The Continued Case Of Bradley Manning

Charlie Savage at NYT:

The Army announced 22 additional charges on Wednesday against Pfc. Bradley Manning, the military intelligence analyst who is accused of leaking a trove of government files to WikiLeaks a year ago.

The new charges included “aiding the enemy”; wrongfully causing intelligence to be published on the Internet, knowing that it was accessible to the enemy; multiple counts of theft of public records, transmitting defense information and computer fraud. If he is convicted, Private Manning could be sentenced to life in prison.

“The new charges more accurately reflect the broad scope of the crimes that Private First Class Manning is accused of committing,” said Capt. John Haberland, an Army spokesman.

The charges provide new details about when prosecutors believe that Private Manning downloaded copies of particular files from a classified computer system in Iraq. For example, the charges say he copied a database of more than 250,000 diplomatic cables between March 28 and May 4, 2010.

Glenn Greenwald:

Most of the charges add little to the ones already filed, but the most serious new charge is for “aiding the enemy,” a capital offense under Article 104 of the Uniform Code of Military Justice. Although military prosecutors stated that they intend to seek life imprisonment rather than the death penalty for this alleged crime, the military tribunal is still empowered to sentence Manning to death if convicted.

Article 104 — which, like all provisions of the UCMJ, applies only to members of the military — is incredibly broad. Under 104(b) — almost certainly the provision to be applied — a person is guilty if he “gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly” (emphasis added), and, if convicted, “shall suffer death or such other punishment as a court-martial or military commission may direct.” The charge sheet filed by the Army is quite vague and neither indicates what specifically Manning did to violate this provision nor the identity of the “enemy” to whom he is alleged to have given intelligence. There are, as international law professor Kevin Jon Heller notes, only two possibilities, and both are disturbing in their own way.

In light of the implicit allegation that Manning transmitted this material to WikiLeaks, it is quite possible that WikiLeaks is the “enemy” referenced by Article 104, i.e., that the U.S. military now openly decrees (as opposed to secretly declaring) that the whistle-blowing group is an “enemy” of the U.S. More likely, the Army will contend that by transmitting classified documents to WikiLeaks for intended publication, Manning “indirectly” furnished those documents to Al Qaeda and the Taliban by enabling those groups to learn their contents. That would mean that it is a capital offense not only to furnish intelligence specifically and intentionally to actual enemies — the way that, say, Aldrich Ames and Robert Hanssen were convicted of passing intelligence to the Soviet Union — but also to act as a whistle-blower by leaking classified information to a newspaper with the intent that it be published to the world. Logically, if one can “aid the enemy” even by leaking to WikiLeaks, then one can also be guilty of this crime by leaking to The New York Times.

The dangers of such a theory are obvious. Indeed, even the military itself recognizes those dangers, as the Military Judges’ Handbook specifically requires that if this theory is used — that one has “aided the enemy” through “indirect” transmission via leaks to a newspaper — then it must be proven that the “communication was intended to reach the enemy.” None of the other ways of violating this provision contain an intent element; recognizing how extreme it is to prosecute someone for “aiding the enemy” who does nothing more than leak to a media outlet, this is the only means of violating Article 104 that imposes an intent requirement.

But does anyone actually believe that Manning’s intent was to ensure receipt of this material by the Taliban, as opposed to exposing for the public what he believed to be serious American wrongdoing and to trigger reforms?

Jazz Shaw:

The “aiding the enemy” charge should come as no surprise to anyone, and in fact we had predicted it would come down to treason last winter. Despite the poo-pooing and endless protestations of some of Manning’s most vocal and frequently comical defenders, there is one object lesson here which can not be repeated often enough: the U.S. Military has zero sense of humor when it comes to things like this.

Assuming for the moment that this winds up in a conviction – and the Army is certainly acting like they’re playing a pretty solid hand at this point – the situation only becomes more explosive and holds the potential to be a huge thorn in the side of the Obama administration for months or years to come. Aiding the enemy during a time of war is generally considered one of the surest paths to a firing squad for obvious reasons, but it will leave the President in a sticky position.

If the military decides to drag Manning out back and shoot him – a distinct possibility – a significant portion of Barack Obama’s base will be in an uproar. They tend to be opposed to the death penalty in general, for starters. But Manning has also become something of a folk hero on the Left, allegedly helping – albeit indirectly – Julian Assange to “stick it to the man” and expose the various perceived evils of the American government. Allowing him to be executed would be a huge black eye for Obama with his base.

But if he steps in and commutes the sentence – assuming there is a legal mechanism for him to do so – then he will be seen as undercutting his own military establishment and substituting his judgment for their established practices and discipline. (Not to mention earning the tag of “going soft on traitors,” always a sure winner in an election year.)

Of course, the Army could let Obama off the hook and simply send Manning to Leavenworth for the rest of his natural life, but that’s not a great option either in terms of the political optics. Manning’s cheerleaders are already complaining about the “horrific” conditions he’s being held under and it’s only going to get worse after his conviction. (He might even lose his cable TV, library and newspaper privileges and private exercise yard.)

If convicted on the Big Count, Manning will never, ever be able to be transferred into the general military prison population and will, in all likelihood, spend the rest of his life in solitary confinement. Of all the scoundrels in legal history, traitors are probably the most unpopular with the enlisted rank and file. Dumped into a large crowd, Manning’s safety would be virtually impossible to assure. And that would leave the President with a “folk hero” of the Left locked up under the same – or worse – conditions than he’s in now for the rest of his time in office. This would be a burr under Obama’s saddle which would never go away.

It’s been a long and winding road, but it looks like we may be coming to the end of it. The Army moves at their own pace, as they should, but if they’ve filed charges now they probably feel like their case is just about ripe for presentation. Look for a court martial date to be announced in the coming weeks or months.

Emptywheel at Firedoglake:

While we can’t be sure, I suspect the reference in Charge II, Specification 3 is to this information about the surveillance of Assange.

If I’m right about that, then it means the government is charging Manning with providing WikiLeaks with information about the surveillance being conducted, in real time, on WikiLeaks. And it would make it easy to prove both that “the enemy” got the information and that Manning intended the “enemy” to get it.

So if the government maintains that, by virtue of being an intelligence target, WikLeaks qualifies as an “enemy,” then they can also argue that Manning intentionally gave WikiLeaks information about how the government was targeting the organization. Which would make their aiding the enemy charge easy to prove.

But I also think that opens up the government to charges that it is criminalizing democracy.

As I noted above, the government’s own report on WikiLeaks describes its purpose to be increasing the accountability of democratic or corrupt governments. The government, by its own acknowledgment, knows that WikiLeaks’ intent is to support democracy. Furthermore, while the intelligence report reviews the debate about whether WikiLeaks constitutes protected free speech or criminal behavior (without taking a side in that debate), in a discussion of WikiLeaks’ efforts to verify an NGIC report on the battle of Fallujah, the report acknowledges that WikiLeaks did the kind of thing journalists do.

Wikileaks.org and some other news organizations did attempt to contact the NGIC personnel by e-mail or telephone to verify the information.

[snip]

Given the high visibility and publicity associated with publishing this classified report by Wikileaks.org, however, attempts to verify the information were prudent and show journalist responsibility to the newsworthiness or fair use of the classified document if they are investigated or challenged in court.

So while the military, according to its own report, describes WikiLeaks as a threat to the armed forces, it also acknowledges that WikiLeaks has behaved, at times, as a journalistic organization.

Mind you, all of this is simply a wildarsed guess about what the government may mean with its invocation of the “enemy.” But if I’m right, it would mean the government was threatening Manning with life in prison because he leaked information about the government’s surveillance of what it admits is an entity that engages in journalistic behavior.

Doug Mataconis:

Personally, though, I don’t think it would be that difficult a position for the President. The number of people complaining about Manning’s treatment can basically be whittled down to the Glenn Greenwald segment of the President’s progressive base, and many of them don’t seem to understand that Manning’s rights as a military prisoner being prosecuted under the Uniform Code Of Military Justice are distinctly different from the rights he would be entitled to as a civilian defendant in a civilian court. Additionally, many of them don’t seem to think that he did anything wrong even if the charges against him are true. I dare to say that they do not represent a majority of the Democratic Party, and certainly not a majority of the country. If Bradley Manning is convicted of aiding the enemy, then I doubt many Americans are going to care what happens to him.

There’s one fact buried in the new charges that I’ve only seen reported in the MSNBC story on them, though:

Pentagon and military officials also report that investigators have made no direct link between Manning and WikiLeaks founder Julian Assange.

This has been the case for months, despite digging by federal investigators in all directions, and it makes the probability that any charges will ever be sustained against Wikileaks, Julian Assange, or any related individuals, seem very remote indeed.

Jane Hamsher at Firedoglake:

Bradley Manning’s attorney, David Coombs, writes about the true reason Bradley Manning is being stripped each night and forced to report naked each morning in the same way prisoners were tortured at Abu Graib:

On Wednesday March 2, 2011, PFC Manning was told that his Article 138 complaint requesting that he be removed from Maximum custody and Prevention of Injury (POI) Watch had been denied by the Quantico commander, Colonel Daniel J. Choike.  Understandably frustrated by this decision after enduring over seven months of unduly harsh confinement conditions, PFC Manning inquired of the Brig operations officer what he needed to do in order to be downgraded from Maximum custody and POI.  As even Pentagon Press Secretary Geoff Morrell has stated, PFC Manning has been nothing short of “exemplary” as a detainee.  Additionally, Brig forensic psychiatrists have consistently maintained that there is no mental health justification for the POI Watch imposed on PFC Manning.  In response to PFC Manning’s question, he was told that there was nothing he could do to downgrade his detainee status and that the Brig simply considered him a risk of self-harm.  PFC Manning then remarked that the POI restrictions were “absurd” and sarcastically stated that if he wanted to harm himself, he could conceivably do so with the elastic waistband of his underwear or with his flip-flops.

Without consulting any Brig mental health provider, Chief Warrant Officer Denise Barnes used PFC’s Manning’s sarcastic quip as justification to increase the restrictions imposed upon him under the guise of being concerned that PFC Manning was a suicide risk.  PFC Manning was not, however, placed under the designation of Suicide Risk Watch.  This is because Suicide Risk Watch would have required a Brig mental health provider’s recommendation, which the Brig commander did not have.  In response to this specific incident, the Brig psychiatrist assessed PFC Manning as “low risk and requiring only routine outpatient followup [with] no need for … closer clinical observation.”  In particular, he indicated that PFC Manning’s statement about the waist band of his underwear was in no way prompted by “a psychiatric condition.”

While the commander needed the Brig psychiatrist’s recommendation to place PFC Manning on Suicide Risk Watch, no such recommendation was needed in order to increase his restrictions under POI Watch.  The conditions of POI Watch require only psychiatric input, but ultimately remain the decision of the commander.

