If, in fact, we are a “nation of laws,” you wouldn’t know it from Washington’s actions over the past few years. Nothing spoke more strikingly to that loss of faith, to our country’s increasing incapacity for meeting violence with the law, than the widely hailed decision to kill rather than capture Osama bin Laden.

Clearly, a key factor in that decision was a growing belief, widely shared within the national-security establishment, that none of our traditional or even newly created tribunals, civilian or military, could have handled a bin Laden trial. Washington’s faith went solely to Navy SEALs zooming into another country’s sovereign airspace on a moonless night on a mission to assassinate bin Laden, whether he offered the slightest resistance or not. It evidently seemed so much easier to the top officials overseeing the operation — and so much less messy — than bringing a confessed mass murderer into a courtroom in, or even anywhere near, the United States.

The decision to kill bin Laden on sight rather than capture him and bring him to trial followed hard on the heels of an ignominious Obama administration climb-down on its plan to try the “mastermind” of the 9/11 attacks, Khalid Sheikh Mohammed, or KSM, in a federal court in New York City. Captured in Pakistan in May 2003 and transferred to Guantanamo in 2006, his proposed trial was, under political pressure, returned to a military venue earlier this year.

Given the extraordinary record of underperformance by the military commissions system — only six convictions in 10 years — it’s hard to escape the conclusion that the United States has little faith in its ability to put on trial a man assumedly responsible for murdering thousands.

And don’t assume that these high-level examples of avoiding the court system are just knotty exceptions that prove the rule. There is evidence that the administration’s skepticism and faint-heartedness when it comes to using the judicial system risks becoming pervasive.

Pushing Guilt Before Trial

Needless to say, this backing away from courts of law as institutions appropriate for handling terrorism suspects began in the Bush-Cheney years. Top officials in the Bush administration believed civilian courts to be far too weak for the Global War on Terror they had declared. This, as they saw it, was largely because those courts would supposedly gift foreign terrorist suspects with a slew of American legal rights that might act as so many get-out-of-jail-free cards.

As a result, despite a shining record of terrorism convictions in civilian courts in the 1990s — including the prosecutions of those responsible for the 1993 attempt to take down a tower of the World Trade Center — President Bush issued a military order on November 13, 2001, that established the court-less contours of public debate to come. It mandated that non-American terrorists captured abroad would be put under the jurisdiction of the Pentagon, not the federal court system. This was “war,” after all, and the enemy had to be confronted by fighting men, not those sticklers for due process, civilian judges and juries.

The federal courts have, of course, continued to try American citizens and residents (and even, in a few cases, individuals captured abroad) in terror cases of all sorts — with an 87 percent conviction rate for both violent and non-violent crimes. In fact, 2010 was a banner year for terrorism prosecutions when it came to American citizens and residents, and 2011 is following suit. As could have been predicted, in the vast majority of these cases — all the ones that mattered — there were convictions.

You might think, then, that the courts had proved their mettle against mounting criticism and distrust of a system said to be insufficiently harsh. And initially, Obama’s Department of Justice defended civilian courts as resilient and flexible enough to try terror cases.

But that didn’t last. Recently, the Obama administration has reinforced a policy (begun under President Bush) which offers an ominous new twist on American justice: punishment before trial. It has, for example, relied upon various extreme methods of pre-trial isolation — including a version of restrictive orders known as Special Administrative Measures, or SAMs — that reek of punitiveness and have often caused severe psychological deterioration in suspects awaiting trial on terrorism charges. The most noteworthy case of this is Syed Fahad Hashmi’s. An American citizen arrested while studying in England, Hashmi had allowed an acquaintance, Mohammed Junaid Babar, to stay in his apartment for two weeks. Babar, who testified against Hashmi and was later released, allegedly had socks, ponchos, and raingear intended for al-Qaeda in his luggage and allegedly used Hashmi’s cell phone to call terrorist conspirators. Hashmi, accused of “material support” for al-Qaeda, was kept under SAMs for three years without trial — until he finally pled guilty.

The urge to punish before a verdict comes in reflects the same deep-seated conviction that the U.S. court system is simply not to be trusted to do its job. Two recent cases — that of whistleblowers Thomas Drake and Bradley Manning — illustrate how, in cases where national security is believed to be at stake, Obama-era pre-trial treatment has taken up the distrust of the courts, civilian or military, that characterized the Bush years.

Drake, an executive for the National Security Agency (NSA), became a whistleblower over what he considered mistaken policy decisions about an ill-performing data-sifting program which, among other things, he thought squandered taxpayer money. Subsequently, he revealed his disagreement with the agency’s warrantless wire-tapping program, which he believed overstepped legal boundaries. Charged initially with violating the Espionage Act and threatened with a draconian 35-year jail sentence, Drake finally pled this past June to a misdemeanor count of “exceeding the authorized use of a government computer.”

In Drake’s four-year saga, his pre-punishment took the form not of pre-trial detention but of the destruction of his livelihood. He was initially fired from the NSA and from the National Defense University position to which the NSA had assigned him. Once indicted in 2010, he was forced to resign from a subsequent teaching post at Strayer University. All told, the formal and informal hounding of Drake resulted in the loss of his jobs and pension, as well as $82,000 in legal costs. Ultimately, Drake was sentenced to a year’s probation and 240 hours of mandatory community service. By that time, he had been ruined financially and professionally, thanks to the government’s disparagement of him and the multi-year delay between its accusations and the lodging of formal charges against him. Drake now works at an Apple Store. In other words, well before the government took its chances in court, Thomas Drake was punished.

