Author: Spencer Ackerman

Richard Smith at VoteVets corrects some erroneous early reports:

1LT Choi has NOT been ordered back to active duty. It would be difficult to order him “back” to active duty, being that he serves in the New York National Guard, not on active duty, unless he had been mobilized.  What has happened is that, with the support of his command, 1LT Choi drilled with his National Guard unit this past weekend for training on critical infantry tasks with his Soldiers.

My mistake; I assumed from the original Advocate story that his Guard unit had been activated. I should have checked with the New York National Guard. My apologies for this post. Still, there’s a Don’t Ask Don’t Tell lesson here. Richard points out the implications of a published photograph of a uniformed Lt. Choi in his bunk:

Here is a photo of 1LT Choi living in an open bay, not being beaten up by his comrades, not uncontrollably attempting to have sex with men, and not threatening good order and discipline (strange, since repeal opponents told me that such things would happen invariably)

Update: Zack Roth and Rachel Slajda at TPM reports out the backstory.

I’m late on this, but Politico has a piece today about Sen. Mitch McConnell’s (R-Ky.) 2010 legislative/political strategy, and it involves taking a forceful stand on terrorism against the Obama administration. This must be something like the administration’s dream come true: The guy not only has absolutely no experience with any aspect of foreign policy and national security, but his recent Heritage speech about counterterrorism was riddled with so many factual errors and unsupported assertions that it called into question whether he even understands the meaning of the word he spoke.

Apart from that, McConnell is a credible spokesman and his strategy is foolproof.

Army Lt. Dan Choi, a West Point graduate and Arabic translator who famously challenged ‘Don’t Ask Don’t Tell’ last year, has been recalled to active duty, according to The Advocate. That’s a strong sign that even ahead of a full repeal of the so-called gay ban, proceeding at a deliberate, year-long pace advocated by the Pentagon’s top leadership, relaxed enforcement of the policy is already in place.

From Walter Pincus’ piece about how the Obama administration considered and rejected placing Umar Farouk Abdulmutallab in military custody:

After Abdulmutallab decided to stop talking, was read his Miranda rights and got lawyers, the FBI devised a complex investigative plan, which was outlined to reporters last week.

Two experienced counterterrorism agents were chosen to carry out a background investigation in Nigeria. One goal, suggested by behavioral scientists, was to find family members whom he would trust and who would help heal the split that had led him to cut off relations with his father and be attracted to the Yemeni al-Qaeda group.

And by all accounts it worked. Using Abdulmutallab’s family opened up his floodgates.

Not only is this a vindication of law enforcement, it’s a vindication of the approach that guides the High-Value Detainee Interrogation Group, or the HIG, the Obama administration’s elite FBI-led interagency team of terrorism interrogators. As I reported first in June, the basis for the team is a social-science compendium called “Educing Information” written by an intelligence advisory board about how to use actual behavioral science techniques for effective and non-abusive interrogations. The HIG may not be used in this case, but its fundamental approach clearly is in place. And now we know it works.

Building off his Sunday retaliation at Republican critics over the Mirandization and (successful!) interrogation of would-be Christmas bomber Umar Farouk Abdulmutallab, White House counterterrorism chief John Brennan goes much further in a USA Today op-ed.

It begins as an aggressive defense of the utility of law-enforcement approaches to interrogation — alongside an observation of the disutility of torture and military detention, the preferred GOP solution for Abdulmutallab:

The most important breakthrough occurred after Abdulmutallab was read his rights, which the FBI made standard policy under Michael Mukasey, President Bush’s attorney general. The critics who want the FBI to ignore this long-established practice also ignore the lessons we have learned in waging this war: Terrorists such as Jose Padilla and Saleh al-Mari did not cooperate when transferred to military custody, which can harden one’s determination to resist cooperation.

Then comes the real pushback:

Politically motivated criticism and unfounded fear-mongering only serve the goals of al-Qaeda. Terrorists are not 100-feet tall. Nor do they deserve the abject fear they seek to instill. They will, however, be dismantled and destroyed, by our military, our intelligence services and our law enforcement community. And the notion that America’s counterterrorism professionals and America’s system of justice are unable to handle these murderous miscreants is absurd.

The Republican Party perfected fear-mongering over al-Qaeda just months after 9/11, when John Ashcroft lectured civil libertarians, “Your tactics only aid terrorists, for they erode our national unity and diminish our resolve.” Brennan then was a senior CIA official about to be tapped by President Bush to serve as the first head of what would become the National Counterterrorism Center. He’s playing the game as he learned it.

But just like Ashcroft went too far, so does Brennan. What actually serves the interests of al-Qaeda is the sacrifice of American values in the pursuit of a phantom of perfect security, and the resulting counterproductive and nonstrategic overreactions it provokes. (Such as invading Iraq.) Brennan makes some of that case with his “terrorists-aren’t-100-feet-tall” line. But that’s the solid case, not the political-attacks case, which just reduces identification with American enemies to an unfortunate normalcy in political discourse. What the GOP wants to do inadvertently helps al-Qaeda, not the vitriol with which it’s being stated.

