Author: Spencer Ackerman

Peter Scoblic, the executive editor of the New Republic magazine, will soon become a senior policy adviser on the Senate Foreign Relations Committee. Scoblic’s a nuclear weapons expert — he came to TNR seven years ago from Arms Control Today and wrote an excellent book, U.S. vs. Them, tracing the history of nuclear weapons policy in post-World War II ideological debates. Accordingly, his first big job is helping the Senate ratify the New START nuke-reduction treaty with Russia, although his portfolio will extend to security issues beyond just nuclear weapons.

Full disclosure: I worked for Scoblic for a bunch of years at the magazine, and while saying this now represents a conflict of interest, his arrival on the committee staff will be very welcome news for arms controllers and very unwelcome news for opponents. Should the committee chairman, John Kerry (D-Mass.), end up succeeding Hillary Rodham Clinton as secretary of state, it wouldn’t be surprising if Scoblic helped negotiate the next arms-reduction treaty after New START.

“The most important thing is to understand that before we do a military operation in Afghanistan, we really have got to get the consent of the people who are going to be affected by that operation,” Gen. Stanley McChrystal told Pentagon reporters in March, previewing his efforts to secure the support of Afghans in Kandahar before a scheduled June push to take the city out of insurgent hands. Recent complications between the Obama administration and President Hamid Karzai appeared to contribute to Karzai raising the stakes: he told a Kandahar council recently that the operation wouldn’t take place without local support, as McChrystal watched on the sidelines.

All that raised questions about whether or how McChrystal could in fact secure the local support he desires, and whether he would scotch the operation if he couldn’t. To clarify, I asked his spokesman, Air Force Lt. Col. Tadd Sholtis.

“We remain committed to political dialogue in Kandahar and elsewhere: through the discussions that coalition officials have with Afghans in shuras and meetings with Afghan officials, and through the discussions that Afghan officials have with other Afghans,” Sholtis said in an email. “No one of those events is decisive, but cumulatively they should help develop a measure of consensus on the way ahead — measured, as in most domestic policy decisions, with some respect for available numbers (polls, tallies of key community leaders) but largely through the judgment of Afghan government leaders and their coalition partners.”

I asked Sholtis to clarify how McChrystal is collecting information and measuring the local sentiment in advance of the possible offensive. He didn’t want to get into detail — “it might endanger the sources” — but he indicated that the command has launched a fairly intense period of Afghan solicitation. “There are multiple discussions on the way ahead in Kandahar on
any given week at the national, provincial and local level among ISAF representatives, Afghan government officials and Kandaharis,” Sholtis said.

ISAF, the formal acronym for McChrystal’s NATO command, believes it’s already achieved “current community consensus” around a need to improve security for Kandaharis and reduce the influence of the local Taliban. “What remains to be done is determining the nature and scope of the effort to do that,” Sholtis said. So does that mean the operation could be called off? “We haven’t eliminated any options from consideration with respect to securing Kandahar.”

On Monday, a disaster on the roads outside Kandahar occurred when ISAF forces mistakenly opened fire on a civilian bus that, it was later determined, posed no threat to a military convoy. Joe Klein reports from Afghanistan that the commander of the soldiers involved in the accident went “stall to stall” at a local bazaar to try to earn back local trust. How the civilian deaths — and the prospect of more Kandaharis caught in the crossfire of a major offensive — will impact what McChrystal hears from the locals, and what he does as a result, remains to be seen.

“What I worry about,” Secretary of State Hillary Rodham Clinton told a gathering yesterday at the Center for Middle East Peace, is that “a failure to act now when there are changed circumstances, including the Arab Peace Initiative, including the very broadly shared fear of Iran’s intentions and actions, will not just set us back, but may irreversibly prevent us from going forward” and ending the Israeli-Palestinian conflict with a two-state solution.

It’s that sort of urgency, up against the current impasse in the peace process, that’s leading the Obama administration to consider offering its own peace plan. Even if it does, Clinton implicitly clarified in her speech, “We not only know we cannot force a solution, we have no interest in forcing a solution. The parties themselves are the only ones who can resolve their differences.”  Notice, though, that that’s not the same thing as pledging not to offer a U.S. proposal for peace.

Her speech also tethered the peace process to the marginalization of Hamas, a shared Israeli-Palestinian Authority-U.S. interest:

In contrast to Hamas, the Palestinian Authority has staked its credibility on a path of peaceful coexistence. Even more than economic opportunities, that path for the Palestinians must lead to a state of their own, for the dignity that all people deserve, and the right to chart their own destiny. If President Abbas cannot deliver on those aspirations, there’s no doubt his support will fade and Palestinians will turn to alternatives – including Hamas. And that way leads only to more conflict.

