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Even the Crusades Weren’t “Forever”

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I’m going to assume John Cole was asking sincerely when he posted this request.

Can someone explain this reaction from Emptywheel:

After prompting Kagan to deliver the standard justification for detaining enemy combatants during war and rewarding her with a condescending compliment, Lindsey starts by getting Kagan to agree that the war on terror will never end.

Lindsey: [Speaking of her rote recitation of the basis for indefinite detention] That’s a good summary. The problem with this war is that there will never be a definable end to hostilities, will there?

Kagan: [Nodding] That is exactly the problem, Senator.

 

What a breath-taking exchange! Rather than challenge Lindsey on his slippery definition (referring to “hostilities” rather than war), rather than challenging him on the premise, Kagan simply nods in agreement. One minority party Senator and the Solicitor General sat in a hearing today and decided between them the state of hostilities under which the Executive Branch has assumed war-like powers to fight terrorism will never end.

The police state will continue forever.

Maybe I am misinterpreting these remarks, and you have to watch the video, but didn’t Kagan just say it is a bad thing that we are currently engaged in never-ending hostilities? Don’t we agree that is a bad thing? Isn’t Kagan right? What should she have said?

The question of whether the GWOT will have a “definable end” that justifies indefinite detention means two things in practical terms. First, how long will a state of war exist that justifies our holding of 48 Gitmo detainees who can’t otherwise be prosecuted. And second, how long will a state of war exist that justifies holding people at Bagram, including bringing them to Afghanistan after being captured in other locations, for indefinite detention.

48 Gitmo detainees

So how long will we have a legal claim–both within US and international law–to justify holding the 48 detainees at Gitmo that we currently can’t charge but deem too dangerous to release?

As I pointed out in this post, the Gitmo Review Task Force Report provided the following reasons why we can’t charge these men:

  • At least some of these detainees can’t be charged because evidence against them is tainted (this probably includes people like Mohammed al-Qahtani and Abu Zubaydah).
  • For others, we only have evidence they were members of al-Qaeda, and not that they engaged in any actual terrorism against the United States, even including actions taken after October 2001 which might be legally considered self-defense but which in some cases (such as with Omar Khadr) we’ve chosen to label as terrorism. If these people had engaged in the same activities for which we’ve got evidence after October 2001–and especially after December 2004–we might be able to charge them, but they haven’t.
  • For a number of these men, we had evidence that we could have used to charge them with material support for terrorism but held them so long without charges that the statute of limitations has expired.
  • For some of these men, we purportedly could have charged them with material support, but did not because of “sentencing considerations,” which I take to mean we believed that the 15 year maximum sentence was too short, and so have not charged them (note, the Obama administration has not gone to Congress and asked for a change to this sentence).

Given that we can’t try these men, we are instead justifying holding them under the law of war. As Kagan explained,

Under the traditional law of war, it is permissible to hold an enemy combatant until the end of hostilities and the idea behind that is that the enemy combatant not be enabled to return to the battlefield.

And, as she made explicit elsewhere in this exchange and repeatedly during her hearings, our ability to invoke the law of war depends on our ability to invoke the AUMF passed after 9/11, which states,

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. [my emphasis]

We can only legally use this justification against people who either by themselves aided 9/11, or were members of an organization or nation that aided 9/11.

Now, we’re already pushing this, as the government’s lousy 14-36 record on habeas cases makes plain. For example, the Gitmo Task Force claimed the ability to hold people who simply have a “history of associations with extremist activity” without requiring that they have actually either membership in al Qaeda or direct participation in 9/11.

But to envision that the hostilities authorized by the AUMF will not end, you have to envision both that the  al Qaeda and affiliates that existed at the time of 9/11 will exist indefinitely, and/or that we will remain at war against the Taliban forever.  In some cases, this is obviously not going to be the case. Hamid Karzai is already talking about bringing Gulbuddin Hekmatyar into government. If he does so, will we still have justification to hold the members of Hezb-e-Islami Gulbuddin who are among the 48? Discussions about a deal with the Taliban are less optimistic, but if we really do withdraw in 2011, will we still have the basis to hold the Taliban members who are among the 48? If we kill or capture Osama bin Laden and Ayman al-Zawahiri, will we still claim holding someone who served as OBL’s guard in 2001 is too dangerous to release?

But even the al Qaeda and affiliates described in the AUMF seem to have a definite endpoint. After OBL and Zawahiri are gone and we’ve managed to kill our 217th “al Qaeda Number 3” will we still be able to say that the al Qaeda that hit us on 9/11 still exists? At some point, judges are going to consider the al Qaeda copycat groups that pop up in various locales to be too tenuously connected to the al Qaeda of 9/11 to be meaningfully the same group anymore.

Read more →

Elena Kagan and Lindsey Graham on the Global Battlefield, the Sequel

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This exchange is one of the most telling from the entire Kagan hearing today (note; we’ve edited this exchange for length; here’s the full exchange; also, while you’re watching, keep an eye on the body language of the bearded man sitting behind Kagan, White House Counsel Bob Bauer).

