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.

Portugese Parliament. Photo by Rui Nogueira.

On Aug. 28, in the first indication that European countries are prepared to help the Obama administration fulfill its promise to close Guantánamo by accepting prisoners who have been cleared for release, but who cannot be repatriated because of fears that they will face torture on their return, the Portuguese interior ministry announced that two Syrian prisoners had arrived from Guantánamo and had been released on their arrival in Portugal. Officials added that they are “not subject to any charge, they are free people and are living in homes provided by the state.”

Last December, Portugal took the lead in offering to rehouse cleared prisoners from Guantánamo, when, in a letter to other EU leaders, Luís Amado, the Portuguese Foreign Minister, declared, “The time has come for the European Union to step forward. As a matter of principle and coherence, we should send a clear signal of our willingness to help the US government in that regard, namely through the resettlement of detainees. As far as the Portuguese government is concerned, we will be available to participate.”

The deal was apparently sealed in June, when the government announced that it was ready to take “two or three” prisoners from Guantánamo, following a visit by US Special Envoy Daniel Fried. On arrival in Portugal, the former prisoners’ identities were not known. But on Monday, court documents released by the Justice Department revealed that the two men are 27-year old Mohammed al-Tumani (identified by the Pentagon as Muhammed Khan Tumani), and 37-year old Moammar Badawi Dokhan.

In a press release issued last Friday, the US Justice Department explained the circumstances of the men’s release, stressing that the final say in approving their transfer had been taken by Congress. “As directed by the President’s Jan. 22, 2009 Executive Order, the interagency Guantánamo Review Task Force conducted a comprehensive review of these cases,” the DoJ announced, adding, “As a result of that review, the detainees were approved for transfer from Guantánamo Bay. On Aug. 6, 2009, in accordance with Congressionally-mandated reporting requirements, the Administration informed Congress of its intent to transfer these two detainees.”

The Justice Department was also keen to allay any fears that the men might pose any threat in future. “The transfers were carried out under an arrangement between the United States and the government of Portugal,” the press release stated, adding, “The United States has coordinated with the government of Portugal to ensure the transfers take place under appropriate security measures and will continue to consult with the government of Portugal regarding these detainees.”

To be honest, these caveats were unnecessary, as the Portuguese government would not have taken the men in the first place, and would certainly not have announced that they “are free people and are living in homes provided by the state,” if there had been any doubts about their insignificance. Moreover, their stories, as revealed in publicly available documents from Guantánamo, also reveal that neither man had any connection whatsoever to international terrorism, revealing, as so often before, that right-wing hysteria about those still held in the prison is largely hyperbole of a kind that, on close inspection, reveals more about the cowardice and xenophobia of those making the claims than it does about the majority of the prisoners themselves.

Mohammed al-Tumani: A Story of Persistent Abuse

The younger of the two released men, Mohammed al-Tumani, who was just 18 years old when he arrived in Afghanistan in June 2001, has always maintained that he arrived as an immigrant with his entire family, and was seized by mistake with his father, Abdul Nasir al-Tumani, who is still held in Guantánamo. As I explained in my book The Guantánamo Files, based on the men’s accounts in their military tribunals:

The father had traveled to Afghanistan in1999 in search of work, finding a job in a restaurant in Kabul and bringing ten members of his family over in June 2001, including Mohammed, his grandmother and an eight-month old baby. Another six family members — his uncle’s family — arrived a week before 9/11, but after hearing about the attack on America the family fled to Jalalabad, where they stayed for a month, and then made their way on foot to Pakistan. On the way, their guide advised al-Tumani to let the women and children travel by car, to make them less of a target for highway robbers, but when he and his son arrived in Pakistan the local villagers handed them over to the Pakistani army.

Mohammed also said that, while in Pakistani custody, in three separate prisons, he and his father were “subjected to beatings and harsh torture,” and his nose was broken. He added that throughout this ordeal “there were Americans present,” and this account was echoed by his father, who said that the Pakistanis “were torturing us really hard,” and the Americans “were looking and standing right there. The Americans were present. I am sure about that because they were the ones who interrogated us.”

In addition, Mohammed explained that, in the US prison at Kandahar airport (where the prisoners were processed for Guantánamo), his father’s forehead was fractured “and the Red Cross saw this and wrote a report,” and he added that he received a fracture to his left hand, as well as suffering “many diseases” and “other methods of psychological torture,” including sleep deprivation.

He also explained, as Carol Rosenberg described it in the Miami Herald, that during interrogation at Camp X-Ray (the rudimentary first prison at Guantánamo, which was closed in June 2002), “one of the interrogators brought two wires connected to electricity and said that if you do not say that you and your father are from al-Qaeda or Taliban, I will place these in your neck,’” and that the abuse continued in Camp Delta (Camp X-Ray’s more permanent replacement), where he said that he was “threatened with violence,” and that “an interrogator threatened to send him to torture in a foreign country.”

