Author: Spencer Ackerman

The national security adviser didn’t say anything new during his afternoon talk to the Center for American Progress about reconciliation with the Taliban. Jim Jones pledged an “open door” for “those who would abandon violence” and “respect the rights of fellow citizens.” Those are parameters for negotiation, not a focus on personalities, in other words. Asked by Jon Landay of McClatchy about hypothetical negotiations with Mullah Omar as Jones headed to the elevators, Jones responded, “We’re pursuing a general strategy of engagement and we’ll see where that takes us.”

But he expressed some dismay about the Pakistani military’s announcement that it won’t pursue al-Qaeda in North Waziristan during the next year. “The speed with which we are able to achieve our goals in Afghanistan has a relationship to the willingness of Pakistan to take on the safe havens that exist in the border region,” Jones said. He added that the administration is trying to get Pakistan to see the “urgency of the moment” for Afghanistan, Pakistan and “the region itself.” Convincing the Pakistanis of that urgency requires persuading them that the United States is ready, for the long haul, to promote Pakistan’s legitimate interests.

This — to be very clear — isn’t a shift of position. Both Richard Holbrooke, the Obama administration’s special representative to Afghanistan and Pakistan, and Gen. Stanley McChrystal, the commander of NATO troops in the war, have said that they would support any outreach made by the Afghan government to reconcile with insurgents not linked to al-Qaeda. But with an international conference in London to rally support for Afghanistan scheduled for Thursday, both are emphasizing that position. Holbrooke told The New York Times that he didn’t have a problem with scrubbing the United Nations’ list of banned terrorists for the names of mid-to-high ranking Taliban fighters, a move intended to test Taliban willingness to negotiate an end to the war:

“A lot of the names don’t mean much to me,” Richard C. Holbrooke, the Obama administration’s special envoy to Afghanistan and Pakistan, said last week in Kabul. “Some of the people on the list are dead, some shouldn’t be on the list and some are among the most dangerous people in the world.

“I would be all in favor of looking at the list on a case-by-case basis to see if there are people on the list who are on the list by mistake and should be removed, or in fact are dead,” he said.

And in the Financial Times, McChrystal expressed agnosticism about the membership of the Afghan government:

“As a soldier, my personal feeling is that there’s been enough fighting,” he said. “What I think we do is try to shape conditions which allow people to come to a truly equitable solution to how the Afghan people are governed.”

Asked if he would be content to see Taliban leaders in a future government in Kabul, he said: “I think any Afghans can play a role if they focus on the future, and not the past.”

Again: not new, but a renewed emphasis. I’ll be at the Center for American Progress later today to hear Jim Jones, the national security adviser, discuss Afghanistan and Pakistan, and I’ll be interested to hear if he makes the same call.

What were the wages of Director of National Intelligence Dennis Blair’s botched Senate testimony Wednesday about being cut out of the loop on the interrogation of would-be Northwest Airlines Flight 253 bomber Umar Farouk Abdulmutallab? Sens. Joseph Lieberman (I-Conn.), Susan Collins (R-Maine), John Ensign (R-Nev.) and Robert Bennett (R-Utah) announced Friday that they plan to introduce a bill preventing the Justice Department and the FBI from making unilateral decisions on a foreign terrorist suspect’s interrogation, a move that will limit the Mirandization of those suspects and potential jeopardize their prosecution.

Collins said in a statement that the fact that the FBI read Abdulmutallab his Miranda rights “likely foreclosed the collection of additional intelligence information.” But over the weekend, The Associated Press published the most comprehensive account to date of Abdulmutallab’s interrogation and found no evidence that Mirandization inhibited interrogators’ access to valuable information. FBI interrogators, to the contrary, read him his Miranda rights after they were satisfied that he had no further information about any further attacks. From the piece:

The suspect spoke openly, said one official, talking in detail about what he’d done and the planning that went into the attack. Other counterterrorism officials speaking on condition of anonymity said it was during this questioning that he admitted he had been trained and instructed in the plot by al-Qaida operatives in Yemen.