Another highly publicized case where punishment preceded trial has been the mistreatment of Army Private Bradley Manning while in military custody in a Marine brig in Quantico, Virginia, awaiting charges. The Obama administration believes he turned over a trove of secret military and State Department documents to the website WikiLeaks. Following his arrest, Manning was kept in subhuman conditions. He was forced to sleep naked and to strip for daily inspections, though as news about his situation generated bad publicity, he was eventually allowed to sleep in a “tear-proof” gown.

There is something deeply disturbing about the very different ways Manning and Drake were pre-punished by the government — both directly in the case of Manning and indirectly in the case of Drake — before being given due process of any kind. Like bin Laden’s killing, both cases reflect an unspoken worry in Washington that our courts will prove insufficiently ruthless and so incapable of giving the “obviously guilty” what they “obviously” deserve.

The Courts Take Notice

As it turns out, the judicial system hasn’t taken the government’s new attitude lying down. Various judges and juries have, in fact, shown themselves to be unfazed by both public and governmental pressures and have, in terror and national security cases, demonstrated signs of balance and of a concern for justice, rather than being driven by a blind sense of revenge.

In the past year, there has been an unprecedented number of high-profile terrorism trials. All have resulted in convictions, which have nonetheless not reflected the unstinting harshness that critics of court-centered counterterrorism insist upon. In the case of Ahmed Ghailani, the sole Guantanamo detainee to face trial in the nation’s criminal justice system, the jury, having done its work of assessing the evidence, acquitted the defendant on 284 of 285 counts, including all the murder charges associated with the 1998 bombings of the U.S. embassies in Kenya and Tanzania. On the single count on which he was convicted, however, Ghailani was given a life sentence without parole.

Meanwhile, a high-profile terrorism case — that of Tagawwur Rana — ended in a jury acquittal on its most serious charge. Rana had been accused of cooperating in the 2008 terrorist attacks in Mumbai, India, which resulted in the deaths of more than 160 individuals. The jury found Rana guilty of material support, but not of helping to coordinate the attack.

These cases and others like them have, of course, been fodder for all the usual critics who consider anything but a 100 percent conviction rate on all charges in all cases to be a sure sign not of the justice system’s strength, but of its fundamental weakness. And yet, such cases have showcased just how effectively the system still works, in a more nuanced way than in the previous near-decade, as well as in a subtler and more just way than Washington has managed to approximate over that same period. Despite the fears, pressures, and scare tactics that are entangled with all such terror cases, we now have living proof that juries can think for themselves, and guilt can be a partial matter, rather than a Washington slam-dunk.

Of late, federal judges on such cases also seem to have been signaling to the government’s representatives that they must be more restrained in their approach to national security cases, both in and out of court. In late June, for instance, during the sentencing of three of the men convicted of conspiring to bomb two synagogues in Riverdale, New York, and to launch a Stinger missile aimed at aircraft over Newburgh’s Air National Guard Base, Judge Colleen McMahon struck back at the government’s case. “I believe beyond a shadow of a doubt,” she said, “that there would have been no crime here except the government instigated it, planned it, and brought it to fruition. That does not mean that there was no crime. The jury concluded that you were not entrapped, and I see no basis to overturn their verdict.”

In the Drake case, Judge Richard Bennett was similarly distraught about the evident excesses in the government’s approach. At sentencing for the single minor count to which Drake agreed to plead, the judge bluntly refused to impose the $50,000 fine the prosecution was pushing for on the grounds that punishment had already been administered — prior to the court process. “There has been financial devastation wrought upon this defendant,” said Bennett, “that far exceeds any fine that can be imposed by me. And I’m not going to add to that in any way. And it’s very obvious to me in terms of some of the irritation I’ve expressed… not only my concern over the delay in this case… [but also the prosecution's] inability to explain … the delay in this case… I think that somebody somewhere in the U.S. government has to say… that the American public deserves better than this.”

In the recent jury decisions, as in the growing expressions of judicial dissatisfaction, an optimist might find signs that the system is finally starting to right itself. On the other hand, a pessimist might come to the conclusion that the government will, in the future, simply put even more energy into avoiding the court system.

The bottom line is that the Obama administration, like its predecessor, defines success in terrorism prosecutions not by assessing whether or not due process and fair verdicts are administered, but solely in terms of what they deem proper punishment for those accused of violating national security — especially when doing so minimizes partisan political clashes. By refusing to rein in its evident distrust of the judicial system when it comes to national security, the government is perpetuating a legal landscape that, to this day, lies in the shadow of Osama bin Laden.

To stay on top of important articles like these, sign up to receive the latest updates from TomDispatch.com here

Yet you wouldn’t know it in Washington where, if anything, the Obama administration and Congress have interpreted the killing of al-Qaida’s leader as a virtual license to double down on every “front” in the war on terror. Secretary of State Hillary Clinton was no less blunt than Bergen, but with quite a different endpoint in mind. “Even as we mark this milestone,” she said on the day Bergen’s comments were published, “we should not forget that the battle to stop al-Qaida and its syndicate of terror will not end with the death of bin Laden. Indeed, we must take this opportunity to renew our resolve and redouble our efforts.”

