office as a step toward integrating law and strategy. “Often those issues are thought of as separate spheres: The lawyers in the general counsel’s office and the military judge advocates say what the legal bounds are and the policy advisers and military planners and operators decide within those bounds what the strategy is,” Waxman said. “That’s too simplistic and risks missing the many ways in which the two operate in tandem, and this new office looks like it’s intended to help ensure they do so effectively. For example, the United States may have a strategic interest in abiding by certain standards, because we want to promote those standards abroad among foreign forces or because it’s believed to strengthen counterinsurgency efforts to win hearts and minds.”

Brooks herself will continue to wear several hats in the Pentagon. In addition to becoming the first deputy assistant secretary of defense for Rule of Law and International Humanitarian Policy, she’ll remain Flournoy’s senior adviser and helm the policy directorate’s Global Strategic Engagement Team. “Rosa is an excellent person to do this job,” Malinowski said. “I’m happy to hear the position has been created and happy to hear she’s filling it.”

William Lietzau (Defense Department photo)

A key behind-the-scenes architect of the Bush administration’s first version of the military commissions for terrorism suspects — which the Supreme Court found to unconstitutionally restrict the legal rights of detainees — will take a central Pentagon position dealing with detainee policy for the Obama administration.

William Lietzau, a Marine colonel who currently serves as deputy legal counsel to the National Security Council, is poised to become the Pentagon’s new deputy assistant secretary for detainee affairs in the next several weeks. Lietzau, an international law expert described even by his critics as a brilliant and energetic attorney, previously served as a special adviser to Jim Haynes, the top Pentagon lawyer during Donald H. Rumsfeld’s tenure, when Rumsfeld and Haynes codified torture and indefinite detention as hallmarks of Bush-era terrorism policy. The position, which is not subject to Senate confirmation, came open late last year, after Phil Carter, the previous deputy assistant secretary for detainee affairs and a favorite of civil libertarians, abruptly resigned.

[Security1]As the next deputy assistant secretary, Lietzau will be at the center of the Obama administration’s decisions about trying the remaining Guantanamo detainees in reformed military commissions or in federal courts. He will also be central to the construction of a post-Guantanamo terrorism-detention policy in an administration that claims to be more committed to the rule of law than its predecessor. Lietzau is said to have gained the confidence of senior administration officials over the past year, particularly as he helped revise the military commissions to include greater process protections for defendants — even though civil libertarian groups still consider those rules to be unfair.

Two senior military lawyers who fought with Haynes over military commissions and interrogations in the Bush administration said they were surprised to hear of Lietzau’s impending appointment to the Obama Pentagon. Retired Rear Adm. Don Guter, who served as the Navy’s Judge Advocate General from 2000 to 2002, described Lietzau as a close Haynes confidante but not an outspokenly opinionated figure. “If he disagreed with Jim Haynes you’d never know about it,” Guter said. “Because of his close association with Haynes I’d be more comfortable if I saw something public [indicating] he’d made a break with those policies.”

Retired Army Maj. Gen. Thomas J. Romig also described Lietzau as closely tied to Haynes, whose role in instituting extreme interrogations at Guantanamo Bay against the wishes of military lawyers cost him Senate confirmation for a federal judgeship. Romig, the Army’s Judge Advocate General during Bush’s first term, said that although he did not know specifically what positions Lietzau took on detainee interrogations or if Haynes even consulted him on the issue, “at that time, he was certainly in the bosom of the administration that was running interrogation programs that at the very least were quite troubling, and in many minds were a violation of the laws of war and the Geneva Conventions.” Lietzau’s expertise in international law — he was part of the Clinton administration’s delegation to the 1998 Rome conference that wrote the treaty establishing the International Criminal Court — should have allowed him to know “what was right and wrong with [Bush's] interrogation policies,” Romig said.

While Lietzau was close to Haynes, he also became close to retired Marine Gen. Jim Jones, now Obama’s national security adviser. The two officers met in Europe a few years after Lietzau had left the commissions, when Jones commanded U.S. military forces on the continent and Lietzau was his staff judge advocate. Lietzau joined the National Security Council last spring at Jones’ request.

Lietzau has many advocates in the legal and policy communities. John Bellinger, the former National Security Council and State Department legal adviser during the Bush administration, sparred frequently over detainee treatment with Haynes and David Addington, Dick Cheney’s attorney, who took far more extreme positions. But Bellinger, now a partner with the law firm of Arnold & Porter, considered Lietzau a first-rate appointee. “I think Lietzau is an excellent choice who knows the issues and is pragmatic and non-ideological,” he said. “I have never seen him to approach terrorism issues or international justice issues in an ideological way.

Similarly, Eugene Fidell, a Yale Law professor and president of the National Institute of Military Justice, called Lietzau’s appointment “creative,” despite any substantive policy disagreements they had. “The last thing I want is someone to come into the job without the respect of the military bench and bar, which he would have,” Fidell said, “and having to start from scratch in understanding the legal environment.”

Rosa Brooks, a Pentagon policy official who criticized the military commissions during the Bush years, added that while she couldn’t confirm Lietzau’s appointment, “I am a fan of Bill Lietzau’s. He’s smart, an honest broker, and has both intellectual and moral integrity.”