Given these circumstances, the decision to strip PFC Manning of his clothing every night for an indefinite period of time is clearly punitive in nature.  There is no mental health justification for the decision. There is no basis in logic for this decision.  PFC Manning is under 24 hour surveillance, with guards never being more than a few feet away from his cell.  PFC Manning is permitted to have his underwear and clothing during the day, with no apparent concern that he will harm himself during this time period.  Moreover, if Brig officials were genuinely concerned about PFC Manning using either his underwear or flip-flops to harm himself (despite the recommendation of the Brig’s psychiatrist) they could undoubtedly provide him with clothing that would not, in their view, present a risk of self-harm.  Indeed, Brig officials have provided him other items such as tear-resistant blankets and a mattress with a built-in pillow due to their purported concerns.

This is just vile.  The former brig commander, James Averhart, violated military rules by putting Manning on suicide watch as punishment, and was subsequently replaced by Denise Barnes.  Now she’s stripping him naked to punish him for a sarcastic quip. Who is she, Nurse Ratched? Abusing someone’s mental health classification in order to subject them to torture “for their own good” is sick and sadistic, reminiscent of Soviet gulags.

Maybe she wants to become his “god.”

Alana Goodman at Commentary:

First, Lt. Brian Villiard, a Marine spokesman, confirmed that Manning’s clothes were taken from him, though he didn’t give many details of the incident, except to say that it wasn’t done for punitive reasons.

“It would be inappropriate for me to explain it,” Villiard told the New York Times. “I can confirm that it did happen, but I can’t explain it to you without violating the detainee’s privacy.”

This isn’t the first time that Manning’s lawyer has asserted that the private suffered abuse in prison, and it likely won’t be the last. It’s typical of attorneys to claim that their clients are mistreated in prison, and in a case like Manning’s, these types of allegations will be eaten up by his supporters.

But based on Villiard’s statement, and the timeline of the incident, it sounds like Manning’s clothes may have been taken from him owing to suicide concerns. The Army private was previously put on suicide watch in prison. His reaction to the new charges against him could have military officials apprehensive about his mental state.

Doug Mataconis:

As Glenn Greenwald notes, there really only seems to be one purpose behind what Manning is being subjected to:

Let’s review Manning’s detention over the last nine straight months: 23-hour/day solitary confinement; barred even from exercising in his cell; one hour total outside his cell per day where he’s allowed to walk around in circles in a room alone while shackled, and is returned to his cell the minute he stops walking; forced to respond to guards’ inquiries literally every 5 minutes, all day, everyday; and awakened at night each time he is curled up in the corner of his bed or otherwise outside the guards’ full view.  Is there anyone who doubts that these measures — and especially this prolonged forced nudity — are punitive and designed to further erode his mental health, physical health and will?  As The Guardian reported last year, forced nudity is almost certainly a breach of the Geneva Conventions; the Conventions do not technically apply to Manning, as he is not a prisoner of war, but they certainly establish the minimal protections to which all detainees — let alone citizens convicted of nothing — are entitled.

Moreover, Greenwald points out, correctly I think, the media seems to be giving the Obama Administration a pass here:

I’ll say this again:  just fathom the contrived, shrieking uproar from opportunistic Democratic politicians and their loyalists if it had been George Bush and Dick Cheney — on U.S. soil — subjecting a whistle-blowing member of the U.S. military to these repressive conditions without being convicted of anything, charging him with a capital offense that statutorily carries the death penalty, and then forcing him to remain nude every night and stand naked for inspection outside his cell.  Feigning concern over detainee abuse for partisan gain is only slightly less repellent than the treatment to which Manning is being subjected.

Indeed. It’s understandable, to be honest, why the right wouldn’t care all that much about how Private Manning is being treated. If this were happening under a Republican, though, the left would be united in outrage. Now, their silence is telling

Make no mistake about it. I do not consider Bradley Manning a hero in any sense of the word. Even if it were the case that much of the material that Manning stole from military computers should not have been classified, or really wasn’t all that important (and much of it wasn’t in the end), that isn’t a decision that a Private in the Army has a right to make. If the charges against him are true, he violated orders, accessed systems he had no right to access, and stole information that he had no right to take off base. If he’s convicted of these charges, he deserves to be punished to the fullest extent of the law. While he’s awaiting trial, though, and even after he’s convicted, he still must be treated humanely and, at present, Manning is receiving worse treatment than a Prisoner Of War would, and the only purpose behind it seems to be to break him psychologically. That’s simply unacceptable.

Jazz Shaw:

But can this treatment really be justified? There are two points to address on this front.

First and most simply put, Manning made the comment about being able to kill himself with his underwear, sarcastic or not. Can you imagine what would be said if the brig commander did nothing and then he actually did turn up dead in his cell by his own waistband? It would be a movable feast for the media and several careers would come to an abrupt end. How does the commander ignore something like that?

The second point is a bit more complicated and far less clear, and one that we’ve touched on here in the past. It boils down to some of the fundamental differences between civilian society and the military community. Just as civilians, used to all their freedoms of free speech, etc. don’t understand the restrictions on military personnel, those familiar with the civilian justice system are frequently shocked by many of the “unofficial” aspects of the U.C.M.J. Lots of things like this go on all the time in the military, or at least they used to back in the day. But normally you don’t have the civilian press watching and reporting on it.

Does that make it right? I leave that to the judgment of the reader.

Also, life in the military in general is just a bit more physical and harsh than in the civilian world. A lot of things happen which would probably shock many of you who have never served. In the Navy, for example, there is an old tradition of an initiation rite of passage the first time a sailor crosses the equator on a war ship. It is the time when you graduate from being a “pollywog” (or just “wog” for short) to being a “shellback.” Trust me, it’s an ordeal, usually lasting 24 hours or more.

The third time I made the passage, two enlisted men wound up in sick bay with broken arms. Everyone got to experience the joys of crawling through plastic chutes filled with garbage, rotting food and bilge water, all the while being “herded” by shellbacks wielding foot long lengths of fire hose, loving called, “shillelaghs.” (During my own initiation it took more than a week before the bruises finally faded.) And this is all for your friends who have done nothing wrong.

I’ll leave it for one of the veteran submarine sailors to tell you about the grand old tradition of having your dolphins “tacked on” if they wish to do so in comments.

So I suppose our final question is, does any of this make it acceptable for Manning to be treated in this fashion, either to cover the brig commander’s butt or for the sake of teaching a lesson to somebody mouthing off to their superiors? I really don’t know. Maybe we do need to shine a light on this and review military procedures, both official and “under the covers.” But I do know that life in the military community is a lot different than in the civilian world, and having lived it for a number of years myself, this story honestly didn’t shock me at all.

Andrew Sullivan:

There is only one word to describe the treatment of this model prisoner: sadism. Glenn Greenwald has been following the case closely and has two disturbing must-reads here and here. We all hoped that under Obama, brutal treatment of military prisoners and lies about it would end. In this case, they haven’t.

Megan McArdle:

I understand that Bradley Manning has probably done something very wrong, for which, if guilty, he deserves a hefty jail sentence and the contempt of his fellow citizens.  But this is not what a decent country does to its citizens.

Memoirs Happen, Writing Is Messy

Caitlin Dickson at The Atlantic with the round-up:

Donald Rumsfeld’s memoir, “Known and Unknown,” isn’t set to be released until next week, but several news sites have obtained early copies. Previews of the book give insight into Rumsfeld’s negative opinion of several of his colleagues, his regrets or lack there of from his years as defense secretary, as well has personal struggles within his own family.

Thom Shanker and Charlie Savage at NYT:

Just 15 days after the terrorist attacks of Sept. 11, 2001, President George W. Bush invited his defense secretary, Donald H. Rumsfeld, to meet with him alone in the Oval Office. According to Mr. Rumsfeld’s new memoir, the president leaned back in his leather chair and ordered a review and revision of war plans — but not for Afghanistan, where the Qaeda attacks on New York and Washington had been planned and where American retaliation was imminent.

“He asked that I take a look at the shape of our military plans on Iraq,” Mr. Rumsfeld writes.

“Two weeks after the worst terrorist attack in our nation’s history, those of us in the Department of Defense were fully occupied,” Mr. Rumsfeld recalls. But the president insisted on new military plans for Iraq, Mr. Rumsfeld writes. “He wanted the options to be ‘creative.’ ”

When the option of attacking Iraq in post-9/11 military action was raised first during a Camp David meeting on Sept. 15, 2001, Mr. Bush said Afghanistan would be the target. But Mr. Rumsfeld’s recollection in the memoir, “Known and Unknown,” to be published Tuesday, shows that even then Mr. Bush was focused as well on Iraq. A copy was obtained Wednesday by The New York Times.

Bradley Graham at WaPo:

But Rumsfeld still can’t resist – in a memoir due out next week – taking a few pops at former secretaries of state Colin L. Powell and Condoleezza Rice as well as at some lawmakers and journalists. He goes so far as to depict former president George W. Bush as presiding over a national security process that was marked by incoherent decision-making and policy drift, most damagingly on the war in Iraq.

Much of Rumsfeld’s retrospective reinforces earlier accounts of a dysfunctional National Security Council riven by tensions between the Pentagon and State Department, which many critics outside and within the Bush administration have blamed on him. Speaking out for the first time since his departure from office four years ago, the former Pentagon leader offers a vigorous explanation of his own thoughts and actions and is making available on his Web site (www.rumsfeld.com) many previously classified or private documents.

Sounding characteristically tough and defiant in the 800-page autobiography “Known and Unknown,” Rumsfeld remains largely unapologetic about his overall handling of the Iraq conflict and concludes that the war has been worth the costs. Had the government of Saddam Hussein remained in power, he says, the Middle East would be “far more perilous than it is today.”

Addressing charges that he failed to provide enough troops for the war, he allows that, “In retrospect, there may have been times when more troops could have helped.” But he insists that if senior military officers had reservations about the size of the invading force, they never informed him. And as the conflict wore on, he says, U.S. commanders, even when pressed repeatedly for their views, did not ask him for more troops or disagree with the strategy.

Much of his explanation of what went wrong in the crucial first year of the occupation of Iraq stems from a prewar failure to decide how to manage the postwar political transition. Two differing approaches were debated in the run-up to the war: a Pentagon view that power should be handed over quickly to an interim Iraqi authority containing a number of Iraqi exiles, and a State Department view favoring a slower transition that would allow new leaders to emerge from within the country.

Dan Amira at New York Magazine:

Shortly after the Abu Ghraib scandal broke in 2004, Secretary of Defense Donald Rumsfeld offered President George W. Bush his resignation. Bush refused. Five days later, just so there was no confusion, Rumsfeld offered again, and once again, Bush refused. It was another two and a half years until Rumsfeld was finally canned. But in his upcoming 800-page memoir, Known and Unknown, Rumsfeld writes that he really wishes Bush had just let him go earlier.

