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

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

Attorneys for Abu Zubaydah say they have been trying to mount a meaningful defense for the “high-value” detainee, who has been in the custody of the US government since March 2002, and have also sought legal remedies outside of the United States to hold accountable those who were complicit in his rendition and torture.

But the attorneys claim their efforts have been stymied by the Justice Department (DOJ), which refuses to turn over to them critical documents they need to press forward with Zubaydah’s case.

For example, late Thursday, Zubaydah’s legal team filed a lawsuit against Lithuania with the Strasbourg-based European Court of Human Rights (ECHR), the leading human rights tribunal in the world, over the country’s failure to reopen an investigation into its role in Zubaydah’s rendition to a CIA black site prison in Lithuania and the torture he was subjected to there in 2005.

But the DOJ on Wednesday told Zubaydah’s lawyers they would not declassify and turn over to them a power-of-attorney form Zubaydah signed earlier this year authorizing his legal team to file the lawsuit against Lithuania on his behalf.

The DOJ, according to Brent Mickum, one of Zubaydah’s attorneys, refused to consider the document for declassification because the government maintains it has nothing to do with Zubaydah’s habeas corpus case pending before a federal court judge in Washington, DC.

“How the government, with a straight face, could contend that facts relating to Zubaydah’s detention in CIA custody at a CIA black site in Lithuania has no bearing on his defense is inconceivable to me,” Mickum told Truthout. “The government is essentially trying to force us to sit idly by as the years pass and do nothing to further our client’s interest a prepare his defense. But we can’t do that. We are required to zealously pursue his defense by our profession’s Canon of Ethics.”

Alex Abdo, a staff attorney with the American Civil Liberties Union’s (ACLU) National Security Project, said, “it is difficult to imagine what possible basis the government could have for refusing to release a document proving nothing more than the existence of an attorney-client relationship.”

Mickum said the government demanded he justify how the power-of-attorney form would be used in Zubaydah’s habeas case, which he would not do because “it would require us to provide the government with information that is protected under the ‘work product doctrine.’”

“There is nothing that we, as Zubaydah’s counsel, are doing that is not intended to directly support his habeas case,” he said.

Zubaydah and more than a dozen other high-value detainees, who are being held at the Guantanamo Bay prison facility, are subject to a strict protective order that deems all of their communications classified. A government “privilege team” based in Washington, DC, must first review materials, which includes notes, letters and memos, to determine whether it can be cleared for declassification.

According to a confidential letter filed with the lawsuit submitted ECHR Thursday, the DOJ’s refusal to declassify Zubaydah’s power-of-attorney form now requires his lawyers to seek legal remedies against the US government court for interfering with the Lithuania case. In lieu of Zubaydah’s signed power-of-attorney form, according to the letter, his attorneys have asked the human rights court to accept an authorization form signed by Joseph Margulies, one of Zubaydah’s other attorneys, that was submitted in July.

Dean Boyd, a DOJ spokesman, said Thursday, prior to the lawsuit being submitted to ECHR, that “we will not comment on a court document that has not yet been filed and which we have not had an opportunity to review.”

“Victim of Torture”

Zubaydah’s US attorneys have been working with human rights groups Reprieve and the International Centre for the Legal Protection of Human Rights (Interights) on the case.

The lawsuit “seeks a determination by the European Court of Human Rights recognizing [Zubaydah] as a victim of torture, secret detention and enforced disappearance on Lithuanian soil,” a news release distributed by Interights states.

Interights said, “due to a communication ban imposed by the CIA, the U.S. Department of Justice and the Department of Defense that prevents him from publicizing the facts in his case,” Zubaydah cannot “defend himself publicly.”

Lithuanian government officials shut down the investigation in January and said last week they would not reopen their probe, despite the emergence of new evidence obtained by human rights groups in the form of flight logs that showed Zubaydah was flown from Morocco to Lithuania aboard a Boeing 737 in February 2005.

Crofton Black, an investigator with Reprieve, said the lawsuit “is a deeply embarrassing development for the Lithuanian Government.”

“Because [the Lithuania government has] been unwilling or unable to get to the bottom of their part in the murky business of rendition, they are now being dragged before the European Courts,” Black said. “Lithuania’s role in the CIA’s secret prisons programme will continue to be a stain on their international reputation, unless they undertake a proper, thorough inquiry into just what abuses were allowed to happen in their country.”

Zubaydah was captured, along with 51 other alleged terrorists, during an early morning raid of a safehouse in Pakistan on March 28, 2002, in an operation conducted jointly by the CIA, FBI and Pakistani intelligence. The Bush administration said publicly after Zubaydah was apprehended that he was the No. 2 person in al-Qaeda, was involved in every major terrorist operation planned by al-Qaeda and was one of the planners of the 9/11 attacks.

A legal memo prepared by Justice Department attorneys Jay Bybee and John Yoo in August 2002, which authorized the CIA to use brutal torture techniques on Zubaydah, said because the Palestinian was “one of the highest ranking members of the al-Qaeda terrorist organization,”  torturing him was necessary to thwart pending attacks against US interests, which the CIA claimed Zubaydah knew about.

But in a stunning admission last year first reported by Truthout, the DOJ backed away from nearly every major claim the Bush administration made about Zubaydah, including his membership in al-Qaeda and his role in 9/11 and other terrorist attacks, stating in a court filing in response to a discovery motion filed by Zubaydah’s attorneys in his habeas case that their “understanding of [Zubaydah's] role in terrorist activities has … evolved with further investigation.”

Classification Abuses Alleged

Additionally, the government declined to declassify for the purposes of the lawsuit against Lithuania a signed declaration from Zubaydah totaling about 15 pages detailing the torture he was subjected to during his imprisonment at CIA-run prisons his attorneys had hoped to submit along with the power-of-attorney form.

The CIA also refused to process a mandatory declassification review Truthout filed last month of Zubaydah’s poetry, short stories and other writings and about ten drawings he made, while imprisoned at black site prisons, depicting the torture he endured. Susan Viscuso, the CIA’s information and privacy coordinator, told Truthout in two separate letters that the materials, “should they exist,” would be part of the agency’s “operational files,” which means “records and files detailing the actual conduct of [CIA's] intelligence activities.”

CIA operational files are exempt from Freedom of Information Act (FOIA) searches, reviews and “disclosure requirements.”

