Author: Spencer Ackerman

Secretary of State Hillary Rodham Clinton is giving a speech right now at the University of Louisville about nuclear security. Its overall purpose is to build a domestic political constituency for “a vision of a world in which nuclear materials are not easily available and all states adopt responsible stewardship of all nuclear material.” To reassure jittery conservatives that this isn’t some dirty-hippie fantasy, she even donated a third of the speech to the importance of keeping the U.S. nuclear arsenal in order to play a “stabilizing role… as long as nuclear weapons exist.” But the subtext is simple: the Republicans need to ratify the New START nuclear arms-reduction accord with the Russians.

Anticipating GOP objections on missile defense or rogue-state proliferation, Clinton said she wasn’t suggesting New START in itself would lead to a change in Iranian or North Korean proliferation efforts. But she said that ratification would remove objections at the United Nations Security Council to placing “tough” economic sanctions on Iran (“as strong a resolution as we possibly can”) and would “boost our credibility as we ask other countries to help shore up the nonproliferation regime.” Ratifying the treaty can “persuade other nations to support serious sanctions against Iran.” In other words: if you vote against New START, you’re letting the Iranian regime effectively off the hook.

Adam Serwer reads Andy McCarthy’s comment in my piece today about information of any kind being unacceptably jeopardized by the “day to day” interactions of civilian court procedures and observes:

I’m here at Guantanamo to observe a hearing in the case of Noor Uthman Mohammed, who is being accused of material support for terrorism. There has been very little detail released about the evidence against him, because much of it is classified — possibly because Mohammed was caught in the same sweep in which the U.S. captured Abu Zubayda in 2002. The process of sorting through the classified material in his case means that his trial won’t begin until February 2011, if it happens. The chief prosecutor for the military commissions told me a few days ago that “as a practical matter, there’s very little difference” between the process for dealing with classified information in military commissions and civilian court.

That “day-to-day” process McCarthy is so concerned about is happening here at Guantanamo, much in the same way it would happen back home. It’s also happening twice, once prior to a hearing that will determine whether Mohammed is an “unprivileged enemy belligerent,” and then again as the evidence is reviewed prior to his likely trial.

Meanwhile, it’s not like the military commissions have an unblemished record in protecting classified information. One example off the top of my head: The existence of the military’s “Frequent Flier” sleep deprivation program was disclosed during Mohammed Jawad’s military commission, which seems to me a much more significant disclosure than bin Laden finding out we’re after him several years after he’s issued fatwas calling for Muslims to fight the U.S.

In fairness, McCarthy told me he doesn’t carry any particular brief for military commissions. He favors the establishment of special national security courts for terrorism cases, an idea also favored by Benjamin Wittes of the Brookings Institution and Jack Goldsmith of Harvard — and, for that matter, by Sen. Lindsey Graham (R-S.C.) — but rejected by the Obama administration. (So far.)

Previewing next week’s 47-nation Washington conference on nuclear security, senior National Security Council aides Gary Samore and Ben Rhodes told reporters that they expect the meeting to resolve with specific national commitments that “rally collective action behind the goal of securing all vulnerable nuclear material within four years,” (in Rhodes’ words.) To get there, however, the assembled world leaders won’t try to create any new joint nuclear-security infrastructure, a move seen as a bridge too far.

Instead, Rhodes and Samore said a great deal of conference effort will concern how countries in possession of nuclear material can strengthen their civilian and military means to ensure the security of their stockpiles and prevent smuggling; strengthen their legal systems to “take action against any individuals involved in nuclear smuggling,” Samore said; and strengthen regulatory infrastructure to ensure licit activity by private firms involved in the nuclear-energy sector or other areas that touch on nuclear development. Unspecified countries will announce their own steps for nuclear security, they said, and they floated the prospect that some countries will follow Chile’s lead in handing over part or all of their weapons-grade uranium or plutonium to U.S. or international supervision. “If we’re able to lock those [materials] down and deny them to nonstate actors, then we have essentially solved the risk of nuclear terrorism,” Samore said.

But don’t expect international efforts to play anything more than a supporting role for national efforts. Samore explained that the summit won’t try and rewrite the rules of the world’s minimal nuclear security architecture or create any new supervisory body beyond the International Atomic Energy Agency. “The current structure that we have available focuses primary responsibility on national actions, and at this time, countries insist that their sovereign responsibility for securing nuclear materials, whether in the civil or military sector, is primarily a national responsibility,” Samore said. “We’re facing here an urgent need to try to take corrective measures within four years, so I think we want to focus on the system that is currently available and we think that system can be made to work. 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 really want to take in the near term.”

So what to do about nations like Pakistan, where the world’s most dangerous private nuclear proliferation network was run by a national hero, A.Q. Khan, and when he was caught red-handed he suffered a fate no worse than house arrest without the world gaining access to him? We’ll see what the conference comes up with.

This exchange aboard Air Force One with Gen. Jim Jones, the national security adviser, and Denis McDonough, the National Security Council’s chief of staff, settles a round of speculation as to whether the White House would cancel Afghan President Hamid Karzai’s planned visit to Washington out of displeasure with his recent paranoid outbursts:

GENERAL JONES: We believe that we are on a encouraging glide path in Afghanistan, and Pakistan I might add. We have a number of significant events coming up: President Karzai’s visit to the U.S., the Kabul conference later on, the –

Q The Karzai visit is on definitely?

MR. McDONOUGH: Absolutely.

GENERAL JONES: There’s no modification to that whatsoever.

We have been in contact, as you all know. President Karzai and Secretary Clinton had a clarifying conversation. We have consistently said since the elections that President Karzai is our strategic partner. We have a huge amount of work to do in terms of bringing all these pieces of our strategy together so they function in a cohesive way. We see indications on the ground that they are, in fact, moving in that direction. We have I think a successful operation in Marja. We have strategic objectives to achieve by the end of this year to solidify the gains that we think we’re making now.

And I believe that the rhetoric on perhaps both sides ought to — we ought to calm the rhetoric and engage as strategic partners intent on bringing about peace and security in not only Afghanistan and Pakistan, but in the region as well. And that’s what we’re doing.

