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Nashiri Asks for the Targeting Package on the OTHER USS Cole Mastermind

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Things just got interesting in the pre-trial hearing for Abd al Rahim al-Nashiri in Gitmo. According to Charlie Savage and Carol Rosenberg, he has asked for the targeting package used to kill Abu Ali al-Harithi in Yemen in November 2002.

While I have no confidence he’ll get the package, he has very good reason to demand it. Here’s what I wrote about the al-Harithi killing two and half years ago.

I find it rather interesting that that 2002 assassination was rationalized in the name of killing al-Harithi, accused of organizing the USS Cole bombing. That strike happened not long after the US started torturing a guy–Rahim al-Nashiri–whom we’re about to try in military commission for organizing the USS Cole bombing. [10/24/12: Correction, we actually started torturing Nashiri in earnest 13 days later] (And remember, al-Nashiri had been in custody in Dubai for a month by the time the US took custody.) Who was the mastermind of the Cole bombing, then? al-Harithi, who doesn’t even merit a mention in the 9/11 Commission report (though reports from when he was killed said he was among the 12 most senior al Qaeda figures), or al-Nashiri, who does, and is about to be tried for it? Note, too, that the Bush Administration did not announce it had custody of al-Nashiri until several weeks laterin November.

Now compare al-Harithi, with his loosely accused role in the Cole, with Kamal Derwish, whom the US accused of recruiting a number of Lackawanna youth into al Qaeda. Not only was Derwish accused of being an ongoing threat–the standard purportedly used to put Americans on kill lists now. But he was accused of training Americans in al Qaeda. Which is not all that different than what the government is accusing al-Awlaki of now.

And note, too, that Priest and maybe Miller [ed. changed per MD’s comment] both now report that the CIA knew Derwish was in the car when they targeted (they say) al-Harithi. When Miller first reported this in 2002, he didn’t mention Derwish’s presence (nor did Pincus). When Priest broke the story of Derwish’s presence in the car, she stated it was unclear whether CIA knew he was there or not.

It was unclear whether the CIA operatives who fired the missile from hundreds of miles away knew that an American citizen was among their targets. It also was unclear whether that would have made any difference.

I guess I’m suggesting that, first of all, it would seem unnecessary to kill a guy for planning the Cole bombing if you knew you had the guy who–you say–planned the Cole bombing in custody. But that claiming a tie between him and the Cole bombing might provide the excuse to target a car carrying your real target, Derwish.

Basically, one of two things is likely true: al-Harithi is the mastermind of the Cole strike, and we knew that before we started torturing Nashiri, in the name of his role as the USS Cole mastermind, in earnest. Or, Nashiri is the real mastermind of the Cole bombing, in which case the al-Harithi story was probably a cover story so we could kill an American citizen, Kamal Derwish, with no due process.

I suspect the second is true (though Nashiri has also asked for the FBI investigative file on the attack; it’s rather stunning he hasn’t gotten it yet–maybe this is the reason he’s being inappropriately tried in a military commission?). In which case this is a kind of graymail, the knowledge that the US can’t turn over the targeting package for al-Harithi because it would show Derwish was the real target.

In any case, it was an interesting legal move.

The Evolution of the “Obama Doctrine” after Benghazi

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The other day, I wondered whether using three C-130s to bring a team of FBI Agents to Benghazi was overkill. And while I was able to get some kind of explanation (1 transport, 1 decoy, 1 to bring the toys), given this report on all the Special Forces C-130s swarming out of Crete…

In the last weeks, an unsual, covert, constant activity of U.S. Special Operations planes has been recorded in the Mediterranean Sea. Quite regularly, taking off from Souda Bay, in Crete, various types of “Special Hercules”, including  MC-130Ps, MC-130Hs, HC-130P, and AC-130U gunships, performed day and night missions in the Libyan airspace whose purpose has yet to be fully unveiled.

As well as very vague reports that the Special Forces were not just protection–but were “helping gather intel”–in Benghazi, I’m not so sure.

