If your local football coach was 3 wins and 23 losses for the season, you could rest assured of two things; one, you are a Detroit Lions fan and, two, the coach is getting fired. Well, there was an interesting little article that was published in today’s New York Times, and the upshot is that 3 and 23 is exactly what the Bush/Cheney regime’s record is when their Guantanamo Detainee cases see the sunshine of a real court. Clearly we have pretty much been endlessly detaining a lot of innocuous people on unsubstantiated evidence.

Describing the release last weekend of Haji Bismullah, an Afghan detainee held at Guantánamo Bay for nearly six years, the Times notes:

The decision was part of a pattern that has emerged in the closing chapter of the administration. In the last three months, at least 24 detainees have been declared improperly held by courts or a tribunal — or nearly 10 percent of the population at the detention camp in Guantánamo Bay, Cuba, where about 245 men remain.
…
While Mr. Bismullah’s case was decided by a military panel, the rulings for the other 23 detainees occurred in habeas corpus hearings in federal court. Since a Supreme Court decision in June gave detainees the right to have their detentions reviewed by federal judges in habeas cases, the government has won only three of them.

Get that?? 3 and 23. Not. Real. Good. Certainly puts the lie to Cheney and Bush’s promises that they were holding only the "worst of the worst" after all these years doesn’t it?

The cases provide a snapshot of the intelligence collected by the government on the suspects and suggest that there was little credible evidence behind the decision to declare some of the men enemy combatants and to hold them indefinitely.
…
“The government’s failure in case after case after case to be able to prove its case calls into question everybody who is there,” said Susan Baker Manning, a lawyer for 17 Uighur detainees from western China who were ordered released by a federal judge in October. The Justice Department has appealed that order from a federal district judge, Ricardo M. Urbina, and the men are still at Guantánamo.

Well, I guess, as shocking as it is, this is not exactly breaking news anymore. The brittle patina of legitimacy and credibility, to the extent there ever was any, began to crack with the first major court decision on the Bush/Cheney/Rumsfeld military commission process , Hamdan v. Rumsfeld, was decided. In that regard, there is excellent news to report.

Neal Katyal, Professor of National Security Law at Georgetown University Law Center and lead counsel in the Supreme Court on Hamdan v. Rumsfeld, has been chosen to be the Obama Administration’s Principal Deputy Solicitor General, the office’s No. 2 spot, according to the Legal Times.

Katyal’s appointment is another strong signal of President-elect Barack Obama’s intentions to depart sharply from the terrorist detention and interrogation policies of the Bush administration. In Hamdan, the Supreme Court found that the Bush administration’s military commissions for trying suspected terrorists violated the Uniform Code of Military Justice and the Geneva Conventions.

Unlike the nominee for solicitor General, Elena Kagan, Katyal does have experience before the Supreme Court, but not exactly a wealth of it. Nevertheless, the fact that Obama has chosen Kagan and Katyal to lead the SG’s Office sends a clear and unmistakable message that massive change is underway, and that it is in the opposite direction from the unconscionable and immoral policies of torture set by the Bush/Cheney regime. Welcome news indeed.

In an earlier post I discussed the startling direct admission that the United States tortures terror detainees made public in last Wednesday’s blockbuster Bob Woodward piece in the Washington Post. As the Bush Administration’s hand picked convening authority for the military tribunals, otherwise known as the "Gitmo Show Trials", Susan Crawford’s admission carries the binding mark of credibility.

In this post, I want to explain the troublesome ramifications Crawford’s admission carries for the provisions in the Army Field Manual regarding the treatment and interrogation of detainees. And the Army Field Manual is a singularly important frame of reference because President-Elect Barack Obama famously staked his claim to being a torture reformer during the election by promising to restrict US detainee interrogation techniques to those contained in the Army Field Manual. President-Elect Obama is holding true to his word.

The proposal Obama is considering would require all CIA interrogators to follow conduct outlined in the U.S. Army Field Manual, the officials said.
…
However, Obama’s changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said.

This is where Susan Crawford’s stark admission comes into play. As Crawford admits, most all of the techniques used on al-Qahtani were actually permissible, but the layering of techniques compounded them into unmistakable torture.

