Author: Spencer Ackerman

Ah, a subject dear to my journalistic heart. Sen. Jeff Sessions (R-Ala.) said that the Justice Department disclosed to the Senate Judiciary Committee a list of “seven” circumstances under which military commissions better protect classified information than civilian courts. Holder has previously testified that the differences in procedure are picayune, obscure and trivial, as the rules for military commissions’ handling of classified info are based on CIPA, the Classified Information Procedures Act that governs how it’s handled in civilian courts. Holder parried that Sessions was mischaracterizing the disclosure, saying, “those seven instances that are listed reflect the kinds of things that judges do.”

But we don’t do he-said-she-saids here at The Washington Independent. So I’ve got what Sessions is talking about, and so I’m going to post it here so you can see this for yourself and see who’s telling the truth. It’s a disclosure from March 22, and it’s public, but it’s also in a bit of an obscure place on the Judiciary Committee’s webpage (PDF). By contrast, and so you can reach an informed decision, the CIPA statute is here. After the jump, the seven distinctions Holder and Sessions fought about on classified-info procedures between civilian courts and military commissions. You make the call.

The classified information provisions of the Military Commissions Act of 2009 were based on CIPA, but with revisions to take into account lessons learned in terrorism cases in federal court. The following is a list of some of the key differences between the MCA of 2009 and CIPA:

• Ex Parte Pretrial Conference. The MCA includes an explicit provision allowing a military commissions judge to conduct an ex parte pretrial conference with either party to address potential classified information issues that may arise in connection with the case. Although federal judges applying CIPA routinely conduct such conferences, they are not expressly addressed in the statute.

• Protective Orders. The MCA requires a military commissions judge to issue an order to protect against the disclosure of classified information produced in discovery or otherwise provided to, or obtained by, any accused. This provides protection for classified material that the defense may have obtained outside the formal discovery process. While CIPA only requires the issuance of a protective order with respect to classified documents provided in discovery, some federal court judges have similarly issued protective orders covering the use at trial of classified information acquired by the defense outside the discovery process.

• Discovery. The MCA authorizes the military judge to order alternatives to full disclosure of any form of classified information. Although federal judges have crafted numerous ways to protect all types of classified information, CIPA only explicitly authorizes the judge to order alternatives to disclosure of classified documents. The bill also provides a clear standard (“non-cumulative, relevant, and helpful to a legally cognizable defense, rebuttal of the prosecution’s case, or to sentencing”) for determining whether defense access to classified information should be granted. This standard is drawn from case law addressing classified evidence issues but is not found in the text of CIPA itself.

• Declarations. Under the MCA, the prosecution must provide a declaration invoking a privilege to protect classified information and setting forth the damage to the national security that the disclosure or access to the classified information reasonably could be expected to cause when seeking an alternative to full disclosure. By comparison, CIPA does not specify what must be provided in support of the government’s request for relief from disclosure of classified information. This is consistent with CIPA practice — in which the government regularly provides a declaration setting forth the possible damage to national security if disclosure is ordered — but is not explicitly required by the CIPA statute.

• Use of Classified Information at Trial. The MCA bill provides explicit authority for the prosecution to protect the classified information it seeks to introduce at trial through the use of alternatives to full disclosure and protective orders. Although federal courts have routinely allowed the use of alternatives at trial, the CIPA statute does not provide the explicit authority to do so. The MCA also provides a standard for the judge in determining whether to order the disclosure of classified information for use at trial (“relevant and necessary to an element of the offense or a legally cognizable defense and . . . otherwise admissible in evidence”). This standard is drawn from case law addressing classified evidence issues but is not found in the text of CIPA itself.

Interlocutory Appeal Right by U.S. The MCA provides the U.S. with authority to seek interlocutory appeal of any order or decision that forces the disclosure of classified information, regardless of whether the order appealed from was entered under a specific provision governing classified information, or any other rule or provision of law. By comparison, CIPA only provides for interlocutory appeal from certain decisions or orders issued pursuant to CIPA.