The interview lasted about 50 minutes. Before they began questioning Abdulmutallab, the FBI agents decided not to give him his Miranda warnings providing his right to remain silent.

Lawmakers and commentators who claim that Mirandizing Abdulmutallab jeopardized his interrogation still can’t point to a shred of evidence. But they can point to an embarrassing and inconvenient bit of testimony from the top U.S. intelligence official, despite his attempts hours later to walk it back. If this forthcoming bill provokes an actual legislative battle, will Blair testify in favor of it? Or will he say it’s unnecessary, before a panel of justifiably skeptical conservative senators? Or will he not stick around in the Obama administration long enough for the question to matter?

The American Civil Liberties Union has already come out against the proposal. Its executive director, Anthony Romero, said in a statement, ”It is extremely disturbing that members of the U.S. Congress are essentially calling for Obama administration officials to discard the Constitution when a terrorist suspect is apprehended – as if the Constitution should be applied on a case by case basis. The whole idea of having constitutional protections is that they be applied across the board for all those accused of a crime. That is the only way for us to rely on our justice system and its results. Obeying the Constitution is not optional.”

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

OBAMA OFFICIAL

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

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

DEMOCRATIC SENATOR

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

OBAMA OFFICIAL

Thank you, Mr. Chairman.

DEMOCRATIC SENATOR

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

OBAMA OFFICIAL

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

DEMOCRATIC SENATOR

Don’t get me started on those.

OBAMA OFFICIAL

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

DEMOCRATIC SENATOR

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

OBAMA OFFICIAL

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

DEMOCRATIC SENATOR

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

OBAMA OFFICIAL

We believe that– there are, yes, there are problems with indefinite detention without charge that, that — that aid al-Qaeda. But the potency of the symbol of Guantanamo Bay is something– we need to– must be removed.

REPUBLICAN SENATOR

Mr. Chairman, thank you for holding this important hearing. I’d like to begin by acknowledging the presence of our new colleague from the great state of Massachusetts. It is so good to see you here this morning.

DEMOCRATIC SENATOR

So ordered.

REPUBLICAN SENATOR

Thank you, Mr. Chairman. Mr. Secretary, there are dangerous people at Guantanamo Bay, are there not? You would agree with that?

OBAMA OFFICIAL

[Brief pause.] Yes, Senator, there are. And that’s why we’ve taken extraordinary measures at Thomson to provide for the security of both the facility and the surrounding community. As you can see from the workforce plan my staff has provided for the committee, inside Thomson, we have worked with the Justice Department’s bureau of prisons to provide for, among other– for multi-perimeter security, including dual-sided electric stun fencing, outer and inner towers with armed guards, networked cameras and a lot of other measures. It’s even more secure than the federal Supermax prison in Colorado. I’d be happy to provide the workforce plan for the record.

REPUBLICAN SENATOR

I believe my staff has a copy. But Guantanamo Bay is a military facility, correct?

OBAMA OFFICIAL

[Pauses. Adjusts microphone.] Yes, Senator.

REPUBLICAN SENATOR

On a Naval base? In the middle of the Carribean?

OBAMA OFFICIAL

Yes, Senator.

REPUBLICAN SENATOR

Anyone ever escape from it?

OBAMA OFFICIAL

No, Senator.

REPUBLICAN SENATOR

Professionally run? Well maintained?

OBAMA OFFICIAL

It is a very professional facility, yes, Senator.

REPUBLICAN SENATOR

Then I simply fail to see why I should support the appropriation of money to close it. We’re still talking about detaining people– about detaining terrorists without charging them, right?

OBAMA OFFICIAL

Yes, Senator, at the end of this very deliberative task force rev–

REPUBLICAN SENATOR

Thank you. My time is expiring. Mr. Chairman, it’s clear that we’re not talking about providing rights to terrorists. The administration doesn’t contest the point. I find it baffling, given the soft Obama economy, that we would be asked to provide money to ship terrorists from Gitmo to Illinois. The only thing that can come of this is greater access to the courts. My time has expired.

