Detainees sit around the exercise yard in Camp 4, the medium security facility within Camp Delta at Naval Station Guantanamo Bay, Cuba. In Camp 4, highly compliant detainees live in a communal setting and have extensive access to recreation. Photo by U.S. Army Sgt. Sara Wood

On Wednesday, four prisoners were released from Guantánamo: an Egyptian, a Libyan and a Tunisian arrived in Albania, and a Palestinian arrived in Spain. All four had been cleared by military review boards at Guantánamo under the Bush administration, and had then been cleared by President Obama’s interagency Task Force, but, like dozens of prisoners in Guantánamo, they could not be repatriated because of fears that they would be tortured if returned to their home countries or subjected to other ill-treatment, or because they were effectively stateless.

The Spanish government, which declared last week that it would take up to five cleared prisoners from Guantánamo, announced that the first of these men arrived in Spain on Wednesday. The Spanish Interior Minister Alfredo Perez Rubalcaba told reporters that the man is Palestinian, but would not give his name, citing privacy concerns.

According to the press agency dpa, Rubalcaba explained that he “would get a residence permit, the possibility to work and freedom of movement in Spain, though Guantánamo prisoners taken by European countries could not leave those countries.” He added that Spain would only accept prisoners “with no criminal charges in the European Union, the United States or their countries of origin.”

As well as accepting the Palestinian, the newspaper Periódico reported that other prisoners, “believed to include a Syrian and a Yemeni citizen,” were “expected to arrive in Spain shortly,” adding that they will be “placed in different locations under the care of NGOs,” and will also be “placed under surveillance not only to protect the Spanish public, but also to protect the individuals from al-Qaeda reprisals over their possible revelations to US intelligence services.”

Cementing its role as America’s closest ally when it comes to clearing up “the mess” that is Guantánamo (to quote President Obama’s words from last May), the Albanian Ministry of Interior announced on Wednesday that it had accepted three cleared prisoners, who could not be repatriated because of the fears outlined above. Albania has now taken eleven cleared prisoners from Guantánamo, having accepted eight in 2006, when no other country in the world was prepared to do so (five Uighurs, an Algerian, an Egyptian and an ethnic Uzbek from the former Soviet Union).

Announcing the arrival of three prisoners in Albania, the Ministry of the Interior stated, “This transfer is a result of the engagement of the Albanian government in backing the Obama administration’s policy to close the detention center in Guantánamo and transfer prisoners to friendly and safe third countries.” In a press release, the US Justice Department identified the three men as: Abdul Rauf Omar Mohammad Abu al-Qusin, a Libyan; Sharif Fati Ali al-Mishad, an Egyptian; and Saleh bin Hadi Asasi, a Tunisian.

Their stories, like those of the majority of the 584 prisoners released from Guantánamo, demonstrate, yet again, that, behind the blustering rhetoric of former Vice President Dick Cheney and his swarming acolytes, the majority of the men held at Guantánamo had no involvement with terrorism, and that a disturbingly large number of them were innocent men seized by mistake.

Of the three men rehoused in Albania, for example, one was a businessman, living in Europe, who had traveled to Afghanistan to provide humanitarian aid, one was a veteran of Afghanistan’s war against the Soviet Union, who had married an Afghan woman, and was seized in a house in Lahore, Pakistan, far from the battlefields of Afghanistan, and the other man, as was common in 2001, before the 9/11 attacks, had been persuaded to travel to Afghanistan to help the Taliban defeat their enemies, the Northern Alliance, in a long-running civil war that had nothing to do with al-Qaeda or international terrorism, and had not raised a finger against US forces.

Sherif El-Mashad: An Egyptian businessman and humanitarian aid worker

Sharif al-Mishad (also identified as Sherif El-Mashad) is an Egyptian, born in 1976. A talented athlete and carpenter in his youth, he enrolled in a technical school to learn woodworking, cabinetmaking, painting, tiling, plumbing and roofing, and, after graduating, spent three years working in Sinai at some of Egypt’s largest beach resorts. There, he began to learn Italian from the tourists, and in 1997, after his father died, decided to travel to Italy, to stay with his uncle, an Italian citizen who lived in Como, in the hope of finding better paid work to provide for the family.

Once he had secured a work permit, he worked in a restaurant and a bar, but soon found that his skills as a craftsman would pay better. After working as an apprentice with two painting companies, he obtained a license from the Chamber of Commerce in Como to work as an independent contractor, and set up his own company, “Sherif El-Mashad,” running the business out of his home.

In the spring of 2001, he met a wealthy Kuwaiti businessman, who encouraged him to travel to Afghanistan to do charity work. As he explained to his lawyers, at the London-based legal action charity Reprieve, he saw this as “a dual opportunity,” allowing him not only to network with a well-connected businessman, but also to help those less fortunate than himself by distributing humanitarian aid — food, clothes, and blankets. Providing an analogy to his lawyers, he explained that the plan was akin to “organizing a charity gala with a prospective business partner.”

As a result of this meeting, El-Mashad booked a round-trip ticket, intending to stay in Afghanistan for a couple of months, before returning home to work. It was obvious that he had no intention of staying any longer, because, as his lawyers, explained, two days before he left Italy in July 2001, he had billed a customer almost €15,000 for painting services to be collected on his return.

His mother, who is the deputy principal of a school in Egypt, explained in 2006 how she had advised her son against traveling to Afghanistan. “I never wanted him to go on that trip”, she said, “because I knew that the region was unstable and so many events were taking place there, but he was stubborn. He was very kind and grateful to his family, though.” A week after his arrival, according to his mother, “he called his uncle, who lives in Italy, and told him that he arrived and asked him to reassure me.”

After that, he effectively disappeared off the face of the earth, until his uncle called to say that he had received a postcard from Guantánamo (via the International Committee of the Red Cross), in which he wrote that “he had been visiting a friend in Afghanistan and subsequently enlisted in a ‘rescue organization’ that offered ‘humanitarian aid to the Afghani people.’” Although he ended up staying in Afghanistan for longer than he intended, helping his friend, who, as he explained in Guantánamo, “passed out donations to help the Afghani people,” they remained safe in Kabul until November 2001, when, with the Northern Alliance approaching, and rumors spreading that Arabs were no longer safe, they set off for the Iranian border, intending to return home. As he also explained, “I had a valid visa to Iran and a return ticket with an Iranian airline.” However, when they discovered that the border crossing was closed, they realized that they would have to leave via Pakistan, but were detained by Pakistani soldiers after crossing the border and arriving in a small village. El-Mashad then spent three weeks in a Pakistani prison in Peshawar, and was then flown to the US prison at Kandahar airport, where he spent several more months before being transferred to Guantánamo.

There seems to be no reason to dispute this story, and El-Mashad clearly explained it at length to his interrogators in Guantánamo, telling them how he traveled to Kabul, how he met up with the Kuwaiti businessman, how he “heard of the attacks in America while listening to the radio,” how he and “all who were present with him were sorrowful and none of them were happy,” and how he fled from Afghanistan and was seized.

However, once he was in US custody, he became the victim of patently false allegations made by other prisoners, either through coercion or torture, or through the promise of preferential treatment, of the kind that are disturbingly familiar to those who have studied closely the rulings in the prisoners’ habeas corpus petitions over the last year and a half.

One of these allegations was made by a prisoner who was rescued by US forces from a prison in Afghanistan, and then transported to Guantánamo, even though he had been imprisoned as a spy by al-Qaeda and had been subjected to horrendous torture. This prisoner claimed that, in early 2000, El-Mashad  “participated in torturing him through beatings and electric shocks”, even though, as El-Mashad pointed out, he was in Italy in early 2000 and had the documents to prove it.