Two years ago, Mickum filed a motion in federal court in Washington, DC, that accused the government of “improper classification” of documents that included statements Zubaydah made describing “the interrogation techniques inflicted upon him while in CIA custody … other personal knowledge of his experience within the CIA Torture and Rendition Program and … statements made by [Zubaydah's] counsel based upon information that is found within the public domain.”

In March, US District Court Judge Richard Roberts issued a four-page order in response to that motion that said that any statements Zubaydah has made to his attorneys describing the torture he endured must remain classified and cannot be revealed publicly in court filings

Roberts said Zubaydah’s legal team, in seeking to have Zubaydah’s statements related to his treatment declassified, was essentially trying to bring “a FOIA challenge in the midst of a habeas petition.”

“… The government must provide petitioner’s counsel, not the public at large, with classified information unless the government moves for an exception to disclosure,” Roberts wrote.

Abdo, the ACLU staff attorney, said, “unfortunately, this type of suppression is nothing new.”

“For years, lawyers for Guantanamo detainees, even detainees conceded by the government to be innocent, have been prohibited from publicly revealing the gross details of torture and mistreatment documented in government records produced during their clients’ cases,” Abdo said. “The government’s continued suppression of evidence of government abuse is anathema to an informed democracy and only underscores the continuing and urgent need for transparency and meaningful accountability for government torture and cruel treatment.”

New Policy

Mickum said the secrecy that now surrounds Zubaydah’s power-of-attorney form is another bizarre development in Zubaydah’s case.

He said he printed a blank power-of-attorney form off of a web site and, during a recent trip to Guantanamo, took it to Zubaydah for his signature.

But when he attempted to take the document into a meeting with Zubaydah, he was told that the Department of Defense and the DOJ now required him to have all documents cleared by the privilege team in Washington, DC, which could take weeks. Another attorney on Zubaydah’s legal team had to return to Guantanamo to have Zubaydah sign the document, after the blank document was finally cleared.

Once Zubaydah signed the form, the document was immediately classified top secret and, according to Mickum, put into an envelope that was “double-sealed” and taken to a secure facility in Washington, DC, by a government official who transports such documents in a briefcase handcuffed to his wrist and then places them into a safe. Mickum, who has top-secret security clearance, then had to go to the secure facility and submit the document to the privilege team again for their review and request that it be declassified.

Mickum said the government’s procedures, which were implemented by the Obama administration within the past year, make it difficult for him to do his job.

“Anything we take into a meeting with our client in Guantanamo has to first be cleared by the privilege team,” he said. “It could be something as simple as a newspaper article that cites him by name.”

Mickum said he believes the policy is less about protecting classified information and more about shutting down any public access to the facts in the case.

“There’s absolutely no reason or justification for it,” he said. “But this process has never been about fairness or justice.”

The DOJ’s hard-line stance pertaining to Zubaydah’s authorization form in the Lithuania case is at odds with the position the government took when Zubaydah’s attorneys sought declassification of an identical form used in a similar lawsuit filed against Poland, which agreed in January to grant Zubaydah “victim” status.” Zubaydah was transferred from a CIA black site in Thailand, where he had his eye surgically removed by US medical personnel and was first subjected to brutal torture techniques approved by Bush administration lawyers, to a secret CIA prison in Poland in December 2002 and held there for about nine to ten months.

Mickum said he’s not surprised by the government’s inconsistent position on the power-of-attorney form.

“The government cleared it for release in the Poland case,” Mickum said. “Now, with the Lithuania case, they realize the purpose of it and that we will use information we obtain to defend our client in his habeas case; that is why they’re saying ‘no.’”

In effect, Judge Eloy Velasco sent the case back to the U.S. at the request of the Department of Justice, who argued in their March 1, 2011 letter to the judge that the U.S. is plenty interested in investigating and prosecuting torture and other war crimes. Besides the cases of CIA contractors David Passaro and Don Ayala (Marcy Wheeler discusses the Passaro case here), assorted Defense Department prosecutions of “bad apple” abusers, and the lingering Durham investigation, the U.S. representation cannot dredge up any significant criminal investigations — except one (if it is one).

The letter rogatory to the Spanish court refers to “pending federal investigations by the United States Attorneys’ Office for the Eastern District of Virginia” on “various allegations of abuse of detainees.” (p. 3-4 of letter) In addition the letter refers to “pending status and legal restrictions on the disclosure of investigative information, including rules of grand jury secrecy”. Since there has been no previous reports on current grand jury proceedings in the Eastern District on detainee abuse that I know of, is this a reference to the former cases since sent from the Eastern District by Attorney General Holder in 2009 for review by special prosecutor John Durham? Or is this something new? Have some of the cases under preliminary review by Mr. Durham now reached full investigation status?

DoJ Keeps Mum on Virginia “Pending” Investigation

In response to such questions, Dean Boyd, spokesman for the National Security Division at the Department of Justice replied to me today, “There is nothing further I can provide to you on this matter beyond what is in the document.”

Since the U.S. representation to the Spanish court was meant to convince the judge that the U.S. was serious about seeking investigations and prosecutions regarding torture, it is important to know whether a new stage in the otherwise dilatory investigations by the Obama administration, who famously has announced it would rather look forward and not backwards when it comes to investigating torture, has been hereby announced, or whether this was a con job by DoJ, describing the Eastern District grand jury as somehow still in play, when in reality, its actions on detainee abuse are non-existent, waiting for some determination of the review by Durham and his office.

Durham’s review has also been going on for over a year and a half now. But it was last June when, according to an article at Main Justice, Attorney General Holder said in remarks at the University of the District of Columbia Law School, that Durham was near the end of his preliminary review, and ”close to the end of the time that he needs and will be making some recommendations to me.” Did those recommendations include a referral back to the Eastern District for investigation and prosecution of those cases? According to the article, “several Justice officials cautioned that although Durham is nearing completion, it may take weeks or months to absorb his findings and decide what steps, if any, to pursue next.”

In a rebuttal letter to the U.S. response, the Center for Constitutional Rights (CCR), which has been championing the Spanish prosecution, appears to believe the entire episode as written up in the recent March 1 letter is a smokescreen for a whole lot of nothing. CCR wrote, “The U.S. Submission tries to hide behind the secrecy aspects of the grand jury proceedings to suggest that this investigation is a robust investigation into detainee abuse. It is notable, however, that the United States government has not spoken of any investigation in Virginia when discussing US investigations into US torture…” (PDF).