DEMOCRATIC SENATOR

Goddammit! I can’t believe I agree with this guy! Mr. Secretary, why should I provide you a penny of taxpayer money to close one indefinite detention facility and open another?

OBAMA OFFICIAL

Well, Senator, the recruitment provided– the recruiting tool that Guantanamo provides to our en–

DEMOCRATIC SENATOR

Do you expect me to believe that if we open an indefinite detention facility in the middle of Illinois that al-Qaeda is too stupid to use that as a recruiting tool?

OBAMA OFFICIAL

Senator, the task force approached this in a very deliberate way. We believe closing Guantanamo Bay needs to be a national priority.

DEMOCRATIC SENATOR

Are you motherfucking kidding me? The issue isn’t Guantanamo Bay! It’s indefinite detention without trial! It’s torture! It’s the betrayal of the Constitution! You could put the fucking facility in the middle of a Thai whorehouse and as long as it doesn’t provide its inmates with access to the courts I’ll oppose it! You could have Reed Richards of the motherfucking Fantastic Four open a portal to the Negative Zone, put the thing there and I’ll oppose it!

OBAMA OFFICIAL

Senator, we’ve consulted with Dr. Richards, and we–

DEMOCRATIC SENATOR

I can’t believe this. I really can’t believe this.

OBAMA OFFICIAL

– And we don’t believe that would be a responsible option.

DEMOCRATIC SENATOR

You realize you’re forcing me to side with my Republican colleague on this, right? The two of use each other in each other’s ads, for the love of God, to get our constituents to vote for us! But you’re asking me to tell my constituents that I approved of money to close one indefinite detention facility and open another! In the middle of America!

OBAMA OFFICIAL

Senator, we’ve reviewed this issue extensively, and we believe this is a responsible way forward, a way that balances the values we all share, the fidelity to the Constitution we all share, and the protection of the American people that we swore an oath to uphold. I’d be happy to submit the task force’s recommendations to the committee for the record.

 

So the Obama administration’s Guantanamo task force has decided that about 50 people ought to be held indefinitely without charge. What’s the remedy to for that? Basically, there’s habeas corpus, the procedure by which a detainee requests that a court determine the validity of the government’s claim to hold him (in this case) because of his status as a belligerent in the conflict with al-Qaeda. Notice that’s not the same thing as asking a court to decide whether the government in the first place has the power to detain someone indefinitely without charge. According to lawyers for Guantanamo detainees and prominent civil liberties advocates, any lawyer who asks a court to decide that broader question will immediately be told, “Your client has the right to a habeas hearing. File a habeas petition and then come talk.” So here’s what the procedure is for the 50 or so detainees in this indefinite-detention-without-charge category.

First a detainee has to win a habeas case. (Check their track record here.) Easy, right? If the government decides not to contest the decision, then the detainee — who, recall, the Obama administration is saying is too dangerous to responsibly release — walks. (More on that in a second.) We haven’t been faced with this situation yet. But if the administration appeals, then the detainee has to win. And on up to the Supreme Court, if the government really wants to contest the issue. Joseph Margulies, a professor of law at Northwestern University who’s focused extensively on Guantanamo, estimates that this process could take at least 18 months to exhaust itself at the earliest. Possibly years. (And even then, it wouldn’t be certain that the Supreme Court would use a habeas appeal as an opportunity to decide the first-order question: whether the Obama administration has the constitutional power to hold a member of al-Qaeda or the Taliban in indefinite detention without charge.)

The real inflection point will come “when the government loses” a habeas case, said Margulies. “Are they going to let [a detainee] go?” If the administration concedes the loss, then there’s no crisis. But if it decides it can’t let someone go, and runs out of appeals, then the administration’s most likely option is to get a get a preventive detention bill from Congress, a civil liberties Rubicon. The Obama administration briefly considered that option this summer and balked. But if the administration loses a habeas case; seeks to detain someone indefinitely even so; and doesn’t have explicit preventive detention powers from Congress, then it most likely is just simply breaking the law.