That’s from the transcript of a press briefing earlier this morning. Jones revealed that President Obama sent Karzai a letter yesterday “basically recommitting ourselves to the success of our operation and our partnership and looks forward to greeting him in Washington to continue that progress.” McDonough clarified that it was a “thank you letter, because the President was very grateful for the fact that on such short notice that President Karzai and his government did receive him and the delegation at the palace, had the dinner that the General spoke about.”

Live from Sen. Mitch McConnell’s (R-Ky.) backyard — specifically the University of Louisville — Secretary of State Hillary Rodham Clinton will deliver a speech at 3:30 this afternoon entitled, “No Greater Danger: Protecting our Nation and Allies from Nuclear Terrorism and Nuclear Proliferation.” It’ll both push for New START ratification, as reported here last week, and tee up next week’s 40-plus head-of-state nuclear-security conference in Washington. And it looks like the Obama administration isn’t sleeping on the urgency of confronting GOP intransigence about passing the treaty through the Senate.

Quelle surprise. Eli Lake reports today that regardless of Sen. Richard Lugar’s (R-Ind.) support for the New START nuclear-arms reduction treaty with Russia, the Republican leadership is signaling its dissatisfaction with the treaty:

“Republicans have made clear for months what needs to be done in order to move this process; there’s been no ambiguity in our position on a strong missile defense, nuclear triad and the need to verify any treaty,” said Don Stewart, a spokesman for Senate Minority Leader Mitch McConnell, Kentucky Republican.

Sens. John McCain and Jon Kyl, Arizona Republicans, said they are concerned about additional references beyond the opening paragraphs of the treaty on missile defenses.

“While we were initially advised that the only reference to missile defense was in the preamble to the treaty, we now find that there are other references to missile defense, some of which could limit U.S. actions,” they said in a statement.

This is quite a curious set of objections. The “unilateral” Russian references to missile defense don’t appear to be more than the Russians expressing dissatisfaction with missile defense, none of which bind the U.S. from deploying a missile shield. As for verification, for the first time in nuclear-arms treaties with the Russians, New START allows on-site inspections of Russian missile silos and nuclear storage areas — and the main reason for that is if the treaty relied on what’s called telemetry, or information about U.S. missile launches, that would potentially jeopardize missile defense by giving away too much information about the missiles that a missile-defense system relies upon. How’s that for a commitment to missile defense?

And what’s this stuff about the triad? (The “triad” is a shorthand for the three kinds of delivery systems for nuclear weapons: missiles, submarines and bombers.) Not only are all three aspects of the triad preserved in the treaty, the Nuclear Posture Review released this week explicitly preserves it. And, again, it commits the U.S. to deploying a missile defense system. All of this is public information available on the Internet.

The other objection cited in Eli’s piece is about modernization of the nuclear stockpile, something else that the Nuclear Posture Review explicitly pledges, and for which Defense Secretary Gates arranged a $5 billion transfer of funding to the national nuclear laboratories to ensure. To the extent the objection withstands scrutiny, either GOP Senators disbelieve Gates, or they’re trying to resurrect the Reliable Replacement Warhead — a system that experts consider a new nuclear weapon (which the Obama administration doesn’t want to develop) and which Congress killed during the Bush administration.

My understanding is that the Obama administration believes the Senate GOP leadership was always going to make noise about the treaty for political reasons, so the statements here probably don’t come as any surprise. But they do indicate, barometrically, that the leadership considers it more important to give Obama a bloody nose on a crucial aspect of his agenda this year than to cut the U.S. and Russian nuclear stockpiles by 30 percent. On that central issue, the GOP is pretty silent. Doug Feith, the former Bush administration undersecretary of defense, even tells Eli, “There is no problem with a new START treaty in principle.”

So the objection is political, and that means that when hearings start in the Senate Foreign Relations Committee, the task of administration officials will be to cut off the GOP’s lines of objection, along with pointing out that nuclear-arms control treaties typically pass with huge margins of Senate support as the administration has been doing, from President Obama on down. But precedent isn’t binding on anyone. The key will be whether the GOP leadership decides to bring pressure on the caucus to vote against the treaty or allows senators to vote their own consciences. With Lugar’s support, Obama needs seven GOP senators and Joe Lieberman (I-Conn.) Tough road ahead for Brian McKeon.

Andrew McCarthy (YouTube: Hoover Institution)

As Sen. Lindsey Graham (R-S.C.) works on a deal with the White House to stop the civilian trial for 9/11 architect Khalid Shaikh Mohammed, he has one overriding fear in mind: The disclosure of classified information that might occur in an open trial. Graham’s communications director, Kevin Bishop, told The Washington Independent last month that “military justice and the military framework — a military commission — would allow us to better protect classified information.” In a recent address, Graham intoned that “valuable intelligence was compromised” in a 15-year-old case, the New York trial of the “Blind Sheikh,” in which a list of unindicted co-conspirators leaked out from the court, and suggested the leak was a dangerous prologue for future terrorism trials.

Image by: Matt Mahurin

That disclosure has been a cause celebre on the right, frequently invoked to argue that the courts are incapable of handling terrorism cases. But perhaps the leading exponent of that overall review, the former prosecutor on the Blind Sheikh case, thinks the disclosure of the list is overblown. What’s more, he concedes that he didn’t make full use of the tools available to him as a prosecutor to prevent such disclosures, even as he continues to contend that civilian courts are inherently too perilous a venue for handling terrorism-related information.

“We did not ask for CIPA protection on any of the discovery, including the co-conspirator list,” recalled Andrew McCarthy, a former New York federal prosecutor who now writes for National Review, referring to the Classified Information Procedures Act, the statute governing how courts handle classified information. “I suppose we could’ve done that.” Still, McCarthy, whom a February New York Times profile identified as one of the most influential conservative voices in the current debate over the propriety of trying terrorists in civilian courts, added, “I think too much is made of the example of the co-conspirator list.”

The case that gave rise to the disclosure was a sprawling, years-long prosecution into a conspiracy emerging from the 1993 attempt to blow up the World Trade Center. Led by the Egyptian-born Omar Abdul Rahman, known as the “Blind Sheikh,” a group of terrorists plotted to blow up a variety of high-value targets in the New York area, including the United Nations, the Lincoln and Holland Tunnels and the George Washington Bridge. McCarthy and his team — a legal all-star cast including Patrick Fitzgerald, later made famous as the special prosecutor on the Valerie Plame identity-leak case; and judge Michael Mukasey, the future attorney general — successfully convicted Rahman in 1995, thereby obtaining the first big American conviction against members of an Islamist terrorist conspiracy.

