This picture of Abu Zubaydah was included in his classified Guantanamo Detainee Assessment Brief released last month by WikiLeaks.

This exclusive report was originally published by Truthout on March 30, 2010. It was written by investigative reporter Jason Leopold.

The Justice Department has quietly recanted nearly every major claim the Bush administration made about Abu Zubaydah the alleged al-Qaeda leader who was the first suspected terrorist subjected to the torture of waterboarding and other White House-approved “enhanced interrogation techniques.”

In a federal court filing, Justice backed away from the Bush administration’s statements that Zubaydah was the No. 2 or No. 3 official in al-Qaeda who had helped plan the 9/11 attacks, as well as even earlier claims from the Clinton administration that he was directly involved in planning the 1998 embassy bombings in East Africa.

The US government’s retreat underscores yet another problem with President George W. Bush’s use of torture. Besides its illegality and immorality, torture can be applied to suspected terrorists who have been falsely identified and who thus don’t possess the expected information, which can lead frustrated interrogators to escalate the torture until the subject provides something, whether true or not.

Such false expectations appear to have been a factor in the case of Zubaydah, who was captured in Pakistan on March 28, 2002. He appeared to respond cooperatively to FBI interrogators using “rapport-building” techniques, but his failure to supply details that the CIA had anticipated led the agency to obtain high-level permission to subject him to the near-drowning experience of waterboarding and other torture techniques.

After those techniques were cleared by the Justice Department’s Office of Legal Counsel in mid-summer 2002 – and were sanctioned by Vice President Dick Cheney and other senior Bush administration officials – CIA interrogators applied the methods to Zubaydah In their frustration, they ultimately waterboarded him 83 times before concluding that many of his claims of ignorance were truthful.

In recent months, former Bush speechwriter Marc Thiessen has been on a public relations campaign promoting his book, “Courting Disaster,” in which he defended the torture of Zubaydah, claiming that he reviewed classified intelligence that revealed Zubaydah’s torture produced actionable intelligence that thwarted imminent plots against the United States.

The Justice Department has now backed away from the Bush administration’s more extreme claims in a 109-page court document filed in US District Court in Washington last September in response to 213 discovery requests from Zubaydah’s attorneys in his habeas corpus case, which demands evidence to support his continued detention at Guantanamo Bay, Cuba.

In the filing, the Justice Department asked the judge presiding over the case to deny virtually every discovery request sought by Zubaydah’s attorneys, explaining, in some instances, that the US government no longer relied upon the explosive allegations that President Bush and other top officials made about Zubaydah after he was captured and tortured in 2002.

For instance, the document refutes Bush’s direct statements about Zubaydah, including a claim that he was one of al-Qaeda’s “top operatives plotting and planning death and destruction on the United States.”

For the first time, the government officially admitted that Zubaydah did not have “any direct role in or advance knowledge of the terrorist attacks of September 11, 2001,” and was neither a “member” of al-Qaeda nor “formally” identified with the terrorist organization.

Retreat’s Impact

The government’s retreat also could add to the mounting criticism of US Appeals Court Judge Jay Bybee, who in August 2002 as head of the Office of Legal Counsel signed memos authorizing the torture techniques that were applied to Zubaydah and other “high-value” detainees.

At the time, Bybee asserted, based on information he received from the CIA, that Zubaydah “is one of the highest ranking members of the al-Qaeda terrorist organization,” “has been involved in every major terrorist  operation  carried out by  al-Qaeda,” and was “one of the planners of  the September 11 attacks.” Bybee approved the harsh interrogation as necessary to thwart pending attacks on US interests, which the CIA claimed Zubaydah knew about.

While backing away from the extravagant claims of the Bush era, the Obama administration says Zubaydah should still be detained based on his “actions” as an “affiliate” of al-Qaeda.

The Justice Department filing alleged that Zubaydah “supported enemy forces and participated in hostilities” and “facilitat[ed] the retreat and escape of enemy forces” after the US invaded Afghanistan in October 2001.

The government acknowledged that its case against Zubaydah is based entirely on the first six volumes of his diaries that he wrote beginning in 1992 and an undated “propaganda video [Zubaydah] recorded before his capture in which [he allegedly] appears on camera expressing solidarity with Usama Bin Laden and al-Qaida.”

The government’s new charges, according to the court filing, include allegations that “[Zubaydah] was present in [the Afghan city of] Kandahar in November 2001, and a number of prominent terrorist figures converged on Kandahar around the same time,” including self-professed 9/11 mastermind Khalid Sheikh Mohammed. But the government does not “specify whether any of these figures met during that that time period.”

Zubaydah’s attorneys say the new allegations are baseless and have asked the government for “evidence that would undermine an ‘insinuation that [Zubaydah's] presence in Kandahar … was related to the presence of known terrorists in the city’ is vague and insufficiently specific and is not supported by any allegations about whether [Zubaydah] in fact was present in Kandahar or for what purpose.”

Zubaydah’s attorneys claim that “the persons whom [Zubaydah] assisted in escaping Afghanistan in 2001 included ‘women, children, and/or other non-combatants’” and that the government has evidence to support those assertions. The lawyers also questioned the government’s history of falsehoods about their client.

“The Government’s accounts frequently have been at variance with the actual facts, and the government has generally been loath to provide the facts until forced to do so,” said Zubaydah’s attorney, Brent Mickum, in an interview.

“When the Government was forced to present the facts in the form of discovery in Zubaydah’s case, it realized that the game was over and there was no way it could support the Bush administration’s baseless allegations. So it changed the charges.”

No Formal Allegiance

In seeking to block Zubaydah’s discovery motions, the Justice Department also said the government was no longer contending that Zubaydah “was a ‘member’ of al-Qaida in the sense of having sworn bavat (allegiance) or having otherwise satisfied any formal criteria that either [Zubaydah] or al-Qaida may have considered necessary for  inclusion in al-Qaeda.

“Nor is the government detaining [Zubaydah] based on any allegation that [Zubaydah] views himself as part of al-Qaida as a matter of subjective personal conscience, ideology or worldview. Rather, [the government's] detention of [Zubaydah] is based on conduct and actions that establish [Zubaydah] was ‘part of’ hostile forces and ‘substantially supported’ those forces.”

That retreat contradicts initial claims made by senior Bush administration officials, including Defense Secretary Donald Rumsfeld, who described Zubaydah as a “close associate of [Osama bin Laden], and if not the number two, very close to the number two person in the organization. I think that’s well established.”

Even after Zubaydah’s interrogators apparently apologized to him for that mistaken impression – at his Combatant Status Review Tribunal hearing, Zubaydah said “they told me sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter” – the Bush administration continued to hype his role.

John Bellinger, legal adviser to Secretary of  State Condoleezza Rice, said during a June 2007 briefing about Guantanamo Bay detainees that Zubaydah, who was transferred to Guantanamo in 2006, helped  plan the 9/11 attacks and was “extremely dangerous.”

But the Justice Department now says “the Government has not contended in this [habeas] proceeding that [Zubaydah] had any direct role in or advance knowledge of the terrorist attacks of September 11, 2001, so [to] the extent that this request seeks information ‘tending to show … that [Zubaydah] did not know of the planned attacks of 9/11′, the request seeks evidence about contentions the Government has not made.”

The Justice Department also asked US District Court Judge Richard Roberts, who is presiding over the  habeas case, to deny defense requests for evidence that would “undermine”  government claims that Zubaydah worked on bin Laden’s “military and security plan to confront  an American counterattack” in Khost,  Afghanistan, after 9/11.

“The Government does not rely on any contention that [Zubaydah] did this work as an ‘al-Qaida’ deputy or because he was subject to al-Qaida command,” according to the court document.

Blocking a KSM Interview

And the Justice Department opposed Zubaydah’s lawyers’ request to question Khalid Sheikh Mohammed about whether he met Zubaydah, when the two were allegedly in Kandahar at the same time in November 2001.

“It is difficult to imagine how any answer from Khalid Sheikh Mohammed would substantially help [Zubadyah],” the government filing said. “Even if Khalid Sheikh Mohammed were to say he did not meet with Petitioner while they were in Kandahar, the fact that [Zubaydah's] presence in Kandahar coincided with the presence of major terrorist figures in Kandahar would still weigh in favor of [his continued] detention.”

According to lawyer Mickum, the government’s “entirely new position” about Zubaydah was revealed last year to in a 44-page Factual Return that included more than 2,000 pages of exhibits.

“I’m not surprised at all that the Government has dropped the old charges against our client and is alleging new charges against him,” Mickum said in an interview. “That is their tried-and-true modus operandi. That’s exactly what they did with my client Bisher al Rawi. He was initially charged with associating with a known al-Qaeda figure in London.

“Unfortunately, Bisher was associating with him at the express request of Britain’s MI5 [intelligence service]. After we established that he [Bisher] worked for MI5, the US simply changed the charges against him, alleging that he had terrorist training in Bosnia and Afghanistan.

“Once again, we were able to show those charges were utterly bogus when we proved that Bisher had never left England from 1998 until his fateful business trip to Africa, where he was arrested by the CIA, rendered to the ‘Dark Prison’ in Afghanistan and tortured, tortured at Bagram Air Force base and tortured in Guantanamo.

“What all these cases have in common is torture, and [Zubaydah's] case has that in spades. Given, the government’s history, it is not likely they would simply let him go and apologize. No, when their case falls apart, they re-jigger the evidence, and come up with new charges and [say] ‘we will defend the new charges with the same zeal we defended the earlier bogus charges.’”

