In reviewing the columns over the past few years, we wrote against racism and animal cruelty. But, there’s still racism and animal cruelty, so we’ll still have to speak out on these critical social issues.

We wrote about tolerance and the acceptance of all races and religions. But, a large number of Americans apparently didn’t get the message, so we’ll have to try harder this year.

We wrote about the continued destruction of the environment and of ways people are trying to save it. Environmental concern is greater, but so is the ignorant prattling of those who believe global warming is a hoax.

We wrote against government corruption, bailouts, tax advantages for the rich and their corporations, governmental waste, and corporate greed. But, since they still exist, we’ll have to continue speaking against those as well.

We wrote about the effects of laying off long-time employees and of outsourcing jobs to “maximize profits.” But until Americans realize that “cheaper” doesn’t necessarily “better,” we’ll continue to have to write why exploitation knows no geographical boundaries.

We wrote in support of the rights of workers, for better working conditions and benefits at least equal to their managers. We didn’t expect to see anything change, but we were hopeful that a small minority of business owners who do respect the worker would influence the rest. Until that happens, we’ll still have to write about labor issues.

We wrote in support of helping the unemployed, the homeless, those without adequate health coverage—and against the political lunatics who continue to deny the disenfranchised and marginalized the basics of human life. Unfortunately, not much has changed over the past few years.

For many years, we had written about the need for health reform. At the end of last year, Americans got a partial victory, but there is still much more that needs to be done.

We wrote against the media’s fixation with celebrity skanks and scandals. We doubt anything will change this year, but we’ll still comment upon the media’s neglect of what’s important—and their fascination with what isn’t.

We wrote about why newspapers and magazines died, why the rest have downsized their staffs and the quality of their news product. We doubt anything will change this year, but we still have to bring the issues to the public.

We wrote about problems in the nation’s educational system, especially the failure to encourage intellectual curiosity and respect the tenets of academic integrity. But there are still those who believe education is best served by a program manacled by teaching-to-the-test mentality.

We had written forcefully against the previous president and vice-president when they strapped on their six-shooters and sent the nation into war in a country that posed no threat to us, while failing to adequately attack a country that housed the core of the al-Qaeda movement. We wrote about the Administration’s failure to provide adequate protection for the soldiers they sent into war or adequate and sustained mental and medical care when they returned home.

We wrote about the Administration’s belief in the use of torture and why it thought it was necessary to shred parts of the Constitution. Fortunately, last year, we saw a new administration that recognizes that torture is not only wrong but counter-productive to acquiring good information, and that the Constitutional fabric of the United States must be preserved, no many how many threats are made upon it. Unfortunately, at all levels of government, Constitutional violations still exist, and a new year won’t change our determination to bring to light these violations wherever and whenever they occur.

The hope we and this nation had for change we could believe in, and which we still hope will not die, has been diminished by the reality of petty politics, with the “Party of No” and its raucous Teabagger mutation blocking social change for America’s improvement.

We really want to be able to write columns about Americans who take care of each other, about leaders who concentrate upon fixing the social problems. But we know that’s only an ethereal ideal. So, we’ll just have to hope that the waters of social justice wear down, however slowly, the jagged rocks of haughty resistance.

Walter Brasch is a professor of journalism at Bloomsburg University. His most recent book is Sinking the Ship of State: The Presidency of George W. Bush. He can be reached at brasch@bloomu.edu.

Tony Blair at the World Economic Forum Annual Meeting Davos 2009. Photo by Andy Mettler/flickr

Compare Tony Blair’s latest confession to mass murder with Bush’s.

The BBC has just aired an interview of Blair in which he was asked whether he would have attacked Iraq even if he had known there were no “weapons of mass destruction” there. Blair replied:

“I would still have thought it right to remove him.”

Him is, of course, Saddam Hussein. And of course Blair did know that Iraq had no serious weapons and that any such weapons were not Bush’s real motivation. The Downing Street Minutes record a meeting at which Blair was informed of that fact. The White House Memo (from Jan. 31, 2003) does the same.

Blair tells the BBC that he would have gone to war because Iraq posed a “threat to the region.” Never mind that the Downing Street Minutes record the Foreign Secretary informing Blair that, “Saddam was not threatening his neighbours, and his WMD capability was less than that of Libya, North Korea or Iran.”

And never mind that in the same meeting the Attorney General told Blair, as he told him again just afterwards in a letter, that regime change was not a legal basis for war.

Back on Dec. 16, 2003, ABC News aired an interview in which Diane Sawyer asked George W. Bush about the claims he had made about “weapons of mass destruction,” and he replied:

“What’s the difference? The possibility that [Saddam] could acquire weapons, if he were to acquire weapons, he would be the danger.”

Yes, what’s the difference?

No big deal.

Just a million human beings killed and four million displaced.

Iraqi deaths as a result of the invasion and occupation, measured above the high death rate under international sanctions preceding the attack, are estimated at 1.2 million by two independent sources (Just Foreign Policy’s updated figure based on the Johns Hopkins/Lancet report, and the British polling company Opinion Research Business’s estimate as of August 2007).

According to the United Nations High Commissioner for Refugees (UNHCR), the number of Iraqis who have fled their homes has reached 4.7 million.

If these estimates are accurate, a total of nearly 6 million human beings had been displaced from their homes or killed. Many times that many have certainly been injured, traumatized, impoverished, and deprived of clean water and other basic needs.

Now let’s compare the reaction to Blair’s confession in the UK with the reaction to Bush’s in the United States. First Blair. AFP reports:

“Lawyers representing the deposed Iraqi leadership said they would seek to prosecute Blair following his remarks, while one newspaper commentator said it was a ‘game-changing admission’ for the ongoing official inquiry into the war.

“Former UN weapons inspector Hans Blix added: ‘The war was sold on the WMD, and now you feel, or hear that it was only a question of deployment of arguments, as he said, it sounds a bit like a fig leaf that was held up.’

“Blair is due to give evidence to the inquiry into the war, led by former civil servant John Chilcot, early next year, and the commentator in the Sunday Telegraph said the investigation’s focus must now change. ‘Mr Blair’s game-changing admission gives them a licence to be tougher and more prosecutorial,’ he wrote, a call echoed by campaigners at Stop the War Coalition, who urged Chilcot’s inquiry to recommend legal action against Blair.

“Professor Philippe Sands, a leading international lawyer, said he believed Blair’s comments had left him vulnerable to legal proceedings.”

Now Bush in the United States:

[Sound of crickets chirping.]

Actually, the U.S. corporate media did have a response to Bush turning the WMD claims into a joke at a Washington press-politico dinner party in 2004 (when he showed slides of himself looking under chairs for Iraq’s WMD): they laughed along with him and congressional leaders.

And yet, a grassroots movement has been created in the United States that is going to be taking advantage of every opportunity growing out of the prosecution of Bush’s poodle to hold the poodle’s owner responsible.

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.

An American guard walks along the exterior of a camp for Chinese Uighur detainees at the U.S. military prison in Guantanamo Bay, Cuba. (John Moore/Getty Images)

This story was reported by ProPublica’s Dafna Linzer

Much has occurred today with regards to Guantanamo Bay and many decisions are yet to come.

But there is another milestone worthy of note: Today marks the eighth anniversary of the creation of the legal foundation for the prison and the second-tier justice system established to try terrorism suspects there.

On Nov. 13, 2001, President George W. Bush signed what has become known as Military Order No. 1 in what he termed a Global War on Terrorism. Without informing his national security adviser, his secretary of state, his chief of staff or his communications director, Bush approved what would appear three days later in the Federal Register as: “Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.”

The few people inside the former administration who knew about the order were instrumental in its creation, including former Vice President Dick Cheney, his lawyer David Addington, former Secretary of Defense Donald Rumsfeld, former Attorney General John Ashcroft and a young, and then unknown, lawyer inside the Justice Department named John Yoo.

The order created a separate track of justice for any foreign citizen picked up on a global battlefield with the Pentagon serving as jailer, prosecutor and judge.

The findings, drafted in secret, also laid the way for many of the asserted war powers that the Bush administration later relied on.

“It was a foundational building block of the war on terror’s legal architecture,” said Matthew Waxman, a professor at Columbia Law School who worked on detainee issues during the Bush administration.

But those blocks began to crumble — under legal challenge, political opposition and global outrage over a prison that President Obama would come to describe as a stain on America’s “moral authority.”

Detainees began arriving in Guantanamo two months after Bush signed the order and almost immediately world leaders lined up to condemn the facility. In a landmark 2006 ruling, the Supreme Court ruled that the military commission system that had been in place for Guantanamo Bay violated U.S. and international law, and that the Geneva Conventions applied to the detainees.

Detainees now have rights to challenge their detention and the military commissions have been revamped.

All told, since Military Order No. 1 came into effect, the prison at Guantanamo has ballooned in size and notoriety. Nearly 800 detainees have been housed there. Six have died there; more than 500 have gone home. More than 200 are still there, in limbo.

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.

David Safavian

Former General Services Administration (GSA) Chief of Staff David H. Safavian was sentenced Friday to one year in prison on charges of obstruction of justice and making false statements in connection with the investigation into the activities of former Washington lobbyist Jack Abramoff.

In addition to the prison term, Safavian was sentenced today to two years of supervised release by U.S. District Court Judge Paul L. Friedman of the District of Columbia.

Safavian was found guilty by a federal jury in June 2006 of obstruction of justice and making false statements, but the verdicts were later vacated by the Court of Appeals for the D.C. Circuit and remanded for a new trial. A federal jury once again convicted Safavian of one count of obstruction of justice and three counts of making false statements on Dec. 19, 2008.

The jury in the second trial heard evidence that while Safavian assisted Abramoff in connection with the lobbyist’s attempts to acquire GSA-controlled properties, Abramoff took him on a luxury golf trip to Scotland and to London. The jury found that over the span of three years, Safavian made false statements in an attempt to conceal the fact that around the time of the golf trip he aided Abramoff with business before the GSA. The false statements included statements made to a GSA ethics officer and a GSA Office of Inspector General (GSA-OIG) Special Agent as well as falsely certifying a financial disclosure form.