During the course of the trial, however, a list of unindicted co-conspirators distributed to defense counsel made its way out of the trial, reportedly making its way to Osama bin Laden. McCarthy has occasionally used the disclosure to contend that the courts are ill-suited to handling terrorism cases. “As underscored by al-Qaeda’s receipt of the co-conspirator list from our trial, the congenial rules of access to attorneys, paralegals, investigators and visitors make it a very simple matter for accused terrorists to transmit what they learn in discovery to their confederates — and we know they do so,” McCarthy writes in his 2008 memoir of his experience prosecuting the Blind Sheikh, “Willful Blindness.”

Graham magnified that contention in a February radio address sponsored by the Republican Party, even going so far as to imply that the disclosure paved the way for the 9/11 attacks: “Our intelligence services later learned this list made its way back to bin Laden tipping him off about our surveillance. A conviction was obtained in that trial, but valuable intelligence was compromised. The rest is history.”

Yet a review of the court records commissioned by TWI found no evidence that McCarthy and his fellow prosecutors made use of all the tools at their disposal to protect the list. Not only did the government not invoke CIPA, which would have restricted access to classified information in a case to officers of the court who hold security clearances and cannot remove information from secure facilities, prosecutors did not seek to place any protective orders on non-classified information like the co-conspirators list — which would have placed additionally restrictive rules on handling it. McCarthy said he believed Mukasey, the judge who heard the case, issued a “general protective order” for information shared with defense council for the trial’s discovery phase, but conceded, “We didn’t go piece by piece of discovery to the court for a protective order.” An individual close to the case who would not speak for attribution said there was never any protective order over the co-conspirator list, a finding borne out by TWI’s examination of the court record. Mukasey, through a spokesman, declined to comment.

A 2008 study conducted for the civil liberties organization Human Rights First examined how the courts have handled hundreds of terrorism prosecutions before and after 9/11 and found negligible, if any, disclosures of classified or sensitive information. The study, written by two former federal prosecutors who, like McCarthy, worked for the U.S. Attorney’s Office for the Southern District of New York, wrote of the co-conspirator list, “Had the government sought a court order restricting dissemination of the list, perhaps it would not have been disseminated to Bin Laden.”

Jim Benjamin, one of the authors of the study — whom McCarthy praised for “going out of their way to be fair and get[ting] the facts accurate” — clarified that he does not consider McCarthy or anyone else prosecuting the Blind Sheikh to be negligent. “Andy did a spectacular job on the Blind Sheikh prosecution and throughout his career as a prosecutor in the Southern District,” Benjamin, now with the law firm Akin Gump, said in an interivew. “I don’t criticize him for anything he did on the Blind Sheikh case, including not seeking a protective order, although doing so has become routine practice in terrorism cases today. The bottom line is that no system is ever going to be perfect, no matter how well intentioned or diligent the lawyers were, and Andy was certainly both.”

Asked why he never invoked CIPA in the case, McCarthy replied, “To be candid with you, I never thought it was worth either the five seconds it would have taken the judge to orally order it, or the piece of paper it was written on if it was written on a piece of paper, because one of the things I really came away thinking as a prosecutor who’s done mafia cases and drug cases and all these other cases and then was finally doing national security cases, people who are looking to blow up buildings don’t really care about nondisclosure orders.”

But the lack of a protective order or a CIPA invocation does beg the question of whether it’s fair to indict the entire criminal justice system as incapable of handling terrorism cases if prosecutors in a pre-9/11 case didn’t use all the tools available to them to prevent unwarranted disclosure. For his part, McCarthy believes that the focus on the disclosure of the co-conspirator list misses the forest for the trees in terms of the access to information that civilian courts openly provide — particularly information that doesn’t even rise to the level of sensitive, let alone classified — a prospect that unnerves him when considering terrorism cases.

“The co-conspirator list is just a single instance of a much broader problem in terrorism cases,” McCarthy said. “Everything that goes on in the way of not only disclosure under the rules, but more importantly, testimony in a courtroom is a problem in terms of the degree to which it edifies the enemy. These are rules that are made for normal trials that don’t involve national security situations when you’re dealing with a faction that you’re at war with. At the time that our trial took place, the United States certainly wasn”t in a state of war, even if the other side was. But I don’t think there can be any question that the day-to-day dishing out of discovery — we’re talking now about thousands of pages of information that get turned over. And I will tell you, these are problems you deal with on a day-to-day basis at trial.”

Benjamin, whose 2008 study of terrorism trials examined hundreds of cases, responded that he was unaware of “examples where that scenario has unfolded and there has been a security breach as a result.” If anything, he continued, the fact that opponents of civilian trials for terrorists point to the disclosure of the co-conspirator list indicates that the courts are robustly capable of convicting terrorists without running the risk of dangerous disclosures.

“Although any leak of sensitive information is a serious matter, I think this one incident from 15 years ago tends to be given too much weight in the broader debate about the ability of federal courts to safeguard classified evidence,” Benjamin said. “When you stack up this single incident against the scores of cases where CIPA has been invoked and there haven’t been leaks, I think the better conclusion to draw is the opposite one — that the civilian courts have generally been able to handle terrorism cases effectively and without jeopardizing national security.”

That’s a conclusion fervently embraced by Attorney General Eric Holder, who has been asked about the co-conspirator list by members of Congress. “The co-conspirator list was not a classified document. Had there been a reason to try to protect it, prosecutors could have sought a protective order, but that was not a classified document,” Holder told the Senate Judiciary Committee in November. “It is my firm belief that through the use of CIPA, we can protect information in Article III [federal] courts in the same way that they can be protected in military commissions.”

In a remarkable display of contrition from a military officer who operates far from public visibility, Vice Adm. William McRaven, chief of the Joint Special Operations Command, visited an area in Gardez to apologize personally for the killing of five civilians during a February raid. McRaven brought with him two sheep to make amends. ABC reports:

In the code followed by the southeastern Afghan family so devastated by the February incident, offering two sheep is the equivalent of begging for forgiveness.

And the father — whose has lost two sons, two daughters and one grandchild — accepted McRaven’s apology, according to family members and Afghan investigators.