National Security Adviser John Brennan concurred. “This is a strategic blow to al-Qaida,” he commented in a White House press briefing. “It is a necessary but not necessarily sufficient blow to lead to its demise. But we are determined to destroy it.” Similarly, at his confirmation hearings to become Secretary of Defense, CIA Director Leon Panetta called for Washington to expand its shadow wars. “We’ve got to keep the pressure up,” he told the senators.

As if to underscore the policy implications of this commitment to “redoubling our efforts,” drone aircraft were dispatched on escalating post-bin-Laden assassination runs from Yemen (including a May 6th failed attempt on American al-Qaida follower Anwar al-Awlaki) to Pakistan. There, on May 23rd, a drone failed to take out Taliban leader Mullah Omar, while, on June 2nd, an attempt to kill Ilyas Kashmiri, a militant associated with the 2008 terrorist attack on Mumbai, India, may (or may not) have failed. And those were only the most publicized of escalating drone attacks, while reports of a major “intensification” of the drone campaign in Yemen are pouring in.

In the meantime, President Obama used the bin Laden moment to push through and sign into law a four-year renewal of the Patriot Act, despite bipartisan resistance in Congress and the reservations of civil liberties groups. They had stalled its passage earlier in the year, hoping to curtail some of its particularly onerous sections, including the “lone wolf” provision that allows surveillance of non-US citizens in America, even if they have no ties to foreign powers, and the notorious Section 215, which grants the FBI authority to obtain library and business records in the name of national security.

One thing could not be doubted. The administration was visibly using the bin Laden moment to renew George W. Bush’s Global War on Terror (even if without that moniker). And let’s not forget about the leaders of Congress, who promptly accelerated their efforts to ensure that the apparatus for the war that 9/11 started would never die. Congressman Howard McKeon (R-CA), chairman of the House Armed Services Committee, was typical. On May 9th, he introduced legislation meant to embed in law the principle of indefinite detention without trial for suspected terrorists until “the end of hostilities.” What this would mean, in reality, is the perpetuation ad infinitum of that Bush-era creation, our prison complex at Guantanamo (not to speak of our second Guantanamo at Bagram Air Base in Afghanistan).

In other words, Washington now seems to be engaged in a wholesale post-bin Laden ratification of business as usual, but this time on steroids.

Perhaps after all these years the nation’s leadership was simply unprepared for bin Laden’s death and hasn’t been able to imagine switching directions readily, or perhaps the war on terror has simply become a way of life. Certainly, the Obama administration has a record of translating potentially propitious moments for change into strategic paralysis.

Remember, for instance, the president’s day-one-in-the-Oval-Office pledge to close Guantanamo within a year? Six months later, the administration had doubled down on the idea of the indefinite detention of terror suspects and so effectively made Obama’s promise meaningless. It’s a pattern that’s repeated itself when it comes to the Afghan War, the trial in New York City of 9/11 “mastermind” Khalid Sheik Mohammed, and other crucial matters.

But think about it for a moment: Should the postmortem to bin Laden be just a continuation of the same-old-same-old? Shouldn’t there be a national pause for reflection as the tenth anniversary of 9/11 approaches? Wouldn’t it make sense to stop and rethink policy in the light of his death and of a visibly tumultuous new moment in the Greater Middle East with its various uprisings and brewing civil wars?

Why has an administration that prides itself on thinking before doing pushed on without a moment’s reflection? Why shouldn’t the president establish a commission filled with at least a few new faces (and so a few new thoughts) to assess what a war on terror might even mean today? And why not insist that, until the findings of such a commission come in, there will be no new expenditures, legislation, or policy decisions to continue — let alone further expand — that war, its detention policies, or for that matter the Patriot Act?

Were the President to establish such a commission, here are five symbolic steps it might recommend — hardly the only ones, but a start — that could help set the U.S. on another path and put the war on terror behind us:

1. Concede that there is no more tangible endpoint for the war on terror than the death of bin Laden: Rather than trying to banish the term “war on terror” (as the Obama administration did in 2009), let’s face it squarely. Practically speaking, at the moment as for the past near-decade, it is little but a catch-all phrase for “endless war.”

Our commission would have to face a basic question: If we are not to commit to war without end, what could the “cessation of hostilities” possibly mean when it comes to American terror policy? Any attempt at a definition would have to grapple with the real meaning of bin Laden’s death. After all, it may be the only tangible victory we’ll ever have. What a moment, then, to announce that the war on terror has now passed out of its “war” phase and entered a phase of risk management.

At present, Congress is considering an expansion of the Authorization to Use Military Force (AUMF) that it passed on September 14, 2001, and that allowed “the use of force against those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided” the attacks of 9/11. The current version builds upon the previous open-ended war model and actually expands the number of possible targets for the use of force to those who “have engaged in hostilities or have directly supported hostilities in aid of a nation, organization or person” that is engaged in hostilities against the U.S. or its coalition partners.

Nor does it have an end date. How long this overly broad, overly vague policy would remain in effect remains unknown. It would be far better if current and pending revisions of the AUMF were more honest in acknowledging that the counterterrorism policy it promotes is slated to last indefinitely, much like the “wars” on drugs and organized crime. This would, at least, put in front of lawmakers the appropriate question: Are you willing to authorize military force as your perpetual state of risk management against an ever-expanding list of enemies? Perhaps, in the context of an endless state of war (and the expenses that would go with it), Congress might prove more circumspect about granting such broad powers to the president.

