Made available in response to an American Civil Liberties Union (ACLU) Freedom of Information Act (FOIA) lawsuit, the list contains the names of 645 prisoners who were detained at Bagram as of September 2009.

But the government blacked out other vital information requested by the civil rights group – including prisoners’ citizenship, length of detention, country where captured, and circumstances of capture.

The government’s previous position was that the public had no right to have this information.

Melissa Goodman, staff attorney with the ACLU National Security Project, said, “Releasing the names of those held at Bagram is an important step toward transparency and accountability at the secretive Bagram prison, but it is just a first step.”

“Hundreds of people have languished at Bagram for years in horrid and abusive conditions, without even being told why they’re detained or given a fair chance to argue for release,” she said.

But she added, “The information the government continues to withhold is just as vital as the names of prisoners. Full transparency and accountability” about Bagram requires full disclosure.

“The public has long been kept in the dark about what goes on at Bagram. It is time to shine a bright light on the secretive prison,” Goodnam said.

It was not clear whether the list of names also included those held in field detention sites around the country, where some detainees are taken initially before being placed in the general detainee population.

The ACLU filed a Freedom of Information Act (FOIA) request for records relating to the detention and treatment of prisoners held at the Bagram Airfield in Afghanistan in April 2009.

When documents were not forthcoming, the ACLU filed the FOIA lawsuit in September 2009, seeking the disclosure of documents related to the detention and treatment of prisoners at Bagram, records relating to the rules and agreements that govern the facility, and documents pertaining to the conditions of confinement and status review process afforded prisoners.

The U.S. government’s Bagram detention facility has been the focus of widespread media attention and public concern for many years, but very little information has been publicly available about the secrecy-shrouded facility or the prisoners held there.

The U.S. government has been detaining a previously-unknown number of prisoners at the facility since 2002. Some have been held for as long as six years without access to counsel or a meaningful opportunity to challenge their imprisonment.

The conditions of confinement at Bagram are reportedly primitive, with allegations of mistreatment and abuse continuing to surface; in fact, in 2002, two Afghan prisoners at Bagram were fatally beaten by U.S. troops.

The U.S. military has recently built a modern new prison to take the place of the dilapidated and inefficient original unit. The U.S. is in the process of handing management of this new facility over to the Afghan authorities.

Nonetheless, there is growing public concern in the U.S. and around the world that Bagram has become, in effect, the new Guantanamo.

Former detainees have described abusive treatment at the base, especially in the first two or three years it was in existence. But in the last several years, detainees who have been released described improved conditions.

While the majority of the detainees at Bagram are Afghan, a small number are foreigners who are accused of fighting with the Taliban. Also held there are a handful of detainees captured in other countries, according to human rights lawyers and military detention officials.

The current detainee population is about 750, according to military detention officials, but in September, when the information request was made, there were about 100 fewer detainees. The numbers have grown over the past few months because of the increased military operations by U.S. forces.

An investigation by the British Broadcasting Corporation (BBC) has revealed that former detainees at Bagram were beaten, deprived of sleep, and threatened with dogs.

Jonathan Hafetz, an attorney with the American Civil Liberties Union’s National Security Project, told us, “The BBC investigation provides further confirmation of the United States’ mistreatment of prisoners at Bagram. These abuses are the direct consequence of decisions made at the highest levels of the U.S. government to avoid the Geneva Convention and forsake the rule of law.”

The Barack Obama administration has sought to deflect some of the heat it is getting from civil rights organisations and legal experts over its management of Bagram. For example, it recently announced a set of new procedures for conducting periodic assessments of the status of each prisoner.

But, according to Tina Monshipour Foster, executive director of the International Justice Network, the only U.S. organisation actively litigating on behalf of Bagram detainees, “The ‘new’ procedures adopted by the Obama administration are not new at all, they appear to be exactly the same as the procedures created by the [George W.] Bush administration in response to prior court challenges by Guantanamo detainees.”

“The idea of assigning a non-lawyer ‘personal representative’ who does not legally represent the detainee, but works for the military, is a step in the wrong direction,” Foster said.

She told us, “Only a lawyer who is independent from the government can effectively assist a detainee with his defense against allegations being made by the government.”

The Pentagon denied the BBC’s charges of harsh treatment and insisted that all inmates in the facility are treated humanely.

Another prominent human rights organisation, the British-based Reprieve, called on the British government to take action concerning two Pakistanis who it says Britain helped render there from Iraq.

“These men were never in Afghanistan until the UK and the U.S. took them there,” Stafford Smith told us. “It is the height of hypocrisy to take someone to Bagram and then claim that it is too dangerous to let them see a lawyer. Even Guant·namo Bay is better than this.”

Since coming to office a year ago, President Obama has banned the use of torture and ordered a review of policy on detainees, which is expected to report next month. But unlike its detainees at the U.S. naval facility at Guantanamo Bay in Cuba, the prisoners at Bagram have no access to lawyers and they cannot challenge their detention.

In April 2009, in a lawsuit brought in federal court by the International Justice Network, Judge John D. Bates ruled that three Bagram prisoners – two Yemenis and one Tunisian citizen – had the right to petition U.S. courts for their release because they were not Afghans captured on the Afghan battlefield.

But he also ruled that for a fourth appellant, a citizen of Afghanistan, rather than a Yemeni or Tunisian citizen held at Bagram, granting him legal rights might upset the relationship between the U.S. and Afghanistan.

Judge Bates dismissed the petition of Haji Wazir, an Afghan civilian held at Bagram without charge for more than six years. The judge ruled that because the petitioner was a citizen of Afghanistan, he had no right to petition the U.S. courts for his release.

Afghan government sources have said prisoners will have a right to appeal their detentions once the U.S. transfers its authority.

Photo/Wikimedia

While the unsuccessful attempt to bring down a Detroit-bound airliner on Christmas day captured the headlines and put major political roadblocks in the path of prisoner release from Guantanamo Bay, the courts – far more quietly — continued to play a major role in influencing the detention issue.

That influence was demonstrated by two cases last week.

In Washington, D.C., a three-judge panel of the U.S. Court of Appeals minced its way toward fashioning new rules to govern habeas corpus decisions brought by three prisoners at the Bagram airbase in Afghanistan.

And a decision by three different judges of the same court affirmed the government’s authority to hold people taken prisoner in the fight against al-Qaida and the Taliban – thus making it more difficult for detainees to challenge the basis of their detention.

Last Thursday, the DC Circuit court heard oral arguments in a case known as Maqaleh v. Gates — the first legal challenge in U.S. courts on behalf of prisoners detained at Bagram Airbase in Afghanistan. The case was brought by the International Justice Network (IJNetwork) on behalf of two Yemenis and one Tunisian citizen, each seized outside of Afghanistan from third countries and held without charge or trial in U.S. custody for more than six years.

Evidence suggests that each man was shuttled through U.S.-run secret prisons (“black sites”) for torture and interrogation, prior to ultimately being transferred to Bagram—itself the site of well-documented human rights violations—where they continue to be subjected to indefinite detention under sole U.S. military custody.

During the entire six-year period while he has been in U.S. custody, Maqaleh has not been permitted to see his family, and has been denied any access to lawyers or a court of law. Because he is being held virtually incommunicado, his father authorized IJNetwork to file a petition for a writ of habeas corpus in U.S. court seeking his release. Though his case has now been pending for over three years, the government continues to refuse to allow Maqaleh to communicate with his attorneys.