• Closure of the Courtroom. The MCA explicitly allows the judge to order closure of the courtroom to protect evidence “whose disclosure could reasonably be expected to cause damage to the national security, including intelligence or law enforcement sources, methods, or activities.” (§ 949d(a)(2)(c) of S. 1390.) Although CIPA does not contain a provision explicitly allowing such closures, the courtroom may be closed to protect classified information in federal court provided the relevant constitutional standard is met.

On the crucial question of where Khalid Shaikh Mohammed will be tried and in what forum — where nuance will be heavily scrutinized — Eric Holder held out maximum flexibility for President Obama and himself. “The administration is in the process of reviewing the decision as to where Khalid Sheikh Mohammed and the other 9/11 defendants will be tried,” Holder said. “New York is not off the table as a place where they might be tried, although we have to take into consideration the concerns” that the Bloomberg mayoralty has raised about the wisdom of trying KSM in New York. Holder said he expected a decision “in a number of weeks.”

Here’s what Attorney General Eric Holder said in his opening statement to the Senate Judiciary Committee about the Khalid Shaikh Mohammed’s prospective trial, after he defended the Justice Department’s numerous 2009 and 2010 steps to try terrorists in civilian court. (Umar Farouk Abdulmutallab, for instance, provided “not just valuable, but actionable” intelligence thanks to his criminal prosecution.)

I know you all have questions about the prosecution of those charged with plotting the 9/11 attacks. No final decision has been made about the forum in which Khalid Sheikh Mohammed and his co-defendants will be tried.

As I’ve said from the outset, this is very a close call. It should be clear to everyone by now that there are many legal, national security and practical factors to be considered here. As a consequence, there are many perspectives on what the most appropriate and effective forum is. In making this decision, I can assure you that this Administration has only one paramount goal: to ensure that justice is done in this case. In the pursuit of justice, we will enforce the law and protect the American people.

“This administration will use every tool available to fight terrorism,” he continued, repeating “every tool available” for emphasis. “That includes both civilian courts and military commissions. “

In 15 minutes it gets underway: Attorney General Eric Holder’s first big round of testimony to the Senate Judiciary Committee since the right began raising doubts about trying Khalid Shaikh Mohammed and the other 9/11 conspirators in civilian courts. Holder will probably want the hearing to focus on other Justice-related subjects, but it’s likely to become a showdown on the merits of the Justice Department’s place in a counterterrorism strategy, something the attorney general has vigorously defended. What will he say about civilian courts’ capabilities for trying terrorists? What will he say about the military commission alternative that the Obama administration has embraced as well? It’s all coming up momentarily.

The 47-nation/three international-governance-body Washington Nuclear Security Summit has concluded. Sen. Jon Kyl (R-Ariz.) just yawns:

“The summit’s purported accomplishment is a nonbinding communique that largely restates current policy and makes no meaningful progress in dealing with nuclear terrorism threats or the ticking clock represented by Iran’s nuclear weapons program,” said Sen. Jon Kyl (R-Ariz.), a prominent critic of Obama’s nuclear policies.

“Prominent” is not the same as “sensible,” or even “alert.” Yes, it’s true. The summit did not cause the Iranian government to renounce its illicit uranium enrichment. Nor did it convince the North Koreans to relinquish their stockpile of nuclear weapons. But there’s just no way that Kyl’s criticism holds water, and it calls into question whether he actually understands what just happened over the last two days.

As I wrote yesterday, we now enter a period of two years’ worth of implementation on nuclear security, and that will determine the ultimate success of the conference. But nothing here “restates current policy” for 46 nations on the planet. Here’s Laura Holgate, a National Security Council senior aide, explaining to the press yesterday what the communique will yield:

We would expect to see consolidation of stocks of highly enriched uranium and plutonium, and reduction in the use of highly enriched uranium. Action on the communiqué would increase the number of countries signing up to some of the key international treaties that you’ve been hearing about on nuclear security/nuclear terrorism, as well as add to those countries who are cooperating under mechanisms like the global initiatives to combat nuclear terrorism, building capacity for nuclear security among law enforcement, industry and technical personnel.

