Tag Archives: Gitmo

And The Verdict Is… Open!

Eli Lake at The Washington Times:

President Obama on Monday lifted the ban he imposed two years ago on military trials for detainees at the Guantanamo Bay prison, ending his bid to move most terrorism trials to civilian courts and pushing his already busted deadline for shuttering the island prison indefinitely forward.

The reversal came as Defense Secretary Robert M. Gates visited Afghanistan and indicated that he was willing to keep a presence of U.S. forces in the war-torn country beyond the Obama administration’s 2014 pullout goal, highlighting again the difficulty the president has had moving from the policies of President George W. Bush.

Mr. Obama announced the Guantanamo decision in an executive order that also sets forth a periodic review process for detainees who have not been charged or convicted but are still considered threats to the U.S.

White House aides stressed that Mr. Obama remains committed to closing the prison, which he has described as a key recruiting tool for terrorist groups, and pursuing some cases in civilian courts. Mr. Obama vowed during the campaign to close the prison by the end of 2009, his first year in office.

Massimo Calabresi at Swampland at Time:

All of this responds to Obama’s archives speech of May 2009, where he walked back his more progressive January 2009 position but tried to retain a bulwark of detention and prosecution principles for terrorism detainees. Since then, Congress has passed laws blocking the closure of Gitmo by preventing the transfer of detainees by the executive branch. House and Senate Republicans (McKeon and Graham) are expected to introduce bills further blocking detainee access to U.S. courts in the coming week.

On a conference call Monday, Obama senior advisors said the president remains committed to closing Gitmo by diminishing the number of detainees held there. But the moves announced today could have the opposite effect, admits a senior White House official. The Bush and Obama administrations have faced repeated habeas corpus challenges to their detention of alleged terrorists at Gitmo. Last I checked, detainees bringing habeas cases were winning by a 4-to-1 ratio. By increasing due process at Gitmo, the new measures make it more likely judges will defer to the executive branch and rule against detainees claiming they are being held unfairly at Gitmo. One administration official argued that judges would not be affected by the new procedures.

The habeas releases remain the only way that Gitmo’s numbers can decrease these days. The administration is still debating how to comply with the Congressional ban, but as long as it is in place even a detainee who uses his new due process rights to challenge his detention in military commissions and wins will stay in Gitmo forever… or until Congress changes its mind about closing it down.

Amy Davidson at The New Yorker:

Who wins in this? Do we think that “American system of justice” means whatever it is Americans do, as long as some court-like trappings are present? The order acknowledges that the “privilege of the writ of habeas corpus” is available to inmates, but also sets up a routine for holding prisoners indefinitely without charges (what the order calls “the executive branch’s continued, discretionary exercise of existing detention authority”). In statements today, Obama, Attorney General Eric Holder, and Secretary of Defense Robert Gates all mentioned how highly they thought of the federal court system. Gates said,

For years, our federal courts have proven to be a secure and effective means for bringing terrorists to justice. To completely foreclose this option is unwise and unnecessary.

So this order doesn’t “completely foreclose” on the rule of law—is a partial foreclosure supposed to count as a moral stand? Given all the nice things the Administration has to say about the federal court system, one would think that it might find it wise, and even necessary, to actually use it a bit more. Instead, the statements seem more concerned to note that the President is not giving up any options or powers—as if bringing accused murderers to court were a prerogative, rather than an obligation. No doubt, Republicans, and some Democrats, have made it hard for Obama to close Guantánamo. But it might be easier if he wanted to do it; the order today makes it sound like he considers it a somewhat useful place. It is not.

Speaking of questionable detention measures: Can someone in the Administration explain, slowly and clearly, why Bradley Manning, the soldier accused of leaking the WikiLeaks cables, is required to stand naked in front of his cell in the morning and sleep naked, ostensibly for his own protection? The military’s explanations so far—that he could somehow harm himself with underwear (though he is not on suicide watch and is being monitored by video) so he can’t sleep in any, and then there is just no time for him to put underwear on in the morning before they get him out of the cell—are just not plausible. (By coincidence, a case about Americans being strip-searched after being arrested for minor offenses may be coming before the Supreme Court.) A naked man who hasn’t been convicted of a crime—that shouldn’t be what American justice looks like.

Josh Rogin at Foreign Policy

Bryan Preston at PJ Tatler:

Only two years into his presidency, Barack Obama has learned that there are no easy answers to dealing with captured transnational terrorists. It’s easy to create sound bites decrying the evils of holding terrorists at Gitmo, and it’s easy to create sound bites about how awful it is to try them in military tribunals (even though that’s where illegal enemy combatants should rightfully be tried), but it’s very hard to change reality. So bowing to reality, Obama has authorized the re-start of military trials for captured terrorists.

John Yoo at Ricochet:

The Obama administration’s anti-war campaign rhetoric and naive first-year promises continue to collide with reality.  And happily, reality continues to prevail.  The Obama administration has finally admitted, I think, that the Bush administration’s decision to detain al Qaeda operatives and terrorists at Gitmo was sensible.  It wasn’t driven by some bizarre desire to mistreat terrorists, but instead was the best way to address security concerns without keeping them in Afghanistan or inside the United States.

It also turns out that the military commission trials too were a sensible decision.  Civilian trials threaten the revelation of valuable intelligence in a covert war where hostilities are still ongoing. Military commissions allow a fair trial to be held but one that does not blow our wartime advantages.  Meanwhile, the Obama administration’s track record has been poor — it was lucky to get the limited convictions that it has.  Obama folks owe an apology to the Bush administration for their unjust criticism of military trials.

It should also be noted that Obama did not come to this turnabout after reasoned consideration alone.  I think there are significant figures in the administration that would still love to close Gitmo tomorrow and give every terrorist the same exact trials reserved for Americans who commit garden-variety crimes.  Congress dragged the administration kicking and screaming to this destination by cutting off funds for the transfer of any detainees from Gitmo to the U.S.  This effectively used Congress’s sole power of the purse to prevent Obama from making a grievous national security mistake.  The new Congress should continue to keep the ban in its Defense spending bills to prevent Obama from another 180 degree turn.

Adam Serwer at Greg Sargent’s place:

Conservatives committed to burnishing Bush’s legacy were quick to claim vindication, arguing that the decision proved that the detention camp at Gitmo was a good idea all along. But Obama’s decision doesn’t prove this at all.

The administration also released an executive order outlining its new indefinite detention policy. Not much has changed from when I first wrote about it a few months ago — the new procedures formally adopt what Karen Greenberg referred to as “the heart of Bush policy” while making the process marginally fairer by allowing individuals detained indefinitely who have lost their habeas cases to be represented by counsel during periodic reviews every six months.

The president and the secretary of defense also reiterated the importance of trying terrorists in federal courts, but they might as well be shouting into the wind. The ban on funds for transfers of Gitmo detainees to federal court won’t be going away any time soon, but it’s worth remembering that ban actually ensures that fewer terrorists would be brought to justice than would be otherwise. Only six terrorists have ever been convicted in military commissions, compared to hundreds in federal court.

