But now comes word from the Department of Labor that, whoops, we “minsunderestimated,” as former President George W. Bush would say, the number of jobs lost.  The Department of Labor’s Bureau of Labor Statistics is reporting that because of a “modeling error,” it misstated the number of jobs lost between March 2008 and March 2009 by 17 percent. In hard numbers, that is to say, the BLS was reporting that a record 4.8 million jobs were lost during those 12 months of economic collapse, when in fact the job loss total was actually 5.6 million.

They missed 824,000 lost jobs! Just to give you an idea of how many people that is, we’re talking about 10 percent of the population of the city of New York, and more people than the entire population of San Francisco.

And it gets worse.  The same broken model was used for the next year, so that while we’ve been getting all those soothing words about how job losses are slowing, and about how the economy is going to start coming back, in fact, the number of jobs supposedly created or added during the past nine months has actually been overstated by almost one million! That would be the entire population of the cities of Seattle and Miami combined.

Technically, what happened is that the BLS was relying on an assumption that new businesses were forming all during these two periods, and that these new businesses were hiring people. That’s what happens during normal years, of course. But of course, any dunce without out an economics PhD could have told the BLS that over the past two years, which were hardly normal in any sense of the word, not many new businesses were being formed.

As Dean Baker, an economist with a PhD who is co-director of the Center for Economic Policy and Research, and a guy who, as a left-leaning economist outside of the mainstream consensus does exercise common sense, puts it, when all those rosy numbers about job creation or slowing job losses were coming out, “the idea that we had a significant number of businesses being created didn’t make sense.”

Ah, but that begs the question: if the government numbers are that grotesquely wrong, what does that say about the government’s policy with regard to joblessness, about it’s policy towards economic stimulus, about the government’s policy towards alleviating the suffering of the struggling citizenry? After all, policies are supposed to be designed around a solid set of facts.

It would seem that a major reappraisal of economic policy would be in order, no?

But not a word are we hearing about such a reappraisal.

In fact, I suspect that after this little moment of embarrassment, the whole thing will be forgotten, and we’ll go on with our laissez faire approach to dealing with this recession, pretending that things will all get better on their own.

This shouldn’t surprise anyone. After all, we’re still hearing, day in, day out, on the news that the unemployment rate is only 10 percent, when the economists all know that this is a fiction. Thanks to political pressures dating back to the Reagan administration, and continued through the Clinton and Bush years, that figure has carefully excluded people who have been jobless for over a year, people who say to Labor Department pollsters that they have “given up” looking for work, and people who are working at a part-time job because they can no longer find full-time employment.

By any fair standard, all these people are unemployed too, but we just erase them from the books. If we counted all these people, as the Labor Department used to do back in the 1970s and earlier, the real unemployment rate would be over 18 percent today in America.

The bogus figure of 10 percent unemployment gives the false impression that unemployment in the US is not all that bad. It also gives the impression that it’s not any worse here than in Europe, where the rate is also about 10 percent, except that Europe, the long-term unemployed are counted, as are those who are only working part-time involuntarily.

The lesson here is not to trust the government. When it comes to the nation’s true economic condition, as the old saying goes: “Who are you going to believe: the numbers or your own lying eyes?”

Dave Lindorff is a Philadelphia-based journalist. He is author of Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2003) and The Case for Impeachment (St. Martin’s Press, 2006). His work is available at thiscantbehappening.net

Official White House Photo by Pete Souza

You had to love the headline the Philadelphia Inquirer put on the jump page of columnist Trudy Rubin’s Sunday commentary about word that the Obama administration is hoping to talk with at least some mid-level Taliban leaders about giving up the fight and “coming over” to the “government” side.

“Relax–No deal with Taliban is Imminent,” the headline read. “I suggest everyone take a deep breath,” Rubin wrote. “The US position toward talks with the Taliban has shifted somewhat, but no deal with top Taliban leaders is imminent, or even likely.”

Phew! Thank god for that! Imagine Americans actually sitting down and discussing peace just as we’re getting a good war on!

Fortunately, say Rubin and other journalists with good Washington connections (Rubin has for years been a big promoter of Gen. David Petraeus), America is only interested in talking with “low and mid-level Taliban” whom it hopes to “wean away” to our side with offers of jobs and money.

But really, what is the problem with actually negotiating with the real leaders?

It’s clear that this talk of limited talking with lower-level Taliban grunts is an act of desperation by a US side that recognizes that it is losing the war. The Taliban are not running from the fight as American forces ramp up with Obama’s escalation of troops and mercenaries. They are taking the battle to the US, with coordinated attacks right in Kabul, open firefights with US troops in the field, and increasingly brazen attacks all over the country.

The idea that the US doesn’t negotiate with its enemies is one of those stupid “We’re Number One!” mantras born of the World War II experience. There, the US and its allies refused to negotiate with the clearly defeated Axis powers. Germany was bombed into ruins and simply overrun by the US and its allies, including the Soviet Union marching from the east. Japan was not allowed to surrender. Its efforts to negotiate a settlement were brushed off by Washington so the US could vaporize two of Japan’s cities with its new A-bombs, firebomb Tokyo, and then accept a total surrender.

Since that time, total victory has been the model for American war making, except that of course there have been some big exceptions. The US ended up in a stalemate against North Korea and its ally China, and had to negotiate a cease-fire in place, which continues to this day. And of course in Vietnam, a war the US lost, it ended up having to negotiate its way out before its own forces were overrun.

The Afghanistan situation would appear to be closer to Vietnam than to Korea. There is no way the country can be divided up into a Taliban sphere and a US puppet-run sphere. First of all, the Taliban have the support of most of the Pashtun ethnic group, which is the largest by far in the country. Second, there is no “government” side–just a bunch of tribal groups and a US puppet regime–hugely corrupt and actually more of a mob than a government, that controls the capital of Kabul and a few other large towns.

The Taliban have already proven that they can defeat a foreign army–the Russians–who had more troops in their fight than the US will have even after Obama’s escalation is complete. And they know they are winning.

So it really isn’t in our interest to say we won’t talk with what Secretary of State Hillary Clinton calls “the really bad guys” in the Taliban.

Of course we’ll talk with them–eventually. We’ll have to, so we can extract our troops in an orderly fashion and claim to the American people that we have won “peace with honor.” The alternative would be to have to rush them out with the enemy hounding them as they leave, tail between legs.

Look for it. At some point, after enough young Americans have been killed or had their body parts blown off, after the country has spent one or two or three hundred billion dollars on the effort, after an increasingly frustrated military has cranked up the terrorizing and slaughter of innocent Afghanis as much as it can get away with, President Obama or whoever replaces him in the White House in 2012, will have to call for peace talks.

Then there will be the inevitable debate for months about the shape of the table, with the US insisting that one side be reserved for the puppet regime of Hamid Karzi, or whatever leader the CIA installs after Karzai is finally assassinated or maneuvered into exile in Switzerland–in order to preserve the illusion that there is an Afghan government side. And finally there will be the announcement of a power-sharing agreement, in which the Taliban will be given half the ministries, and Taliban forces will be merged into the national army.

The remaining US forces (our NATO “allies” will by this point be long gone) will then climb aboard their C-5 and C-17 transports and fly home and, after a brief respite, the Taliban will toss out the old puppet leadership and just take over control of the country.

What is so depressing about all this, is it could all be accomplished right now and would save both sides from suffering additional casualties.

In fact, it makes so much more sense to do it now. If the US were, at this point, to call for talks with “the bad guys” at the top of the Taliban, it could negotiate a deal that would include carrots in the form of aid and reconstruction that could indeed lure the Taliban away from any global terrorist organizations that might want to seek their allegiance and assistance. It might take a little doing–after all the US has been aggressively trying to kill these very leaders using its ubiquitous Predator drones, and many of them have lost close family members to those drone attacks.

But at least there would be the chance of reaching some accommodation that would allow Afghanistan to start to recover from its decades-long nightmare of war and occupation. More war and more killing would merely mean that when the Taliban finally do drive the US out, they will be further embittered, further radicalized, and further filled with vengeance.

