Of course, it’s almost taboo among the most serious peace and justice advocates to cite positive precedents from Jefferson, because he was a slave owner. But Jefferson’s views on the structure of a government don’t actually become less admirable (or more) when we remember the horrors he inflicted on the people at Monticello.

On the other hand, protesting someone like John Yoo (a march and rally are planned) is almost verboten among the comfortable liberals in Charlottesville, because of a Jeffersonian view of free speech as absolutist as the ACLU’s defense of campaign bribery. “We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it,” quoth Jefferson.

Yet this admirable line of thought came from the same enlightenment that gave us this one: “Man will never be free until the last king is strangled with the entrails of the last priest.” In fact, the author of the Declaration of Independence, that lengthy list of crimes committed by King George, would not have approved of the College of William and Mary inviting the King to lecture on law. Jefferson and his fellow revolutionaries would have sought to kill or imprison such a lecturer. Translated into an age of nonviolence, they would have PROTESTED him.

John Yoo’s book “Crisis and Command” discusses Jefferson at length and devotes a chapter to his presidency. Yoo finds much to lament in Jefferson’s opposition to expanded presidential power, and much to praise in Jefferson’s expansions and abuses. I would reverse Yoo’s attitudes, praising what he laments and denouncing what he praises. But I don’t argue with his basic outline of the facts of the matter. I argue with the further expansions Yoo assisted in during his employment at the Justice Department, expansions that went far beyond those of Jefferson and did so in violation of a body of laws and treaties that did not exist in Jefferson’s day.

Jefferson thought a president should only veto a bill if he believed it to be unconstitutional. Today presidents routinely veto bills they simply disagree with. Or they alter bills with signing statements or with memos drafted by people like John Yoo. Or they simply violate the law. While Jefferson did not casually veto or alter laws with signing statements or memos, he did choose to simply not enforce laws based on his interpretation of their unconstitutionality. He claimed equal power with the Supreme Court in making such interpretation, something presidents since him — including Bush — have not tended to assert.

Jefferson favored the frequent use of impeachment, but not purely to protect the legislative branch, rather to advance the interests of a political party led by a president. Jefferson refused to comply with a court subpoena. He launched military operations without Congress, including covertly. In some cases he took unconstitutional actions while Congress was not in session, a situation that does actually provide him with an excuse that presidents don’t have today. In other cases, Jefferson simply acted outside the constitution, claiming to represent the will of the nation. The action Yoo seems to admire most for its brazen lawlessness is Jefferson’s purchase of Louisiana. But Yoo also seems to recognize the immense impact Jefferson had in developing a two-party system and the notion of a president possessing a national policy mandate.

Yet Jefferson was no Dick Cheney. Claiming to act, and plausibly acting, on behalf of majority opinion (or majority wealthy white male opinion) is — at least in retrospect — a dangerous precedent for an official who was supposed to execute the will of Congress. But the Bush-Cheney White House claimed the power to act without even a pretense of acting on behalf of the nation’s people. They were acting simply on behalf of Bush and Cheney. Jefferson worked to limit or avoid a standing military.

He acquired territory by purchasing it. Yoo praises Jefferson for purchasing Louisiana because it was an act of presidential assertiveness. And Yoo blames President James Madison for allowing Congress to lead him into a disastrous invasion of Canada, because Madison was following Congress, just as the Constitution he’d played a central role in writing required him to do. What Yoo misses is that negotiations tend to work and wars tend to be catastrophes no matter who makes the decisions. In comparison with Bush and Cheney, Jefferson was an opponent of the greatest evil there is: war. The Congressional Research Service just released a list of hundreds of overt U.S. military actions. Most of them have been launched by presidents. Most of them have been murderous and criminal catastrophes.

Yoo wrote memos that were treated as secret laws by a president. His memos authorized aggressive war and torture, which have been banned by international treaty and domestic laws since Jefferson’s day. Jefferson honored treaties. Yoo does not. Jefferson made exceptions to his adherence to laws. Yoo proclaims presidential liberty to openly ignore all laws. Yoo has famously gone so far as to argue that a president can crush testicles, massacre villages, or nuke cities. Nuclear weapons and most other weapons of war did not, of course, exist when Jefferson went after pirates without congressional authorization. The level of destruction in war was as small then as the body of law restricting it. Yoo lives in an age of far more evil wars, yet allows no limits on presidential war making. A president could nuke city after city until none remained, according to John Yoo’s theories, which I find it very hard to imagine Jefferson accepting or even hypocritically acting upon.