Special Forces were always likely to help investigate this killing, but it appears there’s some kind of funky hybrid going on, the latest iteration of partnership between our National Security agencies in the war on terror.

And today, John Brennan headed to Libya to meet with Mohammed Magarief, who has been trying to consolidate national power even while the Prime Minister elect was ousted in a failure to form an acceptable government.

It’s against that background that this WaPo piece offers some key insight.

Before I get into it, I’m using “Obama Doctrine” as David Sanger did in his book. I think it’s a bogus term, but it’s the evolution in policy Sanger described as Obama moved away from CounterIntelligence in Afghanistan, to Counterterrorism, to a belief that partners and locals could carry out the fighting in Libya and elsewhere. The problem with that plan, I’ve always believed, is it offers no better solutions and some worse problems in how you establish the security and institution-building that countries need to have viable economies and legal systems. You’re still faced with the whole failed state problem.

In addition to general Islamist sentiment, Ambassador Steves’ assassination happened in an environment where the government was trying to nurture regime change and nation reformation without the military footprint we had in Afghanistan and Iraq. While Stevens appears to have had real security concerns, he also apparently pushed to have an open presence and to encourage capacity building in Libyans. Arguably, that’s part of what got him killed.

The WaPo catches us up to what kind of dilemmas that presents now as we try to find the best way to respond.

Should it rely on the FBI, treating the assaults on the two U.S. compounds like a regular crime for prosecution in U.S. courts? Can it depend on the dysfunctional Libyan government to take action? Or should it embrace a military option by ordering a drone strike — or sending more prisoners to Guantanamo Bay?

Read more →

What shall we condone?

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Abd al Rahim al-Nashiri’s lawyers end their letter to Navy Vice Admiral Bruce MacDonald–who will decide whether al-Nashiri will face the death penalty–with an appeal to his role in deciding what we as a nation will condone:

One pivotal and constant question has been–what shall we condone? Shall we condone a trial that allows evidence obtained from torture? Shall we condone a trial for a detainee who has been tortured?

Indeed, one of their most surprising arguments was a reminder that his predecessor, Judge Susan Crawford, refused to refer charges against Mohammed al-Qahtani because he had been tortured.

Your predecessor, Judge Susan Crawford, did not refer charges against Mohammed Al-Qahtani for his direct role in the September 11th Attacks because he was tortured. Judge Crawford stated, “His treatment met the legal definition of torture. And that’s why I did not refer the case[.]” Here, the government’s treatment of Mr. Al-Nashiri undoubtedly meets the legal definition of torture and cruel, inhuman and degrading treatment. Judge Crawford was able to review the interrogation records and other documents of Mr. Al-Qahtani’s abuse before making her decision. In this case, we assume the CIA has not provided those records to you. Even without the cooperation of the CIA, sufficient evidence has been publicly released to prove that Mr. Al-Nashiri was tortured.

[snip]

In essence, the United States has lost its moral authority to seek the death penalty. Accordingly, you should not refer charges–or authorize the detah penalty–against Mr. Al-Nashiri.

I find a few things surprising. First, the suggestion that MacDonald has probably not officially been informed of al-Nashiri’s treatment. While I suppose that’s possible (it’s clear, for example, that the CIA limited how much Gitmo personnel learned of former CIA detainees), that would still be surprising.Though of course, at the very least, MacDonald has not seen the video tapes that were destroyed.

Also note that in this passage, at least, al-Nashiri’s lawyers are calling on the government to drop charges entirely against al-Nashiri, based on the Crawford precedent. Not that the appeal will work (because, particularly given that KSM is now slotted for a Gitmo Military Commission, it would take charges and the death penalty for him off the table, too). But it is notable that they asked.

Much of the rest of the letter lays out reasons I expected: al-Nashiri’s torture itself, the CIA’s destruction of exonerating evidence, the dicey appellate record for MCs, the length of time since the alleged crimes and the delay in charging, and the safety restrictions on travel to Yemen now.

And then there’s the predictable objection on legal grounds: al-Nashiri’s lawyers argue that since we weren’t at war when most of his alleged crimes occurred, an MC is an improper venue to try him. Powerfully, they cite Presidents Clinton and Bush to prove we were not at war.