But the U.S., the so-called Quartet (the U.S., Russia, the United Nations and the European Union) and the Arab states can only facilitate a solution, Clinton said: “[T]here are only two peoples who can make the decisions. … President Obama can’t work harder than the people of Israel and the Palestinian territories.”

USA Today obtained statistics from NATO’s International Security Assistance Force, Gen. Stanley McChrystal’s command in Afghanistan, that show an increase in civilian casualties attributable to NATO forces during the first three months of 2010 relative to the same period in 2009:

NATO troops accidentally killed 72 civilians in the first three months of 2010, up from 29 in the same period in 2009, according to figures the International Security Assistance Force gave USA TODAY. The numbers were released after Gen. Stanley McChrystal, the top U.S. commander in Afghanistan, issued measures to protect ordinary Afghans.

McChrystal’s command and supporters had loudly trumpeted United Nations statistics in January that showed the proportion of ISAF-caused civilian casualties to decline last year. A spokesman, British Lt. Cmdr. Iain Baxter, told the paper that “the pace of operations this year is considerably higher than last.” Which may be true, but strategically, that makes the rise in ISAF-caused casualties worse for ISAF. If Afghan civilians are seeing ISAF troops more and more, and they’re also seeing ISAF troops kill more of their countrymen, then the resultant embitterment is likely to compound, not diminish.

In fact, McChrystal put it best in his June confirmation hearing:

“I believe the perception caused by civilian casualties is one of the most dangerous enemies we face,” McChrystal said, as the loss of popular support “will be strategically decisive,” which is to say the war will be lost. He vows to review “all” U.S. procedures in Afghanistan to ensure that casualties will be minimized “except in self-defense.” McChrystal expects he’ll need more intelligence, surveillance and reconnaissance assets to get “more precision … to reduce civilian casualties and to reduce the impact [of U.S. troops] on the civilian population.” It’s not “a panacea,” but “the more you’ve got, the smarter you are as a force.”

Now McChrystal intends to push into Kandahar, a more densely populated area than the Helmand areas where he has placed most of his operational emphasis to date. Already President Hamid Karzai said he will oppose any Kandahar action without local support, and on a recent trip with McChrystal to a local shura, the elders shouted, “We are not happy” about the impending operation. McChrystal told the Pentagon press corps in March that “one of the things we’ll be doing [ahead of the Kandahar operation] in the shaping is working with political leaders to try to get an outcome that makes sense,” adding, “before we do a military operation in Afghanistan, we really have got to get the consent of the people who are going to be affected by that operation.” It might not have been outright veto power over the operation, but it certainly tethered the Kandahar operation to local support. And now Gareth Porter thinks McChrystal’s command is backing away from that because it’s getting an answer it doesn’t like.

What will McChrystal do?

Porter Goss, director of the CIA from 2004 to 2006, previously gave the impression he was dismayed when his operations chief, Jose Rodriguez, ordered the destruction of dozens of videotapes documenting the brutal interrogations of al-Qaeda detainees. Perhaps not so:

Shortly after the tapes were destroyed at the order of Jose A. Rodriguez Jr., then the head of the C.I.A.’s clandestine service, Mr. Goss told Mr. Rodriguez that he “agreed” with the decision, according to the document. He even joked after Mr. Rodriguez offered to “take the heat” for destroying the tapes.

“PG laughed and said that actually, it would be he, PG, who would take the heat,” according to one document, an internal C.I.A. e-mail message.

The CIA’s ex-acting general counsel, John Rizzo, told The New York Times he was surprised to hear about Goss’ approval and jocular tone. “Porter never once indicated to me that he agreed with the decision… I thought he was as upset as I was for not being told.”

Rodriguez still appears to have presented Goss with a fait accompli. Nothing in the document indicates Goss himself ordered the tapes to be destroyed. But John Durham, the Justice Department’s special prosecutor investigating the tape destruction, might seek to clarify matters with Goss himself.

In a packed room of civil libertarians assembled for a Constitution Project dinner, Attorney General Eric Holder gave a passionate if unpopular defense of the use of military commissions in addition to civilian courts to prosecute terrorism detainees.

Disappointing his civil-libertarian supporters, Holder said to use “one path while blocking the use of the other” — that is, trying every terrorist suspect in a civilian court — would mean the Obama administration “would undoubtedly fail at our fundamental duty at bringing every terrorist to justice. That is simply not an outcome we can accept.” But in an implicit rebuke of his conservative critics — who he said use ”language designed to scare people, rather than educated” — the attorney general told a hushed audience, “We are a nation at war.”