It must be galling to those looking to the Spanish court, and the hard workers at CCR especially, to see Judge Velasco so quickly take U.S. guarantees of sincerity as good coin. The U.S. had told the court, “The United States will continue to address allegations of abuse by its personnel, at home and abroad, and therefore believes it is appropriate for the Spanish courts to refer complaints related to such matters to the United States for appropriate review and action.”

CCR responded, noting the Obama administration policy of impunity for torture among mid-level and high-ranking government figures:

Through its actions and inactions, the U.S. clearly has demonstrated its unwillingness to exercise its jurisdiction to investigate and prosecute the named defendants for serious violations of international law. To refer this investigation from Spain to the United States would be to knowingly transfer this case to be closed.

Those following the torture scandal will find high irony in the U.S. claims that the DoJ Office of Public Responsiblity (OPR) and Senate Armed Services Committee (SASC) investigations, into DoJ Office of Legal Counsel malfeasance on the torture memos and on the origins and spread of the DoD torture program, respectively, are somehow indicative of U.S. good faith on investigations. The OPR report found government attorneys John Yoo and Jay Bybee to be guilty of “professional misconduct,” only to have DoJ Associate Deputy Attorney General David Margolis downgrade the OPR decision. The SASC investigation found the torture at Abu Ghraib, Guantanamo and elsewhere to be the responsibility not of “bad apples” in the military, but of high officials who promoted a program of torture and detention abuse.

It seems unlikely that the Durham investigation is actually going to bear any fruit, or that a grand jury investigation on detainee abuse is actually underway in Virginia. Sooner or later, we will know the truth. But whatever it is, the actions and policy of the Obama administration won’t fundamentally change, as high officials, such as those identified in the Spanish case — David Addington, Jay S. Bybee, Douglas Feith, Alberto R. Gonzales, William J. Haynes, and John Yoo — are not in any danger of prosecution. The U.S. has made that clear numerous times, and most lately in the response to the Spanish judge.

Update, Thursday morning, 7:25 PDT,: Center for Constitutional Rights released a statement today regarding Velasco’s dismissal of “this politically charged case,” noting that the U.S. made it clear in it’s statement that “the Department of Justice has concluded that it is not appropriate to bring criminal cases with respect to any other executive branch officials, including those named in the complaint, who acted in reliance on [Office of Legal Counsel] memoranda during the course of their involvement with the policies and procedures for detention and interrogation.”

“This decision is a cowardly political act by a judge afraid to pursue justice under his country’s own laws. He is hiding behind the fig leaf of the U.S.’s scant seven-page response, but the submission made clear the U.S. has no intention of investigating these crimes or holding higher-level officials accountable for torture. As we saw from the WikiLeaks cables, the U.S. has been pressuring Spain to drop the case and interfering with the independence of judges. A second U.S. torture case remains open in Spain after a higher court ruled it should continue on February 25. Judge Velasco asked for opposing views but then issued his decision without even looking at our detailed submission refuting the U.S. claims. We will fight this decision and continue to demand accountability for torture.”

According to a November 13 NSA press release:

The National Security Archive posted today its original FOIA request, the government’s response, our appeal by counsel David Sobel, the legal complaint in the case National Security Archive v. Department of Justice, the interim response from DoJ, the “Vaughn index” of withheld pages and alleged justifications for the withholding, and the 45 pages of partial and highly-redacted response.

The evocation of words like “accountability” in the context of suppressed documents, leaks, and war crimes has an eerie resonance in the context of the current struggle to gain accountability for current and recent U.S. war crimes surrounding the methods by which “intelligence and facts were being fixed around the policy” of invading Iraq, the widespread use of torture and extraordinary rendition by the government and its allies, and a policy of illegal human experimentation on “war on terror” prisoners.

The fact that DoJ would still be trying to hide information from decades-old files surrounding the U.S. recruitment of Nazi war criminals does not bode well for those trying to force the U.S. government from President Obama’s “Don’t Look Back” policy towards war crimes. In fact, it took almost fifty years to get a significant opening of U.S. archives to look at government actions at the close of World War II. The NYT leaked document is but the latest in a string of revelations about the use of both high and low ranking Nazis by the U.S. government. Author Christopher Simpson wrote the first major book, Blowback: America’s Recruitment of Nazis and Its Effects on the Cold War, documenting this history in 1988, followed by Linda Hunt’s excellent Secret Agenda: The United States Government, Nazi Scientists, and Project Paperclip, 1945 to 1990, and other books, many of them unfortunately now out of print.

Anyone wanting to become an archival researcher in Nazi or Japanese war crimes can begin at the National Archives webpage for the Interagency Working Group (IWG), where there are links to tens of thousands of documents and millions of pages from the files of the CIA, FBI, military intelligence, OSS and other agencies. The IWG issued their Final Report of the Nazi War Crimes and [Japanese] Imperial Government Records Interagency Working Group in April 2007, and is available online.

Revelations on U.S. Recruitment of Nazis

The OSI report is not without its new revelations. According to Lichtblau:

The full report disclosed that the Justice Department found “a smoking gun” in 1997 establishing with “definitive proof” that Switzerland had bought gold from the Nazis that had been taken from Jewish victims of the Holocaust. But these references are deleted, as are disputes between the Justice and State Departments over Switzerland’s culpability in the months leading up to a major report on the issue.

Another section describes as “a hideous failure” a series of meetings in 2000 that United States officials held with Latvian officials to pressure them to pursue suspected Nazis. That passage is also deleted.

In its paranoia and animus against its former Soviet ally (a paranoia and animus that ran in two directions), the United States turned to the recruitment of former Nazis in an attempt to gain intelligence and military superiority over the Soviet Union. The Times article describes how the report details the stories of infamous Nazi war criminals protected by the United States.

There was Arthur L. Rudolph, a Nazi scientist who used slave labor to operate Mittelwerk underground factories that produced the V-2 rocket. Twenty-five thousand slave laborers perished in the terrible conditions and treatment meted out at Mittelwerk. But Rudolph was protected from prosecution and went on to work for NASA as a primary designer of the Saturn rockets that took U.S. astronauts to the moon.

The article also notes the CIA’s recruitment of “Otto Von Bolschwing, an associate of Adolf Eichmann who had helped develop the initial plans ‘to purge Germany of the Jews.’” The Times article gentlemanly forbears the whole story, which was revealed in a 2006 UK Guardian story on new information found in a massive release in that year of CIA documents on its Nazi past. (CIA watchers should note the ironies entailed in the fact the release was approved by then CIA director Porter Goss.) Von Bloschwing, it turns out, had also been Heinrich Himmler’s representative in Romania.