When pressed, Yoo recognizes the power of Congress to stop a president through defunding or impeachment. But Yoo has never, to my knowledge, opposed Bush’s unconstitutional spending of funds for uses other than those for which they were appropriated. And crimes and abuses must be crimes and abuses even prior to an impeachment and conviction. The partisan system developed during Jefferson’s presidential election makes presidential impeachments very unlikely. In fact, they are only possible when the Congress is controlled by the other party and that other party has not become complicit in the president’s crimes or abuses. The same Justice Department that Yoo worked for argued that a president can violate a law until the Supreme Court says otherwise, even though the Supreme Court cannot possibly rule in a timely manner on every law passed by Congress, and even though the Supreme Court is also corrupted by the party system.

While Jefferson advanced the shift of power from Congress to the White House, not to mention that he owned slaves and held every power over them that the United States military holds over prisoners in Bagram, there is only one thing that it is clear to me Jefferson would have done upon learning that John Yoo had been invited to speak at the University of Virginia. Jefferson would have demanded the resignation of the university president.

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

I guess I may as well get out front of things here. I’m about to fly to Switzerland to lead a panel on how to change pro-capital punishment attitudes in a country at the Fourth Congress Against the Death Penalty, being sponsored by the United Nations in Geneva. And judging from the stories I’ve been reading about the Transportation Security Administration, or at least its Philadelphia International Airport operation, and the Philadelphia Police who backstop the TSA here, I’m afraid I’m liable to be hauled away as a suspected terrorist before I can get on my flight.

Why? Because I will be carrying copies of one of my books, which has the title Killing Time (It’s an investigation into the death penalty case of Philadelphia journalist Mumia Abu-Jamal, and was published in 2003 by Common Courage Press), and more importantly, because I just got a haircut.

Ask the TSA: Terrorist or just a diligent student?

A haircut, you may well ask? Well you see, we just learned that the TSA last fall handcuffed, arrested and held for five hours young Nick George, a 21-year-old Pomona College student on his way back to campus in California, because they found 200 Arab/English language flashcards on his person, and despite his protestation that he is a Middle Eastern Studies major, they decided that he must be a terrorist.

The reason they stopped him in the first place, though, according to Philadelphia Police, who were called in to take him into detention, is that the TSA and police were suspicious that George’s hair was shorter than it appeared in the photo on his Pennsylvania driver’s license. “That,” as Polict Lt. Louis Liberati told the Inquirer, is “an indication sometimes that someone may have gone through a radicalization.”

Damn. Just last week, I decided that my shaggy grey locks and Santa-like beard were becoming too unruly, so I got out the old electric hair-clipper and gave myself a very short buzzcut. It hasn’t changed my politics, but I sure look radically different–and I must say that my hair and beard are shorter than they appear on either my driver’s license or my passport.

Now, if the bright bulbs on the TSA at Philly’s airport security checkpoint decide that my haircut means I look “radicalized” and need closer inspection, and if they then decide to check through my carry-on luggage, they will inevitably stumble upon the copies of my second book, which I’m bring to Geneva to sell to interested participants at the Congress. As soon as they see the title, “Killing Time,” I figure they’ll freak. And if they read the subtitle, which says, “An investigation into the death row case of Mumia Abu-Jamal,” they will see that name and immediately flash “Arab! Arab! Arab!” although of course Mumia, aka Wesley Cook, is an African American native of Philadelphia.

That won’t help me, though, if the TSA cuffs me and turns me over to the tender mercies of Philly’s Finest, because Mumia Abu-Jamal is public enemy number one for the police union, the Fraternal Order of Police, whose members are dedicated to ensuring this man’s execution. They will not be kindly disposed to a writer whose book argues that Abu-Jamal’s trial was a kangaroo court sham rife with racism, prosecutorial misconduct and perjured testimony, that his appeals were subverted by blatant judicial prejudice, and that he may not even have been guilty at all of the crime of killing a white police officer.

