The Detainee Debate Heats Up: The Rule of Martial Law Vs. the Unitary Spookery

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As I noted yesterday, Obama issued a veto threat for the detainee provisions included in the Defense Authorization. Since then, both Dianne Feinstein and Carl Levin have given speeches on the floor, arguing against (DiFi) and for (Levin) the provisions.

And while I’d be happy to see the provisions in question fail (because the provisions represent a further militarization of our country), effectively the argument being made is between those (the Republicans, enabled by Levin) who support further militarization of law and those (DiFi and, especially, the Administration) who want the Executive Branch to continue fighting terrorism (and whatever else) with an intelligence-driven approach bound by few legal checks.

DOJ’s Special Forms of Extended Interrogation and Coercion

In a sense, DiFi’s speech on Thursday looked like an appeal to rule of law. For example, she warns of the danger of “further militariz[ing] our counterterrorism efforts.” But what she really focused on in her speech–implicitly–are the tools the government has wrung out of the civilian legal system to make it easier to get intelligence (whoever picked a Senate Judiciary Committee member to be head of the Senate Intelligence Committee made this blurring of law and intelligence easier).

DiFi alludes to tools DOJ has that DOD does not. She mentions both Najibullah Zazi and Umar Farouk Abdulmutallab as people whose prosecution within the civilian justice system aided prosecution.

Suppose a terrorist such as Zazi were forced into mandatory military custody. Then the government could also have been forced to split up codefendants, even in cases where they otherwise could be prosecuted as part of the same conspiracy in the same legal system.

[snip]

It was FBI agents who traveled to Abdulmutallab’s home in Nigeria and persuaded family members to come to Detroit to assist them in getting him to talk. The situation would have been very different under Section 1032. Under the pending legislation, it would have been military personnel who were attempting to enlist prominent Nigerians to assist in their interrogation, and Abdulmutallab would have been classified as an enemy combatant and held in a military facility and, therefore, his family would not be inclined to cooperate. This is we have been told on the Intelligence Committee.

She appears to be invoking the way we’re getting people to talk: by threatening and persuading their families. In the case of Zazi, we got him to cooperate by charging his father. In the case of Abdulmutallab, we presumably made some guarantees about treatment if his family would persuade him to cooperate (maybe that’s why he stayed in a minimum security prison through the pre-trial period; I also wonder whether we threatened his prominent banker father).

Most charitably, this is akin to the problem Ali Soufan experienced with Salim Hamdan; Soufan was about to persuade Hamdan to cooperate in exchange for a shorter sentence when DOD dumped Hamdan in Gitmo where there was no option to trade cooperation for better treatment. As the case of Omar Khadr (who was not permitted to spend time with other detainees after he plead guilty) makes clear, in military custody, we lose control of the conditions of someone’s confinement as soon as they plead guilty, and so can’t use that as a tool to get people to cooperate.

But there’s something else DiFi is not saying, though is out there. With our creative interpretation of Miranda of late, we have interrogated Faisal Shahzad for two weeks without a lawyer; Manssor Arbabsiar for 12 days; and Ahmed Warsame for a month. We got Arbabsiar (and, I would bet, Warsame) to cooperate to ensnare others during the period of pre-arraignment arrest. Thus, for better or worse, civilian detention has actually been offering the government more ways to deploy detainees in intelligence operations than military detention.

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Congress and the Administration Agree: the Government Can Indefinitely Detain US Citizens

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I’ve got a long post mostly written on the debate between two awful positions on the detainee provisions in the Defense Authorization.

But let me make something clear. Both sides have already bought off on one principle: that the Administration can indefinitely detain US citizens.

Dianne Feinstein made this clear in her comments yesterday in the Senate (in which she was reading from a letter SJC and SSCI Democrats wrote).

Section 1031 needs to be reviewed to consider whether it is consistent with the September 18, 2001, authorization for use of military force, especially because it would authorize the indefinite detention of American citizens without charge or trial …..

And yet while in the rest of her speech, DiFi laid out problems she had with sections 1032 (mandating military detention in most cases), 1033 (requiring certification before DOD transfers detainees to a third country), and 1035 (giving DOD precedence in detainee decisions), she made not a peep objecting to (as opposed to raising cautions about) this ability to indefinitely detain American citizens.

In response to DiFi’s speech and the Administration’s veto threat, Carl Levin revealed that the Administration’s complaints about the language authorizing military detention don’t stem from any squeamishness about indefinitely detaining Americans. Indeed, as Levin made clear, the Administration asked that limitations on applying the section to Americans be taken out of the bill.