“I heard about this listening to an NPR story this morning,” said Sabin Willett, a lawyer for the Uighurs at Guantanamo Bay, describing his big-picture reaction to the Guantanamo task force’s conclusions. “The intro to that story described them as ‘the terror suspects at Guantanamo.’” Willett pointed out that his clients have been cleared by Defense Department tribunals and exonerated by the courts. They are not terrorists, and no one believes they’re terrorists. “This proves the power of the press — those two words ‘terror suspects.’ How do I fight that?”

From there, Willett continued, it’s natural to start wondering if those “terror suspects” really are too dangerous to release. “I keep saying, give me a name. Who’s too dangerous? Give me a reason. Then start asking what other regimes had people they considered ‘too dangerous to release.’ You’re going to find yourself on a list of countries you’re not too proud to be on.”

A postscript: Dear lawyers. I am not one of you. This is my best attempt to understand what you guys do. I am happy to correct errors here, but please read this post in that spirit.

In a move straight out of the Bush administration’s Office of Legal Counsel, a secret decision made by the Obama administration’s OLC provided retroactive legal justification for the FBI and telecommunications companies to improperly collect the phone records of American citizens. We would have no idea that the OLC issued any such retroactive blessing had not the Justice Department’s inspector general released a report this week blowing the whistle on it.

Senators Ron Wyden (D-Ore.), Dick Durbin (D-Ill.) and Russ Feingold (D-Wis.) wrote a letter today — which you can read in full after the jump — calling on Attorney General Eric Holder to “immediately” give Congress a copy of OLC’s retroactive immunization.

The Honorable Eric H. Holder, Jr.
Attorney General
United States Department of Justice
Washington, DC 20530

Dear Mr. Attorney General:

We are greatly concerned by the Department of Justice Office of Inspector General (OIG) report entitled “A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records,” which was issued yesterday. The report documents what appears to be several years of rampant illegality in the FBI’s methods of obtaining telephone records. As you know, we have been urging changes to the Patriot Act that would protect national security as well as the rights of Americans, and we believe this report further highlights the need for legislative changes.

We write specifically because we believe the Department should immediately provide to Congress a copy of the January 8, 2010, Office of Legal Counsel (OLC) opinion that is referenced in the OIG report and that apparently interprets the FBI’s authority to obtain phone records. Although much of the information about the OLC opinion is redacted in the public version of the OIG report, the opinion appears to have important implications for the rights of Americans. The report states that “the OLC agreed with the FBI that under certain circumstances [REDACTED] allows the FBI to ask for and obtain these [phone] records on a voluntary basis from the providers, without legal process or a qualifying emergency.” (p. 264) It further states that “we believe the FBI’s potential use of [REDACTED] to obtain records has significant policy implications that need to be considered by the FBI, the Department, and the Congress.” (p. 265) And finally, it states that the OIG recommends “that the Department notify Congress of this issue and of the OLC opinion interpreting the scope of the FBI’s authority under it, so that Congress can consider [REDACTED] and the implications of its potential use.” (p. 268)

In light of the OIG’s recommendation, please provide Congress with the January 8 OLC opinion immediately. We appreciate your attention to this important issue.

Sincerely,

Russell D. Feingold Richard J. Durbin
United States Senator United States Senator

Ron Wyden
United States Senator

Mark Hosenball reports that no one checks the visas of U.S.-bound air travelers until they’re in the air. On the one hand, checking visas alone won’t necessarily keep a dangerous person out of the country. There wasn’t a single problem with Umar Farouk Abdulmutallab’s visa before he boarded Northwest Airlines Flight 253. But that misses the forest for the trees: It doesn’t make sense to have a requirement that no one enter the U.S. without a valid visa if no one checks that visa before arrival in the country.