Zubaydah’s attorneys argued in his initial petition for habeas corpus filed in February 2008 that he was not a member of al-Qaeda, that he had no knowledge of any terrorist operations, and that the military camp he was alleged to be affiliated with, Khaldan, was closed by the Afghan Taliban after refusing to let it go under the formal control of bin Laden and al-Qaeda.

“We have never deviated from that position, and now the government admits that we were correct all along,” Mickum said.

Indeed, the Justice Department’s response agrees that Khaldan was “organizationally and operationally independent” of al-Qaeda’s camps. The filing also backed off other claims made by Bush administration officials that Zubaydah knew the identities of specific individuals who trained at Khaldan and later went on to al-Qaeda-operated camps and allegedly took part in terrorist activities.

“The Government has not contended in this proceeding that Petitioner selected or knew the identities of specific persons who were selected to leave Khaldan for training at al-Qaida camps,” the filing states.

Undermining 9/11 Report

The US government’s new position also undercuts the 9/11 Commission’s report as it relates to Zubaydah. The report called him the leader of Khaldan.

The 9/11 report added that Zubaydah was a “major figure” in the “Millennium plot,” claiming he was a mastermind behind a plan to bomb a hotel in Jordan and Los Angeles International Airport.

The 9/11 report cited several  intelligence memoranda from then-counterterrorism czar Richard Clarke that Zubaydah was planning “a series of major terrorist attacks” on Israeli and possibly US targets and was working closely with bin Laden. Clarke declined numerous requests for comment.

Terrorist suspicions about Zubaydah predated the 9/11 attacks. Indeed, in the infamous Aug. 6, 2001, Presidential Daily Brief titled, “Bin Laden Determined to Strike in US,” he was identified as bin Laden’s “lieutenant” and alleged to have “helped facilitate” the plot to detonate a bomb at LAX.

FBI officials obtained that information from Ahmed Ressam, who was convicted in the LAX plot in April 2001. In exchange for a lighter sentence, Ressam cooperated with the government and identified alleged terrorists, including Zubaydah, who Ressam said was a key figure in al-Qaeda, ran Khaldan and had close connections to bin Laden. Ressam also said Zubdaydah told him in 1998 that, independent of bin Laden, he was preparing his own attack against the United States. Ressam later recanted his statements.

When asked about what the 9/11 Commission was told regarding Zubaydah, Mickum suggested that the panel was lied to by the CIA.

“After torturing our client, the CIA knew he was never a member of al-Qaeda and that he had no knowledge of any al-Qaeda terrorist activities,” Mickum said. “And this fact was confirmed after other members of al-Qaeda like [Khalid Sheikh Mohammed] and the [alleged mastermind of the USS Cole bombing] al-Nashiri were tortured.”

In an interview last year, Jack Cloonan, a former FBI special agent assigned to the agency’s elite bin Laden unit, said the CIA and the Bush administration were flat wrong in designating Zubaydah as a top official in al-Qaeda.

“To cast him and describe him as the al-Qaeda emir or leader for the subcontinent or worse … I think was a mistake. … Based on his age and ethnicity, [he] would [n]ever be brought into the inner circle of al-Qaeda,” Cloonan said.

There was also the question of Zubaydah’s personality. “My partner had a chance to look at a lot of Abu Zubaydah’s diaries [which forms the basis of the government's case], poems and other things that he has written and he said that after reading this you just come away with the feeling that this is a guy who can’t be trusted or be given huge amounts of responsibility.”

Zubaydah began keeping a diary in 1992, after he suffered a severe head injury while fighting communist forces in Afghanistan. The injury left “significantly impaired both his long- and short-term memory,” states a Jan. 14, 2009, motion his attorneys filed related to his diaries.

“Long after his 1992 injury, once [Zubaydah] had recovered the ability to speak and write, he began to keep a diary. It is his memory. Without it, he is lost.”

The diary now appears to be the chief element of the US government’s remaining case against him.

This is the front cover of a pamphlet produced by a Kuwaiti-based anti-Guantanamo organization to try and win the release of two Kuwaiti prisoners, pictured on the cover of the pamphlet, who are detained at the detention facility. The commander of Guantanamo, Rear Adm. David Woods, accused one of the detainee's attorneys of "smuggling" the pamphlet into Guantanamo three weeks before he issued a widely condemned order calling for a review of detainees' legal mail. Image: Lt. Col. Barry Wingard

This report was written by investigative reporter Jason Leopold and originally published on Truthout.

Early last month, Air Force Capt. Michael Schwartz was summoned into the office of Rear Adm. David Woods, the new commander of Guantanamo, and was accused of “smuggling” into the detention facility an anti-Guantanamo pamphlet that featured the photographs of two Kuwaiti detainees, Fayiz al-Kandari and Fawzi al Odha.

Schwartz, a military attorney and a member of al-Kandari’s legal team, was taken aback.

He flatly denied that he or any other lawyer defending al-Kandari “smuggled” the pamphlet into Guantanamo [al Odha is represented by a civilian attorney but the detainee does not speak with him]. Schwartz told Woods that if he was being accused of committing a crime he wanted to speak with an attorney. Woods dismissed Schwartz and the issue was not raised again.

But then several weeks later, Woods issued an order that authorizes a review team to read all legal mail sent to detainees already charged with war crimes, which includes al-Kandari, and other prisoners who are likely to be prosecuted before military commissions to ensure the material they receive from their attorneys does not contain any “contraband,” such as the anti-Guantanamo pamphlet Schwartz was accused of smuggling into the facility.

A group that calls itself the International Anti-Guantanamo Coalition (IAGC), which is made up of Kuwaiti activists, produced the four-page pamphlet. Al-Kandari’s Kuwaiti-based attorney, Adel Abdulhadi, is a also a member of the IAGC. The organization was launched in November with a stated goal of shutting down Guantanamo and securing the release of al-Kandari and al Odha.

The pamphlet is written in Arabic. It contains photographs of the prison and a picture of the Statue of Liberty dressed in orange prison garb, the color detainees wore when they first arrived at the prison facility. Inside the pamphlet is a picture of Lt. Col. Barry Wingard, the lead attorney on al-Kandari’s defense team, who is quoted about his efforts to free al-Kandari and have him turned over to the custody of the Kuwaiti government. There are also photographs and statements from Kuwaiti government officials and al Odah’s father speaking about the need to shut down Guantanamo.

Wingard, a veteran of the Bosnian and Iraq wars, confirmed the allegation Woods leveled against Schwartz during an interview with Truthout. He said the prison commander never told Schwartz whether the pamphlet was found in al-Kandari’s or al Odah’s cell, but he “certainly implied it.”

Wingard said he described the pamphlet to al-Kandari during a recent visit to Guantanamo recently and al-Kandari denied ever having seen it.

“The first thing I said when I found out about this is ‘someone is planting shit’ and trying to pin it on the attorneys,” said Wingard. “To this date, neither Commander Woods nor anyone else from Joint Task Force-Guantanamo has extended the courtesy of addressing me in this matter and has not shared any conclusions of an investigation, if one was ever conducted.”

A Defense Department spokesman did not return calls or emails for comment.

Still, Wingard doesn’t understand how the pamphlet found its way to Guantanamo in the first place. He and Schwartz first laid eyes on it during a trip they took to Kuwait in November to meet with government officials there to discuss ways to try and “facilitate [al-Kandari's] release back to Kuwait’s state of the art rehabilitation center, built at the request of the Bush administration, which is currently vacant,” Wingard said.

“I saw the pamphlets for the first time as they were being unwrapped from cellophane in Kuwait during the first full week of November,” Wingard said. “We were in Kuwait for two weeks, from November 7 through November 21. My attorney was questioned about smuggling it into Guantanamo during the first few days of December. The pamphlet somehow got to Guantanamo before Capt. Schwartz did.”

Wingard said the pamphlet was first distributed to members of the Kuwaiti Parliament and passed out during a protest in front of the US Embassy in Kuwait on November 20 that attracted hundreds of people. He suspects the pamphlet made the rounds inside the embassy and was subsequently sent to Guantanamo by a US official or someone from “another government agency,” a euphemism used to describe the CIA.

“That’s the only explanation for how this document ended up at Guantanamo,” Wingard said. “When I heard about the incident with Capt. Schwartz I thought something is about to happen at Guantanamo. Why else would they plant a document I had just seen come from the printing press in Kuwait?  Now I think we know. “

Wingard believes the issue surrounding the pamphlet is part of a larger effort orchestrated by the US government to sabotage his efforts to secure al-Kandari’s release from Guantanamo, whose petition for habeas corpus was denied two years ago.

Wingard said it started in late October, when Guantanamo officials began to conduct a “cursory review” of all of al-Kandari’s correspondence with him for reasons that are still unknown.

Then, three days before Wingard arrived in Kuwait last November, the Pentagon released to the media what Wingard characterized as a “propaganda video” that showed several detainees apparently enjoying a life of indefinite detention. One of the detainees in the video, he claims, is al-Kandari.

Still, it’s unclear whether the confrontation between Woods and Schwartz played any part in the Guantanamo commander’s decision to implement new and expanded rules authorizing the review of attorney-client communications.