In this culture the act of asking for forgiveness, almost always done with the gift of sheep, is so strong, the father is now obligated not to take revenge, even though he has told reporters he wanted to become a suicide bomber.

That’s according to a just-released statement from Sen. John Kerry (D-Mass.), chairman of the Senate Foreign Relations Committee:

The White House has indicated that the full treaty will be completed and submitted to the Senate in early May.  I plan to begin hearings on the treaty in the coming weeks, and then report a proposed resolution of advice and consent to ratification out of the Foreign Relations Committee for approval by the full Senate as soon as possible.

In an indication of the full-spectrum pressure that the Obama administration is facing on its plan to close Guantanamo Bay, today a coalition of major civil liberties groups — the very groups that have led the charge to close the island detention facility since its 2002 inception — sent a pained letter to Congress urging members to oppose the planned closure unless President Obama drastically modifies his approach.

The Pentagon is seeking about $350 million in its Afghanistan funding authorization to buy the Thomson Correction Center in Illinois. According to a senior administration official who briefed reporters on the plan to close Guantanamo in December, the facility will house detainees either convicted by military commissions or held in some form of indefinite detention without charge. To civil libertarians, that would entrench some of the most intolerable legal abuses of Guantanamo Bay in the name of ending it, rendering the shutdown of the facility Pyrrhic at best and misleading at worst. Sen. Mitch McConnell (R-Ky.), the Senate GOP leader, no fan of closing Guantanamo, has questioned the value of exporting Guantanamo practices to Illinois instead of ending them outright.

In the new and delicately worded letter, eight civil libertarian organizations come to the same reluctant conclusion, and urge legislators to vote against the Thomson purchase unless they also pass a “permanent, statutory ban on using the Thomson facility for indefinite detention without charge or trial or for military commission-related detention.” That would earn the blessing of a coalition that “strongly support[s] the responsible closing of the Guantanamo Bay detention facility” and takes pains to praise “many of the steps the Obama Administration has taken” to close Guantanamo “the right way,” either through “repatriation and resettling” of detainees or trying them federal civilian court.

“Bringing the practice of indefinite detention without charge or trial to any location within the United States will further harm the rule of law and adherence to the Constitution,” reads a letter signed by the Alliance for Justice, American Civil Liberties Union, Amnesty International USA, Center for Constitutional Rights, Japanese American Citizens League, National Association of Criminal Defense Lawyers, Physicians for Human Rights, and the United Methodist Church’s General Board of Church and Society. “The current statutory ban on transferring detainees to the United States for purposes of indefinite detention without charge or trial expires at the end of the current fiscal year. Congress should not move forward with the Thomson purchase until and unless it permanently prohibits indefinite detention and military commission-related detention at the Thomson facility.”

The letter is the first concerted forceful statement of position to Congress from civil libertarians who have expressed months’ worth of discomfort with the contours of the Thomson-based Guantanamo closure plan — or what detractors call “Gitmo North.” But it evidently did not win the support of other prominent civil liberties groups like the Constitution Project, Human Rights Watch and Human Rights First.

Here’s the full text:

TO: Members of the U.S. Senate
Members of the U.S. House of Representatives

FROM: Alliance for Justice
American Civil Liberties Union
Amnesty International USA
Center for Constitutional Rights
Japanese American Citizens League
National Association of Criminal Defense Lawyers
Physicians for Human Rights
United Methodist Church, General Board of Church and Society

DATE: April 8, 2010

RE: Opposition to the Purchase of the Thomson Correctional Center in Thomson,
Illinois—Unless Congress Also Enacts a Permanent, Statutory Ban on Using the Thomson Prison for Indefinitely Detaining Persons Without Charge or Trial, or for Holding Persons During Military Commission Trials or for Serving Sentences Imposed by Military Commissions

We urge you to oppose legislation authorizing, or appropriating federal funds for, the purchase of the Thomson Correctional Center in Thomson, Illinois, unless Congress, at the same time, also enacts a permanent, statutory ban on using the Thomson prison for indefinitely detaining persons without charge or trial, or for holding persons during military commission trials or for serving sentences imposed by military commissions. All of our organizations strongly support the responsible closing of the Guantanamo Bay detention facility, and we would support using the Thomson facility for holding any detainees now at Guantanamo who may be charged, tried, or sentenced in federal criminal court. However, we strongly oppose transporting the worst of Guantanamo policies—indefinite detention without charge or trial and military commissions—to a prison within the United States itself. If used for one or both of these purposes, the purchase of the Thomson prison could result in institutionalizing and perpetuating policies that should instead end.

On December 15, 2009, President Obama signed a memorandum directing the Attorney General and Secretary of Defense to acquire and activate the Thomson prison for use by the Department of Defense in holding detainees currently at the Guantanamo Bay Naval Base and by the Department of Justice’s Bureau of Prisons as a federal penitentiary for holding prisoners in high security, maximum security conditions. According to a study by the Council of Economic Advisers last year, the Defense Department would control 400 of the 1600 cells at the Thomson prison. The Bureau of Prisons would control the remaining cells.

On December 15, a number of government officials provided further details on who would be, and who would not be, held in the portion of the Thomson prison designated for use by the Defense Department. In a letter and accompanying questions and answers from the Deputy Secretary of Defense to Congressman Mark Kirk, the Defense Department stated that the Thomson prison would be used to imprison Guantanamo detainees whom the government is indefinitely detaining without charge or trial under a claim of detention authority based on the 2001 Authorization for Use of Military Force, and also Guantanamo detainees tried before military commissions or serving sentences imposed by military commissions. However, the Deputy Secretary’s answer to Congressman Kirk’s questions stated that Guantanamo detainees charged and tried before federal criminal courts would not be housed at the Thomson prison. Further, in a briefing by a “senior administration official” on December 15, the official stated that Guantanamo detainees cleared for release would remain at Guantanamo until transferred to other countries, and would not go to Thomson.

There is a right way and a wrong way to close Guantanamo. To date, many of the steps the Obama Administration has taken—with the support of many members of Congress, including prominent congressional supporters of the Thomson purchase–have been in the direction of closing Guantanamo the right way. The Obama Administration has worked hard to make charging decisions for detainees whom the government believes should be prosecuted in federal criminal courts in the United States, has closely collaborated with important allies of the United States in repatriating and resettling detainees cleared for release, and has continued the process of clearing detainees for release or transfer. The Obama Administration should continue all of these steps until the population at Guantanamo reaches zero.