The communiqué also calls for the International Atomic Energy Agency to receive the financial and expert support that it needs to develop nuclear security guidelines and to provide advice for its member states on how to implement them.

None of this consensus existed before the summit. Certainly no concerted action outside what the U.S. and the Russians agreed to do under the Nunn-Lugar nuclear-security initiative took place to any meaningful degree. Kyl is entitled to be skeptical that any of this is meaningful. He’s not entitled to say the nuclear-security landscape is unchanged from Sunday.

Similarly, to say that the summit represents “no meaningful progress in dealing with nuclear terrorism threats” is to ignore the fact that Chile and Canada and Mexico just agreed to swap out their highly-enriched uranium stocks and the U.S. and Russia just agreed to destroy enough plutonium for 17,000 nuclear bombs and Ukraine will eliminate all its highly-enriched uranium, to say nothing of other “house gifts” for elimination of weapons-grade material. Nor does it describe the commitment made to strengthen, with real verifiable financial investment, legal, regulatory and export mechanisms to monitor the movement of nuclear material and lock down what nuclear material exists. “To the extent that countries maintain nuclear materials — whether in their civil or military sector — the solution to making sure that terrorists don’t get it is straightforward,” Gary Samore of the NSC explained yesterday. “It’s just a question of putting the resources in place — the programs in place in order to ensure that it’s well protected and accounted for.” That actually removes the threat of nuclear terrorism, since if terrorists can’t get the nuclear material, there can’t be any nuclear terrorism. Again: while implementation is the key, the nuclear-security world is different and much better this morning than it was on Sunday.

Finally: What about Iran? The Obama administration believes it’s gotten Chinese President Hu Jintao’s acquiescence to pushing a sanctions resolution through the United Nations Security Council after a meeting between Obama and Hu at the summit. Again, we’ll see. But a consequence of the summit, clearly, is diplomatic isolation of proliferant countries or violators of the nuclear-security rules of the road. In a matter of weeks, that isolation will be marshaled at the U.N., first in a sanctions resolution targeting the Iranian regime’s financial interests and then in a May conference to strengthen the Nuclear Nonproliferation Treaty. If Kyl would prefer the U.S. simply wave its fist at Iran and fail to rally international support for confronting its enrichment activities, we saw the result of that approach over the past seven years: thousands of spinning Iranian centrifuges. And hundreds of tons of unsecured nuclear material that terrorists could attempt to steal.

A nice way to cap off the Washington Nuclear Security Summit from Secretary of State Hillary Rodham Clinton:

Under the agreement we are about to sign, the United States and Russia will each irreversibly and transparently dispose of no less than 34 metric tons of weapons-grade plutonium. Together, that is enough material for nearly 17,000 nuclear weapons. And we will put in place the framework and infrastructure needed to dispose of even more plutonium from defense programs in the future.

The agreement provides for monitoring and inspections that will ensure that this material will never again be used for weapons or any other military purpose. By using civil nuclear reactors to dispose of the plutonium, we gain an added benefit – to produce electricity for our people, even as we remove a potential serious danger.

Speaking at the Woodrow Wilson International Center for Scholars, Gen. David Petraeus, the commander of U.S. forces in the Middle East and South Asia, was asked at the start of an hour-long presentation what he meant during recent congressional testimony when he waded into the treacherous waters of the Mideast peace process. His testimony that the lack of progress on Mideast peace helped set the “strategic context” for the region in which approximately 200,000 U.S. troops operate has been the subject of persistent criticism and, he said, “misconception.”