2. Release John Walker Lindh: This would be a symbolic act of compassion, a way to turn our attention back to the first moments of the Bush administration’s disastrous Global War on Terror, and perhaps help along the process of heading Washington in new directions. Lindh, you may remember, was the young man captured and turned over to U.S. forces by Afghan allies in the early weeks of the invasion of Afghanistan.

An American who had spent time with the Taliban and was ready to fight for them (but not against the United States), he was the first person against whom the Bush administration, in one of their favored phrases, “took off the gloves.” He was mistreated and abused while wounded. Later, faced with the prospect of never emerging from jail, he provided information to the authorities in exchange for a 20-year sentence in a plea deal.

Even George W. Bush described him as a “poor boy” who had been “misled,” an upper-middle-class American kid whose teenage identity issues sent him deep into the fundamentalist part of the Muslim world, though with no indication on his part of any interest in jihad, nor the slightest idea that the United States would invade Afghanistan and he would find himself on the other side of the lines from his own countrymen.

Lindh’s mistreatment in Afghanistan and subsequent sentencing here were essentially acts of symbolic revenge for the tragic death of CIA agent Mike Spann, the first official American casualty in what was already being called the Global War on Terror. His sentence was also meant as a warning to others who might consider his path.

As it happened, the judge in charge of the case acknowledged that there was absolutely no evidence Lindh had been involved in Spann’s murder. Bewilderingly enough, he nonetheless allowed the prosecutor to tie Lindh inexorably to Spann’s murder through the emotional testimony of Spann’s father at sentencing.

The U.S. government was sending a message. If this country would punish one of its own in such a fashion without evidence of a crime or even of theoretical allegiance to the idea of jihad against the West, what wouldn’t it do to its foreign enemies?

In prison, Lindh has since committed himself to the quiet life of a scholar of Islam. Many who have followed this case think that, at age 30, he should be returned to his family.

Lindh’s release would be a signal that the United States was ready to return to an era of calm justice and that the war on terror, with all its excesses, was truly coming to an end.

3. Create a rehabilitation program for releasing Guantanamo detainees currently assigned to indefinite detention: In the same spirit, it’s time to signal that, along with the war on terror, the paroxysm of fears that led us to detain individuals who had not committed crimes, but were otherwise deemed harmful, has come to an end. The Obama administration’s most recent directive on Guantanamo follows its long-hinted-at intention to hold approximately four-dozen Guantanamo detainees in indefinite detention for a variety of reasons. Bottom line: although there is insufficient evidence to convict them, administration officials have determined that each of them could pose a danger to this country, if released.

Under U.S. law, detention without trial poses constitutional problems, which is why Guantanamo detainees were granted habeas corpus rights by the Supreme Court. Similarly, under the laws of war, the detention of prisoners is only justified while hostilities are ongoing. If there really is no “war” on terror, it is hard to justify holding detainees indefinitely without a fair adjudication of their rights in a court of law.

Why not, then, consider creating an American version of the de-radicalization or rehabilitation programs that flourish elsewhere in the world — notably, for example in Indonesia — as a prelude to release for those where the evidence for a trial is absent? A rehabilitation program might steer individuals towards non-violent behavior, whatever their ideological leanings; it might re-educate them on the subject of Islam; it might introduce notions of rights and liberties. Religious leaders, psychologists, and counterterrorism officials could fashion such a program jointly as they do elsewhere in the world. President Obama surprisingly inserted the word “rehabilitation” in his March 2011 directive on the future of Guantánamo (“Executive Order — Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force”). Why not use this milestone moment in the war on terror to follow up in a concrete fashion?

4. Revisit the issue of prosecuting those responsible for America’s offshore torture policies in the Bush years: The Obama administration made a decision not to investigate or prosecute the creators of the torture policy that defined the Bush administration’s interrogation tactics in its war on terror. They did so, its officials claimed, in an effort to focus on the overwhelming issues the new presidency had to confront. They were visibly eager to avoid stoking a bitter partisan battle that they feared might further divide the country.

They banked instead on the idea that the lawyers and politicians responsible for that torture policy and the “black sites” and “extraordinary renditions” that went with it would quietly fade into the woodwork. This has obviously not been the case. On the contrary, in recent months former officials and members of the Bush administration have openly re-embraced those policies. In the aftermath of bin Laden’s death, as if on cue, they immediately flooded the newspapers and air waves with unsupportable claims that torture had led Washington to the al-Qaida leader and should be a crucial part of the American arsenal in the future.

Forget for a moment that torture has still not been shown to have extracted valuable information (not otherwise available) from terror suspects. We know, in fact, that on a number of occasions it led investigators down the wrong path. More importantly, it was a symptom of the war-on-terror frenzy that gripped this country and led it down the wrong path.

We now have all the proof we need that pretending torture never happened, legally speaking, only helps keep us embroiled in that “war” and the emotions it evokes. If the war on terror is ever to end, then tolerance for the support of torture has to end as well. Nothing would accomplish this better than the actual prosecution of the American crimes of that era — or at the very least, the investigation and official condemnation of those who sidestepped the constitution and diminished the moral standing of the country at home and abroad.

