About a year ago, the Military Religious Freedom Foundation (MRFF) began an investigation into just how much money the DoD spends on promoting religion to military personnel and their families. What prompted this interest in DoD spending on religion was finding out what the DoD was spending on certain individual events and programs, such as the $125 million spent on the Army’s Comprehensive Soldier Fitness program and its controversial “Spiritual Fitness” test, a mandatory test that must be taken by all soldiers. The Army insists that this test is not religious, but the countless complaints from soldiers who have failed this “fitness” test tell a different story. The experience of one group of soldiers who weren’t “spiritual” enough for the Army can be read here. But the term “Spiritual Fitness is not limited to this one test. The military began using this term to describe a variety of initiatives and events towards the end of 2006, and this ‘code phrase’ for promoting religion was heavily in use by all branches of the military by 2007.

Although it was clear from the start of MRFF’s investigation that determining the total dollar figure for the DoD’s rampant promotion of religion (which is always evangelical and/or fundamentalist Christianity) would be next to impossible, as this would require FOIA requests to every one of over 700 military installations to find out how much each is spending out of various funds at the installation level, one thing we could look at was DoD contracts, so that’s where we started. What we’ve found so far is astounding.

Even though this is still an ongoing project, and we’ll certainly be finding much more, I thought that given all the current brouhaha over what should be cut from the federal budget, people might be interested to see some of examples of how the DoD is spending countless millions of taxpayer dollars every year to Christianize the military.

As mentioned above, what MRFF is looking at does not include chaplains or chapels — not even the excessive spending on extravagant “chapels” like the $30,000,000 mega-church at Fort Hood, or the “Spiritual Fitness” centers being built on many military bases as part of what are called Resiliency Campuses. The examples below are all strictly from DoD contracts, with the funding coming out of the appropriations for things like “Operations and Maintenance” and, somehow, “Research and Development.” (Summaries of all contracts referenced below are publicly available at usaspending.gov)

Evangelical Christian Concerts Under the Guise of “Spiritual Fitness”

One of the most direct expenditures of money on religious proselytizing, under the guise of “Spiritual Fitness” spending, is the funding of concerts with the top evangelical Christian performers. These concerts are most prevalent on Army posts, although they also occur on installations of other branches of the military. One concert series that stands out, both because soldiers were punished last year for not attending one of the concerts and because of the cost of hiring the musical acts, is the “Commanding Generals’ Spiritual Fitness Concert Series” at Fort Eustis and Fort Lee in Virginia. This is not a chapel concert series, but a command sponsored “Spiritual Fitness” program, paid for with DoD contracts.

All of the performers for these Spiritual Fitness concerts so far (this concert series is ongoing) have been evangelical Christian artists. Not only is the music itself overtly Christian, but during the concerts there are light shows of large crosses beamed all over the stage, and the performers typically give their Christian testimony or read Bible verses between songs. Some of these performers have Blanket Purchase Agreements and Indefinite Delivery Contracts good until 2012 or 2013, indicating that this concert series is planned to continue at least through the next two years. The total amount of money awarded so far for this concert series, including the amount remaining on Blanket Purchase Agreements and Indefinite Delivery Contracts, is $678,470. This figure is only for the performers fees, and does not include all the other expenses associated with putting on concerts on the scale of those being held at these Army posts.

The following are the amounts of the contracts awarded to Christian talent agencies and bands for this “Commanding General’s Spiritual Fitness Concert Series.”

• Street Level Artist Agency: $153,000 spent to date, $22,000 remaining on a $50,000 Blanket Purchase Agreement (good until 2012)
• Gregg Oliver Agency: $46,000 spent to date, $54,000 remaining on a $100,000 Indefinite Delivery Contract (good until 2013)
• James D Griggs: $9,900 to date, $141,100 remaining on a $150,000 Blanket Purchase Agreement (good until 2013)
• Titanium Productions, Inc.: $33,470 spent to date, $100,000 remaining on a $100,000 Blanket Purchase Agreement (good until 2012)
• SonicFlood: $24,000 spent to date, $76,000 remaining on a $100,000 Indefinite Delivery Contract (good until 2012)
• The Samoan Brothers LLC: $20,000 spent

(For these talent agencies and bands where the “amount spent to date” and “amount remaining” on the Blanket Purchase Agreements and Indefinite Delivery Contracts are not equal, it is because these talent agencies have been awarded more than one contract. For example, Titanium Productions, Inc. had contracts totaling $33,470 that were separate from the $100,000 Blanket Purchase Agreement for future concerts in this concert series.)

Evangelical Christian Facilities for Strong Bonds and other “Spiritual Fitness” Retreats

According to an Army spokesperson on the Pentagon Channel, the Army’s Strong Bonds program receives at least $30 million a year in DoD funding. This program of pre- and post-deployment retreats for soldiers and their families are often evangelical Christian retreats, many held at Christian camps and resorts, with evangelical Christian speakers and entertainers.

A search of DoD contracts for the last few years shows that at least 50 of the locations where Strong Bonds and other Spiritual Fitness retreats are regularly held are evangelical Christian camps, resorts, and conference facilities.

The site regularly used by Fort Sill, for example, is Oakridge Camp & Retreat Center, which has received over $500,000 in DoD contracts and has hosted approximately 60 retreats. Oakridge not only requires its employees to be Christians, but even goes as far as requiring on its employment application that the applicant state their views on issues such as abortion and homosexuality. While a private religious organization is free to impose a religious test on its staff, it is quite a different matter for a DoD contractor to do this. And, in the case of Oakridge, it is not only the facility’s staff who must adhere to the its Christian beliefs, but all of its guests as well, including the soldiers attending Fort Sill’s Strong Bonds and Spiritual Fitness retreats.

For example, the first paragraph of Oakridge’s “Policies & Guidelines” for its guests states: “Oakridge is a private Christian retreat center, not a hotel. Therefore, there may be some guidelines and policies that may not seem ‘hotel-like.’ This is our purposeful intent. Oakridge does not serve the ‘general public,’ but only those interested in a Christian camp perspective.” Moreover, guest groups must attend an “Oakridge Orientation,” and it is stated in the “Policies & Guidelines” that “prayer will be offered for all groups at every meal in Jesus’ name.”

While Strong Bonds is specifically an Army program, the rampant promotion of evangelical Christianity under the guise of Spiritual Fitness is going on in all branches of the military. As an example from another branch of the military, over $120,000 in DoD contracts have been awarded to the Williamsburg Christian Retreat Center, one of the facilities used by both the Army and the Navy for retreats. Another popular site in Virginia for the Navy’s Spiritual Fitness and “Personal Growth” retreats is the Peninsula Baptist Association’s Eastover Retreat Center, which has received $75,000 in DoD contracts. For its retreats in Rhode Island, the Navy also uses a Baptist facility, the American Baptist Church’s Canonicus Camping and Conference Center, which has received $53,000 in DoD contracts.