He didn’t mean, he said, that U.S. troops were directly endangered by the persistence of the conflict, nor did he formally request to have responsibility for security assistance to Israel and the Palestinian territories transferred to U.S. Central Command. But the conflict “does contribute, if you will, to the overall environment in which we operate,” Petraeus said. Reiterating a theme from his testimony, he cited that “moderate leaders” in the region typically tell him that the intractability of the conflict “gives the radicals, the extremists, the argument that the only time they have made progress on the issue has been when there is an intifada.”

Petraeus associated himself with Secretary of State Hillary Rodham Clinton’s near-contemporaneous remarks to AIPAC, particularly the stuff she said about how Israel “is, has and will be an important strategic ally of the United States.”

More “house gifts,” as Jeffrey Lewis of the New America Foundation calls them, from the Nuclear Security Summit, just announced by the White House:

At the Nuclear Security Summit in Washington, D.C., Mexico, the United States, and Canada reached agreement to work together, along with the International Atomic Energy Agency (IAEA), to convert the fuel in Mexico’s research reactor. President Calderon expressed “the strong commitment of Mexico to prevent and suppress nuclear terrorism; with this kind of cooperation with the IAEA and our North American partners, we definitely contribute to reducing the risks associated with illicit trafficking of nuclear materials.”

The three countries acknowledged that this project also provides an important step towards the replacement of the research reactor with a new low-enriched uranium fuelled reactor in support of Mexico’s nuclear energy development.

The conversion of the reactor’s use of highly enriched uranium (HEU) to low enriched uranium (LEU) fuel will enable the elimination of all the remaining highly enriched uranium from Mexico. This effort, a specific outcome of Nuclear Security Summit, will be completed under the auspices of the IAEA. It will further strengthen nuclear security on the North American continent.

An unsubtle jab at the North Koreans’ rogue-nuclear status announced this morning from President Obama:

We have the opportunity, as partners, to ensure that our progress is not a fleeting moment, but part of a serious and sustained effort. And that’s why I am so pleased to announce that President Lee has agreed to host the next Nuclear Security Summit in the Republic of Korea in two years. This reflects South Korea’s leadership, regionally and globally, and I thank President Lee and the South Korean people for their willingness to accept this responsibility.

For more on what fills the gap between the 2010 and 2012 nuclear security summits, see my new piece.

Prime Minister Yousuf Raza Gilani of Pakistan and President Barack Obama at the Nuclear Security Summit in Washington on Monday (Xinhua/ZUMApress.com)

Later today, the Washington Nuclear Security Summit will conclude by issuing a communique pledging to concentrate the international mind around President Obama’s goal of securing all separated plutonium and highly enriched uranium within four years, in order to prevent nuclear terrorism. It won’t be released until it’s released, of course. But it’s going to promise dedicated national action by 47 countries participating in the summit, rather than empowering international agencies to take control of each nation’s plutonium or uranium supplies. So what comes after this week’s summit for nuclear security?

Image by: Matt Mahurin

Enforcement, principally. “The summit is a forcing mechanism,” said Jeffrey Lewis, a nuke expert at the New America Foundation who blogs at Arms Control Wonk. “It causes states to do things for a while.” The communique will make those “things” clearer, but the contours are already taking shape: States will take increasing steps to shore up their legal and regulatory frameworks to keep track of civilian or military nuclear stockpiles. And, especially, they’ll shore up their export controls to ensure government officials keep track of what nuclear materials or components travel across their borders — or, in the case of Malaysia, which didn’t have any before yesterday (though perhaps not because of the summit), they’ll put those controls in place.  That’s crucial for tracking international proliferation: A.Q. Khan, the world’s most notorious proliferator, used Malaysia as a hub for shipping centrifuges to nations like Libya, since they’d drop off the grid once shipped.