He also told his lawyers that, in the early days of his imprisonment, “I was first accused of aiding the Arabs in Bosnia. Then they changed the accusation that I was there just for training. In both cases, it’s impossible that I was in Bosnia at the time of the war in 1991, simply because at that date I was 14 years old! From 1991-1997 (the duration of the Bosnian war) I was studying at my school and I never left my country to anywhere. I have the proving documents.” He also explained that another set of false allegations came about because the US authorities mistook him for a significant figure in al-Qaeda, which led to a number of other false allegations, including claims that he trained recruits in urban warfare at a military training camp. Another false allegation, made by an unnamed “source”, was that he sold videotapes of the bombing, in 2000, of the USS Cole.

“Throughout my life, I was never involved in any banned or illegal activities by any means,” he told Cori Crider of Reprieve in August 2008, during his first visit with a lawyer from the legal action charity, adding, “I don’t have any file with any police office or any bad record with any authority.” He also explained that Italian agents had visited him in Guantánamo and had confirmed that there was no case against him. “They told me they knew I was innocent and they would ask the United States to release me,” he said, adding, “My case is very clear. I have physical evidence to defend myself against these charges.”

Abdul Ra’ouf al-Qassim: A Libyan seized in Pakistan

Abdul Rauf al-Qusin (also identified as Abdul Ra’ouf al-Qassim, and named in court documents as Abu Abdul Raouf Zalita) is a Libyan, born in 1965, who was cleared for release from Guantánamo in 2006. A soldier in the Libyan army from 1983 to 1989, he had then deserted, traveling to Afghanistan “to immigrate and to start a new life,” as he explained to his military review board in Guantánamo in May 2005. After fighting with the mujahideen until 1993, when the last remnants of the Soviet regime fell, he “traveled back and forth between Pakistan and Afghanistan” — at one point studying at university in Quetta — and also met and married an Afghan woman, Rahima, with whom he had a daughter, Khiria, who has spent the whole of her young life without her father.

Al-Qassim was captured in Lahore in May 2002, at the house of a Pakistani, after escaping from war-torn Afghanistan with his pregnant wife, but although it was clear that he had not taken up arms against the Americans, it was far less clear that he would not be regarded as a threat by the government of his home country. At his review in 2005, he explained (via a military officer assigned to him instead of a lawyer) that he had received military training at two Libyan camps in Afghanistan, but only because he was living there, and also admitted that he had joined the Libyan Islamic Fighting Group — exiled opponents of the Gaddafi regime — but only “out of desperation — he was broke, had no place to go, was hungry, unemployed and had no way to support himself.” He added that his family “did not receive monetary support from the [LIFG], but he received food, shelter and an allowance for clothes.” He also agreed with previous statements he had made: that he “did not believe in violence,” and that he “angrily defined [al-Qaeda’s] leadership and members as ‘savages’ who twist the meaning of Islam, thereby hurting all Muslims.”

Although al-Qassim stated that a Libyan delegation, who visited Guantánamo in 2004 (and were actually flown there by the CIA), told him that they “knew he was with the Libyan Islamic Fighting Group only by name,” that he was “obligated to be with them,” and that they would “take care of him,” he repeatedly told his Assisting Military Officer that he was “afraid of returning to Libya.” His AMO reported, “He said he does not want to go to Libya because he feels he cannot trust them and because they put people in prison for no reason. He said he feels that if he returns to Libya, even after being released by the United States, he would be sent back to prison.” Such was his concern that the Presiding Officer noted, “For the record, make sure that we put in our report that the Detainee is afraid of returning to Libya.”

In spite of this, the US government sought to repatriate al-Qassim, and his lawyers — at the Center for Constitutional Rights — fought a legal battle for over three years to prevent his forcible return. In a court filing in December 2008 (PDF), they noted his ongoing legal limbo:

The Government has cleared him for transfer from Guantánamo, and has twice attempted to repatriate him to Libya, the country from which he fled to Afghanistan more than a decade ago in order to avoid religious persecution. Petitioner has a credible fear that he will be subject to imprisonment, torture and possible summary execution if he is forcibly returned to Libya, and he has resisted all attempts to repatriate him to that country. He remains detained in Camp 6, an isolation facility, more than six years after his detention and nearly two years after the Government’s first notice of intent to transfer him out of Guantánamo.

Saleh Sassi: An insignificant adventurer

The third man released in Albania, Saleh bin Hadi Asasi (more commonly known as Saleh Sassi, and also identified in Guantánamo as Sayf bin Abdallah) is a Tunisian, born in 1973, who, like the two men described above, was cleared for release by a military review board under the Bush administration, and by President Obama’s Task Force.

A welder and a skilled laborer, he moved to Italy in 1998, hoping to find work and a better life, and settled in Turin, where he secured a work permit and found employment in the construction industry. Apparently persuaded to travel to Afghanistan during a vacation from work, he reportedly spent some time at a mountain outpost north of Kabul, and was later wounded when a truck he was traveling in was shot at. Hospitalized, first in Kabul, and then in Khost, he was transported to the Pakistani border, where he was seized by the Pakistani authorities.

In Guantánamo, as his lawyers at Reprieve noted, he was often held “in brutal conditions.” The vast majority of his imprisonment was spent in isolation, which caused him to suffer clinical depression. In discussions with his lawyers, he explained that his imprisonment was “a long and unending nightmare.” He was also visited by teams of foreign interrogators — both Italian and Tunisian. In late 2002, Tunisian agents came to Guantánamo and left no doubt about what awaited him if he were to be returned to Tunisia, which included “water torture in the barrel.”

What now, and what next?

With the release of these four men, 188 prisoners remain in Guantánamo, but while the Albanian and Spanish governments are to be congratulated for offering homes for men who would otherwise rot in Guantánamo for the rest of their lives, the Italian government, which is only interested in taking prisoners who can be put on trial in Italy (as demonstrated with the transfer of two Tunisians in December) ought to be ashamed that it did not accept Sherif El-Mashad, who was so clearly seized by mistake, and who, with family in Italy and viable skills that he could use once more, has, essentially, been betrayed by the country which he once called home.

Above all, though, the greatest shame must settle on the United States, which still refuses to accept its own responsibility to provide new homes for cleared prisoners who cannot be repatriated. The exact number of prisoners in this category is difficult to establish, because the Obama administration has not provided details of the nationalities of these prisoners (who now number 106). When the Task Force announced its final decisions about the prisoners last month, it was reported that around 60 of the 106 are Yemenis. These men will not be released until the Obama administration finds some spine, having capitulated to fearmongering about Yemen after the failed plane bomb at Christmas, and suspending all further releases to Yemen. Back in October, it was reported that three others are Saudis (who, in theory, could be returned tomorrow), which means that around 42 of the cleared prisoners are awaiting new homes.

Two of these, who have been offered a new home in Switzerland, are amongst the remaining seven Uighurs, another is an Uzbek who has been offered a new home in Latvia, and three others (plus one of the Yemenis) are, as mentioned above, expected to arrive in Spain shortly. However, that still leaves 36 men waiting for new homes, and it seems probable that the countries of Europe, which, before Wednesday, had taken 12 cleared prisoners (with Bermuda and Palau also taking another ten of the Uighurs), will run out of largesse before all 36 are rehoused, leaving the US government — and its people — with a stark choice: hold them forever, or, as was planned last April (before Obama scuppered the proposal), bring some of them to live in the United States.