However, there are two developments over the past year that constitute closing Guantanamo the wrong way. First, the government has reinstituted the discredited military commissions. The military commissions have now gone through eight years, two statutes, four sets of rules, but have only resulted in three convictions, with two of those convicted detainees now released. By contrast, more than 400 defendants have been convicted of terrorism-related offense in federal criminal courts. The military commissions still do not have any rules based on the new statute, continue to have fundamental problems that could result in their proceedings being held illegal under the Constitution and international law, and deservedly lack credibility both at home and abroad. Second, the government continues to claim authority to indefinitely detain without charge or trial some of the Guantanamo detainees. Even if there is legal authority to continue to indefinitely detain these men, which many of our groups dispute, the government should make the policy decision that the interests of the United States are better served by either charging a detainee in federal criminal court or repatriating or resettling the detainee.

Based on the government’s own statements, it appears that the Defense Department-run portion of the Thomson prison would house only those Guantanamo detainees being held pursuant to Guantanamo policies that should end—namely, military commissions and indefinite detention without charge or trial. Congress should not authorize, or appropriate money for the acquisition of the Thomson prison unless it also enacts a permanent statutory provision that would ensure that the Thomson prison will not become a U.S.-based prison dedicated to perpetuating Guantanamo policies that should end.

Bringing the practice of indefinite detention without charge or trial to any location within the United States will further harm the rule of law and adherence to the Constitution. Shortly after President Obama took office, the government charged, tried, and convicted the only person then-held on U.S. soil indefinitely without charge or trial. At present, the number of people held within the U.S. itself indefinitely without charge or trial is zero. However, if the Thomson prison is acquired and the current statutory prohibition on transferring Guantanamo detainees for purposes other than prosecution is allowed to expire, the number of persons held on U.S. soil without charge or trial could reportedly rise to 50 or more.

Moreover, Thomson could eventually become the place to send other persons held indefinitely without charge or trial—with the prospect of detainees being transferred there from Bagram, Afghanistan or new captures brought from other locations around the globe. The unfortunate reality that we would face if Thomson opens is that it is easier to go from 50 to 51 indefinite detention prisoners than it is to go from 0 to 1. Once the indefinite detention policy is institutionalized at Thomson, it will be difficult to hold the line at former Guantanamo detainees.

We urge that you oppose the purchase of the Thomson prison unless Congress, at the same time that it authorizes or funds the purchase, also enacts a permanent, statutory ban on using the Thomson facility for indefinite detention without charge or trial or for military commission-related detention. The current statutory ban on transferring detainees to the United States for purposes of indefinite detention without charge or trial expires at the end of the current fiscal year. Congress should not move forward with the Thomson purchase until and unless it permanently prohibits indefinite detention and military commission-related detention at the Thomson facility.

We would be very interested in meeting with you or your staff to discuss this issue further.

Update, 1:06 p.m.: The Government Accountability Project is a last-minute signatory, bringing the total number of groups signing the letter to nine.

Does it restrict U.S. missile defense? Concede too much to the Russians? Standardize rules for counting the nuclear payloads on deployed bombers? What about telemetry?????

Well, now you can answer all these questions to your satisfaction.

It faded from news coverage over the past few weeks, but when President Obama returns from Prague, he’ll have to make a decision 0n pressing forward to try Khalid Shaikh Mohammed in federal court, as his attorney general desires, or whether to move him into a military commission, as Sen. Lindsey Graham (R-S.C.) urges. The major rationale Graham has cited for the need to get the 9/11 architect out of criminal court is the courts’ inability to handle classified information. But now the chief prosecutor for the military commissions at Guantanamo Bay refutes that argument.

Adam Serwer of the American Prospect is at Guantanamo Bay to observe a commission, and he reports on a briefing he received about their procedure:

But in a conference call with reporters a few minutes ago, the chief prosecutor for the Guantanamo Bay Military Commissions, Cpt. John F. Murphy, said that there was little difference “as a practical matter” between dealing with classified information under CIPA and the new process outlined by the revised military commissions law.

“The new changes to our 505 bring it more into conformity with CIPA — it is closer to the CIPA process in federal court,” Captain Murphy said. “I would need to lay the two statues side-by-side to point out the differences.”

“As a practical matter, there’s very little difference between the two,” he said.

The only practical difference Adam can ascertain concerns a slight delay on the closed-circuit TV feed from the trials into the observation room. On such differences hinge, substantively, the political opposition to trying a terrorist in a venue with nearly 400 terrorism-related convictions as opposed to a venue with three.

Attorney General Eric Holder will next get a chance to press his case publicly on Wednesday, when he testifies to the Senate Judiciary Committee, and then on Thursday, when he speaks to the Constitution Project’s annual dinner.

While you were sleeping, Barack Obama and Russian President Dmitry Medvedev traveled to Prague and signed the New START nuclear-arms reductions accord, pledging to reduce their countries’ nuclear arsenals by 30 percent and cap the deployed missiles, submarines and bombers that deliver nukes at 700. The task before the White House now is overcoming initial GOP misgivings in the Senate that the still-unreleased treaty will in any way impact U.S. plans to construct a missile shield in eastern Europe, something the Russians aren’t too pleased about. And the first step in that task falls to Brian McKeon, a longtime aide to Vice President Biden.

For a moment, leave aside the legal questions about the Obama administration’s apparent decision that it possesses the legal authority to order the extra-judicial killing of American citizen and possible al-Qaeda affiliate Anwar al-Awlaki. Karen Greenberg, director of New York University’s Center on Law and Security and the person who convinced me the government can’t just revoke al-Awlaki’s citizenship, views a potential assassination of the Yemen-based cleric as a looming national security blunder.

“Why kill someone who’s crucially important to linking that world and our world?” Greenberg said. “From the point of view of national security, having him in custody is far more important than killing him. He is an enemy that knows an incredible amount. Wouldn’t you like to know who in the U.S. has been in conversation with him?”

There’s an additional irony, as Marcy Wheeler pointed out this morning. (Full disclosure: Marcy and I are both part of the Firedoglake blog-mafia.) Chances are whatever determination that al-Awlaki has crossed the line from inciting terrorist plots to participating in them — as an anonymous administration official cited to Greg Miller – came from the interrogation of Umar Farouk Abdulmutallab. Which occurred with the full protections of Miranda rights under the U.S. criminal justice system. Abdulmutallab, of course, isn’t a citizen and al-Awlaki is.