Failing to close Gitmo remains the most visible symbol of the president’s failure to reverse the trajectory of Bush-era national security policy, but the reality, as Glenn Greenwald notes this morning, is that most of the substantive decisions adopting Bush policies were made long ago. The new policies don’t amount to a “reversal” on the issue of whether Gitmo should be closed. Republicans are eager to portray Gitmo staying open as a “vindication” of the prison’s usefulness, but the fact that the indefinite detention order is limited to detainees currently at Gitmo means that the administration won’t be reopening the facility to new detainees, as Bush apologists have suggested doing.

Gitmo isn’t open because the administration doesn’t want to close it, although its efforts in this area are ripe for criticism. It’s still open because Republicans in Congress successfully frightened Democrats in Congress out of giving the administration the necessary funds to close it when they had control of Congress. In the process, they’ve managed to obscure the original reason detainees were brought to Gitmo — to keep them away from the scrutiny of the federal courts. Once the Supreme Court held that federal courts had jurisdiction and even habeas rights, the facility was useless for that purpose. Republicans are determined to keep it open not because we can’t safely imprison terrorists in the U.S., but because they feel its ongoing presence vindicates Bush in the eyes of history.

Glenn Greenwald

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Ten Years After…

Peter Finn at Washington Post:

The Obama administration has shelved the planned prosecution of Abd al-Rahim al-Nashiri, the alleged coordinator of the Oct. 2000 suicide attack on the USS Cole in Yemen, according to a court filing.

The decision at least temporarily scuttles what was supposed to be the signature trial of a major al-Qaeda figure under a reformed system of military commissions. And it comes practically on the eve of the 10th anniversary of the attack, which killed 17 sailors and wounded dozens when a boat packed with explosives ripped a hole in the side of the warship in the port of Aden.

In a filing this week in the U.S. Court of Appeals for the District of Columbia, the Justice Department said that “no charges are either pending or contemplated with respect to al-Nashiri in the near future.”

The statement, tucked into a motion to dismiss a petition by Nashiri’s attorneys, suggests that the prospect of further military trials for detainees held at Guantanamo Bay, Cuba, has all but ground to a halt, much as the administration’s plan to try the accused plotters of the Sept. 11, 2001, attacks in federal court has stalled.

Thomas Joscelyn at The Weekly Standard:

Is it taking this long to prepare for Nashiri’s trial – nearly ten years after the Cole was attacked and 17 American servicemen were killed?

That’s hard to believe. And the Post talked to some “military officials” who “said a team of prosecutors in the Nashiri case has been ready [to] go to trial for some time.” Here is the kicker:

“It’s politics at this point,” said one military official who spoke on the condition of anonymity to discuss policy. He said he thinks the administration does not want to proceed against a high-value detainee without some prospect of civilian trials for other major figures at Guantanamo Bay.

A White House official disputed this, but the Post did not offer any other good reason for the delay.

Is the Obama administration really holding up Nashiri’s trial because they want to make sure civilian trials for other detainees (i.e. the 9/11 co-conspirators) don’t lag behind?

That’s not so hard to believe, unfortunately. The administration has tried to please left-wing human rights groups by (initially, anyway) pushing forward with a federal criminal trial for top al Qaeda terrorists such as Khalid Sheikh Mohammed. If Nashiri’s trial by military commission moves faster than KSM’s trial by federal court, then the administration may have a PR problem.

The Post reports the usual caveat: Nashiri was waterboarded (one of only three al Qaeda terrorists who were subjected to that treatment) and this complicates things “because any incriminating statements Nashiri might have made are probably inadmissible under the 2009 Military Commissions Act.” As a result, prosecutors will be relying heavily on the statements of two Yemeni detainees, both of whom implicated Nashiri during interviews with the FBI.

But here’s the catch. When Nashiri testified before his combatant status review tribunal (CSRT) at Gitmo he made all sorts of admissions. Those concessions cannot be easily dismissed because they weren’t part of an interrogation. Nashiri was free to say whatever he wanted in response to the allegations, and he did.

Nashiri did not admit outright that he conspired with Osama bin Laden. Instead, Nashiri offered implausible explanations for his sordid history. In particular, Nashiri admitted that he met with Osama bin Laden often, but said this was in the context of his fishing business.

Andy McCarthy at The Corner:

None of this is terribly surprising. Prosecuting the Cole case by military commission sticks in the Left’s craw because it shows the incoherence of the Obama/Holder position. They want to treat the war like a crime and endow our enemies with all the rights and advantages of civilian courts; yet, they went military in the Cole case, despite the fact that there is a pending Justice Department civilian indictment addressing that attack. There can be only one explanation for that: they are afraid the case against Nashiri is weak and might not hold up under (slightly) more exacting civilian court due process. That is, the Obama/Holder position is not principled — for all their “rule of law” malarkey, they are willing to go where they have the best chance to win. But there were no military commissions when the Cole was bombed, so what is the basis for trying it militarily? Answer: the 9/11 attacks and the ensuing war . . . except the Left doesn’t accept that it’s a war and the administration wants to prosecute the 9/11 plotters in civilian court. None of it makes any sense.

Jennifer Rubin at Commentary:

Pretty unconscionable stuff, isn’t it? And a final decision on KSM has also been delayed, it is widely assumed, so that the administration need not disclose its intentions before the election. In an administration with plenty of both, this ranks near the top when it comes to hypocrisy and politicizing the administration of justice.

Michelle Malkin:

Before there was 9/11, there was 10/12. Do you remember? We are nearing the 10th anniversary of the USS Cole bombing that took the lives of these American heroes on Oct. 12, 2000:

Electronics Technician 1st Class Richard Costelow
Mess Management Specialist Lakina Francis
Information Systems Technician Tim Guana
Signalman Seaman Recruit Cherone Gunn
Seaman James McDaniels
Engineman 2nd Class Mark Nieto
Electronics Warfare Technician 3rd Class Ronald Owens
Seaman Recruit Lakiba Parker
Engineman Fireman Joshua Parlett
Fireman Apprentice Patrick Roy
Electronics Warfare Technician Kevin Rux
Petty Officer 3rd Class Ron Santiago
Operations Special 2nd Class Timothy Sanders
Fireman Gary Swenchonis Jr
Ensign Andrew Triplett
Seaman Apprentice Craig Wibberly
Hull Maintenance Technician 3rd Class Kenneth Clodfelter.

In another disgraceful act of the Obama Department of Social Justice, the Washington Post reports that the feds are “shelving” prosecution of a major USS Cole bombing suspect at Gitmo. Why? Because of bad optics.

Jim Hoft at Gateway Pundit

Weasel Zippers

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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.

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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

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The Omar Khadr Trial

Spencer Ackerman at Washington Independent:

The pre-trial hearing for a 23-year old Canadian citizen tried before a military commission is likely to host some of the most dramatic testimony of the post-9/11 era this week. That is, if the government and defense attorneys don’t reach a plea deal to settle the case of Omar Khadr, who has been held in detention for nearly eight years and charged with the murder of a U.S. Special Forces soldier.

Khadr’s attorneys plan to call someone known only as “Interrogator #1″ to testify this week. According to attorneys Barry Coburn and Kobie Flowers, Interrogator #1 will testify to having personally threatened Khadr in 2002 with sending the then-15 year old son of an Osama bin Laden associate to Egypt to be raped if he did not cooperate with interrogators at Bagram Air Field in Afghanistan.

