The AP has a long article out providing details behind the Salt Pit death of a detainee named Gul Rahman–a former militant associated with Gulbuddin Hekmatyar who was captured on October 29, 2002 at the home of Hekmatyar’s son-in-law, Dr. Ghairat Baheer, along with the Baheer and three others. A week later, Rahman was separated from the others. He was subjected to stress positions and water dousing and–on November 20–left in 36 degree cold, only to die a few hours later.

Aside from finally providing details on a story that has long been known, the story is interesting for the way it shows the how the CIA’s torture system fit with DOJ’s approvals in the Bybee Memos. The Rahman death shows that CIA’s managers (probably in the Counterterrorism Center) were involved in direct guidance on a technique that got someone killed. That technique was specifically not approved in the Bybee Two memo. But when CTC worked to exonerate the guy in the field–the manager of the Salt Pit–they pointed to the intent language of the Bybee One memo, and claimed that anything short of intending severe pain could not qualify as torture. Ultimately, CIA’s managers used the Get Out of Jail Free Card that John Yoo had written them to prevent accountability for themselves when they gave approval for a technique that got someone killed.

Gul Rahman died from water dousing

The AP describes how, in response to Rahman’s resistance to US guards (he threw a latrine bucket), he was subjected to stress positions and dousing.

At one point, the detainee threw a latrine bucket at his guards. He also threatened to kill them. His stubborn responses provoked harsher treatment. His hands were shackled over his head, he was roughed up and doused with water, according to several former CIA officials.

The exact circumstances of Rahman’s death are not clear, but the Afghan was left in the cold cell on the morning of Nov. 20, when the temperature dipped just below 36 degrees. He was naked from the waist down, said two former U.S. officials familiar with the case. Within hours, he was dead.

Though the AP doesn’t say it, the language used here makes it clear CIA thought of this as water dousing–a technique that would not be approved by DOJ for use until August 26, 2004. After Rahman died, the CIA tried to invent the Legal Principles document as a way to authorize murder and other crimes, but Jack Goldsmith would go on to not only refuse to consider that document OLC authorization, but to refuse to approve water dousing specifically in March 2004.

In other words, three years and our third review of this case later, and DOJ still hasn’t decided whether wetting someone down in close to freezing temperatures is a crime, even though this was a torture technique that DOJ had not approved at the time.

The Salt Pit manager relied on the advice of his superiors

Now, the guy who wet down Rahman apparently wasn’t working off a list of approved techniques. Rather, he was asking for guidance from his superiors.

The [Inspector General’s] report found that the Salt Pit officer displayed poor judgment in leaving the detainee in the cold. But it also indicated the officer made repeated requests to superiors for guidance that were largely ignored, according to two former U.S. intelligence officials.

That raised concerns about both the responsibility of the station chief and the CIA’s management in Langley. Similar concerns about CIA management were later aired in the inspector general’s review of the CIA’s secret interrogation program.

In fact, John Yoo, appears to blame the people interpreting the Bybee Memos for any untoward results from torture. For example, he refers to a written document (probably cables to the field) that appear to be derivative of the Bybee Memo, suggesting those didn’t properly account for pain that might amount to death.

The Memo says that the pain must rise to the level that “would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of bodily functions.” Bybee Memo at 6. There is no way to interpret this sentence other than that if the pain is equivalent to the pain that accompanies those conditions, the infliction qualifies as torture, whether or not it actually does result in those conditions. It certainly would not be so misinterpreted by the sophisticated legal audience at which the Bybee Memo was directed–especially given the analysis in the Classified Bybee Memo, which carefully examined the level of physical pain caused by the individual interrogation techniques even though none of those techniques cause death, organ failure, or serious impairment of bodily functions. See Classified Bybee Memo at 9-10 (“With respect to physical pain, we previously concluded that ’severe pain’ within the meaning of Section 2340 is pain that is difficult for the individual to endure and is of an intensity akin to the pain accompanying serious physical injury.”)40

40 [long redaction] But, of course neither Professor Yoo nor Judge Bybee have anything to do with writing or reviewing [redacted] and they could reasonably assume their own work product would be read in good faith and consistently with its terms by a sophisticated audience even if a particular reader did not read it carefully or willfully disregarded its terms. [emphasis original]

That is, Yoo seems to blame whoever both read the Bybee Memo and–having interpreted the memo in a “sophisticated” manner–passed on authorization for techniques that did result into death.