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani’s health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

Crawford has exposed to bright sunlight the lie that is Barack Obama’s, and other politicians’, simple minded reliance on the Army Field Manual as cover for their torture reform credentials. Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions.

The case is laid out convincingly by Dr. Jeffrey S. Kaye, a clinical psychologist specializing in the analysis and treatment of torture victims. Dr. Kaye has been tirelessly fighting the US torture regime through both his clinical work and his blog Invictus under the pseudonym Valtin. In a comprehensive article originally published at AlterNet, and cross-posted at Invictus, he filets open the Army Field Manual lie.

In early September 2006, the U.S. Department of Defense, reeling from at least a dozen investigations into detainee abuse by interrogators, released Directive 2310.01E. This directive was advertised as an overhaul and improvement on earlier detainee operations and included a newly rewritten Army Field Manual for Human Intelligence Collector Operations (FM-2-22-3). This guidebook for interrogators was meant to set a humane standard for U.S. interrogators worldwide, a standard that was respectful of the Geneva Conventions and other U.S. and international laws concerning treatment of prisoners.
…
There was only one problem: the AFM did not eliminate torture. Despite what it said, it did not adhere to the Geneva Conventions. Even worse, it took the standard operating procedure of Camp Delta at Guantanamo Bay and threatened to expand it all over the world.
…
The viral instructions in the AFM transform into an abusive and illegal torture program. Most of these "instructions" can be found hidden in the proverbial fine print of the document, in its very last appendix, labeled with no apparent irony as regards the mythology of James Bond, Appendix M.

Appendix M, titled "Restricted Interrogation Technique — Separation," misrepresents itself from the very beginning. (One wonders if it was rewritten from an earlier draft, at a time when the Pentagon wanted to keep these procedures classified.) It is not actually a technique (singular), but a set of techniques, though one has to read deeply into its 10 pages of text and be somewhat sophisticated in the history of psychological torture procedures, to assemble a full view of the viral program.

This program is nothing less than the one established in researcher Albert Biderman’s Chart of Coercion, which, as revealed by the recent Senate Armed Services Committee investigation into detainee abuse, was the blueprint used by SERE instructors at Guantanamo in late 2002 to teach abusive interrogation techniques. (SERE stands for Survival, Evasion, Resistance, Escape and is the military program to "inoculate" certain military personnel against torture or abusive treatment by an enemy that doesn’t recognize Geneva protocol.)
…
What kind of procedures, which the manual avers cannot be used on regular prisoners of war (who are covered by the Geneva Convention Relative to the Treatment of Prisoners of War), make up this special interrogation "technique," separation? In fact, it includes the following: solitary confinement, perceptual or sensory deprivation, sleep deprivation, the induction of fear and hopelessness, and the likely use of sensory overload, temperature or environmental manipulation, and any number of other techniques permitted elsewhere in the AFM, such as "Emotional Pride Down." As at Guantanamo and at prisons in Iraq and Afghanistan, a "multidisciplinary" team implements the program, including a behavioral science consultant (likely a psychologist).

This is the lie. The Army Field Manual provisions, especially with those pesky footnotes like "Appendix M", leave a wide open path for torture. And this is exactly what Susan Crawford directly admitted to Bob Woodward. This is a significant problem, the very torture, and modalities thereof, that are so abhorrent are about to be ratified and enshrined into the ethos of the new Obama Administration. What is worse is that the media and the country as a whole are biting off on the proposition that the torture regime is being slain in the process, and that is simply not the case.

The Guantanamo virus is spreading. Its agent is Appendix M of the Army Field Manual. It will be very difficult to eradicate. It will require the effort of every person who believes in human rights and is opposed to torture to spread the word.
…
The AFM as constituted must not be made the "one national standard" until the virus is eradicated. Appendix M must be rescinded in its totality, and portions of the document, such as the section on Fear Up, rewritten. Otherwise, Bush’s and Rumsfeld’s attempt to sneak coercive methods of interrogation into the main document of human intelligence gathering used by the military will succeed.