Additionally, during cross-examination during the first four days of the hearing — in which Khadr’s attorneys are asking a military judge to exclude all of their client’s statements to his interrogators from the government’s case against him, arguing that they occurred under coercion and even torture — Khadr’s attorneys have asserted that the first person to have ever interrogated Khadr at Bagram was court-martialed from the military for participating in the abuse of detainees.

More Ackerman here, here, here, here, and here

Daphne Eviatar at Firedoglake:

As the government continues to pursue the case of Omar Khadr, it’s becoming clear why the administration chose to try this case in a military commission rather than a regular civilian federal court: a civilian federal court judge would likely throw the case out.

The reason isn’t only that Khadr was, at worst, a child soldier – he was 15 when he was captured in a compound of al Qaeda associates who were friends of his father’s. It’s that his statements recounting what he did before his capture would almost certainly be ruled inadmissible.

Khadr is accused of throwing a grenade in a firefight with U.S. forces in Afghanistan that killed an American soldier. He’s also accused of assisting al Qaeda operatives – all friends of his father’s – in making and laying explosives.

Although almost killed in the firefight, Khadr eventually regained consciousness at the US air base in Bagram, where he was immediately interrogated. Among other things, he provided valuable information about al Qaeda operatives.

Four of his interrogators took the stand last week in a pretrial hearing in Khadr’s war crimes case now pending in the military commission at Guantanamo Bay.

So far, two military interrogators and two FBI agents have described how they ingratiated themselves to the young teenager by bringing him M&M’s, McDonald’s sandwiches and video games. One, an attractive young woman identified only as “Number 11,” says she was chosen to question him in the hopes that he would open up to her as “a mother figure.” Whether he saw the lithe twenty-something brunette as motherly or something else is questionable. (Journalists at Gitmo last week took to calling this witness “the honeypot.”)

Setting aside the ethics of using an attractive young woman to lure an adolescent boy, there’s a striking problem raised by all of the interrogators’ testimony so far: not one read Khadr his rights. That was U.S. policy at the time, because the government’s goal was to obtain military intelligence, not to prosecute crimes.

These days, critics mock the idea that terror suspects should be read Miranda rights – a Supreme Court rule created to ensure the 5th Amendment right against self-incrimination. But what’s become clear in the military commission proceedings last week is the critical role that rule plays: to ensure that confessions are voluntary, and that the suspect knows that his statements could be used against him later.

C. Dixon Osburn at Huffington Post:

The back and forth this week may determine what evidence is admitted at his trial that is set to begin in July, unless the defendant and government come to an agreement, which is allegedly in the works.

The contrasts strike me in politics as well. Representative McKeon this week said he plans to introduce a series of amendments to the House Defense Appropriations Bill, one of which would force all trials of 9/11 defendants into military commissions. Why would anyone do that other than to delay justice?

The federal civilian courts have tried more than 400 terrorism cases since 9/11; the military commissions have tried only three. The federal civilian courts follow a Constitution that has stood us in good stead for more than 200 years; the military tribunals just received yet another set of rules last week, rules which will face years of constitutional challenges to sort out.

Senator Lindsey Graham argues that suspected terrorists do not deserve the same rights as someone who robbed a 7/11, rights like due process. Yet, Col. Lawrence Wilkerson, chief of staff to former Secretary of State Colin Powell, said recently that President Bush, Vice President Cheney, and Secretary of Defense Donald Rumsfeld knew that the vast majority of detainees at Guantanamo were innocent. Senator Graham, doesn’t due process help us sort out the good from the bad? Neither Guantanamo nor military commissions have delivered justice that is swift or sure.

I look forward to the hearing. I take seriously the allegations of wrongdoing, just as I take seriously our obligations as a country to live by our values and provide a fair, transparent and just adjudication. I am sure the contrasts will continue to strike me, as I do jumping jacks to stay fit while downing the local fried KFC offered to visiting observers.

Adam Serwer at Tapped:

Omar Khadr is accused of throwing a grenade that killed Sgt. First Class Christopher J. Speer during a battle in Afghanistan in 2002. Khadr was 15 at the time, and his lawyers claim that Khadr underwent abusive treatment and torture after being captured, including stress positions, rape threats, and being used as a “human mop” after he urinated in his cell.

Military commissions proceedings are currently under way at Guantanamo to determine the admissibility of evidence the defense says was gained through coercion. The stakes are high, because as Spencer Ackerman reports, a loss for the government could imperil an indefinite number of future military commissions cases, while successful admission of such evidence will call into question the fairness of the proceedings. The other option the government is considering is a plea deal, which would allow the government to avoid dealing with such questions at all.

The plea deal reportedly offered would keep Khadr in jail for five more years, and the defense rejected it. That makes sense. Of the previous three military commissions cases that ended in convictions, two got fairly light sentences. Salim Hamdan, Osama bin Laden‘s limo driver and bodyguard, got five months plus time served, and is already back home in Yemen. David Hicks, an Australian who fought on behalf of the Taliban in Afghanistan, got a plea deal and served nine months. Are Khadr’s alleged offenses, especially given his age at the time, that much more serious than the prior two convicts?

Andrew Sullivan:

Canadian Omar Khadr has not shown up for his military commission. Complaining of pain in the eye he lost while being captured, he refuses to be transported because he won’t wear the absurd and disgusting Padilla-style ear-muffs and eye-goggles to keep him blind and deaf in transit (see above). The truck that would transport him has no windows anyway, but he is still required to wear the total sensory deprivation gear. His quote:

“The only purpose is to humiliate me.”

Who can doubt him? The Cheney sadism endures. To Obama’s shame.

More Ackerman:

GUANTANAMO BAY — Late-breaking disappointment for Omar Khadr’s defense: the judge in his military commission has ordered that Khadr must submit to a government psychological exam before the defense can present its mental-health experts. Long story short, because of the judge’s provision to allow for four weeks for the exam, that means it’s going to be early June before the defense presents its case in the pre-trial suppression hearing. Read all about it in my brand-new Washington Independent piece. I was thisclose to beating Reuters‘ Jane Sutton. But no one beats Reuters’ Jane Sutton.

So this means I’m going to try to catch a commercial flight off this island on Wednesday if that’s at all possible. Don’t know whether it will be. But I miss Attackerlady like a motherfucker. And yes, Joey, I am still trying to catch the Converge show at the 930 on Wednesday night, and thereby floorpunch for justice.

UPDATE: Spencer Ackerman at Washington Independent

John Cole

UPDATE #2: Emptywheel at Firedoglake

Adam Serwer at The American Prospect

UPDATE #3: Dahlia Lithwick at Slate

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The Times Of London Finds A Document

Tim Reid at Times Of London:

George W. Bush, Dick Cheney and Donald Rumsfeld covered up that hundreds of innocent men were sent to the Guantánamo Bay prison camp because they feared that releasing them would harm the push for war in Iraq and the broader War on Terror, according to a new document obtained by The Times.

The accusations were made by Lawrence Wilkerson, a top aide to Colin Powell, the former Republican Secretary of State, in a signed declaration to support a lawsuit filed by a Guantánamo detainee. It is the first time that such allegations have been made by a senior member of the Bush Administration.

