Author: Spencer Ackerman

As I reported last week, the Government Accountability Office has been reviewing for months a protest against a contract to train the Afghan police that Blackwater sought to win, even after Blackwater essentially stole weaponry intended for those selfsame Afghan cops. Today, the GAO’s acting general counsel, Lynn H. Gibson, effectively sided against Blackwater.

GAO’s ruling is full of complicated bureaucrat-ese, so here’s the bottom line. DynCorp, a rival security contractor, held a contract through a branch of the State Department called INL to train foreign police. Last year, the Pentagon moved to take control of that contract, setting the stage for it to be bid out through an obscure Army office known as CNTPO. DynCorp protested, since CNTPO is a counternarcotics office and the police-training contract desired by the U.S. military in Afghanistan is rather tenuously connected to counternarcotics. Today, GAO sided with DynCorp, saying the contract’s “services are significantly broader than the counter-narcoterrorism efforts anticipated by the underlying contracts.”

But that doesn’t mean the Army loses control of the contract or the contract reverts to State’s INL branch. “We recognize the Army’s position that it needs to swiftly award a contract for these services,” Ralph O. White, GAO’s acting managing associate general counsel for procurement law, said in a statement. “In sustaining DynCorp’s protest, we recommended that the Army cancel the task order solicitations and either conduct a full and open competition, or prepare the appropriate justification required by the Competition in Contracting Act to limit competition.”

Put simply, the Army can’t go forward with the bid under the five contractors eligible for it under CNTPO — including Blackwater — but it doesn’t lose control of the contract. Even CNTPO could potentially still be in control of it: GAO is agnostic about what part of the Army awards the bid. It is conceivable that Blackwater could still bid on the contract, then, since no contracting official has formally recommended Blackwater for being “debarred,” a term designating the firm to be ineligible to win government contracts. Failing that, it’s up to the Army to design the contract’s next set of procedures — or, if the administration so chooses, State and Defense can work out a new contract vehicle for the bid. Will Blackwater still be eligible to make money off the government even after its employees killed civilians in Iraq, shot at them in Afghanistan, set up a shell company to win an Army subcontract and stole guns intended for the Afghan police from a U.S. military depot near Kabul?

After being repudiated by pillars of the GOP legal establishment over a video that calls Justice Department lawyers who represented Guantanamo detainees “the al-Qaeda Seven,” you might think Liz Cheney’s group Keep America Safe would back away from its gutter McCarthyism. But then you don’t know Liz.

Today’s installment comes from Keep America Safe board member Debra Burlingame, who co-authors the following Wall Street Journal op-ed:

On the evening of Jan. 26, 2006, military guards at Guantanamo Bay made an alarming discovery during a routine cell check. Lying on the bed of a Saudi detainee was an 18-page color brochure. The cover consisted of the now famous photograph of newly-arrived detainees dressed in orange jumpsuits—masked, bound and kneeling on the ground at Camp X-Ray—just four months after 9/11. Written entirely in Arabic, it also included pictures of what appeared to be detainee operations in Iraq. Major General Jay W. Hood, then the commander of Joint Task Force-Guantanamo, concurred with the guards that this represented a serious breach of security.

Maj. Gen. Hood asked his Islamic cultural adviser to translate. The cover read: “Cruel. Inhuman. Degrades Us All: Stop Torture and Ill-Treatment in the ‘War on Terror.’” It was published by Amnesty International in the United Kingdom and portrayed America and its allies as waging a campaign of torture against Muslims around the globe.

Nefarious, right? More vile pro-jihadist propaganda! “Why,” Burlingame asks, “would American lawyers, after 9/11 and the brutal slaughter of 3,000 fellow citizens, hand members of al Qaeda information about the war in Iraq and Afghanistan?” Translation: Who do those lawyers really sympathize with??? You can be forgiven for thinking Amnesty’s pamphlet contains sensitive information.

Actually, you can read the English version of the pamphlet here, and what you’ll see is that it compiles documented accounts of torture by U.S. personnel. Contrary to Burlingame’s intimation, there is absolutely nothing in the pamphlet about U.S. war planning or operations. There is a lot of information about what has been done to detainees in the war on terrorism — something for which Burlingame has no condemnation. She goes on to object to aggressive habeas lawyering by Guantanamo attorneys, a practice upheld by the Rehnquist and Roberts Supreme Court every time over the past decade the Court has been asked to consider habeas cases. For this, Keep America Safe wants you to believe there is something wrong and that those who represent these detainees wish to destroy America through the insidious practice of affirming its most fundamental principles of justice.