And one more thing. Brennan writes:

Cries to try terrorists only in military courts lack foundation. There have been three convictions of terrorists in the military tribunal system since 9/11, and hundreds in the criminal justice system — including high-profile terrorists such as Reid and 9/11 plotter Zacarius Moussaoui.

So why is Obama continuing with a new version of military commissions?

William Lietzau (Defense Department photo)

A key behind-the-scenes architect of the Bush administration’s first version of the military commissions for terrorism suspects — which the Supreme Court found to unconstitutionally restrict the legal rights of detainees — will take a central Pentagon position dealing with detainee policy for the Obama administration.

William Lietzau, a Marine colonel who currently serves as deputy legal counsel to the National Security Council, is poised to become the Pentagon’s new deputy assistant secretary for detainee affairs in the next several weeks. Lietzau, an international law expert described even by his critics as a brilliant and energetic attorney, previously served as a special adviser to Jim Haynes, the top Pentagon lawyer during Donald H. Rumsfeld’s tenure, when Rumsfeld and Haynes codified torture and indefinite detention as hallmarks of Bush-era terrorism policy. The position, which is not subject to Senate confirmation, came open late last year, after Phil Carter, the previous deputy assistant secretary for detainee affairs and a favorite of civil libertarians, abruptly resigned.

Image by: Matt Mahurin

As the next deputy assistant secretary, Lietzau will be at the center of the Obama administration’s decisions about trying the remaining Guantanamo detainees in reformed military commissions or in federal courts. He will also be central to the construction of a post-Guantanamo terrorism-detention policy in an administration that claims to be more committed to the rule of law than its predecessor. Lietzau is said to have gained the confidence of senior administration officials over the past year, particularly as he helped revise the military commissions to include greater process protections for defendants — even though civil libertarian groups still consider those rules to be unfair.

Two senior military lawyers who fought with Haynes over military commissions and interrogations in the Bush administration said they were surprised to hear of Lietzau’s impending appointment to the Obama Pentagon. Retired Rear Adm. Don Guter, who served as the Navy’s Judge Advocate General from 2000 to 2002, described Lietzau as a close Haynes confidante but not an outspokenly opinionated figure. “If he disagreed with Jim Haynes you’d never know about it,” Guter said. “Because of his close association with Haynes I’d be more comfortable if I saw something public [indicating] he’d made a break with those policies.”

Retired Army Maj. Gen. Thomas J. Romig also described Lietzau as closely tied to Haynes, whose role in instituting extreme interrogations at Guantanamo Bay against the wishes of military lawyers cost him Senate confirmation for a federal judgeship. Romig, the Army’s Judge Advocate General during Bush’s first term, said that although he did not know specifically what positions Lietzau took on detainee interrogations or if Haynes even consulted him on the issue, “at that time, he was certainly in the bosom of the administration that was running interrogation programs that at the very least were quite troubling, and in many minds were a violation of the laws of war and the Geneva Conventions.” Lietzau’s expertise in international law — he was part of the Clinton administration’s delegation to the 1998 Rome conference that wrote the treaty establishing the International Criminal Court — should have allowed him to know “what was right and wrong with [Bush’s] interrogation policies,” Romig said.

While Lietzau was close to Haynes, he also became close to retired Marine Gen. Jim Jones, now Obama’s national security adviser. The two officers met in Europe a few years after Lietzau had left the commissions, when Jones commanded U.S. military forces on the continent and Lietzau was his staff judge advocate. Lietzau joined the National Security Council last spring at Jones’ request.

Lietzau has many advocates in the legal and policy communities. John Bellinger, the former National Security Council and State Department legal adviser during the Bush administration, sparred frequently over detainee treatment with Haynes and David Addington, Dick Cheney’s attorney, who took far more extreme positions. But Bellinger, now a partner with the law firm of Arnold & Porter, considered Lietzau a first-rate appointee. “I think Lietzau is an excellent choice who knows the issues and is pragmatic and non-ideological,” he said. “I have never seen him to approach terrorism issues or international justice issues in an ideological way.

Similarly, Eugene Fidell, a Yale Law professor and president of the National Institute of Military Justice, called Lietzau’s appointment “creative,” despite any substantive policy disagreements they had. “The last thing I want is someone to come into the job without the respect of the military bench and bar, which he would have,” Fidell said, “and having to start from scratch in understanding the legal environment.”

Rosa Brooks, a Pentagon policy official who criticized the military commissions during the Bush years, added that while she couldn’t confirm Lietzau’s appointment, “I am a fan of Bill Lietzau’s. He’s smart, an honest broker, and has both intellectual and moral integrity.”