Dave Lindorff is a Philadelphia-based journalist. He is author of Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2003) and The Case for Impeachment (St. Martin’s Press, 2006). His work is available at thiscantbehappening.net

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

Made available in response to an American Civil Liberties Union (ACLU) Freedom of Information Act (FOIA) lawsuit, the list contains the names of 645 prisoners who were detained at Bagram as of September 2009.

But the government blacked out other vital information requested by the civil rights group – including prisoners’ citizenship, length of detention, country where captured, and circumstances of capture.

The government’s previous position was that the public had no right to have this information.

Melissa Goodman, staff attorney with the ACLU National Security Project, said, “Releasing the names of those held at Bagram is an important step toward transparency and accountability at the secretive Bagram prison, but it is just a first step.”

“Hundreds of people have languished at Bagram for years in horrid and abusive conditions, without even being told why they’re detained or given a fair chance to argue for release,” she said.

But she added, “The information the government continues to withhold is just as vital as the names of prisoners. Full transparency and accountability” about Bagram requires full disclosure.

“The public has long been kept in the dark about what goes on at Bagram. It is time to shine a bright light on the secretive prison,” Goodnam said.

It was not clear whether the list of names also included those held in field detention sites around the country, where some detainees are taken initially before being placed in the general detainee population.

The ACLU filed a Freedom of Information Act (FOIA) request for records relating to the detention and treatment of prisoners held at the Bagram Airfield in Afghanistan in April 2009.

When documents were not forthcoming, the ACLU filed the FOIA lawsuit in September 2009, seeking the disclosure of documents related to the detention and treatment of prisoners at Bagram, records relating to the rules and agreements that govern the facility, and documents pertaining to the conditions of confinement and status review process afforded prisoners.

The U.S. government’s Bagram detention facility has been the focus of widespread media attention and public concern for many years, but very little information has been publicly available about the secrecy-shrouded facility or the prisoners held there.

The U.S. government has been detaining a previously-unknown number of prisoners at the facility since 2002. Some have been held for as long as six years without access to counsel or a meaningful opportunity to challenge their imprisonment.

The conditions of confinement at Bagram are reportedly primitive, with allegations of mistreatment and abuse continuing to surface; in fact, in 2002, two Afghan prisoners at Bagram were fatally beaten by U.S. troops.

The U.S. military has recently built a modern new prison to take the place of the dilapidated and inefficient original unit. The U.S. is in the process of handing management of this new facility over to the Afghan authorities.

Nonetheless, there is growing public concern in the U.S. and around the world that Bagram has become, in effect, the new Guantanamo.

Former detainees have described abusive treatment at the base, especially in the first two or three years it was in existence. But in the last several years, detainees who have been released described improved conditions.

While the majority of the detainees at Bagram are Afghan, a small number are foreigners who are accused of fighting with the Taliban. Also held there are a handful of detainees captured in other countries, according to human rights lawyers and military detention officials.

The current detainee population is about 750, according to military detention officials, but in September, when the information request was made, there were about 100 fewer detainees. The numbers have grown over the past few months because of the increased military operations by U.S. forces.

An investigation by the British Broadcasting Corporation (BBC) has revealed that former detainees at Bagram were beaten, deprived of sleep, and threatened with dogs.

Jonathan Hafetz, an attorney with the American Civil Liberties Union’s National Security Project, told us, “The BBC investigation provides further confirmation of the United States’ mistreatment of prisoners at Bagram. These abuses are the direct consequence of decisions made at the highest levels of the U.S. government to avoid the Geneva Convention and forsake the rule of law.”

The Barack Obama administration has sought to deflect some of the heat it is getting from civil rights organisations and legal experts over its management of Bagram. For example, it recently announced a set of new procedures for conducting periodic assessments of the status of each prisoner.

But, according to Tina Monshipour Foster, executive director of the International Justice Network, the only U.S. organisation actively litigating on behalf of Bagram detainees, “The ‘new’ procedures adopted by the Obama administration are not new at all, they appear to be exactly the same as the procedures created by the [George W.] Bush administration in response to prior court challenges by Guantanamo detainees.”

“The idea of assigning a non-lawyer ‘personal representative’ who does not legally represent the detainee, but works for the military, is a step in the wrong direction,” Foster said.

She told us, “Only a lawyer who is independent from the government can effectively assist a detainee with his defense against allegations being made by the government.”

The Pentagon denied the BBC’s charges of harsh treatment and insisted that all inmates in the facility are treated humanely.

Another prominent human rights organisation, the British-based Reprieve, called on the British government to take action concerning two Pakistanis who it says Britain helped render there from Iraq.

“These men were never in Afghanistan until the UK and the U.S. took them there,” Stafford Smith told us. “It is the height of hypocrisy to take someone to Bagram and then claim that it is too dangerous to let them see a lawyer. Even Guant·namo Bay is better than this.”

Since coming to office a year ago, President Obama has banned the use of torture and ordered a review of policy on detainees, which is expected to report next month. But unlike its detainees at the U.S. naval facility at Guantanamo Bay in Cuba, the prisoners at Bagram have no access to lawyers and they cannot challenge their detention.

In April 2009, in a lawsuit brought in federal court by the International Justice Network, Judge John D. Bates ruled that three Bagram prisoners – two Yemenis and one Tunisian citizen – had the right to petition U.S. courts for their release because they were not Afghans captured on the Afghan battlefield.

But he also ruled that for a fourth appellant, a citizen of Afghanistan, rather than a Yemeni or Tunisian citizen held at Bagram, granting him legal rights might upset the relationship between the U.S. and Afghanistan.

Judge Bates dismissed the petition of Haji Wazir, an Afghan civilian held at Bagram without charge for more than six years. The judge ruled that because the petitioner was a citizen of Afghanistan, he had no right to petition the U.S. courts for his release.

Afghan government sources have said prisoners will have a right to appeal their detentions once the U.S. transfers its authority.

Pursuant to a settlement reached between the National Security Archive and the White House Executive Office of the President (EOP), the White House today issued a letter describing critical aspects of the EOP unclassified network e-mail preservation and archiving system now used in the White House. Among other specifics, the letter describes:

• Automated capture and preservation of all e-mail and Blackberry messages sent or received on the EOP’s unclassified network;
• Documents segregated into component-specific repositories and broad search capabilities that improve the ability to find e-mail records in response to legal or administrative needs;
• Blocking of access to personal and external Web-based e-mail systems from White House unclassified workstations;
• Controls against unauthorized deletion of e-mails and an accounting of any deleted e-mails;
• Systematic emergency recovery backups of the system; and
• Automatically generated audit reports and system health-check dashboard reports to assist in the identification of problems.

“The system automatically addresses the critical components of capture, backup, and preservation – all of which were missing in the prior system,” explained Al Lakhani, Managing Director at Alvrez & Marsal Dispute Analysis and Forensic Services, who acted as the Archive’s technical expert during the litigation.

Kristen A. Lejnieks, counsel for the Archive from Jones Day commented: “While the Archive continues to urge the White House to upgrade its system by adding new and better protections against unanticipated problems, the system now in place includes controls and automated reporting that will quickly bring unauthorized actions to light for investigation. We can be much more confident than before that, even if an unauthorized deletion of e-mails could take place, it would be detected by a range of people within the EOP.”

“The White House appears to be approaching its record preservation obligations with greater conscientiousness than during the last administration,” stated Meredith Fuchs, the Archive’s General Counsel.

The letter released today was transmitted as agreed under a settlement of two consolidated lawsuits that were separately filed by the National Security Archive and Citizens for Responsibility and Ethics in Washington (CREW) after it was disclosed in April 2007 that the White House had ceased archiving its e-mails in 2003.

This issue has more than intrinsic interest, as the administration has now announced that it is pursuing moving over a hundred Guantanamo “detainees” to a prison in Illinois. (The actions of Umar Abdulmutallab on a Northwest Airlines jet on Christmas Day has thrown a monkey-wrench into the “closing” of Guantanamo, but the plans are ultimately to move the remaining Guantanamo prisoners to the U.S.) Will that include the transfer of Appendix M interrogations, and other abusive elements of the AFM protocol?