Beyond these alarming examples of abuse, which cannot be independently confirmed (but which certainly accord with claims made by many other prisoners), Mohammed al-Tumani’s story is also notable for a startling example of how allegations made by other prisoners were regarded as reliable evidence by the authorities at Guantánamo, even when, as in al-Tumani’s case, the veracity of these claims was undermined by military officers who had chosen to investigate the quality of the supposed evidence rather than accepting it at face value.

The Baleful Effects of Guantánamo’s Notorious Liar

As Corine Hegland explained in two ground-breaking articles for the National Journal in 2006 (“Guantánamo’s Grip” and “Empty Evidence”), Mohammed al-Tumani was one of two prisoners whose protestations regarding what they claimed were false allegations made against them by other prisoners were investigated by their enterprising Personal Representative. The Representatives were military officers appointed in place of lawyers in the Combatant Status Review Tribunals, the review boards established in 2004, which, as one former insider, Lt. Col. Stephen Abraham has explained, were designed primarily to rubberstamp the prisoners’ prior designation as “enemy combatants” who could be held without charge or trial.

In the case of Farouq Saif (identified by the Pentagon as Farouq Ali Ahmed), a Yemeni who was accused of guarding Osama bin Laden’s private airport in Kandahar by another Yemeni prisoner, his Personal Representative (a principled but unidentified Air Force Lieutenant Colonel) submitted a written protest after looking at Saif’s file and discovering that the government’s sole evidence that he had been at bin Laden’s airport was the statement of another prisoner, who, according to an FBI memo that he presented to the tribunal, was a notorious liar. According to the FBI, he “had lied, not only about Farouq, but about other Yemeni detainees as well. The other detainee claimed he had seen the Yemenis at times and in places where they simply could not have been.” Despite this, Saif was judged to be an “enemy combatant,” and is still held at Guantánamo.

In addition, Hegland also discussed how Mohammed al-Tumani had been ensnared by the informer’s lies, as I explained in an article in 2007:

In his tribunal, [al-Tumani] denied an allegation that he had attended the al-Farouq training camp [the main training camp for Arabs, associated with Osama bin Laden in the years before 9/11] with such vigor that his Personal Representative decided to investigate the matter further. When he looked at the classified evidence, however, he found that only one man — the same detainee mentioned above — claimed to have seen him at al-Farouq, and had identified him as being there three months before he arrived in Afghanistan. As Corine Hegland described it, “The curious US officer pulled the classified file of the accuser, saw that he had accused 60 men, and, suddenly skeptical, pulled the files of every detainee the accuser had placed at the one training camp. None of the men had been in Afghanistan at the time the accuser said he saw them at the camp.”

As with Farouq Saif, however, the Personal Representative’s protestations were in vain, because Mohammed al-Tumani was also judged to be an “enemy combatant,” and had to wait for nearly five years before President Obama’s Guantánamo Review Task Force finally “conducted a comprehensive review” of his case, and, presumably, established that the evidence against him was unreliable. What has not been explained, however, is what happened in the cases of the other 58 men who were accused by the notorious liar, or why Mohammed’s father — whose circumstances seem to have been no different — was not cleared for release as well.

A Taliban Foot Soldier?

Less is known of the second man, Moammar Dokhan, who was 29 when he was captured on the Pakistani border, as he did not take part in any tribunals or review boards at Guantánamo. According to the Pentagon, he “traveled from Saudi Arabia to Afghanistan with the stated intention of joining the Taliban,” “served as a rear-echelon guard and manned an observation post” near Bagram, and “carried a rifle while on duty at the observation post.”

With nothing else to rely on, the authorities tried to spice up this meager list with claims that “his name was contained on a list of incarcerated associates found on a computer used by suspected al-Qaeda members in Pakistan in early 2002,” and that his name “was contained on a list of captured mujahideen found in Pakistan on a hard drive associated with a high-ranking al-Qaeda operative,” although as I explained in a brief profile of Dokhan’s case last year:

It is not known if these two claims in fact refer to the same computer file, but neither provides proof of anything other than the fact that he was caught and imprisoned as a suspected militant. The “list,” as in the cases of many other prisoners, may have been nothing more than a report of the prisoners’ names, mentioned in the media or leaked by the men’s jailers, and it appears to be no more useful as evidence than the Bush administration’s claims that those in Guantánamo are “enemy combatants,” because the President decided, without the need for evidence, that that was the case.