Lietzau was the first prosecutor for the military commissions established in 2001 — an official Pentagon release called him “instrumental” to the military commissions’ “preparations” — and served in that role until 2003. Yet during that time, the commissions did not bring charges against a single detainee, a fact that raised eyebrows among his colleagues. “I have to believe in his position Lietzau was being used by Jim Haynes as a sounding board or adviser on all international law issues,” Romig said, “because he was not doing much as chief prosecutor.

In a valedictory May 2003 press briefing, Lietzau described his role as “really the process portion of setting up military commissions.” That process, established by Rumsfeld, his deputy Paul Wolfowitz and Haynes, departed significantly from the military’s courts-martial system, restricting a defendant’s right to a public trial and allowing for hearsay to be admissible, although Lietzau pushed for defendants to retain the presumption of innocence. At the briefing, a reporter asked Lietzau if the commissions provided a defendant with a defense comparable to the normal military justice system, and he replied that the commission’s rules “were drafted to accommodate that kind of flexibility that would be needed.” But five years after their creation, a 5-4 majority of the Supreme Court ruled that the commissions were unconstitutional, improperly established by the administration and providing defendants with insufficient due process rights. In 2006, Congress passed a law authorizing a new version of the commissions although the Supreme Court in 2008 found problems with the process rights of the new commissions as well.

One senator who voted against the 2006 Military Commissions Act was Barack Obama. Last May at the National Archives, in one of Obama’s most important national security speeches as president, Obama criticized “the flawed commissions of the last seven years” and said his embrace of a reformed version of the commissions would bring them “in line with the rule of law.” Some in the administration believe Lietzau is, however ironically, the man for the job. A senior administration official who would not speak on the record because Lietzau’s appointment has not been announced said that the colonel “believes the rule of law is a fundamental part of our effort in the fight against al-Qaeda” and that Lietzau’s long experience with both the military commissions and international law provides the administration with “value added as we work with Congress” on a “durable” legal infrastructure for terrorism detainees.

At times Lietzau has expressed surprise about the Bush administration’s terrorism decisions. During a talk he gave at Harvard shortly after 9/11, he said he doubted that the administration would seek to try anyone in a military commission; months later he was helping design them. And in an article for a book on terrorism and international law published in 2002, Lietzau averred that President Bush’s assurance that the military treat detainees in the “spirit” of Geneva Conventions ensured that detainees “will continue to be treated humanely.” Over the next several years, dozens and perhaps hundreds of people detained by the U.S. in Guantanamo, Afghanistan, Iraq and elsewhere were tortured — activities President Obama expressly forbid during his first week in office by issuing an executive order restricting interrogation techniques to those listed in the Army’s field manual.

Lietzau was a deputy to Haynes during the winter of 2002 and spring of 2003, when Haynes presided over an internal Pentagon debate resulting in the modified adoption for Guantanamo of “enhanced interrogation” techniques authorized for the CIA to use on senior-level al-Qaeda detainees. A Senate Armed Services Committee investigation from 2008 determined that Haynes was a powerful bureaucratic force pressing for harsher detainee treatment. A former colleague in Haynes’ office, Richard Shiffrin, told the committee that Lietzau was present at a key 2002 meeting in which participants expressed “some frustration with the quantity and quality of information being obtained” at Guantanamo, although Shiffrin did not attribute any substantive position to Lietzau. And no source for this piece had knowledge of Lietzau having anything to do with torture.

It is unclear what exactly Lietzau’s appointment signifies in terms of concrete policy decisions or shifts. An email to Defense Secretary Gates’ spokesman, Geoff Morrell, went unreturned. But Bellinger predicted Lietzau would “adopt a balanced approach between the security needs of the country and military and the need to address worldwide concerns that we do not have an appropriate legal framework or legal policies.” The senior administration official said Lietzau was “bound and determined to make sure, whether it’s in three years or seven, when he walks away from this job, there is a durable legal infrastructure” to handle terrorism detainees justly.

Both Guter and Romig, the former senior military JAGs who clashed with Lietzau’s old boss, Haynes, independently described Lietzau as intellectually “flexible” and willing to faithfully implement the policies of his bosses. “The guy is smart, so he can figure out what the Supreme Court has said” about the due process rights to which detainees are entitled, but “it troubles me the guy can go from one end of spectrum to the other, arguably,” Romig said. “It’s very curious they would take somebody to run [policy on] detainees who was in the position he was in seven or eight years ago.”

A surprisingly emotional statement from Defense Secretary Robert Gates about Rep. Jack Murtha’s passing.

I was deeply saddened to hear of the passing of Jack Murtha. America has lost a true patriot who served his country faithfully first in uniform as a decorated combat Marine, and then as an elected representative.

I’ve known Jack and worked with him for more than two decades, starting back in the Reagan administration when I was at CIA. I will always remember and be grateful for Congressman Murtha’s personal efforts on behalf of the Afghan resistance fighting the Soviets – efforts that helped bring about the end of the Cold War.

