There is a lot of last-minute scrambling at Guantánamo in the waning days of the Bush administration. Some of it involves 17 prisoners of Uighur descent. The Uighurs are an ethnic Muslim minority who face persecution at home in the Xianjiang province of China. Although the Department of Defense concedes that these 17 men were never enemies of the United States, it continued to imprison them, holding them in cells 22 hours a day without any natural light, while the U.S. looked for somewhere to send them.

Then, last month, a judge ordered the government to release them into the U.S.

In preparation, a varied coalition of community groups, churches, and mosques helped to organize housing and support in Tampa, Fla. But the government appealed the order and the administration scrambled to find someone else to take them in. But, as the New York Times reported, the government’s efforts have been complicated by the fact that they continue to file documents in court claiming these 17 men are too much of a security risk to be released in the United States (even though it admits the United States has no basis to imprison them). As a result, other governments have balked at helping out. Either the government is being insincere in their diplomatic efforts, claiming these men pose no risk, or insincere in its representations to the courts. But the government can’t have it both ways.

In yet another jaw-dropping move, the Justice Department claimed in its latest filing last Thursday that these men are a risk to the United States because we made them that way. The DOJ filing argued that their prolonged captivity had made the men into a security risk. Yesterday, the Circuit Court delayed the release “pending further review of the court.”

Marty Lederman over at Balkinization does a great job of breaking down the government’s arguments and concludes that they have yet to proffer any evidence that these men pose a risk to the United States.

As the dissenting judge in the Circuit Court decision said, “the government can point to no evidence of dangerousness, and regarding such record as exists in this court the government has not pointed to evidence of such risk. Indeed such record as exists suggests the opposite.”

The continued imprisonment of men the government itself admits are innocent mocks the Constitution and America’s values. It highlights why Guantánamo has become a symbol of arbitrary and lawless behavior throughout the world.

In the course of the NSA spying saga that has unfolded over the past three years, the Bush administration has benefited from the tangling of plain language and the byzantine inner-workings of Executive branch bureaucracy to shield it from public outrage.

Unlike Watergate or even the Clinton impeachment, there are no burglars or stained dresses to hook the news story onto. Those very colorful details were often used to start a discussion about the underlying issues of importance (okay, maybe the dress was pretty much the whole focus of that story, but you get the idea.) It’s just harder to follow a story when it takes three paragraphs to explain that the Undersecretary of Agency X spoke to the Junior Assistant Solicitor Y who reported to the General Counsel of the Office of Confusing.

So you throw up your hands.

Our frustration is exactly what Dick Cheney is counting on. His staff used the same strategy to keep others in the Executive Branch and Congress clueless as well. On the hill, Cheney and his right-hand man David Addington developed a deliberate strategy of limiting information and making the connections obscure, so they could do whatever they wanted. (Read: illegally spy on Americans.)

According to former Bush Administration lawyer Jack Goldsmith, "They were geniuses at this…They could divide up all these problems in the bureaucracy, ask different people to decide things in their lanes, control the facts they gave them, and then put the answers together to get the result they want."

In 2004, with an election imminent and people in the government finally starting to talk to one another (because they were afraid of being called to testify in front of Congress) Addington apparently exploded at a meeting, shouting, “You are out...of...your...lane!"

The whole operation (creating a domestic spying program and calling it foreign, of lying to Congress about the illegal program and then getting them to legalize it anyway, of depleting civil liberties and getting the public to the look the other way) has been a cynical game of bad traffic cop led by the Vice President and supported by a small group of key advisors (remember these names for their future starring roles in a Congressional inquiry: David Addington & John Yoo.)

But despite the effort to weave a spider web of confusion around the whole thing, Bart Gellman and the Washington Post are doing their best to make sense of it. In the interest of clarity (sweet, sweet clarity) they have a convenient little timeline, an illustrated cast of characters, and one of the best political intrigue pieces in decades not to light up the 24-hour television news cycle. Why is that? Because it’s so complicated. Because they used language like “foreign surveillance” when, in fact, they meant foreign AND domestic surveillance. Get it? Well Gellman did write the book, I’ll let him explain:

That was one reason [NSA Chief Michael] Hayden hated when reporters referred to "domestic surveillance." He made his point with a folksy analogy: He had taken "literally hundreds of domestic flights," he said, and never "landed in Waziristan." That sounded good. But the surveillance statutes said a warrant was required if either end of the conversation was in U.S. territory. The American side of the program — the domestic surveillance — was its distinguishing feature.

It still seems like something this revealing about the last eight years of the presidency should be making a bigger impact on the current race to fill the office. Unfortunately, lipstick dominates the conversation, rather than the Constitution.

Okay so you may know that we sued the government last week (you know it never really gets old, suing the government) when President Bush signed the FISA Amendments Act into law. This was not a "compromise bill" or a "modernization" bill, which is how they tried to sell it. Instead Congress basically handed the President even more power to spy on Americans than he was using under the illegal warrantless wiretapping program. Super, right?