In addition to the constitutional issue of these military retreats being evangelical Christian retreats, any of the Christian facilities used for these retreats that receives over $10,000 in DoD contracts is in violation of the prohibition on federal government contractors discriminating based on religion in their hiring practices. They all hire only Christians, and many require in their employment applications that potential employees subscribe to a “statement of faith” and provide their Christian “testimony,” detailing when and how they were “saved.”

Evangelical Christian Performers for Strong Bonds and Other Events

Even retreats that are not located at religious camps regularly feature evangelical Christian speakers and entertainers. The contract amounts range from a few thousand dollars paid to each of a number of individual “motivational” speakers for single retreats to tens of thousands of dollars for evangelical Christian ministries and performers hired for multiple retreats.

For example, Quail Ministries, a Christian music ministry that provides performances “liberally seasoned with songs, stories, and anecdotal Scripturally-based lessons,” has received over $84,000 in DoD contracts for performances at about a dozen Strong Bonds retreats.

Unlimited Potential, Inc., a ministry “Serving Christ Through Baseball” by sending evangelical Christian major league baseball players to military events, received over $80,000 in DoD contracts for just two retreats, one Strong Bonds retreat and one Spiritual Fitness retreat. Unlimited Potential has been at many other military bases for various other events that do not show up in DoD contracts, presumably because these appearances were paid for with base funds.

DoD Funded Evangelical Christian Youth Programs

Service members are not the only ones targeted by evangelical Christian programs paid for with DoD contracts. Military children are also heavily targeted, both here in the U.S. and on bases overseas. Evangelizing the children of service members is one of the largest areas of spending.

The biggest ministry contracted by the DoD to target children is Military Community Youth Ministries (MCYM), whose mission statement is “Celebrate life with military teens, Introduce them to the Life-Giver, Jesus Christ, And help them become more like Him.” MCYM has received $12,346,333 in DoD contracts since 2000. One of MCYM’s tactics? Stalking “unchurched” military children by following their schools buses.

Ranking second is Cadence International, with over $2,671,603 in contracts since 2003. Cadence describes itself as “an evangelical mission agency dedicated to reaching the military communities of the United States and of the world with the Good News of Jesus Christ.” Cadence not only targets young service members and military children for conversion to evangelical Christianity, but also actively tries to convert members of foreign militaries in the countries where they operate under DoD contracts.

In addition to military youth ministries like MYCM and Cadence, military children are also targeted by military base Religious Education Directors, also hired with DoD contracts. These ministries and Religious Education Directors employ tactics that can only be described as “stalking” children, with some DoD contracts even requiring that the contractors identify and target the “unchurched” children at non-religious events and activities and get them into chapel programs, and to supply reports naming these children by name.

Conversion by Temptation

As I’ve been sitting here writing this post, an email came in to MRFF from a soldier who is currently in Advanced Individual Training (AIT), the stage of training between basic training and and a soldier’s first assignment, where the soldier receives training in the particular job they will be doing. During AIT, soldiers are typically given a few privileges that they didn’t have in basic training, but not many.

This soldier’s email is a a great example of a common strategy that I call “conversion by temptation,” where the military ministries and the military itself tempt young soldiers and military children with fun or exciting things to lure them into participating in programs and events where they can be “saved.” What young soldier would pass up a vacation at a resort with their spouse that they could never afford on their military salary? That’s how the Army’s Strong Bonds program gets many soldiers who would never attend an religious retreat to attend evangelical Christian retreats. What teenage kid would pass up a ski trip or week at the beach with the other kids? That’s how DoD funded military youth ministries like MCYM lure the teenage kids of our service members.

The email that just came in from the soldier in AIT was about the soldiers in training being granted extra privileges if they attend the programs on his post run by Cadence International. These privileges include being allowed to have pizza and soda on Friday nights if they go to the Christian “Coffee House,” even if they haven’t reached the stage of training where this is allowed, and being allowed to wear civilian clothes and engage in all sorts of fun activities if they go to Cadence’s on-post weekend retreats.

To a non-Christian soldier in AIT, getting the extra privileges and having some fun are worth the price of having to sit through the fundamentalist Christian sermons that go along with these activities, so many of them do it. Others go along simply because they don’t want to stand out from the crowd and be singled out as being of the “wrong” religion or not being religious.

Cadence particularly targets soldiers in AIT for a reason — these are the soldiers likely to soon be facing their first deployment. And this ministry, which, as noted above receives DoD contracts for their work, makes no secret of why they’ve chosen AIT as its mission field. One of the reasons given by Cadence for the success of its “Strategic Ministry” is: “Deployment and possibly deadly combat are ever-present possibilities. They are shaken. Shaken people are usually more ready to hear about God than those who are at ease, making them more responsive to the gospel.” Of course, they must first gain access to these “shaken” soldiers, but that’s no problem — the Army helps them out by allowing them to operate on Army posts and granting the soldiers in AIT extra privileges if they attend Cadence’s retreats.

For more details on these and other taxpayer funded schemes to Christianize the U.S. military, see “Against All Enemies, Foreign and Domestic,” the chapter I wrote for the 2010 book Attitudes Aren’t Free: Thinking Deeply about Diversity in the US Armed Forces, published by Air University Press, the publishing arm of the Air Force’s Air University at Maxwell Air Force Base.

Chris Rodda is the Senior Research Director for the Military Religious Freedom Foundation (MRFF), and the author of Liars For Jesus: The Religious Right’s Alternate Version of American History.

In particular, HRW singled out “four key leaders” in the torture program. Besides former President George W. Bush, the report indicts former Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, and CIA Director George Tenet. But others remain possible targets of investigation and prosecution. According to the report:

Such an investigation should also include examination of the roles played by National Security Advisor Condoleezza Rice and Attorney General John Ashcroft, as well as the lawyers who crafted the legal “justifications” for torture, including Alberto Gonzales (counsel to the president and later attorney general), Jay Bybee (head of the Justice Department’s Office of Legal Counsel (OLC)), John Rizzo (acting CIA general counsel), David Addington (counsel to the vice president), William J. Haynes II (Department of Defense general counsel), and John Yoo (deputy assistant attorney general in the OLC).

But the key passage in the HRW report concerns the backing for international prosecutions, under the principle in international law of “universal jurisdiction,” which was used back in 1998 by Spanish Judge Baltasar Garzón to indict former Chilean dictator Augusto Pinochet for genocide and murder.