In an telephone interview on Dec. 11, Lt. Commander DeWalt explained that while “not routine,” Appendix M interrogations are conducted at Guantanamo “as authorized,” “in accordance with DOD directives and U.S. law.” He would not go into operational specifics. Officer-In-Charge of the 4th Public Affairs Detachment (Guantanamo Forward), Lt. Col. James Crabtree, who was also contacted, declined to be declined to elaborate when asked about more specific dates of operational usage. Appendix M is the portion of the 2006 revised Army Field Manual that covers “unlawful enemy combatants” who don’t meet the U.S. government’s criteria for Geneva treatment as prisoners of war.

Obama doesn’t want to call them illegal combatants anymore, so the government doesn’t call them anything, except people with lesser rights. Famously, President Obama has proclaimed, as did his predecessor, that he was against torture, and was banning it in his administration. As a result, the Obama administration closed down the CIA secret black site prisons, though not, as it turns out, all secret black site prisons. Obama also rescinded the torture memos drafted by, with the help of Dick Cheney’s legal counsel David Addington, Justice Department attorneys Jay Bybee, John Yoo and Steven Bradbury.

Levin, and replaced them with an interrogation policy oriented around the Bush-era Army Field Manual (AFM), whose latest incarnation was the brainchild of Donald Rumsfeld’s assistant, Stephen Cambone. At first, the new AFM was supposed to have a secret annex, so the “worst of the worst” could be grilled in U.S. military prisons, and not have any bleeding hearts or Al Qaeda types getting wind of what was going on. Instead, the government decided to publish the Appendix M annex openly, and when there was no subsequent protest, and the politicians dutifully saluted, the new torture policy was ready to go.

Appendix M was certainly not the old “enhanced interrogation techniques,” but it wasn’t exactly not them either. The new AFM was supposed to be better than the old one, like any new product, but in fact, old prohibitions against abusive interrogation techniques were removed, and in some cases, the techniques formally reintroduced. An example of the latter is sleep deprivation, which used to be explicitly proscribed, but is now part of Appendix M procedure. “Fear Up” procedures are strengthened, and exploitation of phobias allowed. Modes of sensory deprivation are introduced. The ban against drugs that cause serious derangement of the senses or temporary psychosis is replaced by a ban against drugs that cause “permanent damage.” Stress positions are, notably, not explicitly banned.

A behavioral science consultant (most likely a psychologist) and other medical personnel are part of a “multidisciplinary team” that monitors the Appendix M interrogation. The use of such medical and psychological personnel has been heavily criticized by ethicists from those professions, and by professional organizations, such as Psychologists for Social Responsibility, as the need for medical-behavioral monitoring is linked to the presence of abuse. In addition, psychologists in particular have been implicated in helping plan the interrogation themselves, particularly in ferreting out the prisoner’s psychological weaknesses and fears.

Battling for the Public’s Impression of the Army Field Manual

From time to time, the implications of actually using the AFM has theatened to break through the right-wing monopoly of discussion about government interrogation policy. Consider this exchange, last May, between NBC’s Chuck Todd and White House Press Secretary Robert Gibbs:

Q What is he going to say to those who make the argument, which has been made, he’s actually just changing rhetoric, he’s not changing policy that much? With Guantanamo, you’re essentially calling for a way of moving Guantanamo. You’re just changing the name.

MR. GIBBS: Well, ask that question of some of our severe detractors on this and see if you get agreement on that. I actually don’t think that’s the case. I think what the — the decision that the President made on military commissions is something that’s envisioned that’s much different than what was passed in Congress and signed by the President in late September and early October in 2006.

I think, as we’ve talked about here, enhanced interrogation techniques are something that this President has outlawed as part of the actions of this administration. I don’t think those are –

Q Yet the fine print, there’s open to interpretation about what different techniques could be used.

MR. GIBBS: How so?

Q In the argument that there’s definitely some words in there that one could interpret that it’s –

MR. GIBBS: Chuck, I don’t think you’re — let me understand — I don’t think you’re intimating that the Army Field Manual would allow one to do –

Q There have been some interpretations that there are –

MR. GIBBS: I can assure you that’s not how the Army interprets the Army Field Manual, and I assume that generals in the Army and the military that are in charge of ensuring that the procedures of the military are in line with the laws of this country — I don’t think you’re intimating that people in the Army are inferring different things about their own field manual, because I know that’s not the case.

Gibbs appears to think that the military can be trusted to ensure “the procedures of the military are in line with the laws of this country,” eviscerating the idea of Congressional oversight. What Todd calls “fine print” in the Army Field Manual — “open to interpretation” — others have called torture or abuse.

The President of the National Lawyers Guild Marjorie Cohn has stated that portions of the AFM protocol, especially the use of isolation and prolonged sleep deprivation, constitutes cruel, inhuman or degrading treatment or punishment and is illegal under the Common Article 3 of the Geneva Conventions, the U.N. Convention Against Torture and the International Covenant on Civil and Political Rights. Hina Shamsi, an attorney with the ACLU’s National Security Project, has stated that portions of the AFM are “deeply problematic” and “would likely violate the War Crimes Act and Geneva,” and at the very least “leave the door open for legal liability.” Physicians for Human Rights and the Constitution Project have publicly called for the removal of problematic and abusive techniques from the AFM.

The Center for Constitutional Rights wrote last year:

Appendix M of the Army Field Manual… allows the use of techniques such as prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear and humiliation of prisoners. These techniques, especially when used in combination as permitted by the AFM, constitute cruel, inhuman and degrading treatment, and in some cases, torture. These techniques have caused documented, long-lasting psychological and physical harm and were condemned by a bipartisan congressional report released last month, as well as by the Bush-appointed head of the military commissions at Guantanamo.

“In some cases, torture.” As bmaz pointed out almost exactly one year ago, when Guantanamo Convening Authority judge Susan Crawford dismissed charges against Guantanamo prisoner Mohamed al-Qahtani, telling Washington Post reporter Bob Woodward that the U.S. tortured al-Qahtani:

Crawford has exposed to bright sunlight the lie that is Barack Obama’s, and other politicians’, simple minded reliance on the Army Field Manual as cover for their torture reform credentials. Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions.

President Obama’s Interrogation Policy and Appendix M

For quite some time, some have strongly suggested that the progressive community take up the centrality of abusive interrogations, as enumerated in the Army Field Manual, most particularly, in the latter’s “Appendix M.” The failure to do so, goes the argument, would have serious repercussions for civil liberties, not to mention the struggle for accountability over past use of torture.

As torture proper moves from offshore U.S. military and CIA/Special Operations prisons to the territory of the U.S. “homeland,” civil liberties activists and commentators must make their protest against the use of torture techniques in the Army Field Manual heard in the White House. The truth about the use of cruel, inhumane, and degrading interrogation techniques must drown out the obfuscatory fear-mongering from the Cheneyesque right-wing, who babble about how the AFM is inadequate for use by intelligence agencies in the “Terrorist War.”

Some progress has been made in the past year on this issue, and as evidenced by Stephen Rickard’s article at Huffington Post late last August. Rickard is Director at the Washington Office of the Open Society Institute. He noted that the new AFM never explicitly banned the use of the “enhanced interrogation” techniques of the old Bush administration.

It strains credulity to think this was an accident. Language in the old [1992 Army Field] Manual clearly banned wall standing and other stress positions. It was deleted [in the 2006 Manual]. The old Manual called sleep deprivation “torture.” That was deleted. Rather than banning the use of cold, the 2006 Manual only prohibits causing “hypothermia” consistent with OLC limits on using cold. The 2006 Manual prohibits “beatings … or other forms of physical pain.” But it doesn’t flatly ban assaults, which is critical because the OLC memos argue at great length that the authorized physical assaults — slapping, grabbing, walling and others — were intended to cause shock and not “pain.” The 2006 Manual does not ban using water or cramped confinement.

It is hard to understand why the use of torture techniques in the current Army Field Manual has not become a bigger issue than it has. But there has been a plethora of issues and leftover crises from the Bush years, such that it’s not surprising that some important causes have not yet broken through into public consciousness.

Last August, the Obama administration unveiled its new studied policy on interrogations, proclaiming that “the Army Field Manual provides appropriate guidance on interrogation for military interrogators and that no additional or different guidance was necessary for other agencies.”