Howard Kurtz at Daily Beast:

One of the few personal anecdotes in the 815-page volume takes place more than 12 hours after hijacked planes struck not only the World Trade Center but the Pentagon, filling his office with heavy smoke and forcing him to evacuate with other employees, some of them wounded. His spokeswoman, Torie Clarke, asked if he had called his wife of 47 years, Joyce. Rumsfeld replied that he had not.

“You son of a bitch,” Clarke said with a hard stare.

“She had a point,” Rumsfeld writes.

Matt Lewis:

But so far, the most interesting response has come from Senator John McCain.

As George Stephanopolous reported,

“I respect Secretary Rumsfeld. He and I had a very, very strong difference of opinion about the strategy that he was employing in Iraq which I predicted was doomed to failure,” the Arizona Republican said on “GMA.”

McCain and Rumsfeld had clashed over troop levels.

“And thank God he was relieved of his duties and we put the surge in otherwise we would have had a disastrous defeat in Iraq,” McCain told me.

Jen Dimascio and Jennifer Epstein at Politico

Alex Pareene at Salon:

Rumsfeld is also going to release a website full of “primary documents” that he thinks will prove his point. It will be like the WikiLeaks, only instead of pulling back the curtain and exposing American diplomatic and military secrets, they will probably just be a bunch of memos about how much Rumsfeld was “concerned” about the security situation in post-invasion Baghdad. Also I bet there will be a document that says “I promise Donald Rumsfeld had no idea that we were torturing and killing prisoners, signed, everyone at Abu Ghraib.”

Speaking of! Rumsfeld says Bill Clinton called him once and said: “No one with an ounce of sense thinks you had any way in the world to know about the abuse taking place that night in Iraq.” Yes, well, the people with ounces of sense are completely wrong.

Rumsfeld also apparently devotes a lot of space to rewaging various long-forgotten bureaucratic disputes. There is something about George H. W. Bush, whom he clearly hates. Rumsfeld also wants everyone to know that former Vice President Nelson Rockefeller was “bullying” and an “imperial vice president,” which is hilarious for many reasons, including Rumsfeld’s closeness to Dick Cheney and the fact that as Gerald Ford’s chief of staff, Rumsfeld basically blocked Rockefeller from doing anything.

Now let’s enjoy the attempted rehabilitation of Rumsfeld in the press, where his awfulness has probably been entirely forgotten.

Wonkette:

Rummy says Defense was preparing for offense on Afghanistan at the time, but Bush asked him to be “creative.” Creative! Perhaps the military could stage a production of Grease for the people of Iraq before taking a bow and dropping a bomb on them?

The book mixes the policy and the personal; at the end of the same Oval Office session in which Mr. Bush asked for an Iraq war plan, Mr. Rumsfeld recounts, the president asked about Mr. Rumsfeld’s son, Nick, who struggled with drug addiction, had relapsed and just days before had entered a rehabilitation center. The president, who has written of his own battles to overcome a drinking problem, said that he was praying for Mr. Rumsfeld, his wife, Joyce, and all their children.

“What had happened to Nick — coupled with the wounds to our country and the Pentagon — all started to hit me,” Mr. Rumsfeld writes. “At that moment, I couldn’t speak. And I was unable to hold back the emotions that until then I had shared only with Joyce.”

Ah, there you have it. Rumsfeld could have said, “What the fuck are you talking about going to war with Iraq for? Our country was just attacked by a foreign terrorist organization we need to go try to destroy. Iraq has nothing to do with this. Aren’t you more concerned with winning this war we haven’t even begun yet?” But instead, his son had done some drugs. Sure thing, Rumsfeld. Perfectly good excuse. You should drop some leaflets on the families of people, American and Iraqi, whose children have died in that war. “Sorry, my son was doing drugs. I was emotional at the time. Not my fault.”

So here you have it: There’s finally someone to blame the entire Iraq War on: Nick Rumsfeld. HOPE YOU LIKED THOSE DRUGS, ASSHOLE!

Wave The Wand Or Wave The White Flag

Charlie Savage at the NYT:

Stymied by political opposition and focused on competing priorities, the Obama administration has sidelined efforts to close the Guantánamo prison, making it unlikely that President Obama will fulfill his promise to close it before his term ends in 2013.

When the White House acknowledged last year that it would miss Mr. Obama’s initial January 2010 deadline for shutting the prison, it also declared that the detainees would eventually be moved to one in Illinois. But impediments to that plan have mounted in Congress, and the administration is doing little to overcome them.

“There is a lot of inertia” against closing the prison, “and the administration is not putting a lot of energy behind their position that I can see,” said Senator Carl Levin, the Michigan Democrat who is chairman of the Senate Armed Services Committee and supports the Illinois plan. He added that “the odds are that it will still be open” by the next presidential inauguration.

And Senator Lindsey Graham, a South Carolina Republican who also supports shutting it, said the effort is “on life support and it’s unlikely to close any time soon.” He attributed the collapse to some fellow Republicans’ “demagoguery” and the administration’s poor planning and decision-making “paralysis.”

The White House insists it is still determined to shutter the prison. The administration argues that Guantánamo is a symbol in the Muslim world of past detainee abuses, citing military views that its continued operation helps terrorists.

The Daily Caller:

Polls suggest that the majority of Americans want Guantanamo Bay to remain open in the wake of the attempted terrorists attacks on Times Square and a Detroit-bound airliner. Congress, according to the White House, hasn’t moved quickly on its plan to move detainees to an Illinois prison. And Attorney General Eric Holder’s initial decision to hold the trial for alleged 9/11 conspirator Khalid Sheik Mohammed in New York even upset top White House adviser Rahm Emanuel, who argued that such a trial would alienate Republicans and prevent the closure of Guantanamo Bay.

Confronted with these problems — as well as the McCrystal flap, worsening economic numbers, and the ongoing Gulf Coast oil spill — the White House may have decided to simply punt on Guantanamo after all. Top officials told The New York Times that the president’s ‘magic wand’ was incapable of providing the administration any other alternative.

Ed Morrissey:

The “wave a wand” gripe should elicit loud peals of laughter from both sides of the aisle.  Barack Obama’s critics on his Gitmo position made that very same point repeatedly, both before the 2008 presidential election and after Obama made his order to close Gitmo his first official act as President.  Any such move required the President to find a different and yet still suitable detention facility, one where foreign terrorists captured by military and intelligence personnel would have separate adjudication from Americans in normal criminal courts, and one which could be secured properly for its purpose.  It would then have to contemplate the costs and benefits of such a move when in the end the detainees would end up using the very same processes they currently have for adjudication.

If Congress has dragged its feet, it’s only because no one can really explain how closing Gitmo while retaining the military commissions systems justifies the costs and the risks.  The issue the Left has with Gitmo isn’t its geographical location, after all.  When Obama committed to using the military commissions system to process the rest of the detainees in Gitmo, he himself mooted the necessity of closing it.  And for good reason — the use of criminal courts to try foreign terrorists in military or intel contexts would either result in botched prosecutions, or in changing the rules that protect American residents against undue prosecutorial power in criminal court.

The only one waving a wand on Gitmo was Obama himself.  And now he hopes to wave another wand in a Friday night news dump to keep his Left from erupting in outrage over Obama’s white flag on Gitmo.  Best of luck with that, Mr. President.

Glenn Greenwald:

So that appears to be a consensus:  Guantanamo — the closing of which was one of Obama’s central campaign promises — will still be open as of 2013, by which point many of the detainees will have been imprisoned for more than a decade without charges of any kind and without any real prospect for either due process or release, at least four of those years under a President who was elected on a commitment to close that camp and restore the rule of law.

None of this is news to anyone even casually watching what’s been going on, but there are several aspects of this article which are so noteworthy for illustrating how this administration works.  Let’s begin with this:  Obama officials — cowardly hiding behind anonymity as usual — raise the typical excuse which they and their defenders perpetually invoke for their “failures” to fulfill their campaign positions:  it’s all Congress’ fault (“They blame Congress for failing to execute that endgame,” Savage writes).  It’s true that Congress has enacted measures to impede the closing of Guantanamo, and threatened to enact others, but the Obama administration’s plan was never so much to close Guantanamo as to simply re-locate it to Thompson, Illinois (GTMO North), in the process retaining one of its key, defining features — indefinite, due-process-free detention — that made it such a menace in the first place (that’s the attribute that led Candidate Obama to scorn it as a “legal black hole”).

The only meaningful way to “close Guantanamo” is to release the scores of detainees whom the administration knows are innocent and then try the rest in a real court (as Pakistan just did with Americans they accused of Terrorism).  Imprisoning only those people whom you convict of crimes is a terribly radical, purist, Far Leftist concept, I know — the Fifth Amendment is so very un-Pragmatic and pre-9/11 — and that is something the administration therefore refused from the start even to consider.

Tom Maguire:

Let’s stagger down memory lane to Day Three of Hope and Change:

President Obama is expected to sign executive orders Thursday directing the Central Intelligence Agency to shut what remains of its network of secret prisons and ordering the closing of the Guantánamo detention camp within a year, government officials said.

Gitmo was a deplorable symbol of this and that, until actually resolving the situation became too complicated.  Anyway, it’s the thought that counts:

In any case, one senior official said, even if the administration concludes that it will never close the prison, it cannot acknowledge that because it would revive Guantánamo as America’s image in the Muslim world.

“Guantánamo is a negative symbol, but it is much diminished because we are seen as trying to close it,” the official said. “Closing Guantánamo is good, but fighting to close Guantánamo is O.K. Admitting you failed would be the worst.”

Move on.

James Joyner:

The bottom line is that this is just very hard. It’s debatable as to whether the Bush Administration should ever have transferred jihadists and alleged jihadists from Afghanistan to Gitmo. But, once they did, reversing it became very difficult.

On The First Day Of Kagan Hearings, My True Love Gave To Me…

Marc Ambinder at The Atlantic:

KAGAN: Supreme Court confirmation hearings begin for Elena Kagan. They are expected to be the opposite of nasty and brutish, and with the former senior senator from Delaware now occupying his time elsewhere, they will be short. (That is, of course, a kind-hearted jab.) Kagan’s active participation in Clinton-era policy debates and the controversy over Harvard’s military recruitment policy will no doubt be flashpoints, but they’ll be of little consequence. Kagan’s confirmation is virtually assured.

Charlie Savage at NYT:

Solicitor General Elena Kagan pledged on Monday that if the Senate confirms her nomination to the Supreme Court, she will adopt a “modest” stance toward her power and will be “properly deferential” to the policy decisions of Congress and the president, according to excerpts from her prepared opening statement released by the White House.

On the first day of her confirmation hearings before the Senate Judiciary Committee, Ms. Kagan referred to the years she spent in the other branches of government — including four years in the White House during the Clinton administration — to reassure lawmakers she would not trample on the role of elected political leaders.

The democratic process “is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests,” she said. “The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people.”