Now, the AP article and its former CIA officer sources appear to blame the Kabul station chief–who has since become a top CIA officer–for the death.

It remains uncertain whether any intelligence officers have been punished as a result of the Afghan’s death, raising questions about the CIA’s accountability in the case. The CIA’s then-station chief in Afghanistan was promoted after Rahman’s death, and the officer who ran the prison went on to other assignments, including one overseas, several former intelligence officials said.

[snip]

But several former senior CIA officials questioned the Kabul station chief’s career advancement inside the agency after Rahman died. Now a senior officer, the man was promoted at least three times since leaving Afghanistan in 2003, former officials said.

But the record we’ve seen with other torture authorizations show heavy cable traffic going back and forth from the field and Langley, suggesting the “sophisticated” reader who translated the Bybee Memo into torture may well have been in the Counterterrorism Center. And it’s notable that the CIA’s own accountability review board who reviewed this incident was led by Dusty Foggo, a guy who would later go on to have his own abuse of power–and his inappropriate girlfriend–protected by John Rizzo at Office of General Counsel, another person who was in the loop of torture approvals.

Bybee One and Bybee Two work to pre-authorize some torture and retroactively approve murder

Ultimately, though, this case points to how the Bybee One and Two memos worked in tandem, with Bybee Two authorizing things like waterboarding, and Bybee One including that giant loophole of intent. The AP says that Paul McNulty and Chuck Rosenberg’s reviews of the murder could not prove that the manager of the Salt Pit intended to murder Rahman.

The former U.S. official familiar with the case said federal prosecutors could not prove the CIA officer running the Salt Pit had intended to harm the detainee — a point made in a recently released government document that also disclosed Rahman’s name.

But the unnamed document referred to above does not say DOJ’s prosecutors made this determination (I’m working on being able to say more about this document). Rather, it says that the Counterterrorism Center wrote a declination memo for this case specifically, and appealed to the intent language of the Bybee One memo. And that declination memo said that since the manager of the Salt Pit did not intend for Rahman to suffer severe pain from being watered down and left in a near-freezing cell, he did not violate the torture statute.

But understand what’s happening here: the manager of the Salt Pit had no fucking clue what he should do with Rahman–he didn’t have the Bybee Two memo, for example. He asked for guidance from his superiors repeatedly, almost certainly CTC. Those superiors approved a SERE technique that had not been approved by OLC, and that technique led to Rahman’s death. And it was CTC that got to write CIA’s summary of what happened in a declination memo that presumably went to DOJ’s own prosecutors.

That is, the guys who probably approved an unauthorized technique, the guys who probably had read both Bybee Memos, relied on the intent language of the Bybee One memo to excuse that unauthorized technique, and declare the deliberate exposure of someone to near-freezing temperatures not to be murder or torture.

Congratulations to Craig Becker, who has finally gotten his recess appointment to serve on the National Labor Relations Board. As well as 14 other people who were similarly recess appointed today.

Not on that list?

Dawn Johnsen.

Any more questions about why Johnsen hasn’t assumed her role as Assistant Attorney General yet?

Update: I asked the White House for comment on why Johnsen wasn’t included. This is the comment I got back, from Spokesperson Jen Psaki:

Of the 77 people on the calendar, we are only recess appointing 15 and there are a number of qualified individuals the President has nominated that do not fall in this group.  If the Republicans do not end their campaign of obstruction, the President reserves the option of exerting his authority to recess appoint qualified individuals in the future, but our hope is that we can move beyond the partisan politics that have held up the process for the last fifteen months for the good of the American people.

As I noted in my last post, the Obama Administration is following Bush Administration precedent in shielding OLC memos from Congressional oversight.

The Kyl and Coburn requests for OLC memos on any rights Gitmo detainees would get if brought into the US were not the only questions about OLC memos posed to Eric Holder after his November 2009 appearance before the Senate Judiciary. Russ Feingold raised an issue he always raises during oversight hearings: the still-operative OLC memos authorizing warrantless wiretapping.

