Author: Spencer Ackerman

GUANTANAMO BAY — A source from the convening authority for the military commissions just informed the press corps that Secretary of Defense Robert Gates has finally signed and issued a Manual for the Military Commissions Act of 2009. It’s 7:30 p.m. as I write this. Approximately 13 and a half hours from now, Col. Pat Parrish, the military judge presiding over Omar Khadr’s pre-trial hearing, will gavel the first full-fledged military commission proceeding of the Obama administration into order. The source told us that as of right now, prosecution and defense counsels are meeting with Parrish to inform him that the Manual is out.

Oh, one more thing: As of right now, a copy of the Manual isn’t at Guantanamo Bay. No one involved in tomorrow’s hearing has read it. Apparently its a very big file — inches thick if printed out — and internet speeds here are pretty slow.

Why’s this important? Because the Manual for the Military Commissions establishes the rules of evidence and the rules of procedure for the commissions — absolutely critical stuff for any judicial activity. Earlier this afternoon, Mike Berrigan, the deputy chief defense council for the commissions, bluntly told a press conference, “We don’t know what the law is” as a result of not having the Manual. Berrigan’s effective opposite, commissions prosecutor Navy Capt. David Iglesias, who claimed yesterday that the Military Commissions Act established sufficient rules, conceded shortly after Berrigan’s statement, “Reasonable people differ on this point.”

Iglesias further elaborated that if the judge sees things Berrigan’s way, “Tomorrow will be a very short day,” since the judge will simply delay the hearing until the issuance of the Manual. It bears mentioning that if officers of the court haven’t had time to read the Manual before the hearing, Iglesias’s quip still applies.

Over four months after President Obama missed his self-imposed deadline to shutter the detention facility at Guantanamo Bay, approximately 180 detainees remain behind the wire and within the walls of the seven camps that comprise Camp Delta. All have been there for years on end: The most recent detainee arrived in 2007. Most have never been charged with any crime or wartime offense. One of the few who has, Omar Khadr, a Canadian citizen who has spent his teenage years and early 20s in Guantanamo since 2002, will dispatch his lawyers tomorrow morning for a pre-trial hearing seeking to ban what they contend is coerced testimony from his military commission for murder and material support for terrorism. Some detainees have even been cleared for release: Fewer than ten Uighur detainees (the military does not disclose the specific number) remain in a facility called Camp Iguana, where they are considered “residents” and not detainees, as their release has been ordered by U.S. courts but no country has agreed to take them in.

It’s unclear when the Obama administration will actually close the facility. There’s a possibility it could still carry out the closure before the end of the year: The Defense Department has asked Congress for $350 million for all aspects of closing the Guantanamo detention facility and purchasing a new Illinois prison to house the residual population that has yet to be tried or repatriated (as well as about 48 detainees the administration seeks to hold in indefinite detention). It has placed the money in the politically potent request for funding operations in the Afghanistan war. That choice itself reflects the bipartisan resistance in Congress to actually closing the facility, despite both party’s presidential candidates in 2008 running on a pledge to end an international symbol of infamy.

Accordingly, a group of reporters toured a few of Camp Delta’s nine facilities today to get a highly constrained glimpse of residual life in Guantanamo Bay. The military command has reviewed every photograph presented here to prevent inadvertent disclosures of classified information; seven photographs I took were deleted.

A rare glimpse between two outer layers of security surrounding Camp 5 and Camp 6, two facilities modeled on prisons in Indiana and Michigan. Recently-relaxed rules for restricting photography now allow some visual representation of the shoreline. We did not get to see Camp 7, a facility containing high value detainees. “We do acknowledge there’s a Camp 7,” said Lt. Col. Andrew McManus, the deputy commander of the Joint Detention Group, which oversees detention operations. “That’s all we say about it.” When I asked if the 14 detainees at Guantanamo Bay who arrived in September 2006 from undisclosed prisons run by the CIA — including Khalid Shaikh Mohammed and his fellow 9/11 co-conspirators — lived in communal housing or are held in individual cells, McManus replied, “I know nothing about that whatsoever.”

A detainee jogs around the central recreation yard in Camp 4, a communal-housing facility for detainees who comply with guards’ orders. When he saw a group of reporters taking pictures of the area, he yelled out in English, “Put me beside bin Laden!” The consensus of the press corps was he was joking.

Two contrasting images from an area in Camp 4 used for holding educational classes. With the exception of the prayer mat, the recreational materials on this table — the Soduko book, the art supplies and the magazines — are comfort items provided to help “compliant” detainees at Camp 4 while away the time. In the makeshift classroom, detainees watch DVDs — some are said to be partial to Jackie Chan movies and the Alaskan fishing show “Deadliest Catch” — as well as attending art and language and “life skill” courses. But across the floor in the classroom are small metal eyebolts used to shackle detainees to their seats during the classes. “For the safety of the instructor, the detainees are shackled,” McManus explained.

Camp 6, modeled on a Michigan prison, is a $37 million facility consisting of eight blocks of 22 cells. It’s a communal-living facility, meaning detainees live with each other, although there are several cells that aren’t big enough for more than a single occupant. Here, a detainee — a slight man, maybe about 5 foot 5 — ambles over from a common area to speak amiably with a guard, who’s separated from the detainee by a schoolyard-fence style barrier. I was allowed to publish these photographs because I blurred the detainee’s faces.