Jay Newton-Small at Swampland at Time:

Day 1 is done in Solicitor General Elena Kagan’s hearings to become the 112^th Supreme Court justice. Thus far there has been relatively little about Kagan herself. In between memorials for Senator Bobby Byrd and Sandra Day O’Connor’s husband, Republicans griped that no matter what Kagan says, they don’t think they’ll be able to trust her responses given their experience with Sonia Sotomayor last year. Sotomayor’s answers, Senator Jeff Sessions, the ranking Republican on the Judiciary Committee, were bland and reassuring. “And now she’s demonstrated herself to be one of the most liberal activist justices on the court,” Sessions told reporters during a break in Monday’s proceedings. Kagan, he asserted, would do the same no matter what questions they pose of her.

John McCormack at The Weekly Standard:

“As Kagan confirmation hearings begin, Republicans struggle for line of attack.”  That’s the headline of today’s Washington Post front-page report by Anne Kornblut and Paul Kane on the Elena Kagan hearings. Isn’t it strange how a story by objective Washington Post reporters mirrors the opinion of the Democratic president?

The analysis that the news cycle has crowded out stories on Kagan is fair enough, but the reporters go out of their way to dismiss Republican criticism of Kagan. If you doubt that this story, which neatly frames hapless Republicans versus a near-perfect nominee, is biased, consider this: Kagan’s discrimination against military recruiters at Harvard is never once explicitly mentioned. Kornblut and Kane merely allude to the discrimination: “Republicans have tried to make an issue of her years as law dean at Harvard.” You see, whatever it is that Kagan did at Harvard is not really an issue–Republicans are simply trying to “make an issue” out of nothing.

Never mind that liberal writer Peter Beinart called Kagan’s discrimination against the military her “Achilles heel” and wrote: “Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.” And never mind that Jeff Sessions, ranking Republican on the judiciary committee, laid out the case against Kagan last week, arguing that it was hypocritical of Kagan to discriminate against the military while keeping quiet about the Saudi gifts Harvard was receiving.

Michelle Malkin:

Places, places everyone.

Today, the curtain officially opens on the Senate “battle” over Obama Supreme Court nominee Elena Kagan. “Battle” gets ghost quotes because all the poohbahs on Capitol Hill are already treating her confirmation as a “foregone conclusion.”

Beltway Republicans will put up just enough of a fight to placate grass-roots conservative activists on Kagan’s radical social views, while the nutroots will pout (but not too loudly) that Kagan isn’t enough of a liberal activist for them. And GOP Sen. Lindsay Graham, after several minutes of obligatory grandstanding mixed with obsequious suck-uppage, will cast his vote with Kagan and Obama — as he did with Sonia Sotomayor (whom he praised as “bold” and edgy”).

Erick Erickson at Redstate:

Internal Senate emails confirmed by NRA Board Members are highlighting just how far the National Rifle Association has fallen.

The organization recently collaborated with the left to obtain a carve out of the DISCLOSE Act, legislation designed to silence bloggers and outside interest groups like tea party activists. This was a first amendment issue and the NRA gladly took a position and campaigned for its members to take a position on the DISCLOSE Act.

One of the NRA’s chief arguments was that it needed the carve out to be effective in its advocacy of Second Amendment issues. But here’s the problem: these internal Senate emails confirmed by NRA Board Members show that the National Rifle Association’s management team has explicitly and directly told the NRA’s board they are prohibited from testifying about second amendment issues during the Elena Kagan confirmation hearings.

That’s right: the foremost gun rights lobby in the nation is prohibiting its board from testifying in the Elena Kagan confirmation hearings about the second amendment.

The NRA did issue a statement on Friday after the internal Senate email began leaking out informing people of the gag order. The statement noted Kagan’s problematic record on guns, but that’s just smoke and mirrors. Don’t believe them when they say they are working with Senators to investigate her record. If they were really working with Senators, they would have accepted an invitation to testify on the Kagan nomination when they were invited. The gag order on board members is not limited to providing testimony, but it prohibits board members from coming out against Kagan in their individual capacity.

Memento Mori, Moratorium

Charlie Savage at the NYT:

A federal judge in New Orleans on Tuesday blocked a six-month moratorium on deep-water drilling projects that the Obama administration had imposed in response to the vast oil spill in the Gulf of Mexico.

The White House swiftly said the administration would appeal the decision.

In a 22-page ruling, Judge Martin L. C. Feldman of Federal District Court issued a preliminary injunction against the enforcement of a May 28 order halting all floating offshore drilling projects in more than 500 feet of water and preventing the government from issuing new permits for such projects.

Citing the economic harm to businesses and workers in the gulf caused by the moratorium, Judge Feldman — a 1983 appointee of President Ronald Reagan — wrote that the Obama administration had failed to justify the need for the sweeping suspension, which he characterized as “generic, indeed punitive.”

He wrote that “the blanket moratorium, with no parameters, seems to assume that because one rig failed and although no one yet fully knows why, all companies and rigs drilling new wells over 500 feet also universally present an imminent danger.”

Roger Pilon at Cato:

A quick review of Judge Feldman’s 22-page opinion indicates that the injunction was granted, under the Administrative Procedures Act, because the plaintiffs “would likely succeed in showing that the [Interior Department’s] decision was arbitrary and capricious. An invalid agency decision to suspend drilling of wells in depths of over 500 feet simply cannot justify the immeasurable effect on the plaintiffs, the local economy, the Gulf region, and the critical present-day aspect of the availability of domestic energy in this country.”

Judge Feldman took particular note of the Interior secretary’s May 27 Report, from which its moratorium order followed: “Much to the government’s discomfort and this Court’s uneasiness, the Summary also states that ‘the recommendations contained in this report have been peer-reviewed by seven experts identified by the National Academy of Engineering.’” As has been widely reported, those “experts” never signed off on any such moratorium.

As the court went on to say, “After reviewing the Secretary’s Report, the Moratorium Memorandum, and the Notice to Lessees, the Court is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium. …[T]he blanket moratorium, with no parameters, seems to assume that because one rig failed and although no one yet fully knows why, all companies and rigs drilling new wells over 500 feet also universally present an imminent danger.”

Needless to say, the Obama administration is filing an immediate appeal. But for now, its sweeping moratorium is on hold.

Kate Sheppard at Mother Jones:

A federal judge in New Orleans on Tuesday sided with the oil industry, striking down the temporary moratorium on new offshore exploration and deepwater drilling the Obama administration imposed last month. That judge, it turns out, has in recent years had interests in Transocean—the world’s largest offshore drilling company and the owner of the Deepwater Horizon rig—as well as other energy companies engaged in offshore oil extraction.

According to the most recently available financial disclosure form for District Court Judge Martin Feldman, he had holdings of up to $15,000 in Transocean in 2008. He has also recently owned stock in offshore drilling or oilfield service providers Halliburton, Prospect Energy, Hercules Offshore, Parker Drilling Co., and ATP Oil & Gas. Feldman was appointed by President Ronald Reagan in 1983.

Obama’s six-month moratorium put the brakes on the approval of new permits for deepwater drilling and suspended work at 33 exploratory wells in the Gulf. A group of oil and gas companies, with the support of the state of Louisiana, asked the court to throw out the moratorium so they can continue drilling. Feldman heard two hours of arguments Monday on whether grant an injunction to lift the moratorium before rendering his decision today. Describing the moratorium as “arbitrary and capricous,” Feldman wrote in his opinion: “If some drilling equipment parts are flawed, is it rational to say all are? Are all airplanes a danger because one was? All oil tankers like Exxon Valdez? All trains? All mines? That sort of thinking seems heavy-handed, and rather overbearing.”

Steve Benen:

It hardly inspires confidence. Indeed, Ian Millhiser recently explained, “Industry ties among federal judges are so widespread that they are beginning to endanger the courts’ ability to conduct routine business. Last month, so many members of the right-wing Fifth Circuit were forced to recuse themselves from an appeal against various energy and chemical companies that there weren’t enough untainted judges left to allow the court to hear the case.”

Mark Kleiman:

This ruling is potentially a Godsend to the Obama Administration on a level with Joe Barton’s “apology.” Any opportunity to act aggressively against oil spills ought to be gratefully grasped.

Every one of those deep-water permits was issued in response to an application that included a plan for dealing with a blow-out. The BP fiasco demonstrated that those plans weren’t worth the paper they were printed on, even before the oil execs admitted they’d just Xeroxed them all from the same worthless source. (Listing a biologist who’s been dead for several years as a key resource was sort of a give-away.)

So if the permits can be revoked en bloc, why not revoke them one-by-one? It’s certainly not arbitrary or capricious to say that the drillers shouldn’t be allowed to go ahead and run the risk of accidents they don’t know to either prevent or cure, or continue to be rewarded for filing fraudulent documents.

And unless the (petroleum-soaked) Fifth Circuit steps in right away, why not a legislative fix? I’d love to see the Senate Republicans filibustering on behalf of the oil companies.

Nicolas Loris at Heritage:

While the effects on the price of gasoline from a drilling ban would be marginal, the economic effects felt by the Gulf would dump salt into the wound of a region coping with not just the spill but the recession in general. The American Petroleum Institute forecasts that if the drilling ban continues, more than 120,000 jobs could be lost in the Gulf Coast and key resources abandoned or moved elsewhere.

In fact, the Washington Times reports that “Oil company executives told Congress last week they would have to move their rigs to other countries because they lose up to $1 million a day per idle rig, and said there are opportunities elsewhere.” And let’s not forget the president’s pro-offshore drilling announcement included new bans on access to American energy, such as in Alaska’s Bristol Bay, where some lease sales were already pending.

Those who support the ban on offshore drilling warn about the risks of another disaster, but that’s why Department of Interior Secretary Ken Salazar had his list of recommendations for the president reviewed by the seven experts from the National Academy of Engineering. Their recommendation?

“A blanket moratorium is not the answer. It will not measurably reduce risk further and it will have a lasting impact on the nation’s economy which may be greater than that of the oil spill. We do not believe punishing the innocent is the right thing to do.”

The White House promised they would appeal right away. But they shouldn’t. The moratorium is unnecessary will have significant adverse economic impacts. Why take more jobs away from a region that is already struggling to manage a crisis?

Michelle Malkin

UPDATE: Ed Morrissey

John Cole

I Love The Smell Of Drones In The Morning

Max Fisher at The Atlantic:

United Nations special rapporteur on extrajudicial, summary or arbitrary executions Philip Alston has announced that he will formally ask the U.S. to halt its CIA programs of drone warfare. Alston, representing the UN, says that the drones should be operated by the military because the military drone program better complies with international warfare codes and because the military program is more transparent and accountable than the officially secret CIA program.

Charlie Savage at NYT:

Philip Alston, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions, said Thursday that he would deliver a report on June 3 to the United Nations Human Rights Council in Geneva declaring that the “life and death power” of drones should be entrusted to regular armed forces, not intelligence agencies. He contrasted how the military and the C.I.A. responded to allegations that strikes had killed civilians by mistake.