Holder didn’t back away from the “many successes” of civilian courts. Specifically citing his decision to prosecute would-be Northwest Airlines flight 253 bomber Umar Farouk Abdulmutallab, saying his prosecution yielded intelligence that was “not just valuable but actionable.” And as he did before the Senate Judiciary Committee yesterday, Holder defended the hundreds of successful prosecutions the courts have yielded, and cited the  international legitimacy they enjoy as a counterterrorism asset.

“On the other hand, military commissions are also useful in the proper circumstances,” Holder said, calling them “not only appropriate but also necessary to convict terrorists.” You could hear a pin drop. “Evidentiary rules reflect the realities of the battlefield” in the commissions, a contention civil libertarians generally reject, and Holder pledged, “I expect to refer additional cases” to the commissions. He said there was “no contradiction” in using both venues for prosecution of terrorists, saying that only al-Qaeda and its allies are applicable for trial before the commissions — and neither are American citizens like Anwar al-Awlaki, the Yemen-based alleged al-Qaeda provocateur.

“It is unfortunate and unhelpful that some of these facts have been obscured,” Holder said, calling for a “legitimate and robust conversation.” Holder said he would  ”not stand by as the hard work of the FBI… as well as our career prosecutors are maligned,” a reference to Keep America Safe’s attack on Justice Department attorneys who represented Guantanamo detainees. Using language that echoed a formulation used yesterday by Sen. Lindsey Graham (R-S.C.) — who opposes Holder on trying Khalid Shaikh Mohammed and the other 9/11 conspirators in federal courts — the attorney general ended by calling for legal approaches to terrorism that he called ”pragmatic, effective, [and] aggressive.” (Graham preferred “flexible, pragmatic and aggressive.”)

Like his testimony yesterday, Holder gave no indication whether Khalid Shaikh Mohammed would ultimately be tried before a civilian court or a military commission. Ginny Sloan, the Constitution Project’s director, got a round of applause in introducing the attorney general by saying, “Everyone in this room applauds your commitment to the rule of law and in trying these cases in federal courts.” Nor did Holder address the 48 suspected terrorists he said yesterday would neither face terrorism charges before any legal body nor be released — despite his rationale of using commissions and federal courts to “bring every terrorist to justice.”

Amb. Michael Oren pointedly snubbed J Street when the pro-Israel/pro-peace/progressive American Jewish lobby group offered to let him speak at its first annual conference last fall. Now, Oren appears to be mending fences, meeting with J Street executive director Jeremy Ben-Ami. Here’s J Street’s account of their first meeting today:

“I greatly appreciated the opportunity to sit down with Ambassador Oren for a frank and fruitful conversation about how we can work together to ensure Israel’s prospects for peace and security.  I applaud the Ambassador’s commitment to building a bridge to the pro-Israel, pro-peace community in the months since our national conference,” said Ben-Ami.

“The Ambassador clearly recognizes the importance of dialogue and communication between the State of Israel and those parts of the American Jewish community that are deeply pro-Israel but at times disagree with the policies of its government.

“J Street hopes that going forward we are building a relationship based on mutual respect and recognizing that our disagreements are rooted in a deep commitment to Israel’s security and its future as a democracy and the home of the Jewish people.

“I hope this is but the first of many conversations we will have.”

If the Jewish community can’t come together during the 65th anniversary of the liberation of the concentration camps, when can it? Oren’s fence-mending move is an indication that Israel needs the help of all its supporters as it seeks to overcome its current difficulties with the Obama administration over the peace process — particularly the aid of those, represented by J Street, who support both Israel and Obama.

In an eloquent address at the Capitol Rotunda sponsored by the U.S. Holocaust Museum, Gen. David Petraeus, the commander of U.S. troops in the Middle East and South Asia, honored the survivors of the Nazi death camps and the U.S. soldiers who helped liberate them 65 years ago. “We approach life with fewer illusions, with hope, to be sure, but with sobriety as well,” Petraeus reflected on the “indelible mark” left upon humanity by the Holocaust. “We are wiser for having seen how order can bend to the ways of terrible men.” Survivors, family members of survivors, and 120 veterans of the U.S. Army’s European campaign during World War II looked on, as did members of Congress and the Obama administration.

Petraeus’s remarks did not touch on politics, appropriately for the occasion, but there were a few subtle undertones relevant to contemporary events. He quoted Dwight Eisenhower’s order to record the scenes at the camps, as if to “look into the future and foresee a day” when some would “deny an undeniable historical truth,” as the Iranian president, Mahmoud Ahmadinejad, has repeatedly done in speeches. Petraeus’ reference to the Holocaust’s instructive lessons to the consequences of “when demonic dictators are able to hijack a country” appeared resonant in that regard.