Not all is bleak here. There is no question but that Obama and his team will have better policies and intentions than the Bush wrecking crew. That is a given. The mere desire to do better is a welcome improvement on the bellicose belligerence of George Bush and Dick Cheney. And the man President-Elect Obama has chosen to serve as General Counsel at the Department of Defense, Jeh Johnson, upon questioning at his confirmation hearing, exhibited a remarkable willingness to reconsider the entire torture regime policy instituted by the Bush Administration.

So, there is hope for a far better interrogation policy set from the incoming Obama Administration. But it is not enough to simply have the audacity of hope on the subject of torture, concrete steps need to be taken to prove to the American people, and more importantly the world, that the United States is turning its back on the policies and practices of the Bush torture regime. If the Army Field Manual is going to be the reference standard for US interrogation policy, then it needs to be retooled and excised of provisions like "Appendix M" and others that are glaring gaps allowing for techniques, and the compounding of techniques, that constitute torture.

The hearts of the incoming Obama Administration’s interrogation policy appear to be in a better, more righteous, place than the torture regime of the predecessor Bush gang; but let their words and deeds reflect it. If the US is going to rely on the Army Field Manual, fine, but they must promise to edit and remove black holes like "Appendix M", and others, allowing for continued torture programs. American law and policy must be written and enforced to be in compliance with international norms and conventions. Mr. Obama, tear down the American policy of torture, and do it clearly, unequivocally and now.

(graphic by the incomparable Darkblack)

Barack Obama and his new administration need to prosecute the malefactors in the outgoing Bush Administration for the crimes and crimes against humanity they perpetrated while in office. The law is not just to punish, although it is for that; more importantly, it is to set an example for society to see and know, to exhibit what is wrong and not to be tolerated.

Tonight on Keith Olbermann’s Countdown on MSNBC, Professor Jonathan Turley made a passionate plea to Mr. Obama, his Attorney General to be Eric Holder and the incoming administration to do just that: prosecute the malefactors for the egregious conduct and set an example.

There is a difference between criminalizing policy and a policy of crimes, and that is what we have here. We just had three Attorney Generals that couldn’t tell the difference, and the question is whether he will prosecute confirmed crimes.

Indeed, that is the question. Watch the clip, it is must see teevee.

Paul Krugman said much the same in today’s New York Times:

I’m sorry, but if we don’t have an inquest into what happened during the Bush years — and nearly everyone has taken Mr. Obama’s remarks to mean that we won’t — this means that those who hold power are indeed above the law because they don’t face any consequences if they abuse their power.

These two luminaries are speaking the gospel. Spread the word.

Even more interesting to me than the fact that Blago’s defense attorneys are refusing to defend him in the impeachment trial…

The legal team that has represented embattled Gov. Rod Blagojevich in impeachment proceedings in Springfield has stepped down in protest before the governor’s trial in the Illinois Senate, the Tribune has learned.

Blagojevich’s lawyers said the process has become "fundamentally unfair" because they have had too little time to prepare for the Senate trial and have been denied subpoena power to call their own witnesses.

The governor’s lawyers had been asked to file an appearance on his behalf by Monday. The Senate trial is scheduled to begin Jan. 26.

In a statement, attorney Sam Adam and his son, Samuel E. Adam, said they couldn’t in good conscience represent the governor in a Senate trial "without any due process of law, fundamental fairness or the most basic right to confront one’s accusers."

"We cannot and will not degrade our client, ourselves, our oaths and our profession, as well as the office of the governor, by participating in a Potemkin-like lynching proceeding, thus making it appear that the governor is represented by competent counsel when in fact he is not," the statement said.

Edward Genson, another Blagojevich attorney, said he also is recusing himself from representing the governor before the Senate and agreed the trial would be unfair.

"I had never committed to the Senate trial, and I will not file an appearance," Genson said.

That’s interesting–though likely just a stunt to prevent the impeachment from going off smoothly.

But even more interesting is the notion that Sam Adam Jr.–the guy who brokered Burris’ appointment to the Senate–is refusing to represent "his client." 