On the other hand, maybe we shouldn’t even credit the recent determination that al-Awlaki has “recently become an operational figure for al-Qaeda in the Arabian Peninsula,” as the official told Miller. After all, the U.S. tried to kill him with a drone-launched missile strike in December.

For Greenberg, even before the legal and constitutional questions about the permissibility of killing al-Awlaki arise, the strategic wisdom of it escapes her. “This is not a human rights issue, primarily, for me,” she said. “What do we get out of killing him?”

To be on the safe side, this morning, The Washington Independent filed Freedom of Information Act requests with the Justice Department and the CIA for any documentation determining the legal basis for an extra-judicial killing of any American citizen on counterterrorism grounds. This is after repeated messages left with DOJ, White House and CIA spokespeople to uncover that assertion. All I got was a quote from CIA spokesman George Little that “this agency conducts its counterterrorism operations in strict accord with the law.” I was unable to persuade George to elaborate on the basis for his confidence that, in this case, it’s doing that.

In an interview with Adam Serwer of The American Prospect, Ken Gude of the Center for American Progress says that the September 14, 2001 congressional Authorization to Use Military Force in response to 9/11 provides the Obama administration with the legal authority to launch the extra-judicial killing of an American citizen:

“There is much debate about how broadly both the Bush and Obama administrations have interpreted [the Authorization to Use Military Force], a concern that I share, but this instance is not one of those cases,” Gude says. “It cannot plausibly be argued that Awlaki, who is mentioned repeatedly in the 9/11 Commission report as having assisted the 9/11 hijackers, is not a person who aided the 9/11 attacks.”

But the evidence the 9/11 Commission report presents about Awlaki is far more fragmentary than Gude suggests. Awlaki’s possible role in the attacks is discussed in chapter 7 of the report, “The Attack Looms.” Basically, when hijackers Nawaf al-Hazmi and Khalid al-Mihdhar arrived in San Diego in mid-2000, they attended a mosque the American citizen Awlaki ministered at. This is what the commission says on page 221 of the first-edition text:

Another potentially significant San Diego contact for Hazmi and Mihdhar was Anwar Aulaqi, an imam at the Rabat mosque. Born in New Mexico and thus a U.S. citizen, Aulaqi grew up in Yemen and studied in the United States on a Yemeni government scholarship. We do not know how or when Hazmi and Mihdhar first met Aulaqi. The operatives may even have met or at least talked to him the same day they first moved to San Diego. Hazmi and Mihdar reportedly respected Aulaqi as a religious figure and developed a close relationship with him.

When interviewed after 9/11, Aulaqi said he did not recognize Hazmi’s name but did identify his picture. Although Aulaqi admitted meeting with Hazmi several times, he claimed not to remember any specifics of what they discussed. He described Hazmi as a soft-spoken Saudi student who used to appear at the mosque with a companion but who did not have a large circle of friends.

Aulaqi left San Diego in mid-2000, and by early 2001 had relocated to Virginia. As we will discuss later, Hazmi eventually showed up at Aulai’s mosque in Virginia, an appearance that may not have been coincidental. We have been unable to learn enough about Aulaqi’s relationship with Hazmi and Mihdha to reach a conclusion.

Both future 9/11 hijackers made their way to the Dar al Hijra mosque in Falls Church, where Awlaki had again taken up religious service. Page 229:

Aulaqi had moved to Virginia in January 2001. He remembers Hazmi from San Diego but has denied having any contact with Hazmi or [fellow hijacker Hani] Hanjour in Virginia.

At the Dar al Hijra mosque, Hazmi and Hanjour met a Jordanian named Eyad al Rababah. Rababah says he had gone to the mosque to speak to the imam, Aulaqi, about finding work. At the conclusion of services, which normally had 400 to 500 attendees, Rababah says he happened to meet Hazmi and Hanjour. They were looking for an apartment; Rababah referred them to a friend who had one to rent. Hazmi and Hanjour moved into the apartment, which was in Alexandria.

Some FBI investigators doubt Rababah’s story. Some agents suspect that Aulaqi may have tasked Rababah to help Hazmi and Hanjour. We share that suspicion, given the remarkable coincidence of Aulaqi’s prior relationship with Hazmi. As noted above, the Commission was unable to locate and interview Aulaqi.

The pattern of behavior is doubtless suspicious and the coincidence cries out for further investigation. But it’s not the same as tying Awlaqi to the 9/11 plot. In a footnote, the 9/11 Commission reveals that Awlaqi had come under FBI investigation in 1999 and 2000 after it learned the imam “may have been contacted by a possible procurement agent for Bin Laden.” It determined that he knew anti-Israel extremists, including some with ties to Hamas. But “none of this information was considered strong enough to support a criminal prosecution.”

Awlaki, we now know, is himself an extremist, and possibly tied to al-Qaeda in Yemen or beyond. But is this the level of connection to the 9/11 attack that can justify the execution of an American citizen without due process, according to the 2001 Congressional authorization? This is what that authorization empowers:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Even “aided” is a stretch in Awlaki’s case. The 9/11 Commission suspected it, and details the basis for reasonable suspicion. But it lacked the basis to reach any such conclusion.

It might not be the best day to trumpet the rule of law over U.S. counterterrorism efforts, but Attorney General Eric Holder announced that the Justice Department has reached a deal with Algeria for mutual criminal justice assistance. The deal will allow the the U.S. and Algeria to “obtain testimonies and statements; retrieve evidence, including bank and business records; provide information and records from governmental departments or agencies; and provide a means of inviting individuals to testify in a requesting country.” As Algeria hosts its own very unwelcome al-Qaeda affiliate, the additional tools aid the Justice Department’s monitoring and pursuit of individuals and money in Algeria that might threaten U.S. interests.

They also allow Holder an additional opportunity to entrench the Justice Department’s role in counterterrorism ahead of a potential presidential decision to abandon a criminal trial for Khalid Shaikh Mohammed and move the 9/11 architect back into the military commissions system for trial. Holder:

“The proliferation of both terrorism and traditional criminal acts across national borders makes international cooperation essential to bringing to justice those who threaten our safety and security,” said Attorney General Holder. “Algeria is an important partner in the fight against terrorism and transnational crime. This treaty will help us ensure that terrorists and other criminals are not able to avoid justice by simply hiding evidence beyond our borders.”