This is the ceiling of a single-occupancy detainee’s cell in H Block in Camp 6, just above the toilet. I laid down on the concrete platform set up for a detainee’s bed to get a sense of what might be the last thing he sees before going to sleep at night.

Another shot from the recreation yard at Camp 4. The only towers we’re allowed to photograph are those with guards manning them, and only then if the guard’s face isn’t able to be determined. Similarly, the crouching detainee below pulled the collar of his shirt above his nose, obscuring his face enough so that a photograph of the scene could clear a security review.

We weren’t allowed inside this Camp 4 facility. While there’s no indication this behavior persists at Guantanamo, early in the detention facility’s existence, behavioral-science teams were involved in abusive interrogation and detention operations, as a Senate Armed Services Committee report in 2008 meticulously documented. There haven’t been accounts of behaviorally-enhanced interrogations for years. “We have visitors here every day of the week,” McManus said, including the International Committee of the Red Cross.

A view of the American flag through the perimeter fences around Camp 4 and Camp 5. A Toronto Star journalist remarked that it was probably the single most photographed American flag around. Then she snapped some pictures.

GUANTANAMO BAY — David Iglesias, who in a previous professional incarnation was a U.S. attorney fired by the Bush administration for insufficient loyalty to the Republican Party, began his career as a defense counsel in the Navy JAG corps. Now he’s a prosecutor again, this time for the much-criticized and much-revised military commissions at Guantanamo Bay. In an impromptu Monday afternoon press briefing, Iglesias explained some of the new procedures in place after Congress and the Obama administration passed the Military Commissions Act of 2009, especially as they apply to hearsay evidence — as well as how some rules for the commissions haven’t really been established yet.

Video after the jump:

GUANTANAMO BAY — Retired Air Force Col. Morris Davis, a former chief prosecutor of the military commissions-turned-critic, has an opinion piece in the Huffington Post expressing disappointment in President Obama for not keeping his campaign pledges to shutter Guantanamo and end the commissions. (Davis might have considered that there is real congressional antipathy to closing the detention facility and Obama needs Congress’ aid to close it; but keeping the military commissions, in revised form, was a unilateral act.) Davis reprises some of his older themes about the professionalism of the guards here — something I’ll get to observe for myself, in about an hour, when I tour three of the six detention camps.

On the commissions, however, Davis is less judicious about the hybrid law/war system that they represent:

Second, if terrorism falls within the ambit of warfare rather than ordinary crime, then the Geneva Conventions are the basis of the rights the detainees enjoy, and fairly administered military commissions could meet or exceed the requirements of Common Article 3 of the Geneva Conventions. Decide whether we’re at war with al Qaeda and its affiliates or if their activities are manifestations of a crime spree, and pick the corresponding criminal forum. Fourteen high value detainees got off the airplane at Gitmo in September 2006. Parsing an explanation for why Ghailani gets full constitutional rights in a trial in federal court while his fellow passenger Nashiri gets something less in a military commission does not enhance our standing in the eyes of the world.

And that doesn’t even touch on some of the confusion closer to home. Among the reasons Sen. Lindsey Graham (R-S.C.) wants Khalid Shaikh Mohammed tried by a military commission and not a civilian court is because it’s hard to understand why the architect of 9/11 wouldn’t be placed before a venue designed for trying war crimes but someone charged with a lesser offense would be tried there. Two senior administration officials, David Kris of the Justice Department and Jeh Johnson of the Defense Department, didn’t articulate a clear rationale for determining who ought to be tried in which venue during the highest-profile congressional hearing on the question thus far.

Davis also highlights the looming question of judicial oversight for any post-Guantanamo system of indefinite detention without trial, something Graham and Attorney General Eric Holder recently agreed the administration and Congress ought to design. Check out the piece.

GUANTANAMO BAY — The military commission for Omar Khadr, the Canadian citizen held here since 2002 and charged with killing a U.S. soldier, doesn’t get underway until Wednesday morning. An idle press corps, even in the balmy Antillean spring, doesn’t make for a contented beast, so the media handlers at Joint Task Force-Guantanamo are coordinating tours for us through three of the detention camps.

There are tight restrictions on what we can and cannot film and photograph. I’ll attempt to get as visual a presentation of the facilities as I can provide. I haven’t been to Camp Delta — the facility that comprises all six detention facilities — since summer 2005. Back then, the sixth camp hadn’t even been constructed. For a sense of what it looked like five years ago, check out this piece I wrote at the time. I’m very curious to see what’s changed and what hasn’t.

One thing that’s already noticeably different is the media strategy. Five years ago, press handlers at Guantanamo worked to convince visiting reporters that Guantanamo was vital to national security and allegations of abuse were either unfounded or overblown. Upon preliminary observation, that doesn’t appear to be the current approach. No public affairs officer is aggressively questioning reporters to determine hostility to indefinite detention and persuading or hectoring them into acquiescence with the goals of Guantanamo.

The new slogan, emblazoned on the press packets here, is “Safe, Humane, Legal, Transparent.” Reporters who’ve come here recently have told me that the number-one goal of the press strategy here is to convince reporters that the detainees are currently treated humanely and the facility is run professionally — regardless of anyone’s particular view about indefinite detention or military commissions.

More when I get back from the tour of the detention facilities, currently home to 180 or so detainees.