Colonel Wilkerson, who was General Powell’s chief of staff when he ran the State Department, was most critical of Mr Cheney and Mr Rumsfeld. He claimed that the former Vice-President and Defence Secretary knew that the majority of the initial 742 detainees sent to Guantánamo in 2002 were innocent but believed that it was “politically impossible to release them”.

General Powell, who left the Bush Administration in 2005, angry about the misinformation that he unwittingly gave the world when he made the case for the invasion of Iraq at the UN, is understood to have backed Colonel Wilkerson’s declaration.

Colonel Wilkerson, a long-time critic of the Bush Administration’s approach to counter-terrorism and the war in Iraq, claimed that the majority of detainees — children as young as 12 and men as old as 93, he said — never saw a US soldier when they were captured. He said that many were turned over by Afghans and Pakistanis for up to $5,000. Little or no evidence was produced as to why they had been taken.

He also claimed that one reason Mr Cheney and Mr Rumsfeld did not want the innocent detainees released was because “the detention efforts would be revealed as the incredibly confused operation that they were”. This was “not acceptable to the Administration and would have been severely detrimental to the leadership at DoD [Mr Rumsfeld at the Defence Department]”.

Doug Mataconis at Below the Beltway:

Wilkerson has been critical of Cheney and Rumsfeld in the past, and I’m sure the response on the right will be to accuse Wilkerson of having a grudge for the former Bush Administration. Nonetheless, these are fairly serous allegations and it will be interesting to see if anyone pays attention to them on this side of the pond.

Radley Balko:

To borrow from Walt Kelly, we have met the enemy, and he is us.

Emptywheel at Firedoglake:

Now, as Mary has pointed out, there was actually a study done in summer 2002 that showed that vast majority of those at Gitmo were innocent. So this is not news.

But I certainly welcome some public discussion about the maltreatment of a number of innocent people at Gitmo as we enter back into discussions on closing Gitmo.

Jim White at Firedoglake:

While doing background research and reading that was inspired by this post and the ensuing comment thread at Emptywheel, I ran across a document that I believe outlines the Joint Chiefs policy that was cobbled together to justify the long term detention and interrogation of innocent civilians that was described in the Times article.

The publication, which is a 298 page pdf file, can be found here. The document is titled “Joint and National Intelligence Support to Military Operations”. I have not read the entire document, but my attention was directed to Appendix G through my initial Google internet search on the term “mobile detainee review and screening teams”. Appendix G is titled “Joint Exploitation Centers” and has this graphic at the beginning:

joint exploitation centers

Moving down to section 4 of this appendix, titled “Joint Interrogation and Debriefing Center” we find the description of the responsibilities of the centers:

b. Responsibilities. Service component interrogators collect tactical intelligence from EPWs and ECs based on joint force J-2 criteria. EPWs (i.e., senior level EPWs) and ECs are screened by the components; those of further intelligence potential are identified and processed for follow-on interrogation and debriefing by the JIDC to satisfy theater strategic and operational requirements. In addition to EPW and ECs, the JIDC may also interrogate civilian detainees, and debrief refugees as well as other nonprisoner sources for operational and strategic information. The JIDC may identify individuals as possessing intelligence of national strategic significance; these persons may be relocated to a strategic exploitation center for longer-term interrogation.

Acronyms present here: EPW = enemy prisoner of war; EC = enemy combatant; J-2 = intelligence directorate of a joint staff; JIDC = joint interrogation and debriefing center.

There is a lot packed into this small paragraph. We start with normal interrogation and debriefing of enemy prisoners of war and enemy combatants, but somehow these same joint interrogation and debriefing centers are supplied with civilian detainees and even refugees [don’t refugees have special, protected status under the Geneva Conventions?] to interview, and then, somehow, from among these various groups interviewed, the JIDC “may identify individuals” who are sent for longer term interrogation (i.e. to Guantanamo) if the JIDC decides that they posses “intelligence of national strategic significance”. There seems to be no restriction that the long-term detainees only come from the EPW or EC groups, so innocent civilians could end up in Guantanamo under this policy, just as Wilkerson has documented.

Riverdaughter at The Confluence:

The London Times on Line confirms what I’ve suspected for some time:  George W. Bush ‘knew Guantánamo prisoners were innocent’. In our continued hunt to provide our nation with a false sense of security against terrorists, we’ve now issued a  fatwa on one of our own citizens. We continue to ignore the justice system as well as the Treaties we have signed to uphold.  Why are these things continuing?  Why isn’t our justice system being used to hold these decision makers accountable for their abuse of executive power?

An aide to Colin Powell has come forward to provide evidence showing exactly how many folks were innocently imprisoned.  Exactly how long will it take us to find out they were also subject to interview ‘techniques’ that are criminal.  Impeachment may be off the table for Bush and Cheney, but should they be subjected to war crimes trials?

Andrew Sullivan:

Lie after lie after lie. And the illegal imprisonment and torture of individuals often completely unrelated to terrorism at all. And no accountability. This was America for almost eight years. And Obama has perpetuated the avoidance of responsibility with staggering diligence.

Jon Bershad at Mediaite:

In these days where we have a president who half the country hates with a passion and half the country blindly follows despite his questionable decisions, it’s nice of The Times in London to remind us of the happy days of a few years ago, back when we had a president who half the country hated with a passion and half the country blindly followed despite his questionable decisions.

That’s right, it’s a brand new W. scandal and, if it turns out to be true, it could be quite a damaging one. Colonel Lawrence Wilkerson, a former top aide to Colin Powell, has claimed that George W. Bush, Dick Cheney and Donald Rumsfeld were all aware that many prisoners in Guantanamo Bay were entirely innocent but left them there anyway. The accusations were made in a document that The Times has obtained.

[…]

It’ll be interesting to see how much of an uproar this document makes here in America. If it does, chances are it’s because the release of the WikiLeaks video earlier this week brought the Iraq War screaming back into the public consciousness. Besides, Liberals will probably have missed their time being the outraged party for eight years. To be honest, it’s not nearly as fun being the guys on top.

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Habeas In Gitmo’s World

Spencer Ackerman at Washington Independent:

The Wall Street Journal reports:

A suspected al Qaeda organizer once called “the highest value detainee” at Guantánamo Bay was ordered released by a federal judge in an order issued Monday.

Mohamedou Ould Slahi was accused in the 9/11 Commission report of helping recruit Mohammed Atta and other members of the al Qaeda cell in Hamburg, Germany, that took part in the Sept. 11, 2001, terrorist attacks.

That doesn’t mean Slahi’s release from Guantanamo Bay is imminent, or even definite, said Nancy Hollander, the Albuquerque-based attorney who argued Slahi’s habeas case. “There’s figuring out where he can go, and if the government is going to move for a stay or an appeal,” Hollander said, adding that Slahi “doesn’t even know yet” that he won his case. Nor has Hollander read it: The ruling, by Judge James Robertson, is classified. Hollander or an associate will have to travel to the U.S. District Court for the District of Columbia just to have a hope of reading it.