Of course, it could get worse for me. Early last month, another local student flying home from the holidays to college, 22-year-old Rebecca Solomon, had a Philadelphia Airport TSA worker, “as a joke,” slip a plastic bag of some unidentified white powder into her carry-on bag, which he was inspecting after pulling her, allegedly at random, from the security line for a special inspection. “Where did you get it?” he asked her, causing the young woman to totally freak out. At that point, after letting her sweat and telling her things would be all right if she just answered “honestly,” the TSA goon reportedly smiled and said, “just kidding.”

Holy crap! Bad enough that someone in that kind of position of authority would think of that as a joke, but what if it hadn’t been? What if it had been coke, and he’d decided to claim he actually found something that he had really planted in the bag himself? How easy it would be in this mad, terror-crazed America, to get a jury to send someone like Solomon up for 10 years on a faked drug charge (the Philly Police were caught doing just this on a wide scale in a 1990s scandal prosecuted by the US Attorney’s Office)? Or, had the bag contained some explosive powder, how easy to send her packing to Guantanamo on a faked terrorism charge?

Luckily, the jerk who pulled that last stunt was fired by the TSA, but not, apparently, the guy who cuffed a young Middle Eastern Studies scholar and kept him from making his flight.

And then there’s Nadine Peligrino, a 57-year-old Baton-Rouge businesswoman and Philadelphia native, who was at the Philly airport preparing to fly home with her husband from a visit to family and friends. Back in July 2006, she was, for some unknown reason, selected for special attention by the alert agents of the TSA. As they started picking through her bag, the fastidious woman, who used to teach public speaking and semantics at Penn State and Trenton College, asked that the the TSA inspectors put on new surgical gloves.

The over-enthusiastic TSA inspectors were at the time pawing through her make-up, sniffing at her lipstick and fingering her undergarments (ahead of the game there apparently, they were already looking for explosive underpants!), and she didn’t want any unwanted germs. She claims the agents got irritated at her, especially when she asked them to put her things back in the bag the way they found them.

They didn’t–tossing everything together in a pile. When she stormed out of the private room where the screening had been conducted, the agents claim she hit them with her purse. She was charged with assault, was arrested by Philly police, and spent 17 hours in the can. Her case was recently tossed by a Philadelphia court because even though her attorneys had requested the security tapes of the incident from the TSA, the TSA destroyed them.

The judge, Municipal Judge Thomas Gehret, didn’t take kindly to the TSA lawyer’s explanation that they allowed the routine destruction of the recording after 30 days “because most of the incident took place outside of the camera’s view” and because the city of Philadelphia “couldn’t afford” the cost of storing such records. As the judge said, “With all the stuff that is happening, I would think you’d want to keep it – you could keep that forever.”

He scoffed at the TSA’s lame expense excuse, noting correctly that such digital records can fit on one DVD.

So there you have it. Cut your hair in Philadelphia and to the alert agents of the TSA and the equally alert Philadelphia Police you are a potentially radicalized terrorist. (Geez, and I already went through that garbage back in the ‘60s, when my long hair used to routinely get me harassed by police. So I guess it’s “long hair and beard = Commie” and “short hair and beard = Jihadi”). Carry language flash cards, or perhaps a book with an incindiary title, and you’re a potential terrorist. Get the wrong TSA agent, and you may even end up having some terribly incriminating substance planted in your bag. And try to prove misbehavior or worse by the TSA and they’ll casually destroy the evidence.

Ahead of this flight, I have memorized the number of the Philadelphia ACLU.

Wish me luck!

Dave Lindorff is a Philadelphia-based journalist. He is author of Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2003) and The Case for Impeachment (St. Martin’s Press, 2006). His work is available at thiscantbehappening.net

In the hope of making the list more readily accessible — and searchable — than it is through a poorly photocopied Pentagon document, I reproduce it as a separate web page here, with commentary on some the prisoners I have been able to identify. This is very much a work-in-progress, of course, as the state of knowledge regarding Bagram is akin to that regarding Guantánamo back in 2005, before the prisoner lists and 8,000 pages of documents were released that allowed me to research and write my book The Guantánamo Files, and to begin a new career as a full-time journalist on Guantánamo and related issues.

In an article accompanying this post, “Dark Revelations in the Bagram Prisoner List,” I examined what the list — which contains only the prisoners’ names, and not their nationalities or the date and place of their capture — revealed about the small number of foreign prisoners rendered to Bagram from other countries, three of whom are currently waiting to see if the Court of Appeals will overturn the right to habeas corpus that was granted to them by Judge John D. Bates last March, and raised questions about the whereabouts of other known “ghost prisoners” who do not appear to have been included on the list.