GUANTANAMO BAY — The first surprise of the first full-blown hearing of the military commissions under President Obama? The presence of David Iglesias, the former U.S. attorney from New Mexico purged by former Attorney General Alberto Gonzales for insufficient political fealty to the Republican Party. Iglesias, a reservist Navy captain, is serving as a legal adviser to the military commissions’ convening authority and a prosecutor here, although he’s not prosecuting the case of Omar Khadr, the Canadian citizen whose pre-trial hearing will begin Wednesday morning. “This is my most recent incarnation as a prosecutor,” he told the press corps here.

I asked Iglesias if the absence of a manual instructing officers of the court how to interpret the Military Commissions Act of 2009 — the statute governing this latest version of the commissions — would negatively impact Khadr’s hearing.”We expect the impact to be negligible right now,” Iglesias said, contending that the Act itself provides sufficient guidance for the case to proceed. “That being said,” he continued, “both sides expect there to be rules assigned very, very soon.”

That didn’t satisfy Jennifer Turner, a human rights researcher with the American Civil Liberties Union here to observe the proceedings. Federal courts have “years of experience” in interpreting statute and precedent and acting accordingly at trial, she said. The result of years of inventing the commissions, subsequent court challenges, legislative action, court challenges to that legislative action, and finally legislative responses to those challenges is that the officers of the commissions don’t have the same body of law to call upon to guide the proceedings. As Turner put it, “the problem is there are currently no rules for the military commissions.”

Well, not entirely. One rule currently in place is that whoever requests an action of the court has the burden of demonstrating the validity of its case. In Khadr’s case, his attorneys have asked the judge to suppress any statements he made during his post-2002 detention at Bagram and then Guantanamo Bay, contending that those statements describing his actions on the battlefield of Afghanistan’s Khost Provice are the result of torture, degrading treatment and coercion. So since Khadr’s lawyers filed a motion to suppress their client’s statements, “it’s their burden, by a preponderance of the evidence,” admittedly a low standard for demonstrating that Khadr’s treatment in detention represents what lawyers call the “fruit of the poisoned tree,” a legal doctrine stating that initial impropriety in extracting information renders whatever information ultimately results inadmissible in court.

Starting this week, something will happen that was never supposed to when Barack Obama took the oath of office. A military commission meeting at Guantanamo Bay nearly five months after Obama said the detention facility would cease to exist will hold a pre-trial hearing for Omar Khadr, a Canadian citizen captured by U.S. forces in Afghanistan in 2002 and accused of throwing a grenade that killed a U.S. soldier. At the end of the hearing, it will likely be possible to tell whether Obama’s changes to the military commissions created and advocated by George W. Bush — and most congressional Republicans — are substantive or cosmetic.

Khadr, a teenager when initially detained, has been held for nearly half his life at a facility that the Obama administration has pledged to close. He will be tried in a legal venue that Obama rejected as a Senator and embraced, in reformed fashion, as president. What happens this week at Guantanamo will determine whether Obama’s pledge that the new, revised military commissions can deliver internationally-recognized justice is meaningful: the pre-trial hearing in Khadr’s case will provide the first in-depth examination of whether Khadr’s treatment in U.S. custody amounts to torture; will determine whether prosecutors can use evidence against him acquired under abusive, coercive circumstances that civilian courts would never allow; and whether additional statements made by Khadr in subsequent and less-coercive circumstances are fair game or inextricable from his overall abuse.

On November 7, 2008, three days after Obama won the presidency, Khadr’s military lawyers introduced a motion to suppress evidence commission prosecutors sought to produce that came from Khadr’s interrogations in Afghanistan and Guantanamo Bay. Under the commissions, evidence obtained under torture cannot be used, but the scope of the commissions’ allowance for coercively-obtained testimony remains largely unclear. Since their creation in 2002, the commissions have only produced three convictions, two of which were the result of plea deals; the Supreme Court has twice ruled that the commissions provide insufficient due process rights for defendants.

Khadr’s attorneys charge that the teenaged detainee underwent over 40 interrogations in 2002 at Bagram Air Field in Afghanistan after being shot and suffering shrapnel wounds in a battle with U.S. forces in July 2002 in the eastern Afghan province of Khost. During those interrogations, Khadr was given limited pain medication; had his head hooded while “interrogators brought barking dogs into the interrogation room”; was placed in stress positions despite his gunshot and shrapnel wounds; and was threatened with rape. After 90 days, U.S. military officials flew him to Guantanamo Bay, where he was again placed in stress positions; had his hair torn out; threatened again with rape; and was even used as “a human mop” by military police after he urinated on the floor of his interrogation room after being placed in stress positions for a prolonged period of time.

Information that emerged from those interrogation sessions — basically, what Khadr told his interrogators while being tortured — comprises a substantial portion of the prosecution’s case against him. It isn’t clear how much of the government’s case against Khadr relies on what he told his interrogators after his abusive treatment. The government will call witnesses who will attest to seeing Khadr throw the grenade that killed Sgt. First Class Christopher J. Speer. (At least one, Sgt. Layne Morris, has come forward in the press.) And the government will probably also seek to introduce statements Khadr made that it maintains were not the result of torture. But Khadr’s lawyers contended in their November 2008 motion that “all statements made by Mr. Khadr subsequent to any statement he made in response to coercive interrogation must also be suppressed as fruit of the poisoned tree,” a legal concept holding that the taint of improperly acquired evidence extends to any secondary evidence it produced.