Here’s a tea leaf, and, I’m afraid, a 2006-vintage joke. As an indication of President Obama’s continuing displeasure with Israeli Prime Minister Benjamin Netanyahu — displeasure that apparently is compelling some within the administration to advocate proposing a comprehensive U.S. Middle East peace plan — Obama will meet with nine world leaders during next week’s big Washington summit on nuclear security. Kazakhstan’s Nursultan Nazarbayev is one of them. Netanyahu, who will attend the summit, is not.

As a consolation measure, informed sources explain, Nazarbayev plans to explain to Netanyahu about the inferior quality of all other nations’ potassium supplies.

An anonymous administration official runs an idea up David Ignatius’ flagpole: Frustrated with the poor-to-intransigent pace of Israeli-Palestinian peace talks, which are barely at the “indirect” phase, President Obama is considering proposing his own Mideast-peace plan. That’s something the two-state-solution community urged him and Secretary of State Hillary Rodham Clinton to pursue after last month’s friction with Israeli Prime Minister Benjamin Netanyahu over Jerusalem settlements.

Ignatius reports that it would take a wide, regional focus:

The American peace plan would be linked with the issue of confronting Iran, which is Israel’s top priority, explained the second senior official. He described the issues as two halves of a single strategic problem: “We want to get the debate away from settlements and East Jerusalem and take it to a 30,000-feet level that can involve Jordan, Syria and other countries in the region,” as well as the Israelis and Palestinians.

“Incrementalism hasn’t worked,” continued the second official, explaining that the United States cannot allow the Palestinian problem to keep festering — providing fodder for Iran and other extremists. “As a global power with global responsibilities, we have to do something.” He said the plan would “take on the absolute requirements of Israeli security and the requirements of Palestinian sovereignty in a way that makes sense.”

This has apparently come with the aid of foreign-policy greybeards from both parties, like Brent Scowcroft, Zbigniew Brzezinski, Sandy Berger, Frank Carlucci, Robert MacFarlane and Colin Powell. The administration certainly leaked that to frame this prospective initiative as a consensus view. (Because, frankly, it is.)

That, and the other specificity cited by Ignatius — the administration could start interagency discussions modeled on the Afghanistan-Pakistan strategy and unveil a plan by the fall — support the initial judgment that this has already been well-discussed internally. On the other hand, it could be a shot across Netanyahu’s bow, telling him that if he doesn’t take some confidence-building measures — and soon — the Obama administration will launch its own very big peacemaking agenda, and that’s not going to be something Israel will want to be viewed as opposing.

In February, the director of national intelligence, Dennis Blair, told a congressional panel that there were certain counterterrorism cases that could involve killing an American citizen. That, he cautioned, required a special process through the National Security Council — for safeguards.

Anwar al-Awlaki is an American citizen, born in New Mexico, and now residing in Yemen, where he repeatedly issues exhortations to murder his fellow Americans. Any court would find him guilty of incitement. He has nebulous connections to al-Qaeda. What a court would say about those connections is uncertain, but courts have tended to give the government the benefit of the doubt in terrorism cases since at least 9/11. But al-Awlaki’s American citizenship entitles him to due process of law should the government seek to deprive him of life, liberty or property. When I asked Karen Greenberg of NYU’s Center on Law and Security whether al-Awlaki could be lawfully assassinated last month, she scoffed, “They can’t do this with al-Awlaki. He is an American citizen, born in New Mexico. They can’t take away his citizenship.”

The Obama administration begs to differ, according to Reuters, The Washington Post and The New York Times. Anonymous administration officials cite secret evidence to say that al-Awlaki’s connections to al-Qaeda affiliates have passed from the incitement phase into the operations phase, and so the CIA has marked him for death. Nowhere in those pieces does the Obama administration explain the legal basis for revoking al-Awlaki’s most basic constitutional right. As I wrote in my piece last month, not even John Yoo made a claim that radical while serving under the Bush administration:

In June 2002, John Yoo, then a lawyer for the Justice Department’s Office of Legal Counsel, assessed that U.S. citizenship was no obstacle to the government detaining a suspected terrorist and providing him with a trial before a military commission. “[T]he President’s authority to detain an enemy combatant is not diminished by a claim, or even a showing, of American citizenship,” Yoo wrote. But even Yoo did not consider the more radical claim of stripping American citizenship from a suspected terrorist for the purpose of legally killing him; and President Obama formally annulled Yoo’s memorandum in an executive order within days of taking office.

The administration may very well be making the correct evaluation of the threat al-Awlaki poses. But if citizenship means anything, it means that a citizen can’t be killed because the government uses secret evidence to say he or she is an intolerable threat. Al-Awlaki is certainly exploiting his American citizenship. But CIA spokesman Paul Gimigliano told the Post’s Greg Miller, “This agency conducts its counterterrorism operations in strict accord with the law.” We at least have the right to know the legal basis the Obama administration reached to order the extra-judicial killing of an American citizen, and so I’ll be spending my morning filling out FOIAs.

Defense Secretary Robert Gates discusses the Nuclear Posture Review at the Pentagon on Tuesday. (EPA/ZUMApress.com)

The beginning of the new Washington consensus on nuclear strategy, embodied by Tuesday’s release of the Obama administration’s Nuclear Posture Review, began, ironically, with an October 2008 speech that presented a notably different view.

Image by: Matt Mahurin

A week before the presidential election, Robert Gates, the Bush administration’s well-respected defense secretary, admonished a gathering at the Carnegie Endowment for International Peace, a think tank with an arms-control bent, about the continued need for a robust nuclear deterrent. “Rising and resurgent powers, rogue nations pursuing nuclear weapons, proliferation, international terrorism — all demand that we preserve this ‘hedge,’” Gates said, defending an expansive series of roles and missions for the U.S. nuclear stockpile, including deterring chemical or biological-weapons attacks. Gates held out the prospect for building new nuclear weapons in the guise of modernizing the existing stockpile; gave short shrift to the idea of additional U.S. arms reductions; and even said there was “absolutely no way” to make such cuts without “either resorting to testing our stockpile or pursuing a modernization program.” After all, Gates said, “we must be realistic about the world around us.”