In an article to follow, I’ll examine how the list reveals not only that around 3,000 prisoners have been held at Bagram in the last six years, but also how the majority of the prisoners listed were seized in 2008 and 2009 — and I’ll examine what this means with regard to the US administration’s detention policies and the Geneva Conventions, which were discarded by George W. Bush and have clearly not been reintroduced by Barack Obama.

Although I believe that I have had some success tracking down the stories of some of the 100 or so prisoners on the list who have been held at Bagram for between three and seven years, I have found few clues as to the identities of the majority of those listed, who, as mentioned above, were seized in the last two years. Most reports — by the US military or the media — of raids or skirmishes that led to the capture of those held have not furnished the names of those seized, and on the rare occasion that names have been provided it has tended to be because they are regarded as significant figures.

I have no idea whether the allegations against these men are true, but, more importantly, I have not failed to notice that the majority of the prisoners (often men identified by only one name) are clearly not significant figures at all, and my fear — which, I have no doubt, will be confirmed when more information emerges — is that many of them will be revealed to be victims of the same chaotic approach to the capture of prisoners that has done so much to lose the battle for the “hearts and minds” of the people of Afghanistan and Iraq for the last eight years, and which, with regard to the 218 prisoners seized in Afghanistan between 2001 and 2003 and sent to Guantánamo, I chronicled in The Guantánamo Files.

One sign that this is indeed the case was reported on NPR last August, when NPR’s Pentagon correspondent Tom Bowman explained how Maj. Gen. Doug Stone had recently been sent to Afghanistan by Gen. David Petraeus, the overall commander of Afghanistan and Iraq, because he “liked the way Stone revamped the detention centers in Iraq, how he changed them for the better.” Bowman explained that Stone “went to Afghanistan with a team, interviewed detainees, visited detention facilities,” and produced a 700-page report, in which he estimated that “as many as 400 of the 600 held at Bagram can be released,” explaining that “many of these men were swept up in raids” and “have little connection to the insurgency.”

Bowman added that Maj. Gen. Stone “wants to focus on rehabilitation, just like he did in Iraq where he ran the detention system there. He had 21,000 detainees. But he found that most of these Iraqi detainees — as many as two-thirds — were not radicals, but mostly illiterate and jobless young people. Some were innocents and others worked for the insurgency because they just needed the money. And Stone worried that detaining them was only making matters worse, actually turning them into radicals.”

As Stone explained to NPR at the time:

Now you’ve got a bunch of moderates who really shouldn’t be in there in the first place. And I can hold them forever, but eventually they’re going to say, “Why are you holding me? What’s the fairness in this?” And eventually they’ll say something about America that we don’t want to hear. They’re going to say, “Wait a minute, you’re not here to better the population, you’re here to conquer us and you’re taking me hostage.”

If you have any further information about any of the men on this list, please feel free to email me, and I will incorporate the information into the list.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Photo/Wikimedia

From the ACLU:

A federal court found on Wednesday that, based on the facts presented to it so far, the Library of Congress likely violated Col. Morris Davis’s rights when it fired him from his job at the Library’s Congressional Research Service (CRS) because of opinion pieces he wrote about the Guantánamo military commissions system that ran in the Wall Street Journal and the Washington Post in November. [For background, please see here and here.]

The court denied Davis’s request for an immediate injunction to compel the Library to reinstate him, however, finding that Col. Davis had not yet demonstrated the irreparable injury necessary for an injunction because Davis might be able to recover monetary damage in the future.

“While we’re disappointed that the court missed a chance to immediately right this wrong, the court’s ruling makes clear that the facts presented to it show that the Library likely violated Col. Davis’s rights when it fired him for exercising free speech. We look forward to the day when Col. Davis’s rights are restored,” said Aden Fine, staff attorney with the American Civil Liberties Union First Amendment Working Group. “Col. Davis didn’t give up his right to express himself about the military commissions when he went to work for the Library of Congress.”