It’s a crucial question for the military commissions. Every detainee who tried before the commissions encountered periods where they were harshly interrogated but then later faced less-coercive interviews, “so this is a real test case for the viability of other prosecutions,” said David Frakt, a lieutenant colonel in the Air Force Reserve judge-advocate general corps who used to be defense counsel for Mohammed Jawad, another juvenile held at Guantanamo Bay. For instance, if Khalid Shaikh Mohammed and the other 9/11 conspirators who were initially held in undisclosed CIA prisons are brought back to military commissions, Khadr’s hearing may determine whether everything they have told their interrogators — even long after being abused — is inadmissible before the commissions. To Jennifer Turner, a human-rights researcher with the ACLU who will travel to Guantanamo Bay to observe the Khadr hearing, if the judge rules that Khadr’s statements to his interrogators can be used against him, “it will show the military commissions under Obama are no different than those under Bush.”

Indeed, it is because of Obama that the issue has remained unsettled. Upon taking office in January 2009, Obama issued executive orders banning enhanced interrogation; vowing to close Guantanamo Bay within a year; and suspending the military commissions while his administration decided how it would deal with the approximately 240 Guantanamo detainees it inherited from the Bush administration. That suspension, coupled with Senator Obama’s objections to the commissions on constitutional grounds, raised hopes among civil libertarians that the administration would ultimately scrap its predecessors’ ad hoc approach to terrorism prosecutions.

Instead, in a May 2009 speech, Obama pledged to reform the commissions, not abandon them. Among the reforms he promised was to “no longer permit the use of evidence — as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods.” By October, Congress passed and Obama signed the Military Commissions Act of 2009. Section 948(r) indeed enshrines the ban on statements made owing to those methods. But it gives judges leeway to enter into evidence “other statements of the accused… only if the military judge finds” that they are indeed voluntary.

And that’s where Khadr’s defense motion comes in. While there have been at least two other pre-trial procedural hearings since Obama opted to retain the commissions, none have had the significance of Khadr’s. There are ten days’ worth of hearings scheduled for the prosecution and the defense to tussle over the motion to suppress and what the Military Commissions Act of 2009 requires for it. The Washington Independent will be at Guantanamo Bay for the proceedings, and will provide frequent reports — in blog posts, stories, photo and video — about what they determine for the future of the military commissions in the age of Obama.

There are at least two additional complicating factors. First is that while the commissions have a new law authorizing them, the military has yet to issue a new manual for officers of the court to understand how the procedures under the 2009 law are to be implemented. “If you go to the website for the military commissions,” noted Air Force Col. Morris Davis, a former chief prosecutor for the commissions, “there is no information on who is heading up the military commissions, no information about a new Manual for Military Commissions that implements the changes Congress made in late 2009, and no information about revised Rules for Military Commissions.” As a result, Davis said, “it appears we’re still trying to lay the tracks after the train has left the station, which is no way to run a railroad or a criminal justice system.”

Maj. Tanya Bradsher, a spokeswoman for the commissions, said that “a revised Manual will be issued shortly,” but added that the manual was less important than the law. “The standards for the admissibility of statements are set out in the Military Commissions Act of 2009, and any procedural or evidentiary rules cannot change the standards set by Congress,” Bradsher said.

Frakt said it isn’t that simple. “The military commission rules of evidence have been substantially changed by the Military Commissions Act of 2009, particularly with regard to the standards to be applied to determining the admissibility of a statement,” he said. “The Manual will have significant additional guidance and discussion, because it’s the implementing regulations for this. It’s possible the judge will gather all the evidence and simply sit around and wait for the Manual to come out before issuing a ruling.” In terms of actually arguing the motion, though, “it’s still unclear what rules apply.”

A second complication is how much detail about Khadr’s treatment a judge will allow the outside world to see. There has never before been a two-week court session to examine, in large part, whether the treatment a detainee suffered in a U.S. facility amounts to “cruel, inhuman or degrading treatment,” the standard in the Military Commissions Act for inadmissibility. “This will be one of the first really in-depth looks into the treatment of detainees in the early days of the war on terror,” Frakt said. “There are going to be a lot of press and observers [at Guantanamo]. It’s going to be a nightmare for the government if they have to constantly close the hearing to talk about things that are embarrassing to the government.”

Davis, the former chief military commissions prosecutor, holds little sympathy for Khadr, whom the government says a videotape shows emplanting improvised explosive devices in Afghanistan. (The video does not implicate him in the death of Sgt. Speer.) But he said his problem was with the Obama’s claim that it needs to keep the options of both federal courts and military commissions to handle terrorism prosecutions, a claim that struck him as both politically motivated and unjust.

“It’s too bad that the Obama administration is back on its heels in a defensive crouch, afraid to go toe-to-toe with the Cheney right-wing fanatics, and continues to try to have it both ways with the option of military commissions and trials in federal courts still in play,” Davis said. “Hopefully, at some point they’ll grow a pair and make a choice, but this double standard where we’ll give a detainee as much justice as we can and still ensure we get a conviction shows how hypocritical we are when it comes to the rule of law. We talk the talk, but we don’t walk the walk.”