According to the UK Guardian:

After the war Bolschwing had been recruited by the Gehlen Organisation, the prototype German intelligence agency set up by the Americans under Reinhard Gehlen, who had run military intelligence on the eastern front under the Nazis. “US army intelligence accepted Reinhard Gehlen’s offer to furnish alleged expertise on the Red army – and was bilked by the many mass murderers he hired,” said Robert Wolfe, a historian at the US national archives.

Of even more interest, perhaps, was the U.S. recruitment of Nazis and war criminals for its clandestine secret military groups after the war. Such secret armies were organized across Europe in the aftermath of World War II, and were later implicated in a number of right-wing terrorist actions and coups. The headquarters for this was ultimately centered in the NATO high command, and its various activities, including false flag operations to implicate leftists as terrorists became known as Operation Gladio.

Again, from the UK Guardian article:

Alongside the Gehlen Organisation, US intelligence had set up “stay-behind networks” in West Germany, who were supposed to stay put in the event of a Soviet invasion and transmit intelligence from behind enemy lines. Those networks were also riddled with ex-Nazis who had horrendous records.

One of the networks, codenamed Kibitz-15, was run by a former German army officer, Lieutenant Colonel Walter Kopp, who was described by his own American handlers as an “unreconstructed Nazi”.

A more detailed description of the U.S. organization of stay-behind networks is told in an essay by Timothy Naftali at the University of Virginia (PDF).

The New York Times is to be commended for the release of this important new document, whose 600-plus pages will take awhile to be fully digested. The Times also was one of four news outlets to release, against considerable government pressure, the Wikileaks war logs from Iraq and Afghanistan. But the Times editorial stance for accountability for torture has not been met with action by the U.S. President, Justice Department, or Congress. The Democrats had two years of full control of both houses of Congress and never brought any substantive hearings or investigations on the issue of torture or the machinations behind the invasion of Iraq. While there is no doubt that much was withheld from Congress by the Pentagon and White House, the Democrats demonstrated no appetite to press for accountability, and this will be their ignoble legacy.

We must not wait fifty, sixty, or seventy years for the truth about recent and ongoing war crimes to come fully out, and for accountability for these crimes. It appears that will only happen if the citizens of the United States take history into their own hands and form new political entities or parties capable of handling the truth and meting out justice. Such new political forces will be unlikely to stop there, and turn towards implementing the kinds of change we desperately need in this society.

Originally published on 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.

Omar Khadr at the age of 14

Since coming to power 15 months ago, promising to close Guantánamo within a year, and suspending the much-criticized Military Commission trial system for terror suspects, President Obama’s zeal for repudiating the Bush administration’s “War on Terror” detention policies has ground to a halt.

The rot set in almost immediately, when the new administration invoked the “state secrets doctrine” last February, to combat a lawsuit brought by several men subjected to “extraordinary rendition” and torture, and was sealed last May, when Obama delivered a major national security speech in which he announced that the Military Commissions were back on the table, and also announced his intention to continue holding some prisoners at Guantánamo without charge or trial.

In November, Attorney General Eric Holder set the seal on the administration’s two-tier justice system for terror suspects at Guantánamo by announcing that five men would face federal court trials for their alleged involvement in the 9/11 attacks, but that five others would face trial by Military Commission, in a revamped version of the “terror courts,” approved by Congress over the summer.

This year, Obama disappointed critics in the US, and those scrutinizing his activities around the world, by failing to close Guantánamo within a year as promised, and by failing to set a new deadline for the prison’s closure, but last week his administration pressed ahead with what may well be viewed as the single most disappointing failure to repudiate the cruel, chaotic and unjust policies of the Bush administration’s “War on Terror”: the trial, by Military Commission, of Omar Khadr.

A Canadian citizen, Khadr was just 15 years old when he was seized by US forces after a firefight in Afghanistan in July 2002, in which he allegedly threw a grenade that killed a US soldier, Sgt. Christopher Speer, and was taken first to the US prison at Bagram airbase, and then to Guantánamo, where he remains to this day. I have been covering his case since June 2007, when his first pre-trial hearing took place in the Commissions’ first reincarnation, after the Supreme Court ruled in June 2006 that the original version, the brainchild of Dick Cheney and his legal counsel David Addington, was illegal.

For nearly three years, therefore, I have watched as a disturbingly shambolic and misconceived excuse for a judicial system has attempted, without success, to prosecute Omar Khadr, and the many failures of this endeavor have not been resolved through Congress tweaking the system last summer.

The shame and disgrace of prosecuting a child

Firstly, and most importantly, Khadr was a child when seized. This meant nothing to the Bush administration, but it is clear that it also means nothing to the Obama administration either. Back in May 2003, when the story first broke that juvenile prisoners were being held at Guantánamo (and research indicates that at least 22 juveniles were held in total), defense secretary Donald Rumsfeld impatiently told a press conference, “This constant refrain of ‘the juveniles,’ as though there’s a hundred children in there — these are not children,” and General Richard Myers, the chairman of the Joint Chiefs of Staff, added that they “may be juveniles, but they’re not on the Little League team anywhere. They’re on a major league team, and it’s a terrorist team, and they’re in Guantánamo for a very good reason — for our safety, for your safety.”

This rhetoric played well with those who hold that everyone is accountable for their actions, whatever their age, but in a more enlightened world, of which the US is technically a part, juveniles — defined as those under the age of 18 when the crime they are accused of committing took place — “require special protection” according to the Optional Protocol to the UN Convention on the Rights of the Child, on the involvement of children in armed conflict, to which the US is a signatory. The Optional Protocol specifically recognizes “the special needs of those children who are particularly vulnerable to recruitment or use in hostilities,” and requires its signatories to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”

It would be difficult to find a more appropriate case of a child who was “particularly vulnerable to recruitment or use in hostilities” than Omar Khadr, who spent much of his childhood in Afghanistan, taken there by his father, an alleged fundraiser for Osama bin Laden, and yet, as I demonstrated in an article in October 2008, entitled, “Omar Khadr: The Guantánamo Files,” Khadr has never received “physical and psychosocial rehabilitation and social reintegration,” because a detailed plan submitted by four doctors to the Defense Department in January 2003, entitled, “Recommended Course of Action for Reception and Detention of Individuals Under 18 Years of Age,” was completely ignored.