5. Restore permanently to the Department of Justice responsibility for trying terrorists from around the globe: Since the fall of 2001, the Justice Department has been largely deprived of its portfolio for trying terrorists captured outside the United States. With the exception perhaps of cases involving terror attacks on military targets, there is no reason Justice should not prosecute such cases, as in the 1990s it successfully prosecuted the conspirators who first attacked the World Trade Center, as it did in the African embassy bombings cases, and as it has recently done in Chicago in the case of Tahawwur Hussain Rana, who was convicted of providing material support to the terrorist group Lashkar-e-Taiba. (He was acquitted of conspiracy charges in the Mumbai bombing.) Since 9/11, the ability of judges, prosecutors, and defense attorneys to understand terrorism cases and try them responsibly has, if anything, increased immeasurably, while the military commissions system instituted by the Bush administration at Guantanamo and kept in place by President Obama has crashed disastrously and repeatedly on the shoals of politics, misinformation, and faulty procedure.

Whatever a commission might do when it came to bringing the war on terror officially to an end, this is the moment — with the death of bin Laden, the Arab uprisings, and the 10th anniversary of 9/11 — to do it and to begin to seek ways to defend America even while guiding us back to our true self: a country with respect for the law, restraint when it comes to the use of force, and rights for all.

OK, call it paranoia — a state of mind well suited to the Age of Cheney — but when Abu Ghraib finally came to light, it turned out that our real focus should have been on the administration’s program of “extraordinary rendition” and the secret CIA flights to the countries that were serving as proxy torturers for the United States. And when one case of torture by proxy, that of Maher Arar, achieved some prominence, we began looking at proxy torturers for the United States, when we should have been looking at legalized policies of torture by the U.S.

Several years ago, the British human rights lawyer Clive Stafford Smith placed that jewel in the Bush administration’s offshore crown of injustice, Guantánamo, in the category of distraction as well — distraction, that is, from the far grimmer and more important American detention facility at Bagram Air Base in Afghanistan.

Distracted or not, for at least five years some of us have been seeking the hidden outlines of the torture story. Now, President Obama has given it a visible shape by providing a potential endpoint, if not to our investigations, then to our focus. Much of what we focused on in these past years he has declared to be history. Guantánamo will be closed within a year, and the American role in the war in Iraq will end as well; torture will once again be banned; a new task force, already assembled, will review all the Bush administration’s detention policies; and people like me will, assumedly, finally be out of work and able to write those novels we used to dream about. For us, no more unwelcome obsessions with detention, abuse and torture.

Bad times at Bagram

Still, ever since the Oval Office changed hands in January, I’ve had a nagging feeling that something was amiss. And when I finally focused on it, a single question kept coming to mind: What ever happened to the U.S. prison at Bagram?

I knew that it had been opened in 2002 on an abandoned Soviet air base that the U.S. had occupied, that it was being massively upgraded after the invasion of Afghanistan, and that its purpose was to hold prisoners in the global war on terror at a place as far removed as possible from the prying eyes of American courts or international oversight bodies of any sort. In fact, many of those eventually transported to Guantánamo were originally held under even worse conditions at Bagram and, from early on, they reported beatings, abuse and a startlingly wide range of other forms of mistreatment there.

But what else did I know? Thanks to New York Times reporters Carlotta Gall, David Rohde, Tim Golden and Eric Schmitt, as well as to Alex Gibney’s documentary film “Taxi to the Dark Side,” I knew that two Afghans, Dilawar and Jullah Habibullah, had been beaten to death by U.S. Army interrogators at the prison in December 2002. I also knew that the use of such beatings, as well as various other forms of torture, had been normalized at Bagram at the very beginning of the Bush administration’s long march of pain that led to Guantánamo and then on to Abu Ghraib and other prisons in Iraq as well as foreign torture chambers.

From the 2004 Church Report (written by the naval inspector general, Adm. Albert T. Church), I knew that military interrogators and guards at Bagram had been given next to no relevant training for the mission of detention and interrogation. I knew as well that a secret CIA prison was allegedly located apart from the regular detention cells at Bagram. I knew that military officials had declared that the interrogation techniques at Bagram seemed to work better than those being used at Guantánamo in the same period. And that, after the Supreme Court issued a decision in 2004 to allow prisoners at Guantánamo to challenge their detentions, the prison population at Bagram began to grow.

What we don’t know about a prison nightmare

But that was the past. What did I know about the situation in the first weeks of the Obama era?

The unnerving answer was precious little. So, as I had done with Guantánamo and Abu Ghraib, I began by asking the simple questions that had once been so difficult to answer about so many offshore detention facilities of the Bush era: Who was being held at Bagram? How many prisoners were there, and from which countries? What status did they have? Were they currently classified as “enemy prisoners of war” or — in the phrase the Bush administration had so favored in an attempt to confound U.S. courts — “unlawful enemy combatants”? How were they being treated? What reports on prison conditions had either the U.S. government or interested nongovernmental organizations released?

Setting aside the frustrations of the past seven years, I naively tried a basic Google search to see just what was instantly available, only to discover that the answer was, essentially, nothing.