In April 2009, Judge John D. Bates ruled that Maqaleh, and two other petitioners in the case, Amin al Bakri and Redha al Najar, have a Constitutional right to petition U.S. courts for a writ of habeas corpus.

Judge Bates’s decision was based on the Supreme Court’s decision in Boumediene v. Bush, which established that detainees held in U.S. custody at Guantanamo had a Constitutional right to file habeas corpus petitions in U.S. courts. But before any of the Bagram detainees could have his day in court, the Obama Administration appealed Judge Bates’ decision—arguing that none of the 600 detainees at Bagram have any rights under U.S. law.

As the organization representing the Bagram detainees, the IJNetwork, has called on the Obama Administration to end the practices of rendition, torture, and indefinite detention, and provide fundamental human rights to all individuals held in U.S. custody — including Bagram.

Though President Obama has vowed to close Guantanamo, the Department of Justice continues to defend the Bush Administration’s position that individuals held at other U.S.-run military facilities have no legal rights. As the organization representing the Bagram detainees, IJNetwork has called on the Obama Administration to end the practices of rendition, torture, and indefinite detention, and provide fundamental human rights to all individuals held in U.S. custody— including Bagram.

Deputy Solicitor General Neal Katyal, arguing for the government, said the circumstances surrounding detention of prisoners at Bagram are unique and do not match the circumstances at the Guantanamo Bay base in Cuba. Katyal noted that Bagram is in the middle of a war zone.

But Tina Foster, executive director of the International Justice Network (IJN), who argued for the Bagram detainees, told us, “Our clients are three innocent men who have been imprisoned without charge for seven years and haven’t even been told why. The fundamental question at issue in these cases is whether the United States government can seize individuals from peaceful countries anywhere in the world and imprison them without charge indefinitely, based solely on the location of the prison facility where the government decides to detain them.”

She added, “The position of the Obama administration is that it can do so, as long as it uses Bagram, instead of Guantanamo, as its legal black hole.  This is an extreme position — and one that allows the President to do exactly what the Supreme Court said was unconstitutional in the Guantanamo cases.  We are very disappointed that this administration has failed to live up to its promise of living up to this country’s great legal tradition and fidelity to the rule of law, but we are hopeful that the Court of Appeals will remedy this injustice.”

She said the Justice Department’s position is one where “Bumediene was never decided.” She said the government cannot be allowed to manipulate habeas through the selective movement of prisoners.

In the second case, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld a lower court’s decision in 2008 affirming the continued detention of a former cook for Taliban forces.  He is Ghaleb Nassar Al Bihani, a citizen of Yemen who was captured in Afghanistan. Held at the U.S. naval base in Cuba since 2002, al Bihani carried an assault rifle for the 55th Arab Brigade, a paramilitary group allied with the Taliban in Afghanistan, but claims he never fired a shot in battle.

The court unanimously rejected Al Bihani’s appeal. But two judges appointed by President George W. Bush went even further. Bush appointees Janice Rogers Brown and Brett Kavanaugh said detainees are not entitled to the same rights given criminal defendants who challenge their convictions.

In 2008, the Supreme Court said the Guantanamo detainees have a constitutional right to go into federal court to challenge their imprisonment. But the court did not spell out the extent of that right.

As a result, federal judges have reached often contradictory conclusions about the detainees’ legal rights and whether the government has the power to continue holding them.

This decision can be appealed either to the full appeals court or to the Supreme Court. If it is not challenged successfully, it could apply to every other detainee case filed in Washington and provide the government with a compelling basis to challenge any court order to release a detainee.

Legal authorities said the decision will make it more difficult for some detainees to win release through federal lawsuits challenging their confinements because it so robustly supports the government’s authority, legal experts said.

The two Bush appointees rejected attempts by human rights groups and detainees’ lawyers to have the courts apply principles from “the laws of war” to detention decisions.

This group of international laws, treaties and long-standing legal practices would probably curtail the government’s ability to detain people such as Bihani indefinitely, his defenders believe.

A large majority of the prisoners still held at Guantanamo Bay is from Yemen. In the aftermath of the political backlash triggered by the disclosure that the would-be bomber of the Detroit-bound airliner was given his explosive device by Al Qaeda in Yemen, the Obama administration decided to suspend release of any Yemeni detainees, many of whom have been cleared for release.

The Obama administration announced Sunday it will subject the citizens of 14 nations who are flying to the United States to intensified screening at airports, including being subjected to full-body pat downs or body scanners.

Under the new rules, all citizens of Afghanistan, Algeria, Lebanon, Libya, Iraq, Nigeria, Pakistan, Saudi Arabia, Somalia and Yemen must receive a pat down and an extra check of their carry-on bags before boarding a plane bound for the United States, officials said. Citizens of Cuba, Iran, Sudan and Syria — nations considered “state sponsors of terrorism” — face the same requirement.

In a statement, the Transportation Security Administration (TSA), part of the giant Department of Homeland Security (DHS), said a majority of all other U.S.-bound international travelers — not just from the 14 countries — will also face random and threat-based enhanced screening.

But the agency denied that the new regulations amount to profiling. “TSA does not profile. As is always the case, TSA security measures are based on threat, not ethnic or religious background,” spokeswoman Kristin Lee said.

“We are only as strong as our weakest point,” said Cindy Farkus, the head of global security programs at the Transportation Security Administration. “We are always trying to stay ahead of where the emerging threats might be.”

But the Muslim Public Affairs Council (MPAC) told us that the new TSA guidelines were “a political solution to a security problem.” MPAC’s Communications Director, Edina Lekovic, urged the adoption of behavior-based screening rather than profiling, and called the TSA guidelines “a lazy solution that may make us feel good, but in fact merely creates blind spots that make us less safe.”

“These ‘blind spots’ can be identified and exploited by violent extremists. Furthermore, the new policy deeply undermines the Obama administration’s stated commitment to civil rights, equality before the law, and a much-needed effort to rebuild U.S.-Muslim world relations,” she added.

Lekovic also disclosed reports she has received from members of her constituency that TSA screeners at Washington DC’s Dulles airport have been instructed to carry out additional inspections of women wearing headscarves. These reports could not be immediately confirmed with the TSA.

According to the American Civil Liberties Union (ACLU), the government should “adhere to longstanding standards of individualized suspicion and enact security measures that are the least threatening to civil liberties and are proven to be effective. Racial profiling and untargeted body scanning do not meet those criteria.”

“We should be focusing on evidence-based, targeted and narrowly tailored investigations based on individualized suspicion, which would be both more consistent with our values and more effective than diverting resources to a system of mass suspicion,” said Michael German, national security policy counsel with the ACLU Washington Legislative Office and a former FBI agent.

“Overbroad policies such as racial profiling and invasive body scanning for all travelers not only violate our rights and values, they also waste valuable resources and divert attention from real threats.”

The organization said the government’s plan to subject citizens of certain countries to enhanced screenings is bad policy, because there is no way to predict the national origin of a terrorist and many terrorists have come from countries not on the list. It cited the case of the “shoe bomber,” Richard Reid, who was a British citizen, as were four of the London subway bombers.

“Singling out travelers from a few specified countries for enhanced screening is essentially a pretext for racial profiling, which is ineffective, unconstitutional and violates American values. Empirical studies of terrorists show there is no terrorist profile, and using a profile that doesn’t reflect this reality will only divert resources by having government agents target innocent people,” said German. “Profiling can also be counterproductive by undermining community support for government counterterrorism efforts and creating an injustice that terrorists can exploit to justify further acts of terrorism.”