When convened outside areas under martial law or military occupation, military commissions are strictly limited to the punishment of enemy forces for violations of the laws of war committed in the context of and associated with hostilities.

The limitation was affirmatively recognized and enacted by Congress into the Military Commissions Act, when it mandated that “An offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities.

Mind you, the government will cite Osama bin Laden’s declaration of war against the US in 1996, but it’s hard to see how that refutes President Clinton’s assertion that “America is not at war” delivered in his eulogy to those lost on the USS Cole.

If that’s not enough, though, al-Nashiri’s lawyers now have the legal opinion of Harold Koh’s conditions that define hostilities for Libya.

The question this letter asks–whether we as a country ought to impose the death penalty on someone we tortured–is a key question. But the legal argument may well be just as compelling.

Anonymous Sources Claim Polish President Didn’t Know of Torture Site

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Remember the Polish prosecutor who got fired as he was preparing to charge top members of the Democratic Left Alliance party for their complicity in America’s torture site? The same newspaper that broke that story–Gazeta Wyborcza–just reported former President Aleksander Kwasniewski’s purported explanation of his role in the torture site: complete ignorance.

“Aleksander Kwasniewski did not know what was going on there,” an informant has told Gazeta Wyborcza.

Prosecutors in Warsaw are currently considering whether to bring charges against Kwasniewski and other left wing politicians for allegedly allowing al-Qaeda suspects to be held and tortured in Poland. Kwasniewski has always said he had no knowledge of the CIA activity.

[snip]

President Aleksander Kwasniewski only found out about the ‘black site’ at the Stare Kiejkuty intelligence base, near the Szczytno-Szymany airport, over 100 kilometres from Warsaw, when President George W. Bush thanked him for Poland‘s assistance in the ‘war against terror’, the daily reports.

While on a visit to Poland in June 2003, Bush thanked Kwasniewski for the help Warsaw had given Washington in its fight against terrorism.

But so profuse was Bush’s thanks that Kwasniewski realised that “something was not right,” as Poland had only sent a limited number of troops to Afghanistan and Iraq, to his knowledge.

Hmmmm.

Here’s the most “profuse” thanks that Bush offered Poland in his public comments while in Poland (even as he affirmed his “belie[f] in human rights, and justice under law” and hailed historic fights against evil in Europe).

And Poland has led the effort to increase anti-terror cooperation amongst central and eastern European nations. And America is grateful.

Now I could see some confusion about this statement on Kwasniewski’s part if he didn’t know what Poland had done to lead the anti-terror effort in Central Europe. But this one comment is not all that profuse. And it was delivered on May 31, 2003, not in June.

Which makes me wonder whether the real profuse thanks came in private comments, perhaps the following day.

A more interesting detail of timing, however, is that Bush’s comments came at a time when the CIA Inspector General was already investigating the treatment of Abd al-Rahim al-Nashiri on Polish soil.

I suppose it’s remotely possible that no one told the Polish President the CIA had taken over an old Soviet era prison to conduct its torture (though I doubt it–Bush’s speech also seems laden with quid pro quos about support for NATO and EU membership). But I would bet there was more that raised Kwasniewski’s concern than just purportedly newfound knowledge of the prison.

Teaching Our Polish Partners in Torture: State Secrets

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I had been predicting for weeks before Obama went to Poland that the Poles would move to quash their investigation into the black site at which KSM and others were tortured.

And sure enough, that appears to be what happened.

The first move actually happened before Obama arrived in Poland: three days before Obama got there, the AP reported that one of the two prosecutors in the investigation, Jerzy Mierzewski, had been sacked.

On Wednesday, it became clear why Mierzewski had been sacked: because he was preparing charges against the politicians who had partnered with the CIA.

Polish state prosecutors are considering bringing charges against members of the Democratic Left Alliance (SLD) for their alleged involvement in secret CIA prisons located on Polish soil between 2002-2005. The prisons were allegedly used to torture terrorist suspects from al-Qaeda.