It turns out that we can say very little with precision or confidence about that prison facility or even the exact number of prisoners there. News sources had often reported approximately 500 to 600 prisoners in custody at Bagram, but an accurate count is not available. A federal judge recently asked for “the number of detainees held at Bagram Air Base; the number of Bagram detainees who were captured outside Afghanistan; and the number of Bagram detainees who are Afghan citizens,” but the information the Obama administration offered the court in response remains classified and redacted from the public record.

We don’t even know the exact size of the prison or much about the conditions there, although they have been described as more Spartan and far cruder than Guantánamo’s in its worst days. Representatives of the International Committee of the Red Cross have visited the prison, but it remains unclear whether they were able to inspect all of it. A confidential Red Cross report from 2008 supposedly highlighted overcrowding, the use of extreme isolation as a punishment technique, and various violations of the Geneva Convention.

We do know that a planned expansion of the facility is under way and will — if President Obama chooses to continue the Bush project there — enable up to 1,100 prisoners to be held (a step that will grimly complement the “surge” in American troops now under way in Afghanistan). There are no figures available on how long most of Bagram’s prisoners have been held — although some, it seems, have been imprisoned without charges or recourse for years — or how legal processes are being applied there, if at all. Last spring, the International Herald Tribune reported that Afghans from Bagram were sometimes tried in Afghan criminal proceedings where little evidence and no witnesses were presented.

To students of Guantánamo, this sounds uncomfortably familiar. And there’s more that’s eerily reminiscent of Gitmo’s bleak history. According to the New York Times, even four years after Bagram was established, wire cages were being used as cells, with buckets for toilets — as was also true of the original conditions at Camp X-Ray, the first holding facility at Guantánamo. Similarly, as with Guantánamo, the U.S. has no status-of-forces agreement with Afghanistan, and so the base and prison can be closed or turned over to the Afghans only on U.S. say-so. Above all, while some Bagram detainees have lawyers, most do not.

The prison where it all began

While I was wondering about the state of our black hole of incarceration in Afghanistan, the Obama administration issued its first terse statement on the subject. When it came to granting four Bagram detainees habeas rights (that is, the right to challenge their detention in U.S. courts), the administration simply stated that it “adheres to [the Justice Department's] previously articulated position”: Habeas would not be granted.

After all, reasoned the new government lawyers (like their predecessors), Bagram is in an indisputable war zone and different legal considerations should apply. But here’s the catch neither the Bush administration, nor evidently the Obama administration, has cared to consider: It’s quite possible that these four individuals, like others at Bagram, were not captured on an Afghan battlefield (as the prisoners claim), but elsewhere on what Bush officials liked to think of as the “global battlefield” of the war on terror, and then conveniently transported to Bagram to be held indefinitely.

The U.S. government refuses to make public any documentation that would support its case, and the new court documents, submitted by the lawyers of the Obama Justice Department, are frustratingly blacked out just as those of the Bush-era Justice Department always were. At least for the moment then, when it comes to Bagram, the administration’s tactics and arguments remain unchanged from the Bush years. No wonder journalists and human rights lawyers have lately taken to referring to that prison as the “other Guantánamo,” or “Guantánamo II,” or more combatively, “Obama’s Guantánamo.”

Sadly, however, even this is inaccurate. From the get-go, Guantánamo was actually the “other Bagram.” The obvious question now is: How will the Obama administration deal with this facility and, in particular, with matters of detention, “enforced disappearance,” and coerced testimony? Will these be allowed to continue into the future, Bush-style, or will the Obama administration extend its first executive orders on Guantánamo and torture practices to deal in new ways with the prison where it all began?

Facing crimes of the Bush era

President Obama has given a newly convened task force six months — a long time when people are being held in harsh conditions without charges or recourse — to consider the matter of Bush administration detention practices and formulate new policies (or, of course, retain old ones). Here are some guidelines that may prove helpful when it comes to Bagram:

1. On secrecy: The appeal to secrecy and national security has been an all-purpose refuge of official rogues for the last seven years. Reconsider it. A sunshine policy should apply, above all else, to detention practices. Ideally, the U.S. should simply release full information on Bagram and the prisoners being held there. When, in specific cases, information is not divulged, the reasons for not doing so should be fully revealed. Otherwise, the suspicion will always arise that such withheld information might be part of a cover-up of government incompetence or illegality. That must be ruled out. It is imperative that President Obama’s administration not double-down on the Bush administration’s secrecy policy from a desire not to look back and so to avoid future prosecutions of Bush officials.
2. On the classification of prisoners: The Obama administration should seriously consider declaring the prisoners at Bagram to be “prisoners of war,” and so subject to the Geneva Conventions. Currently, they are classified as enemy combatants, as are the prisoners at Guantánamo, and so, in the perverse universe of the Bush administration, free from any of the constraints of international law. The idea that the conventions are too “rigid” for our moment and need to be put aside for this new extra-legal category has always been false and pernicious, primarily paving the way for the use of “enhanced interrogation techniques.”
3. On “ghost prisoners”: The Obama administration should reject out of hand the idea that prisoner invisibility is acceptable anywhere, including Bagram. The International Committee of the Red Cross must be granted access to all of the prisons or prison areas at Bagram, while conditions of detention there should be brought into accordance with humane treatment and standards. No “ghost prisoners” should be allowed to exist there.
4. On guilt and innocence: The belief that there is a categorical difference between guilt and innocence, which went by the wayside in the last seven years, must be restored. All too often, the military brass still assumes that if you were rounded up by U.S. forces, you are, by definition, guilty. It’s time to change this attitude and return to legal standards of guilt.