In other words, what Lewis calls the “house gifts” that states showed up to the summit presenting are less important to nuclear security than the consistent enforcement of the rules in place for monitoring and controlling the establishment and movement of nuclear material. It’s a bit ironic. The administration is understandably touting the commitments of Chile and Ukraine and Canada at the summit to get rid of thousands of kilograms of highly enriched uranium. (The Canadian government, right now, is trying a group suspects known as the “Toronto 18″ for plotting terror attacks on Canadian nuclear facilities, among other targets.) But after the summit ends and countries won’t show up to Washington bearing pledges, the measure of the summit’s success will be in the actions that governments take to safeguard and reduce the weapons-grade material under their control.

And it will be governments that take those steps, with international entities in supporting roles at best. Gary Samore, the National Security Council director with the portfolio for nuclear weapons and proliferation policy, clarified during a Friday conference call that the urgency of the timeline for securing nuclear materials meant working within the “sovereign responsibility” that governments continue to insist holds for all matters nuclear. “If we were to spend a lot of time trying to construct a new international architecture, I think it might actually have the unintended effect of really diverting us from taking the practical measures that we want to take in the near term,” Samore said.

That raised the question of whether steps governments take would really stop the next A.Q. Khan, a Pakistani national hero whom the Pakistanis placed under house arrest after his proliferation network was disclosed, allowing no international access to him. Lewis said strengthening nations’ export controls would probably represent the most important step against international proliferation. “Until we really clamp down, and get, first of all, universal national establishment of export controls and then, second, get countries to actually enforce the export controls they,” he said, “we’re not really going to know how much of a problem we have here.”

Then there’s the task of getting nations to broach subjects the summit neglected for fear of bursting the consensus. “Missing from this discussion is the importance of further production of separated plutonium or highly enriched uranium,” said Daryl Kimball, executive director of the Arms Control Association. “The French were particularly unhelpful in getting that idea or that principle into the discussion, because they believe that reprocessing of nuclear fuel is important for their energy strategy. But it is also a major proliferation problem.”

Not that Kimball believes that the first-ever nuclear security summit needed to address every crucial proliferation or security issue all at once. “What we’re talking about here is a summit that is attempting to focus international attention on this aspect of the nuclear problem in a way that hasn’t ever been done before,” he said. “The United States has reminded other countries that there are other fora to discuss these issues [like] Iran’s safeguards violations, Israel’s non-[Nuclear Nonproliferation Treaty] status, nuclear disarmament progress.”

There will be another nuclear security summit in 2012, both to measure nations’ progress in enforcement and, administration officials hope, to expand the aperture of what’s possible in the nuclear-security field. But immediately after the summit concludes, the nuclear issue will remain the subject of high-level international attention. The Obama administration, now equipped with the acquiescence of the Chinese, will present a sanctions package to the United Nations Security Council to raise the cost of illicit Iranian nuclear enrichment within weeks. In May, nations will reconvene to strengthen the Nuclear Nonproliferation Treaty, the cornerstone of international security. Ben Rhodes, the National Security Council’s director of strategic communications, told reporters Friday that among the summit’s goals was to “provide momentum going forward” for a nuclear-security agenda.

For Lewis, the fact that the terms of the debate are about nuclear security and no longer about military applications of nuclear weapons is vaguely surreal. “It used to be about deterrence, deterrence and then, as a distant third, deterrence,” he said. “All this other stuff was the province of people who wanted to mess around with our beautiful deterrent.”

Big news from Jeff Bader, the National Security Council director for Asia, reporting on President Obama’s meeting yesterday with Chinese President Hu Jintao following the Washington Nuclear Security Summit. From the transcript of Bader’s press briefing:

During the meeting President Obama and Hu underscored their agreement that Iran must meet its international nuclear non-proliferation obligations.  The two Presidents agreed to instruct their delegations to work with the P5-plus-1 and U.N. Security Council representatives on a sanctions resolution.  The resolution will make clear to Iran the costs of pursuing a nuclear program that violates Iran’s obligations and responsibilities. The discussion was as [sic] sign of international unity on Iran.  The Chinese are actively at the table in New York in discussions with Ambassador Rice, as well as the other (inaudible) the P5-plus-1.  The meeting today is another sign of international unity on this issue.  It’s also I think a strong indication of the way in which the U.S. and China are working together in a positive way on Iran and other issues.