In our dealings over the years, Jack and I did not always agree, but I always respected his candor, and knew that he cared deeply about the men and women of America’s military and intelligence community. My condolences to Joyce and the rest of the Murtha family.

Rep. John Murtha (D-Pa.), the longtime top Democrat on the Defense Appropriations subcommittee, has died at 77 years of age. Murtha, the subject of ethics queries for much of his career, was the first Vietnam veteran elected to Congress. A national security hawk, he lit a fire under many of his Democratic colleagues when he came out forcefully for withdrawing from Iraq in 2005.

Fresh out:

The United States and the European Union condemn the continuing human rights violations in Iran since the June 12 election. The large scale detentions and mass trials, the threatened execution of protestors, the intimidation of family members of those detained and the continuing denial to its citizens of the right to peaceful expression are contrary to human rights norms.

Our concerns are based on our commitment to universal respect for human rights. We are particularly concerned by the potential for further violence and repression during the coming days, especially around the anniversary of the Islamic Republic’s founding on 11 February. We call on the Government of Iran to live up to its international human rights obligations, to end its abuses against its own people, to hold accountable those who have committed the abuses and to release those who are exercising their rights.

On a possibly related note, Defense Secretary Robert Gates, on foreign travel, is reiterating his call for sanctions against Iran for its renewed uranium enrichment.

With U.S. and Afghan forces about to attempt to take the Afghan village of Marja in Helmand province away from the Taliban, Gen. Stanley McChrystal records this message about how — speaking mostly generically — he wants to show the Afghan people that the Afghan government is about to come into the area and offer them a better alternative. That requires a fully integrated civilian/military effort, he says:

The Marine campaign in Helmand, waged for much of last year, has been of questionable significance for a broader counterinsurgency strategy of population protection.

Evidently out of patience with attacks on the Obama administration for reading would-be Christmas bomber Umar Farouk Abdulmutallab his Miranda rights,  John Brennan, the White House counterterrorism chief, called out the Obama administration’s conservative critics for what he described as selective outrage. Brennan told ‘Meet The Press’:

On Christmas night, I called a number of– senior members of Congress. I spoke to Senators McConnell and Bond. I spoke to Representative Boehner and Hoekstra. I explained to them that he was in F.B.I. custody. That Mr. Abdulmutallab was in fact talking. That he was cooperating at that point. They knew that in F.B.I. custody means that there’s a process then you follow as far as mirandizing and presenting him in front of the magistrate. None of those individuals raised any concerns with me, at that point.

Sure enough, Sen. Chris Bond (R-Mo.) and Rep. Pete Hoekstra (R-Mich.), the ranking Republicans on the congressional intelligence committees, insisted that Brennan never specifically told them the FBI would Mirandize Abdulmutallab. “If he had I would [have] told him the Administration was making a mistake,” Bond said. The entire Republican leadership, including fact-averse Sen. Mitch McConnell (R-Ky.) and House GOP leader John Boehner (R-Ohio) echoed Bond’s claims in one form or another. Apparently these men, who claim leadership on national security, know less about FBI procedure than the average movie-goer. Obviously the FBI Mirandizes suspects in their custody.

Update: This post has been edited to fix a sentence fragment.

Pakistan Soldier by Nokes (flickr)

Rarely are transcripts of official events eye-opening, but this account of Defense Secretary Gates’ Q&A at the Pakistani National Defense University yesterday is amazing. It’s hard to tell, because I wasn’t there, but the vitriol expressed to Gates appears to knock him back on his heels. For instance:

Q (Inaudible). You gave a statement with regard to some future terrorist threat or action that may take place over there. And you said that India may run out patience. The Pakistan army’s resolve against terrorism — (inaudible).

I would remind you have predisposed Pakistan as perhaps siding with the terrorists. So could you please tell us with regard to fighting against terrorism are you with us or against us? Thank you. (Applause.)

Gates responds, “We’re very much with you.” Because we are! We just gave the Pakistani government $1.5 billion in aid, every year for the next five years. And still, the next questioner says, “this relationship between military and military has not fared well in the past.” But it’s obviously way more than just mil-mil! The Obama administration is doing absolutely everything it can — well, almost everything, as we’ll see in a second — to convince the Pakistanis we’re on their side. But they don’t buy it. The depth of antipathy is– well, will I sound like a naive asshole if I say “startling”?

Sir, there’s a large section of the Pakistani population who feel that the present mess that Pakistan finds itself today in, in large part, is due to the United States. The war on our Western borders in which not only the army but the whole country is embroiled in, and there’s no end in sight, initially was not our war but now it has become our war. So what is your message to these people, sir?

The answer Gates gives boils down to: It would be your war eventually. That… is true, I would argue. But it’s not going to convince anyone who simply doesn’t see it that way.