The problem of invented war crimes charges

Beyond this most glaringly obvious problem with Omar Khadr’s trial (and his nearly eight years in detention), another fundamental problem with Obama’s decision to proceed with prosecuting a former juvenile prisoner in the first US war crimes trial since Nuremberg concerns the basis of the charges against Khadr. On an intuitive level, critics of Khadr’s trial have, from the beginning, recognized that there is something horribly skewed about redefining the internationally accepted laws of war so that one side in an armed conflict — the US — can kill whoever it wants with impunity, whereas its opponents are viewed as terrorists, or, when brought to trial, as those who have committed “Murder in Violation of the Law of War.”

Lt. Col. David Frakt, who knows more about the laws of war than Congress or officials in either the Bush or Obama administrations, has long pointed out that the Military Commissions are fundamentally flawed because they contain “law of war offenses” invented by Congress, including “Providing Material Support to Terrorism” and “Murder in Violation of the Law of War.” As he explained last week, as Khadr’s pre-trial hearings got underway, the latter was introduced by the DoD in 2003, when it was defining the crimes eligible for trial by Military Commission, as “Murder by an Unprivileged Belligerent.” He added:

This status-based definition conflated two different concepts — unprivileged belligerents and war criminals. Under Article 4 of the Geneva Prisoner of War Convention it is clear that while a member of an organized resistance movement or militia may be an unprivileged belligerent (because of not wearing a uniform or failing to carry arms openly, for example) he may still comply with the laws and customs of war, so not all hostile acts committed by unprivileged belligerents are war crimes. Attacks by unprivileged belligerents which comply with the law of war (in that they attack lawful military targets with lawful weapons) may only be tried in domestic courts. In Iraq, for example, insurgents who try to kill Americans by implanting roadside bombs are properly arrested and tried before the Central Criminal Court of Iraq as common criminals. Attacks by unprivileged belligerents which violate the law of war, such as attacks on civilians or soldiers attempting to surrender, or using prohibited weapons like poison gas, can be tried in a war crimes tribunal.

When Congress revived the Commissions in 2006 (after Congress ruled them illegal), “Murder by an Unprivileged Belligerent” became “Murder in Violation of the Law of War.” However, as Lt. Col. Frakt explained, the distinction appeared to be cosmetic, and, crucially, judges in the only two full trials that ever took place (those of Salim Hamdan and Ali Hamza al-Bahlul), as well as the judge in the case of Mohamed Jawad (released in August 2009), rejected the supposed crime, “each ruling that the mere status of unprivileged belligerency was insufficient to prove a violation of the law of war.”

Despite Lt. Col. Frakt alerting Congress to these problems last summer, lawmakers left the definition of “Murder in Violation of the Law of War” unchanged in the new version of the Commissions, but, astonishingly, DoD officials added an “official comment,” explaining that “an accused may be convicted in a military commission … if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.” In other words, as Lt. Col. Frakt explained, “a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war.”

The first flawed week of Omar Khadr’s pre-trial hearings

This new twist in the absurdly ill-conceived Commissions did not permeate the first week of pre-trial proceedings in Omar Khadr’s case, although it will undoubtedly surface should the trial actually go ahead in July, and his defense team has not yet flagged up Khadr’s age on capture as a campaigning issue. Even so, there was more than enough incompetence and manipulation at work to indicate that President Obama’s decision to revive the Commissions will, in all probability, lead not only to protracted legal challenges, but also to international indignation at the failure of both the administration and Congress to deliver justice to the prisoners at Guantánamo.

As dozens of journalists geared up for the pre-trial hearings at Guantánamo last Tuesday, having experienced the logistical nightmare that makes trials at the naval base such a poor idea on the basis of expense and practicability alone, they received their first notification of the chaos that, without fail, marks the proceedings as little more than a dark farce. The first day’s hearing was delayed so that everyone could review the new Military Commissions Manual (PDF), which was not signed by defense secretary Robert Gates until the evening of April 27, and now had to be downloaded and printed out in a part of the world where technology is often stranded in, at best, the late 20th century.

Although Khadr turned up for the delayed start of the first day’s hearings, which commenced on Wednesday afternoon, he essentially boycotted the rest of the week’s proceedings, when, whether deliberately or not, he highlighted the kind of excessive security measures that pass for normal at Guantánamo. On Day Two, after complaining of eye pain, apparently brought on by conjunctivitis, he refused to don blackout goggles for his trip from his cell to the courtroom in a windowless vehicle, telling his escort, Marine Capt. Laura Bruzzese, “You’re trying to humiliate me.” Although he was persuaded to attend later that day, he again refused to attend on Day Three, complaining that a waistband search for contraband “comes too close to his genitalia in the way it’s being done,” as Barry Coburn, one of his military defense lawyers, explained. On Saturday, he refused again, telling Capt. Bruzzese, “I’m not going, nothing is starting at 0730.”

In the courtroom, meanwhile, discussions focused on the reliability of the evidence gathered by the government during Khadr’s interrogations. Khadr’s defense team has long maintained that Khadr, who was badly wounded at the time of his capture, having been shot twice in the back, was subjected to brutal treatment in the US prison at Bagram, and later at Guantánamo, which rule out any self-incriminating statements he may have made as the “fruits of torture.” As I explained in a major review of Khadr’s case in November 2007:

According to his own account, reported by Amnesty International, he “asked for pain medication for his wounds but was refused,” said that “during interrogations a bag was placed over his head and US personnel brought military dogs into the room to frighten him,” and added that he was “not allowed to use the bathroom and was forced to urinate on himself.” Like many other prisoners, he was also hung from his wrists, and explained that “his hands were tied above a door frame and he was forced to stand in this position for hours.” An article in Rolling Stone, in August 2006, added further details, noting that he was “brought into interrogation rooms on stretchers, in great pain,” and was “ordered to clean floors on his hands and knees while his wounds were still wet.”