Bader wouldn’t specify the substance of the Chinese commitment on the sanctions resolution. But what the Obama administration has been looking for is a clear indication from the Chinese, who hold veto power at the United Nations Security Council, that they’ll work on a resolution with Obama, and here it is. The New York Times helpfully adds the caveat that the Chinese agreed to comparable steps during the last administration. But back then the Chinese had the support of Russia for essentially protecting Iran, and this time around, the Russians are on board with the U.S.-French-British effort. The question now is whether China will want to be isolated among the veto-wielding Security Council members in again protecting the Iranian leadership from economic sanctions.

The AP reports that Gen. Ray Odierno, who’s been commanding U.S. Forces-Iraq since mid-2008, when it was called Multinational Force-Iraq, will be succeeded by Lt. Gen. Lloyd Austin, who used to helm the corps-level command in that war. Odierno will go to the Joint Forces Command, the equivalent of a regional-level command (so he’ll be promoted.) That raises the question of whether the highly-regarded Marine Gen. James Mattis, the current JFCOM commander, will receive a new job — and there don’t appear to be many open that would constitute a promotion, like Marine Commandant — or retire from military service.

This is what Sen. Joe Lieberman (I-Conn.) told MSNBC (no link yet):

LIEBERMAN: Yes. I mean, let me say first that I hope I can support ratification of the START treaty, but I’m not there yet. The basic idea that we would reduce the number of nuclear warheads in the world of course is a desirable goal, but as we reduce the number of nuclear warheads we in the United States have in a world in which nuclear weapons are spreading, I think we’ve got to make sure that the remaining nuclear weapons we have work. And we’ve got — some of those warheads are decades old.

There has, in my opinion, been a debate within the administration about whether they want to commit to modernizing and in some places — cases — whether they want to commit to modernizing, in some cases replacing nuclear warheads. There’s some sense that maybe Secretary Gates lost one of those arguments within the administration.

I’ve talked to some colleagues and I don’t think there’s going to be 67 votes for the START treaty unless there’s a clear commitment from the administration that they’re prepared to do what’s necessary to keep our nuclear stockpile working, essentially.

To her credit, Andrea Mitchell pressed Lieberman on this — Gates, after all, supports both New START ratification and the Nuclear Posture Review, even if he shifted on replacement warheads — and Lieberman wasn’t prepared to contradict Gates. He eventually said that he just wants “reassurance” that they’ll maintain upkeep on the nuclear stockpile, which ought to come whenever the administration sends emissaries to the Hill to testify in favor of ratification of the treaty. Max Bergmann loses some patience with Lieberman here.

Apparently Malaysia is saying this has nothing to do with today’s Washington Nuclear Security Summit — opening kickoff of which comes at 5 p.m. EST — but over at Arms Control Wonk, Joshua Pollack makes the case that Malaysia’s decision to finally pass an export control law is a great victory for the goals of the summit in any event. A.Q. Khan, the world’s foremost nuclear proliferator, used Malaysia’s old see-nothing export policy to construct and ship centrifuges to his Libyan customers. Sure, Malaysia Prime Minister Najib Abdul Razak was one of a handful of national leaders to meet with President Obama one-on-one today, but let’s take the Mayalsians at their word.

Take that, Washington Post poll! Ukraine has ponied up to the Nuclear Security Summit with a significant national contribution, as per a White House release:

Today, at the Nuclear Security Summit, Ukraine demonstrated its leadership, announcing a landmark decision to get rid of all of its stocks of highly enriched uranium by the time of the next Nuclear Security Summit in 2012, while the United States will provide necessary technical and financial assistance. Ukraine intends to remove a substantial part of those stocks this year. Ukraine will convert its civil nuclear research facilities to operate with low enriched uranium fuel, which cannot be used for nuclear weapons, which is becoming the global standard in the 21st century.