And then there’s this, which is lurking in the background of the whole conversation, as the first question indicates:

During the run to the elections, Mr. Obama — in other statements, he mentioned that there was an understanding now that — (inaudible) — problem, India and Pakistan, particularly, their — (inaudible) — connection with extremism and also from — (inaudible) — Afghanistan.

Now after — (off mike) — same old thing. The United States is refusing to mediate between India and Pakistan since the war — (inaudible). And India was even taken out of — (off mike). My question with this — (inaudible) — first, is the United States administration unable to see how hollow is the Indian argument that the India-Pakistan problem can be resolved only through dialogue — (inaudible). Secondly, is the U.S. policy of India subject — (inaudible). And third is is the U.S. unable to see that its policy of propping up India — (inaudible) — especially with reference to Afghanistan because if there’s one sure guaranteed way of ensuring the eastern region of Afghanistan — (off mike)?

Simple and plain: the Obama administration has to do something about Pakistan’s legitimate security fears emanating from India. As Gates points out, it’s completely absurd to argue that the U.S. has had a policy of “propping up” formerly-Soviet-allied India, but it doesn’t matter at this point (yes, yes, you guys who are big on “narrative”; score one for you). The Pakistanis believe that the lack of U.S. hectoring directed at India is part of a concerted policy of supporting India at Pakistan’s expense. Consequently, pushing the Pakistani military into Waziristan, to fight fellow Pakistanis, is easily misconstrued as weakening Pakistan for India’s sake.

There were good arguments for not stuffing the India relationship into Richard Holbrooke’s pillbox of headaches. India is too big a relationship to reduce to just a security issue. And for much of last year, the U.S. was waiting for India to elect a new government. But if we mean what we say about security, diplomacy, politics and development being interrelated and mutually supportive/corrosive, then it’s time to broker a real India-Pakistan peace process. Unless we want Gates’ next appearance at the Islamabad NDU to go even worse.

Update: As Shekissesfrogs points out in the comments, DOD appears to have yanked the transcript from its website. All I can tell you is that I have the actual transcript in my email…

Ever since Dennis Blair revealed that there’s a procedure within the Obama administration for killing American citizens during counterterrorist operations, I’ve been thinking about the complexities of the circumstances envisioned. As a basic proposition, Glenn Greenwald is right: it’s unacceptable to set the standard for the killing of an American citizen at “the government says he’s a danger.” Anwar al-Awlaki, for instance, is an American citizen who supposedly provides encitement and encouragement to jihadis to kill Americans. Assume it’s all true (as I do). That is more than enough to warrant his arrest and trial. But is it enough to warrant his summary execution? I can’t accept that.

Consider now the case of Omar Hammami, the Alabama-raised 20-something now known as Abu Mansour al-Amriki, a member of Somalia’s al-Qaeda-aligned al-Shebaab militia. I didn’t initially take Abu Mansour al-Amriki seriously: he recorded a ridiculous rap video that Noah Shachtman and I laughed at last year. But after reading Andrea Elliott’s amazing New York Times Magazine profile tracing Hammami’s journey from whipsmart Alabama sophomore-class president to southern-Somalia holy warrior, he’s no laughing matter.

Hammami isn’t like al-Awlaki. al-Awlaki, to my knowledge, is not linked to any specific terrorist activities. Hammami, as Elliott reports, is: he’s an actual fighter in al-Shabaab. al-Shabaab’s links to al-Qaeda are unclear and may be a matter of mutual boasting. But al-Shabaab itself is a terrorist organization, designated as such by the State Department since early 2008. All of its activities to date are Somali-centric. But its aspirations — if not its capabilities — go beyond that benighted country, as documented in this (discomfortingly sympathetic) al-Jazeera profile. “We will establish Islamic rule from Alaska and Chile to South Africa, Japan, Russia, the Solomon Islands and all the way to Iceland,” Ibrahim Almaqdis, identified as a Shebaab leader, preached to followers in the Somali port city of Marka. “Be warned: we are coming.”

That ambition is a parody of fanaticism, but Hammami’s fanaticism is real. He is anything but an accidental guerrilla. Elliott documents extensively how deliberate his path is. He begins with a desire to resolve his identity dislocations as an American Southerner with Syrian heritage through ever-austere Salafi Islam. He comes to view the stricter application of a facsimile of “authentic” seventh-century Islam as a panacea for life’s challenges. (No indication, despite Hammami’s evident intelligence, of the obvious contradictions contained in such a choice.) He extends that worldview to politics and war. His evident outrage over America’s war in Iraq, I think it’s fair to conclude from Elliott’s piece, is pretextual, an opportunity for him to live out his fantasies of a purposeful existence, something he measures through killing and subjugating people for what he considers religion. There is no evidence that he actually threatens Americans right now, although he certainly threatens poor Somalis whose hands and feet al-Shabaab publicly amputate as penalties for theft. But it would ignore the trajectory of Hammami’s life to say he will somehow be satisfied with his actions in Somalia. “We espouse the same creed and methodology of al-Qaeda,” he told Elliott in an email through an interlocutor. “All of us are ready and willing to obey his commands… It’s quite obvious that I believe America is a target.”