The committee accepted all of the Administration’s proposed changes to section 1031.  As the Administration has acknowledged, the provision does nothing more than codify existing law.  Indeed, as revised pursuant to Administration recommendations, the provision expressly “affirms” an authority that already exists.  The Supreme Court held in the Hamdi case that existing law authorizes the detention of American citizens under the law of war in the limited circumstances spelled out here, so this is nothing new.

The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

And given that SASC already voted to support this section by significant margins, it appears clear it has plenty of support.

So make no mistake. As I’ll show in my longer post, there are clear differences between the two sides (though I find both sides problematic). But whether or not the government can indefinitely detain Americans is not one of them.

Update: I took out “militarily,” as 1032 exempts automatic military detention for US citizens.

Obama Issues Veto Threat to Revised Detainee Language

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The Administration just released its position on the Defense Authorization, including a long passage on the new detainee language SASC devised the other day. That section reads:

Detainee Matters:  The Administration objects to and has serious legal and policy concerns about many of the detainee provisions in the bill.  In their current form, some of these provisions disrupt the Executive branch’s ability to enforce the law and impose unwise and unwarranted restrictions on the U.S. Government’s ability to aggressively combat international terrorism; other provisions inject legal uncertainty and ambiguity that may only complicate the military’s operations and detention practices. 

Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”).  The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa’ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals.  Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk.  After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country.  While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.

The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects.  This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals.  Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.  We have spent ten years since September 11, 2001, breaking down the walls between intelligence, military, and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult.  Specifically, the provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and circumstances of each case, which tool for incapacitating dangerous terrorists best serves our national security interests.  The waiver provision fails to address these concerns, particularly in time-sensitive operations in which law enforcement personnel have traditionally played the leading role.  These problems are all the more acute because the section defines the category of individuals who would be subject to mandatory military custody by substituting new and untested legislative criteria for the criteria the Executive and Judicial branches are currently using for detention under the AUMF in both habeas litigation and military operations.  Such confusion threatens our ability to act swiftly and decisively to capture, detain, and interrogate terrorism suspects, and could disrupt the collection of vital intelligence about threats to the American people. 

Rather than fix the fundamental defects of section 1032 or remove it entirely, as the Administration and the chairs of several congressional committees with jurisdiction over these matters have advocated, the revised text merely directs the President to develop procedures to ensure the myriad problems that would result from such a requirement do not come to fruition.  Requiring the President to devise such procedures concedes the substantial risks created by mandating military custody, without providing an adequate solution.  As a result, it is likely that implementing such procedures would inject significant confusion into counterterrorism operations. 

The certification and waiver, required by section 1033 before a detainee may be transferred from Guantánamo Bay to a foreign country, continue to hinder the Executive branch’s ability to exercise its military, national security, and foreign relations activities.  While these provisions may be intended to be somewhat less restrictive than the analogous provisions in current law, they continue to pose unnecessary obstacles, effectively blocking transfers that would advance our national security interests, and would, in certain circumstances, violate constitutional separation of powers principles.  The Executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.  Section 1034’s ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military’s ability to transfer its detainees as operational needs dictate. 

Section 1035 conflicts with the consensus-based interagency approach to detainee reviews required under Executive Order No. 13567, which establishes procedures to ensure that periodic review decisions are informed by the most comprehensive information and the considered views of all relevant agencies.  Section 1036, in addition to imposing onerous requirements, conflicts with procedures for detainee reviews in the field that have been developed based on many years of experience by military officers and the Department of Defense.   In short, the matters addressed in these provisions are already well regulated by existing procedures and have traditionally been left to the discretion of the Executive branch.  

Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field.  These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al-Qa’ida and its affiliates and adherents over two consecutive Administrations.  The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation’s counterterrorism professionals. 

Any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.

The response is a mixed bag. I’m grateful that the President thinks it’s a bad idea to have the military patrol our streets, particularly on days when a bunch of men who look and act like the military are cracking down on First Amendment activities.

But at the same time, one of the Administration’s complaints here is that Congress wants to impose a definition of detainee on them, when they’ve had OLC do so already in secret. Given that the latter is probably more expansive, it seems that may be why they want to keep it that way.

So it’s a stance against the increasing militarization of the courts. But a squishy self-serving one.