This is not only the right thing to do; it will also demonstrate to the American people — and to its surplus of hysterical pundits and politicians — that not everyone who was held at Guantánamo was a terrorist, bent on the destruction of the United States. Why is it, I wonder, that Europeans — in Albania, Belgium, France, Hungary, Ireland, Portugal, Slovakia, Spain and Switzerland — can understand that between 90 and 95 percent of the men held at Guantánamo had no connection to terrorism, and that many of these men are still imprisoned, awaiting an end to their long and lawless ordeal, but Americans cannot?

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.

Najibullah Zazi

With attempted terrorist Najibullah Zazi pleading guilty to three criminal charges before a federal judge in New York, Attorney General Eric Holder says that Zazi’s case proves that the US Justice Department can effectively prosecute terrorists.

And he noted during a news conference Monday following the guilty plea that the trial of self-professed 9/11 mastermind Khalid Sheikh Mohammed and his co-conspirators could still be held in New York City, despite widespread opposition from Republicans and Democrats.

On Monday, the Justice Department reported that Najibullah Zazi, an Afghan native and legal permanent resident of the US, pleaded guilty to conspiring to orchestrate a terrorist attack within the United States, as well as to charges of providing material support to al-Qaeda.

“This was one of the most serious terrorist threats to our nation since September 11th, 2001, and were it not for the combined efforts of the law enforcement and intelligence communities, it could have been devastating,” Holder said. “This attempted attack on our homeland was real, it was in motion, and it would have been deadly. We were able to thwart this plot because of careful analysis by our intelligence agents and prompt actions by law enforcement. They deserve our thanks and praise.”

At a news conference following the announcement, Holder said the plea deal “demonstrates that our federal civilian criminal justice system has the ability to incapacitate terrorists, has the ability to gain intelligence from those terrorists and is a valuable tool in our fight against terrorism.”

According to a Department of Justice press release, Zazi and other conspirators traveled to Afghanistan with the purpose of joining Taliban militants in combat against US and allied forces. Shortly after their arrival in Peshawar, Zazi and his group were recruited by al-Qaeda, and were given formal training with explosives. Zazi intended to use TATP (Triacetone Triperoxide) explosives to conduct an attack on New York City subway lines, coordinating the attack with the anniversary of the 9/11 attacks.

The subway bombing plot represented the most serious terrorism threat to America since the 9/11 attacks, Holder said.

Zazi’s case was prosecuted by the U.S. Attoney’s Office for the Eastern District of New York, with assistance from the District of Colorado office, and the Justice Department’s National Security Division Counterterrorism Section.

Holder and the Obama administration have come under heavy Republican fire as of recent for their urging to hold the trials of self-professed 9/11 mastermind Khalid Sheikh Mohammed and co-conspirators in a New York criminal court.

Holder asserts that the Zazi guilty plea proves that his department is capable of handling the 9/11 trials.

“To take this tool out of our hands to denigrate the use of this tool flies in the face of the facts, in the face of the history of the use of that tool and is more about politics than it is about facts,” Holder said.

Zazi’s guilty plea and cooperation with law officials came after he was warned that some of his family members could face possible criminal charges related to the foiled terrorist attack. The pressure resulted in a 10-page sealed plea agreement.

As the case points out, the criminal court system provides for plea-incentives that can provide useful information to the prosecution, an option that is not readily available within the military tribunal system.

“The criminal justice system also contains powerful incentives to induce pleas that yield long sentences and gain intelligence that can be used in the fight against al-Qaeda. We will use all available tools whenever possible against suspected terrorists,” Holder told reporters during Monday’s news conference.

Despite the criticism and efforts to stymie a criminal trial of Mohammed and the alleged 9/11 conspirators, Holder still says that the possibility of a Manhattan trial is in play, according to the New York Daily News.

The newspaper quoted Holder as saying that a decision on where to hold the trial is expected “relatively soon.”

“But a Manhattan trial – strongly opposed by New York officials – remains in play, Holder said,” according to the Daily News.

Ray Storez is a staff writer for The Public Record based in Connecticut.

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.

On Nov. 13, when Holder announced that five prisoners — including Khalid Sheikh Mohammed — would face federal court trials for their alleged involvement in the 9/11 attacks, he also announced that five other men, previously charged in the Bush administration’s Military Commissions, would be tried in a revamped version of the Commissions that the administration and Congress concocted over the summer.

Notwithstanding the weaknesses of the Military Commission trial system (some of which emerged in its first faltering outing last month), and the very real fear that it is being used by the Obama administration as a second-tier system of justice, the decision to charge Obaidullah is particularly dispiriting, as he is so clearly a peripheral character of such insignificance that putting him up for a war crimes trial risks ridicule.

As I explained in September 2008, when he became the 18th prisoner to be put forward for a trial by Military Commission, he was:

charged with “conspiracy” and “providing material support to terrorism,” based on the thinnest set of allegations to date: essentially, a single claim that, “[o]n or about 22 July 2002,” he “stored and concealed anti-tank mines, other explosive devices, and related equipment”; that he “concealed on his person a notebook describing how to wire and detonate explosive devices”; and that he “knew or intended” that his “material support and resources were to be used in preparation for and in carrying out a terrorist attack.”

As I also explained:

It doesn’t take much reflection on these charges to realize that it is a depressingly clear example of the US administration’s disturbing, post-9/11 redefinition of “war crimes,” which apparently allows the US authorities to claim that they can equate minor acts of insurgency committed by a citizen of an occupied nation with terrorism.

This was not all. In his Combatant Status Review Tribunal and Administrative Review Boards at Guantánamo (the military review boards established to ascertain whether he had been correctly designated as an “enemy combatant,” and whether he still posed a threat to the US), he made it clear that he had made false allegations against himself and another Afghan prisoner still held — a shopkeeper named Bostan Karim — because of the abuse he had suffered, at the hands of US forces, in a forward operating base in Khost and in the main US prison in Afghanistan, at Bagram airbase.

The following exchange, from his ARB in 2005, when he explained that he had been “forced” to make false confessions about Karim while held in Bagram is particularly enlightening:

Board Member: Who forced you to say things?
Detainee: Americans.
Board Member: How did they force you?
Detainee: The first time when they captured me and brought me to Khost they put a knife to my throat and said if you don’t tell us the truth and you lie to us we are going to slaughter you.
Board Member: Were they wearing uniforms?
Detainee: Yes … They tied my hands and put a heavy bag of sand on my hands and made me walk all night in the Khost airport … In Bagram they gave me more trouble and would not let me sleep. They were standing me on the wall and my hands were hanging above my head. There were a lot of things they made me say.

Back in September 2008, I concluded my article by asking, “So tell me, after reading this: does charging Obaidullah for ‘war crimes’ look like justice?”

With the news that Obaidullah is to be charged again, when he is not actually accused of harming a single American, and when he may, in fact, have been tortured, through sleep deprivation and “Palestinian hanging,” to produce false confessions against himself and at least one other prisoner, leads me not only to repeat the question, but to actively call for the open mockery of Attorney General Eric Holder and the lawyers and bureaucrats in the Justice Department and the Pentagon who thought that reviving the charges against him was a good idea.

Editor’s note: On Thursday, the American Civil Liberties Union criticized the Obama administration’s decision to use the military commissions to prosecute Obaidullah.

In a statement, Jameel Jaffer, director of the ACLU’s National Security Project said it’s “disappointing that the [Obama] administration has chosen to prosecute another Guantánamo detainee in a discredited system that is designed to ensure convictions rather than fair trials.”

“While Congress recently improved the military commissions system in certain respects, the system still fails to provide the procedural rights that are guaranteed by U.S. and international law,” Jaffer said. “The military commissions system is also unnecessary, because the federal courts are well-equipped to handle complicated terrorism cases and protect classified information without compromising the rights of the accused.