Officials from the leftist SLD government in power at the time, including former Prime Minister Leszek Miller, may be charged with violating Poland’s constitution, helping to illegally imprison a number of people and with participating in crimes against humanity.

That’s according to documents released by daily Gazeta Wyborcza, which show that former deputy prosecutor Jerzy Mierzewski, who was recently removed from the investigation, wanted to press these charges.

And now AP reports that Poland is responding in the same way the US would: to declare state secrets and pursue the whistleblowers.

Adam Borzyszkowski, a prosecutor in Gdansk, said his office would question the reporter and editors at the newspaper due to “state secrets being leaked” from the main investigation. He said those steps come amid an ongoing 10-month investigation into other media reports that leaked sensitive information.

Back when I was reading lots of samizdat in grad school, it was clear the US genuinely served as a model for Eastern European activists (whether or not we should have been a model is another question).

I guess we still serve as such a model. Only rather than serving as a model of democracy and creativity, we’re now showing others how to use state secrets to hide torture and other crimes.

And about that Nuclear Hellstorm Khalid Sheikh Mohammed Promised if Osama bin Laden Was Killed?

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When the WikiLeaks Gitmo Files were first released last week, the Telegraph’s top headline warned of a “nuclear hellstorm” if Osama bin Laden were captured or killed.

One of the terrorist group’s most senior figures warned that al-Qaeda had obtained and hidden a nuclear bomb in Europe that would be detonated if Osama bin Laden was killed or captured.

Khalid Sheikh Mohammed, the al-Qaeda mastermind currently facing trial in America over the 9/11 atrocities, was involved in a range of plans including attacks on US nuclear plants and a “nuclear hellstorm” plot in America.

[snip]

According to the US WikiLeaks files, a Libyan detainee, Abu Al-Libi, “has knowledge of al-Qaeda possibly possessing a nuclear bomb”. Al-Libi, the operational chief of al-Qaeda and a close associate of Osama bin Laden before his detention, allegedly knew the location of a nuclear bomb in Europe that would be detonated if bin Laden were killed or captured.

That headline was based on two details from the Gitmo files. First, this passage from Abu Faraj al-Libi’s Detainee Assessment Brief:

(S//NF) Detainee has knowledge of al-Qaida possibly possessing a nuclear bomb. Al-Qaida associate Sharif al-Masri stated in June or July 2004, upon encountering difficulties in moving the nuclear bomb, detainee commented if al-Qaida was able to move the bomb, al-Qaida would find operatives to use it. However, detainee told Sharif al-Masri that al-Qaida currently had no operatives in the US. The operatives would be Europeans of Arab or Asian descent. The device was reportedly located in Europe.40 Sharif al-Masri reported detainee would know about the bomb and its exact location.41 Sharif al-Masri believes if UBL were to be captured or killed, the bomb would be detonated in the US, detainee would be one of those able to give the order.42

And this single line from Khalid Sheikh Mohammed’s DAB.

(U) Detainee told his interrogators that al-Qaida had planned to create a “nuclear hell storm” in America.

Now, the reference to al-Libi is of particular interest given accounts of how we found Osama bin Laden, as I have laid out here. I think it likely that al-Libi was the source of the information on the courier(s) that ultimately led to OBL’s compound.

That said, note the intelligence in that passage. The first sentence claims, uncritically, that al-Libi “has knowledge of al-Qaida possibly possessing a nuclear bomb”–though the use of the word “possibly” suggests some doubt. And the remaining 6 sentences of that paragraph are cited to Sharif al-Masri, not al-Libi himself. (Note, CNN appears to have gotten this utterly and completely wrong in this article.)

Al-Masri was detained in 2004 and reports from his interrogation–with the news on WMD–were leaked. As of 2006, his whereabouts remained unknown; I’m checking to see if his whereabouts are still unknown. [Update: His whereabouts were still unknown in March 2008, h/t Jeff Kaye.] [Update: Andy Worthington confirms that al-Masri is one of the detainees who has disappeared; he was never in Gitmo.] (Remember, too, that the Bradbury memos were written to retroactively authorize torture committed in this 2004 time period.)