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Bill Roggio at The Long War Journal:

Slahi is known to have recruited several al Qaeda operatives before his detention in Mauritania in November 2001. His most high-profile recruits were the top members al Qaeda’s cell in Hamburg, Germany — the key planners and operatives of the 9/11 attack. He was “a significant al Qaeda operative,” who was “well known to U.S. and German intelligence,” according to the 9/11 Commission’s final report.

While in Hamburg in 1999, Slahi arranged for Ramzi Binalshibh, one of the key facilitators of the 9/11 operation, and three of his cohorts to travel from Germany to Afghanistan so that they could train in al Qaeda’s camps and swear allegiance to Osama bin Laden. Binalshibh’s three friends were: Mohammed Atta, Marwan al Shehhi, and Ziad Jarrah–the suicide pilots of American Airlines Flight 11, United Airlines Flight 175, and United Airlines Flight 93, respectively.

Binalshibh, Shehhi, and Jarrah met with Slahi in late 1999. Slahi convinced the three terrorists to travel to Afghanistan for training instead of rushing off to Chechnya to fight the Russians. Slahi told the operatives to obtain a Pakistani visa and then provided instructions on “on how to travel to Karachi and then Quetta, where they were to contact someone named Umar al Masri at the Taliban office,” according to the 9/11 Commission.

“Following Slahi’s advice, Atta and Jarrah left Hamburg during the last week of November 1999, bound for Karachi,” the 9/11 Commission report concluded. “Shehhi left for Afghanistan around the same time; Binalshibh, about two weeks later. Binalshibh remembers that when he arrived at the Taliban office in Quetta, there was no one named Umar al Masri. The name, apparently, was simply a code; a group of Afghans from the office promptly escorted him to Kandahar. There Binalshibh rejoined Atta and Jarrah, who said they already had pledged loyalty to Bin Laden and urged him to do the same. They also informed him that Shehhi had pledged as well and had already left for the United Arab Emirates to prepare for the mission.”

Emptywheel at Firedoglake:

Read the whole Carol Rosenberg story. As she notes, the judge in question, James Robertson, has had just one other habeas case. And in spite of the fact that he found that case to be “gossamer thin,” he upheld that prisoner’s detention. Suggesting he has ruled Slahi released either because of the torture he underwent (including threats of death that–we know from the OPR Report–John Yoo had warned were clearly torture), or he was set up in a major way.

And, as Rosenberg further notes, Robertson is the guy who first ruled Hamdan’s case to be unconstitutional.

Golly, you think a judge will finally challenge the notion that the government can just detain someone indefinitely because we tortured him into a false confession?

There’s no way Obama and Holder will sign off on freeing a guy who’s directly connected to 9/11 when they’re mired in negotiations with Congress over closing Gitmo and promising that a decision on where to try KSM is merely “weeks away.” Quoth The One last May, while he stood in front of the Constitution: “I am not going to release individuals who endanger the American people,” even if the evidence against them is so tainted as to make them untriable. Slahi is a textbook case; the question is whether Obama will keep his word and try to develop “clear, defensible, and lawful standards for those who fall into this category” or whether he’ll pack Slahi off to Canada or Mauritania or god knows where else in the hope that they’ll lock him up there. In the meantime, I assume they’ll delay by appealing the ruling: Even if they lose and the media has a fainting spell over the techniques applied to Slahi, the White House can blame Bush and celebrate this as a vindication of the due process principle by which untriable archterrorists must be returned to the battlefield.

Daniel Foster at The Corner

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The Word Of The Day Is “Grahamanuel”

Jonathan Weisman and Evan Perez at WSJ:

The White House is nearing a deal with a bipartisan group of senators to close the Guantanamo Bay prison and pave the way for more detainees to be tried before military commissions, a move that would reverse a signature Obama administration security policy.

The deal would put the alleged mastermind of the attacks of September 2001, Khalid Sheikh Mohammed, his fellow plotters and other top terror suspects before revamped military commissions, rather than in civilian trials as the Obama administration had sought.

Andy McCarthy at The Corner:

The Wall Street Journal reports that Sen. Lindsey Graham and the White House are close to a deal that would close Guantanamo Bay in exchange for some amorphous concessions on the legal proceedings to which terrorist detainees will be subjected.

The Journal says two other Senate Republicans (not identified) are prepared to join Graham in breaking ranks, which ensures that the pact will be filibuster-proof.

There’s not much more I can say beyond what I’ve already said (see here and here) about what a disaster this will be for our national security. Senator Graham will try to spin it as a great result — just as the Gang of 14 compromise was spun, despite its acquiescence in the Left’s torpedoing of several qualified Bush nominees, leaving unfilled slots that Obama is now filling with his kind of judges. It will be a terrible result.

The good parts of the deal will be either things we’d have gotten anyway (like no civilian trial for KSM) or unenforceable (like promises that the Obama administration will be more open to using options other than the criminal justice system for top terrorists). The bad parts will be horrific, and no matter what Senator Graham says, he can’t do a thing about them: The place or places where the terrorists are held will become targets that we will have to spend tons of money to protect; the tons of money we have already spent to make Gitmo a first-rate, ideally secured facility, will be lost; and, most significantly, the physical presence in the U.S. of the detainees will mean they are unquestionably in the jurisdiction of the federal courts, where judges will be able to say the Constitution requires all sorts of remedies, including release.

Spencer Ackerman:

If the Wall Street Journal has it right, the Grahamanuel deal to swap a Khalid Shaikh Mohammed military commission for the closure of the Guantanamo Bay detention facility is inching forward in the Senate. Well, sort of. The paper claims that anonymous Democratic Senate aides “say Mr. Graham believes two other Republicans are willing to join the compromise.” Still, presume that it’s true.

OK then. I usually leave the whip-counting to my friend David Dayen, who does it better than I possibly could. But a couple things. First, who’s really going to vote against the Afghanistan war funding request, which is the legislative vehicle for the money for shutting down the GTMO detention facility — thereby calling into question whether the White House needs Graham to close GTMO in the first place. I know, I know, that’s being tragically literal: the White House just wants to work with Graham on a variety of stuff, from climate change to immigration reform to all manner of other things that no Republicans will vote for. This is the choice.

But that brings the second point. Say the opposition to closing Guantanamo — will John McCain prove to be against it after he’s been for it? — results in either a) the Thomson-purchase funding gets stripped from the Afghanistan request or b) somehow manages to provoke a credible filibuster threat to the Afghanistan funding request. How many progressive Democrats are going to back a bill that paves the way for a military commission for KSM in exchange for entrenching all the bad stuff (except for torture) making GTMO problematic in a new zip code? If Graham is really dedicated to getting the White House on a path to seek a coalition for a filibuster-proof majority — well, then, we’re in the legislative position that we’ve been in on health care or the jobs bill or whatever else, where everyone’s vote takes on outsized importance. So, if, say, progressives like Russ Feingold or Al Franken or whomever — Arlen Specter if Sestak keeps pressing him, perhaps — say they’re not going to vote for such a crummy deal, who knows what could happen. Just saying.

Ed Morrissey:

Why should we pay hundreds of millions of dollars to build the facility in Thomson?  It will have the very same kind of military commission courtroom as we built in Gitmo, for the very same purpose.  It will use the very same military commission system that Congress authorized three times, one that Graham insists will work and even the Obama administration agreed to use in several cases — and that can be conducted in Gitmo, too.  The processes and resources available to detainees in Thomson have been available to detainees in Gitmo for several years now.