Nevertheless, although the Taliban allegations indicate that Dokhan was, at best, nothing more than one of the lowliest Taliban recruits in an inter-Muslim civil war that predated the 9/11 attacks and had nothing to do with al-Qaeda (although Dokhan himself “denie[d] ever having been in Afghanistan”), it is surprising that Obama’s Task Force allowed him to be released, as, elsewhere, the Justice Department has been working overtime to prevent judges in the District Courts from granting the habeas corpus appeals of other prisoners whose connections to the Taliban have been no more pronounced, and, just last week, scored what appeared to be a rare victory when Judge Kollar-Kotelly ruled that a Kuwaiti prisoner, Fawzi al-Odah, could continue to be detained because the government had established, “by a preponderance of the evidence,” that he was probably involved with the Taliban and/or al-Qaeda.

Logic dictates that those who traveled to Afghanistan to serve with the Taliban are a different type of prisoner from those who were members of al-Qaeda, and were committed to plotting and pursuing terrorist attacks against the US and its allies, but logic was a rare commodity in the Bush administration, which chose instead to conflate al-Qaeda with the Taliban and to pack Guantánamo with men who knew nothing about Osama bin Laden or the 9/11 attacks, and had no involvement with terrorism. Moreover, the effects of this confusion linger to this day, as the Obama administration has chosen to maintain the same fiction that al-Qaeda and the Taliban are interchangeable, and the District Courts are also bound by this ludicrous lack of distinction.

We may never discover what the government’s secretive Guantánamo Review Task Force concluded about Moammar Dokhan (or, for that matter, about Mohammed al-Tumani), but by cutting through the hyperbole and granting these two men their freedom, the Portuguese government has just established that it has a clarity of vision that, with just four months to go until President Obama’s deadline for closing Guantánamo, remains sorely lacking in the United States.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to Mr. Worthington’s RSS feed, and also see his definitive Guantánamo prisoner list, published in March 2009.

Jack Cloonan, former FBI security and counterterrorism expert From 1996 to 2002, Cloonan was the senior case agent assigned to the "Bin Laden Squad" in the New York Office of the FBI.

Support for a wide-ranging criminal investigation into the Bush administration’s use of torture has grown to include a former top FBI interrogator and a career military intelligence officer with more than two decades of experience conducting interrogations.

Jack Cloonan, a former FBI security and counterterrorism expert who was assigned to the agency’s elite Bin Laden Unit, Col. Steve Kleinman, a career military intelligence officer recognized as one of the Defense Department’s most effective interrogators, and Matthew Alexander,who was the senior interrogator for the task force in Iraq that tracked down al-Qaeda-in-Iraq leader Abu Musab al-Zarqawi in 2006, said ignoring clear-cut evidence of interrogation-related crimes would encourage more law-breaking in the future. Alexander uses a pseudonym for security reasons.

Cloonan and Kleinman, who conducted interrogations of terror suspects after 9/11, disputed claims by former CIA Director Michael Hayden and Republican lawmakers that a criminal investigation would damage intelligence gathering and could lead to another 9/11-type attack on the United States.

In an interview, Cloonan and Kleinman said Hayden and the lawmakers were sounding “false alarms” in an effort to keep serious crimes from being exposed. “What this is really about is cover your ass,” Cloonan said. “To suggest [intelligence gathering] will come to a screeching halt if there were an investigation is not accurate.”

Last Wednesday, nine Republican senators sent a letter to Attorney General Eric Holder saying a criminal investigation into the CIA’s interrogation practices would jeopardize the “security for all Americans, “chill future intelligence activities,” and could “leave us more vulnerable to attack.”

A day later, at a panel discussion held at the National Press Club, Hayden said an investigation, “no matter how narrowly defined” will “start pulling threads.

“Continuing looking back, continuing to pull these good people through a knothole will teach people never to play to the edge, will teach people ‘yeah I got an opinion from Justice and I know the president wants me to do it and the director [of the CIA] says it’s a good thing and I know I’m capable of doing it but I just don’t think so.’ We will teach timidity to a workforce we need to be vigorous and active. And no matter how narrowly defined this look back might be it’ll start pulling threads, you’ll have a significant number of agency folks being pulled through this process, in my mind, to no good,” he said.

Cloonan and Kleinman said Hayden and the GOP senators were sounding “false alarms” in an effort to keep serious crimes from being exposed and prosecuted. Cloonan, who retired in 2002 after more than 25 years in the FBI, said neither he nor the intelligence community believes that an investigation into torture will result in a threat to national security.

“What this is really about is cover your ass,” Cloonan said about the senators’ letter. “To suggest [intelligence gathering] will come to a screeching halt if there were an investigation is not accurate.”

Kleinman, who most recently served as a senior adviser on a Director of National Intelligence-commissioned study on strategic interrogation, agreed.