Most of the above seems to have taken place in Bagram, where brutality was so commonplace at the time of Khadr’s stay there that at least two prisoners died of wounds inflicted by their guards just months after his departure. However, the abuse continued in Guantánamo, where, it should be noted, he arrived around the time that a regime of humiliation, isolation and abuse, including extreme temperature manipulation, forced nudity and sexual humiliation, had just been introduced, by reverse-engineering torture techniques used in a military program designed to train US personnel to resist interrogation if captured, in an attempt to increase the meager flow of “actionable intelligence” from the prison. As I explained in 2007:

He told his lawyers that he was “short-shackled by his hands and feet to a bolt in the floor and left for five to six hours,” and that “occasionally a US officer would enter the room to laugh at him.” He also said that he was “kept in extremely cold rooms,” “lifted up by the neck while shackled, and then dropped to the floor,” and “beaten by guards.” In one particularly notorious incident, the guards left him short-shackled until he urinated on himself, and then “poured a pine-scented cleaning fluid over him and used him as a ‘human mop’ to clean up the mess.” As if further humiliation was required, he added that he was “not provided with clean clothes for several days after this degradation.”

In contrast to Khadr’s claims, the government has proposed that he was treated humanely, and that he offered up self-incriminating information voluntarily. Robert Fuller, an FBI agent who interviewed Khadr at Bagram in October 2002, testified on Wednesday that his interrogations of Khadr were “conversational” and “non-confrontational,” adding, “We never put our hands on Mr. Khadr,” and stating that Khadr spoke “openly, confidently and comfortably about al-Qaeda” and admitted to throwing the grenade that killed Sgt. Speer. Fuller’s testimony continued on Thursday, and on Friday, a young female Navy Reservist (identified only as “Agent Number 11”) also spoke about non-coercive interrogations, this time at Guantánamo.

As Michelle Shephard explained in the Toronto Star, the former interrogator told the court that, “over the course of 12 interviews, which began in the prison hospital when Khadr arrived [at Guantánamo] on Oct. 28, 2002, he agreed to talk while they shared M&Ms and fig newtons.” Claiming that she was chosen to interrogate Khadr in the hope that he would relate to her as a “mother figure,” she also stated that their rapport was so good that Khadr told her, “I’d rather be in the booth with you than bored in my cell.”

Whether this is true or not, “Agent Number 11” inadvertently revealed the general futility of cooperating with the interrogators in Guantánamo, when she explained that “He knew if he was cooperative it would expedite his repatriation back to Canada” — a claim that was clearly groundless. She also said that he confessed to throwing the grenade that killed Sgt. Speer “like it was done in the movies,” adding that he said “he checked his watch just before throwing the grenade to note the time.” Military defense lawyer Lt. Col. Jon Jackson challenged this as “odd,” according to Shephard, “especially since … Khadr was bleeding from his head and blinded in one eye by shrapnel by that time” — or, in another possible scenario, was unconscious and face-down beneath a pile of rubble.

Did Omar Khadr throw the grenade?

The question of whether or not Khadr even threw the grenade that killed Sgt. Speer is crucial to his case, of course, and on Day Three of the hearings (on Saturday), these claims and counter-claims were addressed. Back in March 2008, it was revealed that there were two versions of a report describing the firefight, both written by the commander of the Special Forces unit responsible for capturing Khadr, who is identified only as “Lt. Col. W.”

In the first version, “Lt.-Col. W” stated that the person who had thrown the grenade had been killed. This, of course, would rule out Khadr as the suspect, but in the revised version, “Lt. Col. W” changed a single line to note that the person who threw the grenade was “engaged,” thereby implicating Khadr, who was the only non-US survivor of the firefight. On Saturday, “Lt. Col. W.” testified by video link from the US Army War College in Pennsylvania, claiming that he had changed his report for “history’s sake,” but only because he had initially believed that Khadr had died. He said that he changed it, several years after the event, after being visited by military investigators.

This sounds plausible, but, as Michelle Shephard noted, his revised report “appears to conflict with a March 2004 statement written by a commando identified only as OC-1, which states that after the grenade was thrown he shot two fighters — one fatally,” demonstrating that two men were alive at the time the grenade was thrown (Khadr and another insurgent), and that, as a result, either of them could have thrown the grenade.

How this will all pan out is unknown at present, as the defense team has not yet had the opportunity to present its evidence, including the alarming claim, mentioned above and made last October when Khadr’s defense team released previously classified photos, that Khadr could not have thrown the grenade because, at the time, he was buried face-down under a pile of rubble.

Will a plea deal save Omar Khadr (and Obama) from the perils of a trial?

Pre-trial hearings are continuing this week at Guantánamo, and, to be honest, anything could happen. According to some of the first reports last week, prosecutors offered Khadr a plea bargain before the hearings even began — proposing that he would serve five years in a US prison in exchange for pleading guilty to the war crimes charges against him — but the defense team turned down the offer. However, on Saturday the Washington Post claimed that the Obama administration was actively seeking a plea agreement. A senior official, speaking of the proposed trial in July, which would be the first trial under Obama to go ahead, told the Post, “This is not what you would choose to open with. Khadr has become a cause, and this is not a case that will demonstrate the strength and validity of military commissions.”

This seems rather disingenuous, as the administration clearly knew what it was doing when Khadr’s name was put forward last November, but maybe Obama has finally found his conscience, and is getting cold feet. After all, as Lt. Col. David Frakt declared authoritatively last week:

The Administration’s decision to press forward with the first war crimes trial of a child soldier in modern history is unfathomable. That the Administration would then try to ensure a conviction by attempting to rewrite the law to create a new war crime is reprehensible.

If an administration that promised “hope and change” is not definitely to become one tarred as an advocate of the “unfathomable and reprehensible,” Obama needs to move fast. Changing the plea bargain to one that frees Khadr after a much shorter period of time than five years would be a good start; and scrapping the Commissions immediately afterwards would be a sensible way to follow up.

This story was originally published on the website of the Future of Freedom Foundation.

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

Guantanamo detainee Fayiz al-Kandari

As evidenced by the recent outpouring of generous support for the people of Haiti, America remains a caring and compassionate nation. But when it comes to human rights and the rule of law, the United States falls woefully short, trailing behind the rest of the civilized world. Case in point, the U.S. government is seriously considering indefinite detentions for some Guantanamo detainees.

Sen. Lindsey Graham (R-SC) said last weekend that the White House may support a new law that would allow the indefinite detention of some terrorism suspects. Meanwhile, last month the Guantanamo Detainee Review Panel finally recommended which detainees should be released and which ones should face trials. It came as little surprise that more than 100 detainees were cleared for release while about 35 will be tried either by federal court or military commission. Yet surprisingly, approximately 50 detainees have been recommended for indefinite detention without trial. The administration claims they are considered too dangerous to be released but too difficult to prosecute even in the conviction-friendly Commission System.