So why spend the money and the time just to transport terrorists into the US?  Vanity, and not just presidential vanity, either.  Barack Obama may have spent three years claiming that Gitmo encourages terrorism, but he wasn’t the only one — Graham spouted the same nonsense, too, as did Democrats and a few other Republicans.  What exactly is the evidence for this, other than the proclamations of a few politicians?  Terrorism existed before Gitmo opened; we have a massive hole in the ground in Manhattan to testify to that.  It will exist regardless of where we hold detainees.  The terrorists are not at war with us because of Gitmo, and the suggestion that they are is absurd.

Adam Serwer at Tapped:

Take with the necessary salt, given that so much of it is off the record.

I will say that if this is just about closing Gitmo, it’s a profoundly stupid idea–and with the climate bill and immigration reform in the balance, it’s probably not just about Gitmo–but for reasons that I’ll explain I still think it’s a bad offer. The money for closing Gitmo, as Spencer Ackerman points out, is in the Afghanistan war funding request, so filibustering it would be incredibly bad politics. Graham’s partners won’t even name themselves, so it’s unclear this deal is coming along with anyone but Graham. Worse, trying KSM in a military commission might mean putting off a trial of any kind indefinitely because of possible constitutional challenges.

[…]

The KSM trial is an opportunity to banish–or at least diminish–the totemic power of al Qaeda terrorists, a power which for narrow political reasons the Republican Party has worked to enhance. I disagree with Wittes in that I think our current legal structure is entirely adequate, but I also don’t see how a “better” one could be constructed in a climate of the kind of paralyzing fear that makes us afraid to try murderers in own legal system.Wittes point on the “rule of law message” is well taken. Part of the problem the administration is having here is that it has no consistent message to offer.

Paul Mirengoff at Powerline:

Lindsey Graham has been called a RINO (Republican in name only). The label doesn’t fit because he votes with Republicans most of the time. But to me, Graham is worse than the RINOs because, unlike that breed, he comes from a rock-ribbed conservative state.

A South Carolina Senate seat is a terrible thing to waste on a squishy figure like Graham, who mindlessly subscribes to portions of the liberal narrative and relishes opportunities to stick it to conservative Republicans.

UPDATE: Sen. Graham’s office is disputing the WSJ’s report that a deal is close. It claims that that “we’re not near a deal.”

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Throwing The Car Into Reverse

Matthew Yglesias:

Big win for the Cheney family:

President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.’s plan to try him in civilian court in New York City.

I’m not going to attempt to defend this. I’ll merely note that it’s hard enough to have any kind of civil liberties in this country when the opposition party is pushing for them. When what you have is an opposition that’s pressuring incumbent officials to seize more power for themselves the incentive structure is nuts and the constitution is going to be shredded.

Andy McCarthy at The Corner:

The real agenda here is to close Gitmo. That’s the ball to keep your eye on. The Post is trying to soften the opposition to shuttering the detention camp by portraying beleaguered, reasonable Obama as making a great compromise that will exasperate the Left. The idea is to strengthen Sen. Lindsey Graham’s hand in seeking reciprocal compromise from our side.

This, however, is a matter of national security, not horse-trading over a highway bill. You don’t agree to do a stupid thing that endangers the country just because your opposition has magnanimously come off its insistence that you do two stupid things that endanger the country.

If a deal to grant military commissions in exchange for closing Gitmo happens, it is a major win for the Obama Left and an enormous loss for public safety.

Adam Serwer at Tapped:

It isn’t all the president’s fault. The Democrats have assumed their usual fetal position on national security at a time when the president polls high on the issue, Pakistan is hemming up high-level members of the Taliban and the front pages are filled with news of high level terrorist leaders being vaporized by drone strikes. The last administration presided over the worst terror attack on American soil, led the country into an unnecessary war, and disgraced the country with torture. Still the Democrats cower in fear. If they won’t stand up for the rule of law now, when the facts are on their side, imagine how they’d react if, G-d forbid, there were to be another terrorist attack. If the GOP wanted to dust off the Sedition Act, Democrats would politely ask whether they were in the mood for the 1798 version or the 1918 version.

Obama said that the choice between our security and our ideals is a false choice. He was right. The real choice was always between our ideals and our politics, and if the above story is true, then Obama will have made the obvious, if profoundly disappointing, choice.

Scott Johnson at Powerline:

The Washington Post reports that President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed et al. be prosecuted in a military tribunal rather than federal court in New York City. But this outcome would be accompanied by some kind of agreement with Lindsey Graham to help the administration secure congressional funding and legal authority to close Gitmo in favor of a facility within the United States.

I hesitate to criticize the outcome sight unseen, but Graham is apparently the key actor in negotiating an agreement with the Obama administration on closing the Guantanamo detention facility. I understood Graham to say as much in a recent interview with Greta Van Susteren on her Fox News show in which he asserted the desirability of closing Gitmo.

Closing Gitmo and bringing the detainees to the United States is a bad idea in itself. Closing Gitmo would also be an unacceptable price to pay for saving Barack Obama and Eric Holder from the folly of their unworkable plan to bring KSM to the United States and cloak them in the mantle of the United States Constitution.

Max Boot at Commentary:

Graham’s grand bargain seems like a good one to me. He recognizes that the key issue is not the future of Gitmo — one holding facility — but the overall method by which detainees will be processed, held, and if necessary, tried. We need binding rules, and the best way to achieve them is through bipartisan consensus — assuming the Supreme Court would go along. If I had my druthers, I would suggest the deal include special National Security Courts within the federal judicial system, rather than military commissions, to try detainees, but that’s a small matter compared to the importance of denying high-level terrorist suspects the normal protections of the criminal-justice system.

Spencer Ackerman:

It’s that kind of evening and I’m in that kind of mood, so I’m going to ask just how much water Graham actually carried. This bill was never going to pass, although, in fairness, it could have been (or might still be!) politically troublesome as long as the Democrats choose to remain supine on security issues. So now Graham visibly goes to bat for the administration’s right to try detainees in the federal courts — yes, this is how far we’ve sunk — and so Rahm gets to use that in internal discussions with, like, Eric Holder and David Axelrod for why all roads to closing Guantanamo Bay go through the stand-up G Lindsey Graham. You can almost feel that military commission for KSM coming closer… closer… closer…

You don’t think McCain and Lieberman teed up Graham for this, do you? Naahhhhh…. (Like I said, it’s that kind of night.)

David Kurtz at TPM:

Looks like being Obama’s attorney general requires putting your manhood in a blind trust.

Let me just make one point on the politics of this decision, since politics is clearly what’s driving it. If the White House retreats from a civilian trial of Khalid Sheik Mohammed and the others, not only is it terribly weak optics in the short run, but it cements in the public mind for the long term all the worst fears Republicans have not just been able to sow, but will continue to sow.

Think of the worst possible scenario for what would have happened to New York City, no matter how remote, then insert that into a campaign ad. There’s no way to disprove what might have been. Human nature will be to focus on the bullet that we supposedly dodged. Whereas if you actually suck it up and proceed with the trial, it takes all the wind of out that sail. People still go to work, buildings don’t fall down, the ground doesn’t open up and swallow Manhattan. Democrats show they’re strong and resolute and the issue goes away.