“The military commissions have contributed to Guantánamo’s image as an icon of injustice, and the Obama administration should not be perpetuating them. If Guantánamo detainees have committed real crimes, they should be prosecuted in real courts.”

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009),
9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Military Commissions Revived: Don’t Do It, Mr. President! (November 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (November 2009).

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.

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.

Khalid Shaikh Mohammed and the corporate “mainstream” media make quite a pair.

We’re hearing a very “balanced” debate over whether KSM should be tried in New York City, and whether the most insane objections to that proposal are really insane or not. But what are we not hearing?

We’re not hearing that trying criminals for the crime of 9-11 ought to have been what we did years ago, rather than waging wars in response to a crime.

We’re not discussing the possibility that had alleged 9-11 criminals been tried years ago rather than being imprisoned and tortured together with hundreds of innocents depicted as subhuman monsters, the “war on terror” might have been replaced with simply the wars on Iraqis and Afghans and Pakistanis.
What effect might that have had on Americans’ willingness to surrender their Bill of Rights? We aren’t hearing about that.

Aside from a column by my friend Ray McGovern, not of course published by the corporate media, what are we hearing or seeing about KSM’s motive?
Isn’t motive a traditionally important element in a criminal investigation? We’re told that putting KSM on trial would give him a platform for propaganda, but we’re not told what that propaganda might be.

If it were really so pernicious, why not expose it and refute it? Isn’t that what societies that believe in free speech do with misguided speech? Don’t they defeat it with more and better speech? Or is that only when it can be done without using the word “Israel”?

Outside of progressive blogs, we’re not hearing that giving a somewhat fair, if less than speedy, trial to those most likely to plead guilty or be convicted, and a less fair military trial to others, and no trial at all to others still, reveals this show of justice to be a sham.

If KSM were acquitted, President Obama would order him imprisoned outside the rule of law until he dies. If he is found guilty, as everyone universally expects, he may be officially murdered by the United States, motivating others to take up arms against a nation that wages and funds illegal wars, imprisons people without charge, tortures, kidnaps, renditions, and executes.

If the justice system is bent to ensure that KSM is convicted or permitted little opportunity to speak, will that bending have any permanent repercussions for our justice system? Or, to move in the other direction, having determined that “military justice” is not good enough for alleged mass murders, must we continue to pretend that it is good enough for members of the military?

Can we not admit everyone into a single and improved justice system? We’re not hearing that discussion.

An improved justice system would require the admission into court of videos of all confessions and interrogations. This would not include admissions made to a journalist prior to imprisonment, as in the case of KSM and Al Jazeera, but would include all interrogations since that time.

And in KSM’s case it might include video of the “interrogation” of his children. Years ago, allegations were made that the United States had tortured his children, including in little-heard-of manners, such as locking a child in a box with a supposedly deadly insect.

More recently, secret memos emerged showing the United States to have authorized just those techniques. If this were a story about missing sex tapes, the media would be all over it. A story about the possible torture of children is far less interesting.

It might open up difficult questions, such as whether someone who has been endlessly tortured, and whose children may have been tortured, can — while still in the custody of the torturers — give an un-coerced confession.

Questions might even have to be asked about leniency in sentencing for someone who has already served time and been horribly tortured.

If this were a story about a singer or actor or athlete, we’d see investigations of the time KSM spent attending college in North Carolina. Why didn’t the Americans he lived among persuade him of how horrible it would be to murder people in this country?

Our media pundits are completely incapable of asking such a question without either blaming KSM’s American acquaintances for his crimes or declaring KSM to be an inscrutable monster whose thinking is of absolutely no interest.

Other questions might be asked as well, such as why Dick Cheney and his supporters never talk about the two memos anymore. Remember the two memos that Cheney claimed would show that the torture of KSM and others revealed important information that saved lives.

The memos are now public and show nothing of the sort.

Nor was torture needed in order to prosecute KSM himself. In fact, as Marcy Wheeler has pointed out, the ability of the government to prosecute him without using evidence obtained through torture demonstrates that torture was not needed for that purpose.

But why are we not talking about the two purposes torture actually serves? We know it does not produce useful information, but we also know that it produces desired lies, such as agreement to false rationales for war. And we know that it scares people, both people who fear they might be tortured and people who fear the wild beasts depicted as reachable only through torture.

As Glenn Greenwald has touched on, behaving as though terrorized, irrationally unable to believe an alleged terrorist can be held in a cell and tried in a court, is to give in to the terrorism. Worse, it is to advance it.

More Americans are more terrorized following TV discussions of KSM’s possible prosecution than were beforehand, because the voices on the TV promote the terror rather than the prosecution.

We are hearing about the need to avoid evidence obtained through torture. But at the same time we are hearing absolutely nothing about the need to prosecute the torturers and the creators of the torture program, at least one of whom, John Yoo, is given a platform as one of the disinterested media commentators in the MSM.

This failure is an ideal way to create more KSMs. Why don’t we talk about it?

David Swanson is the author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press.  You can order it and find out when tour will be in your town: http://davidswanson.org/book. [This article previously appeared at Afterdowningstreet.org.]

Photo by U.S. Army Sgt. Sara Wood.

In a recent article, I examined the implications of an announcement that 75 of the remaining 223 prisoners in Guantánamo have been cleared for release. This came by way of a list posted in the prison, identifying the prisoners by nationality, and a statement by a military spokesman, Navy Lt. Cmdr. Brook DeWalt, who explained, “It was an opportunity to just provide better communication. There’s a lot of information out there and you get a lot of things from a lot of different angles. It helps put it in a more succinct context for them [the prisoners].”

The list is based on the deliberations of an interagency Task Force, established by President Obama on his second day in office, to determine who should be released, and who should continue to be held, and in my article I looked at the cases of 31 of the prisoners (26 Yemenis, three Saudis and two Kuwaitis, one of whom has since been released), pointing out that, in theory, there was no reason for them not be released immediately.

However, I also pointed out that members of Obama’s own administration had told the New York Times that the government was afraid of releasing the Yemenis (even though they had been cleared for release), because Guantánamo itself might have radicalized [them], exposing [them] to militants and embittering [them] against the United States,” and I should also have added, as former military defense attorney Maj. David Frakt pointed out to me in an email, that the men’s release is also dependent on the whims of Congress, where lawmakers “passed a law this summer that requires the administration to give Congress 15 days notice before releasing anyone from Guantánamo.”

Nevertheless, although Congressional obstruction may well be an additional complication (which I discussed in another article last week, “Lawyer Blasts ‘Congressional Depravity’ On Guantánamo”), it remains apparent that the route out of Guantánamo for these 30 men ought to be easier than it is for the other 44 prisoners cleared for release, as these are men who cannot be repatriated either because of fears that they will face torture or other ill-treatment (including arbitrary detention and show trials) on their return, or because (in the cases of two Palestinians) they are, effectively, stateless refugees.

Who are the 44 prisoners?

Of these 44 prisoners, 15 had their release ordered by judges in US District Courts, as a result of the habeas corpus petitions that were authorized by the Supreme Court in an extraordinarily important ruling in June 2008. 13 of these men are Uighurs — Muslims from China’s oppressed Xinjiang province, whose release was ordered by Judge Ricardo Urbina a year ago, and whose plight I have written about extensively (particularly here and here) — and the others are an Algerian, Sabir Lahmar, whose release was ordered last November, and Abdul Rahim al-Ginco, a young Syrian, tortured and imprisoned by al-Qaeda and the Taliban, whose release was ordered in June this year.