Ukraine is a really important country for nuclear proliferation purposes. Home to Chernobyl, the world’s foremost symbol of nuclear insecurity, it’s one of the countries that the Nunn-Lugar nuclear security program targeted for finance and technical assistance on safeguarding its Soviet-legacy nuclear materials.

The Washington Post is touting a poll showing “muted expectations” amongst the public for what President Obama’s nuclear-security summit will achieve.

Overall, 40 percent of those polled are convinced the negotiations will result in tighter controls, and 56 percent are not so or not at all confident. Moreover, four times as many express zero confidence in the summit than are sure of its success.

And the purpose of polling on this is… what, exactly? It’s cost-free to express skepticism to a pollster about the future achievements of diplomatic summits. The summit itself is supposed to create increased national commitments to secure plutonium and highly-enriched uranium, and to focus international attention around the goal of securing all such material in four years. In other words, the sort of thing that’s easy to be skeptical about and which won’t be immediately measurable. If anything, the most surprising result from this poll is that four in ten are convinced in the summit’s success. But why poll on this at all?

It’s a small gesture, but during a press briefing yesterday on coordinating NATO civilian-military planning with Afghan efforts, Amb. Richard Holbrooke, the administration’s special representative to Afghanistan and Pakistan, made sure to single out the country’s increasingly volatile president for conspicuous praise:

What made it different today, of course, was that we were in Kabul and the most senior members of the government were participating. While President Karzai’s participation was relatively brief, the fact that he visited us at all, the fact that he heard what we were doing, the fact that he endorsed it in front of his ministers carries great importance to us, and we greatly appreciate the fact that he took time to do it.

And on and on in that vein during the entire press conference. It’s a pretty cost-free way to lower the temperature of U.S.-Karzai relations. Last week, Sarah Palin and Liz Cheney chided the Obama administration for pressuring Karzai. Andrew Exum of the Center for a New American Security had a choice response to that.

Adam Serwer reads through the State Department legal adviser’s recent defense of why drone strikes outside Afghanistan are legal and observes that the rationale Harold Koh offered could be used to argue that assassinations of people like Anwar al-Awlaki, the U.S. citizen-turned-extremist who has argued that Muslims have an obligation to attack America, are legal.

Attorney General Eric Holder will testify on Wednesday to the Senate Judiciary Committee, a long-delayed and much-anticipated round of testimony on all matters facing the Justice Department. It’s likely to become a showdown on Holder’s positions on Justice and counterterrorism. Whether Holder will address assassinations in an open session is, of course, unclear-to-doubtful. Last week I filed Freedom of Information Act requests for the actual rationale adopted by the Obama administration to compel Holder and his colleagues to explain.

Iran may not be in compliance with the Nuclear Nonproliferation Treaty. North Korea withdrew from it in 2003. According to the Obama administration’s new Nuclear Posture Review, if those two countries or any other NPT violator/non-signatory attacks the U.S., “all bets are off,” Secretary of State Hillary Rodham Clinton told CBS’s Bob Schieffer yesterday. The New York Times reports that the Iranian regime plans to protest the NPR’s new declaratory posture to the United Nations.

Clinton, however, explained that the new declaratory posture for when the U.S. will reserve the right to nuclear retaliation isn’t actually aimed at Iran or North Korea. It’s to put the rest of the world on notice that there are severe security risks for not being a good-faith member of the Nuclear Nonproliferation Treaty:

[The NPR] is also clear that this is putting everybody on notice. We don’t want more countries to go down the path that North Korea and Iran are. And some countries might have gotten the wrong idea, if they looked at those two over the last years. And so we want to be very clear. We will not use nuclear weapons in retaliation if you do not have nuclear weapons and are in compliance with the NPT.