“With the Defense Department you’ve got maybe not perfect but quite abundant accountability as demonstrated by what happens when a bombing goes wrong in Afghanistan,” he said in an interview. “The whole process that follows is very open. Whereas if the C.I.A. is doing it, by definition they are not going to answer questions, not provide any information, and not do any follow-up that we know about.”

Mr. Alston’s views are not legally binding, and his report will not assert that the operation of combat drones by nonmilitary personnel is a war crime, he said. But the mounting international concern over drones comes as the Obama administration legal team has been quietly struggling over how to justify such counterterrorism efforts while obeying the laws of war.

Legal Insurrection:

I warned about this previously in Drone Strikes Put Obama Admin Officials At Risk, noting how the same Mr. Alston previously raised the issue of drone strikes constituting human rights violations:

“My concern is that drones/Predators are being operated in a framework which may well violate international humanitarian law and international human rights law,” he said.

The use of human rights laws against democracies defending themselves against terrorists is a favorite tactic, and Israel is the usual target. The goal is to tie the hands of civil societies through false moral equivalencies, in which the terrorist trying to kill civilians is equated to the people trying to stop the terrorist.

Expect more of this, as the world becomes less enthralled with Obama, and seeks to give him some small measure of the attention given George W. Bush.

What goes around comes around, and it will come around for Obama and those in his administration who were so quick to accuse Bush and Cheney and Rumsfeld of violating international and domestic law as they struggled to find a means of stopping al-Qaeda.

Andrew Exum and David Kilcullen at NYT:

The appeal of drone attacks for policy makers is clear. For one thing, their effects are measurable. Military commanders and intelligence officials point out that drone attacks have disrupted terrorist networks in Pakistan, killing key leaders and hampering operations. Drone attacks create a sense of insecurity among militants and constrain their interactions with suspected informers. And, because they kill remotely, drone strikes avoid American casualties.

But on balance, the costs outweigh these benefits for three reasons.

First, the drone war has created a siege mentality among Pakistani civilians. This is similar to what happened in Somalia in 2005 and 2006, when similar strikes were employed against the forces of the Union of Islamic Courts. While the strikes did kill individual militants who were the targets, public anger over the American show of force solidified the power of extremists. The Islamists’ popularity rose and the group became more extreme, leading eventually to a messy Ethiopian military intervention, the rise of a new regional insurgency and an increase in offshore piracy.

While violent extremists may be unpopular, for a frightened population they seem less ominous than a faceless enemy that wages war from afar and often kills more civilians than militants.

Press reports suggest that over the last three years drone strikes have killed about 14 terrorist leaders. But, according to Pakistani sources, they have also killed some 700 civilians. This is 50 civilians for every militant killed, a hit rate of 2 percent — hardly “precision.” American officials vehemently dispute these figures, and it is likely that more militants and fewer civilians have been killed than is reported by the press in Pakistan. Nevertheless, every one of these dead noncombatants represents an alienated family, a new desire for revenge, and more recruits for a militant movement that has grown exponentially even as drone strikes have increased.

Second, public outrage at the strikes is hardly limited to the region in which they take place — areas of northwestern Pakistan where ethnic Pashtuns predominate. Rather, the strikes are now exciting visceral opposition across a broad spectrum of Pakistani opinion in Punjab and Sindh, the nation’s two most populous provinces. Covered extensively by the news media, drone attacks are popularly believed to have caused even more civilian casualties than is actually the case. The persistence of these attacks on Pakistani territory offends people’s deepest sensibilities, alienates them from their government, and contributes to Pakistan’s instability.

C. Christine Fair at Foreign Policy:

The anti-drone argument goes like this: Because drone attacks kill innocent civilians and violate Pakistan’s sovereignty, they are deeply and universally despised by Pakistanis, and contribute to deepening anti-U.S. sentiment in the country — enmity that could boost terrorist organizations’ recruitment and eventually force Pakistan’s military and civilian leaders to abandon their cooperation with the United States. 

During his testimony before the U.S. Senate Foreign Relations Committee in May 2009, David Kilcullen, a former counterinsurgency advisor to Centcom commander Gen. David Petraeus, said it was time for the United States to “call off the drones.” Later that month, Kilcullen and Andrew M. Exum, who served as an Army Ranger in Iraq and Afghanistan from 2002 to 2004, published a provocative editorial in the New York Times, titled “Death From Above: Outrage from Below,” in which they estimated that over the “past three years” drones had killed just 14 “terrorist leaders” at the price of some 700 civilian lives. “This is 50 civilians for every militant killed,” they wrote, “a hit rate of 2 percent.” Their conclusion? Drone strikes produce more terrorists than they eliminate-an assertion that has become an article of faith among drone-strike opponents.

It would be a damning argument — if the data weren’t simply bogus. The only publicly available civilian casualty figures for drone strikes in Pakistan come from their targets: the Pakistani Taliban, which report the alleged numbers to the Pakistani press, which dutifully publishes the fiction. No one has independently verified the Taliban’s reports — journalists cannot travel to FATA to confirm the deaths, and the CIA will not even acknowledge the drone program exists, much less discuss its results. But high-level Pakistani officials have conceded to me that very few civilians have been killed by drones and their innocence is often debatable. U.S. officials who are knowledgeable of the program report similar findings. In fact, since January 1 there has not been one confirmed civilian casualty from drone strikes in FATA.

Not only do drone opponents rely upon these fictitious reports of civilian casualties, they also tend to conflate drone strikes in Pakistan with air strikes in Afghanistan, lumping the two related but very different battlefields together as one contiguous theater. They also conflate different kinds of air strikes within Afghanistan.

These distinctions matter, a lot. In Afghanistan, it is an ignominious truth that hundreds of civilians are killed in NATO airstrikes every year. But most of the civilian casualties in Afghanistan have not stemmed from pre-planned, intelligence-led attacks; rather, civilians are most likely to die when troops come into contact with the enemy and subsequently request air support. This is because when it comes to air strikes, NATO forces in Afghanistan have a limited range of air assets at their disposal. As a result, when troops come into contact with insurgents and call for  air support, they get the ordinance that is available, not the firepower that would be best suited to their needs. Sometimes large bombs are dropped when smaller ones would have been better, and the risk of civilian casualties increases accordingly.

Exum responds to Fair:

Chris: I do not care how many civilians drone strikes actually kill. And I do not care how many civilians Americans think drone strikes in Pakistan kill.

I care only about how many civilians Pakistanis think drone strikes kill. As one of the world’s experts on Pakistani public opinion, you should be able to provide that number to me, right? Because all you can tell me right now is the Pakistani press is dutifully reporting whatever the Taliban tells them … and I already know that. I don’t care in the slightest about what Pakistani generals or the CIA is telling you behind closed doors. It does not matter. I care about what those Pakistani generals are telling their public. I care, in other words, less about reality as defined by verifiable facts and figures and more about reality as it is interpreted in Pakistan and within Pakistani diaspora communities.

Honestly, I have been making this point over and over again for a year now. But the only thing the CIA and other agencies and departments have done since then is to have stepped up their information operations campaign aimed at U.S. public opinion — i.e. to have convinced Americans that drones are a good idea. But who cares, honestly, whether or not the Americans who read http://www.foreignpolicy.com know how many civilians die in drone attacks or think drones are a good idea? I certainly don’t. I care more about the people who stand to be most easily radicalized by the strikes.

C’mon, dude, get out there, do some polling, crunch some numbers, and then come tell me I’m wrong. Until then, stop telling me what I and everyone else in America already knows.

Spencer Ackerman at The Washington Independent:

It’s the most controversial counterterrorism program there is. The CIA’s remotely piloted aircraft, operating with the tacit consent of the Pakistani government, fire missiles at suspected militants in the Pakistani tribal areas where U.S. ground troops are prohibited from operating and where the Pakistani military is often hesitant to tread. The United Nations’ special rapporteur on extrajudicial killings plans to formally request the Obama administration stop the program out of fears that civilians inevitably die in the strikes. Recent research from the New America Foundation finds that 30 percent of drone strike fatalities are Pakistani civilians. It’s an enormous issue in bilateral relations with a major non-NATO ally, and experienced counterinsurgents like David Kilcullen and Andrew Exum have warned that the incendiary attacks may create more militants than they kill. Even John Brennan, President Obama’s counterterrorism adviser, indicated on Wednesday that he shares Kilcullen and Exum’s fears and gives scrutiny to ensure that the much-valued program doesn’t become “a tactical success but a strategic failure.”

But a forthcoming study, led by Brian Glyn Williams, an associate professor at the University of Massachusetts, finds that the civilian death toll from the drones is lower than most media accounts present. “We came to the conclusion that the drones have a unique capability for targeting militants, as opposed to civilians,” Williams said in an interview.

Williams’ study, which he provided to The Washington Independent, has yet to be published. A writer for a blog affiliated with the International Herald Tribune, Farhat Taj, blogged some of the key details of his research today, but prematurely stated that the Combatting Terrorism Center at West Point will be publishing Williams’ work. Erich Marquardt, the editor of the center’s journal, said that he hasn’t even begun to review Williams’ submission yet.

Much like the New America Foundation study, Williams’ team relied on English-language media accounts of the drone strikes in Pakistan to compile a data base of how many civilians and militants were reported to be killed. He conceded from the start that such a reliance is a “serious limitation” of the study — news reports can, after all, be incorrect — but the tribal areas of Pakistan where the strikes occur are often off limits to Western researchers, and even their Pakistani counterparts. (Still, Williams plans on traveling to the tribal areas on June 10 to attempt a poll of local attitudes about the strikes.) His team took measures to mitigate that limitation: they only considered strikes that had been reported by multiple independent outlets and they erred on the side of treating the deaths of people in disputed militant status as either civilians or “unknown.”

Williams’ results, which he said have been peer-reviewed, are as follows:

According to our database, as of 1 April 2010, there have been a total of 127 confirmed CIA drone strikes in Pakistan, killing a total of 1,247 people. Of those killed only 44 (or 3.53%) could be confirmed as civilians, while 963 (or 77.23%) were reported to be “militants” or “suspected militants.”

That leaves just over 19 percent of reported deaths out of either category, as their status as civilians or combatants can’t be rigorously determined under Williams’ methodology. But he writes that “even if every single ‘unknown’ is assumed to in fact be a civilian, the vast majority of fatalities would remain suspected militants rather than civilians – indeed, by approximately a 3.4:1 ratio.”

Williams insists that he went into the study with an open mind. “We didn’t know what to think” about the drone program, he said, and he considers his research agnostic on the wisdom of the drone strikes (to say nothing of their legality). “We’re not necessarily trying to alter policy on this,” he said.

Both of the principle authors of New America’s drone strike survey, Peter Bergen and Katherine Tiedemann, are on vacation, but they both still (generously) addressed my questions. All three researchers — Bergen, Tiedemann and Williams — appeared to agree that New America was more methodologically aggressive than Williams in counting as civilians all who could not be clearly identified as militants, which perhaps accounts for the variance in their results.