This is a sampling of what Amnesty’s pamphlet contains:

Whipping up public fears in the interests of short-term political gains is a dangerous business. If governments abandon the rule of law and use methods of terror such as torture or ill-treatment, then won’t groups fighting governments feel justified using methods of terror themselves? If whole communities are antagonized and alienated by security forces using terror, aren’t those communities more likely to respond by supporting the use of violence? Millions of people around the world believe that the “war on terror” is a war on Muslims, despite repeated denials by the US administration. These denials are undermined whenever it emerges that Muslim prisoners have been degraded and humiliated. In communities around the world, news of such abuses politicizes the uncommitted and reinforces hostility to those leading the “war on terror”.

Yes, Amnesty sure hates America. It has the temerity to point out why Keep America Safe will keep it both less safe and less free.

J Street, the progressive pro-Israel/pro-peace lobby group, has issued a statement urging both the Obama administration and the Israeli government to remember that they have a shared goal in “tackl[ing] a core issue at the heart of the conflict between Israel and the Palestinians – the need to establish a border between Israel and the future Palestinian state.”

A recap: While in Israel last week for a goodwill tour right as word of “indirect talks” between the Israelis and Palestinians leaked out, Vice President Joe Biden was greeted with an announcement that Israel was expanding its settlements in a Palestinian part of East Jerusalem. Biden condemned the move, and was soon echoed by Secretary of State Hillary Rodham Clinton, who called Prime Minister Benjamin Netanyahu and hectored him for 45 minutes about how provocative the move was. She added that she considered it an “insult to the United States.” Netanyahu faced an avalanche of criticism at home over the weekend, leading him to finally say, “There was a regrettable incident, that was done in all innocence and was hurtful.” Laura Rozen passes on word of a Haaretz story reporting that Michael Oren, Netanyahu’s ambassador to Washington, considers this moment a crisis in U.S.-Israeli relations and wants to get the message out that Netanyahu didn’t mean to insult Biden.

Enter J Street. The lobby group issued a statement this morning urging both sides to get past the tension and focus on its source: the need to establish the borders of a Palestinian state. “We must not lose further time allowing a single development, as objectionable as it may be, to derail progress towards achieving a two-state solution,” the group said. Meanwhile, two lobby groups to J Street’s right, the Anti-Defamation League and AIPAC, criticized the Obama administration for the deterioration in relations, with AIPAC urging Obama to take a “conscious effort to move away from public demands and unilateral deadlines directed at Israel.” It’s as if the organization, at whose conference next week Clinton will speak, forgot that the whole thing started with Israel humiliating Biden, a staunch ally of Israel for decades. And as if AIPAC forgets that Israel is pursuing much greater settlement expansion than just what was announced last week.

Here’s J Street’s full statement:

The recent escalation of tension between the United States and Israel – sparked by Israel’s announcement regarding 1600 housing units in East Jerusalem – is a matter of serious concern to J Street and Israel’s friends generally.

Preventing provocative actions which undermine the peace process and decisions which weaken U.S. credibility in the region is also a matter of fundamental American national security interest, particularly as the U.S. government works to build a broad international coalition to address the Iranian nuclear program.

The United States is Israel’s closest ally. Their special relationship is rooted in shared interests and values and enjoys broad bipartisan support in Washington and across the country.

That is all the more reason why the Obama administration’s reaction to the treatment of the Vice President last week and to the timing and substance of the Israeli government’s announcement was both understandable and appropriate.

As Vice President Biden said, “Sometimes only a friend can deliver the hardest truth.” That is what he, Secretary of State Hillary Clinton, and White House Senior Advisor David Axelrod have done in recent days – and J Street, along with many friends of Israel, stands solidly behind them.

The important question for us is how the present situation can be turned into an opportunity to tackle a core issue at the heart of the conflict between Israel and the Palestinians – the need to establish a border between Israel and the future Palestinian state.

Fixing borders would eliminate the need to deal further with issues related to settlements on the West Bank or building in East Jerusalem.

We urge the United States to take this opportunity to suggest parameters to the parties for resuming negotiations – basing borders on the 1967 lines with mutually agreed land swaps, with the Palestinian state demilitarized and on territory equivalent to 100% of the area encompassed by the pre-1967 Armistice lines.