Nihad Awad, national executive director for the Council on Islamic-American Relations (CAIR), said in a statement, “Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks — that’s profiling.”

He added, “Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks -– that’s profiling. While singling out travelers based on religion and national origin may make some people feel safer, it only serves to alienate and stigmatize Muslims and does nothing to improve airline security.”

“We all support effective security measures that will protect the travelling public from an attack such as that attempted on Christmas Day,” Awad said. “But knee-jerk policies will not address this serious challenge to public safety.”

MPAC’s government liaison, Alejandro Beutel, said, “The new TSA guidelines deliver a propaganda victory to Al-Qaeda and other violent extremist groups, since they rob targeted groups of people from their civil liberties based on their ethnicity and country of origin,” said “Call it whatever you want, but this is religious and ethnic profiling at its worst.”

A number of legal experts were also critical of the new measures.

Georgetown University law professor David Cole said, “The danger with nationality-based profiling is that it sweeps up vast numbers of innocent people, may alienate those we need to have on our side if we are to reduce al-Qaeda recruitment, and takes our eyes off folks, like Richard Reid and Zacarias Moussaoui, who are citizens of other countries that don’t fit the profile.”

Richard Reid, a self-admitted member of Al Qaeda, was convicted by a U.S. federal court of attempting to destroy a commercial aircraft in-flight by detonating explosives hidden in his shoes in 2001. Moussaoui, a French citizen, was convicted of conspiring to kill citizens of the US as part of the September 11, 2001, terrorist attacks.

In response to numerous calls for profiling from elected politicians, former Secretary of Homeland Security Michael Chertoff told National Public Radio, “I’m going to argue that this case illustrates the danger and the foolishness of profiling…I think it’s not only problematic from a civil rights’ standpoint, but frankly, I think it winds up not being terribly effective.”

He cited a Justice Department 2003 advisory report that concluded, “Racial profiling in law enforcement is not merely wrong, but also ineffective. Race-based assumptions in law enforcement perpetuate negative racial stereotypes that are harmful to our rich and diverse democracy, and materially impair our efforts to maintain a fair and just society.”

A number of transportation security authorities have recommended that the U.S. adopt the screening practices used by Israel’s airports and airlines. El Al airlines, one of the world’s safest carriers, has spent many years developing screening methods based on passengers’ behavior, rather than looks, dress, or country of origin.

The case is known as Holder v. Humanitarian Law Project, and is the first case to challenge a portion of the Patriot Act before the Supreme Court. The case, originally brought in 1998,  challenges the constitutionality of the law that makes it a crime to provide “material support” to groups the administration has designated as “terrorist.”

The plaintiffs, led by the Center for Constitutional Rights (CCR), charge that the law goes too far in making speech advocating lawful, nonviolent activity a crime.  The lower courts have unanimously declared several provisions of the law – including one added by the Patriot Act – unconstitutionally vague because they encompass speech and force citizens to guess as to their meaning.

The case challenges those aspects of the “material support” statute that criminalize pure speech – specifically the prohibitions on providing “training,” “personnel,” “expert advice or assistance,” and “service.”  Under the law, any speech that falls within these terms – no matter how peaceable and nonviolent – is a crime if communicated to, for, or with the collaboration of any organization placed on a list of “foreign terrorist organizations” maintained by the State Department.

Said CCR Cooperating Attorney David Cole, a law professor at the Georgetown University Law Center, “This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”

The lower courts held unconstitutionally vague the law’s prohibition on the provision of “services,” “expert advice or assistance,” and “training,” reasoning that these terms could easily encompass a wide range of lawful speech, such as providing training in international law.  The Obama administration sought Supreme Court review of that decision.

The Patriot Act added a prohibition on the provision of “expert advice or assistance” to the statute.  After earlier court decisions declared that and other parts of the statute unconstitutional, Congress amended it in 2004 to try to correct the infirmities.  However, the district court and court of appeals concluded that the prohibitions on “services,” “expert advice and assistance,” and “training” remained unconstitutionally vague. The court of appeals decision the administration is seeking review of is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.

Meanwhile, committees of the U.S. Senate and House of Representatives continue to debate three provisions of the USA Patriot Act that are due to expire on December 31.

The expiring provisions are the roving wiretap authority, the so-called “section 215″ business records orders, and the nicknamed “lone wolf” provision.

The roving wiretap authority expands the authority of the Foreign Intelligence Surveillance Court (FISC) by allowing it to order “roving” or multi-point surveillance. Previously, the Foreign Intelligence Surveillance Act (FISA) required a separate FISC authorization to tap each device a target used.

Section 215’s reference to Business Records substantially revised the authority under FISA for seizure of business records, including third party records of individuals’ transactions and activities. Previously, the FBI could apply to the FISC for an order to seize business records of hotels, motels, car and truck rental agencies, and storage rental facilities. Section 215 broadened that authority by eliminating any limitation on the types of businesses or entities whose records may be seized. The recipient of the order may not disclose the fact that the FBI has sought or obtained records.

The nicknamed “Lone Wolf” authorization allows intelligence gathering of people not suspected of being part of a foreign government or known terrorist organization. This authority removed the requirement that an individual needed to be an agent of a foreign power to be placed under surveillance by intelligence officials and permitted surveillance of individuals with a much lower evidentiary threshold than allowed under criminal surveillance procedures. It was intended to allow the surveillance of individuals believed to be doing the bidding of foreign governments or terrorist organizations, even when the evidence of that connection was lacking.

The Justice Department maintains that the “lone wolf” authority is necessary, even though there is no evidence that it has been used. Its opponents believe that existing authorities are sufficient to achieve the goals of the lone wolf provision while more effectively protecting the rights of innocent Americans.

The Obama Administration has quietly endorsed the reauthorization of the provisions due to expire. The Senate Judiciary Committee has voted to make only minor changes to these measures, while the House of Representatives Judiciary Committee is seeking far more sweeping reforms.

The new legislation proposed by the House committee would permit the so-called “lone wolf” provision to sunset. It would also restrict the use of National Security Letters (NSLs). According to a Congressional Research Service report, NSLs “are roughly comparable to administrative subpoenas. Intelligence agencies issue them for intelligence gathering purposes to telephone companies, Internet service providers, consumer credit reporting agencies, banks, and other financial institutions, directing the recipients to turn over certain customer records and similar information.”

Under current law, intelligence agencies have few restrictions on the use of NSLs, and in numerous cases, have abused the authority. An FBI inspector general report in 2007 “found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies.” The reform provisions seek to create greater judicial scrutiny of NSL use.

A jittery Congress passed The Patriot Act by a landslide 45 days after the 9/11 terrorist attacks with virtually no debate. It provides law enforcement and intelligence agencies with sweeping additional powers to thwart terrorist activities. The law was reauthorized in 2005.

The legislation has been criticized by many from across the ideological spectrum as a threat to civil liberties, privacy and democratic traditions. Sections of the original act have been ruled unconstitutional, with certain provisions violating protected rights.

Among its most outspoken critics is Chip Pitts, president of the Bill of Rights Defense Committee. He told us, “In the eight years since passage of the original Patriot Act, it’s become clear that the escalating political competition to appear tough on terror — and avoid being accused of being “soft on terror” — brings perceived electoral benefits with few costs, with vital but fragile civil liberties being easily sacrificed.”