These 50 detainees present a perplexing situation for the United States. The United States prides itself on being a world leader on human rights and the rule of law, and has been consistently outspoken in its criticism of human rights abuses by other nations. But in its zeal to demonstrate a “tough on terrorism” stance, the United States has failed to live up to these values.

One of the hallmarks of the American judicial system is the presumption of innocence. If arrested for an alleged crime, we have the right to a trial, to confront our accusers, and to present evidence in our defense. Indefinite detention bypasses these rights, short circuits due process, and turns the presumption of innocence on its head. In short, it presumes guilt and offers no remedy to challenge that presumption.

It is tempting to assume the decision to hold detainees indefinitely is based on a review of credible evidence. But if the evidence is so persuasive, why not introduce it in a court of law and secure a legitimate conviction? Time and again, federal courts have proven fully capable of handling terrorism cases. In fact, the Bush administration successfully prosecuted at least 319 terrorism or terrorism-related cases in civilian courts.

If the evidence is not reviewed by a court of law, who does review the evidence and determine the fates of individual suspects? The evidence is classified and the identities of those making the determinations are closely guarded. This process is entirely secret and inherently un-American. A system that authorizes indefinite detention based on secret evidence can only result in distrust and suspicion.

I represent Fayiz al-Kandari, a Kuwaiti citizen who has been imprisoned at Guantanamo Bay for more than eight years without a trial. In my July 2009 letter to the Washington Post, I explained how every time I visit my client he asks whether I have news of justice for him. Each time, I am forced to answer “I have no justice today.” Assuming Fayiz would someday have his “day in court,” I prepared him for the probability that “justice” would come in the form of a military commission – a second-rate judicial system largely designed to permit rumor as evidence. Unfortunately, I am now left to wonder whether Fayiz will ever be afforded any semblance of justice.

Admittedly, under the laws and customs of war, a nation may detain “enemy combatants” for the duration of an armed conflict. But in an “armed conflict” as ambiguous as the War on Terrorism, can this same standard possibly apply? If so, when can we expect the armed conflict to end? Terrorism dates back to the 14th century or earlier and has been employed throughout history. If the “War on Terrorism” will not end until terrorism no longer exists on Earth, Fayiz will never breathe free.

We are at a key juncture in our nation’s history. We can give in to political expediency and fear, or we can restore the rule of law and uphold our country’s founding principles. Let’s not go down the slippery slope of indefinite detentions.

Lt. Col. Barry Wingard represents Fayiz al-Kandari, a Kuwaiti who has spent seven and a half years in U.S. custody at Guantanamo Bay without trial.

This image of Khalid Sheikh Mohammed was taken in July 2009 under an agreement with Guantanamo prison camp staff that lets Red Cross delegates photograph detainees and send photos to family members.

The Obama administration has signaled that it is willing to allow the Justice Department to find a new venue to prosecute self-professed 9/11 mastermind Khalid Sheikh Mohammed, according to Sen. Chuck Schumer (D-NY).

The senator’s spokesman, Josh Vlasto, said Schumer spoke “with high-level members of the administration and urged them to find alternatives.”

The move comes a day after Mayor Michael Bloomberg called on the Justice Department to change the venue of the trial. Bloomberg had been a staunch supporter of holding the trial in New York.

“It would be an inconvenience at the least, and probably that’s too mild a word for people that live in the neighborhood and businesses in the neighborhood,” Bloomberg was quoted as telling reporters. “There are places that would be less expensive for the taxpayers and less disruptive for New York City”

In a statement aboard Air Force One Thursday as President Obama flew to Tampa, White House spokesman Bill Burton said the administration will not weigh in on where the trial should be held.

“Let me start by saying that Khalid Sheikh Mohammed is a murderous thug who has admitted to some of the most heinous crimes ever committed against our country,” Burton said. “The president is committed to seeing that he’s brought to justice. He agrees with the attorney general’s opinion in November that he and others can be litigated successfully and securing in the United States of America, just like others have, like Richard Reid. Currently our federal jails hold hundreds of convicted terrorists, and the president’s opinion has not changed on that.”

Attorney General Eric Holder announced last November that the trial for alleged 9/11 mastermind Khalid Shaikh Mohammed would be held in New York City.

The decision by Holder and the Obama administration to hold the trial in New York City was met with loud opposition, which came mainly from Republicans.

The issue took on a renewed sense of urgency Thursday with legislation introduced by Rep. Peter King (R-NY) aimed at outlawing the prosecution of terrorists in federal criminal courts.

King said on his website that the choice to transfer Mohammed and four others to New York “is one of the worst decisions ever made by any president.” King’s legislation, titled “Stopping Criminal Trials for Guantanamo Terrorists Act of 2010,” would prevent Justice Department funds from being used to prosecute any person detained at Guantanamo in a criminal court in the United States or one of its territories.

Even Democrats became concerned. Congressman Jerrold Nadler (D-NY) joined seven other elected officials in a letter to Attorney General Eric Holder that said they “are concerned that the Administration has not fully considered the impact that the trials would have on lower Manhattan.” In the letter they requested an evaluation of potential trial sites outside of Manhattan.

The decision to try Mohammed and four others in a Manhattan Federal court has been a flashpoint for argument since announced by Attorney General Eric Holder on November 13, 2009.  The decision to try Mohammed in a civilian court, as opposed to a Military Commission has been an issue or argument for weeks.

The letter to Holder from Nadler and the seven other elected officials, along with King’s bill to prevent the 9/11 trial from receiving Justice Department funds echoed Bloomberg’s newfound concern about the price tag for the trial and the potential for the trial to disrupt people and business in the city.

“It would be great if the federal government could find a site that didn’t cost a billion dollars, which using downtown will,” Bloomberg said.

Joshua Durkin is a contributor to The Public Record based in Connecticut. He can be reached at joshua.durkin@pubrecord.org

This report was originally published on Truthout.org and is being republished here under a Creative Commons license.

The Department of Justice has not yet finished an internal review of the report prepared by an agency watchdog that probed several legal opinions John Yoo and two other former attorneys who worked at the DOJ’s Office of Legal Counsel (OLC) wrote for the Bush White House on torture, an agency spokeswoman said Wednesday.

“The [review] process is ongoing and we hope to have [the report] complete and released soon,” Justice Department spokeswoman Tracy Schmaler told Truthout.