James Joyner:

Bergen observed in a Blackberried message that although his civilian death tallies are higher than Williams’, he has observed that the drone program has increased its accuracy over time, “so the later the the date that the study begins the lower the rate [of civilian deaths] will be.” That’s in line with Brennan’s intimation (he never actually uses the word “drones”) that the drone strikes “are more precise and more accurate than ever before.”

Accordingly, Bergen now pegs the civilian death rate from the drone strikes at 20 percent. Williams pegs it at 3.53 percent. What no one knows, however, is how many outraged Pakistanis take up arms against the U.S. or its allies as a result.

Dexter Filkins in NYT:

The American military on Saturday released a scathing report on the deaths of 23 Afghan civilians, saying that “inaccurate and unprofessional” reporting by a team of Predator drone operators helped lead to an airstrike this year on a group of innocent men, women and children.

The report said that four American officers, including a brigade and battalion commander, had been reprimanded, and that two junior officers had also been disciplined. Gen. Stanley A. McChrystal, who apologized to President Hamid Karzai after the attack, announced a series of training measures intended to reduce the chances of similar events.

The episode, in which three vehicles were attacked and destroyed in February, illustrated the extraordinary sensitivity to the inadvertent killing of noncombatants by NATO forces. Since taking command here last June, General McChrystal has made the protection of Afghan civilians a priority, and he has sharply restricted the use of airstrikes.

The overwhelming majority of civilian deaths in Afghanistan are caused by insurgents, but the growing intensity of the fighting, and the big push by American and NATO forces, has sent civilian casualties to their highest levels since 2001.

Mattthew Yglesias:

Obviously killing civilians is horrible, as well as strategically counterproductive, and killing civilians by the dozens is just awful stuff. But the relevant authorities do seem to me to be quite earnest and at least somewhat successful in their determination to mitigate the extent to which these things happen. The problematic aspect of the drone attacks that I haven’t seen discussed as much as it deserves is really on the Pakistan side of the border and concerns the National Security Strategy’s stated aspiration to create a rules-based global order.

Simply put, having the CIA conduct a secret undeclared de facto war in Pakistan is kind of the reverse of rules-based activity. There’s a colorable rationale under existing rules for unilateral military action in Pakistan under the UN Charter’s absolute recognition of a right to individual and collective self-defense. But this isn’t military action, it’s CIA action. And by definition covert use of force is not rules-based. Now I think you could fairly say that a world of “liberty under law” is a regulative ideal rather than an actual reality, so it’s not per se a violation of the relevant principle to engage in activities outside the rules. Simply pretending that an airtight rules-based global order exists doesn’t make it so. At the same time, to say “the rules-based global order is an aspiration rather than a reality, therefore we can operate outside the rules whenever it’s convenient” actually makes a mockery of the aspiration. And the covert actions in question are some of the worst-kept secrets in the world. So I think there’s a real problem here that’s worthy of more critical thinking.

Ultimately the United States is judged more by what actually happens than by what policy documents say, and I think it’s important to do more to align what we’re actually doing in this regard with our big-picture policy aims.

Charli Carpenter at Lawyers Guns And Money:

I would like to posit that to some extent, the issues at stake in all of these debates are much broader than the issue of drones and it may be problematic to focus on drones, as if altering our “drone policy” will resolve the broader issues. Drones themselves are simply remotely piloted aerial vehicles. They’re not robots and they’re not making decisions on their own, Star Wars-like. (Though they might in the near future which would raise entirely different ethical questions.) Except for the fact that the pilots are operating remotely from the safety of a military base (or CIA facility), these weapons are little different than other forms of air power. Of course, as Peter Singer has documented there are those who are troubled by the dislocation of the warrior from his targets, but this argument is as old as the long-bow and doesn’t necessarily pose legal issues. It should also be pointed out that drones have many extremely useful non-lethal applications: reconnaissance that helps ground troops avoid civilians, for example. And drones are not simply being used to hunt terrorists in Pakistan. They have civilian and law enforcement uses as well: to monitor the drug trade in South America or population flows across borders. (Not that these surveillance functionalities don’t also involve pressing trade-offs with respect to rights and civil liberties.)

Speaking just in terms of using drones as attack weapons here, I would argue the important issue here is not whether we use drones. The issues are a) whether it is right to use any weapon in such a manner as to risk more casualties among civilians than we are willing to accept among our own troops (as both manned and unmanned forms of aerial bombing do) b) whether we are willing to use any weapon to summarily execute individuals we have associated with criminal organizations whether or not they are engaged in what might be considered combat operations against us and c) whether it is either right or effective to outsource the deployment of lethal violence – by drones or by other means – from our military to our civilian agencies?

bmaz at Emptywheel:

One of last Friday’s big stories somewhat lost in the hustle and focus on the BP Gulf oil disaster and the holiday weekend concerned the continuing outrage of the US drone targeted assassination program. Specifically, Charlie Savage’s report at the New York Times that the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, was expected to issue a report calling on the United States to stop Central Intelligence Agency drone strikes thus “complicating the Obama administration’s growing reliance on that tactic in Pakistan”.

Today, the report is out, and Charlie Savage again brings the details in the Times:

A senior United Nations official said on Wednesday that the growing use of armed drones by the United States to kill terrorism suspects is undermining global constraints on the use of military force. He warned that the American example will lead to a chaotic world as the new weapons technology inevitably spreads.

In a 29-page report to the United Nations Human Rights Council, the official, Philip Alston,the United Nations Special Rapporteur on extrajudicial executions, called on the United States to exercise greater restraint in its use of drones in places like Pakistan and Yemen, outside the war zones in Afghanistan and Iraq. The report — the most extensive effort by the United Nations to grapple with the legal implications of armed drones — also proposed a summit of “key military powers” to clarify legal limits on such killings.

In an interview, Mr. Alston, said the United States appears to think that it is “facing a unique threat from transnational terrorist networks” that justifies its effort to put forward legal justifications that would make the rules “as flexible as possible.”

Here is Alson’s official report.

Bagram Blues

Max Fisher at The Atlantic on November 30, 2009:

Reports of a second, “black” prison attached to the notorious detention facility at Bagram Air Force Base in Afghanistan is drawing fire from critics of President Obama’s continuation of Bush-era detention practices. The New York Times reports that detainees are held at the site for extended periods without access to basic services or the International Red Cross. Both the Times and The Washington Post provide extensive interviews with former detainees at the site. The facility is run not by the CIA but by JSOC, the Joint Special Operations Command, a part of the military.

Max Fisher at The Atlantic on May 11, 2010:

Now the BBC reports that the International Committee of the Red Cross has confirmed the site’s existence with the military. The U.S. official in charge of Afghanistan detention, Vice Admiral Robert Harward has denied that the prison, reportedly called the Tor Jail after the Urdu word for “black,” exists. What do we know?

Hilary Andersson at BBC:

The US airbase at Bagram in Afghanistan contains a facility for detainees that is distinct from its main prison, the Red Cross has confirmed to the BBC.

Mirwais was watering his plants one night when American soldiers came to get him.

He is still missing half a row of teeth from the beating he says he got that night and he says he cannot hear properly in one ear.

US troops accused him of making bombs and giving the Taliban money.

Mirwais says he was taken to the ‘black jail’.

In response to the allegations, Vice Admiral Robert Harward, in charge of US detentions in Afghanistan, denied the existence of such a facility or abuses.

He told the BBC that the Parwan Detention Facility was the only US detention centre in the country.

Spencer Ackerman at The Washington Independent:

The BBC further reports that it’s got accounts from nine former inmates who say they were abused at Tor. Months ago, I asked Vice Adm. Robert Harward, the chief U.S. military officer responsible for detentions operations in Afghanistan if all detainees had access to the Red Cross, and he answered, “All detainees under my command have access to the International [Committee of the] Red Cross.” According to the ICRC, that’s been the case since August 2009 (which precedes Harward’s November arrival in Afghanistan). But how long was Tor open before detainees had ICRC access?

Marc Ambinder:

Called the “black jail” by some of those who have transited through it, it is a way-point for detainees who are thought to possess actionable information about the Taliban or Al Qaeda.

Intelligence gleaned from these interrogations has often led to some of the military’s highest profile captures. Usually, captives are first detained at one of at least six classified Field Interrogation Sites in Afghanistan, and then dropped off at the DIA facility — and, when the interrogators are finished, transferred to the main prison population at the Bagram Theater Internment Facility.

“DoD does operate some temporary screening detention facilities which are classified to preserve operational security; however, both the [Red Cross] and the host nation have knowledge of these facilities,” said Bryan Whitman, a Pentagon spokesperson. “Screening facilities help military officials determine if an individual should be detained further and assists military forces with timely information vital to ongoing operations.” Whitman would not say who ran the facility or provide any details. A DIA spokesperson declined to comment, as did the White House, which referred questions to the Pentagon.

Under a directive issued by the commander of coalition forces in Afghanistan, Gen. Stanley McChrystal, those captured on the battlefield can be detained for only 96 hours unless they are deemed to possess intelligence value. In practice, military units can unofficially transfer detainees they pick up to other field  units before they arrive at interrogation sites, giving American and Afghan interrogators more time to ferret out useful information.

According to other officials, personnel at the facility are supposed to follow the Army Field Manual’s guidelines for interrogations. When he took office, President Obama signed an executive order banning the Central Intelligence Agency and the military from using techniques not listed in the manual. But he has a task force studying whether the expressly manual-approved tactics are sufficient.

However, under secret authorization, the DIA interrogators use methods detailed in an appendix to the Field Manual, Appendix M, which spells out “restricted” interrogation techniques.

Under certain circumstances, interrogators can deprive prisoners of sleep (four hours at a time, for up to 30 days), to confuse their senses, and to keep them separate from the rest of the prison population. The Red Cross is now notified if the captives are kept at the facility for longer than two weeks.

When interrogators are using Appendix M measures, the Undersecretary of Defense for Intelligence, Gen.James Clapper (Ret.) is the man on the hook. Detainees designated as prisoners of war cannot be subjected to Appendix M measures.

The DCHC is a relatively new organization. It has several branches and has absorbed staff from the the now largely disbanded Strategic Support Branch, which provided CIA-like intelligence services to ground combat units. The DCHC also performs some of the work that the Counterintelligence Field Activity (CIFA), which was accused of spying on American political groups, used to do. Many of the staff, civilian and military, as well as many contractors, previously worked with CIFA.

Defense officials said that the White House is kept appraised of the methods used by interrogators at the site. The reason why the Red Cross hasn’t been invited to tour it, officials said, was because the U.S. does not believe it to be a detention facility, classifying it instead as an intelligence gathering facility.

A Defense official said that the agency’s inspector general had launched an internal investigation into reports in the Washington Post that several teenagers were beaten by the interrogators, but Whitman disputes this.