He added, “President Obama’s flip-flop on Patriot Act issues does as much damage as did his flip-flop on the FISA Amendments Act and telecom immunity last year. But it’s imperative that we fight, while we still can, to comprehensively reinsert requirements for fact-based, individualized suspicion, checks and balances, and meaningful judicial review prior to government intrusions.”

But corruption takes many forms and is found at many levels. To the lawyers of Human Rights First (HRF), understanding the relationship between corruption, how prisoners are treated and the rule of law is “critical to the success of any strategy” the Obama administration may decide to pursue.

Sahr MuhammedAlly, an HRF attorney and author of a new report, “Fixing Afghanistan,” explained this. She told us:

“Over the past eight years, the prisoner detention policies and practices of both the Afghans and the Americans and their NATO allies have been totally uncoordinated – a complete disaster,” she says.

There are lots of examples. A man is arrested and confined to a cell. Hours later, that same person is out on the street, having bribed his prison guard to gain his freedom. His next stop is his bomb-making safe house. And the step after that is a crowded marketplace in Kabul or Kandahar littered with dead bodies.

A person gets arrested and imprisoned, is denied a lawyer, is kept for months, even years, in prison conditions that can only be described as medieval, with no hope of ever seeing freedom again – because the guy was in the wrong place at the wrong time or because someone lost his paperwork or because someone with power was able to get money by selling this person into a legal no-man’s land.

Muhammed says “rule of law” training designed to prevent both kinds of situations has been going on for eight years, but has been “uncoordinated.” She says the US, NATO and the Afghan government are going have to recognize that “further detention policy reforms at Bagram are critical to achieving US counterinsurgency goals in Afghanistan.” And these reforms, she adds, are going to require substantial resources.

That is the central message of the new HRF policy paper. It outlines steps the United States should take now “to establish legitimacy in the eyes of the Afghan people and to more fully align US detentions with strategic priorities.”

“Successful counterinsurgency depends on US actions being seen as fair, humane, and beneficial to the security of the Afghan people, whose cooperation is needed to ensure a stable Afghanistan,” said Muhammed, who wrote the paper.

The paper says, “To achieve this goal, the US government should take further steps now to support US goals of bolstering Afghan sovereignty, increase the capacity of the Afghans to handle detentions on their own, and to establish legitimacy of US detentions in the eyes of the Afghan people by reducing the risks of arbitrary detentions, mistaken captures, and to ensure detainees a more meaningful way to challenge their detention.”

The report notes that in April 2009, HRF interviewed former prisoners held by the United States in Afghanistan who at the time of their release were found by the US military not to be a threat to US, Afghan or Coalition forces. The report says that some detainees interviewed had been detained for five years, others from four months to two years.

According to those we interviewed in April, “prisoners held by the US military in Afghanistan were not informed of the reasons for their detention or the specific allegations against them. They were not provided with any evidence that would support claims that they are members of the Taliban, al-Qaeda or supporters of other insurgent groups. They did not have lawyers.”

Detainees, it continues, “were not allowed to bring village elders or witnesses to speak on their behalf or allowed to offer evidence that the allegations could be based on individual animosities or tribal rivalries. These prisoners had no meaningful way to challenge their detention. Former prisoners and Afghan government officials told Human Rights First that captures based on unreliable information have led to the wrongful detention of many individuals, which in turn creates friction between the Afghan people and the Afghan government as well as the US military.”

The report continues: “In 2008 and in our follow-up visit to Afghanistan in 2009, we found that individuals transferred from US to Afghan custody for prosecution in the Afghan National Defense Facility are tried in proceedings that fail to meet Afghan and international fair trial standards. Prosecutions were based on allegations and evidence provided by the United States, supplemented by investigations conducted by the Afghan intelligence agency, the National Directorate of Security (NDS), years after the initial capture. Although lawyers defend detainees at the ANDF, during the trials there were no prosecution witnesses, no out-of-court sworn prosecution witness statements, and little or no physical evidence presented to support the charges.”

Specifically, HRF recommends that the US and Afghan governments enter into a public security agreement that sets forth the grounds and procedures for US detentions consistent with international law. In order to avoid mistaken captures, the organization says, the US must improve intelligence that results in detention. It must reduce the risk of arbitrary detentions by providing detainees sufficient ability to challenge their detention.

The US must also work to increase the capacity of the Afghan authorities to handle detentions on their own by involving Afghan judges in a joint US-Afghan review body. The US should establish more transparency for detention operations by facilitating access to detainees and to US detention facilities by Afghan and international human rights organizations. And the US should strengthen the fairness of Afghan criminal prosecutions of those captured by the United States by providing resources and training to soldiers to assist them in information and evidence collection at point of capture.

Back in September, the Pentagon announced new detainee review board (DRB) procedures for the 600 detainees being held by the US military at Bagram.

The new guidelines would assign a United States non-lawyer military official to each detainee. They would be tasked to gather exculpatory witnesses and evidence to present before review boards to be appointed by the US military.

Currently, these detainees – some of whom have been imprisoned for more than six years – do not have access to lawyers and have no right to hear the allegations against them. Their status as “enemy combatants” is theoretically reviewed periodically by military panels, but critics say these reviews are incomplete, prejudiced and ineffective.

Also announced were reforms outlined in Gen. Stanley McChrystal’s August 30 assessment on Afghanistan for both US and Afghan prisons, focusing on rehabilitation and skills training of prisoners in order to prevent their radicalization, as well as on evidentiary concerns that hinder successful and fair prosecution of suspected insurgents transferred by international military forces to Afghan courts.

General McChrystal noted that “detention operations, while critical to counterinsurgency operations, also have the potential to become a strategic liability for the US and ISAF” and concluded that the “desired endstate” is to transfer all detention operations, including US, to the Afghan government provided it has the capacity to run these systems in accordance with international and national law.

“We are mindful of the significant challenges that lie ahead to accomplish the detention goals outlined by the Pentagon and we are gratified to see improved detainee review procedures replace ones that were unfair and detrimental to US counterinsurgency goals. To win back support for its mission and cooperation of the Afghan people, the United States however, must enact further reforms to US detention practices,” said Muhammed.

She said, “Given the lessons learned from Guantanamo, it is important that detention review procedures in Bagram must provide detainees a legal representative to ensure a meaningful mechanism for detainees to challenge their detention which the new procedures don’t provide.

“It is equally important to improve the reliability of information leading to capture of an individual in order to mitigate the risks of erroneous detentions, which the new procedures do not address,” she added.

Muhammed called for independent, public monitoring of implementation of the new procedures in order to assess their effectiveness.

HRF’s recommendations come as the newly created Joint Task Force 435 in Afghanistan undertakes its mission to oversee new detainee review procedures in Bagram and assess how to effectuate the “endstate” of transferring detention operations to the Afghan government. It also comes as the Obama administration nears the end of its own policy review and prepares to announce its strategy for Afghanistan operations.

In September, human rights activists and legal experts reacted swiftly to disclosures that the US government is planning to introduce new measures it claimed would give inmates at Afghanistan’s notorious Bagram prison more opportunities to challenge their detention.

Their views ranged from cautious optimism to total condemnation.

Tina Monshipour Foster, executive director of the International Justice Network (IJN), a legal advocacy group that represents four Bagram detainees in a pending federal court case, called the proposed changes “a step in the wrong direction.”

She told us, “No set of procedures will have legitimacy until there is transparency and accountability for any violations of the military’s own rules. Preventing the accused from having contact with his lawyer is antithetical to any legitimate system of justice.”