The general recently found his comments about the relationship between the persistence of the Israeli-Palestinian conflict and U.S. interests in the Middle East misrepresented and attacked by Abe Foxman, the head of the Anti-Defamation League. Petraeus has not responded. But his speech’s reminder that Holocaust survivors and their descendants have “enriched our lives immeasurably” and “helped build a nation that stands as one of our great allies” are perhaps sufficient rebuke.

Before Petraeus spoke at the ceremony, Amb. Michael Oren, Israel’s envoy to Washington, addressed the crowd, and made a point of favorably quoting President Obama’s conception of the “unbreakable” bond between the U.S. and Israel, a gesture that seemed to signal a diminishment of diplomatic tensions between the two allies over the peace process.

According to a Pentagon announcement, Defense Secretary Robert Gates has received and accepted the recommendations of a panel he put together after the November murders at Ft. Hood by Maj. Nidal Malik Hasan. In brief, they are:

(1)   Expand the pilot program to fully deploy eGuardian as the DoD-wide force protection threat reporting system to handle suspicious incident activities. The eGuardian system, which is FBI-owned and maintained, will safeguard civil liberties, while enabling information sharing among Federal, State, local, and tribal law enforcement partners, including interagency fusion centers.

(2) Complete the deployment of the Law Enforcement Defense Data Exchange system (D-DEx) allowing all DoD law enforcement agencies to share criminal investigation as well as other law enforcement data as appropriate. D-DEx will be a consolidated database to enable organizations across the Department to query, retrieve, and post criminal investigation and law enforcement data in a single repository.

(3) Establish the Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs as the DoD lead for the FBI’s Joint Terrorism Task Force program.

(4) Strengthen DoD’s antiterrorism training program by incorporating lessons learned from the Fort Hood incident, Department of Homeland Security best practices on workplace violence, and civilian law enforcement active shooter awareness training.

This won’t satisfy the likes of Sen. James Inhofe (R-Okla.), who wanted Muslim soldiers singled out as extremist risk threats. “I believe in racial and ethnic profiling,” Inhofe confessed during a January hearing about the Fort Hood investigation.

A surreal moment in Lt. Gen. Keith Alexander’s confirmation hearing to become the first U.S. Cyber Command chief: Sen. Mark Udall (D-Colo.) noted that almost “all” substantive answers Alexander provided the Senate Armed Services Committee for how Cyber Command will operate and how it will work with the National Security Agency are classified. Could the general maybe make more information public?

“Transparency is important,” Alexander said, and pointed to how as NSA director he created a directorate for legal compliance — his tenure, of course, came in the wake of the Bush administration’s NSA-based warrantless surveillance program, which a federal judge recently ruled was riddled with illegality — and he would carry that effort over to CYBERCOM. “We take an oath to the Constitution,” Alexander said, and Udall moved on.

So the short answer to Udall’s question was … no.

Lt. Gen. Keith Alexander is up before the Senate Armed Services Committee this morning. (As I type, he’s giving his opening statement.) He’s the head of the National Security Agency and he’s been nominated to become the first-ever head of the military’s new Cyber Command. And he’s giving some indication he’s not going to focus, if confirmed, on attacking enemy cyber-infrastructure. His priority, he testified, will be on “building the capacity, capacity and critical partnerships required to build our operational networks. This command is not about efforts to militarize cyberspace.” He’ll remain, however, at NSA, and it’s unclear how that mix will work in practice.

Over at Danger Room, Nathan Hodge reads through Alexander’s answers to prepared questions and notices that Alexander indicated he doesn’t want to attack enemy civilian infrastructure. Nathan:

[C]yber attacks threatened civilian networks and the financial system. It’s unclear if the military could retaliate in kind. In a series of written answers to questions from senators (.pdf), Alexander said, “It is difficult for me to conceive of an instance where it would be appropriate to attack a bank or a financial institution, unless perhaps it was being used solely to support enemy military operations.”

Sen. Carl Levin (D-Mich.), the committee chairman, referred to CYBERCOM representing “uncharted territory” for the military and the country. He asked how CYBERCOM would operate in support of a regional combatant commander during a military action. “We have standing rules of engagement of how to defend our networks,” Alexander said. So CYBERCOM operates in a defensive capability, it would seem. “We don’t have the authority to go into a third country to launch an attack,” Alexander continued, should an adversary route a cyberattack from the infrastructure of a country that isn’t party to a hypothetical conflict.

I covered Eric Holder’s Senate Judiciary Committee testimony yesterday, so I was unable to cover a fascinating and near-simultaneous hearing on Iran in the Armed Services committee. A host of senior military officers, Pentagon officials and intelligence analysts testified, and from this New York Times write-up, it sounds like the next National Intelligence Estimate on Iran will be rather hedged:

In one curious moment in the testimony, General Burgess [the director of the Defense Intelligence Agency] noted that information made public by international nuclear inspectors suggested that Iran had not yet used its thousands of centrifuges at the Natanz nuclear site to make highly enriched uranium, the kind needed to produce a nuclear weapon.