Still lethal, if today’s coordinated bombings in Baghdad are any indication. But in the wake of last week’s surprise killings of AQI leaders Abu Ayyub al-Masri and Abu Omar al-Baghdadi, I asked Maj. Gen. Stephen Lanza, spokesman for the U.S. military command in Iraq, for a sense of what the extremist network in Iraq looks like after losing its leadership for the first time since 2006.

In the face of pressure from Iraqi and U.S. forces, AQI has “fractured,” Lanza said, into three component groups: opportunists looking for cash in the absence of better choices; nationalists who want to drive the U.S. out and overthrow the Iraqi government; and ideologues like the leadership who buy into al-Qaeda’s larger conspiratorial worldview. It’s now almost entirely an Iraqi phenomenon, as opposed to the pre-surge AQI that was augmented by foreign fighters traveling to Iraq to attack U.S. and Iraqi forces and civilians and receiving cash from al-Qaeda’s leadership in the Pakistani tribal areas. “We see not as many, and very few, foreign fighters compared to what we have seen a few years ago,” Lanza said on a blogger conference call. By contrast, in 2008, an aide to Gen. David Petraeus, then the commander in Iraq, described the typical adherent, or “Mr. AQI,” as a foreign fighter who came to Iraq after being radicalized through images of U.S. forces torturing detainees at Abu Ghraib or Guantanamo Bay.

The Iraqis that do join AQI rely on extortion to finance their attacks. “It’s through extortion, it’s through kidnapping, it’s through extortion of oil at the Baiji Oil Refinery and other facilities to get their money,” Lanza said. That’s a far cry from the days when Abu Musab al-Zarqawi wrote to Ayman al-Zawahiri for cash. It appears, Lanza said, that al-Qaeda Senior Leadership is moving resources to other franchises. (As we’ve seen with the rise of al-Qaeda in the Arabian Peninsula.) That trend may accelerate now that al-Masri is dead. “They’re still looking for a way to expand they’re network, but he was their link outside of Iraq,” Lanza said.

AQI is still a capable force and has had recent high-profile successes in pulling off suicide car bombs in crowded areas. But its strategic objectives — plunging the country back into sectarian war — aren’t being achieved, and Iraq is down to levels of civilian violence comparable to January 2004. When I asked how many Iraqis support AQI, both as active fighters and as people who passively tolerate the extremists’ presence, Lanza said he couldn’t disaggregate that figure, but a rough estimate was between 1,500 and 2,000 Iraqis total. And that’s not so different from what the State Department’s intelligence branch pegged it at in 2007.

The Obama administration’s special representative for Afghanistan and Pakistan will soon augment his team with one of the senior-most officials responsible for implementing the civilian surge on the ground. Frank Ruggiero, who oversees 110 U.S. and allied civilians in southern Afghanistan, is set to become Amb. Richard Holbrooke’s deputy this summer, State Department officials confirmed.

Ruggiero is a well-respected career civil servant who’s worked with the Department of Commerce as well as the State Department, where he’s most recently been at the top of the Bureau of Political-Military Affairs before heading to Afghanistan last summer. As part of the “civilian uplift,” Ruggiero has established and coordinated small teams of civilians in Helmand and Kandahar provinces known as District Support Teams to embed with NATO military battalions in order to assist Afghan officials with delivering services for local citizens in order to reduce the demand for the Taliban’s shadow governance.  While the hundred-plus civilians on Ruggiero’s team is up from fewer than ten civilians in southern Afghanistan before Ruggiero arrived, the effort still dwarfed by the thousands of U.S. Marines, soldiers, NATO troops and still-arriving U.S. forces as part of the “extended surge” focusing on the south of the country.

Still, Ruggiero should be able to provide Holbrooke, Secretary Hillary Rodham Clinton and President Obama with ground-truth visibility on the difficulties and possibilities of fostering credible, deliverable governance for Afghans in the south, a centerpiece of U.S. strategy in Afghanistan. That’s especially salient since Clinton indicated today at a NATO conference that the civilian presence in Afghanistan will outlast the U.S. military’s post-2011 drawdown.

The New York Times has a good overview of an extremely powerful conventional weapons system that could be fired from a missile in the U.S. and reach anywhere on the planet in an hour. It’s called Prompt Global Strike. It’s an immature weapons system, barely in development, that looks for the moment like it was imagined by Wile E. Coyote. And the Nuclear Posture Review basically held it out as the conventional alternative to nuclear weapons.

Partly because elements of the technology behind Prompt Global Strike are “not yet even invented,” it’s hard to say what the system will ultimately cost or when it can be deployed. The New START accord with the Russians even had to limit its development because once launched from an intercontinental ballistic missile, it would be hard for Russia or any other power to determine with confidence that such a missile didn’t carry a nuclear payload.

Relatedly, here’s something that should warm Sen. Jon Kyl’s (R-Ariz.) New START-opponent heart but surely won’t: Secretary of State Hillary Rodham Clinton told a NATO forum that the U.S. won’t withdraw its tactical nuclear weapons from Europe until there’s a follow-on treaty with Russia ensuring the Russians will do the same.