At a pretrial hearing this week in the military commission of Abd Al-Rahim al-Nashiri, the alleged mastermind of the USS Cole, Navy Cmdr. Andrea Lockhart, a member of the team prosecuting the high-value detainee, told a military judge the reason Woods issued the order was because “material that was getting in, like Inspire magazine, that should not have been getting in.”

Inspire magazine was a slick English-language glossy that was produced by an arm of al-Qaeda and edited by Samir Khan, a Pakistani US citizen who was killed in a drone strike in Yemen last September along with Al-Qaeda in the Arabian Peninsula propagandist Anwar al-Awlaki, another US citizen who the US government placed on a kill list.

Lockhart did not disclose whether the issue of Inspire, first published in June 2010, was found inside a detainee’s cell or somewhere else on the prison grounds. Nor did she say whether Joint Task Force-Guantanamo, which operates the prison facility, launched an investigation to determine how the magazine was brought onto the island. However, Lockhart, like Woods, seemed to suggest a defense attorney was the likely suspect.

A Defense Department spokesman did not respond to emails or phone calls seeking answers to those queries either.

Richard Kammen, al-Nashiri’s chief civilian defense counsel, denied that the detainee was the recipient of Inspire.

Mail Review Originally Limited to High-Value Detainees

Woods’ December 27 order expanding the review of legal mail to a larger segment of the Guantanamo prison population in Guantanamo appears to have been sparked by an unknown incident that took place in early October at Camp 7, the top-secret facility where 14 high-value detainees are held, a month before al-Nashiri’s military commission got underway.

Several attorneys representing detainees in habeas corpus cases learned that month that Woods, who had just been named commander of Guantanamo in August, had ordered a search of the cells and that prison staff had been reading, reviewing and confiscating detainees’ legal mail.

The habeas corpus attorneys, all of who hold top-secret security clearance and operate under a separate set of rules related to the review of legal mail, immediately contacted Justice Department lawyers, objecting to what was then an unwritten policy implemented by Woods. The attorneys noted that his policy violated attorney-client privilege. One habeas attorney was assured by Justice Department that the review only applied to the high-value detainee camp and that his client, who is not a high-value detainee, would be spared.

In a statement provided to Truthout October 14, Lt. Col. Joseph Todd Breasseale, a Defense Department spokesman, explained that Woods “directed that a security search be undertaken of detainee cells and materials in Camp 7.”

“This security search is not in response to any particular security threat and does not involve detainees in other [Joint Task Force-Guantanamo] detention facilities,” Breasseale said at the time.

Nine lawyers representing al-Nashiri and other high-value detainees charged with war crimes responded to Woods’ new directive by sending a letter to William Lietzau, deputy secretary of defense for detainee affairs, demanding he order Woods to “cease and desist the seizure, opening, translating, reading and reviewing of attorney-client privileged communications.”

The legal mail issue then arose at the start of al-Nashiri’s tribunal in November. At that time, Navy Cmdr. Thomas Welsh, the senior legal official at Guantanamo, testified that the search of the high-value detainees’ legal mail was necessary so as to ensure it did not contain “incendiary” magazines, such as Inspire, and other material that could pose a security threat. Welsh did not provide further detail about the circumstances that ultimately led to the crackdown in Camp 7 in October.

But Chief Military Commissions Judge James Pohl ordered prison officials to stop reading al-Nashiri’s legal mail. A month later, just a few weeks after Woods accused Schwartz of smuggling the anti-Guantanamo pamphlet into the prison, Woods issued the order expanding the inspection of legal mail, originally limited to Camp 7, to include about 30 other detainees.

Wingard said, in the past, when he sent mail to al-Kandari at Guantanamo it was received by a Defense Department liaison who “printed it off and put it in sealed envelope which was then given to the government.”

“The government would then unseal the envelope in the presence of Fayiz and hand him the confidential mail,” he said.

Now, Woods order states that a team made up of former government lawyers, translators and Department of Defense and law enforcement officials—a privilege review team—under contract to the Pentagon, would conduct the review of the privileged attorney-client communications and it would be done outside the presence of the detainee. He said attorneys must agree to the new rules in writing in order to communicate with their clients. The policy has since been roundly criticized.

“As a lawyer, I believe that this flagrant violation affecting the privacy of attorney-client, is unconscionable and far below the standards that America once stood for,” said Abdulhadi, al-Kandari’s attorney in Kuwait.

The American Bar Association, in a letter sent to Secretary of Defense Leon Panetta, said the policy needs to be immediately reversed.

“The American justice system depends on the essential role of lawyers in counseling their clients,” wrote ABA President Wm. T. (Bill) Robinson III in a letter sent to Secretary of Defense Leon Panetta, urging that Woods’ order be reversed. “This includes providing zealous and effective counsel, even to those accused of heinous crimes against this nation and its people.”

On the heels of Woods’ December 27 order, Marine Col. Jeffrey Colwell, the Pentagon’s chief defense counsel for military commissions, directed military and civilian attorneys defending detainees before military commissions to immediately stop sending mail to the prisoners and not to comply with Woods’ order because it violates the attorney-client privilege and codes of professional conduct.

The issue threatens to derail the tribunals, which Congress and the Obama administration overhauled in 2009. Pohl, the chief military commissions judge, expects to resolve the matter within the next two weeks.

Guard, Attorney Singles Out Interrogators

If “incendiary” reading material was the true catalyst behind Woods’ order, then it’s likely the interrogators who work at Guantanamo are to blame, a former prison guard said.

“They are the only ones who would have the incentive or motive” to distribute a “magazine like Inspire,” said the former guard, who requested anonymity because he is still on active duty.

During interrogations, the former guard said interrogators, as a way of “building rapport with detainees,” would offer prisoners food, books, magazines, pornography, games, pictures, extra recreation time, and cigarettes.

“This has gone on since Guantanamo opened ten years ago,” the former guard said. “These are things the detainees are not supposed to have in their cells and it’s a major source of frustration for the guard force because it violates the standard operating procedure. The guard force follows the SOP and takes it seriously, but the interrogators break the rules in the SOP all the time without telling anyone. The interrogators run the show.”

The former guard said he recalls two incidents within the past couple of years to back up his claims and both involved interrogators allowing two detainees to hang pictures in their cells, which is prohibited, in exchange for their cooperation. One detainee was given a picture of his hometown and another detainee received a picture of his family.

When a guard walked through the prison block to conduct “shake downs of cells” and saw the photographs, they were confiscated and the guard wrote up a report that was sent to his commanding officer. The detainees, according to the former Guantanamo guard, then complained to their interrogators and the photographs were later returned.

Brent Mickum, a habeas corpus attorney who represents Abu Zubaydah, the first high-value detainee captured after 9/11, said he too believes interrogators are responsible for the distribution of magazines like Inspire.

“The idea that an attorney would take into Guantanamo a periodical or a document that he or she knew to be proscribed is outrageous,” said Mickum, who holds a top-secret security clearance. He and other habeas attorneys already operate under a strict protective order that requires all materials they mail and/or bring to the detainees they represent to first be reviewed and approved by a separate privilege review team based in Washington, DC. “No attorney in the 600 or so I have interacted with over the years would ever do such a thing. No attorney would take the chance of jeopardizing the arduous steps they had to go through to obtain security clearance so prisoners could be represented by defense counsel and risk it by bringing in Inspire magazine. The only way such a magazine or document would get to a prisoner is through an interrogator who was trying to reward him for providing intelligence.”

The former guard and two military intelligence officials said as of late 2011 as many as 300 interrogations per month were still taking place at Guantanamo. Wingard said al-Kandari was interrogated as recently as last July by someone believed to be an interrogator about his thoughts on “world politics and Osama Bin Laden’s death.”

Documents declassified and released by the Pentagon in two years ago to former Secretary of Defense Donald Rumsfeld show that in 2003 he said Guantanamo needed to be turned into a “long-term interrogation facility.”

As far as Woods’ new order, Mickum said he’s not surprised.

“We don’t write [Zubaydah] because we’re worried about the Guantanamo staff reading our mail,” Mickum said. “We’ve been working on the assumption for some time that they will and have already looked at our legal mail, regardless if there’s an order in place now allowing just that.”

Wingard said the “desired effect” of Woods’ order is to “taint the attorneys and harvest intelligence from us by reading our legal mail.”

“What’s astounding,” Wingard added, “is that we are military officers with top-secret security clearances and law licenses who go to war with your sons and daughters. What Commander Woods’ order essentially says is that ‘we don’t trust you or the legal system you are sworn to protect.’”

In the meantime, per Colwell’s instructions, Wingard has not been sending mail to al-Kandari, who has been detained at Guantanamo for a decade, or Abdul Ghani, an Afghani Wingard also represents who has been held at the prison Guantanamo since 2003.

Photo: kalavinka; Edited: Jared Rodriguez/Truthout

This exclusive report was written by Jason Leopold and originally publishedon Truthout

Have you ever filed a Freedom of Information Act (FOIA) request with the FBI and received a written response from the agency stating that it could not locate records responsive to your request?

If so, there’s a chance the FBI may have found some documents, but for unknown reasons, the agency’s FOIA analysts determined it was not responsive and “blackballed” the file, crucial information the FBI withholds from a requester when it issues a “no records” response.

The FBI’s practice of “blackballing” files has never been publicly disclosed before. With the exception of one open government expert, a half-dozen others contacted by Truthout said they were unfamiliar with the process of “blackballing” and had never heard of the term.