“I respectfully disagree profoundly with the assessment that any effort to look back would make us more vulnerable, Kleinman said. “In fact, we have to look back to show our utmost vulnerabilities.

“I’ve had the honor of testifying before four committees of Congress and I am always astounded at the profound political partisan politics that surround this issue. I’m a professional interrogator I have 25 years of experience in this and I don’t have any concern whatsoever that an investigation into how we conducted ourselves since 9/11 would in any way undermine our ability to continue gathering intelligence.”

Furthermore, Kleinman and Cloonan believe their colleagues in the intelligence community share their views. But many are unable to speak out publicly.

Steven Kleinman is a military intelligence officer recognized as one of DoD's most effective and prolific interrogators with service as an interrogator, an interrogation team chief, and as the senior advisor on interrogation to the commander of a special operations task force in Operations Just Cause, Desert Storm, and Iraqi Freedom. He is a former director of the Air Force Combat Interrogation Course and most recently served as a senior advisor on a Director of National Intelligence-commissioned study on strategic interrogation.

“I have friends in the intelligence community who won’t speak up because to do so is almost a career ender,” Kleinman, who has more than two decades of experience in the field of interrogation, said. “Sometimes they’re in a secured status where they couldn’t admit to their job anyway. The one’s who I talked to who are experienced they’re right on board with this” possible investigation.

Kleinman and Cloonan added that the outside contractors and the interrogators who lacked the training and experience are the ones who saw the use of torture as a means to gain valuable information. Moreover, they are likely the ones who fear an investigation.

“The people who are true professionals don’t see anything wrong with an investigation,” Kleinman said. “I conducted interrogations in three separate military campaigns. I can look back if they called me in tomorrow and I would not even be thinking about getting liability insurance.

Cloonan, Kleinman and Alexander sent a letter Friday to the chairs of the House and Senate Intelligence and Judiciary Committees calling for the creation of a bipartisan commission to “assess policy making that led to use of torture and cruelty in interrogations.”

They wrote that if Holder appoints a special counsel it will mark an “important step forward” by reaffirming “the enduring power of our system of checks and balances.”

“The prohibition on torture in this country is unequivocal,” Cloonan, Alexander and Kleinman wrote. “To ignore evidence of criminal wrongdoing would incentivize future breaches of law.”

However, they added that an investigation and the potential for prosecutions “of individuals who violated anti-torture statutes alone…will not prevent policy makers from making similar mistakes in the future.”

“At the heart of the policy decisions buttressing interrogators’ use of torture and cruelty lay closed processes that have yet to be scrutinized with cool heads and wise counsel. Instead of putting in place the best policies for protecting American lives, policy makers ignored the advice of experienced interrogators, counterterrorism experts and respected military leaders who warned that using torture and cruelty would be ineffective and counter-productive.”

House Judiciary Chairman John Conyers and his counterpart in the Senate, Patrick Leahy, have both advocated for a truth commission to look into the use of torture, and other abuses, that took place during the Bush administration’s tenure. Leahy said he would not follow through on his plan without the support of Republicans, which he does not have, and Conyers’ proposal never even attracted the support of Democrats. President Obama had told the lawmakers in closed-door meetings earlier this year that he did not support those efforts.

But Kleinman, Cloonan, and Alexander said that’s a mistake. In their letter, they wrote that the path the U.S. chose to take, specifically related to interrogations, “came with heavy costs.”

“Key allies, in some instances, refused to share needed intelligence, terrorists attacks increased world wide, and al Qaeda and like-minded groups recruited a new generation of Jihadists,” they wrote.

“A nonpartisan, independent commission with subpoena power should assess the deeply flawed policy making framework behind the decision to permit torture and cruelty. Our system of checks and balances is designed to produce sound policy decisions which advance our strategic interests and are in accordance with our core values of due process.

“Many important decisions that were made during the Bush administration were done so without the consent and the advice of key Congressional leaders, Department of Justice officials, and other officials with the expertise to provide informed thinking and critical analysis. An independent commission can present recommendations for fixing this process going forward. Reviewing our policies and actions concerning detention and treatment of detainees after 9/11 will strengthen our system of checks and balances so that when faced with the next challenge, we get it right.”

Kleinman said “looking back” is not just a human rights matter.

“We absolutely have to look back otherwise if we’re attacked again or we get into a conventional war we run the risk of the same problems. It’s not just human rights. It’s operational. We squandered opportunities to collect vital intelligence” because the U.S. government chose to use torture.

Kleinman said he was “disappointed” with an op-ed column CIA Director Leon Panetta published in the Washington Post urging lawmakers to “move on” from talk of investigations and to resist focusing on the past.