Senate Armed Service Committee Celebrates Agreement to Spend 32 Times More on Detainees

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As Josh Gerstein and Adam Serwer lay out, the Senate Armed Services Committee just passed a new version of the Defense Authorization mandating military detention for terrorists. The language on detention includes the following two paragraphs:

Except as provided in paragraph (4) [which is a national security exception], the Armed Forces of the United States shall hold a person described in paragraph (2) [an Al Qaeda related terrorist] who is captured in the course of hostilities authorized by the Authorization of the Use of Military Force (Public Law 107-40) in military custody pending disposition of the war.

[snip]

No amounts authorized to be appropriated or otherwise made available to the Department of Defense for fiscal year 2012 may be used to construct or modify any facility in the United States, its territories, or possessions to house any individual detained at Guantanamo for the purposes of detention or imprisonment in the custody or under the control of the Department of Defense unless authorized by Congress.

In other words, unless the government has a really good reason, they have to put accused terrorists caught during the AUMF-authorized war in military custody. And DOD can’t build a prison in the US specifically to house those detainees.

That makes it much more likely we’re going to put terrorist detainees at Gitmo, where as Carol Rosenberg recently reported, we spend 32 times as much holding prisoners as we spend in civilian prisons in the United States.

The Pentagon detention center that started out in January 2002 as a collection of crude open-air cells guarded by Marines in a muddy tent city is today arguably the most expensive prison on earth, costing taxpayers $800,000 annually for each of the 171 captives by Obama administration reckoning.

That’s more than 30 times the cost of keeping a captive on U.S. soil.

It’s still funded as an open-ended battlefield necessity, although the last prisoner arrived in March 2008. But it functions more like a gated community in an American suburb than a forward-operating base in one of Afghanistan’s violent provinces.

[snip]

It’s a slow-motion Berlin Airlift — that’s been going on for 10 years,” says retired Army Brig. Gen. Greg Zanetti, a West Point graduate who in 2008 was deputy commander at the detention center.

Alternately, we could put them in Bagram, the population of which has been ballooning under Obama’s Administration.

Today, there are more than 3,000 detainees at Bagram, or five times the number (around 600) when President Barack Obama took office in January 2009. There are currently 18 times as many detainees at Bagram than at the U.S. military prison at the Guantanamo Bay, Cuba, naval base, whose prisoner population has dwindled from a peak of 780 to 170.

[snip]

DOD is now reviewing bids from contractors to expand the facility to house up to 5,500 detainees. The project is expected to cost another $25 to $100 million when it is completed by the end of 2012.

It’s unclear what Bagram costs, per detainee.

But we do know it costs almost $1.2 million a year to keep a single troop in Afghanistan, for some of the same reasons it costs so much to keep Gitmo running, supply costs. The average federal prison guard in the US is paid about $55,000 (so figure $71,500 with benefits). Just the cost of the prison guard alone makes Bagram 16 times more expensive than a federal prison in the US, and that’s before you count the $60 million we’ve already spent on expanding the prison at Bagram and the $25 to $100 million we’re already planning on spending. And all those costs are based on a logistics chain through Pakistan, which is getting more and more questionable these day.

Meanwhile, the scary Underwear Bomber, Umar Farouk Abdulmutallab spent 21 months of pre-trial detention in a low security prison in MI. Not only did no one get hurt with him in low security custody in the US, but no one nationally even noticed!

This is ridiculous. The Republican insistence that we use military law when civilian law is better and cheaper is going to bankrupt this country. And it’s not going to keep us any safer.

Pakistani Bounty Claims: Adnan Farhan Abd Al Latif and TD-314/00684-02

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Benjamin Wittes has been complaining that no one besides Lawfare’s writers is looking closely at the DC Circuit decision in Latif.

Why has there been virtually no press coverage of the Latif decision? Other than this article on CNN’s web page, which actually ignores the aspect of the case that makes it jurisprudentially important, a search on Google News reveals none (other than Lawfare stuff).

Memo to the press: This case is important. It is far more likely, in my judgment, to provoke a cert grant than any habeas case the D.C. Circuit has decided to date. If and when it does so, it will present a novel and deeply important question to the Supreme Court: Whether the courts in reviewing these habeas cases should start with a presumption of the validity of government intelligence.

So I decided to take a closer look.