Unless and until the US government pursues credible criminal investigations of the role of senior officials in the mistreatment of detainees since September 11, 2001, exercise universal jurisdiction or other forms of jurisdiction as provided under international and domestic law to prosecute US officials alleged to be involved in criminal offenses against detainees in violation of international law. [emphasis added]

Indeed, in an important section of the report, HRW details the failures and successes of pursuing such international prosecutions in the face of U.S. prosecutors’ failure to act and investigate or indict high administration officials for war crimes. This is even more important when one considers that the Obama administration has clearly stated its intention to not investigate or prosecute such crimes, going after a handful of lower-level interrogators for crimes not covered by the Bush administration’s so-called “legal” approvals for torture provided by the infamous Yoo/Bybee/Levin/Bradbury memos issued by the Office of Legal Counsel.

Nor has Congress shown even a smidgen of appetite for pursuing further accountability: not one Congressman or Senator has stepped forward as yet to endorse HRW’s new call. Instead, they demonstrated their obsequiousness by approving Obama’s nomination of General David Petraeus as new CIA director 94-0, despite the fact that Petraeus has been implicated in the organization of counter-terror death squads in Iraq, and was in charge of training Iraqi security forces who repeatedly were documented as engaging in widespread torture. It was during Petraeus’s tenure as chief of such training for the coalition forces, that the U.S. implemented the notorious Fragmentary Order (FRAGO) 242, which commanded U.S. forces not to intervene in cases of Iraqi governmental torture should they come across such it (which they often did). No one during Petraeus’s testimony in his nomination hearings even questioned him about this.

Why this report now?

I asked Andrea Prasow, a senior counsel at Human Rights Watch, why this report was issued now, noting that some on the left had already questioned the timing of HRW’s action.

“Because it really needed to be done,” Prasow explained. She noted the recent admissions by former President Bush and Vice President Cheney that they had approved waterboarding. Furthermore, “following the killing of [Osama] Bin Laden, we saw the immediate response by some that torture and the enhanced interrogation techniques led to the capture of Bin Laden. And it became a part of normal debate about torture. It shows how fragile is the current commitment not to torture.”

Prasow also noted the recent closure of the Durham investigation, which resulted in the decision to criminally investigate the deaths of two detainees in CIA custody, while 99 other cases referred to his office were closed. I asked her whether she felt, as I do, that the announcement of the two investigations were meant to forestall attempts by European (especially Spanish) prosecutors to pursue “universal jurisdiction” prosecutions of U.S. officials for torture.

“I don’t see how there’s a defensible justification that the investigations Durham announced can do that,” Prasow said. “It’s pretty clear that there should be an investigation into the deaths of these detainees,” she added, “but it’s so clear the investigation is very limited. The scope of the investigation is the most important part. Even if Durham had investigated the 100 or so cases that exceeded the legal authorities, it wouldn’t be sufficient. What about the people who wrote the legal memos? Who told them to write the memos?” she said, emphasizing the fact that Durham’s investigation was limited by Obama and Attorney General Eric Holder to only CIA crimes, and only those that supposedly exceeded the criteria for “enhanced interrogation” laid out in a number of administration legal memos. The torture, Prasow noted, was “throughout the military” as well, including “hundreds or thousands” tortured at sites in Iraq, Afghanistan and Guantanamo.

Prasow noted that the Obama administration has made it policy to block attempts by torture victims to get compensation for torture, asserting a policy of protecting “state secrets” to shut down court cases. “But there are other ways of providing redress,” she said, adding that “providing redress is part of international laws.” The HRW report itself states, “Consistent with its obligations under the Convention against Torture, the US government should ensure that victims of torture obtain redress, which may include providing victims with compensation where warranted outside of the judicial context.”

The new HRW report comes on the heels of a controversy roiling around a proposed United Kingdom governmental inquiry into torture. A number of British human rights and legal agencies have said they would boycott the UK proceedings as a “whitewash.” As Andy Worthington put it the other day:

As a result of pandering to the Americans’ wishes, the terms of reference are “so restrictive,” as the Guardian described it, that JUSTICE, the UK section of the International Commission of Jurists, warned that the inquiry “was likely to fail to comply with UK and international laws governing investigations into torture.” Eric Metcalfe, JUSTICE’s director of human rights policy, said that the rules “mean that the inquiry is unlikely to get to the truth behind the allegations and, even if it does, we may never know for sure. However diligent and committed Sir Peter [Gibson] and his team may be, the government has given itself the final word on what can be made public.”

Andrea Prasow echoed Metcalfe’s fears, saying HRW had “some concerns about how much information [in the UK inquiry] was going to be kept secret. I think transparency, making it as public as possible, is most important.”

The fight for transparency also makes HRW’s call for prosecutions of high government officials, along with “an independent, nonpartisan commission, along the lines of the 9-11 Commission, [that] should be established to examine the actions of the executive branch, the CIA, the military, and Congress, with regard to Bush administration policies and practices that led to detainee abuse,” very timely. In a column the other day at Secrecy News — Pentagon Tightens Grip on Unclassified Information — Steven Aftergood reported on a Department of Defense proposed new rule regarding classification. While the Obama administration is supposedly on record for greater governmental transparency, the new rule imposes “new safeguard requirements on ‘prior designations indicating controlled access and dissemination (e.g., For Official Use Only, Sensitive But Unclassified, Limited Distribution, Proprietary, Originator Controlled, Law Enforcement Sensitive).’”

According to Aftergood, “By ‘grandfathering’ those old, obsolete markings in a new regulation for defense contractors, the DoD rule would effectively reactivate them and qualify them for continued protection under the new Controlled Unclassified Information (CUI) regime, thereby defeating the new policy.” Even worse (if possible), “the proposed rule says that any unclassified information that has not been specifically approved for public release must be safeguarded. It establishes secrecy, not openness, as the presumptive status and default mode for most unclassified information.”

Much of what we know about the Bush-era torture program is due to the work of the ACLU and Center for Constitutional Rights, who have used the Freedom of Information Act to gather hundreds of documents, if not thousands, that document the paper trail surrounding the crimes of the Bush administration. Reporters and investigators like Jane Mayer, Philippe Sands, Alfred McCoy, and Jason Leopold have also contributed much to our understanding of what occurred during the Bush years. The work of investigators going back years demonstrates that U.S. research into and propagation of torture around the world goes back decades.

The Senate Armed Services Committee has also produced an impressive, if still partially redacted, investigation (large PDF) into detainee abuse by the Department of Defense. Their report, for instance, concluded regarding torture at Guantanamo that “Secretary of Defense Donald Rumsfeld’s authorization of interrogation techniques at Guantanamo Bay was a direct cause of detainee abuse there.”