Lietzau was the first prosecutor for the military commissions established in 2001 — an official Pentagon release called him “instrumental” to the military commissions’ “preparations” — and served in that role until 2003. Yet during that time, the commissions did not bring charges against a single detainee, a fact that raised eyebrows among his colleagues. “I have to believe in his position Lietzau was being used by Jim Haynes as a sounding board or adviser on all international law issues,” Romig said, “because he was not doing much as chief prosecutor.

In a valedictory May 2003 press briefing, Lietzau described his role as “really the process portion of setting up military commissions.” That process, established by Rumsfeld, his deputy Paul Wolfowitz and Haynes, departed significantly from the military’s courts-martial system, restricting a defendant’s right to a public trial and allowing for hearsay to be admissible, although Lietzau pushed for defendants to retain the presumption of innocence. At the briefing, a reporter asked Lietzau if the commissions provided a defendant with a defense comparable to the normal military justice system, and he replied that the commission’s rules “were drafted to accommodate that kind of flexibility that would be needed.” But five years after their creation, a 5-4 majority of the Supreme Court ruled that the commissions were unconstitutional, improperly established by the administration and providing defendants with insufficient due process rights. In 2006, Congress passed a law authorizing a new version of the commissions although the Supreme Court in 2008 found problems with the process rights of the new commissions as well.

One senator who voted against the 2006 Military Commissions Act was Barack Obama. Last May at the National Archives, in one of Obama’s most important national security speeches as president, Obama criticized “the flawed commissions of the last seven years” and said his embrace of a reformed version of the commissions would bring them “in line with the rule of law.” Some in the administration believe Lietzau is, however ironically, the man for the job. A senior administration official who would not speak on the record because Lietzau’s appointment has not been announced said that the colonel “believes the rule of law is a fundamental part of our effort in the fight against al-Qaeda” and that Lietzau’s long experience with both the military commissions and international law provides the administration with “value added as we work with Congress” on a “durable” legal infrastructure for terrorism detainees.

At times Lietzau has expressed surprise about the Bush administration’s terrorism decisions. During a talk he gave at Harvard shortly after 9/11, he said he doubted that the administration would seek to try anyone in a military commission; months later he was helping design them. And in an article for a book on terrorism and international law published in 2002, Lietzau averred that President Bush’s assurance that the military treat detainees in the “spirit” of Geneva Conventions ensured that detainees “will continue to be treated humanely.” Over the next several years, dozens and perhaps hundreds of people detained by the U.S. in Guantanamo, Afghanistan, Iraq and elsewhere were tortured — activities President Obama expressly forbid during his first week in office by issuing an executive order restricting interrogation techniques to those listed in the Army’s field manual.

Lietzau was a deputy to Haynes during the winter of 2002 and spring of 2003, when Haynes presided over an internal Pentagon debate resulting in the modified adoption for Guantanamo of “enhanced interrogation” techniques authorized for the CIA to use on senior-level al-Qaeda detainees. A Senate Armed Services Committee investigation from 2008 determined that Haynes was a powerful bureaucratic force pressing for harsher detainee treatment. A former colleague in Haynes’ office, Richard Shiffrin, told the committee that Lietzau was present at a key 2002 meeting in which participants expressed “some frustration with the quantity and quality of information being obtained” at Guantanamo, although Shiffrin did not attribute any substantive position to Lietzau. And no source for this piece had knowledge of Lietzau having anything to do with torture.

It is unclear what exactly Lietzau’s appointment signifies in terms of concrete policy decisions or shifts. An email to Defense Secretary Gates’ spokesman, Geoff Morrell, went unreturned. But Bellinger predicted Lietzau would “adopt a balanced approach between the security needs of the country and military and the need to address worldwide concerns that we do not have an appropriate legal framework or legal policies.” The senior administration official said Lietzau was “bound and determined to make sure, whether it’s in three years or seven, when he walks away from this job, there is a durable legal infrastructure” to handle terrorism detainees justly.

Both Guter and Romig, the former senior military JAGs who clashed with Lietzau’s old boss, Haynes, independently described Lietzau as intellectually “flexible” and willing to faithfully implement the policies of his bosses. “The guy is smart, so he can figure out what the Supreme Court has said” about the due process rights to which detainees are entitled, but “it troubles me the guy can go from one end of spectrum to the other, arguably,” Romig said. “It’s very curious they would take somebody to run [policy on] detainees who was in the position he was in seven or eight years ago.”

So how might that affect the new Obama administration’s plans to respond to the Bush-era war crimes? In fact, not so much. As Mark Benjamin writes in Salon today, the Obama team has so far carefully avoided any plans to prosecute Bush administration officials, reportedly planning a bipartisan investigatory commission – a sort of “truth commission,” perhaps along the lines of one proposed by Rosa Brooks or even Stuart Taylor, who first publicly raised the Bush pardon idea in the first place – as a less politically charged alternative.

That won’t satisfy those who want to see the perpetrators of illegal torture policies behind bars. But if President Bush does decide to go ahead and issue a blanket pardon for all involved, the reported Obama plan has the benefit of at least airing the truth about what happened, (and perhaps publicly humiliating the perpetrators), even if President Bush tries to use his executive power to bury it.