At issue is a Yemeni detainee, Adnan Farhan Abd Al Latif, picked up in Pakistan in December 2001 and alleged to have trained with al Qaeda. Judge Henry Kennedy granted Latif’s habeas petition last summer, largely because he found the government’s single most important piece of evidence–an intelligence report of some kind (which I’ll call the Report)–unreliable. The DC Circuit–with Judges Janice Rogers Brown and Karen Henderson in the majority and David Tatel in dissent–remanded the case on the issue of the detainee’s credibility. But on the more important issue–whether Kennedy was correct in dismissing the Report–they overturned the district decision. Here’s Wittes’ description of the evidentiary issue.

I think the document in question is a report with the serial number TD-314/00684-02 that I take to be the CIA’s report of Pakistani claims about a significant number of detainees they turned over to the US in December 2001–basically the intake report for a chunk of detainees, possibly (given the time and place) turned over for bounty.

Here’s my logic: Latif’s Gitmo file makes the same claim the government made in his habeas case: that Latif trained and then fought with al-Qaeda. But that entire report cites just one source–TD-314/00684-02–to make that claim. It cites TD-314/00684-02 to support the following assertions:

While detainee was with the Taliban, he encountered Abu Hudayfa the Kuwaiti; Abu Hafs the Saudi, and Abu Bakr from the United Arab Emirates or Bahrain. Detainee claimed he saw a lot of people killed during the bombings, but never fired a shot. Detainee then traveled to Jalalabad, AF, and crossed into Pakistan with fleeing Arabs, guided by Taqi Allah.

[snip]

Detainee’s recruiter is assessed to be senior al-Qaida facilitator Ibrahim Muhammad Abd al-Razzaq Baalawi, aka (Abu Khulud). Detainee admitted Ibrahim Aliwee convinced detainee to travel to Afghanistan for jihad and admitted staying at Abu Khulud’s residence for a short period in Kandahar.

[snip]

Detainee admitted receiving weapons training from the Taliban and then fighting in support of the Taliban on the front lines.

[snip]

Detainee admitted after training he was sent to the front lines north of Kabul. Detainee remained there until the Taliban retreated and Kabul fell to the Northern Alliance.

For the remaining assertions regarding Latif’s ties to Al Qaeda, the Gitmo report includes no citation.

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Abd al Rahim al-Nashiri Delays His Own Trial until after Presidential Election

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As Muna Shikaki and Carol Rosenberg just tweeted, Abd al Rahim al-Nashiri requested–and the military judge granted–that his trial not start until November 9, 2012. Which would put it several days after the Presidential election.

The logic for this decision seems clear to me. First, the government has made it clear al-Nashiri won’t be released if he is acquitted in any case. Add in the fact that the punishment jail is, at least for some prisoners, worse than the detention jail at Gitmo, and postponing the trial might actually improve al-Nashiri’s conditions until such time as the government convicts him (even assuming the military court doesn’t decide to execute him). And if the government does decide to go ahead with other case, rules on things like hearsay may have evolved.

I also suspect the delay will mess with Obama Administration plans for the roll-out of the military commissions. They had picked al-Nashiri’s case to be the first. Now, they’ll either have to delay all the other trials, including that of the 9/11 plotters, or they’ll have to test out their new system on detainees whose cases might be even more legally difficult than al-Nashiri’s. Furthermore, the delay will heighten Obama’s failure to make good on his promise to close Gitmo.

Frankly, the people who get most screwed by this move are the families of USS Cole victims. They’ve been waiting for a decade already for justice; this puts off that time for another year.

But that’s part of the problem with the Gitmo Show Trials. The government claims, simultaneously, that these trials deliver some kind of justice but also that it can hold someone who has been acquitted, which takes away any incentive for detainees to press for a speedy trial. And since there’s not a law allowing the government to impose a speedy trial–but rather a protection giving a prisoner a speedy trial unless he waives it–it’ll be interesting to see whether the Administration pushed back against this (the Prosecutor has apparently already accepted it).

Update: As bmaz points out, al-Nashiri is also suing the Convening Authority for trying him in a military court for alleged crimes that did not happen during a war.

The only question this Court must answer is a pure question of law. Did the President or Congress choose to invoke their war powers and apply the law of war in Yemen at any time relevant to the allegations against Plaintiff? The answer is no.

Plaintiff therefore asks this Court to enter a judgment declaring that the Defendant has exceeded his authority by issuing military commission orders for alleged crimes that did not occur in the context of an armed conflict subject to the laws of war.

The delay will also allow this suit to move forward.

Gitmo’s Commanders and My 4-Year Old Niece Play Games

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I enjoyed watching my 4-year old niece wallop Mr. EW in a game of “Matches” last week. She kept making up new rules every turn, ensuring Mr. EW didn’t know precisely what the rules of the game were.