But when asked whether that was also the assessment of American intelligence agencies, General Burgess hesitated, and then told the senators that “any further discussion on that” should be held in a classified session.

The generals offered a number of significant caveats about their assessment of Iran’s capabilities. When asked, for example, how long it would take Iran to convert its current supplies of low-enriched uranium into bomb-grade material, General Burgess said, “The general consensus — not knowing again the exact number of centrifuges that we actually have visibility into — is we’re talking one year.”

That answer seemed to suggest that intelligence agencies believed that other enrichment sites, like the one discovered last year outside the holy city of Qum, might also be operating.

According to the Times, consensus at the hearing was that it would still take significant effort and time to convert that bomb-ready uranium into a bomb, apparently at least a year’s worth. In his last round of testimony to the committee, Gen. David Petraeus, the commander of U.S. forces in the Middle East and South Asia, said he did not expect Iran to possess a nuclear weapon this year.

Both Eli Lake and Greg Miller report that President Obama personally asked Steve Kappes last year to remain the CIA’s deputy director. Kappes’ boss, Leon Panetta, announced yesterday that Kappes will be retiring next month. Under the Kappes Continuity — he ascended to deputy director in 2007 — the CIA began increasing its drone strikes in Pakistan, accelerating them significantly in 2007 and expanding them to Yemen. It’s a tool the Obama administration has zealously defended.

No one should labor under the misconception that Kappes is the linchpin of the drone-strike effort, which has many authors and advocates and structural factors pushing it forward. (Simply put, it’s what you do when you perceive a terrorist threat in a place you can’t invade.) But now that Kappes is out and his replacement is a longtime CIA analyst, not an operative, named Michael Morrell, it’s an open question whether Panetta and Morrell will shift the agency’s focus at all. The smart early money is probably not, since Panetta believes the strikes to be a smashing success. But watch his next round of congressional testimony to see if any post-Kappes shift is underway.

One lingering question from today’s Senate hearing with Attorney General Eric Holder is just how the Justice Department determines which terror suspects get tried in a criminal court and which get tried in a military commission. It’s a persistent uncertainty: David Kris and Jeh Johnson, the two senior-most officials at Justice and the Pentagon for determining this question, didn’t have a coherent or clear answer when they testified about revisions to the military commissions system last summer. Holder’s answer today, to the extent he gave one, was that those decisions are made on a case-by-case basis, which is an elision. And elisions just raise the cynical suspicion that the real criterion is whether there’s a strong case against someone — if there is, he’ll be tried in criminal court; if not, he’ll be tried according to the more lax process rules of the commissions; and if there’s really no evidence to be brought in court, he’ll be held indefinitely without charge.

Ari Shapiro had a piece for NPR this morning quoting Jamie Gorelick, the former deputy attorney general and 9/11 Commissioner, saying she heard from unnamed Justice Department sources that the department does have a more rigorous formula for making that determination. But she didn’t know what it was. And she didn’t know why the Justice Department hadn’t released it already.

Attorney General Eric Holder testifies before the Senate Judiciary Committee on Wednesday. (James Berglie/ZUMApress.com)

Eric Holder stepped into the Dirksen building this morning an embattled man facing Republican members of the Senate Judiciary Committee fiercely critical of his desire to try Khalid Shaikh Mohammed and the other 9/11 conspirators in federal court. He left three hours later having defused some of his critics; conceding little; sticking up for his department’s role in counterterrorism; and placing back onto the table the prospect of a New York trial for the man known as KSM.

Image by: Matt Mahurin

For months, Holder and his Justice Department have been at the center of conservative ire at the Obama administration’s national security policies. Sen. Mitch McConnell (R-Ky.) called Holder out in a caustic February speech for playing an unduly influential role in counterterrorism, evidenced by Holder’s contentions that KSM and would-be Christmas bomber Umar Farouk Abdulmutallab should be tried in civilian courts. Sen. Jeff Sessions (R-Ala.) and Sen. Chuck Grassley (R-Iowa.), both Judiciary Committee members, have portrayed administration lawyers who defended Guantanamo detainees as possessing shadowy, un-American loyalties, and an ad building on their statements dubbed the lawyers “the al-Qaeda Seven.” Sen. Lindsey Graham (R-SC) has spent months working on a deal with the White House to trade GOP support for closing the Guantanamo Bay detention facility in exchange for overriding Holder and trying KSM before a military commission.