But the Washington Post story by Anne Kornblut that reported on the new policy continued the media’s practice of misrepresenting what’s in the AFM:

Using the Army Field Manual means certain techniques in the gray zone between torture and legal questioning — such as playing loud music or depriving prisoners of sleep — will not be allowed. Which tactics are acceptable was an issue “looked at thoroughly,” one senior official said. Obama had already banned certain severe measures that the Bush administration had permitted, such as waterboarding.

Kornblut did reveal one telling piece of information about where all this interrogation business is headed:

Still, the Obama task force advised that the group develop a “scientific research program for interrogation” to develop new techniques and study existing ones to see whether they work.

How would such a “scientific research program” operate? Who would run it? How would such a program ethically study such questions as the efficacy of interrogations? Up until now, no one is discussing these matters, as societal disinterest or disinclination to take up these vital questions — questions made more salient because of the violent history of torture over the past nine years — prevents the issue from gaining traction in the competition for public evaluation. In addition, the inclusion of a “scientific research program for interrogation” conjures up memories of the decades-long U.S. military/CIA research program into mind control, hypnotism, use of LSD and other drugs in interrogation, and other dire practices associated with programs such as the CIA’s Artichoke and MK-ULTRA.

The fight to remove Appendix M and other offending policies from the Army Field Manual goes right to the heart of the struggle against militarism. Making the problems with the AFM known is part of the campaign to secure accountability for torture; that is, we can start by stopping torture from taking place now. Progressives should demand a rescission of Appendix M and other offending portions of the Army Field Manual, as well as a complete moratorium on the use of renditions for interrogation, another policy Obama has carried over from the Bush years.

Another version of this report was originally published at FireDogLake.com

Jeffrey Kaye, a psychologist living in Northern California and a regular contributor The Public Record, has been blogging at Daily Kos since May 2005, and maintains a personal blog, Invictus. E-mail Mr. Kaye at sfpsych at gmail dot com.

Up through 2008, it was extremely unusual for questions from the audience to consist of pure defeatism. In 2009, it was rare to get through a Q&A session without being asked what the point was of trying.

And the defeatism is so contagious that it will be hard for me to make it through 2010 if people don’t shut up about how doomed we are.

If current trends continue, by 2011 the only people showing up at forums on peace and justice will all be old enough to tell my grandparents they’re too young to understand how pointless it is to try. And my grandparents are dead.

Most of the defeatist questions I get asked are more statements than questions, mostly informing those in the room of ways in which our nation is corrupted that we are all painfully aware of, but stated as much out of frustration and despair as out of any hope of hearing a miraculous solution articulated.

Aren’t politicians all bought and paid for? Haven’t we tried being activists for years with no success? Can’t the corporate media just destroy us if it wants to? Won’t the secret permanent bureaucracy just kill any politicians who stray from the plan? Isn’t anything good doomed to fail under our two-party system? Et cetera and so forth.

Some of these questions / statements / cries of anguish build into them an analysis of what’s wrong and, therefore, of what needs to be fixed, at least in the view of the questioner.

And I tend to agree with much of the analysis I hear, and to want to add to it. (For example, I want to get people to see the danger of leaving all power in the hands of presidents, even though returning it to Congress wouldn’t do a bit of good until we fix Congress.)

But I have no sympathy for what I consider the unintellectual and immoral offense of coughing discouragement on people.

So, I ask participants in events I’m speaking at not to do it.

And they do it anyway.

What to do?

One of the most insightful and useful articles I’ve read this year is Bruce Levine’s “Are Americans a Broken People?” published by Alternet. Levine diagnoses us as abused citizens and points out that the more we learn about how badly we’re being abused by our government, the less able we are to push back. We’re ashamed of our subservience, and every new report of it increases it.

Levine finds causes of our disempowerment in financial stress, social isolation, institutions of higher education that train submissiveness, the treating of rebelliousness with pharmaceuticals, the damaging effects of television, and the replacement of citizenship with consumerism.

Levine finds solutions in “encouragement, small victories, models of courageous behaviors.”  We don’t need to be told what’s wrong, he says. We need the morale boost of seeing people succeed in doing what’s right.

I don’t disagree, and I’m glad someone is talking about this. If from now on everyone who comes to an event on my book tour would substitute for their moans of hopelessness a report on something courageous they did or a small victory they helped win, it would add 20 years to my life and benefit, rather than harm, everyone else in the room — including the would-be prophets of despair.

But Levine’s discussion needs to be expanded. Levine offers no explanation for why activists, at least on the left, and I think across the political spectrum, have been hit with despair in 2009 so severely. He pulls out examples from 10 years ago as if nothing has changed in the interim.

Levine offers no analysis of why we are lacking in encouragement, small victories, or models of courageous behaviors. I believe the answer has more to do with our communications system than anything else, which means that the solution cannot simply be for you or I as isolated individuals to act courageously — which is not to say that we shouldn’t.

Levine also proposes no particular solutions for the causes he diagnoses, but would presumably support efforts to address them.

And, finally, I think a word of caution is needed about dependency on small victories, and on the wisdom of supposing that larger victories will come more easily than we believe — something Levine suggests by quoting Noam Chomsky on his having overestimated how difficult it would be to end the Vietnam War.

Let me take these points in order.

The 2009 Breakage

In my experience, activism diminishes with age. The older Americans are, up to the point of incapacitation, the more engaged they are as citizens. It helps to be retired and have time. It helps to have resources. It helps to have education. It helps to have lived in earlier times when more people were active. It helps to have lived in other countries where more people are active.

On the other hand, and with millions of exceptions needless to say, it hurts to have grown up without activism around you. It hurts to have grown up with your brain marinated in television. Yes, many young people are active, and many of those who are have better ideas than do their elders. But too many of them do not add activism to their ideas.

It hurts to have grown up in a society more heavily damaged by all the causes Levine has diagnosed, which have been worsening. It hurts to be growing up with diminished and diminishing governmental representation and responsiveness to the public will.

The corruptions of money, media, party, militarism, election rigging, etc., have worsened and are rapidly worsening. So it would make sense that at some point our population would either break and give up or be radicalized and push back.

But why in 2009 in particular? Why such a dramatic increase in defeatism from 2008?

Well, another trend that has advanced to an extreme maturity is the equation of civic involvement with participation in presidential elections. The President is a character in a television drama, and our job is to vote the lesser of the two presidential contenders off the fictional island.

And then our job is complete, and the good President will fix everything for us. So many people seem to believe.

We are obliged to spend our time registering each other to vote, because we are not simply registered upon turning 18, and we think of this work as activism. We think of activism as happening before, rather than after, elections. And we think of it as something national, rather than as something done at the levels of the congressional, state, and local districts through which we are supposed to be represented.

The year 2009 was different for those who have misplaced importance on elections, and in particular on presidential elections, and for those who have misplaced their loyalty on a political party — that is to say, for nearly everybody.

Those loyal to the Republican Party believed everything to have worsened dramatically at the start of 2009. Those loyal to the Democratic Party expected someone to fix their problems for them, but by the end of the year had ended up in about the same position of despair as the Republicans, or perhaps in a worse position. They believed they’d done everything a people could do, and that it hadn’t worked.

We are now, entering 2010, in the position of having given the slightly better of the two parties dominant control of the White House and both houses of Congress (and don’t talk to me about the filibuster, which the Democrats could throw out if they wanted to), and we’ve seen things continue to worsen rather than improve.

Whether we take a different approach and correct for our mistakes, or dive into deep despair, cannot be divorced from the political situation and treated purely in terms of morale boosting. And if it could be treated purely with morale boosting, the problem would be back again soon enough if we did not direct our new-found morale into more effective strategies based on better analysis.

We’ve been told for years that we shouldn’t impeach criminal officials, but wait and replace them in an election. Now we’re told that we shouldn’t prosecute their crimes, but elect people who might not commit all of them as severely.

And we’re told to support our Congress members in dumping all of our resources into Wall Street, wars, and health insurance corporations in order to support the President, as if our duty is to him, rather than his duty being to the laws written by our representatives.

There are more people refusing to do their civic duty right now out of loyalty to the President than out of discouragement in efforts to pressure Congress. But those two groups combined dominate the handful of us belonging to neither of them.