Ann Althouse:

But enough about metaphors. Look at what David “The Horror” Kurtz is really saying: Obama should not do what he thinks is right but what will be most effective at avoiding damaging criticism. Ah, but what about people like me, DTHK, who will criticize him for doing things mainly to dodge criticism? Then maybe Obama can get back to just doing what he thinks is right — not because it’s right, mind you, but because it’s the best way to dodge criticism. That would be cool or ridiculous or something.

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“The First Thing We Do, Let’s Kill All The Lawyers”

Mike Levine:

A day after a conservative group released a video condemning the Justice Department for refusing to identify seven lawyers who previously represented or advocated for terror suspects, Fox News has uncovered the identities of the seven lawyers.

The names were confirmed by a Justice Department spokesman, who said “politics has overtaken facts and reality” in a tug-of-war over the lawyers’ identities.

“Department of Justice attorneys work around the clock to keep this country safe, and it is offensive that their patriotism is being questioned,” said Justice Department Spokesman Matt Miller.

The video by the group Keep America Safe, which dubbed the seven lawyers “The Al Qaeda 7,” is the latest salvo in a lengthty political battle.

For several months, Sen. Chuck Grassley (R-IA) has led an effort to uncover politically-appointed lawyers within the Justice Department who have advocated for Guantanamo Bay detainees or other terror suspects.

“The administration has made many highly questionable decisions when it comes to national security, ” Grassley said in a recent statement. “[Americans] have a right to know who advises the Attorney General and the President on these critical matters.”

An extensive review of court documents and media reports by Fox News suggests many of the seven lawyers in question played only minor or short-lived roles in advocating for detainees. However, it’s unclear what roles, if any, they have played in detainee-related matters since joining the Justice Department.

Daniel Foster at The Corner:

The names of the seven DOJ lawyers who represented or advocated for Guantanamo Bay detainees have been uncovered by Fox News and confirmed by the Justice Department. Looks like great investigative work from Fox. And they play it pretty even, saying that most of the lawyers in question “played only minor and short-lived roles in advocating for detainees,” and pointing out that the Bush Justice Department employed lawyers who had been similarly engaged.

The one exception might be Assistant Attorney General Tony West, who works in DOJ’s Civil Division. West represented “American Taliban” John Walker Lindh for several years.

Justin Elliott at TPM:

In Liz Cheney’s worldview, Rudy Giuliani is a disloyal al Qaeda sympathizer.

Let us explain.

Yesterday, Cheney’s outfit, a group called Keep America Safe, went up with a blistering ad that attacked Justice Department lawyers who previously represented Guantanamo detainees and are now working on detainee issues. The ad dubbed the lawyers “the Al Qaeda Seven” and asked “whose values do they share?” while flashing an image of Osama bin Laden.

It turns out that among the many high-profile lawyers who have represented so-called “terrorist detainees” is a top attorney with Rudy Giuliani’s firm, Bracewell Giuliani, according to court documents examined by TPMmuckraker.

Bracewell Giuliani Attorney Carol Elder Bruce, a distinguished white collar litigator, is listed as counsel in two detainee habeas cases, EL-MASHAD et al v. BUSH et al and ALLADEEN et al v. BUSH et al. Both are in the U.S. District Court in the District of Columbia.

El-Mashad, an Egyptian national who was captured near the Pakistan-Afghanistan border in late 2001, was released to Albania late last month.

To be clear, there is absolutely nothing wrong with attorneys representing detainees. In fact, the work — usually done on a pro bono basis — is seen by many as admirable.

As the DOJ pointed out in a letter to Republican senators who argue that lawyers who represented detainees have a conflict of interest, at least 34 of the 50 largest U.S. law firms have either represented detainees or filed amicus briefs in support of detainees.

Meghan Clyne at Daily Caller:

Senator Charles Grassley, Republican of Iowa, has been relentless in trying to determine which lawyers at the Department of Justice previously defended, advocated for or worked on issues pertaining to Guantanamo Bay detainees and other alleged terrorists. While he’s at it, he may want to expand his inquiry — to the halls of the White House itself.

At least two attorneys hired to serve in the White House counsel’s office — part of President Obama’s in-house team of legal advisers — represented Guantanamo detainees in their previous legal careers.

While an associate at the Washington office of the prestigious law firm Wilmer Cutler Pickering Hale & Dorr, Michael Gottlieb — tapped for a White House associate counsel position — was part of the team that successfully argued on behalf of alleged terrorist Lakhdar Boumediene (of Boumediene v. Bush fame).

And while a student at Yale Law School, one of Gottlieb’s fellow associate counsels, Jonathan Kravis, volunteered his time as part of the team that ultimately secured legal victory for alleged Yemeni terrorist Salim Hamdan in Hamdan v. Rumsfeld.

Adam Serwer at The American Prospect:

The “Gitmo Nine” aren’t terrorists. They weren’t captured fighting for the Taliban. They’ve made no attempts to kill Americans. They haven’t declared war on the United States, nor have they joined any group that has. The “Gitmo Nine” are lawyers working in the Department of Justice who fought the Bush administration’s treatment of suspected terrorists as unconstitutional. Now, conservatives are portraying them as agents of the enemy.

In the aftermath of September 11, the Bush administration tried to set up a military-commissions system to try suspected terrorists. The commissions offered few due process rights, denied the accused access to the evidence against them, and allowed the admission of hearsay — and even evidence gained through coercion or abuse. The Bush administration also sought to prevent detainees from challenging their detention in court. Conservatives argued that the nature of the war on terrorism justified the assertion of greater executive power. In case after case, the U.S. Supreme Court sided with the administration’s critics.

“These lawyers were advocating on behalf of our Constitution and our laws. The detention policies of the Bush administration were unconstitutional and illegal, and no higher a legal authority than the Supreme Court of the United States agreed,” says Ken Gude, a human-rights expert with the Center for American Progress, of the recent assault on the Justice Department. “The disgusting logic of these attacks is that the Supreme Court is in league with al-Qaeda.”

The attorneys who challenged the Bush administration’s national-security policies saw themselves as fulfilling their legal obligations by fighting an unconstitutional power grab. At heart, this was a disagreement over process: Should people accused of terrorism be afforded the same human rights and due process protections as anyone else in American custody? But rather than portray the dispute as a conflict over what is and isn’t within constitutional bounds, conservatives argue that anyone who opposed the Bush administration’s policies is a traitor set to undermine America’s safety from within the Justice Department.

“Terrorist sympathizers,” wrote National Review‘s Andrew McCarthy in September, “have assumed positions throughout the Obama administration.”

[…]

By this point the rest of the conservative media had begun taking up the cause, referring to the lawyers Weisch had mentioned as “The Gitmo Nine.” At the Washington Examiner, Byron York accused Holder of “stonewalling” Congress. “Who are the Gitmo 9?” McCarthy demanded to know from his perch at National Review. Then, last Friday, Republicans responded to Weisch, accusing the Justice Department of being “at best nonresponsive and, at worst, intentionally evasive.” The Washington Times followed up, echoing McCarthy’s demand for the identities of the so-called Gitmo Nine. By that point, two Justice Department lawyers, Deputy Solicitor General Neal Katyal and Human Rights Watch former senior counsel Jennifer Daskal, had already been identified. Unlike the Republican senators, whose concerns were centered around “potential conflicts of interest,” the Times editorial argued that “the public has a right to know if past work for terrorist detainees has biased too many of Mr. Holder’s top advisers.” It was a delicate way of suggesting that lawyers who were holding the government to its constitutional obligations were in fact, if not agents of, sympathetic to al-Qaeda.