That statistic comes to you from Servicemembers United, which opposes “Don’t Ask, Don’t Tell” and seeks its repeal. It’s lower than in previous years: There were 627 such discharges in 2007, for instance. From a Servicemembers United press release:

“As expected, this record low in total annual ‘Don’t Ask, Don’t Tell’ discharge numbers reflects a continuing downward trend, as military commanders continue to ignore this law that is clearly outdated and which impairs their unit readiness,” said Alexander Nicholson, a former U.S. Army interrogator who was discharged under ‘Don’t Ask, Don’t Tell’ and the current Executive Director of Servicemembers United. “But this new number still means that 443 lives were unnecessarily turned upside down in 2009, 443 careers were unfairly terminated, and military units unexpectedly lost a valuable asset 443 times last year as two wars raged.”

According to the group, that figure doesn’t include discharges from the reserves or the National Guard, so the full number of “Don’t Ask, Don’t Tell” discharges is higher. Whether the law actually gets repealed this year or not, last month Defense Secretary Robert Gates took unilateral measures to curb its enforcement.

Yesterday we broke the story of how Philip Mudd, the well-respected FBI/CIA al-Qaeda and terrorism analyst, quietly retired from government service. Today the New America Foundation, a D.C. think-tank, announces that Mudd will be joining its team as “a senior research fellow specializing in the Middle East and counterterrorism.”

There’s preambular language in the New START nuclear arms accord with the Russians that touches on Russia’s unease with America’s planned system for European missile defense. It’s non-binding and it’s extremely opaque. (“Recognizing the existence of the interrelationship between strategic offensive arms and strategic defensive arms, that this interrelationship will become more important as strategic nuclear arms are reduced…”) A raft of Obama administration officials, up to and including the president, have personally vouched for the treaty’s lack of constraint on the missile defense system. Earlier this week, Lt. Gen. Patrick O’Reilly, the head of the Missile Defense Agency, testified that the treaty, once ratified, will not restrict his missile-defense development. At all.

You would think that the verifiable absence of an actual objection to the treaty would remove political obstacles to it and win over converts. If you think that, you’re probably not Sen. Jon Kyl (R-Ariz.), who gave a breakfast crowd at the National Defense University Foundation a whole bunch of — irony of ironies — unverifiable objections to New START. They culminated in this:

“More important to me, the Obama administration negotiators were disingenuous at best in the way they described the wording on missile defense, and some would go further than disingenuous to describe what they did,” Kyl said. “And what did we get out of the Russians in return? They will go down to levels [of nuclear arms] they were heading toward anyway. They tied one hand behind our back on missile defense, and we did nothing to address the Russian advantage in tactical nuclear weapons. So we’re going to have a very robust debate on whether or not the United States is better off with this treaty. Personally, I’m not sure the treaty is worth what we give up.”

On the Russian advantage stuff, the Obama administration plans to negotiate another treaty after New START gets ratified, to cut the arsenals even further. So be charitable to Kyl and give him that. On missile defense, the briefest of inspections of the treaty refutes Kyl’s substantive point. This is what the treaty actually says about missile defense:

For the purposes of this Treaty… a missile of a type developed and tested solely to intercept and counter objects not located on the surface of the Earth shall not be considered to be a ballistic missile to which the provisions of this Treaty apply.

Right there! In black and white! The treaty doesn’t restrict missile defense! Explicitly! There’s even more:

Each Party shall not convert and shall not use ICBM [intercontinental ballistic missile] launchers and SLBM [submarine-launched ballistic missile] launchers for placement of missile defense interceptors therein. Each Party further shall not convert and shall not use launchers of missile defense interceptors for placement of ICBMs and SLBMs therein. This provision shall not apply to ICBM launchers that were converted prior to signature of this Treaty for placement of missile defense interceptors therein.

Who’s the disingenuous one here?

Adam Serwer, fresh from a trip to Guantanamo Bay to see a proceeding in an Obama-era military commission, draws some conclusions about the administration’s national security approach:

The detention camps have become more bearable for the detainees, with 85 percent of them now living communally, up from around 40 percent more than a year ago, according to the Joint Task Force (JTF). Only 12 detainees are on hunger strike, (down from a high of 100 in 2006) five of whom are being force-fed, according to a JTF spokesperson. Long-planned construction projects, like a soccer field for Camp Six have been finally completed, giving the detainees more outside space than before. The detainees watch television and have recently been given access to satellite radios that let them listen to the Koran being chanted. In addition to literacy, language, and art classes, a new “life skills” class whose curriculum includes “resumé building” has been set up. Only one detainee has expressed interest so far.

Guantanamo Bay: Now With Only 12 Detainees On Hunger Strike. Serwer says it’s “Bush with a smile.” And that extends to due-process allowances in the commissions after Obama and Congress passed a legislative revamp last year:

“There are significant improvements both in terms of procedure, rights available, and rights to resources, in particular in death-penalty cases,” says Mike Berrigan, principal deputy chief defense counsel for the Office of Military Commissions. “But there’s a large hill to climb.” The size of that hill will become apparent in the coming weeks as reporters from all over the world descend on Guantánamo for the initial hearings in the case of Canadian national Omar Khadr, who was captured in Afghanistan in 2002 at the age of 15.

As it happens, I’ll be one of those reporters. Watch this space next week for pictures, video and as much of a real-time portrait of military commissions and Guantanamo Bay in the era of Obama as military and technological restrictions permit.