Office of Legal Counsel White Memos:

20. In your October 29, 2009, responses to Questions for the Record from the June 17, 2009, Department of Justice Oversight hearing, you stated that there was an ongoing review of whether to withdraw the January 2006 White Paper and other classified Office of Legal Counsel (OLC) memos providing legal justification for the NSA’s warrantless wiretapping program. What is the current status of that review? When will it be complete? Has anyone at the Department made an affirmative decision to leave those opinions in effect?

Response: The Department is still conducting its review, and will work with you and your staff to provide a better sense of the timing of the completion of the review. No one in the Department has made any affirmative decision about the treatment of the OLC opinions.

This is the White Paper based largely on a May 6, 2004 Jack Goldsmith opinion written after the hospital confrontation and designed to replace Yoo’s expansive claims to inherent authority with an argument that the AUMF authorized the warrantless wiretap program. And according to Holder, DOJ is still dithering around with the question of whether they need to withdraw the memo.

Presumably, that decision is being made at least partly at OLC. You know–OLC? The department Dawn Johnsen should be running?

And I find that curious because, while I have no idea what Acting OLC  head David Barron thinks of the January 2006 White Paper, we do know what another key OLC attorney thinks about it. While still at Balkinization, Marty Lederman repeatedly explained why the AUMF could not be claimed to have authorized the warrantless wiretap program. In February 2006, Lederman was one of a number of lawyers who wrote Congress explaining that the AUMF argument made no sense. In March 2006, Lederman wrote a long post analyzing what David Kris–now AAG for National Security–said in arguing that the AUMF couldn’t justify the warrantless wiretap program.

Yet, in spite of the fact that two of the DOJ’s key people believe this White Paper to be bogus, DOJ is still trying to figure out whether they need to withdraw it.

I’m going to have a few posts on answers Eric Holder gave to the Senate Judiciary Committee’s Questions for the Record submitted after his last appearance in November 2009.

Two of the questions (one from John Kyl and the other from Tom Coburn) asked whether Gitmo detainees brought to the United States for civilian trial would get additional constitutional rights. Both Senators asked Holder for details on OLC opinions on whether this would happen.

Though Holder did point to a public document (it’s the last several pages of his response packet) laying out the risks that courts would require even military commissions to grant such constitutional rights, he refused to let Congress see the OLC memos in question. Here’s Kyl’s question and response.

Prosecution of Khalid Sheikh Mohammed and Other 9/11 Conspirators in Federal Court :

68. Now that the Administration has made a final decision to bring Khalid Sheikh Mohammed and other 9/11 conspirators to the United States for prosecution, please provide this Committee with any memoranda written by the Office of Legal Counsel articulating what additional constitutional and statutory rights detainees may receive by virtue of their presence in the United States that are not currently available to them at Guantanamo.

Response: Please find attached a memorandum concerning the application of the Due Process Clause of the Fifth Amendment to military commission proceedings in the United States and at the Guantanamo Bay Naval Base, which the Department of Justice previously provided in response to a congressional inquiry (Attachment 3). The Department would have substantial confidentiality interests in any other memorandum that OLC or other components might have prepared on this topic.

As I said, Coburn asked a similar question and got an identical response.

Now, I get a weird spidey-sense every time DOJ refuses to show members of Congress who have an oversight role the OLC memos that DOJ has written. Even if these memos say Khalid Sheikh Mohammed would have the right to free health care and a shiny new pony the moment he was taken off a plane in the continental US, I still think Committee Members with a proper oversight interest ought to be able to see these memos.

But I gotta say, I also suspect there’s a reason they’re so insistent on not only the existence of memos, but also their right to see them. Is it possible that Bradbury or Yoo or someone wrote up a KSM’s shiny pony memo before they left DOJ as one more justification for keeping Gitmo open indefinitely? Are they hoping to flush out another of the hack memos written under the Bush Administration?

Jeff Sessions has already seized on yesterday’s release of DOJ’s list of 390 terrorist convictions and twisted it to sustain his claim that we need to try Khalid Sheikh Mohammed in a military commission. Much of his response consists of making non-specific claims about individuals on the list in an attempt to minimize the applicability of all these convictions.

The great majority of the terrorism cases cited by the Attorney General are in no way comparable to KSM’s case. Most of the convictions in this list are for far lesser offenses, such as document fraud and immigration violations, while only a small handful concern conduct even remotely similar to a mass-casualty terrorist attack. And none are on the level of KSM, who masterminded 9/11.