Trevor Griffey learned about “blackballing” last year when he filed a FOIA/Privacy Act request with the FBI to determine whether Manning Marable, a Columbia University professor who founded the Institute for Research in African-American Studies, sought the FBI’s files on Malcolm X under FOIA. At the time of his death last April, Marable had just finished writing an exhaustive biography on the late civil rights activist. Griffey filed the FOIA hoping he would receive records to assist him with research related to a long-term civil rights project he has been working on.

In a letter the agency sent in response to his FOIA, the FBI told Griffey that it could not locate “main file records” on Marable responsive to his request. Last November, in response to a FOIA request Truthout filed with the FBI for a wide-range of documents on the Occupy Wall Street, the agency also said it was unable to “identify main file records responsive to [our] FOIA,” despite the fact that internal FBI documents related to the protest movement had already been posted on the Internet. The FBI has been criticized in the past for responding to more than half of the FOIA requests the agency had received by claiming it could not locate responsive files.

Griffey, who also teaches US history at The Evergreen State College in Olympia, Washington, and is co-editor of the book, “Black Power at Work: Community Control, Affirmative Action and the Construction Industry,” was baffled. He found it difficult to believe that Marable would not have filed a FOIA for Malcolm X’s FBI file. So, he sent an email to an FBI FOIA analyst asking for clarification.

The FBI FOIA analyst responded to Griffey in an email, asking him to supply additional “keywords” to assist in a search of the agency’s main file records for documents on Marable responsive to his FOIA request. The analyst then disclosed to Griffey, perhaps mistakenly, that a search for previous requests for records on Marable turned up a single file that was “blackballed” per the agency’s “standard operating procedure.”

So last May, Griffey again turned to FOIA, this time to try and gain insight into the blackballing process. He filed a FOIA request with the FBI seeking a copy of the agency’s standard operating procedure for “blackballing” files.

Two months later, he received five pages from an untitled and undated PowerPoint presentation that outlined procedures for blackballing files from FOIA requests. The FBI cited three exemptions under the law to justify withholding a complete and unredacted copy of the PowerPoint:

(b)(6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

(b)(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

C. Could reasonably be expected to constitute an unwarranted invasion of personal privacy;

E. Would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law …

Griffey appealed the FBI’s decision to withhold information contained in the PowerPoint under the (b)(7)(E) exemption, but it was denied.

Still, the PowerPoint pages the FBI did turn over to Griffey provide insight into the “blackballing” process. On a page titled, “Blackball Files,” it says files identified as 190 and 197 “main files,” which are FBI classifications pertaining to FOIA/Privacy Act requests for files on people and civil litigation, are blackballed unless “specifically ask[ed] for” by the requester when an initial FOIA request is made.

Moreover, the agency deems certain “control files,” “separate files which relate to a specific matter and is used as an administrative means of managing, or ‘controlling’ a certain program or investigative matter,” that pop up and are unresponsive to a FOIA to be ripe for blackballing. However, a FOIA analyst must first get permission from a supervisor before a “control file” can be blackballed.

Finally, according to the PowerPoint, some files are automatically blackballed by an FBI FOIA analyst, but the public is not permitted to know the classification of files that fall into that category because the FBI redacted that part of the PowerPoint, claiming disclosure would reveal “techniques and procedures for law enforcement investigations and procedures.”

“Not only are we not told when the FBI withholds material from FOIA requests, but we are not even allowed to know all of the kinds of material it withholds,” Griffey told Truthout. “The law itself and not just its enforcement, is now effectively secret.”

But Bill Carter, an FBI spokesman, told Truthout in an interview that “blackballing” is not about secrecy nor is the process used in any way to conceal responsive records, which the Justice Department revealed it has been doing for more than two decades in certain cases.

“Blackball is a term of art used by the [FBI's] FOIA section people in the records management division,” he said. “It’s an unfortunate term. It applies to people and events. It means that we pulled a file that initially looked responsive but after a review it turned out it wasn’t because the file didn’t match the requesters’ specific request” for records.

Carter sent Truthout an email that contained an explanation of the blackballing process as provided to him by Dennis Argall, the assistant section chief of the Record/Information Dissemination Section, FBI’s Records Management Division:

“[B]lackball” is a term we typically use to describe a file (not a request) that initially looked responsive but upon review we find it’s for a different guy or event. It can also be used to describe a file that we won’t process because, i.e., a guy makes a request for his “FBI file” in 2005 and [we] process it for him. When he makes another request for his “FBI file” in 2011, we will only process his “records” but will not process the file that was created to respond to the 2005 FOIA request, which is 190 file series [the classification the FBI uses for files requested on people].

That’s exactly how the FBI described the blackballing process to attorney Kel McClanahan, executive director of Arlington, Virginia-based National Security Counselors, a public interest law firm.

McClanahan told Truthout in an email interview that he first learned about blackballing when the term was used in a set of FBI “processing notes” he requested from the agency to determine how FBI FOIA analysts had handled one of his FOIA requests.

Although McClanahan believes there is “definitely a place for blackballing in the FOIA process” he said the way the FBI “does blackballing leaves a lot to be desired.”

“First of all, even though [the FBI] may blackball 50 records and release 3, they never tell the requester about the 50,” McClanahan said, hitting on Griffey’s main complaint about blackballing. “They never mention word one about ‘and we found other records that we deemed non-responsive.’ The requester is left to wonder why the FBI only found 3 records about the subject in question and he will never know that they found 50 others that they ultimately deemed non-responsive unless he has the foresight to FOIA the FBI’s processing notes for his request. Knowledge like that is very important when a requester is trying to decide whether or not to tie up [the FBI's Office of Information Policy] with an administrative appeal, let alone litigation.”

McClanahan said his concerns would largely be addressed if the FBI “only blackballed records for good reasons.”

“If I could trust the FBI only to blackball things that were clearly non-responsive, I don’t need to know that they found completely unrelated records,” he added. “However, that’s not what the FBI does. I have seen it blackball records because they ‘weren’t FBI records,’ even though they were in FBI files (they were FBI copies of other agencies’ records, which any FOIA person worth his salt knows are still responsive to a FOIA request made to FBI). I’ve seen it blackball records because the request asked for ‘internal FBI records’ and the records in question were sent outside of the FBI, based on a strained interpretation of the word ‘internal.’”

The FBI will be forced to make a choice “if it wants to apply FOIA correctly,” McClanahan said.

“The agency can either limit its blackballing to records that nobody would think are responsive (e.g. different people with the same name, records outside a set time frame); or it can tell requesters in the administrative stage that it determined that certain records were non-responsive and why,” he said. “Failing to do either, however, is bad FOIA.”

Pfc. Brandon Neely worked as a miitary guard at Guantanamo when the detention camp opened ten years ago today. (Photo courtesy of Brandon Neely)

This report was originally published on Truthout and written by Jason Leopold.

Pfc. Brandon Neely was standing at attention inside Camp X-Ray along with three-dozen or so other active-duty soldiers attached to the 401st Military Police Company from Fort Hood, Texas, during the afternoon of January 11, 2002.

A busload of about 20 “enemy combatants” captured in Afghanistan and Pakistan were soon going to be arriving at the crudely constructed prison camp at Guantanamo Bay and Neely, then 21 years old, was waiting for his assignment.

His platoon sergeant called out his name.

“Pfc. Neely! Bravo Block, escort,” he said, which meant Neely escorted detainees as they were processed into the prison and then to their cells.

Outside the Law

A couple of weeks earlier, Secretary of Defense Donald Rumsfeld explained why the Bush admnistrtion settled on Guantanamo as a prison facility for “war on terror” detainees.

“I would characterize Guantanamo Bay, Cuba, as the least worst place we could have selected,” Rumsfeld said during a December 27, 2001 press briefing. “It has disadvantages, as you suggest. Its disadvantages, however, seem to be modest relative to the alternatives.”

Rumsfeld did not reveal to reporters that a young Justice Department attorney named John Yoo had just finished writing a legal memo that he sent to Pentagon General Counsel William “Jim” Haynes a day later that said Guantanamo was the perfect place location beacuse it was outside the law and it was unlikely US courts would grant detainees habeas corpus rights. Yoo’s analysis was proved wrong nearly a decade later when the US Supreme Court issued a landmark ruling in Boumediene v. Bush granting Guantanamo detainees habeas corpus rights.

Bush administration officials had at one point considered detaining prisoners in Guam, but Justice Department lawyers determined that detainees would be able to challenge their detention in US courts because, as Joseph Hansen wrote in his fascinating book about the history of Guantanamo, Guam would not be immune from federal court oversight and could be accessed by lawyers and journalists

The other dirty secret Rumsfeld did not disclose to the media was that Guantanamo was the ideal long-term interrogation facility the US could use to torture detainees.

Indeed, around the same time Rumsfeld was discussing Guantanamo as a detention center Haynes and other agency officials contacted the Joint Personnel Recovery Agency (JPRA), which runs Survival Evasion Resistance Escape (SERE) schools for teaching US soldiers to resist interrogation and torture if captured by an outlaw regime. The officials wanted a list of interrogation techniques that could be used for detainee “exploitation,” according to a report released by the Senate Armed Services Committee.

Three former military officiasl have referred to Guantanamo as a “battle lab,” meaning the interrogation methods detainees were experimental in nature.