Too much time has already been lost in getting the two sides into negotiations. We must not lose further time allowing a single development, as objectionable as it may be, to derail progress towards achieving a two-state solution.

Bold American leadership is needed now to turn this crisis into a real opportunity to end the Israeli-Palestinian conflict, which is a fundamental American national security interest.

The Obama administration will find vast support among American Jews and other friends of Israel for a bold new approach that aims to advance that interest and guarantees Israel a secure, democratic and Jewish future.

This is Michael D. Furlong, a strategic planner for the Joint Information Operations Warfare Command based in Texas. According to a baroque story in today’s New York Times, Furlong is under criminal investigation for diverting money from a program that hired contractors to gather information about Afghanistan and Pakistan and used it to run what the paper terms an “off the books spy operation” to kill militants in the region.

One of those contractors ran a website called AfPax Insider. (I should disclose that I’m an acquaintance of one of AfPax Insider’s founders, Robert Young Pelton, and a friend of mine has worked for a previous Pelton venture that inspired AfPax Insider; I wrote something for that venture, IraqSlogger, when I was in Iraq in 2007.) Pelton and his partner, the former CNN executive Eason Jordan, maintain that AfPax Insider’s work and the government money to finance it were misused by Furlong to run his intelligence shop. The CIA objects to Furlong’s potentially-illegal work; Gen. Stanley McChrystal’s strategic-communications chief, Rear Adm. Greg Smith, objected to the contract that funded AfPax Insider; it is unclear whether anyone died as a result of what Furlong pulled off.

The question is why Furlong felt he had sufficient cover from the contract to divert money. And while the answer is anything but clear — the Times says no one knows “who condoned and supervised his work,” if anyone – the lax attitude to oversight permeating all aspects of contracting in war zones is a powerful institutional incentive.

Blackwater guards can kill innocent civilians in war zones, steal U.S. military weaponry and still be eligible for future contracts because no contracting official will use the power he or she possesses to declare the company ineligible for bids. A branch of the State Department responsible for contracting out private security firms exhibited years’ worth of disinterest in oversight, resulting in the disappearance of about $1 billion in taxpayer money and the potential vulnerability to waste, fraud and abuse of up to $1.5 billion more. Ironically, when McChrystal’s command requested that the State Department branch lose the ability to control a contract for training Afghan police, the contract became ripe for Blackwater’s picking.

Furlong might not be forgiven by the criminal justice system, but he can certainly be forgiven for thinking he could get away with creating his own intelligence and assassination unit.

After being humiliated in Jerusalem over the settlement construction in Ramat Shlomo, Joe Biden tells a closed-door group that Israeli intransigence in the peace process “is starting to get dangerous for us… What you’re doing here undermines the security of our troops who are fighting in Iraq, Afghanistan and Pakistan. That endangers us and it endangers regional peace.” Much more from Laura Rozen, who’s really owned this and should be proud of her work this week. Today Secretary Clinton got in the act. Netanyahu is an obstructionist and it’s good to see the Obama administration remind Israelis that its interests are not abstract things. The truth is it’s not “starting” to get dangerous for us.

My friend Daniel Levy has forgotten more about Israeli politics than I’ll know and he writes that Netanyahu may be the last best hope for the two-state solution. For the life of me I just don’t understand the logic. As best as I can understand, Daniel believes Netanyahu’s obstructionism, combined with statebuilding efforts from Salam Fayyad in the West bank, will strengthen international support for… what? Imposing a solution on Israel?

It’s so easy to be cynical and downtrodden about the prospects for peace and to say that Obama isn’t strong enough and Biden will be content to be bitchslapped in Israel and on and on and on. Maybe Clinton can speak half as bluntly to AIPAC later this month, but I won’t despair if she doesn’t. Because when it comes to Israel/Palestine, it’s tiresome to even talk in terms of hope and other emotional outbursts. There is a cause and a vision and a destination and fuck how hard it is, we have to keep going. Two states, two peoples, no alternatives, no obstructions, no choices, no divergences, nothing else matters. We must run a marathon.

Update: Also, one more fucking thing and then good Shabbos to you. If and when the two-state solution dies and the horrific choice really is the end of a Jewish state or the end of a democratic state, so many writers who wrung their hands over every difficult choice Israel had to make and found it easier to condemn those who urged those difficult choices to be made will suddenly find themselves denouncing the inaction of the past that their irresponsible intellectual choices encouraged.