When one puts together the accelerated emphasis on “state secrets”; the Obama political program of “not looking back” in regards to U.S. war crimes (while supposedly pursuing accountability for torture and war crimes committed by other countries); the political passivity, if not cowardice of Congress; the fact that Obama “has not been transparent on the rendition issue, not even saying what its policy is,” according to Andrea Prasow; and finally the lies and propaganda spewed forth by the former Administration’s key figures and their proxies, one can only agree with HRW that enough is enough. The time for investigations and prosecutions into torture and rendition is now.

And if they won’t listen in Washington, D.C., perhaps they will in Madrid. Or some other intrepid prosecutor in — who knows? — Brazil or Argentina or Chile will pay back America, as a matter of poetic but also real justice for the crimes endured by their societies when the U.S. helped organize torture and terror in their countries only a generation ago. There were no U.S. investigations into actions of government figures then, and now we are faced with another set of atrocities produced by our own government. If we do not act now, what will our children face?

Originally published at Firedoglake.

Jeffrey Kaye is a psychologist living in Northern California who writes regularly on torture and other subjects for The Public Record, Truthout and Firedoglake. He also maintains a personal blog, Invictus. His email address is sfpsych at gmail dot com.

Photo: Andres Rueda/flickr

A National Research Council (NRC) 2008 report on a conference on Emerging Cognitive Neuroscience and Related Technologies examined briefly what it characterized as a “contemporary problem,” the possibility of doing research on “war on terror” detainees, removed by the U.S. government from Geneva protections against experiments done on prisoners of war.

In a section of the report that looked at the “Cultural and Ethical Underpinnings of Social Neuroscience,” the report’s authors examined the “Ethical Implications” of these new technologies. The section explored the birth of the new field of bioethics, in response to the scandalous revelations of the Tuskegee experiments. The report noted that “On the whole, however, the system of protections for human research subjects is not well designed to capture instances of intentional wrongdoing,” providing “rather… guidance for well-motivated investigators who wish to be in compliance with regulatory requirements and practice standards.”

The report further described the history surrounding the importance of the rules that constitute the need for informed consent of research participants, and how the Nazi-era experiments led to the Nuremberg principle that “The voluntary consent of the human subject is absolutely essential.” While claiming the current “formal procedures in place for the use of military personnel in medical experiments” are “stringent,” that doesn’t imply “that no abuses can occur, nor that convenient alternative frameworks (such as field testing) cannot be used to circumvent the research rules, but only that the official policies and procedures in the military are rigorous.”

But even with such supposedly “rigorous” policies, the report’s authors see a problem. They ominously ask whether “classified research can ever be ethically sound inasmuch as it lacks transparency, such as in the form of public accountability. For example, if a member of an ethics review board disagrees with a majority decision involving a classified human experiment, that member would be unable to engage in a public protest of that decision.”

At this point in the discussion, another interesting, and even more ominous question rises up before the NSC panel (emphasis added):

A contemporary problem is the status of detainees at military installations who are suspects in the war on terrorism. Presumably, the ethical standards that apply to all human research subjects should apply to them as well. But if they are not protected by the provisions of the Geneva protocols for prisoners of war, the question would be whether as potential research subjects they are nonetheless protected by other international conventions, such as the Universal Declaration of Human Rights (United Nations, 1948). Those technical questions of international law are beyond the scope of this report.

Why should the question of research on detainees arise in this discussion at all?

Evidence of Military Research and Experimentation on Detainees

Jason Leopold and I have been investigating the possibility of research being conducted upon detainees at Guantanamo and other “war on terror” prisoners held by the Defense Department and the CIA. Back in September 2009, I published articles at Firedoglake, The Public Record, and Truthout that noted the research on “uncontrollable stress” conducted upon SERE survival school students subjected to mock torture predated the institution of the so-called “enhanced interrogation program of the CIA. The research was conducted by, among others, a CIA-linked psychiatrist, Dr. Charles A. Morgan III, who is affiliated with Yale University and the National Center for Post-traumatic Stress Disorder.

Morgan has denied his CIA affiliation, but for documentary evidence, see this list of participants at this 2004 DoJ/FBI conference.

This research used methods that were similar to those later instituted under a plan developed by James Mitchell and Bruce Jessen, formerly employed by the military’s Joint Personnel Recovery Agency (JPRA), parent organization to the SERE program, to use coercive forms of interrogation on the new “war on terror” detainees, who the White House and their attorneys at the Office of Legal Counsel  removed from the protection of Geneva Convention protocols. In a report on CIA experiments on torture, Physicians for Human Rights (PHR) noted in an appendix the existence of the Morgan research, but failed to make public the CIA connections, even though they certainly were aware of them.

Originally, the PHR report was going to include a footnote on the existence of a new protocol on human experimentation protections in the military signed by Paul Wolfowitz in early 2002. While they chose not to follow up on this, Leopold and I conducted a seven-month long investigation into the March 2002 issuance of Department of Defense Directive 3216.02, “Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research.” We noted that “the Wolfowitz directive weakened protections that had been in place for decades by limiting the safeguards to ‘prisoners of war’.” Even more, it allowed for waivers of informed consent if the head of a DoD department thought it necessary. There had never been such loose rules on informed consent ever explicitly allowed in the history of military research, although no prominent ethicist had discussed this until we published our article. Prominent ethicist Alexander Capron was quoted in our story for calling these changes “controversial both because it involves a waiver of the normal requirements and because the grounds for that waiver are so open-ended.”

While retaining the blanket prohibition against experimenting on prisoners of war, Wolfowitz softened the language for other types of prisoners, using a version of rules about “vulnerable” classes of individuals taken from regulations meant for civilian research by the Department of Health and Human Services (DHHS).

By removing the detainees from Geneva protections, and taking away “prisoner of war” protections, Bush and the White House lawyers, among them Jay Bybee, John Yoo and Alberto Gonzales, opened up the captured prisoners, many of them sold to the Americans for bounty reward, to possible experimentation.

DoD and HHS Acting Together on Experiments?

Buried in the Wolfowitz directive was a provision (4.4.1) that “actions authorizing or requiring any action by an official of the Department of Health and Human Services (HHS) with respect to any requirements” of research on “vulnerable populations” like prisoners “shall be under the authority of the Director, Defense Research and Engineering.” The reason for HHS involvement was because research “supported or conducted by the Department of Defense that affects vulnerable classes of subjects” had to meet the protections of HHS’s Common Rule language that covers protection of human subjects.

When queried whether there had ever been any DoD research on any kind of prisoner, or the use of HHS personnel to monitor such research, a spokesperson for Defense Research and Engineering indicated that they had no comment.

In 2002, there was another assault on prisoner protections for research, when Bush’s Secretary of HHS asked for and received a year later a blanket waiver for all informed consent on prisoner experimentation for “epidemiological” reasons, including the taking of biological samples. In a future article, I will explore the repercussions of this new policy — also never discussed by any ethical panel, and certainly not by the NRC — on research upon prisoners, and more specifically the possibility of experiments done on the detainees at Guantanamo.