On Tuesday, all attempts at subtlety were abandoned. Keep America Safe, the conservative advocacy group which was founded by Liz Cheney to defend torture and oppose civilian trials for suspected terrorists and which has close ties to McCarthy, turned the “Gitmo Nine” into the “al-Qaeda Seven.” The group put out a Web video demanding that Holder name the other Justice Department lawyers who had previously represented terrorist detainees or worked on similar issues for groups that opposed the Bush administration’s near-limitless assumption of executive power. “Whose values do they share?” a voice asks ominously. “Americans have a right to know the identity of the al-Qaeda Seven.” The ad echoed McCarthy’s references to the “al-Qaeda bar” from months earlier.

“This is exactly what Joe McCarthy did,” said Gude. “Not kind of like McCarthyism; this is exactly McCarthyism.”

The attorneys who secured greater due process rights for detainees weren’t attempting to prevent terrorists from being punished — they were attempting to prevent the government from assuming limitless power to imprison people indefinitely based on mere suspicion. Not all of those fighting the Bush administration’s policies even believed that terrorists should be tried in civilian courts. Katyal, who litigated the 2006 Hamdan v. Rumsfeld case in which the Supreme Court decided in the detainees’ favor, advocated for using military courts martial — and later, authored an op-ed for The New York Times alongside former Bush lawyer Jack Goldsmith arguing for a new “national security court” to try terrorists. Still, Katyal held that Bush’s general policy for trying terrorists “closely resemble those of King George III.”

Michelle Malkin:

You have a right to know. Now you do, thanks to the news organization that the White House communications team has spent the last year trying to delegitimize.

Spencer Ackerman at Washington Independent:

Via Ben Smith, Keep America Safe, the Cheneyite national-security revival tour, has a new video out insinuating that Justice Department attorneys who represented Guantanamo detainees are sympathetic to al-Qaeda, a brazen slander that Sen. Chuck Grassley (R-Iowa) put forward last week against such DOJ officials as Neal Katyal and Jennifer Daskal. Rushing to their defense is retired Air Force Col. Morris Davis, the chief prosecutor of the Cheneys’ beloved military commissions, who told me the attacks are “outrageous.”

“Neal in particular was and is one of the sharpest and hardest-working attorneys I’ve known in the 27 years I’ve been practicing law,” said Davis, who supervised prosecutions at Guantanamo from 2005 to 2007. “It is absolutely outrageous for the Cheney-Grassley crowd to try to tar and feather Neal and Jennifer and insinuate they are al-Qaeda supporters. You don’t hear anyone refer to John Adams as a turncoat for representing the Brits in the Boston Massacre trial.” Davis, of course, opposed Katyal on the famous case of Guantanamo Bay detainee Salim Ahmed Hamdan’s habeas corpus rights — a case that Katyal won in the Supreme Court, striking down the first iteration of the military commissions. “He was the epitome of professionalism, and I can’t say that about a lot of the folks involved” in the commissions, Davis continued.

“If you zealously represent a client, there’s nothing shameful about that,” said the retired Air Force colonel. “That’s the American way.”

Thomas Joscelyn at The Weekly Standard:

Do “war on terror” detainees deserve full constitutional rights? My hunch is that most Americans would say no. And, ironically, so has Neal Katyal, when it comes to the detainees held at Bagram. Katyal has reportedly defended the indefinite detention of terrorist suspects as a member of the Obama administration.

This speaks well of Katyal as it shows he is capable of making a responsible national security argument. Katyal’s defenders say he has always seen a difference between Bagram and Guantanamo because, well, one is at an airbase in Cuba and the other is the middle of a warzone in Afghanistan.

But leave it to a lawyer to argue that the Constitution is under assault if detainees are tried by a military commission in Cuba, while everything is just fine if (all else equal) they are held indefinitely without habeas rights in Afghanistan.

One other note about Katyal: He has lamented the slow pace at which the military commissions moved during the Bush years. And they certainly did move at a snail’s pace. But as Time magazine has reported, Katyal helped build “a defense that delayed Hamdan’s military tribunal for years as it gradually made its way through the courts.” That is, those delays are owed, in large part, to Katyal’s handiwork.

[…]

Other lawyers now at the DOJ worked on the historic Boumediene case. That case established the Gitmo detainees’ right to challenge their detention in habeas corpus hearings. In effect, the habeas proceedings have taken sensitive national security and detention questions out of the hands of experienced military and intelligence personnel, and put them into the hands of federal judges with no counterterrorism training or expertise. That lack of experience shows. For example, in one recent decision a federal judge compared al Qaeda’s secure safe houses (where training, plotting and other nefarious activities occur) to “youth hostels.” The habeas decisions are filled with errors of omission, fact, and logic.Still other lawyers did work on behalf of these well known terrorists: Jose Padilla (an al Qaeda operative dispatched by senior al Qaeda terrorists to launch attacks inside America in 2002), John Walker Lindh (the American Taliban), and Saleh al Marri (who 9/11 mastermind Khalid Sheikh Mohammed sent to America on September 10, 2001 in anticipation of committing future attacks).

Now, we don’t know what assignments these lawyers have taken on inside government. But we do know that they openly opposed the American government for years, on behalf of al Qaeda terrorists, and their objections frequently went beyond rational, principled criticisms of detainee policy.

We all have a tendency to look back on shameful events in our nation’s history — slavery, the internment of Japanese-Americans, the McCarthyite witch hunts — and like to believe that we would have been on the right side of those conflicts and would have vigorously opposed those responsible for the wrongs.  Here we have real, live, contemporary McCarthyites in our midst — Liz Cheney and Bill Kristol — launching a repulsive smear campaign, and we’ll see what the reaction is and how they’re treated by our political and media elites.
UPDATE: Marc Thiessen in WaPo

Greenwald on Thiessen

Ben Smith at Politico

Spencer Ackerman at Washington Independent

Michelle Malkin

UPDATE #2: Conor Friedersdorf on Thiessen

Michael Isikoff in Newsweek

William Kristol in The Weekly Standard

Julian Sanchez

John Tabin at The American Spectator

Paul Mirengoff at Powerline

Cesar Conda at The Corner

And Ken Starr on Countdown:

UPDATE #3: Mickey Edwards at The Atlantic

Jacob Sullum at Reason

Daniel Drezner

UPDATE #4: Freidersdorf

Orin Kerr

Andy McCarthy in USA Today

Conor Friedersdorf

Jonah Goldberg at The Corner

More Conor

UPDATE #5: Debra Burlingame and Thomas Joscelyn in the WSJ

Andy McCarthy

More McCarthy

Jonah Goldberg

More McCarthy

UPDATE #6: Jonathan Chait in TNR

UPDATE #7: Justin Elliott at TPM

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