The other 29 are as follows: nine Tunisians, six more Algerians, three more Syrians, two Egyptians, two Uzbeks, two Palestinians, an Azerbaijani and a Tajik. Although their names have not been provided, the identities of the majority of these men can be deduced by a process of elimination (there are, for example, only two Egyptians, two Uzbeks, and one Azerbaijani in Guantánamo), and, in addition, the decision to release the Tajik prisoner, Umar Abdulayev, is known about because it was announced in July.

As I explained at the time, this decision was distressing to Abdulayev and his lawyers for two reasons: firstly, because when government lawyers announced that they would “no longer defend his detention,” they also announced that they “want[ed] US diplomats to arrange to repatriate him,” even though Abdulayev is terrified of returning to Tajikistan, because he was threatened by Tajik agents who visited him in Guantánamo.

Secondly, because the Task Force’s decision also led the Justice Department to ask a judge to drop Abdulayev’s habeas petition, prompting his lawyers to point out that the Task Force’s decision was “not a determination that [Abdulayev’s] detention was or was not lawful,” and that it therefore “does nothing towards removing the stigma of being held in Guantánamo or being accused of being a terrorist by the United States.”

This is actually a widespread problem for those cleared for release who fear repatriation, not only because recent rulings by the Court of Appeals have removed a number of judicial safety nets established by judges to prevent the enforced repatriation of a number of prisoners in Guantánamo (for whom the “stigma” of “being accused of being a terrorist by the United States” is of grave importance). But also because, in a wider sense, the Obama administration is unwilling to state openly that any prisoner was seized by mistake (as one of the prisoners’ lawyers recently explained to me, no lawyer would advise admitting responsibility, as it would open the floodgate to compensation claims). As a result, the administration is doing nothing to facilitate the work of Daniel Fried, the senior diplomat employed in March 2009 as the Special Envoy to Guantánamo, whose unenviable task it is to persuade other countries to accept released prisoners from Guantánamo.

Even putting aside for a moment the difficulties caused by the refusal of the Court of Appeals and Congress to accept cleared prisoners into the United States (which fuels a reluctance to help in European countries, as Fried acknowledged in a recent interview with the BBC), there are disturbing signs that this reticence on the part of the administration to state openly and categorically that colossal mistakes were made by the Bush administration is also undermining the very decisions made by Obama’s own Task Force.

Recently, for example, when Swiss officials visited Guantánamo to investigate the cases of four men cleared for release, in an attempt to work out if they would be prepared to accept any of these men, they returned, not with an honest appraisal, but with weighted conclusions that could only have been presented to them by the US military, who had, in effect, opened up their files and shown them material which purported to be evidence, but which, in other prisoners’ habeas petitions, has been demonstrated, time and again, to be nothing more than false allegations made by other prisoners (under duress or as a result of bribery) or by the prisoners themselves, multiple levels of unacceptable hearsay, and “mosaics” of intelligence that do not stand up to independent scrutiny.

According to reports in the Swiss media, the government representatives concluded that, of the four men they investigated, two Uighurs were “low-risk,” even though they are no risk at all, having persuaded the Bush administration to drop its claims that they were “enemy combatants,” and having been cleared by military review boards under the Bush administration, by a US District Court, and by the Obama administration’s Task Force, and two other men, an Uzbek and a Palestinian — also cleared by Bush-era military review boards and by Obama’s Task Force — were considered “medium-risk” and “high-risk.”

What has the Task Force been doing for eight months?

Beyond these absurd discrepancies, which do nothing to help Obama’s cause, the other conclusion I draw from an analysis of the Task Force’s figures is that, after eight months of reviewing the prisoners’ cases, it has made very little progress, despite detailed consultations with lawyers and other experts, despite detailed searches for information relating to the men, which was scattered throughout numerous departments and agencies in a disturbingly incoherent manner, and despite the establishment of a database bringing all the available information together in one place.

Although exact numbers are impossible to work out, it is clear that, of the 29 men cleared by the Task Force, all but nine (at most) were actually approved for transfer, between 2006 and 2008, by Administrative Review Boards at Guantánamo. When Obama came to power, eight Tunisians, five Algerians, four Uzbeks, three Palestinians, an Egyptian, a Libyan, and Umar Abdulayev, the Tajik, had all been approved for transfer. Some tweaking has taken place — a Palestinian has been removed from the list, and the Azerbaijani, Poolad Tsiradzho, has been added, plus an Algerian, an Egyptian, two Libyans and three Syrians — and, in addition, it is possible that the Task Force has shifted position on a few of those approved for transfer under Bush.

However, when added to the 14 or so Yemenis discussed in the last article, this figure of 25 or so prisoners is hardly a triumph for the Task Force, and indicates, yet again, that when it comes to Guantánamo, the President’s bold start in January, when he issued his executive order regarding the closure of the prison, has been steadily eroded by confusion, extreme caution and indecision.

If this damned icon of the dark years of George W. Bush, Dick Cheney, Donald Rumsfeld and their close advisors is ever to close, it is time for Barack Obama, Eric Holder and Robert Gates to regroup and to accept that confusion plays only into the hands of those haunted by the ghost of Dick Cheney, and that clarity is required. Moreover, despite lawyers’ fears of new waves of litigation, this clarity has to involve the nation’s leaders acknowledging why the District Courts have ruled, in 79 percent of the habeas petitions before them, that the men in question are neither terrorists nor soldiers and should be released.

The truth is out there — and I am only one of many writers who have been explaining it for the last four years — but I will spell it out again: the majority of the prisoners were seized for bounty payments by US allies, were never screened according to the Geneva Conventions to determine whether or not they were combatants of any kind, and are held not because of anything resembling evidence, but through a shamefully poor attempt to build up a case against them in the isolation of Guantánamo, through a combination of torture, coercion and bribery, and the use of raw intelligence masquerading as facts.

Everyone in Guantánamo deserves better than this: both the few dozen men who are genuinely accused of involvement with al-Qaeda, the 9/11 attacks and other acts of international terrorism, who should face trials for their alleged crimes, and the majority of the prison’s population, whose release is still being prevented, or made horrendously complicated, by both the Executive and the lawmakers in Congress — some innocent men, and others who were soldiers in a now almost forgotten civil war between the Taliban and the Northern Alliance, whose ongoing detention is based not on any notions of justice, but on the lingering legacy of the Bush administration’s mistaken decision to equate al-Qaeda with the Taliban.

Note: For more information on the prisoners cleared for release, see my article, “Guantánamo’s refugees,” and also see the following profiles on the Reprieve website: Ahmed Belbacha (Algeria), Nabil Hadjarab (Algeria), Said Farhi (Algeria), Adel Fattough Ali El-Gazzar (Egypt), Sherif El-Mashad (Egypt), Ayman al-Shurafa (Palestine), Adel Hakeemy (Tunisia), Hedi Hammamy (Tunisia) and Saleh Sassi (Tunisia).

This report was first 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.

Their letter to the president is particularly self-serving for three of the directors (Michael Hayden, Porter Goss, and George Tenet), who would presumably be the subject of any investigation, and simply self-aggrandizing for the others (John Deutch, James Woolsey, William Webster, and James Schlesinger), whose stewardship of the CIA since the early 1970s has contributed to the Agency’s loss of influence and credibility.

The key to managing a complex organization such as the CIA is based on the integrity and competence of the director and his senior management. These traits were certainly lacking during the two decades these “magnificent seven” were at the helm.

The letter itself represents a stunning display of irrelevance and wrong-headedness. The former directors argue, for example, that any reopened investigation would damage the intelligence community’s ability to obtain cooperation of foreign intelligence agencies.