“Worst of the Worst”

Neely’s adrenaline was flowing. Army Col. Terry Carrico, the prison’s commander, and Marine Gen. Michael R. Lehnert, commander, Joint Task Force 160, whose mission was to build and operate the detention camps at Guantanamo, had just told Neely and the other military police (MP) that all of the detainees, who Bush administration officials had publicly characterized as the “worst of the worst,” were involved in the 9/11 attacks and were so dangerous and psychotic that one of them had attempted to gnaw through a hydraulic line on the C-141 en route to Guantanamo.

Neely said he had no idea what to expect. He had never seen terrorists before. He was scared and nervous.

“I really wanted to be in combat fighting in Afghanistan,” Neely said. “I wanted revenge for 9/11. When I found out I was going to Guantanamo to help run a detention facility I was kind of mad because I wanted to go to the front lines to fight not to babysit a bunch of detainees.”

He waited for the bus to arrive near the open-air cages that resembled dog kennels, where the detainees were held for about four months before being moved to Camp Delta, a newly constructed block of prison cells built by Halliburton subsidiary Kellogg Brown & Root, a corporation once headed by Dick Cheney.

“I remember it was a sunny day,” Neely said. “It was January, but it was a lot different than Texas.”

The bus rolled in to the side of Camp X-Ray and the doors opened. The MP canine unit was present and their dogs were snarling. The first detainee to exit, a man Neely recalls was in his 30s and overweight, was missing a leg. A Marine inside the bus threw the man’s prosthetic leg onto the gravel. The MPs nicknamed him “Stumpy.”

That was Neely’s first exposure to the “worst of the worst.”

“I was shocked,” Neely said. “I will never forget that.”

The one-legged detainee hopped toward the holding area flanked by a couple of MPs who were screaming at him to “walk faster,” Neely said. The detainee was wearing an orange jumpsuit; goggles, which were designed to disorient his senses during the flight to Guantanamo from Afghanistan; a surgical mask; earmuffs; and gloves that looked like oven mitts. His leg, at least the one he still had, was shackled. His hands were attached to a chain wrapped around his torso.

The second detainee off the bus was David Hicks, the Australian drifter who was captured by the Northern Alliance in Afghanistan and sold to US forces for about $1,500. [Hicks, who was released in 2007, gave his first interview to Truthout last year.]

Hicks was Neely’s prisoner. At five-foot three inches tall, he hardly looked like the mercenary about which Neely was warned.

“We yelled at him, told him to get on his knees and shut up,” Neely said after Hicks exited the bus. “He was a little guy. He didn’t look like a killer.”

Neely did not know it then, nor did the public, but a vast majority of the prisoners who populated Guantanamo during the prison’s first year in operation were innocent bystanders sold to US forces for hefty bounty payments or were captured and sent to Guantanamo because they wore the same style Casio watch that members of al-Qaeda wore.

Geneva Conventions Did Not Apply

Later in the afternoon of January 11, 2002, Neely was involved in the first violent incident that took place at Guantanamo. It’s an event that he said still haunts him to this day, but it pales in comparison to the brutal torture methods sanctioned by former Secretary of Defense Donald Rumsfeld that would become standard operating procedure at the prison facility later that year.

Neely and another MP were escorting a detainee to his cell. When they arrived, Neely put the detainee, who was still wearing goggles, on his knees and the other MP began to unlock his handcuffs. The detainee, who was in his fifties, flinched. Neely reacted quickly.

“I slammed his face down into the concrete,” Neely said. “He tried to get up and I slammed him down again. I didn’t know what he was trying to do.”

The Immediate Reaction Force Team (IRF), military guards who are trained to use overwhelming force to respond to “disciplinary infractions,” were called in and subdued the detainee. When Neely saw the prisoner again the next day, the side of his face was torn up and scabbed.

Weeks later, Neely learned that the detainee flinched because he thought he was going to be executed when he was told to get down on his knees.

The violence escalated as the weeks passed. There wasn’t a formal standard operating procedure (SOP) that advised guards how to treat detainees, Neely said.

“We were told there was no SOP and the book would be written as we went along,” he said. “If detainees refused medication the IRF team came in and forced them to take medication. I sat there and watched a medic punch a detainee in the face one time as the detainee was chained to the back of his cage in a Jesus Christ pose because the detainee didn’t want to drink his Ensure.”

A day before he left for Guantanamo, Neely said his unit was told “by the company commander, the colonel and platoon sergeant that these people were not Prisoners of War. They were detainees and the Geneva Conventions would not be in effect.”

George W. Bush formally rescinded Geneva Conventions protections for “war on terror” detainees on February 7, 2002. A bipartisan congressional report released three years ago traced the torture of detainees at Guantanamo and Abu Ghraib to that document.

The Pentagon did not respond to Neely’s specific allegations. In the past, Defense Department spokespeople said detainees were treated humanely and all incidents of abuse were investigated.

Neely left Guantanamo in June 2002 with an achievement medal for “exceptional meritorious service” and returned to Fort Hood. By that time, the conversations he had with some of the British detainees about pop culture, such as hip-hop music, led him to doubt the government’s claims that all of the detainees imprisoned at Guantanamo were terrorists.

“I had a feeling I was being lied to,” Neely said. “Some of these guys grew up the same way I did. They listened to the same music. That’s when I started to question it. It was years later when I realized a lot of these guys weren’t guilty of anything at all.”

The government did lie to Neely and did so again in 2003 when he was sent to Iraq to fight a war predicated on ridding the country of its nonexistent weapons of mass destruction. He returned to the US a year later and fell into a deep depression, his mind ravaged by post-traumatic stress disorder.

“I returned to a wife and three beautiful children I did not even know and who didn’t even know the man I came home as,” Neely said, who was only 23 years old when his tour of duty in Iraq ended.

Obama Under Pressure

Neely left the military in 2005. He declined a call to return to active duty in 2007 and received an honorable discharge. He became active in the antiwar movement. Part of his healing process involved making a personal apology to two of the British detainees he had stood guard over during the six months he spent at Guantanamo. He found them via Facebook. Although Neely’s in a better place mentally, he said he’s still not whole.

“There has not been a day that goes by that I have not re-lived what I did or saw in Guantanamo,” he said. “Its time for the Government to close Guantánamo and admit to what took place inside the wire then and only then can this country start to head back towards the morals, values, and principals that it once stood and fought for.”

Carrico, the former Guantanamo prison commander, agrees. So do two-dozen retired generals and admirals who sent a letter to President Obama Monday urging him to fulfill a promise he made after he was sworn into office and shut Guantanamo.

“We understand the political opposition you have faced in closing Guantanamo, but you too bear responsibility for failing to do so,” wrote the retired generals and admirals. “Your policy of holding detainees indefinitely, perhaps forever, without charge or trial, not only stands in the way of closing Guantanamo, but is insupportable in a nation of laws…Terrorists aim to sow fear, and thereby to cause us to change who we are…In the war of ideals, we can only lose if we forfeit ours…We know that you have tried over the past three years to fulfill the important promises you made to the American people in your first days in office, but this is a fight that you and our nation cannot afford to lose.”

At a press briefing Monday, White House Press Secretary Jay Carney told reporters Obama’s commitment to shutting down the detention camp “is as firm today as it was during [Obama's] campaign.”

“We will continue to abide by that commitment and work towards its fulfillment,” Carney said, without elaborating how Obama intended to carry out that promise.

The passage of the National Defense Authorization Act, which Obama signed into law on New Year’s Eve, certainly does not help. The law guarantees Guantanamo will remain open indefinitely as it restricts the transfer of detainees.

Retaliation

Neely, who works in law enforcement in Houston, Texas, said until the prison is closed he will continue to speak critically about the detention facility and talk about the abuses that took place there. He is one of just a a handful of former guards who has come forward over the past decade to talk about Guantanamo.

Truthout has interviewed more than a dozen other former Guantanamo guards over the past year, who have told disturbing stories of abuse they participated in and witnessed, but none will speak on the record because they fear their careers will be ruined or they will be prosecuted by the government for defying a nondisclosure agreement  they signed prior to leaving the detention facility that prohibits them from speaking with the media about Guantanamo. All of the former guards said their service at Guantanamo had traumatized them.

Last year, the US Army told a reservist who spent half his life in the military that he was barred from re-enlisting, asserting he “leaked” classified information to this reporter during an interview in which he spoke candidly about his experiences working as a guard at Guantanamo Bay eight years ago.

For Neely, who also signed a nondisclosure agreement, speaking up has come at a cost.

He said he has been regularly harassed at work, relegated to the night shift and has been accused of being a terrorist sympathizer.

Still, he said he “decided that I needed to tell my story about Guantanamo.”

“How can I as a father tell my children to tell the truth and stand up for what they believe in if I am not willing to do the same?”

The Iraq war isn’t over.

For tens of thousands of soldiers returning from the battlefield, it never will be.

Some of these men and women will turn to alcohol and drugs to ease their mental injuries; some will end up homeless, unemployed and divorced. Some will commit suicide. Most will be forgotten.

That will be one of the lasting legacies of the nearly nine-year-long conflict.

Fortunately, there are journalists like Joshua Phillips who have taken great pains to preserve the memories of a handful of veterans whose lives have been ravaged by the war.

Phillips is the author of “None of Us Were Like This Before: American Soldiers and Torture,” a harrowing book about the torture of prisoners in Iraq and the deep psychological scars it left on the members of one battalion who dispensed pain to their victims.

In this compelling and heartrending on-camera interview, Phillips, who spent more than five years researching and writing “None of Us Were Like This Before,” discusses his investigation into the 2004 death of Army Sgt. Adam Gray, and how it led him to uncover a tragic story about torture’s other victims.