I don’t really know what to say about this. The guy considers himself a warrior and boasts about the legitimacy of targeting his fellow Americans. Yet he’s not done anything that rises to the level of a battlefield act of war against America. His deliberate and voluntary participation in al-Shebaab is a criminal activity. Based on what the evidence is right now, Hammami ought to be targeted for arrest, prosecution, and conviction. But we surely can’t go down the path of simply trying to murder him. American citizenship has to count for more than that. Otherwise, why not just murder all criminals here at home?

Noah Shachtman has a great post about Google’s decision to ask the National Security Agency help the company defend itself against cyberattacks.

But there’s a problem. The NSA and its predecessors also have a long history of spying on huge numbers of people, both at home and abroad. During the Cold War, the agency worked with companies like Western Union to intercept and read millions of telegrams. During the war on terror years, the NSA teamed up with the telecommunications companies to eavesdrop on customers’ phone calls and internet traffic right from the telcos’ switching stations. And even after the agency pledged to clean up its act — and was given wide new latitude to spy on whom they liked – the NSA was still caught “overcollecting” on U.S. citizens. According to The New York Times, the agency even “tried to wiretap a member of Congress without a warrant.”

All of which makes the NSA a particularly untrustworthy partner for a company that is almost wholly reliant on its customers’ trust and goodwill. We all know that Google automatically reads our Gmail and scans our Google Calendars and dives into our Google searches, all in an attempt to put the most relevant ads in front of us. But we’ve tolerated the automated intrusions, because Google’s products are so good, and we believed that the company was sincere in its “don’t be evil” mantra.

This is really some week to be a civil libertarian.

Detainees at Guantanamo Bay (The Toronto Star/ZUMApress.com)

If there was any doubt that Republicans in Congress will oppose this year’s push from President Obama to close the detention facility at Guantanamo Bay, Sen. Mitch McConnell’s (R-Ky.) speech Wednesday to the Heritage Foundation ought to have laid it to rest. In the course of a half hour’s worth of invective against the administration’s counterterrorism policies, the Senate minority leader pledged to block funding for any efforts at giving terrorism detainees trials in civilian courts. But he held out a special reverence for the much-vilified locus for military commissions and indefinite detention. “Thankfully, Gitmo is still open for business,” McConnell said.

Image by: Matt Mahurin

McConnell then turned, briefly, to an argument that is starting to be shared by McConnell’s typical political enemies — and which could seriously complicate the administration’s plans for the final closure of Guantanamo Bay. If Obama simply moves the military commissions and indefinite detentions featured at Guantanamo to a new detention facility in Thomson, Ill. — as the administration currently plans –then there is “no doubt” that al-Qaeda will use Thomson “for the same recruiting and propaganda purposes” it’s used toward Guantanamo, McConnell said, a prospect that “eliminates the administration’s only justification for closing Guantanamo.”

With reluctance, many in the civil-liberties community think McConnell has a point. They have no patience for McConnell’s argument that terrorism detainees should not receive civilian trials. But the administration’s plan to close Guantanamo, from their perspective, merely transfers its most offensive practices to the middle of Illinois. In what they see as a tragic irony, the cohort that led the charge during the Bush administration to shutter the Guantanamo facility is increasingly vocal in opposing Obama’s already-imperiled path to shutting it down.

“What’s the point of simply moving Guantanamo on shore?” said Shayana Kadidal, an attorney with the Center for Constitutional Rights. Chris Anders, senior legislative counsel for the American Civil Liberties Union, said flatly, “We oppose any legislative proposal that links the purchase of Thomson to indefinite detention without charge and the use of military commissions.”

The coalescing civil-libertarian opposition to the Thomson plan now has a legislative target. Robert Hale, the Pentagon’s comptroller, announced on Monday that the $159 billion funding request for next year’s operations in Iraq and Afghanistan will contain a $350 million “transfer fund” for detainee operations that will authorize the administration to “let us open the Thomson, Illinois, site.” Placing the money for buying Thomson from Illinois — a necessary step toward transferring those Guantanamo detainees that will not be tried in federal civilian court to the prison –effectively dares critics to face accusations of not supporting the troops in Afghanistan if they try to block funding for for the Guantanamo closure.

At least one question about Thomson that civil libertarians consider crucial remains unanswered by the Obama administration. The administration has stated clearly that Thomson is designed to house detainees tried before military commissions, as occurs at Guantanamo. But it has been much vaguer about embracing or renouncing the even more contentious prospect of indefinite detention, Guantanamo’s other chief feature.