In fact, the opposite is the case. Foreign intelligence agencies have been holding back their liaison activities and their cooperation with the CIA because of the crimes associated with secret prisons, torture and abuse, and extraordinary renditions. It is quite unbelievable that CIA leaders decided to compromise the governments and intelligence services of the European community by locating secret prisons and using logistical facilities within their borders. It is very unlikely that any member of the European Union will cooperate with such CIA activities in the future.

The seven directors argue predictably that career prosecutors have already investigated the relevant cases where “Agency officers appeared to have acted beyond their existing legal authorities,” but with the exception of a prosecution of a CIA contractor there was a determination that prosecutions were not warranted. They do not mention that a political appointee in the Bush administration, Paul McNulty, was responsible for these decisions and they do not refer to the unconscionable politicization of the Bush administration’s Justice Department.

Finally, the letter argues that any criminal investigation would “seriously damage the willingness” of intelligence officers to “take risks to protect the country.”

This is arrant nonsense! One of the reasons why the CIA had to resort to independent contractors, particularly former military officers and enlisted men, to staff secret prisons and conduct torture and abuse was because of the opposition of professional intelligence officers to the policies of the Bush administration. An investigation would not compromise the national security interests of the United States, although it would cause grave embarrassment to those who carried out these policies and would perhaps guarantee that these actions would never again be permitted.

It is also worthwhile to examine those individuals who signed the letter to the president.  Jim Schlesinger abolished the Office of National Estimates, the most prestigious Agency department for intelligence analysis, because of its independence and created a group of National Intelligence Officers who would be more responsive to the policy demands of the White House and the National Security Council.

Upon arrival at the CIA in 1973, he assembled the CIA’s Soviet analysts and told them to “stop fucking Richard Nixon.” Judge William Webster obstructed the Walsh investigation of Iran-Contra, particularly the case against a high-ranking operations officer who was responsible for illegal arms deliveries to the Contras. The officer was indicted by a Grand Jury for making false statements and obstructing the investigations of the CIA’s Inspector General as well as the work of the Tower Commission, but the case was dismissed after Webster refused to release necessary documents.

Jim Woolsey and John Deutch were short-lived directors who weakened the Agency’s role in collecting intelligence and conducting analysis in the key fields of arms control and international terrorism. Woolsey’s unwillingness to punish any of the eleven senior officers who were responsible for allowing Aldrich Ames, the notorious long-spy for the Soviet Union, to move into sensitive clandestine positions over a ten-year period led the Clinton administration to force his resignation.

Deutch’s security breaches at the CIA included the compromise of the most sensitive clandestine operations of the directorate of operations.  Deutch had introduced sensitive intelligence to his home computer that had been used for accessing pornographic sites, but he blamed others in the household for the compromise.

Tenet, Goss, and Hayden were directly involved in the decision-making that led to the creation of secret prisons in Europe, Southwest Asia, and the Far East; the use of torture and abuse; and the rendition of individuals who were guilty of no crimes against the United States. Tenet, moreover, was directly responsible for the false intelligence given to the White House to support the use of force authorization against Iraq in 2002 as well as the phony speech given by Secretary of State Colin Powell to the United Nations in 2003.

Goss worked assiduously to cover-up the 9/11 accountability report of the CIA’s Inspector General. His handpicked executive secretary, the third highest position at the CIA, was Kyle “Dusty” Foggo, who is currently serving a jail sentence for steering Agency contracts to a lifelong friend who bribed former congressman Randall “Duke” Cunningham.

Hayden entered the CIA under a cloud because, as director of the National Security Agency, he approved the warrantless eavesdropping program that began after 9/11.  And he left the CIA under a cloud this year because of his success in compromising the work of the Office of the Inspector General.

President Obama and Attorney General Eric Holder must ignore the efforts of the former CIA directors and many others to find the truths that would be part of any investigation of activities that went beyond any legal authority. Twenty-five years ago, CIA director William Casey tried to cover-up crimes that were committed in the remote El Salvadoran village of El Mozote. Eventually the Salvadoran government established a Truth Commission to investigate the crimes that had been dismissed by the Reagan administration.

Today, the United States needs to create a Truth Commission to understand the crimes that were committed over the past decade.

Melvin A. Goodman, a senior fellow at the Center for International Policy and adjunct professor of government at Johns Hopkins University, is The Public Record’s National Security and Intelligence columnist. He spent 42 years with the CIA, the National War College, and the U.S. Army. His latest book is Failure of Intelligence: The Decline and Fall of the CIA.

George Tenet is one of seven former CIA directors who sent a letter to President Obama Friday urging him to stop a Justice Department review into torture.

Seven former directors of the CIA sent a letter to President Barack Obama Friday asking him to take the unprecedented step of personally blocking a Justice Department “review” of cases where agency officers and contractors allegedly exceeded legal guidelines during the interrogations of “war on terror” detainees.

The ex-directors claim the investigation authorized last month by Attorney General Eric Holder into will “only help Al Qaeda elude US intelligence and plan future operations” and “will continue to make it harder for intelligence officers to maintain the momentum of operations that have saved lives and helped protect America from further attacks.”

Those statements are nearly identical to warnings made by Republican lawmakers in recent weeks, which have been disputed by veteran interrogators and a former Bush administration official as a clear-cut attempt to shield top Bush officials who came up with the torture policies, in violation of anti-torture laws, from scrutiny.

Three of the former directors—George Tenet, Michael Hayden and Porter Goss—were personally involved in the policy discussions and decisions during George W. Bush’s tenure that lead to the implementation of “enhanced interrogation techniques.” According to recently released documents, CIA headquarters in Langley micromanaged the torture of at least one high-value detainee, Abu Zubaydah, in 2002 when Tenet was CIA director.

Another former director who signed the letter, James Schlesinger, conducted an investigation into the abuse and torture of prisoners at the infamous Abu Ghraib prison in Iraq.

The other three former directors are John Deutch, R. James Woolsey, both of who served in the Clinton administration and William Webster, a former federal judge who served as CIA director in the administration of George H.W. Bush and is currently chairman of the Homeland Security Advisory Council. Tenet also served as CIA director during the last three years of the Clinton administration.

Repeatedly invoking 9/11 in their letter, the former CIA directors asked Obama to exercise [his] authority to reverse Attorney General Holder’s August 24 decision to re-open the criminal investigation of CIA interrogations that took place following the attacks of September 11.”

Their request comes weeks after former Vice President Dick Cheney, during an interview with Fox News, said Obama, as the “chief law enforcement officer of the administration,” had the authority to thwart the Justice Department investigation.

“I think if you look at the Constitution, the President of the United States is the chief law enforcement officer in the land. The Attorney General’s a statutory officer. He’s a member of the cabinet. The President’s the one who bears this responsibility.

“And for him to say, ‘gee, I didn’t have anything to do with it,’ especially after he sat in the Oval Office and said this wouldn’t happen, then Holder decides he’s going to do it.”

But Cheney and the former CIA directors have taken an expansive view of the Constitution, specifically Article II, which says, “The executive Power shall be vested in a President of the United States.”

In common practice and understanding, however, the attorney general is the nation’s chief law enforcement officer. The attorney general “evolved over the years into chief law enforcement officer of the Federal Government,” according to the Department of Justice’s website.

During the Bush administration, the Department of Justice was politicized and former Attorney General Alberto Gonzales used the agency to advance the policies of the Bush administration, an episode noted by no less than four investigations conducted by Justice Department watchdogs.

Furthermore, contrary to what Cheney claims, Obama never said there wouldn’t be an investigation into torture. What he said, and what his political appointees have echoed to the dismay of civil liberties groups and some Democrats, is that he had hoped to “look forward” not “backwards” and that those CIA interrogators “who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” He also added that the decision was ultimately up to Holder.