She said the first step should be to allow the detainees access to actual lawyers. Anything less, she added, “only invites rule-breaking and casts doubt over the legitimacy of any proceedings that may be going on behind closed doors.”

“The ‘new’ procedures adopted by the Obama administration are not new at all; they appear to be exactly the same as the procedures created by the Bush administration in response to prior court challenges by Guantanamo detainees,” she said.

David Frakt, a law professor at Western State University and former Guantanamo defense counsel, was skeptical that the administration’s new rules would work.

He told us, “The administration’s proposal to provide greater rights to detainees at Bagram reminds me of the Bush administration’s woefully inadequate Combatant Status Review Tribunal (CSRT) process for detainees at Guantanamo, which has been suspended by the Obama administration after serious criticism by the Supreme Court.”

He said, “The most obvious flaw with the proposed process is the failure to provide counsel to the detainees. Instead, the administration proposes to assign officers with no special expertise to serve as the detainees’ representative. This model was a complete failure for the CSRTs and should not be repeated.”

He added, “It is simply unrealistic to expect non-lawyers to zealously advocate on behalf of the detainees, or to be effective in gathering witnesses and evidence to challenge the lawfulness of the detention.”

In April, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request asking the Obama administration to make public records pertaining to the detention and treatment of prisoners held at Bagram. The government has not yet turned over the records.

Melissa Goodman, a staff attorney with the ACLU National Security Project, said that while she found the proposed new guidelines “encouraging,” she remains concerned about the level of secrecy that surrounds Bagram.

“The public remains uninformed of basic facts such as who is imprisoned there, how long they have been held, where they were captured, and on what grounds they are being subjected to indefinite detention,” she noted.

“The government should make public documents that could shed light on this crucial information about the detention and treatment of prisoners at Bagram,” she said.

Chip Pitts, a lecturer at the Stanford University law school and president of the Bill of Rights Defense Committee, also expressed skepticism.

He told us, “Whatever the new rules say, it’s crucial that they distinguish between classical and legitimate conflicts where the rules of war apply, and the continuing attempt to encompass all counterterrorism within the illegitimate, overbroad, so-called ‘war on terror’ framework that wrongly disregards fundamental rights of civilians who are not active on actual battlefields.”

While it is unclear how soon the Pentagon’s new guidelines will be implemented – largely because of lack of personnel – they appear to have been announced with some sense of urgency. The probable reason is that the Obama administration is preparing to appeal a federal judge’s ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.

In that decision, a federal district judge, John D. Bates, ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantanamo Bay, because they were captured outside Afghanistan and taken to Bagram, where they have been held for more than six years without trials.

The two Yemenis and a Tunisian want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.

Chip Pitts supports their position. He told us, “Judge Bates’ decision laudably made that distinction, and, rather than fight it, the Obama administration should take the opportunity to restore sensible and moral rules in keeping with nearly a millennium of legal evolution.”

“These would recognize that civilians have a right to habeas corpus, that combatants on true battlefield situations have a right to article V hearings under the Geneva Conventions, and that places like Bagram shouldn’t be manipulated to simply form new Guantanamos or law-free zones,” Pitts said.

There are some 600-plus prisoners being held at Bagram. Critics charge that President Barack Obama has been turning Bagram into “a new Guantanamo,” since terror suspects are no longer being sent to the prison in Cuba because of plans to close it in January.

Amir Meshal

On the heels of a federal appeals court ruling that only Congress and the executive branch of government – not the courts — can interfere with government-sponsored “extraordinary rendition,” a U.S. citizen from New Jersey is asking another court to tell the government it wasn’t OK to secretly imprison and abuse him in three different African countries over a period of four months.

The citizen is Amir Meshal, 24, the son of Muslim immigrants from Egypt.

According to the American Civil Liberties Union (ACLU), which filed the lawsuit in Meshal’s behalf, after fleeing hostilities in Somalia in 2006, Meshal was arrested, secretly imprisoned in inhumane conditions and subjected to harsh interrogations by U.S. officials over 30 times in three different countries before ultimately being released four months later without charge,

“This case challenges the US government’s effort to evade accountability for illegal detention and interrogations in counter-terrorism operations by masking and hiding its involvement,” Jonathan Hafetz, a staff attorney with the ACLU National Security Project, told us.

According to the ACLU, Meshal was studying Islam in Mogadishu, Somalia, in December 2006, when hostilities broke out. With the airport disabled by bombing, Meshal fled to neighboring Kenya, where he wandered in the forest for three weeks seeking shelter and assistance before being arrested. Following his arrest, he was detained and repeatedly interrogated by U.S. officials who threatened to harm him, denied him access to counsel and accused him of receiving training from al-Qaeda, which Meshal denied.

Following his arrest and detention in Kenya, the suit says Meshal was illegally rendered to Somalia and then to Ethiopia where he was imprisoned in secret for over three months. There, U.S. officials subjected him to harsh interrogations while denying him due process and access to a lawyer, his family or anyone else in the outside world.

“The harsh treatment and mental anguish this individual suffered should never be experienced by anyone, let alone an American citizen at the hands of his own government,” said Hafetz. “This violation of basic constitutional rights must be remedied.”

Court filings say that during his detention, Meshal was kept in “filthy, crowded conditions in cells infested with cockroaches and given inadequate access to food, water and toilets. While in Kenya, the Americans who interrogated him repeatedly threatened him with torture. The interrogators warned Meshal that he could be sent to Somalia or Egypt, where the Egyptians ‘had ways of making him talk’, if he refused to answer questions or agree to the interrogators’ allegations. Meshal was also threatened with being sent to Israel, where, the interrogators said, the Israelis would “make him disappear.”

At least one consular affairs official from the U.S. Embassy in Nairobi met with Meshal and was aware of his detention, but later claimed he lost contact with Meshal following his rendition to Ethiopia. Meshal was finally released in May 2007 with no additional explanation.

“This is a U.S. citizen who was caught in hostilities abroad, and instead of

helping him return, U.S. officials abused him and mistreated him and never

charged him with a crime,” said Nusrat Choudhury, one of the lead lawyers from the ACLU representing Meshal. “Should they be allowed to do that without helping a U.S. citizen get home, and instead, denying him access to lawyers?”

The complaint was filed in the U.S. District Court for the District of Columbia against two agents of the Federal Bureau of Investigation (FBI) and two other unnamed U.S. government officials.

Last week, another Federal court ruled that the courts have no jurisdiction over matters relating to the practice known as “extraordinary rendition” – kidnapping a person in U.S. custody and sending him/her to a prison in another country.

In a 7-4 decision in the celebrated case known as Arar v. Ashcroft,  the appeals court for the second circuit in New York wrote, “If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.”

Some legal authorities believe Meshal may have a better chance of influencing the court because he is a U.S. citizen. The only other U.S. citizen whose lawsuit against a U.S. official has not been dismissed is Jose Padilla. Deemed an “enemy combatant” and currently serving a prison sentence for providing material support to terrorists, he is suing John Yoo, the former lawyer at the Justice Department who justified torture and Padilla says personally helped to devise his illegal treatment. A federal court in California refused to dismiss his case, in part because there was no other way for a U.S. citizen to hold U.S. officials accountable.

The ACLU also believes its case is stronger because the FBI agents named in the suit were not acting in a high-level supervisory role but were actually in the room, participated, and threatened him, while Meshal was being interrogated.