The jury heard evidence at trial that Safavian’s efforts to cover up the assistance he provided Abramoff continued after he left the GSA in November 2004 to become the Administrator for the Office of Federal Procurement Policy at the Office of Management and Budget. The jury found that in May 2005, Safavian made false statements to an FBI Special Agent investigating Abramoff’s lobbying activities. According to evidence introduced at trial, Safavian told the FBI agent that he was unable to assist Abramoff with GSA-related activities around the time of the golf trip because he was a new employee at GSA.

Abramoff pleaded guilty in January 2006 to charges of conspiracy, honest services mail fraud and tax evasion and was sentenced in September 2008 to four years in prison in addition to the 22 months he served prior to the sentencing date.  To date, 20 individuals, including lobbyists and public officials, have pleaded guilty, been convicted at trial, or are awaiting trial in connection with the ongoing investigation into the activities of Abramoff and his associates.

Even more crucially, the judges’ rulings were allowing justice to be seen to be done, unlike the secretive interagency Task Force established by Barack Obama on his second day in office, whose deliberations are, sadly, as inscrutable as those of Obama’s predecessor, even though the Task Force has at least taken the time to consult with lawyers and other experts.

As I recently reported in a series of three articles (here, here and here), despite persistent obstruction from the Justice Department, where Bush-era officials have been behaving as though Dick Cheney is still breathing down their necks, judges had, by the end of July, reviewed 33 cases, and in 28 of those had ruled that the government had failed to establish, “by a preponderance of the evidence,” that it was justified in holding the men.

The judges concluded that, amongst other failings, the government was relying on information provided by dubious informers, on multiple levels of hearsay that failed to stand up to outside scrutiny, and on a supposed “mosaic” of evidence from various sources that was also unconvincing.

Nevertheless, although these rulings confirmed what those, like myself, who have been studying Guantánamo in depth for many years, have always maintained — that the majority of the prisoners are either innocent men seized for bounty payments (or through the incompetence of U.S. forces and other government agencies) or low-level Taliban foot soldiers recruited to help the Taliban defeat Afghanistan’s Northern Alliance in an inter-Muslim civil war that had nothing to do with al-Qaeda or the 9/11 attacks — the courts still face a number of peculiar problems.

These problems have arisen not only because almost all of the government’s supposed evidence consists of the inherently dubious statements of informers, of multiple levels of hearsay and of feeble “mosaics” of intelligence (as mentioned above), but also because when the Supreme Court granted the prisoners constitutionally guaranteed habeas corpus rights in June 2008, the justices failed to provide a clear definition of the extent to which prisoners were required to be involved in al-Qaeda and/or the Taliban to have their habeas appeals refused.

The “gossamer thin” case against Adham Mohammed Ali Awad

The resultant confusion was on full display in August, when three rulings were made. In the first, on August 12 (PDF), Judge James Robertson denied the habeas appeal of Adham Mohammed Ali Awad, a Yemeni prisoner, even though he conceded that “The case against Awad is gossamer thin,” and added, “The evidence is of a kind fit only for these unique proceedings and has very little weight.”

This was Robertson’s first habeas ruling, and in the hands of another judge, the ruling may well have tipped the other way. Certainly, the case was as “gossamer thin” as Robertson declared. Awad, who was just 19 years old at the time, was seized in Mirwais Hospital in Kandahar, Afghanistan in late 2001. According to his own account, he had “traveled to Afghanistan in mid-September 2001 in order to visit another Muslim country for a few months,” but in early November 2001 “was injured and knocked unconscious during an air raid while walking through a market in Kandahar.”

When he woke up in the hospital, he said, he discovered that he had lost his right foot, “that he was heavily medicated, floated in an out of consciousness, slept constantly, and could barely sit up.” He added that he “remained in this condition until his capture.”

Over the long years of his detention, as I explained in a profile of Awad last year, the U.S. authorities have claimed that he “stated he went to Afghanistan to become a fighter,” have suggested that he received injuries “in a two-car collision, involving ten individuals, while trying to avoid coalition air strikes,” and have also claimed that he, “along with seven other Arabs suspected of being al-Qaeda, were reportedly armed with weapons and used a hospital as a safe haven to elude coalition forces.”

These allegations, which surfaced in the Unclassified Summary of Evidence during Awad’s Combatant Status Review Tribunal at Guantánamo in 2004, formed the basis of the government’s case in court, even though, by 2006, in a review board at Guantánamo, the authorities had dropped all mention of the car crash, Awad’s supposed al-Qaeda associates, and his involvement in the siege, and, instead, suggested only that he was “captured on 2 November 2001 when he was injured near the airport in Kandahar.”

Judge Robertson perceived that Awad’s case “relie[d] mostly on weaknesses and holes in the government’s evidence,” which, as noted above, he was swift to condemn for its “gossamer thin” nature, but although he noted that the government “relie[d] mostly on newspaper articles” for background information about the hospital siege, which took place from early December to late January and ended with the deaths of the seven al-Qaeda fighters, and although he gave “no weight” to the “only first hand evidence offered by the government” — an interview with a man (whose name was redacted), who “claimed that he led the group that had taken Awad into custody”, whose report he dismissed as “internally inconsistent” and “completely unreliable” — he nevertheless concluded that “it appears more likely than not that Awad was, for some period of time, ‘part of’ al-Qaeda.”

To reach this conclusion, Judge Robertson was required to accept the government’s supposed evidence that Awad had attended Osama bin Laden’s Tarnak Farms training camp, an allegation that was based on a variation of his name, “Waqas” (he was sometimes listed by the Pentagon as Waqas Mohammed Ali Awad), being found on a list associated with the camp.

Although Judge Robertson refused to accept the government’s claim that Awad trained at the camp, finding it to be “unsupported,” noting, “we do not know the purpose of the list or when it was written,” and adding that the translator “claimed only that it was ‘possibly’ a list of trainees,” he returned to the allegations of Awad’s presence at Tarnak Farms to substantiate his conclusion that “it appears more likely than not that Awad was, for some period of time, ‘part of’ al-Qaeda.”

He noted that the names of the other men killed in the siege and Awad’s purported alias, “Waqas,” were closely grouped together on the list, and inferred from statements provided by another man who was present in the hospital and was also taken to Guantánamo (a Saudi released in 2007) that Awad and “Waqas” were one and the same.

Missing throughout all this analysis was any reflection on whether it was true that Awad only arrived in Afghanistan in mid-September 2001, and if, therefore, it was likely that he would have been immediately recruited for training at an advanced facility in the few weeks before the US-led invasion began, which strikes me as close to impossible. Also missing was any recognition that, as the government claimed in 2006, Awad was seized before the siege began, or, if that was a typographical error (as was indicated in court), that he was injured on Dec. 2, when the siege began, and that he was booted out of the hospital by the al-Qaeda fighters inside (or, as the government put it, “Awad’s comrades gave him up because they could not care for his severely injured [redacted]“).

Even with the government’s spin, there is something suspicious about would-be al-Qaeda martyrs sending one of their own to be captured, rather than staying and being martyred instead, but rather than examining these questions, Judge Robertson ruled that “At the very least Awad’s confessed reasons for traveling to Afghanistan and the correlation of names on the list [redacted] clearly tied to al-Qaeda make it more likely than not that he knew the al-Qaeda fighters at the hospital and joined them in the barricade.”

Quite where this leaves Awad is unknown, as the government does not seem to have enough evidence for a trial, and may, therefore, consider him a suitable candidate for its proposal to legislate for new powers of “indefinite detention,” to be reviewed by Congress and judges, which are supposed to provide an acceptable veneer to what is nothing more than a continuation of the Bush administration’s despised policies.

To this end, what may disappoint Awad the most is that, although Judge Robertson described him as a “marginally literate” young man, who “has spent more than seven of his twenty-six years — since he was a teenager — in American custody,” and, moreover, stated, “It seems ludicrous to believe that he poses a security threat now,” he added, limply, “but that is not for me to decide.”

In doing so, he ignored an earlier ruling (PDF), in which Judge Ellen Segan Huvelle noted that the Authorization for Use of Military Force (the legislation passed in the week after 9/11 which authorized the President “to use all necessary and appropriate force” against those “he determines” to have been involved in any way in the 9/11 attacks) “does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining battle,” and ignored another ruling, in the case of a Syrian prisoner, Abdul Rahim al-Ginco, in which Judge Richard Leon ruled that whatever relationship al-Ginco may have had with al-Qaeda was “utterly destroyed.”

In al-Ginco’s case, this was because he had been tortured by al-Qaeda as a spy, but it was also noteworthy that Judge Leon stated that al-Ginco’s prior experience of al-Qaeda — “five days at a guest house in Kabul combined with eighteen days at a training camp — does not add up to a longstanding bond of brotherhood.”

Instead, however, Judge Robertson raised and dismissed a little-voiced question — whether it is appropriate to continue holding men who were seized in connection with a specific conflict (the overthrow of the Taliban and the installation of a new government, which came to an end years ago) — by stating, “Combat operations in Afghanistan continue to this day and — in my view — the President’s ‘authority to detain for the duration of the relevant conflict’ which is ‘based on long-standing law-of-war principles’ has yet to ‘unravel.’”

Mohammed al-Adahi and the al-Qaeda mirage

One judge who may have dealt more robustly with the “gossamer thin” evidence in the case of Adham Mohammed Ali Aawad is Judge Gladys Kessler, who, on August 21, granted the habeas appeal of Mohammed al-Adahi, a Yemeni who was 39 years old when he was seized on a bus in Pakistan (PDF). I described the broad outline of al-Adahi’s story in my book The Guantánamo Files as follows:

Married with two children, al-Adahi had never left the Yemen until August 2001, when he took a vacation from the oil company where he had worked for 21 years to accompany his sister to meet her husband … As he told his tribunal, “In Muslim society, a woman does not travel by herself.” After flying to Karachi, they traveled to Kandahar, where his brother-in-law was living. Al-Adahi stayed in Afghanistan for a month, “to ease his sister’s transition to life in Afghanistan,” and then made his way back to Pakistan, where he was arrested by soldiers while traveling on a bus. “They were capturing everybody with Arabic features,” he said. “I gave them my passport and that shows that I’m an Arab. They said, ‘why don’t you follow us, we need you at the Center.’ From that point on they brought us over here.”