Tags: Hillary Clinton, Israel, Joe Biden, Netanyahu, Salam Fayyad, settlements

 

A recap: Vice President Biden flies to Israel this week and gets hit with word that Israel will expand settlements into Arab areas of Jerusalem. It’s widely seen as an insult.

This afternoon, State Department spokesman P.J. Crowley let it be known that Secretary of State Hillary Rodham Clinton called Prime Minister Benjamin Netanyahu to say she views the move as a breach of faith:

Secretary Clinton also spoke this morning with Prime Minister Bibi Netanyahu to reiterate the United States’ strong objections to Tuesday’s announcement, not just in terms of timing, but also in its substance; to make clear that the United States considers the announcement a deeply negative signal about Israel’s approach to the bilateral relationship – and counter to the spirit of the Vice President’s trip; and to reinforce that this action had undermined trust and confidence in the peace process, and in America’s interests. The Secretary said she could not understand how this happened, particularly in light of the United States’ strong commitment to Israel’s security. And she made clear that the Israeli Government needed to demonstrate not just through words but through specific actions that they are committed to this relationship and to the peace process.

That’s far harsher language than the Obama administration has been using to the Israelis lately. Clinton is headlining the AIPAC conference later this month. We’ll see if she uses the same sort of candor.

Few people focus more on the signature weapon of the Iraq and Afghanistan wars — the improvised explosive device, or IED — than Lt. Gen. Michael Oates, who heads the military task force designed to study and defeat the IED threat known as JIEDDO. As is quickly clear from the acronym, IEDs aren’t a kind of device, they’re a category of device, ranging in intensity and lethality and sophistication and changing constantly in response to U.S. and allied efforts at overcoming them. The term itself is basically the military equivalent of a placeholder in math or physics for a constant.

Oates held a rare conference call with defense bloggers this afternoon, allowing me the opportunity to ask him for an overview of what the IED threat is right now in Iraq and Afghanistan. Back in pre-2008 Iraq, “we saw a proliferation of military-grade explosives and projectiles” as a signature explosive tied to a “varying degree of sophisticated detonation capability.” (I remember there was a 2004 IED that flipped a Bradley Fighting Vehicle, even.) But that was then. Afghanistan is where the IED danger really is right now. “The threat is expanding,” Oates said. “It’s almost doubled in volume, the number of IEDs in the last year, the number of casualties.”

Why? Afghanistan’s IEDs are largely homemade explosives, not the jury-rigged military ordnance that Iraq featured, “centered around two types of fertilizer: potassium chloride and ammonium nitrate.” The Haqqani network in eastern Afghanistan uses primarily potassium chloride. Detonators are usually rudimentary ones — “pressure-plate or trip-wire followed by some command wire-detonated [IEDs] and, third, remote control.” Although the sophistication of IEDs in Iraq is much higher than in Afghanistan, Oates said, and the IED threat is on the decline in Iraq, the “effectiveness [is] good in both” countries.

And why’s that? Put simply, much of the military’s detection capability for IEDs is built for the Iraq threat. When I was in eastern Afghanistan in 2008, for instance, IED sweeps by troops I embedded with were conducted primarily through metal detectors. Fertilizer-based IEDs, obviously, resist that detection. Combine that with the lack of paved roads in Afghanistan. Not only is it harder to spot a metal object peeking through the roads, but if you’re driving down a dirt road in a rural area, it can be hard to determine what’s typical compacted fertilizer and what’s a bomb. While Oates said that JIEDDO didn’t have notable resource shortfalls, but “we are struggling to get additional ISR capabilities into Afghanistan,” referring to increased intelligence and surveillance assets.

“We still have a technological challenge for detection [for] these low-metallic/non-metallic bombs,” Oates said.

Sen. Jeff Sessions (R-Ala.)  – last seen slandering Justice Department lawyers and then distancing himself from Liz Cheney’s similar slanders — goes way further than Sen. Lindsey Graham’s objections to a civilian trial for Khalid Sheikh Mohammed. He writes in a New York Daily News op-ed:

According to the 2009 Military Commissions Act, foreign terrorists violating the rules of war are “unprivileged enemy belligerents” and thus eligible for indefinite military detention. This applies to both terrorists captured overseas and those who infiltrate our borders. Moreover, the legislation included an amendment I offered which explicitly states that Al Qaeda operatives are by definition “unprivileged enemy belligerents,” who can be detained and tried by the military.