The Arar case involves a Canadian citizen, Maher Arar, who was detained by U.S. government officials at Kennedy International Airport in 2002 while enroute to his home in Canada following a vacation in Africa. He was held incommunicado for two weeks, then flown to Jordan and finally to Syria, where he was imprisoned in a coffin-size cell and tortured for ten months before being released by the Syrians without charges or explanation.

A two-year-long Canadian Government inquiry established that Canada had provided the US with incorrect information about Arar, and that he was guilty of nothing. He received an apology from the Canadian government and a cash award of $10 million.

The U.S., far from apologizing to Arar, has barely acknowledged that an error was committed. Condoleezza Rice, who was secretary of state at the time, has said only that the matter was not handled as well as it should have been.

The opinion by a majority of the New York appeal judges said, “For decades the United States and other countries have used ‘renditions’ to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice.”

It ruled that “Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.”

Four judges issued dissenting opinions. One of them, Judge Guido Calabresi, wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

Arar’s attorney, David Cole, indicated that the decision would be appealed to the Supreme Court.

He told us, “If the rule of law means anything, it must mean that courts can hear the claim of an innocent man subjected to torture that violates our most basic constitutional commitments.”

There is at least one other major case involving rendition pending before  U.S. appeals courts. In California, four men who claim they were “rendered” to secret prisons where they were tortured are suing a Boeing subsidiary company they say knowingly handled the logistics of their rendition flights for the Central Intelligence Agency (CIA).

And it appears that reapproval may be about to happen – evidently with a green light from the Obama Administration and over strong objections from human rights and civil liberties groups.

Last week, the Senate Judiciary Committee passed the USA Patriot Act Extension Act of 2009. The bill makes only minor changes to the original Patriot Act and was further watered down by amendments adopted during the Committee’s deliberations.

“The Senate Judiciary Committee had the opportunity to pass legislation to rein in a bill that has become a symbol of out-of-control government invasions of your privacy. They failed — approving a bill that does little to curtail the sweeping powers embedded in the Patriot Act,” said the American Civil Liberties Union.

The Committee’s actions were driven by “short-term and political considerations,” Chip Pitts, president of the Bill of Rights Defense Committee, told us. The Committee ignored “the need for a more sensible long-term, reasoned, rule-of-law approach,” he said.

Now, civil libertarians are looking to the House of Representatives, where the Judiciary Committee has already begun to consider the measure. Both chambers must produce versions of the legislation, after which differences will be reconciled by a bicameral conference committee.

The three sections of the law due to expire next month are:

The “National Security Letter (NSL)” provision. The FBI uses NSLs to compel Internet service providers, libraries, banks, and credit reporting companies to turn over sensitive information about their customers and patrons. Using this data, the government can compile vast dossiers about innocent people. Government reports confirm that upwards of 50,000 of these secret record demands go out each year. In response to an ACLU lawsuit (Doe v. Holder), the Second Circuit Court of Appeal struck down as unconstitutional the part of the NSL law that gives the FBI the power to prohibit NSL recipients from telling anyone that the government has secretly requested customer Internet records.

The “Material Support” Statute. This provision criminalizes providing “material support” to terrorists, defined as providing any tangible or intangible good, service or advice to a terrorist or designated group. As amended by the Patriot Act and other laws since September 11, this section criminalizes a wide array of activities, regardless of whether they actually or intentionally further terrorist goals or organizations. Federal courts have struck portions of the statute as unconstitutional and a number of cases have been dismissed or ended in mistrial.

The FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008. Last summer, Congress amended the law to permit the government to conduct warrantless and suspicion-less dragnet collection of U.S. residents’ international telephone calls and e-mails.

Now the civil liberties community is stepping up lobbying efforts to ensure that the legislation that emerges from the House Judiciary Committee contains more protections for privacy and other civil liberties.  Such legislation has been introduced in the House by three powerful Congressmen: John Conyers of Michigan, Jerrold Nadler of New York, and Robert Scott of Virginia.

Their proposed amendments Act would create more civil liberties protections for many of the Patriot Act powers, including restricting the gag order attached to receiving a subpoena known as a national security letter (NSL), terminating the never-used “lone wolf” surveillance power, and limiting the use of NSLs to collect information on suspected terrorists or spies instead of innocent Americans.

However, the proposed new legislation leaves intact the Patriot Act’s so-called “material support” provision, permitting prosecution of those who work with or for charities that give humanitarian aid in good faith to war-torn countries.

The actions of the Senate committee have left human rights advocates and many legal scholars perplexed because the Committee chairman, Senator Patrick Leahy, Democratic of Vermont, is considered one of the most liberal members of the Senate, and its members include such other high-profile progressives as Al Franken of Minnesota, Russ D. Feingold of Wisconsin, Chuck Schumer of New York, Dick J. Durbin of Illinois, and Sheldon Whitehouse of Rhode Island.

Asked to explain their votes, Chip Pitts of the Bill of Rights Defense Committee said “the secret and hypocritical lobbying by the Obama administration against reforms – while publicly stating receptiveness to them — was undoubtedly a huge if lamentable factor.”

He also cited the recent arrests of Najibullah Zazi and others, noting that  Leahy said that in light of these incidents, “this is no time to weaken or undermine the tools that law enforcement relies on to protect America.”

Zazi has been charged with conspiring to bomb targets in the U.S. He allegedly traveled last year to Pakistan, where the FBI charges that he attended terrorist training camps.

“In sum, short-term and political considerations driven by dramatic events once again dramatically affected the need for a more sensible long-term, reasoned, rule-of-law approach, ” Pitts told us, adding, “In the eight years since passage of the original Patriot Act, it’s become clear that the escalating political competition to appear tough on terror (and avoid being accused of being ‘soft on terror’) brings perceived electoral benefits with few costs, with vital but fragile civil liberties being easily sacrificed.

“Even nominal and sometimes actual civil liberties advocates have become more used to the ‘new normal’, seemingly forgetting the less visible but vital benefits of the liberties themselves – including for genuine and effective security, let alone for successful, prosperous, creative, dynamic open societies as opposed to closed societies like the former East Germany that used such approaches to their detriment.”

“The persistent myths and claims that the Patriot Act hasn’t been abused are simply ludicrous after the documentation by (civil liberties groups), regarding the torrent of abuse that has happened since 9/11,” Pitts told us.

Prior to the Judiciary Committee markups, the ACLU and other civil liberties groups had endorsed the JUSTICE Act, an alternative bill that would heavily reform not only the Patriot Act but other overly broad surveillance laws.

Amendments that were offered but failed by voice vote included an amendment by Senator Durbin to curb the abuse of the National Security Letter (NSL) statute and another offered by Senator Feingold to allow the “lone wolf” provision to expire (this never-used provision targets individuals who are not connected to terrorist groups). An amendment also failed that would make it more difficult for recipients to challenge the gag order that comes with receiving an NSL.

However, two amendments offered Senator Feingold were included in the final bill. In one, the Department of Justice would be ordered to discard any illegally obtained information received in response to an NSL. In the second, the government would have to notify suspects of “sneak and peek” searches within seven days instead of the 30 days currently required by the statute. “Sneak and peek” searches allow the government to search a home without notifying the resident immediately.

But according to the American Civil Liberties Union, “U.S. policy continues to fall short of ensuring full compliance with the treaty.”

For example, the organization said that an appendix to the Army Field Manual (AFM) can still facilitate cruel treatment of prisoners and detainees at home and abroad.

The Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment (CAT) is the most comprehensive international human rights treaty dealing exclusively with the issues of torture and abuse. It came into effect in 1987, and has been ratified by 146 countries.

The treaty was initially signed by the Ronald Reagan administration in 1988 and was ratified by the Senate on Oct. 21, 1994, but with reservations, understandings and declarations (RUDs) that failed to make the treaty fully applicable.

The administration of former President George W. Bush exploited these RUDs to justify abusive interrogation policies, including the use of waterboarding, stress positions, extreme isolation and sleep deprivation.

In 2006, the Committee Against Torture, which reviews country compliance with CAT, criticised the U.S. for failure to uphold the treaty and called for full compliance.

After taking office, President Barack Obama issued an executive order prohibiting torture. But under an appendix to the 2006 revised U.S. Army Field Manual – the most recent edition – practices considered incompatible with CAT and international law are still allowed. These include force-feeding, psychological torture, sleep and sensory deprivation.

And under Appendix M to the AFM, detainees can be “separated” or held in isolation from other detainees for 30 days, or longer with authorisation, and allowed only four hours of continuous sleep per night over 30 days, which can be prolonged upon approval.

Jamil Dakwar, director of the ACLU Human Rights Programmr, told us, “The president’s first nine months in office have signaled a policy shift on human rights and commitment to the rule of law. Certainly his speech to the U.N. and his Nobel Peace Prize have raised the bar of expectation as to his commitment to advancing human rights at home and abroad.”

But, he added, “There is still much more to do, including honouring and expanding U.S. human rights commitments and fully incorporating them into domestic policy. U.S. credibility abroad and commitment to human rights at home will be judged by deeds, not by words.”

“What is needed now is taking concrete actions to translate these commitments to a robust human rights policy. A new presidential executive order to reconstitute the Inter-Agency Working on Human Rights would be an important step forward,” Dakwar said.

“To fulfill its human rights requirements, the administration must also fully investigate crimes of torture committed in violation of U.S. and international law and withdraw the Army Field Manual’s Appendix M,” he added.

Since his inauguration, President Obama has helped restore U.S. standing on human rights by issuing executive orders to close the Guantánamo detention centre, prohibiting CIA prisons and enforcing the ban on torture, joining the U.N. Human Rights Council, signing the Convention on the Rights of Persons with Disabilities (CRPD), and prioritising the ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

While welcoming these steps, the ACLU is calling for additional concrete measures to reassert U.S. leadership on human rights, including the full investigation of torture crimes, abandoning the Guantánamo military commissions and renouncing the practice of holding detainees indefinitely without charge or trial.

The ACLU’s Dakwar told us he “expected the administration to announce concrete plans to implement and enforce ratified human rights treaties and the resurrection of the Interagency Working Group on Human Rights – disbanded during the Bush administration – to coordinate and promote human rights within domestic policy.”

He said, “There is hope and expectation within the human rights community that the president will make the announcement on resurrection of the Inter-Agency Working Group on Human Rights as soon as Dec. 10 – international human rights day and the day he will be receiving the Nobel Peace Prize.”

He noted that shortly after the U.S. elections, the ACLU and more than 50 U.S.-based human rights, civil rights, civil liberties and social justice organizations launched the Campaign for a New Domestic Human Rights Agenda, which identified concrete goals for pushing the administration and Congress to strengthen the U.S.’s commitment to human rights at home.

The campaign have four primary objectives. First is re-creation of the Interagency Working Group on Human Rights, first initiated in 1998 by President Clinton through an executive order, but effectively disbanded by the Bush administration in 2001. The call is for a new executive order to be issued with an improved and strengthened mandate.

Second is transformation of the U.S. Civil Rights Commission into a U.S. Civil and Human Rights Commission. The current commission was created in the 1950s with the mandate of monitoring and enforcing compliance with U.S. civil rights law.

In recent years, it has grown dysfunctional and been largely discredited. Currently there is a push to re-form the commission. The Leadership Conference for Civil Rights has taken the lead on the reform effort, and, along with the Campaign, has called for a new commission with a mandate to monitor the U.S.’s compliance with its human rights (as well as civil rights) commitments.

Third is implementation of recommendations by the U.N. Committee on the Elimination of Racial Discrimination (CERD) and to create a plan of action to enforce them at the domestic level.

Lastly, the Campaign is calling for implementation and coordination of human rights on the state and local level, particularly in partnership with state and local human rights and civil rights commissions.

So, when I read that the Georgetown University law school prof had a new book out, I quickly got my copy. I wasn’t disappointed, and you won’t be either.

Cole’s new book is two things: First, a collection of six of the previously-published “torture memos” written between 2002 and 2006 by lawyers at the Bush-era Office of Legal Counsel. Yes, the ones that used law to justify the “enhanced interrogation techniques” now so well known. And, second, Cole’s commentary on this distortion of the law and its implications for our society

This book is a must-read for the latter alone. In chillingly uncomplicated prose, Cole argues that these memos are the real “smoking gun” in the torture controversy because they demonstrate that the culpability lies not merely with the CIA interrogators who may have exceeded Justice Department legal guidance, but with the legal guidance itself – the “incredible arguments advanced to give them a green light.”

As we all now know, that sloppy and craven legal analysis  contorted the law to authorize clearly illegal CIA tactics. And it continued to do so in secret even after the Bush Administration sought to assure the public that it was abiding by the very laws it was breaking.

Yet, at about the same time as the torture memos were being published – and the nation prepared to mark the eighth anniversary of the 9/11 attacks –those who ordered and wrote these memos were busily defending themselves.

Or, more accurately perhaps, using the straw-man of an investigation of the CIA to deflect attention away from their conduct.

Exhibit A is John Yoo, now a law professor at the University of California’s law school, who was the Bush Administration’s go-to guy for legal justifications. In a recent op-ed, Yoo warns us about the dire consequences that await the nation as the Justice Department pursues its investigation of CIA operatives.

Yoo invokes Jimmy Carter, who he describes as “a young fresh face” campaigning for the presidency by attacking the CIA: “Our government should justify the character and moral principles of the American people, and our foreign policy should not short-circuit that for temporary advantage,” Carter says. He promises to never “do anything as president that would be a contravention of the moral and ethical standards that I would exemplify in my own life as an individual.”

“He wins the election and begins to decimate the intelligence agencies,” Yoo writes, and then recalls, “The Carter administration’s national-security record should not serve as a model for any president. But unless Obama changes course, he risks duplicating the intelligence disasters of the ’70s, and endangering the nation.”

Yoo reminds us that several of the detainees the CIA tortured “were directly involved with the planning and execution of the attacks on Sept. 11, 2001. They were captured at a time when our government feared a second wave of attacks.”

“Our nation’s leaders made the difficult decision to use coercive interrogation methods to learn as quickly as possible what these hardened al-Qaida operatives knew,” he writes, adding:

“As one of many government lawyers who worked on these counterterrorism programs, I can attest to the terrible pressure of time and events in the months after the Sept. 11 attacks. Knowledgeable officials expected that al-Qaida would try again — soon — and in a more devastating fashion.”

And, then, in true Dick Cheney mode, he admonishes: “As we pause to remember the Sept. 11 attacks eight years later, fair-minded people should take heart that there has been no follow-up attack in the United States. To the contrary, several plots have been foiled and the terrorists are on the run. This was not the result of luck — it is because of the hard work of members of the military and our intelligence agencies.”