However, while this was a fair précis, the government believed that it could establish a case that al-Adahi was actually a member of al-Qaeda, for a number of reasons that appeared, on the surface at least, to be plausible. As Judge Kessler explained, “There is no question that the record fully supports the Government’s allegation that Petitioner had close familial ties to prominent members of the jihad community in Afghanistan.”

The brother-in-law, it appears, was “a prominent man in Kandahar,” who had fought the Russians in Afghanistan, and Judge Kessler also noted that it was “undisputed” that Osama bin Laden “hosted and attended [the] wedding reception in Kandahar,” that al-Adahi “was briefly introduced to bin Laden,” and that “A few days later, al-Adahi met bin Laden again and the two chatted briefly about religious matters in Yemen.”

However, Judge Kessler refused to accept the government’s contention that these familial ties and the two brief meetings with bin Laden proved that al-Adahi “was part of the inner circle of the enemy organization al-Qaeda,” and accepted instead that there was no reason to doubt that al-Adahi’s visit was, as he stated, to accompany his sister to her wedding (and also to receive medical treatment for a back problem). She noted also that he had not tried to hide the fact that he had met bin Laden, and that he had, in addition, stated that it was “common for visitors to Kandahar” to do so.

As in May, when she granted the habeas appeal of another Yemeni, Alla Ali Bin Ali Ahmed, Judge Kessler had serious doubts about the manner in which the government established its case, which focused primarily on its claim that its various allegations should be considered as part of a “mosaic” of intelligence, to be viewed as a whole, rather than being examined in isolation.

Dismissing this approach, she stated that, although she understood that “use of this approach is a common and well-established mode of analysis in the intelligence community … at this point in this long, drawn-out litigation the Court’s obligation is to make findings of fact and conclusions of law which satisfy appropriate and relevant legal standards as to whether the Government has proven by a preponderance of the evidence that the Petitioner is justifiably detained.”

She proceeded to stress that “the mosaic theory is only as persuasive as the tiles which compose it and the glue which binds it together,” and that, “if the individual pieces of a mosaic are inherently flawed or do not fit together, then the mosaic will split apart.” Having dealt with the government’s first “tile,” she methodically dismantled the others, refuting a claim that al-Adahi had “stayed at al-Qaeda and/or Taliban guesthouses during his stay in Afghanistan,” and demolishing the government’s “central accusation”: that al-Adahi’s brief attendance at al-Farouq (the main training camp for Arabs, associated with Osama bin Laden in the years before 9/11) helped to confirm that he occupied “some sort of ’structured’ role in the ‘hierarchy’ of the enemy force.”

Noting his claim that he “pursued training at al-Farouq to satisfy ‘curiosity’ about jihad, and because he found himself in Afghanistan with idle time,” she took particular exception to the government’s claim because, “After seven to ten days at al-Farouq, the camp leaders expelled al-Adahi for failing to comply with the rules.”

Referring, incredibly, to the case of Abdul Rahim al-Ginco, the Syrian who was tortured by al-Qaeda (and whose case the Justice Department had pursued in the habeas courts until it was thoroughly humiliated by Judge Richard Leon in June), the government’s lawyers attempted to claim that, because al-Adahi was not imprisoned and tortured as a spy after he was expelled (like al-Ginco), this proved that he was being given preferential treatment because of his ties to al-Qaeda.

However, Judge Kessler concluded instead that it was more likely that he “was being protected by a concerned family member” with considerable influence, and that “it most certainly is not affirmative evidence that al-Adahi embraced al-Qaeda, accepted its philosophy, and endorsed its terrorist activities.”

She was also dismissive of an allied claim — that al-Adahi was an instructor at al-Farouq in February 2000 — noting that the only source for this allegation was another prisoner at Guantánamo, for whom “the record contains evidence that [he] suffered from ’serious psychological issues,’” and dismissed another claim — that al-Adahi was a bodyguard for bin Laden — by pointing out that this claim had been made by another prisoner who “suffers from serious credibility problems that undermine the reliability of his statements.”

It seems probable, from references to a “report of torture by the Taliban” in the case of this witness, that he was Abdul Rahim al-Ginco, who, as Judge Kessler noted, admitted in August 2005 that he had “lied in the past.” She also noted that “interrogators had expressed concern that he was being manipulated by another detainee,” and quoted from a report stating that “before being placed next to that detainee [he] had never made any of the claims that he made to interrogators, including the accusation against al-Adahi.”

With the bulk of the government’s claims dismissed, it remained only for Judge Kessler to destroy the rest of the “mosaic” by noting that, with reference to the rest of al-Adahi’s time in Afghanistan after being expelled from al-Farouq, it was “only speculation” on the part of the government that injuries he received to his arm and leg in Kandahar were the result of combat, and not, as he stated, because of a motorcycle accident.

She also pointed out that, although the government attempted to pin “associational evidence” of militancy on a claim that al-Adahi “was captured while traveling in the company of Taliban fighters” on a bus in Pakistan, the only source for this was something al-Adahi himself had been told after his capture, when he “heard that there were members of the Taliban on the bus.”

Noting, in addition, that he was “unarmed” at the time of his capture, she concluded that “He appeared to be attempting to escape the chaos of that time by any means he could,” and granted his habeas appeal (although, as with all the cases of prisoners whose habeas appeals have been granted, the ruling provides no guarantee that he will actually be released).

Fawzi al-Odah: the Kuwaiti who trained for one day

On August 24, the government secured another shallow victory when Judge Colleen Kollar-Kotelly denied the habeas petition of Fawzi al-Odah, a Kuwaiti prisoner, agreeing with the government that it was “more likely than not” that he “became part of Taliban and al-Qaeda forces in Afghanistan” (PDF). Judge Kollar-Kotelly’s ruling was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were “significant reasons why the Government’s proffered evidence may not be accurate or authentic.”

She explained that some of it was produced “in circumstances that have not allowed the Government to ascertain its chain of custody, nor in many instances even to produce information about the origins of the evidence,” that other evidence was “based on so-called ‘unfinished intelligence,’ information that has not been subject to each of the five steps in the intelligence cycle (planning, collection, processing, analysis and production, and dissemination),” and that other evidence was “based on multiple layers of hearsay (which inherently raised questions about reliability), or is based on reports of interrogations (often conducted through a translator) where translation or transcription mistakes may occur.”

The basic facts of the case, as I explained in an article for the BBC’s website in December 2007, are as follows. Al-Odah, a 24-year old primary school teacher, whose father, a retired air force pilot, fought with US forces during the Gulf War in 1991,

took a short holiday from work and traveled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid. This was something he had done before, in other countries, and his family had had a history of providing humanitarian aid, establishing libraries and wells in various countries in Africa.

After establishing contact with the Taliban, which he said “was necessary because that was the government in Afghanistan at that time,” Mr. Odah said he had been “touring the schools and visiting families,” teaching the Koran and handing out money, until his activities had been curtailed following 9/11.

He said that in Kandahar the Taliban representative “told me that was a dangerous place because it was the capital for the Taliban,” and had advised him to go to Logar, in the east of the country, where he had stayed with a family for a month, and left his passport and belongings for safekeeping. “If the Afghans saw I had a passport indicating I was an Arab, and they saw the money and the camera I had, I would have been killed,” he added.

He had then moved to Jalalabad, where he had stayed with another family, who had given him an AK-47 assault rifle to protect himself, Mr. Odah said. He had then joined other people crossing the mountains to Pakistan, where he had handed himself in to the border guards, he added. Mr. Odah said he expected to be escorted to the Kuwaiti embassy, but had instead been handed over to US forces.

In dissecting al-Odah’s story, Judge Kollar-Kotelly took exception to apparent inconsistencies in his account of his journey to Afghanistan, suggestions that he had lied about his plans to teach, and about the length of time he intended to stay. She concluded, by comparing his route — to Dubai, and then to Karachi, Quetta, Spin Boldak and Kandahar — with the same route taken by jihadists that the record “supports a reasonable inference that al-Odah may have also been traveling to Afghanistan to engage in jihad, and not to teach the poor and needy for two weeks.”

She followed up by casting doubts on his claim that he innocently “sought to contact a Taliban official upon reaching Afghanistan and that he subsequently moved around the country at the direction of this official,” and on his explanation that he visited a training camp “supervised by the Taliban, where “he took one day of training on an AK-47 rifle.” Following the government’s lead, she suggested that it was “more likely than not” that the camp was in fact al-Farouq, and that al-Odah arrived there on September 10, 2001, the day before the 9/11 attacks, when the camp was closed down.

She also took exception to al-Odah’s apparent inability to explain why he had not left Afghanistan after the 9/11 attacks, why there was at least a month’s gap in his account of what happened afterwards, and why, three months after the attacks, he was captured, armed with an AK-47, having crossed the border into Pakistan from the Tora Bora region (where al-Qaeda and the Taliban had been engaged in combat with Afghan and US forces), in the company of a group of armed men who, according to “credible evidence” provided by the government, included one man “who had substantial ties to al-Qaeda.”

To be fair, it was understandable that Judge Kollar-Kotelly drew the inferences she did from the information provided, as her summing up made clear, when she explained that al-Odah “has admitted that he sought to meet with a Taliban official upon his arrival in Afghanistan; that he was subsequently brought by a Taliban official to a Taliban-operated training camp near Kandahar, Afghanistan; that he took one day of training with an AK-47 at this camp: that the Taliban official sent him to stay with an associate in Logar, Afghanistan, after September 11, 2001; that he surrendered his passport and other possessions to this individual; that he met with individuals who were armed and appeared to be fighters; that he accepted an AK-47 from these individuals; and that he traveled with his AK-47 into the Tora Bora mountains, remained there during the battle of Tora Bora, and was captured shortly thereafter by border guards while still carrying his AK-47.”