But Holder did not appear under fire during his first Senate testimony since the KSM controversy swelled. More often, it was his critics who backed down, conceded rhetorical territory or disagreed among themselves. “There’s been a lot of misinformation placed out there,” a confrontational Holder testified. “Without casting aspersions on anyone in this room, there’s been a lot of unnecessary politicization of national security issues that I don’t believe has benefited this country.”

Holder reminded the committee that civilian courts have convicted “close to 400″ individuals on terrorism charges, compared to three in military commissions — though Holder, adapting a phrase of Graham’s, said he would be “flexible, pragmatic and aggressive” in keeping both the commissions and the civilian courts as options for terrorism trials. That caused Sessions, who sought to portray Holder as an enemy of the commissions, to assert: “It’s pretty clear to me you made a firm decision to go the other way, with civilian courts with all these other cases.” Holder replied that he had referred more terrorism cases — six, to be specific — to the military commissions than he had to the civilian courts. Similarly, when Sessions attempted to get Holder to say he’d favor reading Miranda rights to Osama bin Laden, Holder answered that there would be no need, since the government has more than enough information at present to convict bin Laden of terrorism crimes.

“I acknowledge that’s possible,” Sessions said.

That set the tone for Republican parrying with Holder. Grassley said he never intended “to call into question the integrity of any employee of the department” when requesting the names of department lawyers who represented Guantanamo detainees. Holder called the “al-Qaeda Seven” ad “reprehensible, and said that he would not participate in an effort to “tarnish the patriotism” of attorneys who “did what John Adams did” by defending hated clients. Grassley did not press the issue.

Graham found himself more in agreement with Holder than with Sessions. He portrayed himself as a Republican who doesn’t “reject all [civilian] courts” for terrorism cases, an implicit knock at his GOP colleagues. After Holder conceded that 48 detainees from Guantanamo Bay were “not feasible to transfer [and] too dangerous to prosecute,” the two men found themselves in substantial agreement over designing a system of indefinite detention with annual administrative review in addition to permitting detainees to receive habeas corpus hearings before federal judges. Notably, while Sessions contended that military commissions could better protect classified information than civilian trials, Graham — as of February, a leading proponent of that view — did not. It was easy to forget that Graham and Holder have spent months on either side of the issue of whether Khalid Sheikh Mohammed deserves a civilian trial.

On that issue — one in which both civil libertarians and conservatives have awaited Holder’s testimony to see if he would accept a military commission — Holder did not give any ground. “No final decision has been made about the forum in which Khalid Sheikh Mohammed and his co-defendants will be tried,” Holder said, predicting a decision would not be made for “a number of weeks.” Pointedly, he added that “New York is not off the table” as a possible location for a trial, even though many New York politicians have objected to the trial and called for it to be moved — objections that in January raised the prospect of scuttling civilian trials for the 9/11 conspirators altogether. When Sen. Chuck Schumer (D-NY) urged Holder not to hold the trial in New York, Holder said the Obama administration would “take into consideration, obviously, the expressions of the political leadership” in the state but indicated those objections aren’t decisive, adding that it would also consider “what we are able to glean from the population” about support for the trial.

Holder’s steadfastness on the trial won him plaudits from civil libertarians. “I was glad to see Holder standing strong against the Republicans trying to beat the administration over the head with closing Guantánamo and using civilian trials,” Vince Warren, the executive director of the Center for Constitutional Rights, said in a statement. “If the U.S. is ever going to regain credibility in the world, the administration can’t let itself be bullied by fear mongers with their eyes on midterm elections rather than the law.”

But Holder’s embrace of military commissions and indefinite detention without charge cast a pallor on their enthusiasm. “I’m not sure about Holder. Some of the folks I know and respect at DOJ think very highly of him,” said ret. Air Force Col. Morris Davis, the former chief prosecutor of the military commissions at Guantanamo Bay, in an email. “On the other hand, what I’ve seen on the national security front — basically adopting the same Bush-Cheney policies candidate Obama was firmly against — has been disappointing. I used to get perturbed when the ‘flip-flop’ accusation got thrown around, but it’s hard to argue that the label doesn’t fit the administration’s waffling view that military commissions are bad, no they’re good, no they’re bad again, oh wait maybe they’re good after all approach.”

Democrats on the committee rallied to Holder’s defense. “I’ve come to the conclusion that some of the attacks are to diminish you, and you should remain strong,” said Sen. Dianne Feinstein (D-Calif.).

Sen. Sheldon Whitehouse (D-RI), a former Rhode Island attorney general and federal prosecutor, tacitly compared Holder’s critics to a mob, a resonant image after The New Yorker recently reported that a January New York rally of conservatives against the KSM trial featured someone yelling, “Lynch Holder!”

“The emblems of American justice,” Whitehouse said, are “the blindfold and the balance, and not the torch and the pitchfork.”