We need to recruit converts away from both despair and presidentialism with morale boosts, better analysis, or both.

No Encouragement to Be Found?

Above all, humans are imitators. It’s how we learn when we are children. It’s how we learn when we are adults. We do not, as Levine points out, need to be told to get active. Rather, we need to be shown others being active, enjoying it, succeeding at it, and being rewarded for it. When was the last time you saw that on television?

Recent studies of how children’s’ shows on television function are illustrative. Many of these shows depict children or cartoon characters disagreeing with each other and mistreating each other, after which a
resolution is reached and a moral taught. Except that it isn’t taught.

Children don’t view the story as a whole with a single moral, so much as they view each separate bit.  And they learn more from the numerous examples of how to mistreat people than they do from the closing minutes explaining why such behavior is undesirable.

Children who learn how to behave from television, for this and other reasons, behave less amicably than those who don’t.

If we see activities that we think of as appropriate public activism fail 20 times and are then told to get out there and be active, the actions speak more loudly than the words. But if we see courageous and inspiring and successful activism, and enough of it, not much explicit encouragement to join in is required.

Some parts of the country I visited in late 2009, Maine for example, were much less defeatist than most. I think these may have been places where people were more aware of local and state victories and powers.

But even in the heart of the defeatist heartland, people told me about local and state successes. I draw a couple of lessons from this. One is that we should be working more at the local and state levels, and working to shift more power to those levels.

We should be testing out reforms for the national stage and pressuring our federal government through state-level successes. But we should also be doing a much, much better job of making each other aware of state- and local-level victories achieved in other states.

Some of the local victories I’ve heard about, such as victories in counter-recruitment (keeping military testing out of schools, closing recruiting stations, barring recruiters from school grounds, etc.) amount to progress on the national level when they are added together. But nobody adds them together.

Independent Media

Our independent media is too much a follower of the corporate media, spinning its stories in a different way, not covering the stories that no one else has covered.

When we hear of successes, they are often disguised as something else. When a policy decision follows public pressure, the pressure is left out of the story. Politicians give other reasons for their actions, and stenographic reporters report them.

And, of course, when a policy decision has not been made yet, the media instruct everyone not to imagine they can have any effective input.

When President Obama announced that there would not be a new U.S. military base in the Czech Republic, the media described this as appeasing Russia, an explanation they preferred to the more decisive actual cause, namely the work of a handful of activists in the Czech Republic to compel their nation to refuse to host the base.

Sure, it’s not a complete victory. Sure, Obama will press ahead with other bases and missiles on ships.  “Missile Defense” is not dead, but it’s wounded, and it would be far more deeply wounded if we told the story accurately.

The U.S. Army recently opened a murderous video arcade recruitment center in a shopping mall near Philadelphia, where 13-year-olds learn how much fun it can be to pretend to be in the Army. Picketing and civil disobedience generated such bad press that the Army began talking about closing the place down.

Only the Army didn’t credit the protesters with that possible success. The Army claimed it didn’t need the “Army Experience Center” any more, given the boost in recruitment from the lousy economy. This was transparent nonsense, given the Army’s continued investment in all sorts of other recruitment tools, and yet some of the very activists responsible for the AEC’s poor performance quoted the Army’s bogus explanation.

When we forced U.S. Attorney General Alberto Gonzales to resign, he was replaced with someone just as bad, and yet we had done something very interesting in a very interesting way, with the pressure of hearings, independent media, and a legislative push for impeachment.

We should be studying such successes for both morale and strategy. The same goes for keeping Social Security alive thus far. The same goes for keeping the United States (or Israel) from bombing Iran yet. The same goes for having made the United Nations refuse legal cover for the invasion of Iraq, a step that may yet make possible the criminal prosecution of that war’s architects.

No one will ever announce the successful prevention of a war on Iran. It has been prevented for years now and, if we continue to successfully draw the parallels to the lies about Iraq, it will be prevented for years to come. But we must announce and claim such victories every day, rather than waiting for an official declaration.

In short, we are lacking for encouragement and examples of success in large part because of our communications system.

Did you know 1,400 people, many of them Americans, are taking great risks right now to try to visit and deliver aid to Gaza? Did you know that many thousands of people have gone to jail in nonviolent protest of wrongs in our country in recent years? Did you know that they have sometimes succeeded in winning all of their demands?

What would the story of ACORN look like to you if you were aware of the incredible successes that organization had been having in winning rights and jobs and wealth for the poorest among us?

We have to be the media. We have to report on our successes. (I will post any good stories you send me at http://afterdowningstreet.org)

We have to use the media. We have to actively search out the sorts of stories we want to learn about. We have to reform the media, bust the monopolies, provide equal access, support community and public and independent outlets.

We have to build organizations that create good media and press independently and democratically for good media reforms. We have to stop supporting bad media in any way. Don’t buy it. Don’t buy ads in it. Don’t participate in it. Put everything into enlarging good outlets that report the news.

A larger conception of media, of course, includes history books and structures of education. Lessons from history can be less powerful than direct contact with courageous role models today, but they can be very powerful nonetheless.

And they can teach a lesson beyond the immediate Pavlovian morale boosting as well, because we can learn through history of people who struggled happily on without apparent signs of success, for many years, and even many lifetimes, and in the end succeeded.

Uncausing the Causes of Gloom

Some of the causes of despair that Levine points out may be more easily addressed than some of the causes of congressional misrepresentation (money, media, parties, election rigging, etc.).

The primary causes of financial stress are not things an individual can simply wish away. Millions of Americans are simply under severe financial stress, the only solution for which is getting more money into their hands, and the blame for this situation lies entirely with the predatory plutocrats pigging out on the fruits of other people’s labor.

And yet there are things that many of us may be able to do to become more citizen-like and less consumerized, as well as to alleviate some of our financial stress. We can cease buying unnecessary crap. We can grow and make more things for ourselves. We can trade and barter and participate in local economies. We can save money in local institutions, avoid borrowing, and avoid the mega-banks.

We can also address social isolation whether or not we’re under financial stress. An ideal approach might be to start small political clubs or book clubs — groups of a handful of people who can be friends as well as allies. Announcing that you are despairing is almost the equivalent of announcing that you do not belong to such a group.

We can turn off and throw away our televisions and unsubscribe from cable and satellite, thereby easing a bit more financial stress while enriching our lives. We can get books from the library and contribute books to the library. We can refuse to treat healthy emotions in ourselves or our children with drugs. And we can work to reform individual institutions of higher learning.

We can even create small-scale institutions of learning at every level. If you don’t want or can’t seem to form a political or book club, how about a tutoring club? How about a group that teaches toddlers or grad students?

While we need immediate activism, and this will give you the morale to be a part of it, we also need the understanding that only future generations will win all that we can envision. So, we’d better teach them how to do it.

Victory Dependency

It has certainly been my experience that people are most willing to engage in activism when they have been winning smaller victories and when they foresee the likelihood of another bigger victory. In one way this makes logical sense: we ought to work where we think we might succeed, and use the strategies that seem most likely to work.

In another sense, this is sheer lunacy. We are choosing to add our bit to the struggles that least need them and to withhold our assistance where it is most desperately demanded.

Now, it’s certainly true, as Levine (and Chomsky) suggest, that sometimes victories are more nearly within reach than it appears, and there are those who work very hard to make popular victories appear impossible. But some struggles really are difficult, really do require long-term commitments and extreme sacrifices, and must include education and persuasion as well as mobilization.

It has been my personal experience, and that of some others I know, that engaging in activism strategically directed at the most useful possible success is enjoyable, far more enjoyable than sitting on the sidelines and complaining.

I don’t find that I have much use for or need of hope or the expectation of immediate victory. I find myself motivated primarily by the moral need to press for change, regardless of whether the wisest spectators predict success next week or next decade. (On the other hand, as noted at the top of this article, people’s defeatism does eventually drag me down.)

So, I’m reluctant to endorse small victories, and even more so the expectation of early victories, as a necessary ingredient in civic engagement.

As I understand it, people struggled to end slavery for generations with very little to show for it. Yet they were willing and able to keep struggling, and they were the same species of being that we are.