Among the cases cited is that of Zaccarias Moussaoui, which was fraught with procedural problems, delays, appeals, risks to classified evidence, and even a lone holdout juror who spared the 20th hijacker the death penalty. Due to gaps in federal law, many of the problems prosecutors encountered in the Moussaoui trial will be experienced in future terrorism trials.

[snip]

The figures released today also contradict the Attorney General’s claims on the Christmas Day Bomber: two of the terrorists on this list were placed in military custody precisely because the criminal justice system severely limits our ability to gather intelligence. [my emphasis]

But by far the most amusing attack on this list is Jeff Sessions’ explanation–after pointing to the procedural problems and delays in the Moussaoui trial–that most of these 390 convictions happened before military commissions were operational, which he dates to 2008.

Moreover, the overwhelming bulk of these cases are for acts committed by U.S. citizens—which KSM and the Christmas Bomber are not—and occurred before military commissions became fully operational in 2008. [my emphasis]

Someone better tell George Bush, who claims to have set up military commissions on November 13, 2001. And someone better tell Salim Hamdan, who was first charged in a military commission in 2004, and whose appeal of the terms of the military commissions lasted two years, after which there was another two year delay until his trial began.

In other words, Jeff Sessions deals with precisely the kind of delay we can expect for any future military commissions–one of the biggest reasons not to use them–by simply ignoring the delays that have already happened.

Cass Sunstein doesn’t really have all that much to do with the content of this post. I named it after him as an excuse to recommend that you read Glenn Greenwald’s take-down of Sunstein as a potential SCOTUS appointee, and particularly to remind you of Sunstein’s paper advocating extensive propaganda to knock down the theories of those Sunstein deems to have committed “cognitive blunders.” There is no evidence Sunstein’s theories of governmental information control have to do with the apparent increasing persecution of open source leak outlets, but it does seem to stem from the same kind of authoritarian instinct.

WikiLeaks alleges intelligence surveillance of its actions

As a number of you have emailed, Wikileaks has posted a press release and a number of tweets alleging that it was being surveilled and harassed in Iceland.

I, and others were in Iceland to advise Icelandic parliamentarians on the Icelandic Modern Media Initiative, a new package of laws designed to protect investigative journalists and internet services from spying and censorship. As such, the spying has an extra poignancy.

The possible triggers:

• our ongoing work on a classified film revealing civilian casualties occurring under the command of the U.S, general, David Petraeus.
• our release of a classified 32 page US intelligence report on how to fatally marginalize WikiLeaks (expose our sources, destroy our reputation for integrity, hack us).
• our release of a classified cable from the U.S. Embassy in Reykjavik reporting on contact between the U.S. and the U.K. over billions of euros in claimed loan guarantees.
• pending releases related to the collapse of the Icelandic banks and Icelandic “oligarchs”.

We have discovered half a dozen attempts at covert surveillance in Reykjavik both by native English speakers and Icelanders. On the occasions where these individuals were approached, they ran away. One had marked police equipment and the license plates for another suspicious vehicle track back to the Icelandic private VIP bodyguard firm Terr. What does that mean? We don’t know. But as you will see, other events are clear.

U.S. sources told Icelandic state media’s deputy head of news, that the State Department was aggressively investigating a leak from the U.S. Embassy in Reykjavik. I was seen at a private U.S Embassy party at the Ambassador’s residence, late last year and it is known I had contact with Embassy staff, after.

On Thursday March 18, 2010, I took the 2.15 PM flight out of Reykjavik to Copenhagen–on the way to speak at the SKUP investigative journalism conference in Norway. After receiving a tip, we obtained airline records for the flight concerned. Two individuals, recorded as brandishing diplomatic credentials checked in for my flight at 12:03 and 12:06 under the name of “US State Department”. The two are not recorded as having any luggage.

Iceland doesn’t have a separate security service. It folds its intelligence function into its police forces, leading to an uneasy overlap of policing and intelligence functions and values.

On Monday 22, March, at approximately 8.30pm, a WikiLeaks volunteer, a minor, was detained by Icelandic police on a wholly insignificant matter. Police then took the opportunity to hold the youth over night, without charge–a highly unusual act in Iceland. The next day, during the course of interrogation, the volunteer was shown covert photos of me outside the Reykjavik restaurant “Icelandic Fish & Chips”, where a WikiLeaks production meeting took place on Wednesday March 17–the day before individuals operating under the name of the U.S. State Department boarded my flight to Copenhagen.