In response to my speculation that CIA Deputy Director Steve Kappes is stepping down because of Jeff Stein’s recent critical profile of him in Washingtonian, CIA spokesman George Little replies, “The notion that Mr. Kappes is retiring because of a magazine article is just ludicrous.”

Sen. Lindsey Graham (R-S.C.) leads the charge against Attorney General Eric Holder’s effort to try Khalid Shaikh Mohammed in civilian court. But when it comes to indefinite detention, they found a lot of common ground.

Holder acknowledged earlier in the hearing that the administration was still working on what would be a reviewable determination that a detainee whom the administration would neither charge with terrorism offenses nor release posed a threat to the United States, in addition to receiving a habeas petition from a federal judge. Graham said he “applauded” that effort, since the determination could be a “de facto life sentence,” and urged the administration to look to Congress for helping craft such a procedure. Totally coincidentally, I’m sure, Graham is working on his own such indefinite detention proposal.

If I understand Graham and Holder correctly, what they’re describing sounds an awful lot like what used to prevail at Guantanamo Bay: a one-time determination that a detainee posed a sufficient threat to the U.S. to justify placement in Guantanamo, known as a Combatant Status Review Tribunal, with an annual determination of whether the threat from the detainee remains in place, known as an Administrative Review Board. In this case, though, there would be the additional, independent step of a federal judge’s habeas corpus review.

In a surprise development, the CIA just announced that longtime and well-respected Deputy Director Steve Kappes will retire from the agency in May. Kappes was the initial favorite of Sen. Dianne Feinstein (D-Calif.) to be CIA director, and Leon Panetta’s ultimate decision to retain Kappes as his deputy was crucial in winning her support for Panetta to get the top CIA job.

While a statement released by Panetta portrayed Kappes as planning on stepping down “a few months ago,” the deputy director came under withering attack in a new Washingtonian profile by Jeff Stein for being complicit in the agency’s torture programs during the Bush administration. Further underscoring the perception that that’s why Kappes is stepping down is his replacement: Michael Morell, a veteran not of the agency’s operations directorate — where anyone involved in torture would have worked, if not in the director’s office — but the intelligence analysis directorate.

Panetta’s full statement is after the jump.

When I came to the CIA in February of 2009, I was extremely pleased that Steve Kappes agreed to stay on as my Deputy. He was a great partner and I, like so many others, valued his advice and experience. Steve is a one-of-a-kind professional who has dedicated himself to the CIA. He has helped me tremendously in guiding this great organization. Having worked side-by-side on some of the toughest issues around, I’m proud to call him a friend.

Throughout his life, Steve has put the needs of others first, as he did in returning to the CIA in the summer of 2006. He hadn’t planned on so lengthy a stay this time around. So when he told me a few months ago that it was time for him to move on, I understood. Steve has, to put it simply, more than met the highest standards of duty to the nation. He excels at what he does, because he embodies the very best of this outfit—skill and loyalty, dedication and discipline, integrity and candor. He also has, if you know him, one hell of a sense of humor.

After a superb career of public service that stretches back to the mid-1970s, when Steve was in the United States Marine Corps, he deserves the gratitude of his colleagues and his country. As he prepares to retire in May, I know I speak for every one of you when I wish him and his family all the good things.

It was, of course, crucial to both of us that we find an outstanding successor. Today, as we celebrate the achievements of one extraordinary public servant, I am announcing the promotion of another. I have asked Michael Morell, a 30-year veteran of the Agency, to become our next Deputy Director. Michael, as many of you know, has spent much of his career in the Directorate of Intelligence, most recently as its chief. He has also been a Presidential briefer, and was, from July 2006 until May 2008, CIA’s Associate Deputy Director. His focus in that assignment was the administration of the Agency as a whole, assisting and advising the Director on key policy and personnel matters.

Michael has been part of the senior team for almost four years now. He knows the CIA from top to bottom. He understands intelligence as few others do—from collection and analysis to interaction with our customers. Michael has not only seen how the pieces fit together, he’s actually brought them together. He comes to his newest task with a powerful intellect, proven leadership skills, and a deep familiarity with the ways of Washington and the world at large. Michael is someone who builds and improves, someone who takes great pride in the men and women who make this Agency the finest it can be.

Once Michael assumes his new duties, Fran Moore, Deputy Director for Intelligence, will move up to become Director for Intelligence. Fran has been in the Directorate of Intelligence front office since August 2008. She joined the Agency in 1983, and has held leadership positions in several Directorates, shaping our efforts in counterterrorism and counterintelligence, among other disciplines. She doesn’t just tell you what she knows—she tells you how she knows it, how confident she is about it, and what we still need to learn. Fran is the consummate analyst and leader of analysts, insisting on absolute rigor while looking out for the people who do the work.