So, get your morale boost where you can find it, in examples new or old, near or far. Improve the strategy of your activism as well, supporting independent organizations not corrupted by parties or funders. But try to be inspired by victories without becoming any more dependent upon them.

This is a marathon, not a sprint.

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

Photo/Wikimedia

So much for the First Amendment.

Morris Davis, the retired Air Force Colonel who served as the Chief Prosecutor of the Military Commissions at Guantánamo from September 2005 until his resignation in October 2007, has just lost his job at the Congressional Research Service (a branch of the Library of Congress) for writing, in his personal capacity, an op-ed for the Wall Street Journal, in which he drew on his wealth of experience of the Commissions to criticize the Obama administration for its decision to prosecute some Guantánamo prisoners in federal courts, and others in Military Commissions.

Davis also wrote a letter to the Washington Post, in which he criticized former Attorney General Michael Mukasey for scaremongering about the administration’s decision to try Guantánamo prisoners in federal courts, and he was admonished for that too.

In a letter dated Nov. 20, Daniel P. Mulhollan, the director of CRS, told Col. Davis that he had not shown “awareness that your poor judgment could do serious harm to the trust and confidence Congress reposes in CRS,” and notified him that he would not be kept on after his one-year probationary period at CRS ends on Dec. 21.

The ACLU immediately stepped in, sending a letter on Friday to Dr. Jim Billington, the Librarian of Congress, arguing that “CRS violated the First Amendment when it fired Davis for speaking as a private citizen about matters having nothing to do with his job there, and that CRS must reinstate Davis to his position in order to avoid litigation.”

Aden Fine, staff attorney with the ACLU First Amendment Working Group, said, “The First Amendment protects Col. Davis’s right to speak and write as a private citizen about issues on which he has personal knowledge. Col. Davis didn’t give up his right to express his opinions and first-hand knowledge about a matter of such public importance when he left the military commissions system and went to work at CRS.”

In correspondence over the weekend, Col. Davis reinforced the ACLU’s views, explaining:

I am the head of the Foreign Affairs, Defense, and Trade Division at the Congressional Research Service (one of five CRS research divisions) at the Library of Congress.  My division does not now nor has it ever had responsibility for providing Congress with advice on military commissions; that responsibility resides with the American Law Division … The Library of Congress has a regulation on outside activities for staff and it “encourages” outside writing and speaking on topics outside the staff member’s area of responsibility and the Congressional Research Service has a similar policy … In short, it was clear that I was prohibited from expressing my opinions publicly on matters within my area of responsibility, but I believe I retained the same right as all citizens to express opinions on matter outside the scope of my official duties.

He added:

The First Amendment guarantees the right of free speech and the Supreme Court has long recognized that public employment does not override that right (although regulation of speech is permissible when related to an employee’s official duty … and as noted, I have absolutely no official duty connected to military commissions). It is ironic that our offices are located in the James Madison Building, which is named for the “Father of the Constitution” and the primary architect of the Bill of Rights who led the effort to secure the right of free speech. I suspect Mr. Madison would be surprised to learn that the right he cherished is denied those working in the building that bears his name.

Morris Davis and the ACLU are right, of course, and I hope that Davis is reinstated. Even aside from the fact that he should be entitled to express his personal opinions under his First Amendment rights, it is difficult to see how his published comments could possibly be construed as demonstrating “poor judgment” that “could do serious harm to the trust and confidence Congress reposes in CRS.”

In his Wall Street Journal article on November 10, for example, Col. Davis stated only that the administration’s decision to try some prisoners in federal court and others in Military Commissions was “a mistake.” As he explained, “It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantánamo and justice are mutually exclusive.”

And in his letter to the Washington Post, he chided former AG Mukasey for claiming that the decision to try prisoners in federal courts “comes down to a choice between protecting the American people and showcasing American justice,” and also for implying that the Commissions were “essential to keep detainees from returning to terrorism.” As he added, “The Geneva Conventions permit detaining the enemy during armed conflicts to prevent them from causing future harm. Criminal trials punish past misconduct. Suggesting that the choice is either criminal prosecution or freedom is false.”

Ironically (given his subsequent treatment), Col. Davis’s comments about the Commissions were actually rather constructive, as he pointed out that the administration “could legitimately choose to prosecute detainees in either forum — federal courts or military commissions — and satisfy its legal obligations,” noting only that “The problem is trying to have it both ways.” He also explained, “It is not as if double-standard justice is required to keep suspected terrorists off our streets. Those detainees who cannot be prosecuted can still be detained under rules the administration approves — likely in the next several months — for the indefinite detention of those who pose a threat to us during this ongoing armed conflict.”

Jut as ironic is the fact that Davis’s dismissal follows nearly a year at CRS in which he has, in fact, been the soul of discretion regarding his former role as the Chief Prosecutor of the Commissions, the politicization that drove him to resign, and the comments he made in February 2008 that led to the immediate resignation of William J. Haynes II, the Pentagon’s Legal Counsel, even though countless journalists (myself included) would dearly love to talk to him about these matters.

Arguably, no one knew more — or, at least, felt more keenly — the politicization of the Commission process in 2007, after the system was revived by Congress in the fall of 2006 (following a Supreme Court ruling in June 2006, which found that it violated both the Geneva Conventions and the Uniform Code of Military Justice).

Detailed accounts of Davis’ resignation — and his subsequent explanations of his reasons for doing so, which strike at the heart of the Bush administration’s torture regime, and its attempts to prosecute the victims of torture over Davis’s objections — can be found, in particular, in my article, “The Dark Heart of the Guantánamo Trials,” but to conclude this account with a concise explanation, it is worth noting the following passages taken from that article:

[I]n a blistering op-ed in the Los Angeles Times, two months after his resignation, Col. Davis stated, “I was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.”

[Col. Davis] explained that the particular trigger for his decision was [a] memo … informing him that he had been placed in a chain of command under Haynes. Stating that he resigned “a few hours after” being informed of this, he mentioned that “Haynes was a controversial nominee for a lifetime appointment to the US 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.” He added, “I had instructed the prosecutors in September 2005 [shortly after taking the job] that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned.”

In February 2008, Col. Davis told Ross Tuttle of the Nation about a conversation he had with Haynes in August 2005:

“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes's] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”

This, I’m sure you’ll agree, is far more explosive than Col. Davis’s op-ed and letter regarding the Military Commissions, but even had he chosen to talk about these matters, he should have been free to do so. The fact that he has not is a loss for those of us who wish to see the Bush administration held accountable for its crimes (and who are keen to follow the chain of command from Haynes, via Susan Crawford, the Commissions’ Convening Authority, to Dick Cheney and David Addington), but it also provides another demonstration that, when it came to exercising his freedom of speech whilst employed by the CRS, Col. Davis had no intention of demonstrating “poor judgment” at all.

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.

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

Attorneys with the Center for Constitutional Rights (CCR) asked the Supreme Court Friday to allow seven men who remain imprisoned at Guantánamo Bay despite being cleared for release to be released into the United States when there is no other remedy available.

The men, Uighurs from the East Turkestan region of China, are represented by CCR and co-counsel Bingham McCutchen LLP, Kramer Levin Naftalis & Frankel LLP, Miller & Chevalier, Baker & McKenzie LLP, Reprieve and Elizabeth Gilson.

This will be the first time the Court hears a Guantánamo case since it decided the landmark cases brought by CCR and co-counsel, Boumediene v. Bush, in June 2008, and the first time the Obama administration will defend a Guantánamo case before the high court.

Said Sabin Willett, of Bingham McCutchen, lead attorney for the Uighur detainees:

“Today we have asked the Supreme Court to free Uighur clients who now pass their eighth year in the Guantanamo prison. The courts and the Defense Department have said they are neither enemies nor criminals. They fled from communism, and were taken in error. Companions live in Europe and Bermuda, and yet we imprison them still. These men are a living rebuke to America’s boast to be a freedom-loving people.

“To the founders of this republic, freedom was a national conviction. Today neither the President nor the Congress has the courage of that conviction. We urge the Court to remind us all of our ancient trust, and at last set these men free.”