In the Bush years, we taught the world a series of harmful lessons: Americans can be as cruel as others. Americans can turn their back on law and reciprocity among nations as efficiently as any tribally organized dictatorship. Americans, relying on fear and the human impulse toward vengeance, can dehumanize other human beings with a fervor equal to that of others on this planet.

It’s time for a change. It’s time, in fact, to face the first and last legacy of Bush detention era, our prison at Bagram Air Base, and deal with it.

Call me a perpetual optimist, but President Obama has the right team in place to address this nightmarish legacy in a wise and timely way. We should expect no less from them than a full restoration of a government responsible to the law and confident of its power to deter enemies legally — be it on the battlefield or in the courtroom. So, too, we must expect them to possess the courage to confront truths, even if those truths mean heading down the path toward the prosecution of crimes of the Bush years.

The Bush administration trail of confessions can be found in the most unlikely of places — the very memos and policy statements in which its officials were redefining reality in their search for the perfect (and perfectly grim) extractive methods that would give them the detainee confessions they so eagerly sought. These were the very documents that led first to Gitmo, then to Abu Ghraib, and finally deep into the hidden universe of pain that was their global network of secret prisons.

Strangely enough, the administration confessional was open for business within weeks of the attacks of Sept. 11, 2001. It could be found wrapped in persistent assertions of immunity, assertions that none of their acts to come could ever be brought before the bar of justice or the oversight of anyone. The first of these documents was issued on Sept. 25, 2001. Deputy Assistant Attorney General John Yoo, writing for the Office of Legal Counsel, laid out the reasons for the president of the United States to assume broad executive powers in the war on terror. The last footnote of the memo declared, “In the exercise of his plenary power to use military force, the President’s decisions are for him alone and are unreviewable.”

This notion of unreviewable behavior, then still buried in the land of footnotes, has characterized the administration’s general stance on its war on terror policies. On Jan. 9, 2002, just as Guantánamo opened for business as a detention facility supposedly beyond the review of American courts, John Yoo and fellow Office of Legal Counsel member Robert Delahunty explained why a breach with international law would not constitute a crime for the Bush administration. In their secret memo, the United States, through the Justice Department, was to exempt itself ahead of time from the laws it was about to break. In essence, it was to give itself the equivalent of a hall pass for future illegal activities in the new policies and practices of detention.

The memo contorted the Geneva Conventions into a pretzel of excuses for America’s impunity on the matter of war crimes; it offered tortured reasoning about the inapplicability of Common Article Three of the Conventions — guaranteeing humane treatment during armed conflict to those individuals who are not engaged in battle (non-combatants, prisoners-of-war, those who have laid down their arms, etc.) — to the conflicts then at hand. Thus, the Taliban was redefined not as a state but as a failed state; al-Qaida became a non-state actor; the Conventions, they now claimed, were created largely for civil wars, not for “other types of internal armed conflict.” As the memo asserted over and over again, “As a constitutional matter, the President has the power to consider performance of some or all of the obligations of the United States under the Conventions suspended.”

In this way, any captives from our Afghan war were redefined as possible subjects for utterly lawless behavior, while the president was given the right not to follow international law. They put the matter this way: “The President could justifiably exercise his constitutional authority over treaties by regarding the Geneva Conventions as suspended in relation to Afghanistan.”

Foreshadowing the infamous “torture memo” of 2002 in which the same group of advisors redefined torture, nearly casting it out of legal existence, this early opinion stated that American officials could only be held accountable in the following circumstances: “causing great suffering or serious bodily injury to POWs, killing or torturing them, depriving them of access to a fair trial, or forcing them to serve in the Armed Forces.” The memo concluded with what would become the legal mantra of the Bush administration — the assertion of immunity, stating that “customary international law has no binding legal effect on either the President or the military because it is not federal law.”

As Guantánamo received its first planeloads of prisoners, Alberto Gonzales, then counsel to the president, and William J. Haynes, counsel to the Department of Defense, took the idea of administration immunity for war crimes to a new level. They used their high offices to clear the way for the substandard treatment of detainees. Trusted with the justice and safety of the nation, they both concurred with their colleagues at the Office of Legal Counsel: “We conclude that customary international law does not bind the President or the US Armed Forces in their decisions concerning the detention conditions of al Qaeda and Taliban prisoners.”

Though confidently proposing ways that any future prosecution for war crimes could be avoided, these memo-style declarations of immunity proved insufficiently comforting to an administration that had, by its own implicit admission, chosen to take a giant step into realms outside anyone’s previous definition of the law.

They soon grasped a simple point: Declaring themselves immune was one thing; ensuring immunity, quite another. To fully protect their clients — the president of the United States as well as high Pentagon and CIA officials — administration lawyers confronted the potential problem of domestic legal constraints on the mistreatment of detainees.

Gonzales tried to strengthen the assurances of Bush’s legal team by concluding that declaring exemption from the Geneva Conventions in turn “substantially reduces the threat of domestic criminal prosecution.” Attorney General John Ashcroft concluded that the president’s determination in detention matters “was fully discretionary and will not be reviewed by the federal courts.” Ashcroft made the stakes clear: If the prisoners in U.S. hands were considered prisoners of war, American law would “not accord American officials the same protection from legal consequences.” Thus it became doubly crucial to redefine them not as POWs but as “enemy combatants.”