Jameel Jaffer, director of the ACLU’s National Security Project, said if there is a problem with Holder’s investigation its “focus is too narrow.”

“There is abundant evidence that torture was authorized at the highest levels of the Bush administration, and the Justice Department’s investigation should be broad enough to encompass Bush administration lawyers and senior officials – including the CIA officials – who authorized torture,” he said.

But that is highly unlikely and in that sense, the probe is reminiscent of the investigations into Abu Ghraib, in which low-level MPs were court-martialed and imprisoned for acts that supposedly had not been sanctioned by their superiors, who included, among others, former Secretary of Defense Donald Rumsfeld.

Matthew Miller, a Justice Department spokesman, made it clear Friday that the investigation authorized by Holder is simply a “preliminary review” and “that review will be narrowly-focused.”

“The Attorney General’s decision to order a preliminary review into this matter was made in line with his duty to examine the facts and to follow the law,” Miller said. “As he has made clear, the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”

Last month, Holder instructed Assistant U.S. Attorney John Durham to undertake a “preliminary” inquiry into whether some interrogators exceeded the parameters that the Bush administration placed on the treatment of “war on terror” detainees.

With Cheney’s strong support, interrogators were permitted to engage in a variety of torture techniques, including the drowning sensation of waterboarding, but some interrogators allegedly engaged in practices outside those guidelines.

Durham is also investigating crimes related to the destruction of CIA torture tapes, a dozen of which show two high-value detainees being subjected to “enhanced interrogation techniques.”

Holder’s decision came on the day the CIA released a declassified version of an inspector general’s report on the agency’s interrogation and detention program.

The May 2004 report prepared by CIA Inspector General John Helgerson said interrogators staged mock executions, revved a power drill and brandished a revolver during interrogations and threatened to kill the family of self-professed 9/11 mastermind Khalid Sheikh Mohammed and rape the wife of another high-value detainee, Abd Al-Rahim Al Nashiri.

Threatening prisoners in custody of the U.S. government with imminent death is a violation of the Convention Against Torture.

Helgerson also investigated the deaths of detainees in U.S. custody, but the details of those cases were redacted.

The ex-CIA directors claim, like other critics of the probe, that career federal prosecutors in the Eastern District of Virginia had already spent considerable time probing cases Helgerson referred to the Justice Department and “determined that one prosecution (of a CIA contractor) was warranted. A conviction was later obtained. They determined that prosecutions were not warranted in the other cases.”

“The CIA, at its own initiative, forwarded fewer than 20 instances where Agency officers appeared to have acted beyond their existing legal authorities…,” the CIA directors’ letter says. “In a number of these cases the CIA subsequently took administrative disciplinary steps against the individuals involved.”

Jane Mayer, in her book The Dark Side, said there was a mountain of evidence to support prosecutions and a belief by some “insiders that [Helgerson's investigation] would end with criminal charges for abusive interrogations.”

But top Justice Department officials, including former head of the criminal division Michael Chertoff, his deputy Alice Fisher and Deputy Attorney General Paul McNulty, allowed the cases to languish and may have even scuttled the probes to protect the Bush White House.

McNulty resigned in disgrace two years ago and is under scrutiny by a special prosecutor investigating the firings of nine US attorneys. McNulty faces obstruction of justice and perjury charges related to his February 2007 testimony to Congress about the ordeal.

The former CIA directors said the Holder’s “decision to re-open the criminal investigation creates an atmosphere of continuous jeopardy for those whose cases the Department of Justice had previously declined to prosecute.”

“Moreover, there is no reason to expect that the re-opened criminal investigation will remain narrowly focused,” they wrote.

But according to a report in Saturday’s Washington Post, that’s exactly what appears to be happening.

“The Justice Department’s review of detainee abuse by the CIA will focus on a very small number of cases, including at least one in which an Afghan prisoner died at a secret facility, according to two sources briefed on the matter,” the Post reported.

“Although earlier reports indicated that Durham would look into 10 cases, a source said recently the number is much smaller,” according to the Post. In all, 24 alleged abuse cases were earlier referred to federal prosecutors by the CIA inspector general, of which 22 were declined, according to a letter in February 2008 from a Justice Department legislative liaison.”

The Post, citing unnamed sources, also said that a report by the Justice Department’s Office of Professional Responsibility on legal advice related to interrogations attorneys in the agency’s Office of Legal Counsel gave to the Bush administration “does not point to problems with attorneys in the Eastern District of Virginia… but it does explore differences of opinion within the working group that examined the detainee allegations over how to proceed on the few cases that were ‘close calls.’

“In a small number of instances, career lawyers disagreed about whether the evidence was sufficient to seek indictment and ultimately win in court. Some of those issues were assessed — as is normally the case — by political appointees, including Paul J. McNulty, the U.S. Attorney in the Eastern District of Virginia who was nominated to serve as deputy attorney general in October 2005. There are no allegations that cases were rejected for improper political reasons.”

In an interview two weeks ago with the German magazine Der Spiegel, Helgerson said Holder “had no choice” but to authorize an investigation.

But, “at the end of the day, I think he will find it is not feasible to prosecute anyone who participated in the approved program,” Helgerson said. “I personally would not prosecute. There are a number of complex and mitigating circumstances in all these cases, including the passage of time, the nature of the evidence, and — importantly — the clear absence of any criminal intent.”

He even cites deputy director of the CIA, Stephen Kappes, one of the key ideological drivers for the policy of detention and interrogation, as someone who “doesn’t want to have anything to do with interrogation.”

Ignatius strongly believes that it is time for the CIA to “get on with it,” which was the signature line of former CIA director Richard Helms, who Ignatius considers the “savviest spymaster this country has produced.” Let’s forget that Helms lied to the Senate Foreign Relations Committee in 1973 on the overthrow of the elected government in Chile and that a grand jury was called to see if he should be indicted for perjury.

Let’s forget that the Justice Department brought a lesser charge against Helms, who pleaded nolo contendere, and was fined $2,000 and given a two-year suspended prison sentence. And let’s forget that Helms was the major supporter of James Jesus Angleton, the crazed head of CIA counterintelligence for 20 years, who believed that the KGB had successfully penetrated the Agency.

We called Angleton “The Ghost” when I was at the CIA because no one had ever seen the man. And it was “The Ghost” who befriended Kim Philby, the Soviet spy from British intelligence, introduced him to high-level CIA officials, and defended him to the end. So much for counterintelligence.

In his efforts to prevent any investigation of the CIA’s interrogation program, Ignatius has also forgotten the lessons of the Nuremberg Trials in 1945-1946.  The International Tribunal taught us that crimes committed by individuals for state purposes were the responsibility of those individuals and punishable by state law. And, most importantly, following orders was not a defense. But Ignatius believes that all of the relevant evidence on torture and abuse was seen by “career prosecutors, who decided against bringing cases.” So, let’s forget that the career prosecutors were employed by the politicized Justice Department of the Bush administration and that they reported to a politically-appointed assistant attorney general.

Ignatius believes that investigation and accountability will hurt the Agency. It will actually restore the credibility of the Agency and lead to greater cooperation from important foreign intelligence services, which is essential to combating terrorism and the proliferation of weapons of mass destruction. It was CIA crimes such as secret prisons and extraordinary renditions that hurt the Agency, and led to reticence about sharing intelligence. For example, there is no intelligence service within the European Union that would assist in a rendition by the CIA; no EU country that would permit the CIA to transport a prisoner by aircraft; no EU country that would agree to a secret prison or “black site” within its borders.