Arms control advocates in the audience were horrified. “I was totally pissed at that speech,” recalled Joe Cirincione, now the president of the non-proliferation Ploughshares Fund. Gates appeared to be challenging the likely next president. “I thought, Obama is going to become president, and this is one of his top objectives!” But in retrospect, Cirincione added, “It turned out this was going to be a political asset for him.”

The new, 75-page Nuclear Posture Review effectively represents a repudiation of Gates’s 2008 speech by, among other administration officials, Robert Gates. Months of laborious interagency meetings and discussions — 80 of them, one participant counted off at a Pentagon press briefing Tuesday afternoon — resulted in a document that for the first time places the proliferation of nuclear weapons, and particularly their acquisition by terrorists, as the principle nuclear threat the U.S. faces. Contrary to the tone and content of Gates’ speech, the so-called NPR expressly forswears the use of nuclear weapons to retaliate against non-nuclear attacks by good-faith signatories of the Nuclear Nonproliferation Treaty, perhaps the first time that U.S. nuclear doctrine has been explicitly tethered to compliance with an international treaty. And it pledges that the Obama administration will seek Senate ratification of the Comprehensive Test Ban Treaty, which the Senate rejected in 1999.

Additionally, while it keeps both the nuclear stockpile and the “triad” of missiles, submarines and bombers to deliver nuclear weapons — though it pledges to cut the arsenal even further than a new treaty with Russia calls for — it embraces the sort of restrictions on the stockpile that Gates’ speech rejected. Or, in the words of Gen. James Cartwright, the vice chairman of the Joint Chiefs of Staff and the first Marine to helm the military command in charge of nuclear weapons, “No new testing, no new warheads… no new missions or capabilities.”

The NPR is a “concrete plan for implementing the presidential vision” of a nuclear-free world, said Bradley H. Roberts, the deputy assistant secretary of defense for nuclear and missile-defense policy. Accordingly, the NPR “reduce[s] the number and role of nuclear weapons, while at the same time ensuring we maintain a safe, secure and effective deterrent as long as nuclear weapons remain relevant.”

Though it’s not without its caveats. At his press conference, Gates didn’t refer to his 2008 speech, nor did he show interest in dredging up differences between him and other members of the administration. Instead, he singled out Iran and North Korea as potential exemptions to the abandonment of U.S. nuclear retaliation for non-nuclear attack, since Iran has been repeatedly criticized by the International Atomic Energy Agency for insufficient compliance with the NPT and North Korea, now a nuclear power, withdrew from the treaty in 2003. “If you’re not going to play by the rules, if you’re going to be a proliferator,” Gates said, “then all options are on the table.” Secretary of State Hillary Rodham Clinton added that the move was an “important step to reinvigorate” the NPT.

Similarly, the document states that the “fundamental role” of U.S. nuclear weapons is to deter attack, which has struck some arms-control experts as insufficient. “Giving nuclear weapons roles beyond deterring nuclear attack is both unnecessary and counterproductive, and we urge the administration to adopt a ‘sole purpose’ policy now rather than later,” Lisbeth Gronlund of the Union of Concerned Scientists said in a prepared statement.

Roberts conceded the dissatisfaction before downplaying it on a bloggers’ conference call in response to a question from TWI. “We were not prepared to endorse the statement of ’sole purpose’ in this review, and that will be disappointing to some,” Roberts said. “On the other hand, those who wanted a concrete, pragmatic work plan to actually reduce nuclear dangers and to identify an agenda of activities that can be accomplished cooperatively internationally see a lot in this report. I would say we’ve had much more positive feedback on the latter point than we’ve had negative feedback on the former.”

That “concrete, pragmatic work plan to actually reduce nuclear dangers” is the sort of thing that Gates called for in 2008. And in both his press conference and in his forward to the NPR, he found points at which to implicitly reconcile his old comments with the new administration nuclear assessment. For one thing, Gates spoke of adversaries who attack the U.S. with chemical or biological weapons receiving a “devastating conventional military response,” an statement in line with his 2008 speech’s throwaway line that conventional U.S. weapons are also a powerful deterrent. (A line, incidentally, echoed by White House Press Secretary Robert Gibbs on Tuesday when ABC’s Jake Tapper asked about Gates’ 2008 speech.)

And for another, Gates wrote in the NPR’s introduction that a new $5 billion investment in the Department of Energy’s program to refurbish the nation’s nuclear infrastructure “represent[s] a credible modernization plan necessary to sustain the nuclear infrastructure and support our nation’s deterrent.” So much for there being “absolutely no way” to cut the stockpile without new testing or new warheads.

For Cirincione, that line signaled Gates — considered in the press to be the last holdout to administration consensus on the NPR — has joined the fold. “That is a reversal of Bob Gates’ October 2008 speech, and this document puts the secretary of defense and the Joint Chiefs of Staff solidly behind ratification of the test-ban treaty,” he said, referring to the longtime arms-controller priority. Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, told the Pentagon press corps that the NPR was a “great product” that the “chiefs and I fully support.”

Key to that support was Cartwright, whose experience running U.S. Strategic Command apparently convinced him of the dubious military utility of nuclear weapons. “Cartwright is the man,” Cirincione said. “He’s the one who advises Mullen, who advises Gates, he’s the one [Undersecretary of State for Arms Control Ellen] Tauscher’s close to. He’s the guy.” Adm. John Roberti, the deputy director for strategy and policy on the military’s Joint Staff, said that Cartwright’s “influence on the final decisions and the final product was felt throughout the process.”

Gates’ support for the NPR will likely signal to official Washington that the Obama administration’s cautious, gradual steps to the elimination of nuclear weapons is the new normal, not some wild-eyed progressive fantasy. The Senate Armed Services Committee will hold a hearing about the document on April 22, and its chairman, Sen. Carl Levin (D-Mich.), said in a statement that he was pleased it “balances a discussion of the nuclear triad with a strengthening of nonproliferation programs and commitments.”

Indeed, at his press conference, Gates effectively reprised a formulation used in his October 2008 speech — but this time, in defense of the administration’s approach to eventually junking nuclear weapons. “We recognized the need to make progress in the direction the president has set,” said Obama’s defense secretary, “but we also recognize the real world we continue to live in.”