About a week ago, I speculated on Gen. James Mattis’ future in the military, now that Gen. Ray Odierno is set to take over for him at Joint Forces Command. Mattis is a four-star Marine general. He’s leaving a major command. The military is an up-and-out system — you either get promoted or you call it a day. I wondered if he was going to become Commandant of the Marine Corps, the most obvious position open to him. So, Marine Corps Times asked, is Mattis retiring?

“This fall my tour at JFCOM is complete,” he said in an e-mail to Marine Corps Times. “At this rank, my future is up to the DOD leadership/Cdr in Chief, so I’ll see what, if anything, they intend for me to do.”

Coy as it may seem, that’s the equivalent of posting his resume for the next job. And Marine Corps Times pretty clearly wants Mattis’ next job to be Commandant of the Marine Corps, as you can see from the article produced. It’s not surprising: Mattis is one of the most respected generals in the entire military; easily the most respected Marine general; a commander of Marine infantrymen in Iraq; and a counterinsurgency scholar-practitioner.

This is all via Richard Allen Smith of VetVoice, who observes, “For anyone who has an interest in COIN, this is a good thing.”

Speaking of Jim Jones, President Obama’s national security adviser, his speech to the Washington Institute for Near East Policy last night also offered an early glimpse of the administration’s long-awaited National Security Strategy. (I hear it’s going to actually come out the week after next, but the broad contours have been in place for a while.) Longtime Obama-watchers won’t really find it surprising to hear what Jones outlined:

In the coming weeks, we’ll be releasing a new National Security Strategy that formalizes the President’s approach—an approach that is rooted in and guided by our national security interests. These interests are clear and enduring.

· Security—we have an enduring interest in the security of the United States, our citizens and U.S. allies and partners;

· Prosperity—we have an enduring interest in a strong, innovative and growing U.S. economy in an open international economic system that promotes opportunity and prosperity;

· Values— we have an enduring interest is upholding universal values, at home and around the world; and,

· International Order—we have an enduring interest in an international order advanced by U.S. leadership that promotes peace, security and opportunity through stronger cooperation to meet global challenges.

Security, prosperity, universal values, and an international order advanced by American leadership—these are the interests that the President and his Administration are working to advance around the world every day, including in the Middle East.

“An international order advanced by American leadership” is a term you can expect to hear a lot. Contrast all this with the 2002 National Security Strategy from President Bush. That one was about how the terms of the international system — particularly the stuff about not invading other countries unless attacked — don’t necessarily apply to America.

The Pentagon’s 2010 Quadrennial Defense Review also nodded in the direction of the National Security Strategy, and the broad contours of what the QDR contained on the subject align pretty closely with what Jones detailed yesterday.

…Sort of.

While the entire Mideast-centric wing of the foreign-policy community waits to see if the Obama administration will actually offer its own plan to end the Israeli-Palestinian conflict with an independent Palestinian state — to say nothing of the bated breath in Mideast capitols — Jim Jones, President Obama’s national security adviser, sounded warm, soothing tones last night about the U.S.-Israel relationship to a leading pro-Israel group, the center-right Washington Institute for Near East Policy.

“There has been a lot of distortion and misrepresentation of our policy recently,” Jones said, getting that out of the way. “We will never forget that since the first minutes of Israeli independence, the United States has had a special relationship with Israel. And that will not change.” And he continued on in that vein. It even got subtle: As Israel tries to rebrand itself as a tech-centric “start-up nation,” Jones said the U.S.-Israel bonds were “the bonds of pioneers in science, technology and so many fields where we cooperate every day.”

Bona fides affirmed, Jones’ speech attempted to thread several needles: convincing Israel and its American advocates that taking risks for a two-state solution right now is in both the Israeli and American interest; that the U.S. is about to take action on Israel’s enemy, Iran, and so Israel needs to reciprocate on the peace process; and that the Obama administration’s broader national security strategy — ensuring nations fulfill their international obligations and uphold the rights of their citizens as the key to global security, prosperity and dignity — is inextricably tied to Mideast peace. “We recognize that peace must be made by the parties and cannot be imposed from the outside,” Jones said, echoing a recent formulation of Secretary of State Hillary Rodham Clinton. “At the same time, we understand that the status quo is not sustainable.” He called for the resumption of direct Israeli-Palestinian negotiations — pointedly eliding the indirect talks the administration has for weeks tried to use as a bridge to direct talks:

So it is time to begin those negotiations and to put an end to excuses. It is time for all leaders in the region—Israeli, Palestinian, and Arab—to support efforts for peace. It is time for today’s leader to demonstrate the courage and leadership of Anwar Sadat, King Hussein, and Yitzhak Rabin.

That looks like the Fierce Urgency of Now again. Jones left hanging in the air the prospect of an Obama peace plan — he didn’t touch on the idea at all — but the thrust of his speech was about the need for concerted and immediate action on peace. The vectors point in the direction of such an Obama peace plan if those talks don’t get underway, and Jones closed by emphasizing that the Obama administration isn’t going to relent on Mideast peace: “This is the work we will continue to pursue in the months and years ahead… not only for the sake of America’s security, but for the world’s.”