The Office of Professional Responsibility (OPR) completed the report in December 2008 following a five-year investigation.

Adding to the delay in releasing the report (Attorney General Eric Holder testified before Congress last year that the report was complete and was expected be released by end of November), according to several legal sources knowledgeable about the review process, were additional responses to its conclusions that Yoo filed via his attorney, Miguel Estrada. The legal sources spoke on the condition of anonymity because the report is still classified.

If that’s true, the career prosecutor charged with reviewing the report would have to carefully review Yoo’s responses and, as Holder testified last November, “react to those responses” as well.

Estrada told Truthout he was bound by a confidentiality agreement he entered into with the Justice Department and could not comment on the claims that he submitted another set of responses on behalf of Yoo.

Schmaler said she could not comment on the rumors. But she pointed to the Office of Professional Responsibility’s “post investigation” guidelines, which details the process that takes place during the course of such investigations.

The big question is will the report be released on or before January 15?

That’s the date lawyers representing alleged “dirty bomb” plotter Jose Padilla are due to file a response to the government’s friend-of-the-court-brief, which recommended that a lawsuit Padilla filed aginst Yoo over the legal advice he gave to the Bush White House that resulted in Padilla being tortured be tossed out because the OPR report would address the issue that Yoo provided the White House with poor legal advice.

“In addition to potential discipline by a state bar, Department of Justice attorneys are also subject to investigation by the Office of Professional Responsibility (“OPR”)… OPR and the Office of the Inspector General have broad investigatory powers and can recommend discipline and even criminal prosecution, where appropriate, the government’s December 3, court filing states.

As blogger Marcy Wheeler pointed out earlier this week, “At the rate we’re going, Padilla’s lawyers will have to file their response to the boast that OPR can offer adequate discipline in cases like this, without yet learning what OPR did in this particular case.”

Believing that the report is being suppressed, a coalition of attorneys, journalists and activists to file a Freedom of Information Act request Thursday with the Justice Department to obtain a copy of the report and other documents.

Upcoming Hearings on Torture?

In an interview last month, Christopher Anders, the ACLU’s senior legislative counsel, said Senate Judiciary Committee Chairman Patrick Leahy and his counterpart in the House, John Conyers, have both said they intend to hold hearings next year when the OPR report is released.

Leahy and Conyers “said a number of times that they would have hearings when the OPR report comes out,” Anders told me. “It would be a big surprise if they didn’t conduct hearings. We fully expect them to hold hearings.”

Erica Cabot, a spokeswoman for Leahy, said it would be premature to discuss any plans for possible future hearings until the report is released.

“Adverse Findings”

The Justice Department was prepared to publicly release the report last January. But it underwent revisions after then-Attorney General Michael Mukasey and his deputy, Mark Filip, demanded that Yoo, Bybee and Bradbury be given the chance to review and respond to the findings.

“In the past, former Department employees who were subjects of OPR investigations typically have been permitted to appeal adverse OPR findings to the Deputy Attorney General’s Office,” said Assistant Attorney General Ronald Weich’s May 4, 2008 letter to Democratic Senators Dick Durbin and Sheldon Whitehouse. “A senior career official usually conducted that appeal by reviewing submissions from the subjects and OPR’s reply to those submissions, and then reaching a decision on the merits of the appeal. Under this ordinary procedure, the career official’s decision on the merits was final. This appeal procedure was typically completed before the Department determined whether to disclose the Report of Investigation to the former employees’ state bar disciplinary authorities or to anyone else.”

Legal sources familiar with an early draft of the report said it concluded that some of Yoo and Bybee’s legal work for the Bush White House rose to the level of professional misconduct and therefore warranted a disciplinary referral state bar officials. These sources said they were unaware whether OPR reached the same conclusions about Bradbury’s legal work.

Weich’s letter noted that if the appeals filed by Yoo, Bybee and Bradbury resulted in a rejection of OPR’s findings by the “career official” reviewing the document then no such referral would occur.

“Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made,” Weich’s letter said. “This process afforded former employees roughly the same opportunity to contest OPR’s findings that current employees were afforded through the disciplinary process.”

Weich added that the initial draft of the report was also shared with the CIA for a “classification review,” and the agency, having reviewed the findings, “requested an opportunity to provide substantive comment on the report.”

Durbin and Whitehouse, in a statement last May, said they “will be interested in the scope of the ‘substantive comment’ the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter.”

A CIA spokesperson did not return calls for comment about the agency’s response to the report.

Weich’s letter to Durbin and Whitehouse was sent in response to queries by the senators last March about revelations that Bradbury oversaw OLC’s review of the report in late 2008, despite the fact that he was a subject of OPR’s investigation and was also acting head of OLC at the time.

Three months before Bush exited the White House, Bradbury, in a “memorandum for the files,” renounced several legal opinions drafted by Yoo and Bybee.

Bradbury attempted to justify or forgive Yoo’s controversial opinion by explaining that it was “the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”

Bradbury wrote another memo five days before Bush left office last January, in which he once again repudiated Yoo’s legal opinions. It would appear that this memo was in response to the OPR report. Bradbury said in the Jan. 15 memo that the flawed theories by Yoo in no way should be interpreted to mean that Justice Department lawyers did not “satisfy” professional standards.

Durbin and Whitehouse said they believed Bradbury’s “memorandum for the files” made it a “conflict-of-interest” for him to participate in the formal review process.

But Weich said, “Because Mr. Bradbury’s participation in that process was transparent, OPR advised that it can evaluate the OLC response with the knowledge of Mr. Bradbury’s participation just as it would evaluate a response from anyone whose actions were within the scope of OPR’s investigation.

“Therefore, OPR does not believe that Mr. Bradbury’s participation in the OLC response was improper,” Weich said.

Rather, Bradbury wrote, “In the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation.”

The Iraq war inquiry has insisted that Tony Blair will be questioned “very much in public.”

The statement follows claims that key evidence from the former Prime Minister would be heard behind closed doors.

Newspaper reports claimed Mr Blair’s meetings with US President George W. Bush and details of the decision-making process that led to war would be dealt with in secret on grounds of national security and the need to protect Britain’s relationship with the US.

However, a spokesman for the Chilcot Inquiry said: “Mr Blair will be appearing very much in public and will be questioned in detail on a wide range of issues surrounding Britain’s involvement in Iraq.

“We have said right from the start that he will be a key figure in the inquiry. Mr Blair has said that he is ready and willing to give evidence in public.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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