In October 2008, D.C. District Court Judge Ricardo Urbina ordered the U.S. government to release 17 wrongly-imprisoned Guantánamo detainees into the United States. The men had been imprisoned without charge for over seven years. Four of the men have since been resettled in Bermuda and, more recently, another six were temporarily resettled in Palau.

The U.S. government has acknowledged it neither had the authority to detain them nor could it release them to China because of a risk of torture. However, on February 18, 2009, the D.C. Circuit Court of Appeals reversed the decision and held that the indefinite detention of the men could continue. The men asked for the Supreme Court to review the case and find, as the District Court did, that their “release into the continental United States is the only possible effective remedy.”

CCR has led the legal battle over Guantanamo for the last six years – sending the first ever habeas attorney to the base and sending the first attorney to meet with a former CIA “ghost detainee” there. CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men at Guantanamo, ensuring that nearly all have the option of legal representation. In addition, CCR has been working to resettle the approximately 60 men who remain at Guantánamo because they cannot return to their country of origin for fear of persecution and torture.

In the wake of Boumediene, 31 of the 39 Guantanamo habeas cases heard by the lower courts have resulted in a finding that the detainee was unlawfully held, but, since the Court of Appeals decision in the Uighur cases, the trial courts have felt that they lacked the power to do anything more than order the government to make diplomatic efforts to release the men. As a result, 12 of the 31 detainees found to be wrongly detained by the courts in the last year remain in detention.

Said CCR Executive Director Vincent Warren, “The world community is waiting to see if the Court will put the President and Congress on the right track. If we expect our allies to continue to help us close down Guantánamo and put an end to this symbol of U.S. lawlessness in the world, we have to start by taking some responsibility ourselves and help these innocent men rebuild their lives here.”

For more information and documents, visit CCR’s Kiyemba v. Obama case page.

Deputy Assistant Secretary of Defense for Detainee Policy Phillip Carter.

Last week, lawyer, ex-Army Captain and Iraq veteran Phillip Carter, described by Glenn Greenwald as “a very harsh critic of the Bush administration’s detention and interrogation policies,” suddenly resigned his post as Deputy Assistant Secretary of Defense for Detainee Policy, which he had occupied since April. Carter claimed that he was leaving due to “personal issues,” which may be true, but as Greenwald noted, “the policies Obama has adopted in the last six months in the very areas of Carter’s responsibilities were ones Carter vehemently condemned when implemented by Bush.”

Greenwald then proceeded to explain how, in May 2008, Carter had condemned the Bush administration’s Military Commissions (the trial system for Guantánamo prisoners) as “fundamentally and fatally flawed,” arguing that “the rule of law will prevail only if they are perpetually blocked,” and cited a trial in a “civilian court” (his emphasis) of accused terrorists in France that involved “a combination of open and sealed (i.e., classified) evidence to prove the defendants’ guilt in a six-day trial,” which he regarded as the only viable model for the United States to follow.

How disappointing, then, that, just a month after Carter joined the Obama administration, the President announced, in a major national security speech, that the Commissions were back on the table, and Carter then watched, two weeks ago, as Attorney General Eric Holder announced that, although Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks would face a federal court trial in New York, five other prisoners — previously charged in the Bush administration’s Military Commissions — would face what is apparently a second tier of justice based solely on the government’s belief that their cases are weaker: trials in the revamped Military Commissions, which have been brought back from the dead with the help of Congress.

Greenwald also noted that, in another post in April 2008, Carter expressed dismay at the Bush administration’s decision to charge Ahmed Khalfan Ghailani, a “high-value detainee” held for over two years in secret CIA prisons before his transfer to Guantánamo in September 2006, in a Military Commission “for acts committed before Sept. 11 — to wit, his alleged participation in the bombing of the US Embassy in Tanzania [in 1998].” Carter focused on the following passage in a Washington Post report: “Almost all of his alleged ‘war crimes’ occurred before the Sept. 11 attacks, and most predated the nation’s fight against terrorism. Four co-conspirators in the Tanzania bombing were convicted in US federal courts. Ghailani, too, was indicted in the United States, but federal authorities have opted to try him before the commission, composed entirely of military officers.”

Rounding on the Bush administration, Carter stated:

I’ll be very interested to see how the Bush administration’s lawyers argue their way around the provision of Article 1 that reads, “No Bill of Attainder or ex post facto Law shall be passed”. Setting aside the myriad objections to the military commissions generally, and this case specifically, I think this is going to present a major hurdle for the government.

I’m also concerned about the deliberate decision to take this case away from federal prosecutors … In my opinion, our default choice for the prosecution of suspected terrorists should be federal court … The substantive and procedural due process granted by federal courts has strategic value — it confers legitimacy on the outcome. That legitimacy matters for the struggle against terrorism, and I think it’s crucial that we evaluate our prosecutorial decisions with that strategic calculus in mind.

As Greenwald noted, bringing the story up to date:

While the Obama administration commendably sent Ghailani to New York to be tried in a civilian court, it just announced two weeks ago that Abd al-Rahim al-Nashiri, whose case originated as a criminal investigation with the FBI, would now be turned over to a military commission for prosecution in connection with the 2000 bombing of the USS Cole — raising all of the serious objections Carter voiced to the Ghailani case.

There’s more to Greenwald’s article — regarding Carter’s opposition to the use of the “state secrets” privilege, his concerns regarding the distinction between conventional wars of the past and the “War on Terror” when claiming presidential power, and his willingness to prosecute Bush administration officials and lawyers for war crimes, all of which have also been ignored by President Obama — but I’d like now to move onto the second departure from the administration: that of Greg Craig, the former White House Counsel, who resigned on November 13.

Craig is no darling of the left, as is apparent from complaints about his business dealings, including his relationship with Karl Rove, George W. Bush’s former Senior Advisor and Deputy Chief of Staff. However, on national security issues, his departure set the seal on the demise of a period of principled optimism that marked the first few months of the Obama administration, and that has degenerated into chaos and confusion ever since. A former foreign policy advisor to Senator Edward Kennedy and to Secretary of State Madeleine Albright, who served as special counsel in the White House of President Bill Clinton, and directed the team that defended Clinton against impeachment, Craig not only brought a wealth of political experience to Barack Obama’s administration, but was also the main driver of the policies designed to overturn and repudiate the Bush administration’s detention and interrogation policies in the “War on Terror.”

As Massimo Calabresi and Michael Weisskopf explained two weeks ago in an article in Time, “The Fall of Greg Craig,” Barack Obama “tasked Craig with dismantling Bush’s interrogation and detention policies” just four days after the Presidential election, and he took to his new job with extraordinary vigor, “creating one of the largest White House counsel’s offices ever, with dozens of high-powered lawyers, compared with only a handful who served under Bush in early 2001 … Craig’s office was an instant power center in the White House, able to produce answers, memos and ideas seemingly overnight while other parts of the Administration were still getting up and running.”

Despite opposition from the intelligence agencies, Craig drafted the Executive Orders, issued on President Obama’s second day in office, which, singlehandedly, sent a message to the world that the extra-legal horrors of the Bush administration had apparently come to an end. The orders set a one-year deadline for the closure of Guantánamo and called time on the CIA’s use of torture and secret prisons, and President Obama also announced that he was suspending the Military Commissions. Human rights activists were overjoyed, and, as Time noted, “Craig was delivering much of the change Obama had promised during the campaign.”

On March 15, Craig’s insistence on repudiating the Bush administration’s policies and providing the transparent government that Barack Obama had promised was delivered to full effect when, as a result of a long-standing court case initiated by the ACLU, a court deadline was reached regarding the release of classified memos, issued in 2002 and 2005 by the Justice Department’s Office of Legal Counsel, which purported to justify the use of torture. When Craig notified the President that the Justice Department planned to make the memos public three days later, Obama asked for a one-month extension to consider his options.

According to Time, when Gen. Michael Hayden, the former Director of the CIA, learned of the administration’s intention to release the memos, he “went ballistic,” calling Craig on March 18 and asking him, “What are you doing?” Hayden claimed that, if Obama released the memos, “al-Qaeda would be able to train its warriors to resist the techniques described in their contents.” Craig was apparently unperturbed. “The President is never going to authorize any of those techniques,” he replied, prompting the following response from Hayden: “Lemme get this right. There are no conditions of threat this nation might face that would prompt you to interrupt the sleep cycle of somebody who may have lifesaving information?” As Time described it, “There was a long silence. Craig would not concede the point.”