Our production meeting used a discreet, closed, backroom, because we were working on the analysis of a classified U.S. military video showing civilian kills by U.S. pilots. During the interrogation, a specific reference was made by police to the video—which could not have been understood from that day’s exterior surveillance alone. Another specific reference was made to “important”, but unnamed Icelandic figures. References were also made to the names of two senior journalists at the production meeting.

As they note in the press release above, this comes shortly after Wikileaks posted an Army Counterintelligence paper on Wikileaks itself, written in 2008, and advocating the kind of misinformation that Sunstein himself proposed.

PayPal freezes Cryptome’s account, perhaps in retaliation

Then there’s something that happened a few more weeks ago, when PayPal froze Cryptome’s PayPal account. (Zero Hedge connected these two events here.)

6 March 2010

PayPal has confiscated donations made to Cryptome since February 24, 2010. The donations have have been refunded by Cryptome rather than leave them in the untrustworthy control of PayPal for purposes contrary to those of the donors. The total refund was about $5,300, not much but a peak in donations.

The timing of the confiscation corresponds to the recent Microsoft-Network Solutions copyright imbroglio and public attention given to the lawful spying guide series including those of PayPal. PayPal’s legal agreements describe a wide range of prohibitions — among them DMCA infringement, counter-terrorism, violations of AUP and catch-alls — for use of its services and urges reporting of violations. It “limits” (suspend and/or close) an account without fully explaining the reasons, some of which may be secret under spying law, others kept confidential to avoid law suits or bad publicity.

Google lists thousands of instances of this asymmetrical high-handedness which is remarkably similar to that used by Microsoft and Network Solutions to shutdown Cryptome ten days ago. And it fits the business model of governments for financial-spying by use of informants and bank secrecy agreements.

It is likely Cryptome was targeted by an informant or by the recent donation upsurge tripping a PayPal algorithm as yet another gov-com-business model risk. An anecdote in accord with this minimizing of risk, maximizing of profit: an Internal Revenue Service auditor described its business model to Cryptome that “unpaid public service was not desirable, IRS wanted taxpayers to make more money in order to pay more taxes.”

To support Cryptome use means other than PayPal.

Mail: John Young, Cryptome, 251 West 89th Street, New York, NY 10024
Checks/Money Orders: Make out to “John Young”

Though this appears to be retaliation from corporate intelligence partners of the federal government–perhaps PayPal itself–rather than the federal government directly, it seems likely it is a response to the exposure of intelligence methods.

Exposing sources and methods

And I have to admit I’m somewhat ambivalent about some of this. Both Cryptome and WikiLeaks post stuff that probably exposes our military positions. Unlike–say–Secrecy News, it’s not clear that these sites choose not to publish information that could be very dangerous in public form.

But what I’m particularly intrigued by is the response of these two outlets. Both WikiLeaks and Cryptome have responded to harassment and surveillance by … publishing more. Specifically, publishing more about the sources and methods used against them.

In particular, WikiLeaks–assuming their chronology of surveillance of itself is accurate–not only telegraphs to former and potential leakers the degree of surveillance they’re under, also portrays easily exposed tradecraft. Spooks, domestic and international, who are easily tracked, even by a website like Wikileaks.

As I said, I’m ambivalent about some of the stuff that gets published by Wikileaks and Cryptome. But at the same time, I’m alert to the sense that there is increasing persecution of these outlets, even under Obama. And I’m amused that the response–exposing the kind of surveillance we all may be subject to–may be just as useful as the documents the outlets publish.

Since we’ve been talking about domestic right wing terrorism of late, I wanted to elaborate on a point I made here. Today, the Department of Justice released a list of all the terrorist-related individuals it found guilty in civilian courts since 9/11. And Scott Roeder, who was found guilty of killing George Tiller on January 29, 2010, is not on that list.

There are two reasons why it might be churlish for me to make that observation. First, the list was released in response to a specific request from the Senate Judiciary Committee in the context of debates over civilian versus military trials for Gitmo detainees, which suggests SJC was interested in a certain kind of terrorist (though, at least in Assistant Attorney General Ronald Weich’s response, it seems that the request was not specific to international terrorists). Also, in response to that request, DOJ simply provided a list started during the Bush Administration, and the list was explicitly limited to international terrorists.