“Their reward,” he laments, “is an open-ended investigation, and in some instances the disturbing reopening of cases closed by career prosecutors.”

“Even the most fervent antiwar activists should welcome an effective intelligence service. If the CIA had accurately judged Iraq’s lack of WMD in 2003, the war might not have occurred. If the CIA had decapitated al-Qaida’s leadership in the 1990s (the plans were vetoed by President Bill Clinton), the 9/11 attacks may have been headed off and the invasion of Afghanistan rendered unnecessary,” he writes.

“Persecuting the CIA risks another (Pearl Harbor) or major intelligence failure,” Yoo concludes.

But, hold on now, this is not about an investigation of the CIA. That’s John Yoo’s smoke-screen. This is about a bunch of highly-educated but ideologically-challenged lawyers who exploited our post-9/11 hysteria to try to rewrite the Constitution.

Paradoxically, it is precisely during times of such hysteria that we most urgently need the Constitution and its principles of fairness and equity. Resisting – not caving to — the temptation to compromise those principles would have been the benchmark for discovering those who truly believe.

I first came across David Cole several years ago, when he was doing a lot of advocating on behalf of donors to Muslim-oriented charities whose organizations were shut down by our Treasury Department with virtually no legal due process on vaguely-defined suspicions that they were supporting terrorist causes.

Cole likened that situation to the guilt-by-association tactics of the McCarthy era. He never weighed in on the guilt or innocence of those charities. But he was downright bulldoggish in his insistence that this was precisely the time we should apply the rule of law – not the law of the Wild, Wild, West soundbite. A position the Obama Administration has now also embraced.

For me, that defines a lawyer’s lawyer. For our country, it defines the future of our Constitution and the sacred legal structures that keep us from flying apart.

John Yoo is far from any lawyer’s lawyer.

William Fisher is a regular contributor to The Public Record. He has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, Latin America and elsewhere for the past 25 years and served in the administration of President John F. Kennedy. He reports on a wide-range of issues for numerous domestic and international newspapers and online journals. He blogs at The World According to Bill Fisher.

Their views range from cautious optimism to total condemnation.

There are some 600-plus prisoners being held at the U.S. military facility near Kabul. Some have been held for years without lawyers or any charge filed against them. There have been many allegations involving the torture of prisoners. Critics also charge that President Barack Obama has been turning Bagram into a new Guantanamo, since terror suspects are no longer being sent to GITMO because of plans to close it in January.

The new guidelines issued by the Defense Department (DOD) would assign a United States non-lawyer military official to each detainee. They would be tasked to gather exculpatory witnesses and evidence to present before review boards to be appointed by the U.S. military.

Currently, these detainees – some of whom have been imprisoned for more than six years – do not have access to lawyers and have no right to hear the allegations against them. Their status as “enemy combatants” is theoretically reviewed periodically by military panels, but critics say these reviews are incomplete, prejudiced and ineffective.

Tina Monshipour Foster, Executive Director of the International Justice Network (IJN), a legal advocacy group that represents four Bagram detainees in a pending federal court case, called the proposed changes “a step in the wrong direction.”

She told us, “No set of procedures will have legitimacy until there is transparency and accountability for any violations of the military’s own rules. Preventing the accused from having contact with his lawyer is antithetical to any legitimate system of justice.”

She said the first step should be to allow the detainees access to actual lawyers. Anything less, she added, “only invites rule-breaking, and casts doubt over the legitimacy of any proceedings that may be going on behind closed doors.”

“The ‘new’ procedures adopted by the Obama administration are not new at all; they appear to be exactly the same as the procedures created by the Bush administration in response to prior court challenges by Guantanamo detainees,” she said.

“The idea of assigning a non-lawyer ‘personal representative’ who does not legally represent the detainee, but works for the military, is a step in the wrong direction. We already know that this doesn’t result in fair proceedings from the failed experiment at Guantanamo — called the “Combatant Status Review Tribunals” (CSRTs) — which the Supreme Court found were wholly inadequate and failed to provide a meaningful opportunity for the detainees to challenge the legality of their detention.”

A more hopeful note was struck by Sahr Muhammed Ally, senior associate for Law and Security at Human Rights First, who has interviewed several former Bagram detainees. She told us, “These new procedures appear to be an improvement from the current review regime which a U.S. district court found far worse than the discredited review procedures in Guantanamo.”

But she was quick to add that “Given the lessons learned from Guantanamo, it is important that detention review procedures in Bagram must provide detainees a legal representative to ensure a meaningful mechanism for detainees to challenge their detention which the new procedures don’t provide.”

She said, “It is equally important to improve the reliability of information leading to capture of an individual in order to mitigate the risks of erroneous detentions, which the new procedures do not address.” She called for independent, public monitoring of the implementation of the new procedures in order to assess their effectiveness.

David Frakt, a law professor at Western State University and former Guantanamo defense counsel, was skeptical that the Administration’s new rules would work.

He told us, “The administration’s proposal to provide greater rights to detainees at Bagram reminds me of the Bush Administration’s woefully inadequate Combatant Status Review Tribunal (CSRT) process for detainees at Guantanamo, which has been suspended by the Obama Administration after serious criticism by the Supreme Court….”

He said, “The most obvious flaw with the proposed process is the failure to provide counsel to the detainees. Instead, the administration proposes to assign officers with no special expertise to serve as the detainees’ representative. This model was a complete failure for the CSRTs and should not be repeated.”

He added,” It is simply unrealistic to expect non-lawyers to zealously advocate on behalf of the detainees, or to be effective in gathering witnesses and evidence to challenge the lawfulness of the detention.”

In April, the American Civil Liberties Union filed a Freedom of Information Act (FOIA) request asking the Obama administration to make public records pertaining to the detention and treatment of prisoners held at Bagram. The government has not yet turned over the records.

Melissa Goodman, a staff attorney with the ACLU National Security Project, said that while she found the proposed new guidelines “encouraging,” she remains concerned about the level of secrecy that surrounds Bagram. “The public remains uninformed of basic facts such as who is imprisoned there, how long they have been held, where they were captured and on what grounds they are being subjected to indefinite detention. The government should make public documents that could shed light on this crucial information about the detention and treatment of prisoners at Bagram,” she said.

Chip Pitts, a lecturer at the Stanford University law school and president of the Bill of Rights Defense Committee, also expressed skepticism. He told us, “whatever the new rules say, it’s crucial that they distinguish between classical and legitimate conflicts where the rules of war apply, and the continuing attempt to encompass all counterterrorism within the illegitimate, overbroad, so-called ‘war on terror’ framework that wrongly disregards fundamental rights of civilians who are not active on actual battlefields.”

While it is unclear how soon the Pentagon’s new guidelines will be implemented – largely because of lack of personnel — they appear to have been announced with some sense of urgency. The probable reason is that the Obama administration is preparing to appeal a federal judge’s ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.

In that decision, a federal district judge, John D. Bates, ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantánamo Bay because they were captured outside Afghanistan and taken to Bagram, where they have been held for more than six years without trials.

The two Yemenis and a Tunisian want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.

Chip Pitts supports their position. He told us,“ Judge Bates’ decision laudably made that distinction and, rather than fight it, the Obama administration should take the opportunity to restore sensible and moral rules in keeping with nearly a millennium of legal evolution. These would recognize that civilians have a right to habeas corpus, that combatants on true battlefield situations have a right to article V hearings under the Geneva Conventions, and that places like Bagram shouldn’t be manipulated to simply form new Guantanamos or law-free zones.”