From this outline of events, the government certainly had a stronger case than it did with Adham Mohammed Ali Awad, but even if this analysis is correct, the end result is that, nearly eight years after the 9/11 attacks, the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.

The long shadow of Salim Hamdan’s freedom

Back in January, when Judge Leon refused the habeas appeal of Ghaleb al-Bihani, a Yemeni who had worked as a cook for Arab forces supporting the Taliban, I made a comparison with the case of another prisoner, Salim Hamdan, which demonstrated to me that, although justice was finally within reach for some of the prisoners at Guantánamo, seven years after the prison opened, it was both farcical and unjust that Hamdan, a man who had worked as a driver for Osama bin Laden, had been tried in a Military Commission in which he was convicted of material support for terrorism, had served a five-month sentence delivered by a U.S. military jury, and was now a free man in Yemen, while al-Bihani, who had never even met bin Laden, and who had, instead, worked as a cook before the 9/11 attacks and had subsequently failed to teleport himself out of the country after the US-led invasion began, continued to languish in Guantánamo, with no end to his detention in sight.

As the eighth anniversary of the 9/11 attacks approaches, I, like all those who oppose Guantánamo and everything it stands for, still hope that the small number of prisoners involved in the attacks, or in other terrorist attacks against the U.S., can be brought to justice, but I fail to see how rulings like those delivered last month in the cases of Adham Mohammed Ali Awad and Fawzi al-Odah contribute to that end.

I believe that, with just four months to go until President Obama’s deadline for closing Guantánamo expires, all concerned would do well to direct their attention towards the few dozen prisoners at Guantánamo who are alleged to have been directly involved in terrorism, and to stop trying to defend the detentions of all the other men still held; men who, at best, were foot soldiers in a specific conflict that, in contrast to Judge Robertson’s words, came to an end no later than November 3, 2004, when Hamid Karzai was elected as the President of post-Taliban Afghanistan.

When Salim Hamdan was freed from Guantánamo, I wrote that his release spelled the end of the Bush administration’s justification for holding prisoners who had no meaningful connection to al-Qaeda or international terrorism. Ten months on, I stand by those words, and note that, although judges have now granted the habeas appeals of 29 of the 36 prisoners whose cases they have considered, nothing about the cases of the other seven men prevents Hamdan’s freedom from casting a longer and longer shadow over their continued detention.

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.

The most significant development, CREW said, is the commitment by the Obama administration to post visitor records online on an ongoing basis, bringing a historic level of transparency to the White House.

“For the first time in history, records of White House visitors will be made available to the public on an ongoing basis,” President Obama said in a statement from Camp David Friday.  “We will achieve our goal of making this administration the most open and transparent administration in history not only by opening the doors of the White House to more Americans, but by shining a light on the business conducted inside.  Americans have a right to know whose voices are being heard in the policy making process.”

Aside from a small group of appointments that cannot be disclosed because of national security imperatives or their necessarily confidential nature (such as a visit by a possible Supreme Court nominee), the record of every visitor who comes to the White House for an appointment, a tour, or to conduct business will be released.

MSNBC reported, however:

Information on visitors in the first eight months of his administration will remain secret — though officials say they will consider narrow and specific requests.

The White House called the release of information “voluntary,” continuing to argue the Bush administration’s position that full disclosure is not required by the Freedom of Information Act…

The release will be time delayed, with 90 to 120 days passing before the records are posted on the White House Web site. And only visits after Sept. 15, 2009, will be revealed. The first wave of records is expected to be posted around Dec. 31.

Still, CREW Executive Director Melanie Sloan praised the White House, stating, “The Obama administration has proven its pledge to usher in a new era of government transparency was more than just a campaign promise.

“The Bush administration fought tooth and nail to keep secret the identities of those who visited the White House. In contrast, the Obama administration – by putting visitor records on the White House web site – will have the most open White House in history. Because visitor records will now be available online, CREW dismissed its lawsuits.” Sloan continued, “Providing public access to visitor records is an important step in restoring transparency and accountability to our government. CREW is proud to have been part of this historic decision.”

But Michael German, of the ACLU’s Washington, D.C. legislative office, said Friday that “while the new policy is commendable, some vaguely worded exceptions to it do raise concerns about the potential for abuse in classifying matters under the umbrella of national security.”

“We encourage President Obama to define these exceptions narrowly and to keep secret visits in the White House to a minimum,” German said. “The ACLU will continue to hold the administration to its commitment to be, in its own words, ‘the most open and transparent administration in history.’”

Thursday’s agreement stems from lawsuits CREW filed after the Bush and later the Obama administration refused to provide White House visitor records in response to CREW’s Freedom of Information Act (FOIA) requests. Visitor records are created by the Secret Service as part of its statutory responsibility to protect the president, vice president, their residences, and the White House generally.

After President Obama took office, CREW sought records of visits to the White House by health care and coal executives to determine the degree of their influence on health care and energy legislative proposals. The government initially refused to turn over these records, but now has agreed to produce them, as well as the Bush era records, as part of the settlement. In turn, CREW has agreed to dismiss all the pending litigation.

In lawsuits for records of visits by Christian conservative leaders and lobbyist Stephen Payne, the Bush administration argued the records were presidential records, not agency records of the Secret Service, and therefore exempt from the FOIA’s mandatory disclosure requirements. U.S. District Court Judge Royce C. Lamberth disagreed, ruling twice that the records are subject to the FOIA and not within any of the claimed exemptions. The government appealed those decisions to the District of Columbia Circuit Court.

Related Documents

In a 33-page declaration, Wendy M. Hilton, the associate information officer of the CIA’s National Clandestine Service, said the documents the agency is withholding are “primarily” those “from closed investigations conducted by the CIA’s OIG [Office of Inspector General] of alleged improprieties in the treatment of detainees in Iraq and Afghanistan.

“These documents include cables, OIG interview reports of CIA officers, emails written by CIA officers, memoranda and other inter-office communications, memoranda for the record, presentations and handwritten notes,” Hilton’s declaration states in reference to documents the CIA has withheld related to Justice Department legal opinions authorizing torture and documents that were used to write a 2004 inspector general’s report that reviewed the program.

Hilton said the documents, one of which includes a September 2001 executive order signed by George W. Bush establishing “black site” prisons where the torture of high-value detainees took place, could not be released even in redacted form.

“The documents contain information relating to how the CIA conducted counterterrorism operations against al-Qa’ida and affiliated groups,” she added. “This highly sensitive information details how the CIA developed its program, coordinated with various other elements of the United States Government, targeted and exploited terrorists, worked with its liaison partners, and developed information that was essential to protecting the United States.

Hilton said if the CIA disclosed the documents it would likely “degrade the U.S.G.’s [U.S. government's] ability to effectively question terrorist detainees and elicit information necessary to protect the American people.”

“These interrogation methods are integral to the U.S.G.’s interrogation program…,” she added.

However, Obama signed an executive order Jan. 22 banning the use of waterboarding and other methods of torture. So it’s unclear from Hilton’s affidavit how the government’s ability to interrogate suspected terrorists would be compromised if that is the case.

Hilton also provided a separate 42-page declaration outlining reasons the agency would continue to withhold transcripts related to Combatant Status Review Tribunals for specific detainees captured in the “war on terror.”

The CIA’s refusal to turn over the documents comes one week after the release of a May 2004 redacted report prepared by the agency’s inspector general on the Bush administration’s torture and detention of high-value detainees at “black site” prisons. The report called into question the effectiveness of using brutal torture techniques to extract intelligence and concluded that its use did not thwart any imminent terrorist attacks.

Attorney General Eric Holder appointed a federal prosecutor to conduct a “preliminary review” of about 10 cases where CIA interrogators and/or contractors deviated from Justice Department legal opinions that authorized agency operatives to use specific methods, such as waterboarding, during interrogations.

Holder and the Obama administration have been viciously attacked by the likes of former Vice President Dick Cheney and Republicans for initiating a review of those cases. Cheney, in an interview last Sunday on Fox News, called the decision an “outrageous political act.”

In court papers, the CIA also argued that information about the Bush administration’s torture program thus far should be strictly limited to the historical context and the legal underpinnings. But that doesn’t square with the fact that the government has already released dozens of pages of documents that go far beyond the abstract details about the interrogations.

For example, last week, in addition to the CiA IG report, the CIA released a document that for the first time described in extraordinary detail the process of “rendition” and how the systematic torture of high-value detainees is implemented once those prisoners are carted off to “black site” prisons.

The documents at issue, which a federal judge ordered the Obama administration to turn over to the ACLU by Aug. 31  or cite reasons for continuing to withhold them, provide a detailed backstory about the Bush administration’s torture program and shows how the systematic torture of detainees had been managed and who the top officials were that implemented and oversaw what became policy.

The ACLU filed Freedom of Information Act lawsuits against the Bush administration for access to documents describing the treatment of detainees in U.S. custody. Thus far, the ACLU has obtained more than 100,000 pages of documents.

The CIA did, however, did turn over a 203-page index that describes the contents of the documents that remain classified. The agency said many of those documents were being withheld because it contains “information relating to intelligence activities (including special activities), intelligence sources, intelligence methods, and foreign relations or foreign activities of the United States, including confidential sources, that is properly classified…and is thus protected from disclosure.” [Marcy Wheeler has compiled an extensive list of the materials.]

Bush’s Action Memorandum

One document is dated is described as a “a four page memo and a two page memo that is undated and a one page email dated February 7, 2002. The email is informing a CIA officer that the writer of the email has been tasked by [Office of General Counsel] to review memos. The emailer also mentions they need to follow up in the issue of whether paws could be tried in the U.S. criminal court.”