The ACLU filed a lawsuit on behalf of Davis against Daniel Mulhollan, Davis’s supervisor at CRS, and James Billington, the Librarian of Congress, charging that CRS violated Davis’s right to free speech and due process when it removed him from his position as the Assistant Director of the Foreign Affairs, Defense and Trade Division at CRS for speaking as a private citizen about matters of public concern having nothing to do with his responsibilities at CRS. Both pieces were written by Davis in his personal capacity, made clear that he was writing as a private individual and former chief prosecutor of the military commissions and made no mention of CRS. Davis wrote the pieces on his home computer during non-work hours.

The ACLU had asked Judge Reggie B. Walton of the U.S. District Court for the District of Columbia to issue an immediate injunction to compel the Library to reinstate Davis to his former job and block it from hiring a permanent replacement for that position in the interim. While Judge Walton declined to issue the injunction, his ruling made clear that Col. Davis has a right and grounds to make a claim that the Library violated his rights.

“While I’m disappointed that the Court didn’t immediately take the necessary steps to right this wrong and stop the Library from firing me, I am hopeful the ultimate outcome of this case will recognize my right to free expression,” said Davis. “I will continue the fight to get my job at CRS back, although it’s a fight I never should have had to undertake.”

Judge Walton’s decision is available online here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo/Wikimedia

So much for the First Amendment.

Morris Davis, the retired Air Force Colonel who served as the Chief Prosecutor of the Military Commissions at Guantánamo from September 2005 until his resignation in October 2007, has just lost his job at the Congressional Research Service (a branch of the Library of Congress) for writing, in his personal capacity, an op-ed for the Wall Street Journal, in which he drew on his wealth of experience of the Commissions to criticize the Obama administration for its decision to prosecute some Guantánamo prisoners in federal courts, and others in Military Commissions.

Davis also wrote a letter to the Washington Post, in which he criticized former Attorney General Michael Mukasey for scaremongering about the administration’s decision to try Guantánamo prisoners in federal courts, and he was admonished for that too.

In a letter dated Nov. 20, Daniel P. Mulhollan, the director of CRS, told Col. Davis that he had not shown “awareness that your poor judgment could do serious harm to the trust and confidence Congress reposes in CRS,” and notified him that he would not be kept on after his one-year probationary period at CRS ends on Dec. 21.

The ACLU immediately stepped in, sending a letter on Friday to Dr. Jim Billington, the Librarian of Congress, arguing that “CRS violated the First Amendment when it fired Davis for speaking as a private citizen about matters having nothing to do with his job there, and that CRS must reinstate Davis to his position in order to avoid litigation.”

Aden Fine, staff attorney with the ACLU First Amendment Working Group, said, “The First Amendment protects Col. Davis’s right to speak and write as a private citizen about issues on which he has personal knowledge. Col. Davis didn’t give up his right to express his opinions and first-hand knowledge about a matter of such public importance when he left the military commissions system and went to work at CRS.”

In correspondence over the weekend, Col. Davis reinforced the ACLU’s views, explaining:

I am the head of the Foreign Affairs, Defense, and Trade Division at the Congressional Research Service (one of five CRS research divisions) at the Library of Congress.  My division does not now nor has it ever had responsibility for providing Congress with advice on military commissions; that responsibility resides with the American Law Division … The Library of Congress has a regulation on outside activities for staff and it “encourages” outside writing and speaking on topics outside the staff member’s area of responsibility and the Congressional Research Service has a similar policy … In short, it was clear that I was prohibited from expressing my opinions publicly on matters within my area of responsibility, but I believe I retained the same right as all citizens to express opinions on matter outside the scope of my official duties.

He added:

The First Amendment guarantees the right of free speech and the Supreme Court has long recognized that public employment does not override that right (although regulation of speech is permissible when related to an employee’s official duty … and as noted, I have absolutely no official duty connected to military commissions). It is ironic that our offices are located in the James Madison Building, which is named for the “Father of the Constitution” and the primary architect of the Bill of Rights who led the effort to secure the right of free speech. I suspect Mr. Madison would be surprised to learn that the right he cherished is denied those working in the building that bears his name.

Morris Davis and the ACLU are right, of course, and I hope that Davis is reinstated. Even aside from the fact that he should be entitled to express his personal opinions under his First Amendment rights, it is difficult to see how his published comments could possibly be construed as demonstrating “poor judgment” that “could do serious harm to the trust and confidence Congress reposes in CRS.”