The National Security Division’s International Terrorism and Terrorism-Related Statistics Chart tracks convictions resulting from international terrorism investigations conducted since September 11, 2001, including investigations of terrorist acts planned or committed outside the territorial jurisdiction of the United States over which Federal criminal jurisdiction exists and those within the United States involving international terrorists and terrorist groups.

In other words, to develop a list of all terrorists–rather than just the terrorists the National Security Division considers terrorists–it would have to cull out the names of Americans who also engaged in terrorism.

So what would it take, then, for DOJ to consider a guy who stalked a doctor for years, who collaborated with a number of other people engaged in intimidation and violence, and ultimately gunned a man down while he was worshiping at church, a terrorist?

If we find evidence that, in addition to harboring pedophiles, Pope Benedict and the American Catholic Bishops have been intimidating women and their doctors, would Scott Roeder be considered a terrorist (recognizing, of course, there is no allegation that the Catholic Church endorses violence of the type Roeder used)? Or would it take a brown man, involved in the plot, for DOJ to consider this terrorism?

The Department of Justice has just sent a letter to the Senate Judiciary Committee answering early questions about how many terrorists have been convicted or plead guilty in civilian courts. Between those convicted of terrorism-related crimes (150) and individuals with ties to international terrorism convicted of other crimes (like obstruction or perjury–the total here is 240), 390 people have been sent to prison using our civilian courts.

As you might recall, there has been some debate over what the “real” number of terrorists convicted in civilian courts is. After the Obama Administration used the same number the Bush Administration had–a number which combines terrorist charges with non-terrorist charges–Republicans squawked.

But as DOJ points out, having other charges available is one of the advantages to the civilian courts:

The second category includes a variety of other statutes (like fraud, firearms offenses, false statements, or obstruction of justice) where the investigation involved an identified link to international terrorism. There have been more than 240 individuals charged in such cases since September 11, 2001. Examples of the international terrorism nexus identified in some of these cases have also been provided for your review.Prosecuting terror-related targets using these latter offenses is often an effective method—and sometimes the only available method—of deterring and disrupting potential terrorist planning and support activities. Indeed, one of the great strengths of the criminal justice system is the broad range of offenses that are available to arrest and convict individuals believed to be linked to terrorism, even if a terrorism offense cannot be established. Of course, an aggressive and wide-ranging terrorism investigation will net individuals with varying degrees of culpability and involvement in terrorist activity, as the NSD chart reflects. Arresting and convicting both major and minor operatives, supporters, and facilitators can have crippling effects on terrorists’ ability to carry out their plans. [my emphasis]

This is a point David Kris made in Congressional testimony last year–there are actually charges you can’t use in a military commission but which you can use in a civilian court (though the Obama Administration appears prepared to press the limits of MCs anyway).

The list of terrorists convicted itself is interesting in its own right. Among other things, it demonstrates the degree to which terrorism is still largely–though not exclusively–targeted at Muslims (though in the first page itself there are individuals tied to the Tamil Tigers and one woman from FARC who was quietly rounded up last year after the Ingrid Betancourt rescue).

Not on this list? Right-wing American terrorists like Scott Roeder.

This WaPo story–which tells how Mohamedou Ould Slahi and Tariq al-Sawah got special privileges and too much fast food at Gitmo in exchange for cooperation–focuses on the things the detainees get, like Subway sandwiches, their own mint garden, and their own compound. (h/t cs) But it really points to one more reason why civilian trials may be better than military commissions: because of the ability to offer something in exchange for cooperation.

With both the underwear bomber and Najibullah Zazi, officials were eventually able to get their cooperation investigating their ties with the al Qaeda network in exchange for the possibility of leniency (and for the underwear bomber, a promise not to try for the death penalty). And Jamal al-Fadl ended up being one of the key witnesses in the Embassy Bombing trial, which helped put US-based al Qaeda figures in jail for life.

Yet with Slahi and al-Sawah, there seems to be no easy way to reflect their cooperation. Rewarding these two detainees for having cooperated is considered “a hard sell.”