Feb. 7, 2002 was the same date that George W. Bush issued an action memorandum which denied baseline protections to al-Qaeda and Taliban prisoners under the Third Geneva Convention.

Several documents contain information about anticipated litigation related to the torture program during the weeks prior to the issuance of an Aug. 1, 2002 Justice Department legal opinion authorizing torture.

“This document is a 2-page email chain between CIA attorneys,” the index says, describing a July 10, 2002 document. “The document contains the attorneys’ legal analysis as it relates to a specific issue that arose in the context of the CIA’s counter-terrorism program, which was created in anticipation of litigation.”

That email was written three days before John Yoo, a deputy assistant attorney general in the Justice Department’s Office of Legal Counsel, provided CIA Acting General Counsel John Rizzo with legal advice on how to avoid violating torture laws.

Abu Zubaydah

Another document is “a 4-page draft plan dated March 16, 2002 from two CIA officers detailing proposed enhanced interrogation techniques.”

The officers are believed to be Dr. Bruce Jessen and James Mitchell, who were actually contractors hired by the CIA and are widely credited with helping to design the torture program and the list of specific techniques to be used against high-value detainees.

The March 16, 2002 document was drafted two weeks before the CIA and Pakistani intelligence agents captured Abu Zubaydah, the first high-value detainee who was also the first prisoner to be subjected to waterboarding and other torture techniques.

The interrogation plan was also drafted just three days after Yoo drafted a legal memo authorizing the CIA to “render” suspected terrorists to “black site” prisons in other countries where they were tortured.

Another document related to the capture of Zubaydah indicates the CIA took an active role in his interrogation shortly after he was captured. Zubaydah’s initial interrogation had been handled by the FBI whose agents had used the rapport building approach to obtain intelligence information from him.

However, a one-page e-mail dated April 5, 2002 “with an attached two page cable from a CIA attorney to a CIA officer regarding the interrogation of Abu Zubaydah” indicates CIA became involved in the interrogation and likely moved toward more coercive techniques.

That seems to be backed up by an April 16, 2002 document described as “a 4-page Memorandum for the Record by two CIA officers dated April 16, 2002 that outlines pre-decisional discussions among CIA attorneys and officers, as well as attorneys from other government agencies that occurred in anticipation of a counter-terrorism operation.”

The two CIA officers referred to in the document may also be Mitchell and Jessen.

According to previously released documents and numerous public statements by Bush administration officials, Zubaydah was not subjected to so-called “enhanced interrogation techniques” until after Yoo drafted the Aug. 1, 2002 torture memo.

One undated document “contains 26 pages of photos and a handwritten coversheet detailing a classified intelligence method.”

While it has been known that the CIA videotaped its interrogations of Zubaydah and another high-value detainee it’s unknown if interrogators also photographed those interrogations as the description of the withheld document would appear to indicate.

Some withheld documents also contain information about the CIA’s desire to increase the level of torture against detainees. A 38-page document dated Nov. 2, 2002 outlines “the need for and proposing a more intense counterterrorism program, for detained unlawful combatants. It discusses certain proposed interrogation techniques, medical information, and operational intelligence.”

The documents that followed during that month were from CIA headquarters in Langley and relate to the capture and torture of Abd Al-Rahim Al Nashirim, the alleged mastermind of the U.S.S. Cole bombing.

A Nov. 9, 2002 “one page cable from CIA Headquarters to the field. The cable contains information relating to the detention of al-Nashiri” and a Nov. 12, 2002 document, which “is a one page email chain between CIA officers with a one page cable attached. The document relates to the interrogation of a terrorist suspect conducted within the CIA’s counter-terrorism program.”

Al-Nashiri

Another document, dated, Nov. 21, 2002 is a “five page cable from the field to CIA Headquarters. The cable contains information relating to the interrogation of al-Nashiri.”

It was Nashiri’s interrogation that sparked Helgerson’s investigation of the CIA’s torture and detention program.

The review was launched in January 2003 after the agency’s Office of the Inspector General received word from agency officials that “unauthorized interrogation techniques” were used against Al Nashiri.

Al Nashiri was captured in late October 2002, was waterboarded 12 days after his capture, and a month later was singled out in a speech George W. Bush gave at the fairgrounds in Shreveport, Louisiana.

“The other day we hauled a guy in named al-Nashiri. It’s not a household name here in America. I can understand why some go blank when they hear his name. But he was the al-Qaeda commander in the Gulf States,” Bush said on Dec. 3, 2002.

“Let me just put it to you this way: He no longer has the capacity to do what he did in the past, which was to mastermind the USS Cole that killed – the plot on the Cole that killed American soldiers. He’s out of action for the good of the world.

“Sometimes you’ll see it and sometimes you won’t. But you’ve got to know that in this war against terror, the doctrine stands that says, ‘Either you’re with us or you’re with the terrorists.’”

About three weeks after Bush’s speech, according to the report, one interrogator, who pretended to be an operative from a Middle East intelligence agency, threatened to rape Al Nashiri’s mother in front of him. Interrogators also threatened Al Nashiri with a gun and revved power drill while he stood naked and hooded during the interrogation.

“The debriefer used an unloaded semi-automatic handgun as a prop to frighten Al-Nashiri into disclosing information….Nashiri sat shackled and [he] racked the handgun once or twice close to Al-Nashiri’s head. On what was probably the same day, the debriefer used the power drill to frighten Al-Nashiri. With [redacted] consent, the debriefer entered the detainee’s cell and revved the drill while the detainee stood naked and hooded. The debriefer did not touch Al-Nashiri with the power drill,” the report says.

It is a violation of he Convention Against Torture to threaten a prisoner in custody of the U.S. government with death.

The CIA also withheld, according to the index, “a 129 page draft document [dated Feb. 24, 2004], regarding the review of the CIA’s interrogation program, with comments and suggestions from a CIA attorney on how the document could be improved.”

That document likely refers to a draft of CIA Inspector General John Helgerson’s report on the torture and detention program.

Lack of Transparency

Although the Obama administration has released hundreds of pages of previously classified Bush administration documents that have shed enormous light on the highly secretive torture and detention program, as evidenced by the public disclosure of the CIA IG report, the Obama White House continues to withhold crucial documents that would no doubt provide valuable insight into the roles played by top Bush officials during the torture program’s five-year life span.

Such disclosures, however, would certainly lead to calls for a wide-ranging investigation of those officials, which some key Democrats and civil liberties groups have already called for, as opposed to the limited scope review involving CIA officers and contractors Holder authorized last week.

Obama has said he is not interested in “looking backwards” and he has fought hard against Congressional efforts to launch a “truth commission” that would delve into the Bush administration’s broad claims of executive power and probe the policies that lead to torture and domestic surveillance.

For organizations like the ACLU that have waged years long legal battles to pry loose secret documents, Obama’s continued resistance flies in the face of the open government and transparency promises he had made immediately after taking office.

Indeed. On Jan. 21, Obama signed an executive order instructing all federal agencies and departments to “adopt a presumption in favor” of Freedom of Information Act (FOIA) requests and promised to make the federal government more transparent.

“The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” Obama’s order said. “In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”

But in some highly charged FOIA cases Obama has inherited, his Justice Department has adopted the same legal arguments used by the Bush administration that were previously rejected by federal courts in arguing against disclosure.

In opposing a federal court order demanding the administration release of more than two-dozen detainee abuse photos, a matter that the Obama administration has now appealed to the U.S. Supreme Court, the White House has said national security would be threatened, an argument the 2nd Circuit Court of Appeals rejected when it was used by the Bush administration.

But what is the more likely scenario is that disclosing those images would lead to calls for accountability, force Congress to take action, and that in turn would jeopardize Obama’s domestic priorities such overhauling the healthcare system—a policy initiative he has staked his presidency on.

Jameel Jaffer, director of the ACLU’s National Security Project, said the Obama administration’s message is inconsistent with what Justice Department lawyers state in court.

“The CIA’s justification for withholding the documents is entirely incompatible with the Obama administration’s stated commitment to ending torture and restoring governmental transparency. On the one hand, President Obama has publicly recognized that torture undermines the rule of law and America’s standing in the world, but on the other, the CIA continues to argue in court that it cannot disclose information about its torture techniques because it would jeopardize the CIA’s interrogation program,” Jaffer said. “The CIA’s arguments are utterly disconnected from the Obama administration’s stated positions. The agency seems to be disregarding altogether the important policy changes that President Obama announced immediately after he took office.”

The former Bush administration officials rank at the top of the list of the 50 most nortious war criminals living in the U.S.

Compiled below, in hopes that it may be of some assistance to Eric Holder, John Conyers, Patrick Leahy, active citizens, foreign courts, the International Criminal Court, law firms preparing civil suits, and local or state prosecutors with decency and nerve is a list of 50 top living U.S. war criminals. These are men and women who helped to launch wars of aggression or who have been complicit in lesser war crimes. These are not the lowest-ranking employees or troops who managed to stray from official criminal policies. These are the makers of those policies.

The occupations of Iraq and Afghanistan have seen the United States target civilians, journalists, hospitals, and ambulances, use antipersonnel weapons including cluster bombs in densely settled urban areas, use white phosphorous as a weapon, use depleted uranium weapons, employ a new version of napalm found in Mark 77 firebombs, engage in collective punishment of Iraqi civilian populations — including by blocking roads, cutting electricity and water, destroying fuel stations, planting bombs in farm fields, demolishing houses, and plowing down orchards — detain people without charge or legal process without the rights of prisoners of war, imprison children, torture, and murder.

The list below does not include those responsible for war crimes prior to 2001. Nor does it include those currently in power who are making themselves complicit by failing to prosecute or cease commission of these crimes. The list could be greatly expanded. It could also be narrowed. I would argue, however, that it presents a more reasonable starting place than Holder’s reported proposal to investigate only CIA employees who failed to comply with criminal torture policies, of whom there are no doubt more than 50.