“Every world class intelligence organization look at where they come from to get better,” Kleinman said. “I think it’s critical. A lot of people say this is a witch hunt. I think they’re wrong.”

No Actionable Intelligence

Cloonan and Kleinman also doubt claims, like those leveled by Dick Cheney, that the use of torture produced actionable intelligence, the type that helped prevent another terrorist attack on U.S. soil and “saved hundreds of thousands of lives,” to quote the former vice president.

“The ticking time bomb scenario is great for books and television but it didn’t exist. There wasn’t a ticking time bomb. Gen. [Michael] Hayden and Vice President Cheney are making this argument that nobody I know of thinks is true. They say they got substantial information from [Khalid Sheikh Mohammed” through torture. But Mohammed gave up “information that everybody already knew. At least on the FBI side. There was nothing new there. [The FBI] would have heard about it if his” torture produced valuable intelligence.

Alexander, who published a book about the capture and interrogation of Zarqawi titled How to Break A Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down The Deadliest Man in Iraq, agreed.

In an interview last December with Jon Stewart, host of the The Daily Show, Alexander said he “never saw coercive methods [pay off]…When I was in Iraq, the few times I saw people use harsh methods, it was always counterproductive.”

“The person just hunkered down, they were expecting us to do that, and they just shut up,” he said. “And then I’d have to send somebody in, build back up rapport, reverse that process, and it would take us longer to get information.”

Matthew Alexander led an interrogations team assigned to a Special Operations task force in Iraq in 2006. Alexander personally conducted over 300 interrogations and supervised over 1,000 more. It was his team of interrogators that successfully tracked down Abu Musab al-Zarqawi, the leader of al-Qaeda in Iraq.

Cheney claims he has a file that contains classified smoking-gun documents that will show that torture staved off an imminent terrorist attack. Those documents may be released Monday along with a declassified version of a 2004 CIA inspector general’s report on the agency’s torture program that raised doubts about the legality of the methods used. The report says the CIA conducted mock executions and threatened a high-value detainee with a gun and power drill.

Cloonan said he had a “long conversation” with members of the Senate Intelligence Committee after he testified before the panel last year and was told that there isn’t a smoking-gun document that will show torture was effective on any of the high-value detainees who were brutally tortured. He said soon the public will find that it out too.

“I think at a minimum you’ll see a third party review that it’s ambiguous at best,” Cloonan said. He added that the best way to get “actionable intelligence is rapport building. It’s the only way.

“Unfortunately, a lot of time and effort was squandered” by using coercive methods. “There were a lot of interrogators—contractors—who would not take no for an answer and and wouldn’t accept that these detainees did not know anything. They stumbled. They resorted to the easiest means. They were being pressured.”

In a stunning reversal, Hayden, who has said that torture, or “enhanced interrogation” methods, thwarted attacks admitted during his panel discussion at the National Press Club, that the torture of high-level detainees didn’t stop imminent attacks, but was successful “in terms of our learning of the basic infrastructure of al-Qaeda and then enabling the agency counterattack against both the infrastructure and the leadership of al-Qaeda.”

Hayden, who said he “pushed back” on the release of the report, added that in the 200-page document there are a mere “half-a-dozen paragraphs that talk about the success of the [torture] program” from the perspective of learning about the way al-Qaeda operates.

Hayden added that report has been “down on the Hill” since 2004 and available to Congress since 2006 so “why would the release of this report prompt us to have a special prosecutor and any other kind of activity? I just think it’s destructive of the agency and unfair to the good people who did what they did out of duty not out of enthusiasm and did what the nation asked them to do.”

CIA IG Report

Kleinman said the news reported over the weekend by several publications that the CIA’s IG report will show that agency interrogators conducted a mock execution, brandished a gun and a power drill during the interrogation of at least one detainee underscores how haphazard the intelligence gathering process turned out to be and why the policies that resulted in such horrific acts warrants a thorough public vetting.

“I defy anybody in the intelligence community to bring forward the research, the thoughtful objective analysis that purports to support that mock executions is a consistent and effective means of getting accurate information from people,” Kleinman said. “Show me the studies that say causing a great deal of fear is consistently successful in getting useful information. Because there won’t be.

“What people are doing is they’re just scrambling because they don’t know what else to do. They’re scrambling for some sort of technique and they’re just using things that they think ‘well that will scare me so it must scare them. It would make me talk so it must make them talk.’ Sure, they’ll talk. But they’re talking because they are afraid they are going to die. And they will say anything to keep from dying.”

The disclosure was made in a footnote in a 33-page petition the Obama administration filed Friday 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 confirms that the contents of the 44 images at issue, which was first reported by The Public Record, 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.]