Last month, a year-long interagency task force on Guantanamo detainees recommended to the White House that the administration ought to continue to hold about 50 detainees indefinitely without charge, claiming simultaneously that there is insufficient evidence to convict them before either civilian or military courts but that their release would jeopardize national security. An administration official who would not discuss ongoing deliberations on the record said that the National Security Council is still reviewing the task force’s recommendations. “You should not consider them already accepted,” the official said, but cautioned that there is no timetable for formal adoption, rejection or modification of the recommendations, since “detainees’ status’ could change, based on the status of their habeas case [or] the situation on the ground in a receiving country” to which the detainees’ might be transferred.

With the arrival of a funding mechanism for Thomson on Capitol Hill, that vagueness leaves the civil liberties community unable to say that the administration has ruled out holding detainees indefinitely without charge, a bedrock principle of every civil libertarian organization, and unable to distinguish Thomson’s planned activities from Guantanamo’s objectionable ones. “If all we’re doing is exporting Guantanamo to Thomson for purposes of military commissions and indefinite detention,” said Virginia Sloan, president of the Constitution Project, “we’re very strongly opposed to that.”

Devon Chaffee, who handles national-security issues for Human Rights First, cautioned that the contours of the Thomson legislation were not yet fully defined. But, she said, “Human Rights First will continue to oppose indefinite detention without trial and the use of a flawed military commission procedure regardless of where it’s implemented. As long as the U.S. continues those policies, it will fail to overcome the policy mistakes that made Guantanamo a stigma. Those are two positions of ours that are not going to change.”

As a result of the administration’s vagueness about continuing to hold detainees at Thomson indefinitely without charge, the $350 million funding vehicle could unite liberal congressional opponents of indefinite detention with conservative congressional advocates of it. And the Obama administration does not have much legislative margin for error, even on a request as normally politically sacrosanct as war funding. Like with the defense budget overall, the Iraq and Afghanistan money for next year, formally known as the Overseas Contingency Operations Fund, must be authorized by the Senate and House armed-services committees before the formal appropriation is taken up by the Senate and House appropriations committees, all preceding full votes before the Senate and House. Republicans in the Senate proved willing in December to filibuster the defense appropriations bill in a failed bid to stop Obama’s health-care reform package. A potential alliance of convenience between Republicans who want to keep Guantanamo open and liberal Democrats who want to prevent Thomson from becoming a new Guantanamo could jeopardize the measure’s passage.

Anders said that if the Thomson plan was “reconfigured for the pre-trial detention and post-conviction sentencing of people tried in [federal] courts we might very well take a very different position,” holding out the prospect of the administration earning civil libertarian support by shuttering both Guantanamo and its policies. But, he added, “that’s not how it’s being set up.”

That isn’t a consensus position among civil libertarians. David Remes, a lawyer for several Guantanamo detainees and the executive director of the Appeal for Justice, a human-rights legal practice, said he opposes Thomson under any circumstances. “Number one, I oppose preventive detention in principle, and number two, I don’t see how spending a lot of money to change the zip code moves the ball forward,” Remes said. “I’m not in favor of moving anything to Thomson. There really is no difference between being tried in Gitmo North versus Gitmo South.”

Nor has the civil libertarian community been consulted on the plan, a position that many consider to have effectively cut off the administration from potential outside messaging surrogates. “The community has been frustrated working with the administration on this because we’ve been available and more than willing to help defend policies we think are the right ways to close Guantanamo,” Sloan said. “They haven’t really done that here. We feel we’re behind the eight ball.”

Shuttering Guantanamo within one year was among of Obama’s first pledges in office. But the deadline slipped after numerous congressional missteps, including a dramatic Senate vote in May, embraced by 90 senators, to prohibit funding to “transfer, release, or incarcerate” Guantanamo detainees in the United States. Sen. Harry Reid (D-Nev.), the Democratic leader, insisted then that the vote was mostly symbolic and any administration plan to close Guantanamo would receive careful Senate consideration.

But the opposition to the administration’s plans for closing Guantanamo is increasing, even among those who ultimately want the U.S. to be rid of all forms of indefinite detention. Anders said that for the ACLU, “The goal has never been changing the geography. The goal is to close both Guantanamo and the policies that are problematic there — the use of military commissions and indefinite detention. Transferring those policies to Thomson is something we oppose.”

Apropos of intelligence chief Dennis Blair’s remarkable disclosure, the following statement comes from the American Civil Liberties Union’s Ben Wizner:

It is alarming to hear that the Obama administration is asserting that the president can authorize the assassination of Americans abroad, even if they are far from any battlefield and may have never taken up arms against the U.S., but have only been deemed to constitute an unspecified “threat.” This is the most recent consequence of a troublingly overbroad interpretation of Congress’s 2001 Authorization for the Use of Military Force. This sweeping interpretation envisions a war that knows no borders or definable time limits and targets an enemy that the government has refused to define in public. This policy is particularly troubling since it targets U.S. citizens, who retain their constitutional right to due process even when abroad.