That’s because just a few weeks ago, Genson insisted to the IL legislative committee that Adam was not, in fact, part of the defense team. If he wasn’t part of the defense team, then how could he be stepping down now?

The WaPo presented a very credulous view of the status of lost emails in a story many of you have emailed to me–suggesting that "all" of the lost White House emails have been found.

Missing White House E-Mails Traced, Justice Aide Says

A Justice Department lawyer told a federal judge yesterday that the Bush administration will meet its legal requirement to transfer e-mails to the National Archives after spending more than $10 million to locate 14 million e-mails reported missing four years ago from White House computer files.

Civil division trial lawyer Helen H. Hong made the disclosure at a court hearing provoked by a 2007 lawsuit filed by outside groups to ensure that politically significant records created by the White House are not destroyed or removed before President Bush leaves office at noon on Tuesday. She said the department plans to argue in a court filing this week that the administration’s successful recent search renders the lawsuit moot.

I knew that was optimistic because the National Security Archive told a totally different story:

At a hearing today concerning the risks posed by the presidential transition to the recovery of millions of missing e-mails from the Executive Office of the President (EOP) in the National Security Archive’s lawsuit seeking restoration of those e-mails, the White House acknowledged that it has done little to recover e-mail files from computer workstations and nothing to collect external media storage devices that could hold e-mails.  These admissions came despite the issuance of a report and recommendation in April 2008 by a federal magistrate judge calling for the White House to locate and preserve data from the workstations and external media storage devices.  Earlier today the court issued an order requiring steps to be taken to secure files from individual computer workstations, memory sticks, zip drives, DVDs and CDs.

Now, Magistrate Judge Facciola, working in tandem with Judge Kennedy on this case, issued a new order after the hearing yesterday calling for a more thorough inventory. Here’s NSA’s version of what has happened.

The federal magistrate judge overseeing the White House e-mail litigation today described the issue as reaching “true emergency conditions” with only “two business days before the new President takes office,” and that “the importance of preserving the e-mails cannot be exaggerated,” according to the court’s Memorandum Opinion issued this morning along with an Order and posted on the National Security Archive website, www.nsarchive.org. (see attached PDFs)

Magistrate Judge John Facciola formally ordered the White House to search all Executive Office of the President components’ workstations and portable media for possibly missing e-mail – enforcingyesterday’s order from U.S. District Judge Henry Kennedy(http://www.gwu.edu/~nsarchiv/news/20090114/order_20090114.pdf) – after government lawyers at a hearing yesterday represented that they would only search those EOP components that create federal agency records and leave out offices that create presidential records.

Today’s order also granted plaintiffs’ requests that a full inventory of all backup tapes and portable media containing White House e-mail be delivered to the Archivist of the United States and filed with the court, and that the full administrative record and all other evidence related to the White House e-mail be preserved under the custody of the Archivist.

“From the outset, the White House has fought tooth and nail against having to preserve sources of missing email as well as other evidence relating to this case,” said Sheila Shadmand of Jones Day, counsel for the Archive.  “For the umpteenth time, this Court has commanded that they do so.  We expect they will yet again object to the terms of these Orders, when instead they should be busy complying with it.  The clock is running out.”

The hearing yesterday before Magistrate Judge Facciola included representations from Justice Department attorney Helen Hong that the White House had spent $10 million on an e-mail restoration project that had located some 14 million e-mail that had not been counted in a 2005 analysis by White House staff. 

However, White House Chief Information Officer Theresa Payton told the staff of the House Oversight and Government Reform Committee on February 22 last year that her efforts had uncovered some 23 million e-mail that had not been found in the 2005 analysis.  The government has provided no explanation for this discrepancy, or for the contradiction between White House statements that “I wouldn’t rule out that there were a potential 5 million emails lost” (Dana Perino, April 13, 2007) and “no reason to believe that any e-mails are missing” (Tony Fratto, January 18, 2008). 

“From the beginning, the White House has changed it’s story from ‘emails are missing’ to ‘23 million emails were found’ and back to ‘no emails are missing.’ The truth is, neither we nor the public knows what was going on, nor can we verify the White House’s efforts because they continue to conduct themselves under a veil of secrecy,” noted Archive General Counsel Meredith Fuchs.  