What she might also have added is that since most of the rest of the world’s nations are good-faith members of the NPT, then the world is arguably more likely to support a U.S. effort that tethers nuclear defense to compliance with an international treaty. That calculation will face its first test when the U.S. pushes for economic sanctions against Iran at the U.N. Security Council later this spring.

One big question in the new U.S. doctrine concerns Pakistan. Pakistan isn’t a member of the Nuclear Nonproliferation Treaty. Its security services, particularly the powerful Inter-Services Intelligence agency, have nebulous ties to al-Qaeda and its affiliates, the people whom today’s Nuclear Security Summit in Washington is concerned with preventing from getting nuclear materials. Those extremists have proven their intent to attack America. The Obama administration surely does not want to even implicitly threaten Pakistan, a nation with whom it has taken great pains for the last year-plus to cultivate relations. But if al-Qaeda in Pakistan directs an attack against the U.S., what does the NPR say about retaliation in that case? What effort must the U.S. accordingly make to determine possible ISI complicity? What does the NPR look like in Islamabad? Already, according to The New York Times, President Obama is paying some calculated inattention to increased Pakistani nuclear development at the summit this week.

About an hour ago, the NATO command in Afghanistan, the International Security Assistance Force, sent out a disturbing release expressing “dee[p] regrets”  for an incident outside the southern city of Kandahar — soon to be the scene of a major military offensive. What happened? As too many of these things often do, the incident occurred on the roads:

Before dawn this morning, an unknown, large vehicle approached a slow-moving ISAF route-clearance patrol from the rear at a high rate of speed. The convoy could not move to the side of the road to allow the vehicle to pass due to the steep embankment.

The ISAF patrol warned off the approaching vehicle once with a flashlight and three times with flares, which were not heeded. Perceiving a threat when the vehicle approached once more at an increased rate of speed, the patrol attempted to warn off the vehicle with hand signals prior to firing upon it. Once engaged, the vehicle then stopped.

Upon inspection, ISAF forces discovered the vehicle to be a passenger bus.

ISAF says four people, including one woman, are dead on the scene, and five others received ISAF on-scene medical treatment; 13 others with “minor injuries” are in hospitals. The New York Times has reporters at the scene interviewing bus passengers, including the apparent bus driver, and they say the bus attempted to pull over to get out of the ISAF convoy’s way:

“I was going to take the bus off the road,” said the man, Mohammed Nabi. Then the convoy ahead opened fire from a distance of 60 to 70 yards.

“It is a huge bus full of passengers, and if they think we were a suicide bomber, we are sad that the Americans have killed innocent people,” he said. “We don’t feel safe while traveling on the main highways anymore because of NATO convoys.”

Mr. Ayoubi, the provincial spokesman, said, “We strongly condemn this action carried out by NATO forces, and we want a thorough investigation of the incident, to find out why they targeted the civilian bus.”

That last quote, from Nabi expressing unease driving on the same roads as NATO forces, has to catch Gen. Stanley McChrystal’s attention. In August, he issued guidance for his troops about waging a counterinsurgency that specifically instructed them to be as solicitous as possible of Afghan civilians driving along the country’s (barely-paved, if at all) roads. Its very first page offers this parable:

An ISAF patrol was traveling through a city at a high rate of speed, driving down the center to force traffic off the road. Several pedestrians and other vehicles were pushed out of the way. A vehicle approached from the side into the traffic circle.  The gunner fired a pen flare at it, which entered the vehicle and caught the interior on fire. As the ISAF patrol sped away, Afghans crowded around the car. How many insurgents did the patrol make that day?

That’s a hypothetical example and not what happened in this case. (The ISAF convoy doesn’t appear to have sped away; it provided medical support to the civilians it mistakenly shot at.) But McChrystal has said that what’s important in 2010 is the right output. If Afghan bus drivers do not feel safe driving near NATO convoys lest their buses get riddled with what the Times thinks may be “scores or even hundreds of rounds,” that’s the exact opposite output he is trying to yield.