Because each of the people on this list should be nonviolently protested everywhere they go (more on that below), I have organized them by location. Please post updates on where they are as comments at http://afterdowningstreet.org/warcriminals

CALIFORNIA

1. John Yoo: Professor of Law at Boalt Hall School of Law in Berkeley, California, with house at 1241 Grizzly Peak Blvd., Berkeley, (but a lawyer with the Pennsylvania bar from which he should be disbarred and would be if enough people demanded it) counseled the White House on how to get away with war crimes, wrote this memo promoting presidential power to launch aggressive war, and claimed the power to decree that the federal statutes against torture, assault, maiming, and stalking do not apply to the military in the conduct of the war, and to announce a new definition of torture limiting it to acts causing intense pain or suffering equivalent to pain associated with serious physical injury so severe that death, organ failure or permanent damage resulting in loss of significant body functions will likely result. Yoo claimed in 2005 that a president has the right to enhance an interrogation by crushing the testicles of someone’s child. Yoo has been confronted in his classroom: video, and defended by the Washington Post, and again confronted in the classroom.

Additional collaborators:
2. Robert J. Delahunty, Yoo colleague, should be disbarred in NY
3. Patrick F. Philbin, Yoo colleague, Deputy, should be disbarred in D.C. and MA

4. Jay Bybee: federal judge on the United States Court of Appeals for the Ninth Circuit, headquartered in San Francisco, California (but Bybee based in Las Vegas), counseled the White House on how to get away with war crimes, including by helping Yoo draft the memo linked above. He signed not only torture memos but also a memo purporting to legalize illegal and unconstitutional wars. BYBEE SHOULD BE IMPEACHED. He works, among other places, at the James R. Browning Courthouse, 95 7th Street, San Francisco, CA 94103, — This is a giant marble building in the center of the city represented in Congress by the Speaker of the House.

5. William J. “Jim” Haynes, II: was General Counsel to the Department of War (“Defense”). He is now Chief Corporate Counsel at the Chevron Corporate Office in San Ramon, California. He counseled the White House on how to get away with war crimes, including by drafting memos for Yoo. Works at Chevron Headquarters, 6001 Bollinger Canyon Road, San Ramon, CA 94583. Member of bar in GA, NC, DC.

More collaborators:
6. Major General (Ret.) Michael E. Dunlavey, (now Judge, Erie County Court, Common Pleas, Erie, PA
7. Diane Beaver, top military lawyer at Gitmo
8. Jack Landman Goldsmith, III, [the illegal transfer memo in March 2004], DoD General Counsel’s Office at Pentagon
9. Ms. Eliana Davidson, International Law Division, Office of the General Counsel, Office of the Secretary of “Defense”

10. Colin Powell: strategic limited partner with Kleiner, Perkins, Caufield & Byers, a Silicon Valley venture capital firm, appears as a speaker in a series of motivational events called Get Motivated, board member of Revolution Health and of the Council on Foreign Relations, took part in White House meetings personally overseeing and approving torture by authorizing the use of specific torture techniques including waterboarding on specific people, lied to the United Nations about the grounds for war in a failed attempt to legalize a war of aggression, and was in fact a leading liar in making the false case for an illegal war of aggression.

Remember: Not every man in a dark suit is a war criminal. Check for blood under their fingernails to confirm identification.

NEW YORK

11. Henry Kissinger: lives in Kent, Connecticut, and works at Kissinger Associates, 350 Park Avenue, New York, N.Y., had a resume envied by other war criminals long before he advised George W. Bush to commit war crimes. Here’s a partial list of his crimes.

12. Nicholas E. Calio: Citigroup’s Executive Vice-President for Global Government Affairs served as a member of the White House Iraq Group (WHIG) which planned the marketing of an illegal war of aggression on the basis of lies.

13. Michael Mukasey: works in New York, N.Y. Some of his crimes are detailed at DisbarTortureLawyers.com.

TEXAS

14. George W. Bush: lives at 10141 Daria Place, Dallas, Texas. His crimes are described at http://afterdowningstreet.org/bush and at War Criminals Watch and at The 13 people who made torture possible.

15. Karen Hughes: lives in Austin, Texas, served as a member of the White House Iraq Group (WHIG) which planned the marketing of an illegal war of aggression on the basis of lies.

16. Paul Bremer lives in Chester, Vermont, and also works in Austin, Texas. His crimes are listed at War Criminals Watch.

Yes, a woman can be a war criminal. What? Did you think any of the men above ever risked personally breaking a fingernail?

WASHINGTON, D.C.

17. Dick Cheney: The former vice president lives nextdoor to CIA headquarters at 1126 Chain Bridge Road, McLean, Va. His crimes are documented at http://impeachcheney.org and at The 13 people who made torture possible and at War Criminals Watch.

18. John Rizzo: The General Counsel for the CIA (then and now) works nextdoor to Dick Cheney’s house at the headquarters of the CIA in McLean, Va. His crimes are described in The 13 people who made torture possible.

More collaborators:
19. Robert Eatinger, CIA lawyer
20. Steven Hermes, CIA’s National Clandestine Service (NCS)
21. Paul Kelbaugh, Deputy Legal Counsel, CTC, CIA

22. Steven Bradbury: also of McLean, Va., is described along with his crimes at SourceWatch, DisbarTortureLawyers.com, and The 13 people who made torture possible.

23. David Addington: was chief of staff to Dick Cheney in Washington, D.C., counseled the White House on how to get away with war crimes, including by helping Yoo draft the memo linked above, and drafted signing statements for Bush declaring the right to violate laws redundantly banning war crimes including torture and the construction of permanent bases in Iraq and efforts to control Iraq’s oil. Lives at 103 W Maple Street, Alexandria, VA 22301-2605 — This is a few blocks from the King Street Metro Stop.

24. Condoleezza Rice: served as Secretary of State in Washington, D.C., and can be found frequenting shoe stores, served as a member of the White House Iraq Group (WHIG) which planned the marketing of an illegal war of aggression on the basis of lies, took part in White House meetings personally overseeing and approving torture by authorizing the use of specific torture techniques including waterboarding on specific people, lied about mushroom clouds, and was in fact a leading liar in making the false case for an illegal war of aggression.

25. Donald Rumsfeld: lives in Washington, D.C., and at former slave-beating plantation “Mount Misery” on Maryland’s Eastern Shore near St. Michael’s and a home belonging to Dick Cheney, as well as at an estate outside Taos, New Mexico. He took part in White House meetings personally overseeing and approving torture by authorizing the use of specific torture techniques including waterboarding on specific people, and was in fact a leading liar in making the false case for an illegal war of aggression, and pushed for wars of aggression for years as a participant in the Project for the New American Century.

26. George Tenet: Distinguished Professor in the Practice of Diplomacy at Georgetown University in Washington, D.C., took part in White House meetings personally overseeing and approving torture by authorizing the use of specific torture techniques including waterboarding on specific people, oversaw the Central Intelligence Agency as it engaged in illegal renditions, detentions, torture, murder, and coverups of crimes, as well as helping to build a false case for an illegal war of aggression.

27. John Ashcroft: has his own lobbying company through which to profit from his government connections: The Ashcroft Group, LLC, 1399 New York Avenue, N.W., Suite 950, Washington, DC 20005, Phone: 202.942.0202, Fax: 202.942.0216, info@ashcroftgroupllc.com took part in White House meetings personally overseeing and approving torture by authorizing the use of specific torture techniques including waterboarding on specific people.

28. Alberto Gonzales: has hired a criminal-defense lawyer George Terwilliger, partner at White & Case, to defend him, while others have created a trust fund to help pay for his legal expenses, meanwhile Gonzales has been unable to find work as a lawyer himself, so his income comes from speaking engagements, then White House counsel, wrote a memo on January 25, 2002. It explained that under the 1996 War Crimes Act, U.S. officials might be prosecuted for violating the Geneva Conventions for actions in Afghanistan (and future parts of the “war on terror”), with penalties up to and including death. He suggested that Bush declare that the Taliban and Al Qaeda weren’t covered by Geneva, to be on the safe side. Bush did so. Gonzo now has a job at Texas Tech, but not teaching law. Help this effort to boot him! Remember that we drove him out of office by almost impeaching him.

29. Paul Wolfowitz: lives in Chevey Chase, Maryland, and is a visiting scholar at the American Enterprise Institute in Washington, D.C., advocated illegal war of aggression, and pushed for wars of aggression for years as a participant in the Project for a New American Century.

30. Doug Feith: serves on the faculty of the Edmund A. Walsh School of Foreign Service at Georgetown University in Washington, D.C., as a Professor and Distinguished Practitioner in National Security Policy, manufactured, cherry picked, and distorted information, and pressured others to do the same, to help build a false case for an illegal war of aggression, and advocated early and openly for an illegal war of aggression against a “non-al qaeda target.” Also works at Hudson Institute, 1015 15th Street, N.W., 6th Floor, Washington, DC 20005, three blocks from the White House.

31. Elliot Abrams: served as Deputy National Security Advisor for Global Democracy Strategy in Washington, D.C., and wherever he can do the most damage around the world, was a well-established war criminal even before he pushed for wars of aggression for years as a participant in the Project for a New American Century, helped to build a false case for attacking Iraq, and supported a failed coup attempt in Venezuela.

32. Karl Rove: owns million dollar houses in Washington, D.C., and Florida, and works for Fox News, Newsweek, and the Wall Street Journal when not testifying to congressional committees or federal prosecutors about his numerous unindicted non-war crimes. He served as a member of the White House Iraq Group (WHIG) which planned the marketing of an illegal war of aggression on the basis of lies, and took part in exposing an undercover agent as retribution for exposing one of WHIG’s lies.

(According to Star80 at DemocraticUnderground, Rove “can be found stuffing his fat pasty little face with crab meat at Cafe 30A in Santa Rosa Beach FL: http://www.cafethirtya.com – 3899 East County Highway 30A Santa Rosa Beach FL 32459.”)

(Citizens arrest of Rove attempted in Iowa, and in California, and in New York.)