White House components that are governed by the Federal Records Act include the Office of the Trade Representative, the Office of Management and Budget, the Office of Science and Technology Policy, the Council on Environmental Quality, and the Office of National Drug Control Policy.  White House components governed by the Presidential Records Act include the National Security Council, the Council of Economic Advisers, and the President’s Foreign Intelligence Advisory Board.

 The National Security Archive, thankfully, can calculate 23 million minus 14 million. Apparently the WaPo cannot.

Earlier, Marcy and Spencer wrote about the somewhat startling admission today by Susan Crawford that the United States tortured Mohammed al-Qahtani. From Woodward and the Washington Post:

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that’s why I did not refer the case" for prosecution.

The entire article is worth a read just so that the bare facts of what the United States does in your name can set in. But the real thing that strikes me about Crawford’s admission is the unequivocal starkness of it. "We tortured". "Met the legal definition of torture".

Well okay then. What more could we ask for? Maybe that the statement was made by a Bush Administration official, in a position of authority, someone that actually speaks for and might could bind the government to the admission. Well, as convening authority for the military commissions, Susan Crawford darn well ought to suffice for that.

Sounds like what we have here is what the legal profession, and specifically the criminal justice portion thereof, calls an "admission against interest".

An admission against interest is an exception to the hearsay rule which allows a person to testify to a stament of another that reveals something incriminating, embarassing, or otherwise damaging to the maker of the statement. It is allowed into evidence on the theory that the lack of incentive to make a damaging statement is an indication of the statement’s reliability.

In criminal law, it is a statement by the defendant which acknowledges the existence or truth of some fact necessary to be proven to establish the guilt of the defendant or which tends to show guilt of the defendant or is evidence of some material fact, but not amounting to a confession.

Tonight, on MSNBC’s Countdown, former Navy JAG attorney Charles Swift laid out the background and implications of what our country has done and become (Attached are both the portion with Charlie Swift as well as a followup portion). What we have done is not good. It is not right. And it is not justified. It is a war crime under 18 USC § 2441.

For her next trick, perhaps Susan Crawford can tell us when the war crime prosecutions will be starting.

The Sun-Times reports yet more wiretaps used in the Blagojevich investigation. From the complaint, we knew of:

• Two bugs in Friends of Blagojevich office
• Wiretap on Blagojevich home land line

From the motion to release the wiretaps related to the horse racing scheme, we learned of:

• Wiretap on Lon Monk’s cell phone

And this article reports:

• Camera focused on entrance to Friends of Blagojevich office
• Wiretaps on cell phones of three close Blago advisors (this may or may not include the one on Monk)

Recall that when Fitz asked for a 90 day extension, he mentioned the thousands of tapes they had to go through. It sure sounds like thousands to me.

This time, with a judge telling them to go look again for those missing White House emails.

The United States District Court for the District of Columbia today granted the National Security Archive’s emergency motion for an extended preservation order to protect missing White House e-mails.  With the transition from the Bush Administration to the Obama Administration taking place in six days, and all the records of the Bush White House scheduled for a physical transfer to the National Archives and Records Administration (NARA) on that same day, the Court has directed the Executive Office of the President (EOP) to search all its computer work stations and has ordered EOP employees to surrender any media in their possession that may contain e-mails from March 2003 to October 2005.

“There is nothing like a deadline to clarify the issues,” said Archive Director Tom Blanton.  “In six days the Bush Executive Office of the President will be gone and without this order, their records may disappear with them.  The White House will complain about the last minute challenge, but this is a records crisis of the White House’s own making.”

Counsel for the Archive, Sheila Shadmand from Jones Day made clear: “The White House has been on notice since we filed our lawsuit a year and a half ago that they would have to retrieve and preserve their e-mail.  Instead of coming clean and telling the public what they have been doing to solve the crisis, they refused to say anything.  At this point, it is critical to preserve evidence that can help get to the bottom of the problem and prevent it from happening again.”