So on the presumption that the third sentence here doesn’t contradict the first, Sessions is saying that al-Qaeda detainees should just be held on an indefinite basis by the military. Adam Serwer, in a related context, reminds that the courts have consistently ruled — as with the habeas cases — that detainees have the right to challenge their detention. As much as Sessions wouldn’t like that to be true, a new indefinite detention system will immediately be hit with court challenges — challenges that will probably succeed.

The question then becomes: If the White House takes Graham’s deal to trade a civilian trial for Khalid Sheikh Mohammed for closing Guantanamo, does that forestall a push from Sessions (and John McCain and Joe Lieberman) for indefinite detention — or pave the way for it?

Compassionate conservatism at work. One wonders if George W. Bush’s presidential library will feature an interactive waterboarding exhibit.

The Washington Post’s Greg Jaffe has a good story about a concerted push by Gen. William Caldwell and Interior Minister Hanif Atmar, the two highest-level officials directly responsible for the training and performance of Afghan police, to rid the police force of the incompetence and corruption that remain their calling cards. Caldwell and Atmar tell Jaffe all the right things, even if the promises are familiar. “If we don’t get the police fixed, we’ll never change the dynamics in the country,” Caldwell said. “For a long time, corruption was considered a taboo subject,” Atmar told Jaffe. “It is no longer the case. We have to fight this curse.”

Fine as far as it goes. But now consider that the security company poised to win a potential billion dollar contract for this allegedly crucial task is Blackwater, a company last seen in Afghanistan performing such squeaky-clean tasks as stealing hundreds of weapons intended for the Afghan police and signing for them using the name of a ‘South Park’ character. That’s after Blackwater got its contract through contract fraud by creating a shell company to obscure its corporate involvement, according to former top Blackwater contracting officials. Why would Blackwater need to obscure its corporate involvement in the first place? Because it’s best known for shooting fleeing civilians in Iraq.

It is hard to think of a worse example to set for a police force trying to shed the stigma of corruption and incompetence than to allow Blackwater to conduct their training. To give Blackwater that contract will be to tell the police that they have to follow the law and then immediately wink an eye, jab an elbow in the cops’ ribs and giggle. Unsurprisingly, when you call around to the Pentagon and to Caldwell’s command about how Blackwater can possibly be eligible for this contract after everything it’s done, every single official you talk to denies responsibility for the possible contract award — and that Blackwater’s right to bid is protected by good-government legislation. And the U.S. is going to lecture the Afghans about anti-corruption?

Apparently the Justice Department found that Eric Holder ought to have disclosed to the Senate the fact that he signed onto an amicus brief to the Supreme Court in 2004 for the Jose Padilla case. As a result, Republican senators are up in arms, according to The New York Times. What did Holder advocate that was so offensive?

During his Senate confirmation hearings last year, Attorney General Eric H. Holder Jr. failed to disclose that he had signed a brief urging the Supreme Court not to uphold President Bush’s claim that he could imprison an American citizen as an “enemy combatant,” the Justice Department acknowledged on Thursday.

In their inability to fire Holder — who has committed such flagrant acts of liberalism in office as ratifying military commissions — Republican senators are just throwing anything at the wall to see what sticks. But usually you want to do that to portray your opponent as a dangerous radical. Now they’re just highlighting the fact that Holder holds such fundamentally American values as the belief that American citizens have fundamental rights to their liberty. What a boogeyman!

Rep. Dennis Kucinich (D-Ohio) went forward with a resolution calling for an end to the Afghanistan war yesterday. Predictably, it earned massive and bipartisan rebuke, moving Congress decidedly behind President Obama’s Afghanistan strategy. Tom Hayden observes:

Strong Kucinich supporters will feel vindicated that their hero took a lonely stand and forced the House to a moment of choice. Critics will note that a dubious war has been legitimized, and that it will be more complicated for those who voted “aye” to reverse course in the months ahead.

So if you oppose the Afghanistan war, is it supposed to comfort you that Kucinich “took a lonely stand” that made your cause more difficult to achieve?

Via an approving James Joyner and Nathan Hodge, the Virginia senator, ex-Marine and ex-Navy secretary thinks it’s time to let troops drink in war zones “for stress relief.” There would obviously need to be alcohol restrictions aplenty, especially when deployed to Muslim countries, but Webb notes that there’s a disturbing amount of prescription-drug abuse and other forms of self-medication. Alcohol might be less dangerous.