This further investigation may throw light upon the Guantanamo SOP wherein all detainees were subjected to a never-before-attempted use of mass administration of treatment doses of the controversial anti-malaria drug mefloquine (Lariam), as also reported in a special investigation by Jason Leopold and myself last December. The scandal was also the subject of an independent investigatory report published at the same time by Seton Hall University Law School’s Center for Policy and Research.

In a 2002 report on mefloquine adverse events, “Unexpected frequency, duration and spectrum of adverse events after therapeutic dose of mefloquine in healthy adults,” published in top medical journal Acta Tropica, it was noted that 73 percent of the participants suffered “severe (grade 3) vertigo…” which “required bed rest and specific medication for 1 to 4 days.” Nevertheless, DoD maintains that the use of mefloquine was for public health purposes, to prevent malaria from spreading in Cuba. But as our investigation showed, talking with military medical experts, and examining other military responses to malaria threat, including in Cuba, no such use of such mass treatment doses, with its attendant dangers, was ever used or even proposed. Nor did DoD medical officers at Guantanamo demand the same protocols be used on foreign workers from malarial areas brought into the camp at this same time to work on building Camp Delta and other facilities at the naval base. The workers were employed by Kellogg Brown and Root, a subsidiary of Halliburton.

Was the mefloquine use part of an experimental protocol on the adverse side effects of the drug, a subject of much controversy within DoD at the time? Was it a method of softening up prisoners for interrogation? While calls for greater transparency go unheeded, further investigation by the press may bring answers to these explosive questions.

Originally published at Firedoglake.

Jeffrey Kaye is a psychologist living in Northern California who writes regularly on torture and other subjects for The Public Record, Truthout and Firedoglake. He also maintains a personal blog, Invictus. His email address is sfpsych at gmail dot com.

Their discussion took place in mid-October at UC Berkeley during Say No To Torture Week. The rest of their discussion, as well as the q&a portion of their talk, can be found at the links below.

YouTube Video: Berkeley No Torture Week, Torture and Human Experimentation, UC Berkeley Law, Oct 15, 2010 Pt2)
YouTube Video: Berkeley No Torture Week, Torture and Human Experimentation, UC Berkeley Law, Oct 15, 2010 Pt3)
YouTube Video: Berkeley No Torture Week, Torture and Human Experimentation, UC Berkeley Law, Oct 15, 2010 Pt4
YouTube Video: Berkeley No Torture Week, Torture and Human Experimentation, UC Berkeley Law, Oct 15, 2010 Pt5
YouTube Video: Berkeley No Torture Week, Torture and Human Experimentation, UC Berkeley Law, Oct 15, 2010 Pt6)
YouTube Video: Berkeley No Torture Week, Torture and Human Experimentation, UC Berkeley Law, Oct 15, 2010 Pt7)

During the meeting, Captain Yund identified himself as working directly with Admiral Steven Hart, the Director of Navy Medicine Research and Development, as well as “a number of other admirals.”

Their views range from cautious optimism to total condemnation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Army Lieutenant Colonel Robert G. Young appeared in the popular Christian reality series "Travel the Road." He was recently promoted to the rank of full colonel.

“The President of the United States has reposed special trust and confidence in the patriotism, valor, fidelity, and abilities of the following officers,” says the order promoting Army Lieutenant Colonel Robert G. Young to the rank of full colonel.

Now, the president can’t be expected to personally vet every military officer who is up for promotion, and, for all but those in the highest ranks, would obviously just rely on the recommendations of the superiors of officers on the promotions lists, but I have to wonder how President Obama would feel about having rubber stamped the promotion of an officer who said that blacks were better off as slaves.

Before getting to Col. Young’s slavery comment, I need to back up and explain how the Military Religious Freedom Foundation (MRFF), the civil rights organization I work for, first became aware of this officer. Back in December, I wrote a piece about the Army allowing two Christian reality TV show missionaries, whose mission was to proselytize Afghan Muslims, to be embedded with the troops in Afghanistan as journalists.

In that piece, I included a video clip from the program, Trinity Broadcasting Network’s Travel the Road, showing these missionaries giving Dari language Bibles to Afghan locals near the base where they were embedded. Just what was in this video clip, found on YouTube, was enough to see that serious violations of the regulations governing embedded journalists and the military regulations prohibiting proselytizing had been committed.

In February, I wrote a follow-up piece. By that time, ABC News Nightline had attempted to obtain the records of the embedding of the Travel the Road missionaries, only to be told that the Army had lost all records of this embedding. By the time I wrote my follow-up piece, I had also bought the DVD box set of the season of Travel the Road containing the three episodes covering the missionaries’ time in Afghanistan. In the third of the three episodes, Tim Scott, one of the Travel the Road missionaries, was shown interviewing Col. Young.

Here’s what I wrote about Col. Young in February, followed by the video:

The final clip in the video below is from the last of the three Travel the Road Afghanistan episodes, filmed in Kandahar. In this clip, Tim Scott interviews LTC Robert G. Young, the commander of the 325th Forward Support Battalion. LTC Young, a committed Christian who lists his interests in his Military.com profile as “Jesus, Wife, Kids, PT,” and belongs to a group called “Rangers 4 Christ,” told Scott that the biggest problem in Kandahar was drought, and that this drought coincidentally began as soon as the Taliban took over the country. He went on to say that we’ve got to “overcome evil with good,” and, literally thumping a Bible, quoted two of its verses in one sentence, saying, “Our weapons aren’t carnal” (Corinthians 10:4) “and no weapon formed against us shall prosper.” (Isaiah 54:17) He said he told an Afghan general that he would ask the American people to pray that God would send rain to Kandahar, and ended by saying that when the people of Kandahar see the rain “they’ll know that our god answers prayers.”

Shortly after I wrote this piece, MRFF began to receive emails telling us that the problems with Col. Young went beyond the typical disregard of regulations prohibiting the promotion of religion and proselytizing by evangelical military officers. We were informed that, among other things, the opinions espoused by Young included a comment to a subordinate officer that blacks were better off as slaves because at least then they knew Christ, and that complaints about his comments had led to him being relieved of his command.

MRFF passed these allegations on to journalist Jeff Sharlet, who was in the process of writing his article “Jesus killed Mohammed: The crusade for a Christian military,” the cover story in the May 2009 issue of Harper’s Magazine. Sharlet called Col. Young to get his side of the story. Young not only confirmed that what was emailed to MRFF was true, but, as the following excerpts from Sharlet’s article clearly show, still doesn’t see any problem with his slavery comment.