But none of the reporting on nukes in al-Libi’s file comes from al-Libi himself, and it notes that “detainee ha[d] neither confirmed nor denied” … “knowledge of an al-Qaida nuclear device” by September 10, 2008.

Does the fact that he had neither confirmed nor denied the allegation a full 3 years after being captured mean we never asked?

The KSM intelligence is of even sketchier provenance. KSM’s DAB cites WorldNetDaily (!) as the source.

69 Al-Qaida warning- WorldnetDaily.com 17 -Sep-06, Al-Qaida warns Muslims: Time to get out of U.S. Afghan terror commander hints at a big attack on N.Y. and Washington.

Not only should the WND source raise questions, but reading the article reveals there is only one mention of KSM, and it has nothing to do with what he told his interrogators.

And all of this is more suspect considering Abd al Rahim al-Nashiri claimed he told his torturers that Osama bin Laden had a nuclear bomb, but later recanted the claim.

Usama bin Laden having a nuclear bomb. [REDACTED]. Then they used to laugh. Then they used to tell me you need to admit to those information. So I used to invent some of the stuff for them to say Usama bin laden had a, had a nuclear bomb. And they use to laugh and they were very happy. They were extremely happy because of the news. Then after that I told them, listen. He has no bomb. [my emphasis]

Al-Nashiri’s Gitmo file makes no claim he knew anything about al Qaeda and nukes.

In other words, when we tortured prisoners–and all of the detainees to whom this claim can be traced were in CIA custody–we asked them to tell us al Qaeda had nukes.

So I’m guessing the Telegraph’s big headline is not keeping our national security experts up at night.

Update: Titled changed. After all, KSM promised hellstorm, according to WND, if OBL was captured or killed.

8 Years Ago Today, KSM Was Probably Being Waterboarded for the 179th Time

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I don’t really know precisely what days in March 2003 the CIA’s contractors waterboarded Khalid Sheikh Mohammed a total of 183 times.

But I thought about the rough timing when Dafna Linzer tweeted about this Steven Aftergood post, noting the report in the Senate Intelligence Committee’s review of what they did last Congress said they still weren’t done with their torture review.

It is nearly a decade since the Central Intelligence Agency embarked on its controversial post-9/11 program of prisoner detention and interrogation, which included “enhanced” procedures that would later be repudiated and that were widely regarded as torture.  But even now, an accurate and complete account of that episode remains unavailable.

It is more than two years since the Senate Intelligence Committee belatedly began “a study of the CIA’s detention and interrogation program.”  The Committee reported (pdf) this month that “the CIA has made available to the Committee over 4 million pages of CIA records relating to its detention and interrogation program.”

Yet the Committee said that its two year old review of the nearly decade-old program is still not complete:  “The review has continued toward the goal of presenting to the Committee, in the [current] 112th Congress, the results of the review of the extensive documentary record that has been provided to the Committee.”  There was no mention of presenting the results of the review to the public.

It seems to me we’re never going to see that report until after the 8 year statute of limitations on torture expire for everything described in the report that clearly exceeded John Yoo’s expansive interpretation of what constitutes torture. And we’re sure as hell not going to get a report on the death threats they illegally used with Abd al Rahim al-Nashiri just as DOD is about to charge him in a military commission.

But they might have to “keep working” on it for a couple more years: I’m betting the government used water “dousing” in 2004 in an illegal manner, too.

It’s a brand new kind of job security for government workers, the kind of “work” they have to do to make sure the statutes of limitation expire on the crimes they’re investigating while they’re investigating them.

The Secrets Military Commissions Keep that Civilian Courts Don’t

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As I mentioned in my earlier post on the new Gitmo protective order, DOD is reportedly preparing to charge Abd al Rahim al-Nashiri for his role in the Cole bombing for trial in a military commission. That’s worth keeping in mind because the Gitmo order is largely based on the protective order the DC District Court uses for habeas cases. The Gitmo order chose not to simply adopt the DC District order, though, suggesting the differences may have been crafted for people like al-Nashiri.