This showdown may well have been the high point of Greg Craig’s endeavors to reset America’s moral compass, confirming the President’s commitment to non-abusive interrogation techniques, in the face of Hayden’s extraordinary insistence that sleep deprivation — a clear component of the torture techniques favored by the Bush administration — ought to continue to be part of the agency’s operations.

As Time explained, Hayden refused to back down, and rallied CIA opposition to Craig’s plans. Former Director George Tenet called his former aide John Brennan, the Assistant to the President for Homeland Security and Counterterrorism, and John Deutch, a CIA Director under President Clinton, called Deputy National Security Adviser Tom Donilon. National Security Council aide Denis McDonough, a former Senate staffer who has “daily access to the President,” was also recruited, and on April 15, as the court’s extension came to an end, Obama “invited eight officers of the CIA’s Counterterrorism Center to make their case against release” at a meeting in the Oval Office. That evening, Obama called Rahm Emanuel, his Chief of Staff, to discuss the memos, and discovered that Emanuel was already discussing it “with about a dozen national-security and political advisers.” After joining the meeting, Obama “asked each to state a position and then convened an impromptu debate, selecting Craig and McDonough to argue opposing sides.”

As Time explained, “Craig deployed one of Obama’s own moral arguments: that releasing the memos ‘was consistent with taking a high road’ and was ‘sensitive to our values and our traditions as well as the rule of law.’ Obama paused, then decided in favor of Craig, dictating a detailed statement explaining his position that would be released the next day.”

What happened next signaled the start of the Obama administration’s retreat from the moral high ground, which led to the sidelining of Craig, and, finally, his resignation. Former Vice President Dick Cheney went on the attack, pollsters noted a drop in Obama’s support among independents, and, as a result, Rahm Emanuel “quietly delegated his aides to get more deeply involved in the process.”

Craig, however, remained focused on how to close Guantánamo, as he was, according to Time, “under pressure to eliminate … indefinite detention without charge or trial and the use of military commissions.” On April 17, he assembled officials from a range of government departments, and explained his plan: to bring some prisoners from Guantánamo to the US to face federal court trials, and also to bring others to settle in the United States. The latter were the Uighurs, Muslims from China’s Xinjiang province whose release into the United States had been ordered in October 2008 by Judge Ricardo Urbina, after the Bush administration declined to challenge their habeas corpus petitions.

Craig, like Judge Urbina, recognized that, because they could not be repatriated (because of fears that the Chinese government would torture them), because no other country could be found that would take them, and because their continued imprisonment in Guantánamo was unconstitutional, they would have to be brought to the United States. According to Time, defense secretary Robert Gates, Secretary of State Hillary Clinton and other senior officials “approved Craig’s plan to release two Uighurs in northern Virginia” as part of “a global game to empty the prison. If the two settled without incident, six more would be let into the US. That in turn would help the State Department persuade other countries to take Gitmo detainees. The hope was that those remaining could be tried in federal courts.”

At the meeting on April 17, security measures were planned for monitoring the Uighurs in their new home, and Craig also called for the development of “a plan to convince Congress and the public that it was a good idea.” The Uighurs’ lawyers had apparently agreed that their clients could be tagged, to play down security fears, and a Defense Department official told Time that the planned arrival of the Uighurs in the US “was a matter of days, not weeks.”

It was a fine and principled plan, and, had it happened, it would, I believe, have made the closure of Guantánamo by January 2010 possible. However, what happened instead is that another Cheney-baiting court case, concerning the release of photos showing the abuse of prisoners by US forces, reared up to derail the administration. On April 16, Craig had explained that the photos would have to be released, and at that point Robert Gates was supportive, and Rahm Emanuel was only concerned about locating a good time to release the information to cause minimal damage. A week later, however, when the government announced its plans to release the photos, senior military figures warned that soldiers in the field would face reprisals, Gates flip-flopped, and Republicans seized on another opportunity to attack the administration.

The uproar over the photos was then revived on April 24, when news of the Uighur resettlement plan was leaked. Senate minority leader Mitch McConnell “launched three weeks of near daily attacks on the idea of letting the Uighurs loose in the US,” and although Dick Durbin, a staunch supporter of Obama and the Majority Whip in the Senate, thought the government could win the fight in Congress, cowardice finally prevailed.

By May 8, when Craig was summoned to a meeting with Obama, the tide had turned. “I don’t like my options,” the President said, in relation to the abuse photos, and although Craig explained that his legal team had found no alternative to releasing the photos, Obama directed him to find a way, which he did, by withdrawing approval and paving the way for a legal struggle that reached the Supreme Court this fall. In a one-line ruling on November 30, the Supreme Court reversed the lower court’s ruling that the pictures be released, citing a provision in the Homeland Security funding bill signed into law on October 28, which authorized the Pentagon to block the release of the pictures, as well as any others which might “endanger” US soldiers or civilians.

Objectively, the refusal to release the photos in May was a distressing volte-face on the part of the administration, but behind the scenes it is now clear that the combined Republican assaults on Obama’s national security credentials led the administration to withdraw completely from Craig’s principled position regarding the Bush administration’s detention policies, compromising on issues that, as Craig had astutely recognized, were not open to compromise or negotiation if they were to succeed in overturning the Bush administration’s toxic legacy.

By the second week of May, Obama had killed the Uighur plan. As Time described it, “Craig never got a chance to argue the case to the President,” and an aide explained, “It was a political decision, to put it bluntly.” Thereafter, Craig was sidelined. The administration failed to fight back when Congress rose up in revolt, threatening to impose its own ban on the release of the photos, withholding funding for the closure of Guantánamo, legislating to prevent prisoners being brought to the US mainland, and interfering in the transfer of prisoners to any other country.

On May 21, Craig, like Phillip Carter, was obliged to watch as President Obama delivered the national security speech in which he not only announced his intention to revive the Military Commissions, but also — presumably to the absolute horror of Craig and Carter — explained that he would continue to hold some prisoners without charge or trial; those who, as he put it, “cannot be prosecuted yet who pose a clear danger to the American people.” By doing so, Obama ignored the sub-text that, if you cannot prosecute someone, it is because the information you are using does not rise to the level of evidence, or is otherwise tainted by torture, and is therefore inherently unreliable.

Six months on, as Greg Craig finally tendered his resignation, the price of subscribing to the Bush administration handbook, instead of standing up to bullying lawmakers and a renegade ex-Vice President, has become distressingly clear.

When it comes to finding new homes for cleared prisoners who cannot be repatriated, the administration finally managed to dispose of ten of the Uighurs, in Bermuda and Palau, although seven still remain at Guantánamo, nearly 14 months after Judge Urbina ordered their release, and dozens of other cleared prisoners face indefinite detention at the US government’s pleasure, because other countries — unenthused by Obama’s inability to bring even a single man to settle on the US mainland — have not rallied sufficiently to the cause.

Moreover, although the administration finally announced federal court trials for the five men accused of involvement with the 9/11 attacks on November 13 (the same day that Greg Craig resigned), Obama and Attorney General Eric Holder not only had to fight back against a wave of Republican fearmongering that has only grown in strength throughout the year, but also lost whatever credibility this should have given them — in the eyes of those whose allegiance is to the rule of law — by announcing that five others would face trials by Military Commission. They also conceded that Guantánamo would not close by January 2010, and let slip that some of those still held — those described by Obama in May as prisoners who “cannot be prosecuted yet who pose a clear danger to the American people” — would likely remain imprisoned forever without charge or trial.

Forgive me if I have oversimplified matters, but it appears to me that the failure to deliver a single, coherent system of justice to the remaining prisoners in Guantánamo, the failure to close the prison by Greg Craig’s deadline, the failure to kill the Military Commissions once and for all, and the acceptance, rather than the elimination of indefinite detention without charge or trial (which is at the very heart of the Guantánamo regime established by George W. Bush) demonstrate what happens when tough battles on points of principle give way to cowardice and political maneuvering, as exemplified in the poisonous compromises embraced six months ago by the Obama administration.

This report was originally published at the Future for 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.