Three months ago, I named Stephanie O’Sullivan as our new Associate Deputy Director. After leading the Directorate of Science and Technology for more than four years, she has settled into her role as supervisor of the day-to-day operations of our vital and complex Agency. She is an exceptionally creative manager and problem solver. Stephanie blends clear, common-sense thinking with a profound respect for those around her. I rely on her counsel and trust in her judgment.

You’ve heard me say it before, but it’s a message worth repeating: It is a real privilege for me to be your Director. As someone who’s been around this town for 40 years, and has had some great jobs, I’ll tell you that there is no more important mission than the one we share. More than anything else, it’s the people here who make it that way—people like you, and people like those I’ve talked about in this note. I am extremely proud of all of you, and particularly proud of those we honor today. There is no better team to do the job of protecting the nation.

Please join me in congratulating our colleagues on these new chapters in their lives.

Leon E. Panetta

Update: Here’s Feinstein’s statement:

“I deeply appreciate the service that Stephen Kappes has given to the CIA and to the United States over the course of his long career. I was very supportive of his decision to remain as Deputy Director in the transition between the Bush and Obama Administrations, and he has maintained stability at the Agency and been a great help and resource for Director Panetta over the past year. I wish Mr. Kappes the best in the next stage of his career.

“I also look forward to working more closely with Michael Morell, the new CIA Deputy Director. Mr. Morell is a 30-year veteran of the CIA and has served in the past decade in a senior position overseas, in the Agency’s top internal management position, as the President’s intelligence briefer, and as the Deputy Director for Intelligence.”

And here’s Rep. Silvestre Reyes (D-Tex.), Feinstein’s counterpart on the House intelligence committee:

“I want to extend my congratulations to Mike Morell for his selection to serve as the next Deputy Director of the Central Intelligence Agency. I have had the pleasure of knowing Mike and, for the past nine years I have worked with him on a broad range of subjects. He is an exemplary CIA officer.

“Throughout his 30-year career with the agency, Mike has served with distinction. Whether serving at the Director’s right hand, leading the agency’s team of analysts, or serving as the principal briefer to the President, Mike’s diligence and commitment to duty, and to his country, will serve him well as he assumes his new role.

“I know the agency appreciates the job Steve Kappes has done for the nation during his tenure. I will miss Steve’s insight and candor, and I wish him all the best as he moves on to his post-agency career.

“As Mike takes over for Steve, I look forward to working with him to provide the necessary tools for the agency to perform the critical mission of protecting our great country.”

The first contentious moment between Attorney General Eric Holder and Sen. Jeff Sessions (R-Ala.) came almost three hours into today’s hearing. Asked to clarify his statement that Osama bin Laden won’t be Mirandized if he’s  somehow apprehended alive — as a way of bashing Mirandization of terrorists as a weak response — Holder replied that bin Laden wouldn’t need to be Mirandized. Incredulous, Sessions asked why that was, if the Obama administration will indeed proceed on the presumption of trying terrorists in civilian courts. “The concern [on Miranda] is whether information we might get from a person might be excluded” from trial if someone isn’t Mirandized,” Holder explained. With bin Laden, “we have sufficient information” to obtain a conviction. Because he’s admitted to 9/11!

Sessions: “I acknowledge that’s possible.” Understatement of the day.

Holder and Sessions went back and forth, with Sessions raising his voice at times. “It’s pretty clear to me you made a firm decision to go the other way, with civilian courts with all these other cases,” Sessions said, unable to box Holder in. Holder defended civilian trials for terrorists, but insisted that he will retain the right to be “flexible, pragmatic and aggressive” in deciding whether to bring charges against a terrorist in civilian courts or military commissions. The attorney general did not raise his voice.

After confirming that the administration has determined 48 detainees at Guantanamo who are “not feasible to transfer [and] too dangerous to prosecute,” Attorney General Eric Holder conceded that the administration still doesn’t have a structure in place for handling their indefinite detention without trial. Holder told Sen. Ben Cardin (D-Md.) that the administration would not object to those detainees challenging their detention in habeas corpus proceedings before a federal judge, and for those who lose their habeas cases and remain detained, there “has to be some kind of ongoing review mechanism put in place” for determining someone is still a threat.

“We’re still working through [this issue] in the interagency and, frankly, working with Sen. Graham as well,” Holder said. “Hopefully we will have something to share, and, more importantly, put into place” in the next several months, he said, later clarifying that he believes the administration can finalize that process by the end of the year. “There is a symbolic significance to this review process,” Holder added, comparing it to the negative symbolism posed by the detention facility at Guantanamo Bay.