“I don’t see why they aren’t given asylum,” said W. Patrick Lang, a retired senior military intelligence officer. “If we don’t do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I’d want it known we protected them. It’s good advertising.”

A current military official at Guantanamo suggested that that argument was fair. Still, he said, it’s “a hard-sell argument around here.”

Heck, in the case of Slahi, the government is appealing Judge Robertson’s order that he be released.

And, as a number of sources admit later in the EPU range of this article, we simply don’t have the means to account for cooperation in our disposition of higher level al Qaeda detainees.

A Justice Department-led review of the cases of all detainees at Guantanamo Bay, which recently wrapped up, decided that Sawah and Slahi are owed no special treatment. An administration official, speaking before the federal court ruling on Slahi, said the government wants either to prosecute them or to hold them in some form of indefinite detention without charge.

Some current and former military officials say there should be other options. The treatment of high-profile informants such as Sawah and Slahi, they argue, will affect the government’s ability to turn other jihadists.

“We are much behind in discussing and working out details of some form of witness protection program for the most potentially important and in-danger witnesses,” said a military official who has served at Guantanamo.

The former chief military prosecutor at Guantanamo, Lawrence Morris, said officials always weighed a detainee’s cooperation, particularly its quality and timeliness, before making a charging decision.

“We were not heedless to other factors, but our job was to make our best judgment from a criminal standpoint,” said Morris, who noted that the decision to bring a case against Sawah came after prolonged deliberation and consultation with intelligence officials.

So instead of providing an incentive for al Qaeda insiders to flip in exchange for special treatment, we instead push for indefinite detention for them (albeit detention softened by fast food). And we’re left with the kind of intelligence hack contractors can collect in the field rather than real inside information.

This one is for Mary, who sent me the link from the road. As everyone knows, once you earn your bones in the Bush DOJ on torture and/or illegal wiretapping, you get a plum position in the private world. As Mary has consistently pointed out, Jim Comey got jumped in to the gang that couldn’t torture straight when he invoked state secrets to cover for Larry Thompson and other malfeasants in the Maher Arar case. For that fine work, Comey is now General Counsel at Lockheed Martin Aerospace while Thompson had to settle for the General Counsel slot at PepsiCo. But today is about Comey’s current crew, Lockheed.

The Wall Street Journal has an article out describing the fine educational possibilities provided the world community by the American military-industrial complex:

Lockheed Martin Corp. became the nation’s No. 1 military contractor by selling cutting-edge weaponry like the F-35 Joint Strike Fighter.

Its latest contribution to the U.S. arsenal: training prosecutors in Liberia’s Justice Ministry.

The U.S. government has hired the defense contractor to test an emerging tenet of its security policy. Called “smart power,” it blends military might with nation-building activities, in hopes of boosting political stability and American influence in far-flung corners such as Liberia.

Yep, the makers of strike fighters, cruise missiles and other niceties of global thermonuclear war, are gonna school up the new justice class in Liberia. Really, what could go wrong??

Defense firms are eager to oblige. “The definition of global security is changing,” says Lockheed’s Chairman and Chief Executive Robert Stevens. He wants the maker of the Air Force’s most advanced fighters to become a central player in the U.S. campaign to use economic and political means to align countries with American strategic interests.

Last year, Lockheed had two of its highest profile programs, the F-22 Raptor fighter and a fleet of presidential helicopters, ended by the Obama administration. Now, Lockheed is one of several defense firms expected to bid for a State Department contract to support “criminal justice sector development programs world-wide,” that could be worth up to $30 billion over five years.

Well, that does seem like a promising business opportunity and, hey, why should Halliburton and Blackwater/Xe get all the fun and Ferengi profit?

Morgan Stanley defense analyst Heidi Wood says Lockheed’s early push into this realm sets it apart from competitors. It is too soon to pinpoint a financial impact, she says, but the moves will pay off. “It’s a complete paradigm change.”

Yeah, ya think?? I wonder what kind of homework the Lockheed law professors assign? Read the entire WSJ article, it is worth it.

Now, to be fair, Jim Comey is not specifically referenced in the comprehensive article, but there is little question but that he is the top prosecutorial experience Lockheed possesses and, really, a joint with the history of Liberia would be the perfect place for former Bush/Cheney prosecutors to impart their “special” skills. It could all fit so nicely.