In his Wall Street Journal article on November 10, for example, Col. Davis stated only that the administration’s decision to try some prisoners in federal court and others in Military Commissions was “a mistake.” As he explained, “It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantánamo and justice are mutually exclusive.”

And in his letter to the Washington Post, he chided former AG Mukasey for claiming that the decision to try prisoners in federal courts “comes down to a choice between protecting the American people and showcasing American justice,” and also for implying that the Commissions were “essential to keep detainees from returning to terrorism.” As he added, “The Geneva Conventions permit detaining the enemy during armed conflicts to prevent them from causing future harm. Criminal trials punish past misconduct. Suggesting that the choice is either criminal prosecution or freedom is false.”

Ironically (given his subsequent treatment), Col. Davis’s comments about the Commissions were actually rather constructive, as he pointed out that the administration “could legitimately choose to prosecute detainees in either forum — federal courts or military commissions — and satisfy its legal obligations,” noting only that “The problem is trying to have it both ways.” He also explained, “It is not as if double-standard justice is required to keep suspected terrorists off our streets. Those detainees who cannot be prosecuted can still be detained under rules the administration approves — likely in the next several months — for the indefinite detention of those who pose a threat to us during this ongoing armed conflict.”

Jut as ironic is the fact that Davis’s dismissal follows nearly a year at CRS in which he has, in fact, been the soul of discretion regarding his former role as the Chief Prosecutor of the Commissions, the politicization that drove him to resign, and the comments he made in February 2008 that led to the immediate resignation of William J. Haynes II, the Pentagon’s Legal Counsel, even though countless journalists (myself included) would dearly love to talk to him about these matters.

Arguably, no one knew more — or, at least, felt more keenly — the politicization of the Commission process in 2007, after the system was revived by Congress in the fall of 2006 (following a Supreme Court ruling in June 2006, which found that it violated both the Geneva Conventions and the Uniform Code of Military Justice).

Detailed accounts of Davis’ resignation — and his subsequent explanations of his reasons for doing so, which strike at the heart of the Bush administration’s torture regime, and its attempts to prosecute the victims of torture over Davis’s objections — can be found, in particular, in my article, “The Dark Heart of the Guantánamo Trials,” but to conclude this account with a concise explanation, it is worth noting the following passages taken from that article:

[I]n a blistering op-ed in the Los Angeles Times, two months after his resignation, Col. Davis stated, “I was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.”

[Col. Davis] explained that the particular trigger for his decision was [a] memo … informing him that he had been placed in a chain of command under Haynes. Stating that he resigned “a few hours after” being informed of this, he mentioned that “Haynes was a controversial nominee for a lifetime appointment to the US 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.” He added, “I had instructed the prosecutors in September 2005 [shortly after taking the job] that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned.”

In February 2008, Col. Davis told Ross Tuttle of the Nation about a conversation he had with Haynes in August 2005:

“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes's] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”

This, I’m sure you’ll agree, is far more explosive than Col. Davis’s op-ed and letter regarding the Military Commissions, but even had he chosen to talk about these matters, he should have been free to do so. The fact that he has not is a loss for those of us who wish to see the Bush administration held accountable for its crimes (and who are keen to follow the chain of command from Haynes, via Susan Crawford, the Commissions’ Convening Authority, to Dick Cheney and David Addington), but it also provides another demonstration that, when it came to exercising his freedom of speech whilst employed by the CRS, Col. Davis had no intention of demonstrating “poor judgment” at all.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

“It is of utmost importance to me that those who were responsible for the attacks of 9/11 face a court,” says Adele Welty in the ACLU video. Her son was a New York firefighter killed at the World Trade Center.

“It’s very important to me that we get the right people,” says John Leinung, whose stepson was killed while working in the Twin Towers. “That the right people are punished or held to account for what happened on 9/11.”

Pat Perry, whose son was a police offer killed on 9/11, says she would rather see the Guantánamo detainees who have been held without charge “appear in open court where we can all sift out what we feel is really the truth and the judges can make a decision based on our Constitution.”

These 9/11 family members all say they agree that holding detainees without charge in Guantánamo is a betrayal of American values and they look forward to true justice being served in federal court.

“My son gave his life to save those trapped in the Twin Towers,” Welty says, “and it does not honor him that we violate our Constitution in retaliation for what happened on September 11.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Their views range from cautious optimism to total condemnation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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