It provided me an excellent opportunity to teach her what the word “shrewd” means–“A special kind of smart.”

I’m less amused by this: Gitmo’s second new set of Military Commission rules in as many years. Last year, they released the 2010 Manual for Military Commissions hours before Omar Khadr’s trial started. This year, they’re introducing the 2011 Regulation for Military trial days before the Abd al Rahim al-Nashiri death penalty case starts. But make no mistake, this “Regulation” amends last year’s Manual. As Carol Rosenberg reports:

The Defense Department released the document two days ahead of the arraignment of a Saudi-born captive charged with murder and terrorism for al Qaida’s suicide bombing of the USS Cole off Yemen.

[snip]

Almost simultaneously, the document appeared on the war court’s new nearly $500,000 website, numbering 202 pages and including some changes to procedures. For example, each case’s military judge now has the authority to approve the costs of a so-called “learned counsel,” typically a civilian defense attorney with extensive experience defending capital murder cases. It also outlined procedures through which observers could protest, through a chief clerk, a judge’s decision to declare an aspect of a trial as “protected.”

[snip]

The Pentagon’s new Deputy Secretary of Defense, Ashton B. Carter, signed the new document on Sunday. He said in a foreword that it provided guidance at times that differed from the way the U.S. military court martials its own troops. “That difference is necessitated by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need.”

Legal experts were poring over the document Monday night.

Meantime, Human Rights Watch attorney Andrea Prasow called the timing troubling.

“The very idea that new rules could be issued moments before someone is arraigned to face the death penalty offends any notion of due process,” said Prasow, who has worked on war court defense cases. “The stamp of illegitimacy has been firmly affixed to Nashiri’s case.”

To make it all the more pathetic, check out the image at the top of the page.

Nothing

That’s the top corner of these brand new rules. From DOD. The biggest bureaucracy in the world.

With no headers.

How the hell can DOD release new rules governing a capital case without even bothering to include headers or footers (the document has simple centered page numbers) to indicate these are actually the rules issued by the biggest bureaucracy in the world?

It’s like some sergeant somewhere who doesn’t know how to operate Microsoft Word was tweaking these until an hour ago.

Seriously, I haven’t even gotten into the contents of these new rules yet. But they look like a–very long–high school project, not the considered rules of  court of law.

Ron Paul Shits in the Saint Ronnie Punch Bowl

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[youtube]KuC4iYpNzT4[/youtube]

At around 9:30 last night, I tweeted something I tweet everytime I watch an episode of the GOP Presidential Candidate Survivor show:

Once again, we’ve gotten to that point of the GOP Debate I hate where Ron Paul starts to sound sane.

Then, about 10 minutes later, Paul said this:

Are you all willing to condemn Ronald Reagan, for exchanging weapons for hostages out of Iran? We all know that was done.

Thunk.

And then Santorum, proving he’s the stupidest of a really dumb presidential field, tried to answer.

Santorum: Iran was a sovereign country, not a terrorist organization, number one.

Paul: Oh they’re our good friends now.

Santorum: They’re not our good friends but they’re a sovereign country. Just like the Palestinian Authority is not the good friends of Israel.

So in one fell swoop, Santorum effectively sanctioned anything Iran did–such as plotting to kill a diplomat in our country–because they’re a sovereign country, misstated that the PA, rather than Hamas, negotiated the prisoner exchange, and suggested that the PA is a sovereign country.

And then Paul went on to note that the detainees at Gitmo are “all suspects, you haven’t convicted them of anything,” to boos from the crowd.

I’ll admit it. Ron Paul was, racism and corporatism notwithstanding, utterly sane in these few minutes. In fact, it’s been a long time since I’ve seen a politician lay bare the stupidity of our political class like this.

(FWIW, Newt went on to sheepishly confirm that it was true, to which Paul responded with the most impish grin.)

GITMO: The Same Old New Opaque Transparency

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Last week we wondered what the appointment of the “new and improved” Gitmo Commander, Army Brig. Gen. Mark Martins, would mean for the military commission system and upcoming big terror trials for the likes of al-Nashiri and KSM, and what it meant for the press coverage. Well, predictably, it appears to be rendering the same old same old.

Carol Rosenberg brings us the latest:

The website was unveiled last month to rehabilitate the reputation of the Guantanamo war court. So far it’s a hodgepodge of secrecy _ and still a work in progress, according to Defense Department officials, while clerks, lawyers and the intelligence community haggle behind the scenes over what the public can see.