When the Obama Administration took over, it forbade the DIA from keeping prisoners in the facility longer than 30 days, although it is not clear how that dictum is enforced.  It is also not clear how much Congress knows about the DIA’s interrogation procedures, which have largely escaped public scrutiny.

Nathan Hodge at Danger Room at Wired:

In a bloggers’ roundtable earlier this year, Navy Vice Adm. Robert Harward emphasized that there were “no black jails” at Bagram, but he did clarify that there was a short period of detention at undisclosed “field-detention sites,” where Afghan and U.S. authorities hold individuals to determine who they are and whether they have any actionable intelligence.

“We don’t disclose where those field-detention sites are, because of operation security,” Harward said. “They would be targeted. They’d be at great risk. At those field-detention sites, they’re held for a very short period, to determine who they are, their classification, immediately actionable intelligence. And then, from that point, they’re moved to our detention facility in Parwan.”

It’s worth emphasizing here that humane treatment of prisoners is considered a cornerstone of effective counterinsurgency. The idea is to prevent further radicalization of detainees, and turning detention facilities into recruiting centers for the insurgency.

In the roundtable, Harward borrowed a phrase from counterinsurgency guru David Kilcullen. The goal is to prevent the “accidental guerrillas” from filling up the facility.

“If that village says, yeah, he’s a bad guy, we’ve just gotten additional intelligence on him and better understanding of the individual,” said Harward. “The village may say, hey, he’s a bad kid but he could be good. Well, then maybe he does need a program where we teach him to read or write, and a short incarceration would benefit him and convince him not to be the jihadist, that he was the accidental guerrilla; that there’s options and purpose for him in Afghan society outside of that, and maybe we can give him some skills that will help him.”

Jeff Kaye at Firedoglake:

Together with the BBC investigation and the ICRC confirmation, we can see that the military is lying through their teeth when they claim there is no second Bagram facility, or that no abuse takes place at Bagram. (For more on Bagram and the issue of indefinite detention, see this recent diary by Jim White.)

The presence of sleep deprivation, sensory deprivation, brutality, isolation and the like at the U.S. prison complex has not been a matter of protest among U.S. progressives, many of whom still support the administration of President Barack Obama. Many liberals have been in denial over the poor record of President Obama on the issue of torture and detention policies. The President began his administration with a big series of presidential orders that supposedly ended the Bush administration’s policy of torturing prisoners, and shut down the CIA’s black site prisons.

But as we know now, not all the black site prisons were shut down. Nor was the torture ended. Whether it’s beatings and forced-feedings at Guantanamo, or the kinds of torture described at Bagram, it’s obvious that torture has not been rooted out of U.S. military-intelligence operations. In fact, by way of the Obama administration’s recent approval of the Bush-era Army Field Manual on interrogations, with its infamous Appendix M, which allows for much of the kind of torture practiced at Bagram, the White House has institutionalized a level of torture that was introduced by the previous administration, but which has been studied and devised over the last fifty or sixty years.

Furthermore, in a June 2009 Air Force document reported on last July, it was noted that the personnel responsible for some of the torture program deriving from the SERE schools were still allowed “psychological oversight of battlefield interrogation and detention.” Are SERE psychologists involved in the Special Operations at torture at Tor and Parwan? Given the close relationship between SERE’s parent group, the Joint Personnel Recovery Agency, and JSOC, I think there’s a high possibility of just such involvement.

A question hangs heavily over the U.S. political scene: how long will denial exist among liberals and progressives over the persistence of an aggressive military policy and the concomitant crimes against humanity that come with it? How long will the supporters of Barack Obama maintain their studied indifference to the crimes against humanity done in their name? The shine is off this new president, and underneath it all we can discern the same old game of lies covering for crimes. Enough is enough.

Adam Serwer at Tapped:

The administration says that the Red Cross is given access to detainees and that they are not abused, but this is false on its face, in two ways. The BBC has previously reported that as many as nine detainees have reported being subject to abuse at Bagram’s “black jail.”

The second is that the use of sleep deprivation is torture. As former Israeli Prime Minister Menachem Begin wrote of his time in the custody of the KGB:

In the head of the interrogated prisoner, a haze begins to form. His spirit is wearied to death, his legs are unsteady, and he has one sole desire: to sleep… Anyone who has experienced this desire knows that not even hunger and thirst are comparable with it.Reducing people’s minds to mush also has the downside of making it difficult for them to answer questions coherently.

Let’s also not let “confuse the senses” slip by. This is possibly a euphemism for sensory deprivation, which can be among the most excruciating forms of torture imaginable. Here’s an excerpt from an account on early experimentation with sensory deprivation that Hilzoy flagged last year:

Dr Donald O. Hebb at McGill University found that he could induce a state akin to psychosis in a subject within 48 hours. Now, what had the doctor done? Hypnosis, electroshock, LSD, drugs? No. None of the above. All Dr Hebb did was take student volunteers at McGill University where he was head of Psychology, put them in comfortable airconditioned cubicles and put goggles, gloves and ear muffs on them. In 24 hours the hallucinations started. In 48 hours they suffered a complete breakdown.II don’t know if this is what “confuse the senses” means in the context of Bagram, but it’s worth more looking into.

Whatever credibility the Obama administration had remaining on the subject of breaking continuity with the Bush administration on issues of human rights is fast eroding. The irony is that the torture wing of the Republican Party will both feel vindicated and argue that the Obama administration represents a radical departure from the policies of the last administration.

Josh Rogin at Foreign Policy

Harry Shearer at Huffington Post:

I’ve been writing about Bagram because it stands as a rebuke to the president’s pledge to close Gitmo. What’s happened at Bagram — and you can Google it — is perhaps worse than our history at Guantanamo, and Bagram detainees are not covered by the Supreme Court’s habeas corpus decision re: Gitmo detainees. In other words, they remain in a lawless black hole where their captors can do literally anything.

And their captors are us.

UPDATE: Charlie Savage at NYT

Mr. Subpoena Risen, Mr. Subpoena Risen, Gotta Subpoena Risen

Charlie Savage at NYT:

The Obama administration is seeking to compel a writer to testify about his confidential sources for a 2006 book about the Central Intelligence Agency, a rare step that was authorized by Attorney General Eric H. Holder Jr.

The author, James Risen, who is a reporter for The New York Times, received a subpoena on Monday requiring him to provide documents and to testify May 4 before a grand jury in Alexandria, Va., about his sources for a chapter of his book, “State of War: The Secret History of the C.I.A. and the Bush Administration.” The chapter largely focuses on problems with a covert C.I.A. effort to disrupt alleged Iranian nuclear weapons research.

Mr. Risen referred questions to his lawyer, Joel Kurtzberg, a partner at Cahill Gordon & Reindel L.L.P., who said that Mr. Risen would not comply with the demand and would ask a judge to quash the subpoena.

“He intends to honor his commitment of confidentiality to his source or sources,” Mr. Kurtzberg said. “We intend to fight this subpoena.”

Hamilton Nolan at Gawker:

The government has subpoenaed New York Times reporter James Risen, asking him to reveal the secret sources he used in his book about the Bush Administration and the CIA. Meaning James Risen could be the next Judy Miller.

Not Judy Miller in the sense of being a government patsy; Judy Miller in the sense of sitting in jail in order to protect sources. According to the NYT, the government wants to know who Risen’s sources were for his reporting on “the C.I.A.’s effort to disrupt Iranian nuclear research;” Risen has a lawyer and plans to fight the subpoena, and presumably would go to jail to protect his sources. (This has happened to him before). The Obama administration, disappointing the free press once again! At least James Risen knows Bill Keller will keep his commissary account full.

Jesse Walker at Reason:

The lead prosecutor in the case is William Welch II, the same man heading up the prosecution of NSA whistleblower Thomas Drake for another set of Bush-era leaks. So I’ll just quote the same Julian Sanchez post that I cited when Drake was the case du jour:

the contrast [with] the non-reaction to other forms of lawbreaking makes the standard in effect for Bush-era misdeeds clear: If you illegally gathered information on members of the public, Obama’s DOJ would rather let sleeping dogs lie. If you illegally tried to get information to the public, you’d better lawyer up. From Main Justice to Fort Meade, message received.

Ed Morrissey:

The chapter dealt with a clumsy attempt at disinformation from the CIA in February 2000. The agency had hoped to derail Iranian research into nuclear weapons by surreptitiously giving them designs with flaws that would have rendered the devices impotent.  Unfortunately, the Russian scientist who was supposed to give Tehran the plans found the flaws so obvious that he needed to correct them in order to maintain his own credibility.  Just as unfortunately, no one knows whether the Iranians had figured out that the Russian scientist at the center of the plot was working for the CIA prior to the publication of Risen’s book, which the Times notes in this report.

The Bush administration got a subpoena in January 2008, but Risen stalled until after the election.  He may have presumed that Barack Obama would not force his testimony on the matter, a perhaps reasonable assumption given the tacit support Senator Obama had expressed for Risen’s other exposés noted by the Times in this report.  Instead, Eric Holder pursued a new subpoena — and now Risen has to either testify about his sources or go to jail for contempt of court.

Earlier this week, I covered a controversy about California’s shield law and noted that journalists have to protect sources in order to report effectively.  I also argued that an exception should be made for national-security matters, given the nature of those efforts and the need to keep our tactics and assets from public exposure.  Those who see wrongdoing within the system have other channels to use — either through the chains of command, or by going to Congress.  This case, though, has the complication that the incident reported by Risen had been brought to Congress, which declined to act on it.  Still, the leaker chose a rather uncourageous method of dealing with the failure; he or she could have made this information public and borne the consequences of breaking the laws on confidentiality for this material and putting the life of a CIA source at risk.

Overall, the White House and the DoJ made the right decision to enforce those laws through this subpoena.

Glenn Greenwald:

I’m not convinced that the real motive, as Horton suggests, is to conceal ineptitude.  I think it’s broader than that:  to send a signal that the Greatest Crime one can commit is allowing breaches in the Absolute Wall of Secrecy that surrounds the public/private Surveillance and National Security State.  If Obama has definitively demonstrated anything, it’s his commitment to preserving and even fortifying this wall (that’s what the promiscuous assertions of the State Secret privilege are about).  One of the very few ways we learn about anything that happens in that realm is through conscientious whistle-blowers leaking what they know to journalists and others.  Hence, the Obama DOJ wants to snuff out the possibility that any light will be shined on what is done through this method.

For any Democrat or progressive who wants to defend the issuance of this Subpoena, I have a question for you:  when this controversy first arose in early 2008, did you defend the issuance of the very similar subpoena to Risen by the Gonzalez/Mukasey DOJ?  If not, why not?  What’s the difference?  “Pragmatism” is not an answer.

Gabriel Schoenfeld at The Weekly Standard:

What gives? Is the president now unaccountably reversing field and waging a war on the American press? Or do we have here, finally, a recognition that the revelation of secrets, particularly those involving ongoing classified intelligence programs, can place us all at risk?