I found Lieutenant Colonel Bob Young after MRFF reported on an evangelical reality program, shown on the Trinity Broadcasting Network, that included tape of Colonel Young telling two wandering missionaries about his plan to pray for rain in Afghanistan. I reached him at home in Georgia late one evening. He said he was going to sit on his porch and look at the moon. In the background, I heard dogs barking. He talked for three hours, much of it about what he’d seen in the combat hospital under his command at Kandahar Air Base.

“Kids getting burned,” he recalled. “Bad guys floating in on helicopters. You wouldn’t know who they were.” The base hospital treated 7,000 Afghans that year, and Young, commander of the Army’s 325th Forward Support Battalion, lingered there, watching the bodies. “I want to tell you this. Triage area, guy strapped into gurney, Afghan guy. No shirt, skinny as a rail, sinewy muscle. Restraints on his ankles, his feet, dude is strapped into a wheelchair. He’s got a plastic shield in front of his face because he’s spitting.” A doctor wants to sedate him. “I say, ‘I’ll tell you what’s wrong with him. The guy has demons.’” Young decides to pray over him. “Couple minutes later the general’s son-in-law — the Afghan general’s son-in-law, our translator — comes in. I said, ‘What’s wrong with this guy?’ He says, ‘How do you say in English? He has spirits.’ I say, ‘Doc, there’s your second opinion!’”

On the phone, Young laughed, a harsh “Ha!” Then his voice broke. “I’m telling you, it’s real. Evil is real.”

In the Christian reality show, Young extended that thought to the weather. “Interestingly,” he says, “the drought has been in effect since the Taliban took over.” Young has a high mouth and a low brow, his features concentrated between big ears. “People of America,” he tells the camera, “pray that God sends the rain to Kandahar, and they’ll know that our God answers prayers.”

I asked Young if he wanted to contextualize these remarks, since they seemed, on the surface, to radically transcend his mission as a soldier. “Okay!” he said. “Are you ready?” I said I was.

He told me to Google Kandahar, rain, January 2005. The result he was looking for was an article in Stars and Stripes entitled “Rainfall May Signal Beginning of the End to Three-Year Drought in Afghanistan.” Three and a quarter inches in just two days.

“That’s some real rain,” I admitted.

“That’s what I’m saying, brother!”

I asked him about an allegation made to MRFF by a captain who served under Young: that Young had made remarks that led him to be relieved of his command. It was true that he had been relieved of command, he admitted, but he had appealed and won. And the remarks? “All that was, I was speaking in reference to inner-city problems and whatnot. I said that the irony is that it would be better for a black to be a slave in America — I’m thinking now historically — and know Christ, than to be free now and not know Christ.”

With that cleared up, I then asked Young about another of the captain’s allegations: that he had given a presentation on Christianity to some Afghan warlords. Absolutely not, he said. It was a PowerPoint about America. He emailed it to me as we spoke, and then asked me to open it so he could share with me the same presentation he had given “Gulalli” and “Shirzai.” Since it had been President’s Day, Young had begun with a picture of George Washington, who, he explained, had been protected by God; his evidence was that, following a battle in the French and Indian War, when thirty-two bullet holes were found in Washington’s cloak, the general himself escaped unscathed. Young wanted to show the Afghans that nation-building was a long and difficult journey. “I did stress the fact that in America we believe our rights come from God, not from government. Truth is truth, and there’s no benefit in lying about it.”

There were slides about the Wright brothers, the moon landing, and NASCAR — Jeff Gordon, “a Christian, by the way,” had just won the Daytona 500. And then, the culmination of American history: the twin towers, blooming orange the morning of September 11, 2001. Embedded in the slide show was a video Young titled “Forgiveness,” a collage of stills, people running and bodies falling. Swelling behind the images was Celine Dion’s hit ballad from Titanic, “My Heart Will Go On.” Following the video was a slide of the Bush family, beneath the words: “I believe that God has inspired in every heart the desire for freedom.” …

… The tension between war and faith does not disturb him. “We are to live with anticipation and expectation of His imminent return,” he told me. Look at the signs, said Young: nuclear Iran, economic collapse, President Obama’s decision to “unleash science” upon helpless embryos. He seemed to feel that the military was now the only safe place to be. “In the military, homosexuality is illegal. I don’t want to get into all the particulars of ‘Don’t ask,’ but you can’t act on homosexual feelings. And adultery is illegal. Really, arguably, the military is the last American institution that tries to uphold Christian values. It’s the easiest place in America to be a Christian.”

Nobody reading the article about Col. Young’s promotion on the official Army website would have any idea why his promotion to full colonel was delayed. According to the article, Young merely hit a “speed bump” due to an “adverse officer efficiency report,” which he successfully appealed — a demonstration of this fine officer’s “determination and drive to succeed.” According to the article, “Being promoted to colonel confirmed [Young's] sense that the Army is a good institution and that ultimately, the right things happen.”

Well, Col. Young is right about one thing. The military is “the easiest place in America to be a Christian.” Unfortunately, as the thousands of service members who have contacted MRFF about officers like Col. Young have made abundantly clear, it’s just not so easy a place to be for anyone else.

Chris Rodda is the Senior Research Director for the Military Religious Freedom Foundation (MRFF) and the author of Liars For Jesus: The Religious Right’s Alternate Version of American History.

The group’s 37-page opposition was supported by friend-of-the-court briefs filed by the Human Rights Watch, the International Center for Transitional Justice and Amnesty International and another filed by the Reporters Committee for Freedom of the Press and 16 media organizations. The ACLU filed a Freedom of Information Act lawsuit in 2003 to gain access to the images.

“These photos may be profoundly disturbing, but they are a crucial part of the historical record and the appeals court was right to find that they should be released,” said Jameel Jaffer, director of the ACLU National Security Project. “It’s disappointing that the Obama administration, which in other contexts has recognized the close connection between transparency and accountability, is continuing to argue that the photos should be suppressed.”

The ACLU contends in its opposition brief that granting the Obama administration’s petition “would only serve to further delay the disclosure of information that is of extraordinary interest to the public and of crucial importance to the ongoing national discussion about the abuse of prisoners in U.S. custody overseas.”

But even if the court refuses to take up the case, President Obama has vowed to continue to suppress the images.

Obama sent a letter July 29 to Senators Joe Lieberman and Lindsey Graham informing them that he would work with Congress to ensure legislation is passed that would block the release of the photographs.

The disclosure was made in a footnote in a 33-page petition the Obama administration filed last month with the U.S. Supreme Court. Neither the White House nor spokespeople for Lieberman and Graham responded to phone calls and e-mail queries seeking a copy of the letter.

The petition heavily recycles the Bush administration’s legal arguments and includes a previous sworn declaration from the likes of former Joint Chiefs of Staff Richard Myers warning that releasing the photographs would amount to a national security threat and could lead to the deaths of American servicemen and women fighting in Iraq and Afghanistan.