The petition requests that the high court take up the administration’s appeal of a lower court’s ruling requiring the Department of Defense to turn over the photographs to the American Civil Liberties Union. The ACLU filed a Freedom of Information Act lawsuit in 2003 to gain access to the images.

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 Obama’s decision not to fight a final ruling in March by the U.S. Court of Appeals for the Second Circuit that called upon the Department of Defense to release the photographs. Obama indicated he would abide by that decision but he abruptly shifted his stance after he was publicly criticized by the likes of Dick Cheney and his daughter, Liz.

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.

“The legal team here and at other agencies were very convinced [the case] was not winnable,” White House Press Secretary Robert Gibbs told reporters on April 20.

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 Friday, the administration argued that a specific provision of FOIA allows the withholding of information if it threatens the lives of individuals.

The petition 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 Obama administration’s arguments are not that much different from the Bush administration’s, which were rejected by 2nd Circuit Court of Appeals. The appeals court said threats needed to be specific in order to justify withholding information.

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 rules.

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.”

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 to the ACLU would threaten national security and could lead to the deaths of American servicemen and women in Iraq and Afghanistan.

Amrit Singh, an ACLU staff attorney, said the legal arguments put forth by the Obama administration were “soundly rejected” by the Second Circuit.

“It’s unfortunate that the government has chosen to contest that decision,” Singh said. “These photos would provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib. As disturbing as the photos may be, it is critical that the American people know the full truth about the abuse that occurred in their name.”

Klingenschmitt, who now runs a Colorado Spings-based nonprofit, “The Pray in Jesus Name Project,” is also fond of boasting to his right-wing extremist followers that he demanded his own court martial because his superior officers prohibited him from praying in the name of Jesus.

But those claims are flat-out lies.

He was actually charged with disobeying an order and kicked out of the Navy for attending a political rally in front of the White House in March 2006 dressed in his Navy uniform, a violation of military regulations. Dozens of media reports over the years have since debunked Klingenschmitt’s dishonest statements  about the nature of his court-martial.

Furthermore, what makes Klingenschmitt’s claims of religious persecution so unbelievable is the fact that there have been dozens of examples where controversial, apocalyptic “End Times” evangelists like Klingenschmitt have force-fed their brand of fundamentalist Christianity down the throats of thousands of active-duty military personnel in Afghanistan and Iraq–in violation of the Establishment Clause of the Constitution–and the Department of Defense has turned a blind eye to the offenses, despite a mountain of complaints from the battlefield.

Perhaps the tallest tale Klingenschmitt has told his rabid right-wing following is the one in which he claims to have sacrificed a seven-figure pension in the name of Jesus.

That assertion is contradicted by an e-mail he sent in October 2006 to the Vice Adm. John Harvey, Jr., Chief of Naval Personnel stating that he would offer his “voluntary resignation or retirement,

Please click on this image to read the contents of Gordon Klingenchmitt's e-mail

and drop all complaints of reprisal/harassment, and waive all rights to future legal complaints against the Navy, if I were offered adequate compensation for my many years of service to our nation.”

His e-mail, obtained by The Public Record, made other veiled threats in an effort to get the Navy to pay him off in exchange for his silence.

For example, Klingenschmitt, who refused to comment for this story, threatened to turn over “documents,” supposedly backing his claims that he was being persecuted for praying in Jesus’ name, to Congress if his case was “unresolved.”

“Perhaps you’ve also noticed, both the Senate and House have scheduled hearings in January on this chaplain issue, and as their key whistleblower I’m sure they’ll be interested in my attached documents, should my complaint of new reprisals by [Chief of Naval Personnel] remain unresolved. Sir, I look forward to meeting you on Capitol Hill.”

In June of 2006, Klingenschmitt submitted a whistleblower complaint with members of Congress in which he accused naval officials of constitutional violations for prohibiting  him from praying in the name of Jesus, which an 18-month investigation conducted by Navy officials concluded was “without merit.”

The “documents” Klingenschmitt cited in his e-mail to Vice Adm. Harvey were two newspaper articles, one from the Washington Post and the other from the Washington Times. It’s difficult to understand how Klingenschmitt would have believed these articles supported his cause.

The Washington Post report, published in September 2006, was headlined: “Navy Chaplain Guilty of Disobeying an Order.” The Washington Times article appears to be one written by an Associated Press reporter the newspaper carried on Sept. 12, 2006, headlined: “Navy chaplain faces court-martial for wearing uniform at protest.”

Other documents Klingenschmitt threatened to turn over to Congress included a petition, or something similar, that supposedly showed he was supported by “30 million evangelicals” and a “conference report ordering the [Secretary of the Navy] to rescind [non-sectarian prayer] policy.”

The Navy declined to settle with Klingenschmitt in exchange for his offer to drop his complaint.