(Image: Lance Page / t r u t h o u t; Adapted: sunilgarg, kzappaster, ~Brenda-Starr~)

This report was written by Jason Leopold and originally published on Truthout

President Barack Obama would like the world to know that the US can do whatever it damn well pleases, thank you very much.

Obama also wants the whole, wide world to get this through its thick skull: only rogue governments that implement a policy of rendition, torture, indefinite detention and extrajudicial assassination are guilty of human rights abuses and should be held accountable.

That’s the clear-cut message Obama articulated late last Friday when he issued a proclamation commemorating the 63rd anniversary of the Universal Declaration of Human Rights.

“All people should live free from the threat of extrajudicial killing, torture, oppression and discrimination, regardless of gender, race, religion, nationality, sexual orientation, or physical or mental disability,” Obama’s proclamation states.

Apparently, the Nobel Peace Prize-winning president doesn’t believe the indefinite detention of detainees at Guantanamo, especially those who have already been cleared for release; or the administration’s refusal to allow prisoners detained and tortured by the US government in Afghanistan, rises to the level of human rights abuses as outlined in his stunningly hypocritical proclamation. Nor does the former constitutional law professor believe that the extrajudicial killing of Muslim cleric Anwar al-Awlaki and propagandist Samir Kahn, US citizens accused of aiding terrorists who were assassinated without due process by a drone strike Obama personally authorized, is a human rights issue.

Obama’s proclamation also contained another embarrassing contradiction: it declared the week of December 10th as Human Rights Week, the same week Congress debated and is set to pass the National Defense Authorization Act (NDAA), a controversial piece of legislation that would give the president the power to indefinitely imprison without charge or trial or a court hearing anyone suspected of terrorist activity in the US.

On Wednesday, White House spokesman Jay Carney said Obama’s senior advisers would recommend to the president that he should not veto the bill, as Obama had promised to do, because Congress made minor changes Monday to the provisions in the legislation related to the treatment of terrorism suspects with which the administration is now satisfied.

When the US voted in favor of the Universal Declaration of Human Rights in 1948, it promised to uphold several ideals, including one that said, “no one shall be subjected to arbitrary arrest, detention, or exile.”

Kenneth Roth, the executive director of Human Rights Watch, said if Obama signs the bill, he will “go down in history as the president who enshrined indefinite detention without trial in US law.”

[UPDATE: The Senate passed the NDAA Thursday afternoon by a vote of 86-13, exactly 220 years to the day the Bill of Rights was ratified. The NDAA will now be sent to Obama where he is expected to sign it into law.]

Obama’s quagmire of contradictions on human rights is laid bare in a powerful and timely new book written by Juan Méndez, the United Nations Special Rapporteur For Torture and Marjory Wentworth, a Pushcart Prize-nominated poet, teacher and longtime human rights activist.

In “Taking A Stand: The Evolution of Human Rights,” Méndez and Wentworth interweave Méndez’s personal story as a lifelong human rights activist and lawyer into human rights themes.

“Each chapter is [centered] around a particular human rights issue, [Méndez's] role in shaping the dialogue around the issue and ideas for the future,” Wentworth said during an online book salon at Firedoglake two weeks ago hosted by this reporter.

Since his first days in office, Obama and Secretary of State Hillary Clinton have promoted the narrative that the US is a human rights leader. But as former Amnesty International Secretary General Ian Martin notes in his introduction to “Taking A Stand,” that assertion has been severely “undermined by [the US government's] inability to rise above political alliances and increasingly by its own direct violations of human rights.”

Obama has severely damaged the US’s standing in the world by refusing to investigate and prosecute the widespread human rights abuses that took place during George W. Bush’s tenure in office, Méndez said he has invited “other nations to follow the U.S. example of impunity for torture” and has provided “rogue regimes with a ready-made excuse for rejecting international community concerns about their own abuses,” Méndez and Wentworth write in a chapter devoted to accountability.

Méndez described Obama’s attitude, during the Firedoglake book salon, as a “twisted version of US exceptionalism,” where the “rules” only apply to “others.” Here’s a fresh example of that type of “twisted exceptionalism”: On Wednesday, the State Department announced that the US government had implemented sanctions against two Iranian officials for committing “serious human rights abuses,” including the indefinite detention of Iranian citizens, in connection with massive protests that took place in the country in 2009 over the disputed presidential election.

“This is the fourth time we have designated individuals and entities under human rights sanctioning authority” under a September 2010 executive order signed by Obama, said State Department spokeswoman Victoria Nuland, a former top aide to Dick Cheney who misled the media about the extent of the CIA’s rendition program and asserted that the Bush administration did not torture detainees. [h/t Jeffrey Kaye]

According to a State Department fact sheet issued in 2010, Iranian “protesters were detained without formal charges brought against them and during this detention detainees were subjected to beatings, solitary confinement and a denial of due process rights at the hands of [Iranian] intelligence officers….”

“In addition, political figures were coerced into making false confessions under unbearable interrogations, which included torture, abuse, blackmail and the threatening of family members,” the State Department’s fact sheet said.

Sound familiar? Under policies sanctioned by Bush, Cheney and Secretary of Defense Donald Rumsfeld, war-on-terror detainees were imprisoned at secret, black site facilities and at Guantanamo Bay without formal charges brought against them. Those prisoners were also subjected to beatings, solitary confinement and a denial of due process rights and were coerced into making false confessions under unbearable interrogations, which included torture, abuse, blackmail and the threatening of family members.

Need another example of the administration’s “twisted version of American exceptionalism”? Last June, the White House issued a statement condemning Hamas for abducting Israeli soldier Gilad Shalit five years ago and holding “him hostage without access by the International Committee of the Red Cross (ICRC), in violation of the standards of basic decency and international humanitarian demands.”

“Abduction,” also known in US intelligence circles as “extraordinary rendition,” and hiding prisoners from the ICRC, sounds familiar as well. Of course it does, the latter was a policy enacted by Bush, Rumsfeld, Cheney and other former Bush officials. In fact, a January 2, 2004, memo drafted for military police and interrogators at Abu Ghraib prison in Iraq and signed by Col. Marc Warren, the top legal adviser to Lt. Gen. Ricardo Sanchez, who was commander of US forces in Iraq, was entitled “New plan to restrict Red Cross access to Abu Ghraib.” The contents of that memo have never been released.

Moreover, in 2004, Rumsfeld admitted that at the request of then-CIA Director George Tenet, he authorized the US military in the fall of 2003 to hide an Iraqi prisoner from the ICRC and other organizations that monitor the treatment of prisoners.

Rumsfeld told reporters at a June 17, 2004, press briefing that Tenet sent him a letter asking the US military to imprison the Iraqi who was believed to be a high-ranking member of Ansar al-Islam, a Kurdish terrorist group suspected of links to al-Qaeda. Tenet further told Rumsfeld to be sure the detainee was kept off the prisoner rolls, which he was for six months.

The White House’s decision to weigh in on Shalit, who Hamas has since released, is another example of the Obama administration’s contradictory stance on human rights whenever Israel’s track record is raised.

In their book, Méndez and Wentworth documented Israel’s own human rights abuses, and they were critical that the US condemned a report of a United Nations investigative team led by Richard Goldstone regarding Israel’s treatment of Palestinians in Gaza. Méndez said he cannot explain why “Israel is generally shielded from effective action on human rights,” by the US, but he does not believe its purely a political decision.

“I suspect the [US government's] reasons are complex and not just political expedience,” Méndez said during the book salon. “But complexity is no excuse in this case, especially because the US could use its influence positively and, in general, I don’t think it does. Israel is by no means the worst offender in the region, nor are some forces innocent of abuse on the Palestinian side either. But the human rights issues are real and Israel’s ability to fend them off with support of the US and other Western governments is not only a problem for the victims of abuse; it is also an obstacle to peace.

Overall, Méndez said Obama’s “failure of leadership” and his decision to “look forward, not backwards,” on human rights abuses that took place during the Bush years is “seen [by foreign government leaders] as a decline in [US] influence and moral authority … that hurts other foreign policy interests as well.”

Speaking of “looking forward,” this is perhaps the best example of Obama’s “twisted version of American exceptionalism”: in March of 2010, Obama spoke to an Indonesian television reporter who queried him about whether he was satisfied the Indonesian government was taking proper steps to address past human rights abuses.

Obama said, “We have to acknowledge that those past human rights abuses existed. We can’t go forward without looking backwards.” (Emphasis added.)

Méndez and Wentworth understand that Obama will never exercise his responsibility as dictated in the Convention Against Torture, and initiate an investigation into past human rights abuses that took place during the eight years George Bush occupied the White House.

“Juan and I feel strongly that you pay for it in the end,” Wentworth said in an interview following the book salon. “I think we’re going to pay a price in ways we don’t even know.”

Méndez agreed, but he still remains hopeful.

“None of us can really hold our breath while we wait for the [US government] to live up to its obligation to investigate, prosecute and punish every act of torture committed by its agents,” Méndez said during the book salon. “The lack of delivery on the promise to have a day of reckoning [which Attorney General Eric Holder had said the public was owed] is truly disappointing. But again, experience shows that issues of accountability do not go away. Of course, it is preferable to have accountability in real time. But justice, even if it comes late, will come and be welcome.”