While some of the changes are just procedural, others are more telling. A central difference is the assertion that everything a High Value Detainee says will be presumptively treated as Top Secret/SCI (an update to the DC District order, issued before Abu Zubaydah’s lawyers got materials in his habeas case, includes treatment of TS/SCI information). So anything al-Nashiri tells his attorney about the torture he suffered–including the torture still allegedly being investigated by DOJ–will be considered TS/SCI.

In a similar vein, the prohibition on sharing detainee statements in classified documents I mentioned earlier is an addition to the DC District order.

Statements of the detainee that detainee’s counsel acquires from classified documents cannot be shared with the detainee absent authorization from the appropriate government agency authorized to declassify the classified information.

Curiously, the Gitmo order includes an extra requirement before attorneys get access to classified information: that the attorney,

provid[e] to the Chief Defense Counsel detailed verifiable information regarding past employment, including a list of prior case assignments, to ensure against any conflicts of interest with the case to which detainee’s counsel is currently assigned.

I’m very interested in what “conflicts of interest” they have in mind. Particularly as it relates to al-Nashiri, remember that there was a JAG investigation into whether Kirk Lippold acted improperly in the USS Cole attack (the investigation was designed not to look at larger questions about rules of engagement because they would reflect badly on our allies in Yemen). In addition, one of the CIA’s first uses of a drone to kill someone–with the supposed “accidental” killing of US citizen Kamal Derwish at the same time–was in the killing of Abu Ali al-Harithi. I would imagine the government would want to make sure al-Nashiri’s attorneys are completely ignorant about certain details of both of these events. That said, the restriction may well be about making sure attorneys don’t know too much about other detainees. In any case, they seem to be using “conflict of interest” where they really want to deprive attorneys who “know too much” of serving as counsel.

The Gitmo order also eliminates a caveat included in the DC order. In the rule prohibiting attorneys from sharing certain information with their clients,

Written and oral communications with a detainee, including all incoming legal mail, shall not include information relating to any ongoing or completed military, intelligence, security, or law enforcement operations, investigations, or arrests, or the results of such activities, by any nation or agency or current political events in any country that are not directly related to counsel’s representation of that detainee; or security procedures at GTMO, including names of U.S. Government personnel and the layout of camp facilities, or the status of other detainees, not directly related to counsel’s representation. [my emphasis]

… the Gitmo order eliminates the exception in cases where this information relates to the lawyers representation of the detainee. I’m particularly interested in this given that Khalid Sheikh Mohammed named detainees whom he had implicated under torture, insisting they were innocent. Preventing any discussion of the status of other detainees would prevent such public revelations at a military commission.

The Gitmo order also includes a prohibition on sharing of information between detainees.

No materials, either Legal Mail or non-Legal Mail, are permitted to be exchanged directly between detainees unless authorized by the JTF-GTMO Commander or, after referral, the military judge. If a detainee in a military commission is authorized to proceed pro se, the military judge may authorize special procedures to facilitate the exchange of information necessary for a pro se detainee to prepare a defense. However, all written materials provided to a pro se detainee must be first reviewed by the Privilege Team under the same standards applicable to detainees represented by counsel.

Much of this order–and this restriction in particular–seems to be a response to the John Adams project, which collected photos of detainees torturers and in some case had them exchanging photos among themselves.

Finally, while the DC order ensured that the content both face-to-face and phone conversations between an attorneys and their client could not be monitored, the Gitmo order explicitly permits the recording of phone calls between lawyers and their clients.

Any telephonic access by detainee’s counsel is subject to appropriate security procedures, including contemporaneous monitoring and recording. Any telephonic access between detainee’s counsel and a detainee over either secure or non-secure systems may be subject to appropriate security procedures, including contemporaneous monitoring and recording by the Privilege Team. [my emphasis]

Mind you, as CCR’s suit about the wiretapping of attorney-client conversations shows, they’ve been doing this all along anyway. But now they’re making it explicit.