Ignatius also reveals that he knows nothing about loyal dissent.  He argues that “questioning presidential orders isn’t really the job” of the CIA leadership, “especially when those orders are backed by Justice Department legal opinions.” This country has fought two unnecessary wars in the past 45 years with the deaths of more than 60,000 American men and women simply because high-level officials failed to expose the deceptions and manipulations of the Johnson and Bush administrations.

In supporting the wars in Iraq and Afghanistan, Ignatius and the Washington Post appear enamored with U.S. military power, with the Post providing few opportunities for contrarian voices to be heard. The mainstream media, particularly the Post, has been far too complacent in holding the Bush and Obama administration’s feet to the fire in the case of these wars.

Finally, Ignatius claims that the CIA resorted to independent contractors for help in “waterboarding” and assassination programs because of a lack of expertise. In fact, the CIA turned to outside help in these egregious areas because it was trying to avoid accountability and there was internal resistance to both programs.  There were many officers in the National Clandestine Service opposed to the renditions and detentions program; the Office of Medical Service had serious problems with the waterboarding program, which is outlined in the 2004 Inspector General Program.

Presumably, there were some greybeards around who mentioned that resorting to Blackwater to run an assassination program resembled the CIA’s contacts with the Mafia in the early 1960s to kill Castro. The CIA assassination program led to the Church Commission hearings in the 1970s, which placed restrictions on covert action programs and created a congressional oversight process that has fallen into disarray.

It is unbelievable that Ignatius could read the chilling and appalling 2004 IG report and not temper some of his views.  His continued support of the CIA points to fanaticism and reminds me of Stalin’s reference to Western journalists who defended Soviet policy—he called them “useful idiots.”

Melvin A. Goodman, a senior fellow at the Center for International Policy and adjunct professor of government at Johns Hopkins University, is The Public Record’s National Security and Intelligence columnist. He spent 42 years with the CIA, the National War College, and the U.S. Army. His latest book is Failure of Intelligence: The Decline and Fall of the CIA.

His announcement was made shortly before the CIA released a declassified version of a 2004 inspector general’s report that was sharply critical of the agency’s detention and torture program. The long-awaited report contains shocking details about the treatment of detainees and says in no uncertain terms that high-level CIA officials in Langley micromanaged the torture of detainees.

The report said CIA interrogators and contractors used “unauthorized, improvised, inhumane and undocumented detention and interrogation techniques” that exceeded the legal guidelines for interrogation cited in Justice Department memoranda.

But the investigation Holder authorized will be limited in scope and will focus on whether CIA contractors and agency interrogators violated anti-torture laws and not on the Bush administration officials who created and implemented the policies.

Holder named John Durham, a federal prosecutor from Connecticut who was appointed in early 2008 to investigate whether crimes were committed related to the destruction of more than 90 interrogation tapes, to lead the inquiry.

“Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand,” Holder said. “Accordingly, I have decided to expand his mandate to encompass this related review. Mr. Durham, who is a career prosecutor with the Department of Justice and who has assembled a strong investigative team of experienced professionals, will recommend to me whether there is sufficient predication for a full investigation into whether the law was violated in connection with the interrogation of certain detainees.”

In a statement, Holder said he “closely” reviewed a report prepared by the Justice Department’s Office of Professional Responsibility related to legal memoranda prepared by agency attorneys John Yoo, Jay Bybee and Steven Bradbury that authorized the torture of high-level detainees before deciding to move forward in naming a special counsel.

He said the report recommended that the Justice Department “reexamine previous decisions to decline prosecution in several cases related to the interrogation of certain detainees.”

“I have reviewed the OPR report in depth,” Holder said. “Moreover, I have closely examined the full, still-classified version of the 2004 CIA Inspector General’s report, as well as other relevant information available to the Department. As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.

“The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter. I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.”

Holder said he is well aware that his decision will likely be seen as “criticizing the work of our nation’s intelligence community.”

“I could not disagree more with that view,” Holder said. “The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance.

“That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.”

Earlier Monday, CIA Director Leon Panetta issued a statement saying the contents of a CIA inspector general’s report on the systematic torture of “war on terror” detainees is an “old story.”

“The outlines of prior interrogation practices, and many of the details, are public already,” Panetta said. “The use of enhanced interrogation techniques, begun when our country was responding to the horrors of September 11th, ended in January.”

Panetta’s statement was disseminated to reporters hours after ABCNews.com reported that he got into a “profanity-laced screaming match” with a senior White House staff member over reports that  Holder was considering the appointment of a special counsel to probe the CIA’s use of torture against “war on terror detainees.”

According to intelligence officials, Panetta erupted in a tirade last month during a meeting with a senior White House staff member. Panetta was reportedly upset over plans by Attorney General Eric Holder to open a criminal investigation of allegations that CIA officers broke the law in carrying out certain interrogation techniques that President Obama has termed “torture.”

Holder added that he also realizes that his decision to authorize an inquiry “will be controversial.” But he said his “duty” as the nation’s chief law enforcement officials “is to examine the facts and to follow the law.”

“In this case, given all of the information currently available, it is clear to me that this review is the only responsible course of action for me to take,” he said.

The White House said in a statement Monday that President Obama “has said repeatedly that he wants to look forward, not back, and the President agrees with the Attorney General that those who acted in good faith and within the scope of legal guidance should not be prosecuted. Ultimately, determinations about whether someone broke the law are made independently by the Attorney General.”

The Center for Constitutional Rights said in a statement that an investigation sharply limited in scope is unacceptable

“Responsibility for the torture program cannot be laid at the feet of a few low-level operatives. Some agents in the field  may have gone further than the limits so ghoulishly laid out by the lawyers who twisted the law to create legal cover for the program, but it is the lawyers and the officials who oversaw and approved the program who must be investigated.

“The Attorney General must appoint an independent special prosecutor with a full mandate to investigate those responsible for torture and war crimes, especially the high ranking officials who designed, justified and orchestrated the torture program. We call on the Obama administration not to tie a prosecutor’s hands but to let the investigation go as far up the chain of command as the facts lead. We must send a clear message to the rest of the world, to future officials, and to the victims of torture that justice will be served and that the rule of law has been restored.”

House Judiciary Committee Chairman John Conyers and Rep. Jerrold Nadler, chair of the panel’s Constitution and Civil Rights subcommittee, applauded Holder’s decision. Both Democratic lawmakers have lobbied the Justice Department for more than a year to appoint a special counsel to probe the CIA’s use of torture. They also renewed their calls for a truth commission to probe the Bush administration policies that lead to the abuses.

They said the details of the CIA inspector general’s report were “truly disturbing.” The report concluded that the interrogation program used “‘unauthorized, improvised, inhumane, and undocumented detention and interrogation techniques” against detainees and that interrogators staged mock executions and threatened to kill the children of self-professed 9/11 mastermind Khalid Sheikh Mohammed’s children if further attacks were carried out against the United States.

Conyers and Nadler said with that in mind it would be unfair if an investigation focused on rogue interrogators as opposed to the high-level Bush administration officials who implemented the policies and micromanaged the torture of detainees.

“The gruesome acts described in today’s report did not happen in a vacuum,” Conyers and Nadler said in a statement. “It would not be fair or just for frontline personnel to be held accountable while the policymakers and lawyers escape scrutiny after creating and approving conditions where such abuses were all but inevitable to occur…an independent and bipartisan commission should also be convened to evaluate the broader issues raised by the Bush Administration’s brutal torture program.”

They also called for Durham to be given a broad mandate to probe Bush administration officials and to prosecute those individuals who broke the law.

“This must be a robust mission to gather any and all evidence without predetermination of where it may lead. Seeking out only the low-level actors in a conspiracy to torture detainees will bring neither justice nor restored standing to our nation.”