Klingenschmitt’s e-mail was written less than a month after a Navy court found him guilty of disobeying an direct order not to wear his Navy uniform to a March 30, 2006 political rally in front of the White House. He was also issued a letter of reprimand.

Klingenschmitt appeared at the White House rally alongside former Alabama Chief Justice Roy Moore, another right-wing religious zealot, who waged an unsuccessful campaign to keep a monument of the Ten Commandments at the state courthouse.

Kligenschmitt, who was an Air Force officer for 11 years prior to becoming a Navy chaplain in 2002, had also worked closely with Rep. Walter B. Jones, R-N.C., and other members of Congress, in lobbying the Bush administration to sign an executive order authorizing military chaplains to pray “in the name of Jesus.” That effort also proved to be futile.

In closing arguments of Klingenschmitt’s court-martial, where Moore testified on Klingenschmitt’s behalf, Cmdr. Rex A. Guinn told jurors that the case was not about praying in Jesus’ name, rather it was “about an experienced military officer receiving a clear order to not do something.”

Klingenschmitt’s attempts to appeal the guilty verdict were denied.

Further undercutting Klingenschmitt’s claim that he sacrificed his naval career in the name of Jesus is an e-mail Vice Adm. Harvey sent to Chief of Naval Operations Adm. Michael Mullen urging him to approve Klingenschmitt’s “involuntary release” from the Navy due to Klingenschmitt’s “lack of career potential.”

The e-mail was sent to Mullen a week before Klingenschmitt’s appearance at the rally. It noted that Klingenschmitt was insubordinate in his campaign to overturn longstanding military religious policies.

“This officer is the individual who conducted a hunger strike in front of the White House several months ago and has engaged in other actions concerning [Defense Department] and Navy Religious Ministry policies,” the e-mail said.

In February 2007, following his court-martial, Klingenschmitt sent a lengthy screed to Secretary of the Navy Donald Winter in which he came across as highly unstable and unwilling to accept the fact that he was denied his pension–hardly the voluntary gesture of a chaplain who said he sacrificed his livelihood for Jesus. His letter accused Navy officials of “raping” him because he filed a whistleblower complaint alleging his civil rights were violated.

Mikey Weinstein, the president and founder of the watchdog group The Military Religious Freedom Foundation (MRFF), said the disgraced chaplain’s Oct. 6, 2006 e-mail to Vice Adm. Harvey requesting a cash settlement in exchange for dropping his complaints shows that Klingenschmitt is nothing more than a modern day “Judas Iscariot.”

“In my opinion, the shocking revelation of this blatantly extortionate demand letter for payoff money from Klingenschmitt to senior U.S. Navy leadership paints a crystal clear picture for all the world to see,” Weinstein said in an e-mail message. “That shamefully irrefutable picture is none other than one of a morbidly hypocritical, 21st Century, Judas Iscariot lustfully eager to betray his boundlessly self-professed piety, proselytizing ministry and missionary zeal for Jesus ‘for the right price’ to be paid to him by the United States Navy.

“However, whereas the original Judas allegedly managed to get paid his 30 pieces of blood money silver for the betrayal of Jesus, the U.S. Navy apparently made it unquestionably clear to Iscariot’s 21st Century clone, Klingenschmitt, that they would NOT pay him and he could in the alternative, essentially, simply go to hell. Indeed, any remaining molecules of good faith credibility Klingenschmitt may have had would now seem to be as extinct as the dinosaurs.”

In April, MRFF and Americans United for Separation of Church and State (AU) sent a letter to naval officials calling for an investigation into Klingenschmitt for continuing to represent himself as an active-duty Navy chaplain.

On his website, Klingenschmitt, who was trying to raise funds for his new endeavor when MRFF and AU lodged their complaint, posted a photograph of himself dressed in his Navy uniform and referred to himself as “Chaplain Gordon James Klingenschmitt.” Federal law prohibits the misuse of military uniforms.

Klingenschmitt then posted a lengthy disclaimer and referred to Weinstein and Americans United executive director Rev. Barry Lynn as “boneheads.”

“The views of former Navy Chaplain Klingenschmitt do not represent the views of the U.S. Navy. The picture of Chaplain Klingenschmitt in uniform is a picture of his former self, taken while he was serving on active duty, therefore he was not impersonating an officer, he actually WAS an officer when the photo was taken (Duh).”

In May, Klingenschmitt urged his followers to pray for the death of Weinstein and Lynn.