DOD: Defense Attorneys Can’t Tell Detainees What They Said

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DOD just issued a new protective order that will cover the military commissions they’re about to roll out. (h/t Carol Rosenberg) I’m still reading the document. But I wanted to highlight this requirement.

Statements of the detainee that detainee’s counsel acquires from classified documents cannot be shared with the detainee absent authorization from the appropriate government agency authorized to declassify the classified information.

In other words, the lawyer of Rahim al-Nashiri–who is reportedly going to be the next detainee charged–can’t tell al-Nashiri what the government alleges he said under torture.

But don’t worry. President Obama assured me these military commissions will deliver real American-style justice.

Update: This is interesting, too:

In the event that classified information enters the public domain, counsel is nonetheless precluded from making private or public statements about the information.

[snip]

Only after classified information has been properly declassified by appropriate authority may formerly classified information in the public domain be the subject of public or private statements from counsel.

We know WikiLeaks still has the Gitmo documents. So some information presumably is going to enter the public domain in the foreseeable future. But DOD is pre-emptively gagging attorneys so they can’t talk about what’s coming.

Update: DOD won’t let attorneys use information they acquire in defending detainees to sue the government for torture.

Protected information shall be used only for purposes directly related to these cases and not for any other litigation or proceeding, except by leave of the military commission or the Convening Authority.

Rummy Lawyers Up … To Defend Ordering Death Threats?

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Josh Gerstein reports that the government has withdrawn from defending Donald Rumsfeld and others in the Jose Padilla suit Judge Richard Mark Gergel dismissed the other day. (h/t MD)

The Justice Department under President Barack Obama has quietly dropped its legal representation of more than a dozen Bush-era Pentagon and administration officials – including former Defense Secretary Donald Rumsfeld and aide Paul Wolfowitz – in a lawsuit by Al Qaeda operative Jose Padilla, who spent years behind bars without charges in conditions his lawyers compare to torture.

Charles Miller, a Justice Department spokesman, confirmed Tuesday that the government has agreed to retain private lawyers for the officials, at a cost of up to $200 per hour. Miller said “conflicts concerns” prompted the decision. He did not elaborate.

One private attorney involved in the case, who asked not to be named, said the Obama administration apparently concluded “its duty to represent the defendants zealously, which includes the duty to argue any and all defenses, can’t be discharged for reasons of policy and other government interests.”

That’s mighty interesting. Because the last time DOJ withdrew from defending such a high profile defendant was John Yoo, in the partner lawsuit in this case, in which Padilla is suing Yoo for his horrible OLC memos. The DOJ withdrew from defending Yoo just two weeks before DOJ finished the OPR Report (on July 29, 2009) finding grave problems with the OLC memos John Yoo wrote authorizing torture. The very memos Padilla sued Yoo about.

Which makes this observation from Gerstein and Stephen Gillers all the more interesting.

Legal ethics experts said the Justice Department’s withdrawal could stem from qualms about a full-throated defense of Padilla’s treatment while in military custody. His lawyers claim that Padilla’s captors in the brig subjected him to abuse including sensory deprivation, prolonged isolation, imminent death threats, forced drugging and interference with his practice of Islam.

“Some of the [defendants] may have wanted to make more extreme arguments about the legality of their conduct than the Justice Department was willing to accept,” said Stephen Gillers, a professor of law at New York University. [my emphasis]

That same OPR Report would virtually prohibit DOJ from helping Rummy and others defend the claim that death threats used on Padilla were legal. After all, we know that mock burials–a kind of death threat–were just about the only thing that John Yoo said was illegal!

Now, as it happens, Judge Collyer, in the ACLU’s FOIA case, appears to have made a really ridiculous argument that DOJ’s declassification of that reference to mock burial does not amount to an acknowledgment that Yoo judged death threats, more generally, to be illegal. And the death threats used against Rahim al-Nashiri at least allegedly are still being investigated.

But it would be mighty interesting if this were all about death threats. Padilla’s lawyers are suing because–among other reasons–Rummy ordered up treatment that included death threats. And that’s the only thing our Department of Justice has deemed illegal.