That brings to mind the maxim, “the wheels of justice grind slowly but exceedingly fine,” which would apply to recent court action in Argentina where a dozen former military and police officials, including a Navy officer who earned the nickname “Angel of Death,” were sentenced to life in prison last month for the kidnapping, murder and torture of leftist activists during the height of the country’s military dictatorship in the 1970s. Méndez was one of the activists tortured. There’s a riveting section in “Taking A Stand” where he describes in detail how his torturers used an electric prod on his genitals and other parts of his body until he begged them to kill him. That he survived and went on to shape the modern human rights movement is nothing short of a miracle.

Méndez’s criticisms of the US government’s human rights record is not limited to its treatment of war-on-terror detainees. He also butted heads with the Obama administration over the military’s treatment of Pfc. Bradley Manning, an Army intelligence analyst who is accused of leaking government secrets to WikiLeaks and faces life in prison. A pretrial hearing for Manning is scheduled for Friday at Fort Meade, Maryland.

Méndez said he became concerned about Manning when he started to hear reports about his abusive treatment, which included being held in solitary confinement for 23-hours a day, during his incarceration at Quantico. Méndez said he had “frank conversation[s] with the [Department of Defense] about the conditions of [Manning's] incarceration” and requested that he be permitted to visit and speak with the soldier confidentially.

“I was allowed to see him but with no guarantees of confidentiality, terms that I could not accept,” Méndez said during the Firedoglake book salon. “I offered to see Manning nonetheless, through his lawyer, if he wanted to see me, but he preferred not to waive his right to a truly private conversation. In the meantime, when he was moved from Quantico to Fort Leavenworth, his conditions changed and since last April he is no longer in solitary confinement. I am still insisting on seeing him. In a few weeks I will release my views on the case, since the exchange of information with the [US government] is essentially over.”

Courtesy Palgrave/Macmillan

This story was written by Jason Leopold and originally published on Truthout.

The photograph on the cover of Andrew Kolin’s book is all too familiar.

Police officers dressed in riot gear, gripping batons, square off against protesters in what appears to be a tense situation that is on the brink of turning violent. Although the photograph was shot during a protest on the streets of Pittsburgh 2009, it’s an image that is now seared into the public’s consciousness following the brutal crackdowns by local law enforcement on the Occupy movement in Oakland and New York City last month.

Important questions have been raised about what role, if any, the federal government has played in dismantling the Occupy encampments around the country and what the protesters and civil liberties groups say is ultimately an attempt to stifle dissent.

While we wait for those answers, Kolin, a political science professor at Hilbert College in Buffalo, New York, has done a masterful job of tracing the origins of the “political repression of mass-based movements” and the rise of the “police state” in his exhaustively researched book, “State Power and Democracy: Before and During The Presidency of George W. Bush.” (Click here to read an excerpt.)

In an interview with Truthout, Kolin said, all police states, “and Germany in the [1930s] is the classic example,” develop by “crushing democracy.”

The goal of a police state, Kolin said, is to “modernize state functions and concentrate control over society through the creation of specialized departments.”

It was Watergate, Kolin said, that became a “dress rehearsal” for the police state under which US citizens currently live.

“There was cause for optimism with the Church Committee hearings exposing the criminality of the Nixon administration,” Kolin said. “But again, as I discuss in my book, the reform that came out of the Church Committee that actually made a police state more possible was the creation of the secret [Foreign Intelligence Surveillance] court, which for the first time, made government surveillance legal. Then, president after president sought to reassert their power post-Watergate in domestic and foreign policy.”

In the introduction to “State Power,” Kolin explains how the national security policies implemented by Bush and embraced by Obama, such as the Patriot Act, which authorized the warrantless wiretapping of US citizens, were the culmination of extraordinary tension between state power and democracy dating back to the founding of the Republic.

The expansion of state power over the course of US history came at the expense of democracy. As state power grew, there developed a disconnect between the theory and practice of democracy in the United States. Ever-greater state power meant it became more and more absolute. This resulted in a government that directed its energies and resources toward silencing those who dared question the state’s authority. Such questioning of state power had emanated as a response to mass-based political movements striving to further democracy with an increase in freedom, especially for the downtrodden. This put mass movements in direct confrontation with the elite politics of policy makers. So, over time, as the US government continued on its course of seeking to increase state power by extending ever-greater control over people and territory, it also meant it worked toward a goal to diminish mass-based political movements.

This is an important history lesson, especially for the generation who became politically aware during Bush’s presidency and view the crackdown on the Occupy protests as somewhat unprecedented.

Kolin argues that the roots of such “political repression” can be traced back to the end of the Revolutionary War, beginning with “the conquest of North America and by the start of the twentieth century,” when the US government began to implement policies “intended to eliminate democracy inside and outside the United States.”

“It is no coincidence that as the state enacted measures to crush democracy, there appeared federal agencies with an antidemocractic mission…,” Kolin writes. “Nonetheless, political repression ebbed and flowed, often determined by historical factors and the ability of progressive movements to affect social change during periods of unrest.”

Kolin said the leaderless Occupy movement, like political uprisings in the US that preceded it, has a simple goal: “the excluded seeking to be included, which is the one thing standing in the way of mass democracy.”

“It’s eerily disturbing how history is once again repeating itself,” Kolin said, as he watches law enforcement, which he noted is beginning to look increasingly “like a civilian branch of the military,” and local government officials are “trampling upon the rights of citizens and doing so in ways that are becoming more violent,” in order to “repress dissent.”

A report published earlier this week by Business Insider may help explain why local police forces are beginning to appear more and more militarized.

Credit a “little-known endeavor called the ‘1033 Program‘ that gave more than $500 million of military gear to U.S. police forces in 2011 alone,” Business Insider reported.

1033 was passed by Congress in 1997 to help law-enforcement fight terrorism and drugs, but despite a 40-year low in violent crime, police are snapping up hardware like never before. While this year’s staggering take topped the charts, next year’s orders are up 400 percent over the same period.

This upswing coincides with an increasingly military-like style of law enforcement most recently seen in the Occupy Wall Street crackdowns.

One member of Congress, however, is speaking up about police tactics used against protesters. On Tuesday, Rep. Jerrold Nadler (D-New York), the ranking member on the House Judiciary Subcommittee on the Constitution, sent a letter to Attorney General Eric Holder urging him to launch a full-scale investigation “into law enforcement activities surrounding the Occupy Wall Street protests and similar events in other cities, to determine whether the unlawful use of force, or the unlawful targeting of individuals [via surveillance] based on their participation in constitutionally protected activities, occurred.”

Still, Kolin is highly critical of the Obama administration for remaining completely silent as disturbing images of peaceful protesters, such as the University of California, Davis, students who were pepper sprayed by campus police as they sat with their arms linked, flashed across television screens and went viral on the Internet.

“We don’t want a government that is representative of the one percent,” Kolin said. “But the silence by this administration speaks volumes and indicates, to me, that this is a movement the government wants to crush.”

However, “in spite of political repression on the federal, state, and local levels, for much of the twentieth century,” Kolin writes in “State Power,” “many mass-based movements persisted for two reasons: one, they appealed to many Americans, and two, as political repression was mounted against these movements, eventually the government believed that the political crisis that triggered such movements had ended.”

Kolin admits that he had believed Obama would eventually “correct the self-destruction of the Bush police state through piecemeal reforms” after he was sworn into office nearly three year ago.

Instead, Obama’s executive power grab went further. To cite one example, the president authorized the targeted assassination of a US citizen living in Yemen, Anwar al-Awlaki, who was suspected of inspiring failed terrorist attacks against the US and being a top member of al-Qaeda in the Arabian Peninsula. Awlaki, despite his US citizenship, was not entitled to due process under the Constitution, the administration concluded.

Kolin said Awlaki’s assassination underscores one of the problems with a two-party system: Democrats and Republicans “fall in line when it comes down to certain issues.”

“Democrats march in lockstep with their Republican counterparts,” Kolin said. “We saw that during the Bush administration and we’re seeing it again when it comes to economic and national security issues under Obama. I don’t see much difference between the two parties. I really don’t. Obama has proven to be just like his predecessors. He’s interested in the powers he inherited from Bush and the new powers he acquired. And he continues to fulfill the wishes of Wall Street and the financial backers who bankrolled his election.”

Kolin said the struggle for economic democracy will form the basis of his future research.

“One cannot have political democracy in the absence of economic democracy,” he said. “By that, I mean that without worker control of the workplace, political decisions will continue to be made by the economic elite.”

In the meantime, he believes the erosion of the police state, where “mass based democracy, which rules for the masses, not political and economic elites,” is still a possiblity and he sees the Occupy movement playing a crucial role.

“Keep in mind that police states are by their inherent nature dysfunctional,” Kolin said. “The Occupy movement is hope of a return to mass democracy as a countervailing force to the police state and to it’s possible breakdown.”

Occupy Wall Street by Lalo Alcaraz

This report was written by Jason Leopold and originally published on Truthout.

The Department of Homeland Security says it is processing a separate FOIA request Truthout files with the agency in October for documents pertaining to Occupy Wall Street.

Guantanamo detainee Fayiz al-Kandari

This story was written by Jason Leopold and originally published on Truthout.

A video released by the Pentagon showing several Guantanamo detainees praying, exercising and playing soccer has angered Kuwaitis, who believe one of the prisoners is a citizen of the country and is being used by the US government as a “propaganda” tool in an attempt to demonstrate the humane conditions of nearly a decade of indefinite detention, according to attorneys representing the man.