“Let us pray. Almighty God, today we pray imprecatory prayers from Psalm 109 against the enemies of religious liberty, including Barry Lynn and Mikey Weinstein, who issued press releases this week attacking me personally. God, do not remain silent, for wicked men surround us and tell lies about us. We bless them, but they curse us. Therefore find them guilty, not me. Let their days be few, and replace them with Godly people. Plunder their fields, and seize their assets. Cut off their descendants, and remember their sins, in Jesus’ name. Amen.”

Since he was kicked out of the Navy, Klingenschmitt has made a career out of twisting the true facts of his story and has cast himself as a martyr in the process. His followers have overlooked his long list of lies and half-truths. But former colleagues have routinely called him out.

As reported by AU, Norm Holcomb, a retired Navy chaplain who was Klingenschmitt’s boss, sent an e-mail in March 2007 to Kentucky state officials after he discovered the House of Representatives passed a resolution lauding the disgraced Navy chaplain for “service to God, country and the Commonwealth of Kentucky” and invited him to lead a prayer session.

“I was the dishonored ex-chaplain’s supervisor for the past 2 years,” Holcomb wrote in his message. “I found him to be totally untruthful, unethical and insubordinate. He was and is contemptuous of all authority. He was not court-martialed for praying in Jesus’ name. I sent him out in uniform every week to pray at various ceremonies and functions. He always prayed in uniform and in Jesus’ name.

“He was never told that he could not pray in Jesus’ name. In fact, the issue of prayer had nothing at all to do with his dismissal from the Navy. He disobeyed the lawful order of a senior officer. I am sure that you understand that Navy Regulations forbid any of us, regardless of rank or position, to appear in uniform in support of any political or partisan event.

“We have been relatively quiet regarding our ex-chaplain’s untruthfulness and lack of honor because we are embarrassed that one of our own could display such behavior in the name of our Lord. We wanted to spare all concerned the embarrassment associated with his dishonesty. However, it now seems that it would be wrong for those of us who know the truth to remain silent. I served with him and supervised him (as best as it was possible to supervise a person who refused to submit to lawful authority) and I know about his daily dishonesty and ‘spin’ of the truth.”

The bar for the government is extraordinarily low in habeas hearings. All the Justice Department has to do is demonstrate that a detained person might have committed some crime. The government does not have to prove a specific crime beyond a reasonable doubt. Yet, in most of the habeas cases, the government cannot produce even this bare minimum amount of credible evidence.

The staggering losses show that the government has been shockingly wrong in its detention policies. Seeking to save face, the government has been venue-shopping with the Gitmo cases – matching cases with the legal system most likely to produce a favorable outcome for the government.

Here’s how it works: If the government has reliable evidence untainted by abuse, it may send a detainee’s case to federal court. If the evidence is unreliable or tainted by abuse, the case goes to the military commissions where the standards are lower.

My client, Fayiz Mohammed Ahmed al-Kandari, is facing charges before a military commission based on evidence that an internal Department of Defense review found was “made up almost entirely of hearsay evidence recorded by unidentified individuals with no first-hand knowledge of the events they describe.”

Think about that for a minute. Fayiz has been detained for more than seven years on the flimsiest of evidence, so he gets to face a second-tier justice system that’s more tolerant of flimsy evidence. That’s if his case ever proceeds. After years of meticulous design and tweaks, the commission system has only managed to complete three cases.

Make no mistake about it, venue-shopping isn’t about justice for the detainees. It’s a desperate move by the government to rack up some wins. In these weak cases, however, perhaps there’s a better solution where both sides win – rehabilitation.

On a recent trip to Kuwait, I was pleased to learn that Kuwait, like Saudi Arabia, had built a rehabilitation center in anticipation of the return of its four remaining citizens. The center comes at just the right time. One Kuwaiti, Khaled Al Mutairi, was ordered released this week and the remaining three, including Fayiz, have their habeas hearings scheduled in the next two months.

I was impressed by the well-designed and secure facility. The staff includes medical and religious specialists designed to treat not only the individual but also his entire family, a necessity for reintegration into society following nearly eight years of incarceration.

If government’s cases are so weak that federal judges are throwing them out of court, wouldn’t the administration’s time be better spent focusing on the successful reintegration of detainees back into society?

While there are some bad men at Guantanamo, most detainees are not “worst of the worst.”  That’s certainly true in the case of the Kuwaitis. It’s time for us to work with Kuwait, one of our coalition partners in the global war on terror, to transfer and successfully rehabilitate its detainees. One Kuwaiti has already been ordered released due to a lack of evidence. More will certainly follow.

Lt. Col. Barry Wingard is a member of the Pennsylvania Air National Guard, who represents Fayiz al-Kandari, a Kuwaiti who has spent seven and a half years in U.S. custody at Guantanamo Bay without trial.

For a complete archive of al-Kandari’s case and links to Col. Wingard’s previous op-eds, please visit The Political Carnival.