The filing confirms that the contents of the 44 images at issue includes one in which a female solider pointed a broom at one detainee “as if I was sticking the end of a broom stick into [his] rectum.”

Other photos at issues show U.S. soldiers pointing guns at the heads of hooded and bound detainees in Iraq and Afghanistan. The filing also notes that the detainee abuse was investigated by the U.S. Army’s Criminal Investigation Division and “three of the six investigations led to criminal charges and in two of those cases, the accused were found guilty and punished.” [Background on the photographs can be found HERE and HERE.]

In June, the Senate unanimously passed the Detainee Photographic Records Protection Act of 2009, an amendment to the Supplemental Appropriations spending bill sponsored by Lieberman and Graham. The House of Representatives referred the amendment to two House committees on June 18 where it is pending.

Additionally, on July 9, the Senate unanimously passed the amendment again as it was attached to the Department of Homeland Security Appropriations bill.

“The President recently informed the sponsors of the pending detainee photograph legislation that he “support[s] this legislation” and “will work with Congress to get it passed,” says the footnote in the Supreme Court petition prepared by Solicitor General Elena Kagan, quoting from Obama’s July 29 letter to Lieberman and Graham.

The bill has faced opposition in the House and that may explain why the Obama administration has decided to appeal to the U.S. Supreme Court if the House kills the measure altogether

Lieberman, I-Conn., and Graham, R-S.C., were sharply critical of a decision Obama’s Justice Department made in late April not to fight a final ruling by the U.S. Court of Appeals for the Second Circuit that called upon the Department of Defense to release the photographs.

Lieberman and Graham’s amendment would authorize the Secretary of Defense to prohibit the release of the abuse photographs and videos for three years and renew it for three year intervals thereafter. The Obama administration would presumably drop its appeal if the House passes the legislation when it returns from its summer break in September.

In June, Graham said during a floor speech before the Appropriations spending bill was passed that White House Chief of Staff Rahm Emanuel assured him that the abuse photographs would never “see the light of day” and would sign an executive order if the Supreme Court refuses to take up the case or rule in favor of the administration if it decides to hear the appeal, or if Congress does not pass legislation banning the disclosure of the images.

“I wanted to be assured by the administration that if the Congress fails to do its part to protect these photos from being released, the President would sign an Executive order which would change their classification to be classified national security documents that would be outcome determinative of the lawsuit,” Graham said June 17. “Rahm Emanuel has indicated to me that the President is committed to not ever letting these photos see the light of day, but they agree with me that the best way to do it is for Congress to act.”

Obama had originally decided to release the photos was made because the administration did not believe the Supreme Court would take the case.

At a press briefing April 24, White House Press Secretary Robert Gibbs told reporters “the Department of Justice [had] decided based on the [Second Circuit’s] ruling that it was hopeless to appeal.”

Gibbs’ comment came a day after acting U.S. Attorney Lev Dassin, confirmed in a letter filed with U.S. District Court Judge Alvin Hellerstein that the Obama administration would not challenge the Second Circuit’s decision.

But in May, following the long-awaited release of Bush administration torture memos that Republicans and former Bush officials sharply criticized, the Obama administration changed its position and said it would fight to keep the photographs secret fearing that releasing it would stoke anti-American sentiment in the Middle East and put the lives of U.S. soldiers at greater risk.

Obama’s decision to fight to conceal the photos to the Supreme Court marks an about-face on the open-government policies that he proclaimed during his first days in office.

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 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 the Supreme Court petition Solicitor General Kagan filed, the administration argued that a specific provision of FOIA allows the withholding of information if it threatens the lives of individuals. The appeals court said in its ruling that threats needed to be specific in order to justify withholding information.

The Obama administration’s petition, however, says that the 2nd Circuit Court of Appeals ruled that FOIA “mandates the public disclosure of such photographs—regardless of the risk to American lives —because FOIA Exemption 7(F) requires the government to ‘identify at least one individual with reasonable specificity’ and show that disclosure ‘could reasonably be expected to endanger that individual.’”

Kagan wrote that the 2nd Circuit Court of Appeals misinterpreted the law when it ruled that the government had to identify specific individuals who would be harmed by the disclosure of the photographs

The Obama administration argued that Exemption 7(F), “is inconsistent with the text of Exemption 7(F), which broadly encompasses danger to ‘any individual,’ with no suggestion of the court’s extra-textual requirement of victim specificity.” The history of drafting that exemption “underscores that conclusion. Congress did not mean for public disclosure of agency records to trump the life and physical safety of individuals—particularly in a case such as this, in which the government has already made public the underlying investigative reports revealing all relevant allegations of wrongdoing and the associated investigative conclusions.”

“The President and the United States military fully recognize that certain photographs at issue depict reprehensible conduct by American personnel and warranted disciplinary action,” the brief states. “There are neither justifications nor excuses for such conduct by members of the military. But the fact remains that public disclosure of the photographs could reasonably be expected to endanger the lives and physical safety of individuals engaged in the Nation’s military operations in Iraq and Afghanistan. The photographs therefore are exempt from mandatory disclosure under FOIA.. Review by this Court is warranted to give effect to Exemption 7(F) and the protection it affords to the personnel whose lives and physical safety would be placed at risk by disclosure.”

The ACLU said in its opposition brief that the Obama administration’s “argument here would turn FOIA on its head by affording the greatest protection from disclosure to records that depict the worst governmental misconduct.”

For one thing, the ACLU argues, the Second Circuit “correctly found that this language requires the government to do more than establish that ‘out of a population the size of two nations and two international expeditionary forces combined, someone somewhere will be endangered as a result of the release of the Army photos.’”

“As the court explained, had Congress used the phrase ‘endanger life or physical safety’ (without more), it would have signaled a concern with “danger in general”; Congress’s inclusion of the words ‘of any individual,’ however, ‘indicates a requirement that the subject of the danger be identified with at least reasonable specificity.’ Thus, the government’s contention that the court of appeals grafted an ‘extra-textual’ requirement onto the language of the statute is simply wrong,” the ACLU’s opposition brief states.

Additionally, the courts have established that there are limits on what can and cannot be classified, the ACLU argued.

“Among these limits is the prohibition against classifying information in order to ‘conceal violations of law, inefficiency, or administrative error,’ or to ‘prevent embarrassment to a person, organization, or agency.’ As the court of appeals observed, the government’s construction of Exemption 7(F) would allow an agency to ‘evade the strictures and safeguards of classification’ simply by asserting that records compiled for law enforcement purposes could, if disclosed, ‘reasonably be expected to endanger someone unidentified somewhere in the world.’”

The appeals court also shot down the Bush administration’s attempt to radically expand FOIA exemptions for withholding the photos, stating that the Bush administration had attempted to use the FOIA exemptions as “an all-purpose damper on global controversy” and “an alternative classification mechanism.”