It’s been more than a year in the making and the Pentagon has yet to reveal its cost. Every screen bears the slogan “fairness, transparency, justice.”

But a review of the content has found that it pointedly leaves out some of the key controversies that have bedeviled the war crimes trials, from allegations of torture to a comparison of the Seminole Indian tribe to al Qaida.

Disappointing, to say the least, but par for the course for the Gitmo experience. And, let’s be clear, it is not that they just haven’t had time to “work the kinks out” as this project has been underway for well over a year. And there is fantastic experience to draw from in the way of the Federal Court system’s PACER system. There are simply not that many detainees in total, much less defendants, to be entered into the system. The still dysfunctional and unusable system is the result of indifference, if not outright intent. As there will be no trials until next year at the earliest, maybe the situation can be remedied in time; but that will require the actual intent to do so. And that seems in short supply.

What I suspected would be the case has now been confirmed, namely that the “broadcast” of the commission trials will be a restricted joke. Again from Carol and the Miami Herald:

Pohl, the chief military commissions judge, assigned himself to the case, according to Defense Department sources, and chose the late October date to give the government time to finish a close-circuit feed site at Fort Meade, Md., outside Washington, D.C.

Up to 100 reporters could watch the Guantánamo arraignment on a 40-second delay under the new Fort Meade hook-up being inaugurated with the Cole trial to ease demand on a crude media tent city at the remote Navy base in southeast Cuba, which can accommodate 60 journalists.

There also will reportedly be a feed for a select few of the victims’ families. But zilch for the broader press, and nothing for the public. Just as with the suggested benefits and propriety of transparency on the targeting of American citizens for assassination, it would place the United States on a higher moral plane and demonstrate resolve and ethics to demonstrate to its citizens, and those of the world, that it is indeed providing a fair and just trial process for the detainees.

Necessary steps can easily enough shield that which must be, there is no reason not to show what this country stands for. Open and public justice is the best justice. Unless, that is, what we really stand for is not particularly just.

Is DOD Trying to Bypass the Gitmo Press Corps (AKA Carol Rosenberg)?

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Yesterday, we had an interesting discussion about whether efforts by Gitmo Chief Prosecutor Mark Martins to expand viewing of Gitmo military commissions was about cover-up or transparency. I suggested that it might be something in-between–an effort to bypass members of the existing Gitmo press corps, who know a lot more about Gitmo and detainee histories than those of us following along at home and therefore can provide context the government finds inconvenient. But at the same time, bypassing the Gitmo press corps will limit the government’s ability to gag reporters as they did when Rosenberg and others reported on Joshua Claus. And expanding access did have other real benefits, like letting victims follow the trials without onerous travel to Gitmo.

That is, I suggested it was largely a different strategy for controlling information.

So I was rather interested to see this passage in Carol Rosenberg’s report on a shiny new–but substantively incomplete–website Gitmo had set up.

The new website appeared on Wednesday morning without an announcement from the Secretary of Defense’s Public Affairs office, which has handled military commissions releases for the past six years. Instead, a former Bush era Defense Department deputy responsible for detention issues broke the news on a Heritage Foundation blog. Cully Stimson, himself a Navy reserve judge, said the new site heralded a new ear of transparency in the at-times secretive court proceedings.

It was the second revelation from the Obama Defense Department to be revealed in conservative circles. Sunday, The Weekly Standard magazine included a profile of the new Obama era War Crimes Prosecutor, Army Brig. Gen Mark Martins, pledging to beam closed-circuit broadcasts of remote Guantánamo proceedings to both victims and media viewing centers on U.S. soil.

Not only won’t the Public Affairs office tell Rosenberg any useful news about the upcoming Abd al Rahim al-Nashiri trial (nor had they posted documents his lawyers recently filed; though she did just tweet that al-Nashiri’s trial is on), but what news they were released was going through decidedly conservative channels: the Weekly Standard and the Heritage Foundation.

And surprise surprise, those conservative channels deem this shiny new technology that doesn’t give us a full picture “transparency.”

Is DOD suggesting that to conservatives, a website looks like information whether or not there’s anything in that information?

Whether or not this is the plan, to bypass the people who actually know something about this place and these people by wowing people who will be impressed by empty bells and whistles, it is telling that Gitmo is going to conservative sites. If your idea of “transparency” is only to show the kind of information that conservatives will like, then it’s pretty clear you’re hiding something.