And if U.S. servicemembers were permitted to drink during a conscript military, doesn’t it stand to reason that an all-volunteer force will be more professional and disciplined in their alcohol consumption?

Troops who served in Iraq earn the right to display the Iraqi Campaign Medal. From the perspective of the medal, there have been four phases of the war that the medal recognizes: “Liberation,” “Transition,” “Iraqi Governance” and “National Resolution,” all covering the period from 2003 to 2007. Draw your own conclusions about the implicit politics of those designations.

But today the Pentagon added two more phases, signified by “a bronze campaign star”:

Iraqi Surge – Jan. 10, 2007 to Dec. 31, 2008.

Iraqi Sovereignty – Jan. 1, 2009 through a date to be determined.

What, they didn’t want to start “Sovereignty” on Jan. 20, 2009? I kid. Sort of. Though that “date to be determined” endpoint would make a wag suspicious about whether all troops will really be withdrawn at the end of 2011 in accordance with the terms of the Status of Forces Agreement.

One more thing about former MI5 chief Eliza Manningham-Buller and her charges about being kept in the dark by the U.S. on torture. According to the Independent, Dame Eliza said that the Bush administration grew enamored of torture with the aid of a certain television show…

In her speech, highly critical of the US’s conduct during the war on terror, the former secret service chief implied that the leadership in Washington was inspired by watching the TV espionage thriller 24. She said: “Bush, Cheney and Rumsfeld certainly watched 24″. Dame Eliza said: “The Americans were very keen that people like us did not discover what they were doing.” She insisted that she had been unaware of what was going on until her retirement in 2007.

That’s via Gawker.

Years ago, in The New Yorker, Jane Mayer explored the permeable membrane in the public consciousness between “24″ and actual counterterrorism.

Eliza Manningham-Buller was the head of Britain’s domestic spy service, MI5, before retiring in 2007. Now she’s a member of the House of Lords. Perhaps this is self-serving, but she claims her American allies in the CIA kept her in the dark about torture. “The Americans were very keen that people like us did not discover what they were doing,” the AP quoted her as saying, particularly about Khalid Shaikh Mohammed and other al-Qaeda detainees.

Accordingly, Kip Hampton tweets at me that he thinks keeping evidence of torture out of open federal court is a more plausible rationale for Sen. Lindsey Graham’s (R-S.C.) opposition to a civilian trial for KSM than the explanation provided to me by Graham’s office.

Lindsey Graham is on the verge of winning an argument. Graham, the Republican senator from South Carolina, has pledged for weeks to deliver the votes from his fellow Republicans to finally close the detention facility at Guantanamo Bay, a campaign pledge from President Obama, if and only if Obama agrees try Khalid Shaikh Mohammed and the other 9/11 conspirators in a military commission. On Friday, the White House said it was “weeks away” from any decision about whether to scrap a civilian trial for the man known as KSM — which could give Graham what he wants.

There’s just one problem. Graham’s rationale for why KSM needs to be tried in a military commission and not a civilian court has to do with the procedures in the commissions for protecting classified information. But the revisions to the military commissions approved by Congress last year — with significant input from Graham himself — removed any significant difference between how classified information is handled in military and civilian venues. Accordingly, Chris Anders, a lobbyist for the American Civil Liberties Union, said Graham’s position was founded on “one big urban myth” — though whether that will affect Obama’s political calculation over the trial remains to be seen.

Asked to specify Graham’s objection to trying KSM in civilian court, Kevin Bishop, Graham’s chief spokesman, said that the senator is concerned about the potential for releasing classified information in open court. “Military justice and the military framework — a military commission — would allow us to better protect classified information,” Bishop said. Graham made a version of that argument on February 13 in the Republican radio address, referencing a 1995 terrorism trial and asserting, “valuable intelligence was compromised.”

But the military framework for handling classified information is almost exactly the civilian framework for handling it. The Military Commissions Act of 2009, which set procedure for the revised military commissions, explicitly instructs military judges to look to the civilian rules for protecting classified information, known as the Classified Information Procedures Act, or CIPA. Under the Act’s fifth subchapter governing the “construction of provisions” for the “protection of classified information,” the text says that “the judicial construction of the Classified Information Procedures Act (18 U.S.C. App.) shall be authoritative,” except in certain specific cases that Justice Department officials said are legally arcane.