“It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan,” the appeals court panel of judges ruled.

The appeals further deemed the Bush administration’s position legally flawed and added that releasing “the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners.”

Last September, in upholding a lower court ruling ordering the release of the photos, the appeals court noted that past U.S. administrations had championed the release of photos that showed prisoners of war being abused and tortured.

Notably, after World War II, the U.S. government publicized photos of prisoners in Japanese and German prisons and concentration camps, which the court noted, “showed emaciated prisoners, subjugated detainees, and even corpses. But the United States championed the use of the photos as a means of holding the perpetrators accountable.”

Detainees sit around the exercise yard in Camp 4, within Camp Delta at Naval Station Guantanamo Bay, Cuba. Photo by U.S. Army Sgt. Sara Wood

As 13 prisoners held at the U.S. naval Base at Guantanamo Bay, Cuba, appeared set to finally win their freedom, others are asking their release to be deferred.

The problem is that some of those cleared for release fear they will be tortured if they are transferred to other countries, in some cases their home countries.

Their lawyers have asked a federal court to delay their release from Guantanamo until their cases can be reviewed by the Supreme Court.

News of this latest twist in the long-running GITMO-release saga came as the government announced that 13 Uighurs – Turkic Muslims from China – have agreed to be transferred to Palau,

A tiny island nation in the Pacific Ocean, some 500 miles (800 km) east of the Philippines.

For the 13, release will end years of imprisonment, abusive interrogations, and legal battles in both U.S. military and civilian courts.

The Uighurs cannot be repatriated to China because domestic American law proscribes deporting individuals to countries where they are likely to be abused.

The Bush administration conducted bilateral negotiations with a number of other countries to accept captives who had been cleared for release, but with limited success. These negotiations have continued under President Barack Obama.

The Uighurs were arrested in the “badlands” between Pakistan and Afghanistan in 2001, near where Osama bin Laden was believed to be hiding at the time, and had been trained to use automatic assault rifles.

The men were taken back to Afghanistan to a U.S. detention center in the city of Kandahar, interrogated for several months, and then flown to Guantanamo Bay.

Their cases were eventually heard by the U.S. military’s Combat Status Review Tribunals, which determined that they were not enemy combatants and posed no threat to the U.S.

Five of the Uighurs were released to Albania in 2006. One of the five subsequently was granted asylum in Sweden. In June of this year, the Obama administration negotiated the release of four additional Uighurs to Bermuda.

Meanwhile, in 2008, in a plea to a federal court for a writ of habeas corpus, lawyers for the remaining Uighurs challenged their continued detention. A federal judge ordered them released into the U.S., but that decision was reversed by an appeals court in February, 2009.

In April, lawyers for the Uighurs asked the Supreme Court to recognize that the right to habeas corpus requires a remedy when a court finds that an individual is wrongly detained. The petition asks for the Uighurs’ release.

“We now have asked the Supreme Court to hear the Uighur cases, and rule that the writ of habeas corpus guarantees to the innocent not just a judge’s learned essay but something meaningful – their release,” said Sabin Willett, of the Boston law firm of Bingham McCutchen, an attorney for the Uighurs.

In an effort to restore habeas petitions to their traditional status, a federal circuit court this week issued a one-line order in the Uighurs’ case (known as Kiyemba, et al., v. Obama, et al) giving the government sweeping authority — without “second-guessing” by the courts — to move detainees out of Guantanamo.

As a result, lawyers for the Uighurs are soon expected to file a second appeal to the Supreme Court. The key issue will be whether judges have any power to impose any controls on detainee transfers.

That is also a key issue for an Algerian national, Ahmed Belbacha, who has asked the Circuit Court to hold in abeyance his potential transfer to his home country, where he fears he will be tortured either by the government for past political activity, or by a terrorist organization he says has threatened him in the past.

His lawyer, Zachary Katznelson, senior counsel with Reprieve, the London-based legal charity, says his client describes his cell in Guantanamo as “like a grave.” He says, “Although it sounds crazy he would rather stay in those conditions than go back to Algeria.”

The 38-year-old Belbacha fled Algeria in 1999 at the height of the civil war between the Armed Islamic Group (GIA) and the Algerian Government. He and his family received death threats from the GIA, which killed thousands during the 1990s.

Belbacha fled to France and then to Britain, where he applied for asylum. He was given exceptional leave to remain pending the outcome of his application.

He says that in July 2001 he traveled to Pakistan to undertake religious study. While there he crossed the border into Afghanistan and, when the US-led invasion began, crossed back into Pakistan. He claims that in December 2001 he was apprehended by villagers near Peshawar, in northwest Pakistan, and sold to the authorities for a bounty.

American agents first sent him to a prison camp near Kandahar and then, in March 2002, to Guantanamo, where a military tribunal alleged that he had associated with the Taleban in Afghanistan and ruled that his detention was justified. But in February of this year, the U.S. said he was fit for release.

His lawyers say they are prepared to go to the Supreme Court to prevent his transfer.

According to Shayana Kadidal, an attorney with the Center for Constitutional Rights (CCR), a legal advocacy group that has mobilized legal defenses for dozens of Guantanamo detainees, “This issue has come up in the context of the 60-odd detainees who have no safe home country to be returned to. The government is resisting bringing them into the U.S. by arguing that the courts have no power to order a detainee released into the United States even if the government has no legal right to hold him and can’t find a safe country to take him.”

He told us, “Paradoxically, that argument – which the government is making so it can avoid taking even a single detainee into the U.S. — is standing in the way of finding other countries to take the majority of the detainees, as foreign governments ask themselves why they should take in Guantanamo’s refugees when the U.S. will not contribute to the effort.”

Uighers’ attorney Sabin Willett, says the courts are making “a hash” of the habeas corpus tradition. He told us, “The remedy for indefinite detention by the executive jailer turns out to be to direct the executive jailer to enter into diplomacy with third parties beyond the court’s jurisdiction to try to free the prisoner on whatever terms it chooses.”

Major David Frakt, a law professor at Western State University, and formerly a lead defense counsel at the Office of Military Commissions, agrees.

He told us, “In most cases, either the detainee is unwilling to go back to his country of origin either because we are concerned that country will torture the individual, or we are concerned that the country won’t adequately monitor or control the individual, leaving him free to ‘return to the  battlefield’ (or perhaps, more accurately in many cases, go to the battlefield  for the first time).”

“The fearmongers in Congress have created an  atmosphere in which it is not politically feasible for the Obama Administration to release any detainees in the U.S. This is both unfair and unfortunate, because the single most significant thing the U.S. could do to encourage other countries to accept detainees is to accept a few for resettlement in the U.S.,” he said.