Totally classy in addition because as Sen. Arlen Specter (R-PA) pointed out, ""This may be a historical embarrassment . . .Everyone knows we don't know what the program did." Sans a thorough investigation, Congress decided to seek out a CYA strategy and, you know, abandon that old tricky-dicky document the CONSTITUTION.

Anyway, at the same time we were filing that lawsuit we also sent a motion to the Foreign Intelligence Surveillance Court.

Never heard of it?

That's because it's secret. Under the old FISA law, passed to keep the government from abusing its power, the FISC issued warrants for wiretaps and the like. But under the FAA, when the government is monitoring people abroad (even though they may be talking to or emailing with people in the United States) the FISA court is given only a peripheral role. Rather than specific warrants authorizing surveillance of particular people or places, the FISA court basically just approves the government's surveillance procedures. The NSA doesn't have to name the person they are spying on, or the place, or even the reason anymore. "Wait!" you say. "I thought this law was about terrorism! How come they don't have to be seeking out information on terror, they could be seeking information on . . . well anything?" you ask. We're wondering too.

So it is possible that when the FISC looks at whether the government's surveillance procedures they may decide the constitutionality of the FAA. If that happens, we want to make sure that the government isn't the only one there making arguments and that it doesn't happen in total secrecy. So we sent them a little note and asked them to make any arguments like that public and to let us argue why the law is unconstitutional. Typically, only the government gets to communicate with the secret FISC and the government is the only party that has ever argued before in front of them. So, in addition to being constitutionally necessary to keep open the judicial process, it'd be really neat if we got to go in front of them as well. A this-has-never-happened-before and where-are-we-when-secret-courts-are-more-open-than-the-law-making-process-in-this-country kind of a way.

Today the FISC court gave us a little nugget of hope. They told the government to reply to our request by July 29th. Then we'll reply to their reply. And then the court will issue a decision. And maybe (this is still just a big, hopeful, maybe) the court will let us argue why this law is wrong, wrong, wrong and, better yet, it may end up being a secret court (rather than Congress) that draws this unconstitutional spying out into the light and issues a public decision.

Huzaifa Parhat, well into his seventh year at Guantánamo, had a civilian judge review the evidence for his detention for the first time last week. The court ruled that the Pentagon's Combatant Status Review Tribunal (CSRT) declaration that Parhat was an unlawful enemy combatant is "invalid." They declared that Parhat must be released or given a new hearing.

Parhat is one of 17 ethnic Uighurs, a Muslim minority in China, who are currently being held at Guantánamo.

The decision came a little over a week after the Supreme Court ruled that Guantánamo detainees were subject to habeas proceedings and it was the first such decision to be issued.

Parhat was found to be an unlawful enemy combatant in a CSRT in which prisoners are not allowed lawyers, cannot see all the evidence against them, and cannot freely present their own evidence. CSRTs are weighted proceedings intended to reach a predestined conclusion. Such findings are "invalid" indeed.

While the decision still leaves Parhat's fate up in the air (China will not take him back and the story of seven Uighurs who were sent to Albania, where they don't know the language and are having trouble adjusting, has been well documented). But no matter what happens, it's heartening to know that a court moved so quickly after so many years of dragging their feet, to set at least one thing at Guantánamo right.

The swiftness of the court's finding that the military has improperly labeled a detainee as "enemy combatant" casts an even greater shadow over the Bush administration's detention policies. In case you thought the shadow couldn't get any darker, today 200 former cabinet members, military, and religious leaders issued a statement calling for an executive order to officially ban torture.

The group was comprised of dignitaries from every administration since the Vietnam War including former secretaries of state George Shultz, Madeleine Albright, and Warren Christopher alongside former secretaries of defense Harold Brown, William Perry and William Cohen, and former Sens. John Glenn and Gary Hart.

The statement reads:

"Though we come from a variety of backgrounds and walks of life, we agree that the use of torture and cruel, inhuman or degrading treatment against prisoners is immoral, unwise, and un-American. In our effort to secure ourselves, we have resorted to tactics which do not work, which endanger US personnel abroad, which discourage political, military, and intelligence cooperation from our allies, and which ultimately do not enhance our security. "Our President must lead us by our core principles. We must be better than our enemies, and our treatment of prisoners captured in the battle against terrorism must reflect our character and values as Americans."

And to top it off, they end with this little warning:

"All US personnel - whether soldiers or intelligence staff - deserve the certainty that they are implementing policy that complies fully with the law. Henceforth all US officials who authorize, implement, or fail in their duty to prevent the use of torture and ill-treatment of prisoners will be held accountable, regardless of rank or position."

Leadership AND accountability? These guys are making me feel all nostalgic for a time when at least American policy attempted to live up to American values.

(The full statement is available here.)