His colleague Jonathan Manes wants to know more:

The American people have a right to know more about a policy that grants the president the unilateral authority to approve the killing of U.S. citizens. It is essential that more information be made available about who can be targeted for killing, who makes these decisions and on the basis of how much evidence, and whether lethal force can be used if arrest or capture are possible or have not been attempted. While there is little doubt that a U.S. citizen fighting for an enemy army could lawfully be killed on the battlefield in the course of fighting, this policy goes far beyond the ordinary parameters of battlefield combat. It appears to allow for the deliberate targeted killing of American citizens far away from any active hostilities, as long as the executive branch determines unilaterally that they meet a secret definition of who the enemy is.

Afghanistan optimism: Catch it!

“I still will tell you that I believe the situation in Afghanistan is serious,” said the commander, Gen. Stanley A. McChrystal.

“I do not say now that I think it’s deteriorating,” he added. “And I said that last summer, and I believed that that was correct. I feel differently now. I am not prepared to say that we have turned the corner. So I’m saying that the situation is serious, but I think we have made significant progress in setting the conditions in 2009, and beginning some progress and that we’ll make real progress in 2010.”

Oh, the perils of commanding a counterinsurgency, in which granular information is both deeply necessary and potentially contradictory from the perspective of the broader strategic picture. You say that things are going well and you’re naive or out of touch. You say that things are going poorly and everyone starts writing that Even The Commander Thinks It’s Hopeless. As a result, you’re kind of boxed into heavily caveated statements. My personal favorite came when Gen. Petraeus told a congressional panel in 2008 that “nothing succeeds like significant progress.”

Remember Deputy Defense Secretary William Lynn? He was the former Raytheon lobbyist who joined the Obama administration almost immediately after the president announced new ethics rules barring lobbyists from joining the government in their relevant fields. His nomination survived after getting an ethics waiver, whereby he swore he wouldn’t have anything to do with his former company’s business — which is a really difficult promise for a deputy defense secretary to keep. Anyway, he’s been a low-key figure for the past year.

Now, though, the Project on Government Oversight has filed a Freedom of Information Act request for Lynn’s ethics records. From a prepared statement emailed to reporters:

“POGO worried that the wide spectrum of the work required by Deputy Secretary Lynn’s position would prohibit him from conducting work free from conflicts of interest,” said POGO Executive Director Danielle Brian. “We are requesting this information to make sure that the Pentagon did due diligence to ensure no lines were crossed.”

POGO’s Freedom of Information Act (FOIA) request asks for ethics decisions, ethics or conflict of interest waivers, recusal decisions, and any procedures established on behalf of or as a consequence of William Lynn’s previous experience as a lobbyist for one of DoD’s top contractors. The request also asks for correspondence or information regarding meetings between Deputy Secretary Lynn and Raytheon.

Josh Rogin reports that “multiple sources” are saying Jim Steinberg, the deputy secretary of state, is being headhunted for a position running Georgetown University’s School of Foreign Service. Steinberg, Clinton’s deputy for policy and diplomacy, is reportedly dissatisfied with his status in the Obama administration. And the feeling is at least partially mutual:

[S]ome State Department bureaucrats privately gripe about what they see as Steinberg’s sometimes intrusive style, and some of his policy proposals have been seen as poorly coordinated with the other parts of the policy community. “He’s a brilliant guy, but just not a great fit for that job,” said one administration source.

According to two sources familiar with the process, Steinberg has met with the Georgetown search committee and expressed an interest in applying for the job. The search committee has also met with individuals close to Steinberg, to hear their recommendations for him. Sources said the search committee is still narrowing the candidate list and conducting interviews, before making any recommendations to the university president.

When asked if he was a candidate for the job by The Cable, Steinberg said by email, “It would be news to me.”

Danger Room’s Nathan Hodge is off the Haitian coast aboard the USS Bataan, which he reports has become a “new hub of Haiti operations” now that the immediate disaster relief mission has transitioned into one of providing sustained humanitarian resources. What’s that mean for the ship? A lot of partnering with non-governmental relief agencies:

Humanitarian aid makes for strange alliances. In the main cargo bay, pallets of bottled water and medicine donated by a Christian relief group share space with Marines of the 22nd Marine Expeditionary Unit. The young, shaven-headed riflemen clean their weapons and run PT around the hold, looking primed for combat. But when they hit the beach — they have established a landing zone at Leogane — they will be armed with bottled water.

As we’ve reported here before, the military has adopted a mantra of openness and collaboration. I spoke briefly with a Navy civil affairs officer, who described how he was working with charities like Oxfam and Medecins sans Frontieres, non-governmental organizations that are typically wary of the military.

“We’re trying to get to the NGOs and IOs [international organizations] and see how they operate,” he told me. “We see what portals they use, how they operate. The attitude is, we know what we do, but we can learn from them.”

At least that’s clearer than some of Bataan’s operations earlier in the Haiti relief mission.