Magistrate Judge John M. Facciola has scheduled an emergency status conference today at 2 p.m. to consider additional measures that may be necessary to protect the records during the transition. (Courtroom 6 of the E. Barrett Prettyman Federal Courthouse)

I can just see them now, the same folks who have been talking about their sacred duty to bury things for 12 years deliver all their documents to the National Archives, trying to explain how it was that they accidentally destroyed Scooter Libby’s hard drive and Karl Rove’s Blackberry.

I noted the other day that–after years of trying to limit the Bush Administration’s responsibilities under the Presidential Records Act–the Bush Administration had found religion and was insisting that it had to box up all the documents proving they acted improperly when they fired nine US Attorneys. Basically, the first thing they did after the new year was to send Judge Bates a status report describing their solemn duty to throw everything in boxes, hopefully to make it unavailable for five years (to be fair, DOJ–and not Dick Cheney–sent the status report, so this is only partly hypocritical).

Although the PRA generally restricts access to presidential records for a period of five years (or until the Archivist completes processing and organizing the records), and further restricts disclosure of certain categories of information for a period of up to 12 years when presidential records are requested under the Freedom of Information Act, see 44 U.S.C. § 2204, the PRA contains special-access provisions that are relevant here. First, “[n]otwithstanding any restrictions on access imposed pursuant to section 2204, . . . subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available . . . pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding[.]” 44 U.S.C. § 2205(2)(A). Second, the same exceptions to restricted access apply to requests for access to presidential records of a former President by “an incumbent President if such records contain information that is needed for the conduct of current business of his office and that is not otherwise available.” Id. § 2205(2)(B).[my emphasis]

As I noted earlier this week, HJC believed–and Bates concurred–that putting these documents in boxes and requiring legalese to open them again might cause a bit of delay (not that that was the idea, I’m sure).

Sure enough, Bates was carried through on his concerns, and got both sides to stipulate that these documents will remain at the White House until the suit is done (and/or HJC gets their grubby paws on it). 

Defendants will create a copy set of all materials responsive to the subpoenas, including both paper and electronic documents, in hard copy format to be stored, segregated, and maintained at the White House for use in this litigation until this litigation is finally resolved.

[snip]

The White House shall make provisions to ensure the Archivist maintains the original set of materials responsive to the subpoenas intact at a facility in Washington, D.C. until this litigation is finally resolved, under appropriate security and in a manner that will enable ready access to the materials, if necessary.

That’s all well and good and I’m grateful that Bates–who spent a number of years shielding BushCo–remains on the side of transparency and oversight here.

But it’s got me thinking. What else is BushCo busily boxing up, preparing to bury it for five or twelve years, unless we find a way to identify it and withhold it?

Is here. Or rather, the Inspector General’s report describing his criminal referral for lying to Congress.

We have referred this matter to the U.S. Attorney’s Office for the District of Columbia for a decision on whether the evidence warrants a criminal prosecution. We provided to the prosecutor the evidence we gathered in the course of our investigation, including transcripts of interviews and relevant documents and e-mails.

[snip]

Schlozman is no longer employed by the Department and, therefore, is not subject to disciplinary action by the Department. We recommend, however, that, if criminal prosecution is declined these findings be considered if Schlozman seeks federal employment in the future. We believe that his violations of the merit system principles set forth in the Civil Service Reform Act, federal regulations, and Department policy, and his subsequent false statements to Congress render him unsuitable for federal service.

Of course, the report is dated July 2, 2008. So what has happened?

Here’s the answer to that question:

We referred the findings from our investigation to the U.S. Attorney’s Office for the District of Columbia in March 2008. We completed this written report of investigation in July 2008.

The U.S. Attorney’s Office informed us on January 9, 2009, of its decision to decline prosecution of Schlozman. The Interim U.S. Attorney, Jeffrey Taylor, was recused from the matter and the decision.

So, after taking ten months to decide whether or not to prosecute (ten months which happened to include an election in which one of those named in the report–Hans Von Spakovsky–served on FEC), they now release the report. Nice.

Consider this a working thread. I need to run out for a few hours, and I assume that WO and others will get a good start on this before then.