“Any concern about the treatment of classified information in federal court is a solution in search of a problem,” said Joshua Dratel, one of a handful of defense attorneys to have taken on terrorism cases in the pre-9/11 civilian courts, in the post-9/11 civilian courts and in every version of the military commissions. “There simply has not been a problem in handling classified information in civilian federal court trials.”

The commission rules for handling classified material only outpace CIPA for marginal aspects of trial procedures, such as explicitly prohibiting the disclosure of verbal testimony and not just documents — even though judges for years have considered the distinction meaningless and have prohibited all such disclosures. Accordingly, Attorney General Eric Holder testified to the Senate Judiciary Committee in November that “the standards recently adopted by Congress to govern the use of classified information in military commissions are derived from the very CIPA rules that we use in federal court,” making the two venues a distinction without a difference from the perspective of protecting sensitive material. “We can protect classified material during trial,” Holder said.

Dean Boyd, the spokesman for the Justice Department’s National Security Division, underscored the point. “Over the years, experienced prosecutors have worked closely with the intelligence community to protect classified information in such cases, using CIPA procedures, and have successfully prosecuted many terrorists while complying with the applicable rules,” Boyd said. “The system provided by CIPA for cases prosecuted in federal court has generally worked well in protecting classified information, while also ensuring fair, credible, and effective trials.”

The CIPA system was good enough for Graham during last’s year’s debate over the commissions, when he helped craft the provisions of the Military Commissions Act of 2009 governing classified information. On July 23, 2009, Sen. Carl Levin (D-Mich.) introduced those provisions into fiscal 2010 defense authorization, the vehicle for passage of the commissions act. “Madam President,” Levin said, “the amendment I now offer, along with Senators Graham and McCain, would modify the procedures for the handling of classified evidence by military commissions… It has the support of the Justice Department and the Department of Defense.”

Graham has other reasons for supporting a military commission for Khalid Shaikh Mohammed — “Khalid Shaikh Mohammed, if he’s not an enemy combatant, who is?” Bishop said; the Obama administration has abandoned the “enemy combatant” designation for suspected terrorists — but Graham’s specific objection to the civilian trial centers on a claimed distinction between civilian and military procedures for handling classified information.

During the 30 years CIPA has governed classified disclosures in civilian courts, “the government is always in control of what gets released publicly,” said Dratel. All officers of the court, from defense counsel to a judge’s clerks, must hold security clearances to view classified information in secure facilities. “There is a court security officer, some of the most competent people if not the most competent people in the government, who operate to control these situations.” When judges permit defense counsel like Dratel — never their clients — to view classified information relevant to a case, “it doesn’t go to me; it sits in a secure room in a courthouse or other government building that no one has access to except people with a key and a combination.”

Any piece of classified information defense counsel wishes to enter into evidence must be approved by a judge. “If a judge agrees with me, then the government has a choice,” Dratel continued. “It has the choice of either declassifying the information or offering a substitution that would satisfy due process — in other words, my right to present my defense while at the same time protecting the classified information. And most classified information, in my experience, is about sources and methods.” These procedures now form the basis for how military commissions handle classified information as well.

To underscore Graham’s concerns, Bishop cited the 1995 case of Omar Abdul Rahman, the “blind sheikh” successfully prosecuted for involvement in the conspiracy to bomb the World Trade Center in 1993, in which the government’s list of Rahman’s unindicted co-conspirators reportedly leaked out of the courtroom and made its way to Osama bin Laden. “Our intelligence services later learned this list made its way back to bin Laden tipping him off about our surveillance,” Graham stated in his February radio address arguing against a civilian trial for KSM. “A conviction was obtained in that trial, but valuable intelligence was compromised. The rest is history.”

In 2008, however, a lengthy investigation into the criminal justice system’s handling of terrorism cases sponsored by Human Rights First determined that the list was never classified — and that prosecutors on the case never even sought to “invoke CIPA or other protections regarding the names on the list of unindicted co-conspirators.” The report, written by two veterans of the U.S. Attorney’s office for the Southern District of New York who did not work on the case, continues, “Had the government sought a court order restricting dissemination of the list, perhaps it would not have been disseminated to Bin Laden.” One of the authors of the report, Richard Zabel, is now the chief of the Criminal Division of the U.S. Attorney’s Office for the Southern District of New York.

“If it had been classified and only available to [security-]cleared counsel, it never would have been circulated,” said Andrew Patel, one of the lawyers for Rahman’s co-conspirators. “This is the archetype of the government saying ‘we need additional tools’ when they failed to use the tools they had.”