To the Bush administration, words, it seemed, were everything. And if the laws, domestic and international, depended upon definitions, then the definitions of words would simply have to change across the board. So it was unavoidable that the first casualty in the president’s Global War on Terror, which also became his global war for immunity, would be language itself. The captives who arrived at Gitmo were not to be called prisoners, nor was the facility itself to be referred to as a prison; it was a “detention facility” and the inmates were “detainees” and “enemy combatants.” If other words were used — prison, prisoner, prisoner-of-war — then high officials and members of the Armed Forces would not, as Ashcroft explained, be immune from the law.

In the same vein, torture was to be banned from the premises (but only as a word); instead coercive techniques that for centuries plainly came under the rubric of torture were relabeled “counter-resistant coercive interrogation techniques.” The infamous “torture memo” of August 2002 drew narrow parameters around the definition of torture, which was now to be limited to “serious physical injury such as death.” Repeatedly, the memo asserted that other methods “do not amount to torture.” And it essentially turned the very definition of torture over to the torturer. Abetted here as elsewhere by the media, the Bush administration also successfully delegitimized the statements of the detainees themselves, consigning them to the trash heap of history — all of them were the accounts of well-drilled liars, false accusations inspired by al-Qaida training manuals.

And yet, even reclassifying words and redrawing the lines of the law did not sufficiently assuage their fears — and here’s where the hidden confessional element of all this crept into play. They were clearly hounded by what can only be called a kind of lurking institutional conscience, a sense that the acts already being committed in their name (or future ones) might someday be declared illegal under laws and agreements they were trying unilaterally to abrogate, resulting in prosecutions.

So, to ensure that their legal reasoning and linguistic demands would hold sway in the policy world, Bush administration officials found they had to go even further. They determined to find a way to control the environment of detention as completely as possible. First, of course, they chose an American base in Cuba to be the jewel in the crown of the detention system they were putting in place globally because it seemed to lie “in legal limbo” outside any international or domestic legal system. Second, “ghost prisons,” some in facilities borrowed from allies known to employ torture themselves, were established so that the techniques for extracting confessions, even though no longer defined as torture, could not be seen or known about. Third, just to be sure about things, the United States launched a campaign to free itself from any future international prosecution for war crimes under the auspices of the new International Criminal Court (ICC). In return for money and services, after cases of remarkable diplomatic arm twisting, 102 countries agreed, one by one, to an American demand for immunity from future ICC prosecution.

Then, the Bush administration charged ahead, convinced that it had addressed its legal liabilities and given itself that eternal hall pass. In truth, however, it had been confessing all along, laying out a remarkable record of tacit admission to criminal activity. The administration had, for example, informed the military commanders at Gitmo that they should consider themselves to be “guided by the Geneva Conventions but not bound by them.” At Guantánamo and Abu Ghraib, interrogation needs took precedence over matters of detention — and it was all on the official record.

The administration’s urge to claim immunity, which is, in essence, the confession of crimes about to be committed (or already committed), has not waned over the years. If anything, it has gotten stronger. Only recently, for instance, John Yoo, now a law professor at the University of California, Berkeley, insisted once again that extralegal measures were necessary in the war on terror. “Is a second [9/11] attack,” he wrote, “an acceptable price to pay for rejecting coercive interrogation?” He then suggested, among other ways of avoiding prosecution for such acts, a possibility that may loom ever larger before George W. Bush’s second term in office is over — the issuing of presidential pardons.

The president has weighed in aggressively on the issue as well, publicly embracing the idea of immunity. Twice, in his not-to-be-overlooked Sept. 6 speech on the existence of the CIA “program” for “high-value detainees,” the president insisted upon immunity for those involved in detention and interrogation. In this speech, in which he announced his intention to submit the Military Commissions Bill to Congress, he explained, “[S]ome believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act — simply for doing their jobs in a thorough and professional way. This,” he declared, “is unacceptable.” Moments later he reiterated his firm opposition to any such prosecutions. “I’m asking that Congress make it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue our personnel in courts — in U.S. courts. The men and women who protect us should not have to fear lawsuits filed by terrorists because they’re doing their jobs.”

What more could a prosecutor want than a trail of implicit confessions, consistent with one another, increasingly brazen over time, and leading right into the Oval Office? For five years now, the Bush administration has given itself an inviolable command: Declare immunity for what you have done, what you are doing, and what you are about to do. When the president’s Military Commission Bill did pass, its many astounding “reforms” actually codified immunity retroactively for a range of abuses against detainees.

To overlook the trail of confessions that is part and parcel of the administration’s torture narrative is to perform an act of extraordinary rendition not just on the truth but also on the importance of confessions themselves. Professional interrogators, priests, psychiatrists and others who deal with confession regularly say that people normally want to talk, that they want to tell you their story, that confession is a deep and satisfying part of all our lives.

In the case of the Bush administration, it is the documents themselves that seem to want to confess, that are bursting with the desire to talk, to tell the story of these last years of illegality. Americans, and the Congress they have just elected, should take heed. The time has come, after five years, to restore language, law, and accountability to the American ethos by insisting that declarations of immunity be seen for what they are: Confessions about actions that are both reviewable and unpardonable.

This article originally appeared on TomDispatch.com.