33. I. Lewis Libby: lives in McLean, Virginia, and has been disbarred in Washington, D.C., and Pennsylvania, served as a member of the White House Iraq Group (WHIG) which planned the marketing of an illegal war of aggression on the basis of lies, took part in exposing an undercover agent as retribution for exposing one of WHIG’s lies, has already been convicted of obstruction of justice for interfering with investigation, and pushed for wars of aggression for years as a participant in the Project for a New American Century.

34. Mary Matalin: married to James Carville, both of them addicted to Washington, D.C., served as a member of the White House Iraq Group (WHIG) which planned the marketing of an illegal war of aggression on the basis of lies.

35. Stephen Hadley: served as National Security Advisor to the President in Washington, D.C., served as a member of the White House Iraq Group (WHIG) which planned the marketing of an illegal war of aggression on the basis of lies, and took part in exposing an undercover agent as retribution for exposing one of WHIG’s lies.

36. James R. Wilkinson: worked for Bush as Deputy National Security Advisor for Communications in Washington, D.C., served as a member of the White House Iraq Group (WHIG) which planned the marketing of an illegal war of aggression on the basis of lies.

37. John Bolton: lives in Bethesda, Maryland, is a member of a Lutheran Church, works for the law firm Kirkland and Ellis LLP, 655 Fifteenth Street, N.W., Washington, D.C. 20005-5793, T: +1 202-879-5000, F: +1 202-879-5200, is associated with the American Enterprise Institute, Jewish Institute for National Security Affairs, Institute of East-West Dynamics, National Rifle Association, US Commission on International Religious Freedom, and the Council for National Policy, helped to launch an illegal war of aggression by disseminating false claims through the State Department while he was under-secretary of state for arms control, and pushed for wars of aggression for years as a participant in the Project for a New American Century.

38. Michael Chertoff: works in Washington, D.C. Some of his crimes are detailed at DisbarTortureLawyers.com.

39. Timothy Flanigan: works in Washington, D.C. Some of his crimes are detailed at DisbarTortureLawyers.com.

40. Alice Fisher: works in Washington, D.C. Some of her crimes are detailed at DisbarTortureLawyers.com.

41. John Bellinger works in Washington, D.C. His crimes are listed at War Criminals Watch.

42. John Negroponte works in Washington, D.C. His crimes are listed at War Criminals Watch.

43. Jonathan Fredman was a top torture lawyer under John Rizzo at the CIA: details.

44. Scott Muller was general counsel at the CIA: details.

45. Kyle D. “Dusty” Foggo was instrumental in setting up illegal secret prisons.

NEBRASKA:

46. Andrew Card works in Omaha, NE. His crimes are listed at War Criminals Watch.

AFGHANISTAN:

47. Stanley McChrystal has been promoted as reward for his war crimes.

UNKNOWN LOCATION:

48. James Mitchell:
From The 13 people who made torture possible:

Even while Addington, Gonzales and the lawyers were beginning to build the legal framework for torture, a couple of military psychologists were laying out the techniques the military would use. James Mitchell, a retired military psychologist, had been a leading expert in the military’s SERE program. In December 2001, with his partner, Bruce Jessen, Mitchell reverse-engineered SERE techniques to be used to interrogate detainees. Then, in the spring of 2002, before OLC gave official legal approval to torture, Mitchell oversaw Abu Zubaydah’s interrogation. An FBI agent on the scene describes Mitchell overseeing the use of “borderline torture.” And after OLC approved waterboarding, Mitchell oversaw its use in ways that exceeded the guidelines in the OLC memo. Under Mitchell’s guidance, interrogators used the waterboard with “far greater frequency than initially indicated” — a total of 183 times in a month for Khalid Sheikh Mohammed and 83 times in a month for Abu Zubaydah.

More on Mitchell and Jessen.

49. Tommy Franks: His crimes are listed at War Criminals Watch.

50. Michael Hayden: His crimes are listed at War Criminals Watch.

Heck, let’s make it a full deck of 52, by including Bruce Jessen mentioned above and Erik Prince of Blackwater.

No Justice, No Peace

Judge’s comment on Rove’s citizen arrest in Iowa: “It’s about time.”

We encourage you to nonviolently protest these people and insist that they be given what so many of them have denied others: a fair trial. We encourage you to attempt to make citizen’s arrests, after consulting lawyers and learning how to avoid any unnecessary criminal risk to yourselves. It is possible to confront a war criminal at a public event and announce a “citizen’s arrest!” without actually touching (or handcuffing) the criminal.

You may want to avoid announcing that you’re coming, because the war criminal may choose to escape.

Your team should include one or more people who can produce an excellent video and be extremely fast in editing and posting it online. Your team should ideally include a lawyer. And, of course, people who can read the charges and question the suspect. Everyone on your team should be able to keep a secret while you’re planning your arrest or protest.

Read the war criminal their rights, rights they have denied others:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you.”

Read the war criminal the charges against them.

Ask the war criminal if they would like to say anything.

Once you have good video footage, your top priority becomes immediately getting it edited (if necessary) and online.

If possible, turn the war criminal over to the police.

Pass out flyers to passersby.

Send statement to the media and/or have the media present.

Consult a lawyer to avoid unnecessary risks of violating laws while enforcing the law. According to Wikipedia, “A citizen’s arrest is an arrest made by a person who is not a sworn law enforcement official. In common law jurisdictions, the practice dates back to medieval England and the English common law, when sheriffs encouraged ordinary citizens to help apprehend law breakers. Despite the title, the arresting person does not usually have to be a citizen of the country where he is acting, as they are usually designated as any person with arrest powers…

Each state with the exception of North Carolina permits citizen arrests if the commission of felony is witnessed by the arresting citizen… The application of state laws varies widely with respect to … felonies not witnessed by the arresting party. American citizens do not carry the authority or enjoy the legal protections of police, and are held to the principle of strict liability before the courts of civil- and criminal law including but not limited to any infringement of another’s rights.

Though North Carolina General Statutes have no provision for citizen’s arrests, detention by private persons is permitted and apply to both civilians and police officers outside their jurisdiction. Detention, being different from an arrest in the fact that a detainee may not be transported without consent, is permitted where probable cause exists that one has committed a felony, breach of peace, physical injury to another person, or theft or destruction of property … A person who makes a citizen’s arrest could risk exposing himself to possible lawsuits or criminal charges (such as charges of impersonating police, false imprisonment, kidnapping, or wrongful arrest) if the wrong person is apprehended or a suspect’s civil rights are violated.”

In the case of the war criminals we propose detaining, they are most if not all public figures and we have all witnessed their felonies, as detailed above.

Be prepared to post your video online in multiple places: Youtube, Google, and After Downing Street.

Known upcoming public appearances of war criminals who should be protested and citizen arrested: List. Map. See also: War Criminals Watch.

For more on holding the biggest criminals accountable, see http://prosecutebushcheney.org

See also: “Crimes and Misdemeanors: Slate’s interactive guide: Who in the Bush administration broke the law, and who could be prosecuted?” by Emily Bazelon, Kara Hadge, Dahlia Lithwick, and Chris Wilson. This guide includes some of those complicit in crimes other than war crimes, such as DOJ hirings and firings, destruction of CIA tapes, and illegal spying. (Of course, Karl Rove shows up in every part of every list.)

David Swanson is the founder of AfterDowningStreet.org and the author of the upcoming book “Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union” by Seven Stories Press.  You can pre-order it for a discount price here.

Conyers is now considering taking advantage of that prearranged agreement. He and his staff have been engaged in talks that could result in Rove and Miers being called to testify before his panel sometime in the fall, according to several congressional sources who spoke on condition of anonymity.

Their expected appearance would mark the first time that senior Bush White House officials will testify publicly about a scandal that resulted in the resignation of Attorney General Alberto Gonzales and other top Justice Department officials. Rove and Miers defied numerous congressional subpoenas seeking their sworn testimony over the past two years about the roles they played in the firings of the federal prosecutors.

Both Miers and Rove were subpoenaed by Conyers’ committee numerous times and were held in contempt of Congress for refusing to appear before the panel. They said Bush administration attorneys advised them they were protected by George W. Bush’s assertion of “absolute immunity” and were told not to appear before the committee.

If Rove and Miers are called to testify before Congress and either of them refuses to appear than the agreement the Judiciary Committee entered into with the former officials would be considered breached and Congress “can resume the litigation,” Conyers said in a statement his office issued March 4, after his panel reached a negotiated settlement to secure Rove and Miers’ testimony. The parties agreed to stay the contempt case “until at least the completion of the [private interviews," The Constitutional Law Prof Blog noted.  The agreement between the Judicairy Committee and Rove and Miers begins on page 4 of Rove Exhibit 1.

Attorneys for Rove and Miers did not return messages left at their offices nor did they respond to e-mails seeking comment.

The questioning of Rove and Miers, if a public hearing is held, is expected to be lead by committee member Rep. Adam Schiff, D-Burbank, a former federal prosecutor who also lead the questioning during their closed-door testimony before the committee in June and July.

The Judiciary Committee has already reached out to some of the fired federal prosecutors whose dismissals, according to documents and e-mails released by the panel last week, were politically motivated to assist in drafting new questions for Rove and Miers, congressional sources said.

These sources added that, in addition to covering old ground, the committee wants Rove and Miers to publicly testify about what Bush knew and when he knew it.

In his interview with the committee last month, repeatedly avoided responding to direct questions about whether Bush was aware of the plan. But in interviews he gave to The Washington Post and The New York Times last month, which the newspapers agreed not to publish until Rove completed his second round of testimony last month, he said he believed Bush “had been informed of the decision to let the prosecutors go.”

In an interview with the Post, Rove also said he’s “sure” Bush was told about the firings in advance.

“Maybe Harriet [Miers] talked to him about it,” Rove said. “I’m sure they did walk in at the end and say, ‘Mr. President, we want to make a change here.’”