The one-minute-and-19-second video, according to a Defense Department spokesman, is “B-roll footage” that was shot on November 4 by Joint Task Force-Guantanamo personnel and provided to the media covering the arraignment at the prison of high-value detainee Abd Al-Rahim Al-Nashiri, the alleged mastermind of the October 2000 bombing of the USS Cole.

The video, which does not show the detainees’ faces, was shot in Camp 6, which houses “cooperative” detainees. The detainees, some of whom are wearing sneakers, shorts and beige and white prison garb, are also seen taking what appears to be a leisurly stroll on the prison grounds.

Air Force Lt. Col. Barry Wingard, a military lawyer who is defending Kuwaiti Fayiz al-Kandari against war crimes charges before the military commission at Guantanamo, told Truthout that it took “all but a couple of seconds to identify my client in the video” through other identifying features that the Pentagon did not obscure. Wingard said al-Kandari is the detainee kicking a soccer ball.

Wingard suggested the Pentagon released the video in an attempt to sabotage his work on al-Kandari’s case. He said the video was posted on the Internet a few days before he arrived in Kuwait to meet with government officials to discuss ways to “facilitate [al-Kandari's] release back to Kuwait’s state of the art rehabilitation center built at the request of the Bush administration, which is currently vacant.” [A previously classified State Department cable, released in September by WikiLeaks, says planning for the rehabilitation center began in September 2008, following a discussion between Prime Minister Nasser Al-Sabah and former Secretary of State Condoleezza Rice in Washington "on the possible role of such a center with respect to Kuwait's four [at the time] remaining Guantanamo detainees.”]

“I first saw the video of my client, Fayiz al-Kandari, when I touched down in Kuwait for a scheduled visit,” Wingard said. “My first thought was that there is no way the United States government sank so low as to show my client to the world, caged like a circus animal. Still, there he was, standing in a chain link, kennel-like enclosure, where he has essentially spent the last ten years without every having been charged with a crime.”

Wingard said word quickly spread in Kuwait that one of the detainees in the video was al-Kandari. He said the message that the US government was trying to disseminate – that al-Kandari and the other detainees featured in the video were in “good health” – has backfired.

“As I traveled around Kuwait, I discovered that people were not seeing the positive image the spin doctors had engineered,” Wingard said. “Instead, they saw a man in a dog cage, cut off from his country, and subjected to injustice for a decade without trial. Thus truth has shone through – and it has had an amazing impact on the steadily declining support the United States had taken for granted here in Kuwait. I can tell you without a doubt, this video puts the inhumanity of Guantanamo into motion unlike any still picture I could have shown.”

A State Department spokesperson did not return calls for comment.

The issue of al-Kandari’s indefinite detention and the other Kuwaiti detainee imprisoned at Guantanamo, Fawzi Al-Ouda, was reportedly one of the talking points during a meeting that took place at the White House in September between Vice President Joe Biden and Prime Minister of Kuwait Sheikh Nasser Mohammad Al-Ahmad Al-Sabah.

A statement released to the media in September by Kuwaiti Ambassador to Washington Sheikh Salem Abdullah Al-Jaber said the prime minister called on Biden to take immediate steps to secure al-Kandari and Al-Ouda’s release. The prime minister also discussed the case with Secretary of State Hillary Clinton and told her it is a priority issue for the Kuwaiti government, according to the ambassador’s statement.

Adel Abdulhadi, al-Kandari’s Kuwaiti-based attorney, told Truthout that the video “has angered every single person I’ve spoken with.”

“Whoever thought it might be a good idea to show our son in a dog kennel should be fired,” he said. “When I saw the video I thought, we must do something after ten years without a trial. As a result I’m organizing a protest outside the US Embassy” on Sunday.

Lt. Col. Todd Breasseale told Truthout the government’s only agenda in releasing the video is to show the world that “Defense Department personnel working in detention facilities operate under a high level of scrutiny and consistently provide the most humane and safe care and custody of individuals under their control.

“It’s important to us and to the global community that we continue to be as transparent as possible in all that we do – while still maintaining very necessary operational security – to show current conditions” at Guantanamo, Breasseale said.

But Daphne Eviatar, a senior associate at Human Rights First’s Law and Security Program, also likened the video released by the Pentagon to propaganda and said it is not a realistic portrayal of the detainees’ lives.

“For years, Human Rights First and other human rights observers have refused to take the [Department of Defense] prison press tours for exactly this reason – because it allows the US government to portray the prison as a great place to live where detainees get lots of exercise, take art classes and work on their resumes,” Eviatar said. “Such tours, and the B-roll video, are designed to distract observers from the fact that these men are being imprisoned indefinitely, most without charge or trial, in a faraway prison where they’re completely cut off from their homes, families and communities. Neither the video nor the prison tours reveal the suffering that they or their families endure.”

Eviatar added that the Defense Department has refused to allow human rights observers and journalists to speak to detainees imprisoned at Guantanamo, many of whom have already been cleared for release or transfer, or Bagram, “the other official and much larger detention center” in Afghanistan and “ask them what their lives are really like there.”

“That in itself negates the positive spin they’re trying to put on an inherently deplorable situation,” she added. “The military shouldn’t be surprised to hear that its video is outraging people in other countries who have lost family, friends and community members due to the US indefinite detention scheme.”

Breasseale said the last time B-roll footage was “updated” was more than one year ago, and he noted the Defense Department works closely with the International Committee of the Red Cross, “which has access to all detainees interned by the Department of Defense.”

Wingard, however, does not believe al-Kandari’s presence in the video is coincidental. He said al-Kandari was transferred to Camp 6 a week or so before the Pentagon said the video was shot. Al-Kandari had spent the past five months in solitary confinement for taking part in a hunger strike to protest the seizure of his “personal belongings,” which included” his “attorney/client information folders,” Wingard said.

“I believe he ended up in the video so the US government could show the Kuwaitis that he was in good health after spending months in isolation,” Wingard said.

Al-Kandari, who speaks English, was previously housed in Camp 1 along with ten other detainees who speak English, are well-educated and whom the DoD had segregated because the agency believed they were “troublemakers” and an “influence” on other Guantanamo prisoners, according to several Guantanamo guards.

Guantanamo officials began the process of permanently shuttering camps 4 and 1 in January and moved all of the detainees interned there to camps 5 and 6 in preparation for an executive order signed by President Obama in March establishing a policy of indefinite detention for dozens of Guantanamo detainees.

Wingard, who holds a top-secret security clearance, said since al-Kandari was moved to Camp 6 he was told by Guantanamo officials that prison personnel “will now be doing a ‘cursory’ review of all written  correspondence between [al-Kandari] and me, which even under the Bush administration was treated as off limits.”

Wingard said, in the past, when he sent mail to al-Kandari at Guantanamo it was received by a Defense Department liaison who “printed it off and put it in sealed envelope which was then given to the government.”

“The government would then unseal the envelope in the presence of Fayiz and hand him the confidential mail,” Wingard said. “Now, instead of opening the mail in front of him, they do a ‘cursory’ review before delivering the mail to him and decide what he should and shouldn’t get. Additionally, they have taken all all our past correspondence to conduct a ‘review’ of each item. I have instructed Fayiz, and my other client, [Afghan] Abdul Ghani, to destroy all our legal correspondence going forward to prevent the government from taking it in the future.”

Breasseale was unavailable to respond to follow-up questions about Wingard’s claims.

In the lead up to al-Nashiri’s military commission trial, the new commander of the Guantanamo, Navy Rear Adm. David B. Woods, authorized the seizure and review of high-value detainees’ legal mail and other materials from the top-secret camp where they reside. The military judge presiding over Nashiri’s tribunal has since ordered an end to the practice.

Al-Kandari, a humanitarian aid worker, who said he was in Afghanistan in 2001 to help repair a mosque and build two wells, was captured by the Northern Alliance in December 2001 and sold to US forces for a bounty. US government officials claimed in a November 2008 military commission charge sheet that al-Kandari was was an adviser to Osama bin Laden, training al-Qaeda recruits and “produced recruitment audio and video tapes which encouraged membership in al-Qaeda and participation in jihad.”

US District Court Judge Colleen Kollar-Kotelly denied al-Kandari’s petition for habeas corpus last year, citing inconsistencies in his statements about his reasons for being in Afghainstan even though she said the reliability of the government’s evidence against him was questionable.

The government’s entire case against al-Kandari, who Wingard said was subjected to “hundreds of ‘enhanced interrogation’ sessions, which included “physical assaults,” sleep deprivation, stress positions, loud music and temperature extremes, is based almost entirely on hearsay evidence obtained from other detainees.

Al-Kandari appealed Kollar-Kotelly’s decision. Oral arguments in the case was scheduled to be heard Friday in the Court of Appeals for the District of Columbia Circuit, but was canceled by the court.

UPDATE: Wingard claims this is another video clip of al-Kandari, seen standing in a cage hanging laundry, that the Pentagon released within the past two weeks. The one-minute, thirty-one second video was posted on YouTube November 7, and has has been viewed more than 18,000 times. According to Wingard, this video has also caused an uproar among Kuwaitis who believe the detainee is al-Kandari. Neither Breasseale nor another Defense Department spokesperson was available Saturday to confirm whether the clip was produced by Joint Task Force-Guantanamo and if it was part of the same B-roll footage provided to the media during Nashiri’s arraignment.