Scott Horton at Harper’s:

A 1960 congressional committee looking into the nation’s security classifications called secrecy “the first refuge of incompetents.” It was obvious even then that national-security classifications are often used to protect government officials from having their stupidities exposed. There may be cases when it serves the public interest in national security to keep mistakes under wraps. But mistakes that are kept secret are more likely to be repeated, and those who commit them are more likely to advance to positions in which they can do more costly damage. The passages of the Risen book that are now being scrutinized by prosecutor Welch expose just that sort of embarrassingly inept behavior. The public’s security was in this case plainly served by disclosure, and the prosecution that is apparently being mounted is another gallant defense of the government’s right to keep its inept conduct secret not from foreign enemies but from the American public. Such steps make us dumber, weaker, and less safe.

UPDATE: Gabriel Schoenfeld at Daily Beast 

Waiting For Gitmo By Samuel Beckett

Charlie Savage in The New York Times:

The Obama administration has decided to continue to imprison without trials nearly 50 detainees at the Guantánamo Bay military prison in Cuba because a high-level task force has concluded that they are too difficult to prosecute but too dangerous to release, an administration official said on Thursday.

However, the administration has decided that nearly 40 other detainees should be prosecuted for terrorism or related war crimes. And the remaining prisoners, about 110 men, should be repatriated or transferred to other countries for possible release, the official said, who spoke on the condition of anonymity because he was not authorized to speak about the numbers.

There are just under 200 detainees left at the detention center.

President Obama established the task force shortly after his inauguration last year as part of his administration’s effort to deal with the detainee issues left behind by the Bush administration. It was facing a deadline of Friday to complete its work.

Spencer Ackerman:

Indefinite Detention Of The Soul (A Play In One Act)

Scene: the Hart Senate Office Building. A congressional hearing in early 2010. An OBAMA ADMINISTRATION OFFICIAL prepares to testify before a panel of SENATORS.

OBAMA OFFICIAL

Mr. Chairman, distinguished ranking member, thank you for holding this important hearing. As you’re aware, it’s been a priority of this administration since its first week in office to close the detention facility at Guantanamo Bay. We are all familiar with the reasons why it ought to be shuttered: its international notoriety has proven to be harmful to our alliances, and, as our generals have stated repeatedly, it’s a recruiting tool for al-Qaeda. After extensive review, we believe we have a solution, albeit one we would have like to have found a few months earlier. It’s the Thomson Correction Facility in Illinois. In that ultra-secure prison, we believe we can safely house the remaining Guantanamo detainees — both those who we will try before military commissions held on-site, and the cohort of about 50 detainees we believe we can neither responsibly release nor charge with any crime.

And it’s Thomson that brings me before this panel. As you’re aware, we require approximately $150 million from you to purchase Thomson from the state of Illinois. We’ve drawn up the appropriation, and we ask for your support for its swift passage. We have the opportunity to remove the stain of Guantanamo and move forward in a responsible manner. Thank you. If I can submit my full opening statement for the record, I’ll be happy to take your questions.

DEMOCRATIC SENATOR

Without objection, so ordered. Sir, I share your desire to close Guantanamo Bay. I opposed the lawlessness shown by the Bush administration in maintaining the facility as a venue for indefinite detention. And this committee has done extensive staff investigations into the abuses there that have shocked us all. I commend the administration for its determination to close the facility.

OBAMA OFFICIAL

Thank you, Mr. Chairman.

DEMOCRATIC SENATOR

But here’s what I don’t get. Part of your stated plan to shut Guantanamo down involves continuing to detain about 50 of its inmates indefinitely at Thomson?

OBAMA OFFICIAL

Yes, Mr. Chairman. We convened an interagency task force all the way back in the first week of the administration to review, extensively, all the existing evidence gathered during the previous administration about the then-approximately 230 detainees at Guantanamo. The task force worked tirelessly, and recommended the vast majority of them for release, repatriation or civilian trial. What remains is about 40 or so whom we will try in military commissions, and the –

DEMOCRATIC SENATOR

Don’t get me started on those.

OBAMA OFFICIAL

– yes, Mr. Chairman, no, Mr. Chairman. The remaining 50, we believe, are too dangerous to release, but they’re also not people, according to the task force, whom we can responsibly put on trial. Throughout this whole process, we have held the protection of the American people as our highest priority.

DEMOCRATIC SENATOR

And I appreciate that. So does this committee, and, indeed, the United States Senate. But what I’m asking is why should I support appropriating money to create a new facility for indefinite detention in the name of closing a facility for indefinite detention.

OBAMA OFFICIAL

Well, Mr. Chairman, as we’ve seen over the years, Guantanamo Bay is an international symbol of– it’s a black mark on America. We seek to remove that burden from our image abroad. The State Department has catalogued for this committee extensively all of the problems it’s placed on our foreign relations, and I’m happy to resubmit its list for the record. Additionally, the facility — the facility at Guantanamo is a recruitment aid for al-Qaeda. And we do not believe it is in the interests of the security of the American people to give al-Qaeda this potent recruitment tool.

DEMOCRATIC SENATOR

My time is expiring, but I have to say I find this frustrating. Is it Guantanamo that provides this recruitment aid, or is it the indefinite detention without charge that does?

Matthew Yglesias:

My plan, I suppose, is that the Obama administration should threaten corporations with indefinite detention without trial if he doesn’t like their political contributions. That would presumably get the Supreme Court engaged with this civil liberties problem.

Daniel Foster at The Corner:

The decision came on the recommendation of the president’s Gitmo task force, established soon after he took office. The body had its last meeting yesterday and concluded, among other things, that the prison cannot and should not be closed by Obama’s deadline.

The Times reports that of the prison’s roughly 200 detainees, about 40 will eventually be prosecuted and about 110 will be repatriated or transferred to other countries. But two important questions remain: Of those in the former category, which will be granted civilian trials and which trials by military commission? And of those in the latter category, about 30 are from Yemen, where the administration has halted Gitmo prisoner transfers in the wake of the Christmas Day bombing attempt. Where will they go?

Chris Rovzar at New York Magazine

Ed Morrissey:

We know that these two men prepared terrorist attacks against the US, and now we’re setting them free.  Why?  If we’re going to keep 50 incorrigibles indefinitely, then why release any of them?  They should remain in our custody in the military system until the hostilities cease.  We can keep building prisons, after all.

Or, more to the point, we can keep the one we have that was expressly designed for that purpose.  Why close Gitmo?  It is still the best operational venue for terrorist detention.  If we’re agreed that we need to hold them, let’s hold them in the place  we designed for it.

Gitmo G-Funk In G-Minor

Charlie Savage at NYT:

Rebuffed this month by skeptical lawmakers when it sought finances to buy a prison in rural Illinois, the Obama administration is struggling to come up with the money to replace the Guantánamo Bay prison.

As a result, officials now believe that they are unlikely to close the prison at Guantánamo Bay, Cuba, and transfer its population of terrorism suspects until 2011 at the earliest — a far slower timeline for achieving one of President Obama’s signature national security policies than they had previously hinted.

While Mr. Obama has acknowledged that he would miss the Jan. 22 deadline for closing the prison that he set shortly after taking office, the administration appeared to take a major step forward last week when he directed subordinates to move “as expeditiously as possible” to acquire the Thomson Correctional Center, a nearly vacant maximum-security Illinois prison, and to retrofit it to receive Guantánamo detainees.

But in interviews this week, officials estimated that it could take 8 to 10 months to install new fencing, towers, cameras and other security upgrades before any transfers take place. Such construction cannot begin until the federal government buys the prison from the State of Illinois.

The federal Bureau of Prisons does not have enough money to pay Illinois for the center, which would cost about $150 million. Several weeks ago, the White House approached the House Appropriations Committee and floated the idea of adding about $200 million for the project to the military spending bill for the 2010 fiscal year, according to administration and Congressional officials.

Andy McCarthy in The Corner:

Not content with the Friday bad-news dump, the administration announced on the Sunday before Christmas that it had transferred a dozen detainees out of Gitmo. On its face, this is alarming enough. The Bush administration, it is freely conceded, released many enemy combatants, including many who obviously should have been continued in detention and who have gone on to rejoin the jihad and commit horrific acts of terrorism. That’s how we got from about 800 detainees down to about 200. But there’s a big difference.

The original 800 included some marginal figures (to hear the Left tell it, all the detainees were shepherds indiscriminately swept up by the Northern Alliance to win bribe money from the CIA). But now we are down to a much smaller core group — detainees whose cases we’ve had years to study and whom we’ve held despite enormous pressure to release them. These are the worst of the worst. We have an absolute right under the laws of war to hold them, and when one of them gets sprung it’s cause for grave concern.

Spencer Ackerman:

Consider how this is going to work. The reason why GTMO might stay open through 2011, Charlie reports, is because Congress is balking on the money to buy the Thomson Correctional Center in Illinois, where Obama wants to move some of the GTMO detainees. But which detainees? The ones who will be tried in military commissions, which will be moved to Thomson under the plan. Detainees who will be tried in civilian federal courts will be detained by the jurisdiction charging them. And it’s the jurisdiction’s responsibility to imprison them after conviction.

You see where I’m going with this, right? Only the military commissions are hitting a snag right now. David Kris and Jeh Johnson, the senior Justice and Pentagon officials responsible for the contours of the Obama administration’s detainee policies, haven’t provided a clear set of criteria for who gets charged in civilian courts and who gets charged in the commissions. And they’ve had, at this point, a year to review the Guantanamo cases! Johnson told a Senate panel in July, “Where feasible, we would seek to prosecute detainees in [federal civilian] courts.”

Well, that just got a whole lot more feasible with the Thomson Snag, didn’t it? The federal government’s difficulties in purchasing Thomson are only problematic if you’re a fan of the military commissions. If you prefer trying detainees in federal courts or sending them to the custody of their home countries, then this isn’t problematic at all. And my colleague Daphne Eviatar documented just yesterday all the persistent and structural problems with the military commissions.

John McCormack at The Weekly Standard

Tom Maguire:

Interesting – the Afghanistan supplemental will be a bit sticky for many Dems of the left.  Republicans aren’t interested in de-funding troops in combat, but they don’t like the Gitmo transfer to the States and they aren’t virgins on faux-sacrificing the troops to score points.  Obama seems to have found a funding ploy that could annoy everyone.

Ann Althouse:

Well, of course. Why throw way $150 million — or $200 million — building another facility when these people are already safely and securely detained in Guantanamo? Symbolism? Too expensive! And also politically unpopular. I think Obama knew when he announced the Thomson plan that the Democrats in Congress would oppose him. He didn’t want the transfer to happen and he didn’t think it would happen. He has never intended to close Guantanamo. I was pretty sure of that last January. He has only intended to appease the folks who wanted him to and to make it possible to claim that he really tried.