Indeed, Holder addressed the Rahman disclosure in a November exchange with Sen. Orrin Hatch before the Senate Judiciary Committee. “The co-conspirator list was not a classified document. Had there been a reason to try to protect it, prosecutors could have sought a protective order, but that was not a classified document,” Holder said. “The provisions designed to protect sources and methods in the military commissions are based on the CIPA Act that we use in [federal] courts.”

The ACLU’s Anders wondered whether the novelty of military commissions — especially as the legal rules under the commissions have changed three times since the Bush administration created them after 9/11 — might make them more likely avenues for inadvertent disclosure of classified information in a KSM trial. “Who is going to do a better job with applying the substantively difficult law protecting classified information,” Anders said, “federal judges who have regularly applied it in many cases, or military commission judges who have never even tried a complex criminal case, much less the most important international terrorism case in history?”

Dratel agreed, citing a case he argued at Guantanamo Bay in which a judge blurted out that something stated in court “probably” ought to have been classified. ” Any preference for military commissions based on some purported danger of release of classified information in federal courts is like worrying about ships going too far toward the horizon because they’ll fall off the edge of the earth,” he said. “It is simply without any factual foundation, and ignores the 30-year history of federal courts handling classified information in the context of criminal prosecutions.”

Mohammed Salman Hamdani was a New York City police cadet who died trying to evacuate people from the World Trade Center. His mother, Talat, writes a poignant commentary for McClatchy objecting to any backtracking from the Obama administration and Sen. Lindsey Graham (R-S.C.) on the plan to try the 9/11 conspirators in a civilian court:

The commissions are simply not prepared or experienced enough to handle complex international terrorism cases. Part of the problem is that while many military judges are competent, hard-working and honorable, military criminal cases typically involve prosecutions of U.S. soldiers and sailors for ordinary crimes. There are relatively few murder cases, fewer death penalty cases and almost no conspiracy cases, much less international terrorism trials. This is a problem no new law can fix.

Others worry that federal trials will give the accused a soapbox to spew their hateful agendas. In fact, federal judges are known for preventing such outbursts, as was the case in the Zacharias Moussaoui trial. It was in the Guantánamo commissions that the 9-11 defendants were allowed to give five-minute tirades.

This argument always seemed weak to me: can you imagine not putting Timothy McVeigh on trial because he might make hateful statements? Or any serial killer, for that matter?

Read the whole thing.

Update: Sincere apologies to Ms. Talat Hamdani.

Sen. Lindsey Graham (R-S.C.) continues to make the case to the Obama administration that he can deliver the Senate votes to close the detention facility at Guantanamo Bay if President Obama abandons a civilian trial for Khalid Sheikh Mohammed. A new story in Time questions whether either side has actually counted the votes for that prospective deal.

Democrats worry that by negotiating with Graham, the Administration is conceding defeat at the start. “It’s a self-fulfilling prophecy,” says a senior Senate Democratic aide, “because if you let it be known that you might cut a deal because you think you don’t have the votes, then you won’t have the votes.”

Time doesn’t have a hard count either, but it reports that Democratic votes for closing Guantanamo have slipped since last year. While it can’t be determined whether any Democratic votes would have been shored up by a forceful argument from the White House in favor of keeping the KSM trial in civilian court, they’re slipping away in the absence of one.

When a lawyer who finds a legal avenue for shoving someone into a “confinement box” with an insect that person might believe is poisonous thinks you’ve crossed a line — wow. The New York Times:

John C. Yoo, the former Justice official whose memorandums on torture and presidential power were used to justify some of the most controversial policies of the Bush administration, said he had not seen the material from Ms. Cheney’s group. But Professor Yoo, who now teaches at the University of California, Berkeley, and is active in the Federalist Society, said the debate about lawyers who once represented detainees at the American prison in Guantánamo Bay serving in the Justice Department was overheated.

“What’s the big whoop?” he asked. “The Constitution makes the president the chief law enforcement officer. We had an election. President Obama has softer policies on terror than his predecessor.” He said, “He can and should put people into office who share his views.” Once the American people know who the policy makers are, he said, “they can decide whether they agree with him or not.”

Chances are, when Liz Cheney thinks she needs a civics lesson, Yoo would be the guy she’d call… Dave, how many conservative lawyers have come out against the slander of Justice Department lawyers who represented Guantanamo detainees now?