Jeremy Scahill, journalism’s most dogged investigator of the privatized military, reports that the State Department’s Worldwide Personal Protective Services contract is up for bid. Why’s that important? Because the contract — now apparently re-dubbed the Worldwide Protective Services program — is the lucrative mechanism whereby the State Department hires private security companies to protect its diplomats overseas. In the past, it’s relied on three of them: DynCorp, Triple Canopy and Blackwater/Xe Services/US Training Center. All of them have been cited for various sorts of abuses, from improper bookkeeping (DynCorp) to poor embassy security (Triple Canopy) to, uh, killing civilians and using the names of South Park characters to improperly hoard guns (guess).

But maybe not this time.

In August, Stacy DeLuke, a Blackwater spokeswoman, told me the company planned on bidding on WPS when it came up for renewal this year. According to Jeremy, though, they haven’t put in their bid yet:

Among the companies listed as “interested vendors” to bid on the contracts are the predictable list of industry giants: L-3 Services, SAIC, USIS, Northrop Grumman, and DynCorp. Two lesser-known firms in particular that have expressed interest in the contracts jump out: Instinctive Shooting International and Evergreen International Aviation.

Read on for Jeremy’s full report on Instinctive Shooting International. But it’s surprising to see that Blackwater hasn’t offered a bid yet. I called the company but was told that everyone who could speak to me has left for the day. No luck with the State Department’s Bureau of Diplomatic Security, which controls the contract, yet either. Hopefully tomorrow will bring clarity on this.

Another thing that Noah Shachtman got into during his interview Adm. Michael Mullen, the chairman of the Joint Chiefs of Staff, was the military’s newest command, U.S. Cyber Command, which will probably be helmed by Army Lt. Gen. Keith Alexander, the head of the National Security Agency. At his confirmation hearing last week, Alexander indicated that he would focus CYBERCOM on defending the Defense Department’s information infrastructure from attack. “But,” Mullen told Shachtman, “there’s a blurring, if you will, in the speed of cyber between defense and offense. And so I think you’ll see that, as well.” And that blurring creates legal and policy concerns.

Imagine that the military finds its information networks under attack. An investigation determines that the culprit of the attack is using civilian servers in a friendly country to penetrate CYBERCOM’s defense. What to do? And who gets to do it?

My understanding is that there’s an ongoing debate within the Defense Department and the CIA about whose responsibility is to take out those servers, as well as who actually possesses the authority to do so. These are probably not going to be the sorts of things that the U.S. government is going to take credit for doing — in other words, those will be covert actions. And “blurring” the uniformed military into the realm of covert action is murky territory. The 1991 Intelligence Authorization Act also suggests that if it’s covert, the CIA gets to do it.

So I asked Adm. Dennis Blair, the nation’s top intelligence officer, at today’s commemoration of the creation of his job five years ago, if U.S. Cyber Command and the intelligence community had established clear divisions of legal and policy authority or responsibility. “It’s a really dynamic area,” Blair replied. “Technology has developed far faster than [the] legal or policy framework.” So, in short, not yet. Blair added, “We’ll do what we have to to get it done.”

Kate Martin, the director of the Center for National Security Studies, observed that even outside of CYBERCOM, whose mandate remains rather unclear, there’s an “ongoing controversy about what kinds of military activities in the context of armed conflict with al-Qaeda are governed by the [legal] covert-activities requirement. That’s not even resolved, outside of the realm of cyberattacks.” Inside that realm, there are any number of questions about specific circumstances that would impact whether CYBERCOM is entering new territory. For instance, launching a direct attack on an enemy’s information network is a pretty traditional feature of warfare — you’re trying to disrupt his ability to command and control his forces. But what if elements of his offensive capability bounce around the world, through systems and virtual avenues controlled by parties that don’t have any stake in a given conflict? What if there isn’t a state of war declared?

In the case of taking out someone else’s servers, Martin mused, “It wouldn’t necessarily be a covert action, because you could argue that it’s closer to the military taking out a traditional supply line, and not using lethal force to do so.” So CYBERCOM might be in the clear there under existing authorities, even if Alexander told Congress that’s not the direction he wants to chart for the command. Or it might not be!

A spokesman for the CIA didn’t respond to a request for clarification. And I was unable to buttonhole Alexander at the ceremony today, although I saw him talking for a bit to CIA Director Leon Panetta and that naturally got my mind racing with speculation.

I spent my morning attending the fifth birthday of the Office of the Director of National Intelligence, the management organization dedicated to marshaling the 16 intelligence agencies toward a coherent, unified goal. Surrounded by the heads of all those agencies, retired Adm. Dennis Blair, the director of national intelligence, gave an inspiring speech to his workforce about how the next five years of intelligence integration would be “driven by joint missions, powered — united — by technology, continually learning and improving.” There were cupcakes. And then we talked about killing American citizens.

Two weeks ago, anonymous administration officials had said an American citizen, Anwar al-Awlaki, living in Yemen and producing scores of incitement-filled sermons about the alleged Islamic imperative to kill Americans, could be targeted for assassination. The legal basis for such a thing has not been disclosed. So in a brief press Q-and-A with Blair, I asked what legal authorization he had for targeting an American citizen like Awlaki. Blair replied broadly that his authorization came from the law and the Constitution, pledged the intelligence community would “follow all rules” given to it by the “executive branch [and] the congressional branch” and then ended the press conference. There were more cupcakes.

I filed a Freedom of Information Act request with the CIA and the Justice Department two weeks ago to find out the actual legal basis claimed by the Obama administration for targeting an American citizen for death without any provision of due process.