That revelation would contradict numerous public statements made by White House spokespersons Tony Snow and Dana Perino that Bush did not play a role nor was he involved in the decision to dismiss the U.S. Attorneys and that the decisions emanated from the Department of Justice.

“[T]here is no indication that the President knew about any of the ongoing discussions [about firing U.S. attorneys] over the two years, nor did he see a list or a plan before it was carried out,” Perino told reporters in March 2007.

The Judiciary Committee intends to question Rove again about his statements related to what Bush knew.

Miers testified that she believed it was “required” for Bush to be told about the U.S. Attorney firings and she expected White House Chief of Staff Josh Bolten to brief Bush about it. She added, however that perhaps Bolten never told Bush about the plan based on the fact that Perino’s March 2007 statement to reporters said Bush was in the dark about the matter.

In a Judiciary Committee report issued last week that accompanied the release of documents, the panel said that Rove and Miers’ statements, “plus the revelation that [former New Mexico] Senator [Pete] Domenici directly pressed Chief of Staff Bolten to have [New Mexico U.S. attorney David] Iglesias replaced in the fall of 2006, brings the matter closer to the former President’s door than previously known.”

Last year, a 356-page report prepared by Department of Justice Inspector General Glenn Fine and the head of the agency’s Office of Professional Responsibility, H. Marshall Jarrett, concluded that Bush and Rove spoke with Attorney General Alberto Gonzales in October 2006 about their concerns over voter fraud in three cities, one of which was Albuquerque, New Mexico,” and concerns Domenici had about Iglesias’s job performance.

Conyers’ committee had previously subpoenaed Bolten to testify about his role in the firings, but his testimony was not part of the negotiated settlement the Judiciary Committee entered into.

In a little known 12-page fact sheet the committee released last week summarizing Rove and Miers’ testimony, the panel said Rove’s “memory appeared to be quite selective.”

Rove “did not remember basic facts such as how and when he learned that David Iglesias would be removed, whether or not he ever saw the list of US Attorneys proposed for removal, or whether he even knew which US Attorneys were on the removal list when he approved the plan,” the committee’s fact sheet states. “Similarly, Mr. Rove clearly remembered obscure details such as a conversation with a now-deceased political scientist from a University of Wisconsin subcampus about possible flaws in the Justice Department’s rejection of Wisconsin vote fraud
complaints.

“But he did not recall much more basic facts about the matter such as whether there were specific US Attorneys that White House officials wanted to replace during the President’s second term, or what statements he made to [Alberto Gonzales's former chief of staff] Kyle Sampson and [the Justice Department’s White House liaison] Monica Goodling at a political briefing he lead just weeks before the final stage of the removal process was launched. While failure of recollection is always an issue in investigations, the extent of these witnesses’ failure to recall the basic facts about recent events is disturbing, and continues to obscure the full truth about the US Attorney removals.”

The committee said Miers “suffered from an extraordinary failure of recollection during her interview, stating more than 150 times that she did not recall the answer to questions about the US Attorney matter, including fundamental and memorable facts such as what she meant when she wrote that a ‘decision’ had been made to remove David Iglesias from his position in October 2005, or whether or not Karl Rove specifically asked that David Iglesias be removed when Mr. Rove called her, agitated, from New Mexico.”

Congressional sources said, in the case of Rove, he has made specific comments in the past week characterizing the reasons for Iglesias’s firing that he did not disclose during his testimony and as such he will be questioned about it when he testifies publicly.

In discussing the U.S. Attorney firings, lawmakers want Rove and Miers to publicly explain who was responsible for disclosing to them specific details about ongoing corruption investigations some of the fired prosecutors had been conducting, some of which involved powerful Republican lawmakers, which Democrats believe was then used to justify the firings, congressional sources said.

In the case of Iglesias, the panel is particularly interested in probing recent statements Rove made following last week’s release of the transcript of his testimony and thousands of previously undisclosed e-mails that showed he was deeply involved in Iglesias’s firing.

But in an interview last Wednesday with Fox News host Bill O’Reilly, Rove tried to minimize his role in Iglesias’s dismissal and said it was Iglesias who politicized prosecutions.

Rove said he told the Judiciary Committee he “passed on to the White House counsel’s office to pass on to the Justice Department complaints about the performance of the U.S. Attorney in New Mexico, that he failed to go after ACORN in clear cases of vote fraud, that he bungled a high prosecution — a high-profile corruption prosecution by interfering with the career prosecutors, and that he was treating an indictment of people in a courthouse corruption case very politically by refusing to indict them when the case was ready but waiting for nine months, 12 months, 14 months until after an election.

“These were charges that were made about him. Allegations. I was not in a position to find out whether or not they were accurate. That was up to the Justice Department. But I had an obligation to pass those on through the appropriate channels.”

The Judiciary Committee wants Rove to answer how he arrived at that conclusion if neither he nor any of the Republican Party activists in New Mexico had access to any of Iglesias’s case files as he has maintained.

In an interview, Iglesias said Rove’s claims are “outrageous,” particularly the fact that Rove has “the audacity” to claim that Iglesias had politicized an investigation into a courthouse construction project involving a former state Democratic official.

“He never talked to the FBI agent assigned, he didn’t talk to the [voter fraud] task force members, he didn’t talk to the career federal prosecutor that was helping me out with the matter, he didn’t review the FBI reports like I did. He’s just pulling this out of thin air. His position is not tenable it’s fantasy,” Iglesias said.

He added that if Rove was suggesting to O’Reilly he had first hand knowledge of ongoing investigations Iglesias had been conducting then that would be a violation of criminal and/or civil laws.

“That’s privileged law enforcement information. In fact I don’t even think anyone in the White House Counsel’s office, even though they’re lawyers they are not prosecutors, had the right to that information. The only people that had the legal right to review [those cases] are the prosecutors working for the Justice Department, either in Washington, D.C. or out of my office in Albuquerque.

“Let’s assume for a second that he did have access to the FBI reports that is very problematic and it probably violates laws—civil laws and probably some criminal law–in and of itself. Rove’s not an attorney, he’s not a prosecutor and he has the audacity to second guess not only my opinion but the opinion of the career prosecutor who was working on [the cases] with me and the career Justice Department attorney who does nothing but voter fraud? It’s outrageous.”

Rove and Miers testified that they both fielded complaints from Domenici and his chief of staff and Heather Wilson and state Republican Party officials about Iglesias’s “refusal” to prosecute cases of voter fraud and that he was dragging his feet on securing an indictment in a corruption case he was investigating.

But, as documents released by the committee show, those complaints were made in the context of Iglesias’s failure to help Republicans win elections by using his office to prosecute Democrats.

The Judiciary Committee’s report said Rove’s statement to the New York Times and Washington Post that he acted as a “conduit” for complaints about Iglesias are “false.”

“White House emails and the testimony of Rove and Miers establish that Iglesias was targeted for firing no later than May 2005 and that the White House reached a ‘decision’ to fire him by June of that year,” the report said. “This is months earlier than previously known (and more than a year
earlier than originally disclosed to Congress). The documents and testimony also reveal that Rove and his staff personally agitated for Mr. Iglesias to be fired on multiple occasions in 2005 and 2006, and did not act as mere passive ‘conduits’ in this matter.

“This campaign was clearly designed to interfere with Iglesias’ prosecutorial judgment in order to obtain political advantage for Republican candidates. Iglesias himself has explained that the reason he did not bring more vote fraud cases is because ‘the evidence was not there.’”

With regard to Miers, congressional sources said lawmakers would press her to further explain her involvement in a federal corruption investigation into Arizona Rep. Rick Renzi that resulted in the DOJ becoming violating its own internal regulations. Paul Charlton, the U.S. Attorney in Arizona who was one of the nine fired, was investigating Renzi.

The committee’s report said:

“In the weeks before the 2006 election, leaks surfaced indicating that then-Representative Rick Renzi of Arizona was under federal criminal investigation. After a complaint from Scott Jennings of Karl Rove’s office, Harriet Miers called Paul McNulty seeking a statement that would have ‘vindicated’ Renzi.

“Two days later, unnamed Department officials did in fact make several misleading and highly favorable statements to the media on behalf of Mr. Renzi, for example, warning reporters ‘this is not a well-developed investigation, by any means .. . a tip comes into the Department – the Department is obligated to follow up . . . People are assuming there is evidence of some crime, even though that is not necessarily true. . . . I want to caution you not to chop this guy’s (Renzi’s) head off.’  Notwithstanding these statements, which appear to violate Department policy about commenting about pending matters as acknowledged by Miers herself, Renzi has since been indicted.”

When Miers was asked during her testimony whether she thought “it is appropriate for a White House political official . . . to pressure the Department of Justice to make statements about pending investigations for political advantage?” she complained that the question was “very charged.”

When news reports were published quoting unnamed Justice Department sources about the Renzi investigation a wiretap had already been in place. Miers and McNulty could face conspiracy to obstruct justice charges if their involvement hindered Charlton’s investigation into Renzi.

And according to sources working closely with Nora Dannehy, a federal prosecutor appointed last year by Attorney General Michael Mukasey to investigate whether criminal laws were broken in connection with the firings and whether any of the key players perjured themselves when they testified before Congress, she has evidence that Charlton’s probe was compromised. But it’s unknown if it was the result of Miers’ involvement or other Justice Department officials who played a role in the attorney firings of Charlton and the eight other federal prosecutors.

Charlton’s case file on Renzi contains an unprecedented memo that the former federal prosecutor drafted indicating that he faced difficulty from the Justice Department getting approval to move forward on several fronts involving his probe into Renzi, according to Justice Department sources.

Separately, the documents and e-mails released last week show that White House lawyer William Kelley played a far larger role in the firings than had been previously known. Conyers’ committee may also seek to depose Kelley as well.

In March, after Conyers announced his panel reached an agreement to secure Miers and Rove’s testimony he said, “If the committee uncovers information necessitating his testimony, the committee will also have the right to depose William Kelley, a former White House lawyer who played a role in the U.S. attorney firings.”