It’s striking, first of all, because Lindsey Graham plays the role of the cross-examiner and his delivery largely overwhelms Kagan. As they go on, Kagan manages to reclaim her ground–on the issue of whether or not the entire world is the battlefield of the war on terror. But even there, the difference in her various answers suggests troubling things about her stance on habeas.

After prompting Kagan to deliver the standard justification for detaining enemy combatants during war and rewarding her with a condescending compliment, Lindsey starts by getting Kagan to agree that the war on terror will never end.

Lindsey: [Speaking of her rote recitation of the basis for indefinite detention] That’s a good summary. The problem with this war is that there will never be a definable end to hostilities, will there?

Kagan: [Nodding] That is exactly the problem, Senator.

What a breath-taking exchange! Rather than challenge Lindsey on his slippery definition (referring to “hostilities” rather than war), rather than challenging him on the premise, Kagan simply nods in agreement. One minority party Senator and the Solicitor General sat in a hearing today and decided between them the state of hostilities under which the Executive Branch has assumed war-like powers to fight terrorism will never end.

The police state will continue forever.

Perhaps sensing the danger, Kagan notes that the Hamdi decision envisions such an indefinite war might require a different approach to detention, perhaps a review to ensure a detainee’s continuing dangerousness. This thrusts Kagan not into the realm of legal review, but the policy disputes between the White House and Lindsey (again, the watchful eye of Bob Bauer here is worth noting).

Our excerpt jumps here (after Lindsey makes his pitch for just such a program).

Lindsey comes back by getting Kagan to personally endorse the stance she embraced in her Solicitor General role, arguing against habeas rights for Bagram detainees.

Lindsey: You argued against expanding habeas rights to Bagram detainees held in Afghanistan, is that correct?

Kagan: I did, Senator Graham.

Lindsey: As a matter of fact, you won.

Kagan: [pushing back with apparent discomfort] Uh, in the DC Circuit–

Lindsey: [interrupting] And you probably won’t be able to hear that case if it comes to the Supreme Court, will you?

Kagan: Well, that’s correct, and the reason–

Lindsey: [interrupting again] Well, that’s good cause then we can talk openly about it.

Kagan: [laughing] Uh, if I could just say, the Solicitor General only signs her name to briefs in the Supreme Court, authorizes appeal, but does not sign Appellate briefs, but I determined that I should be the Counsel of Record on that brief because I felt that the United States’ interests were so strong in that case based on what the Department of Defense told our office.

Lindsey: Right. I want every conservative legal scholar and commentator to know that you did an excellent job in my view of representing the United States in that case.

Lindsey then gets her to reiterate that she signed that brief because of the seriousness of the issues for the government. He interrupts again:

Lindsey: Well, let me read a quote: “The Federal Courts should not become the vehicle by which the Executive is forced to choose between two intolerable options: submitting to intrusive and harmful discovery, or releasing a dangerous detainee.” Do you stand by that statement?

Kagan: Senator Graham, can I ask whether that statement comes from that brief?

Lindsey: Yes it does.

Kagan: No, I uh, that statement is my best understanding of the very significant interests of the United States government in that case, which we tried forcefully to present to the Court and as you said before, the DC Circuit–a very mixed panel of the DC Circuit–upheld our argument.

Lindsey: Right. You also said “The Courts of the United States have never entertained habeas lawsuits filed by enemy forces detained in war zones. If Courts are ever to take that radical step, they should do so only with explicit blessing by statute.” You stand by that?

Kagan: Anything that is in that brief I stand by as the appropriate position of the United States government.

Lindsey: [while she is speaking] Fair enough.

Throughout this exchange, Lindsey basically had Kagan cornered, not wanting to disavow a document she had signed in unusual circumstances, but seemingly recognizing the risk of adopting these harsh statements as her own. Read more →

DiFi Will Cave on Intelligence Reform

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As I’ve noted before (here and here), confirmation hearings for James Clapper have gotten bogged down in a dispute between the Administration and both houses of Congress over whether Congress should have the tools to exercise real oversight of intelligence functions.

Right now, Nancy Pelosi is holding out for both extended notification to the Intelligence Committees and GAO audit power over intelligence community functions. But, in spite of earlier claims that she would not hold a confirmation hearing for Clapper until the intelligence authorization passed, DiFi now appears to be softening that stance. She told Chris Wallace yesterday that she will move forward with confirmation hearings provided that Obama chat to Pelosi about her intelligence related concerns (starting at 14:07).

Chris Wallace: One of your other hats that you wear is Chairman of the Senate Intelligence Committee–Director of National Intelligence Blair has been fired. The Acting Director Gompert is resigning. Meanwhile, House and Senate Democrats are deadlocked over the intel reform bill and the whole question of Congressional oversight of spy agencies. How quickly are you going to get this resolved and how quickly are you going to confirm so that we have a Director of National intelligence?

Feinstein: Well the process has begun, he has received the questions. On Friday–

Wallace: This is General Clapper?

Feinstein:  Yes, General Clapper. Friday I learned the questions have been answered. They were at the White House. We would expect to receive them this week. We can move. I have requested that the President call the Speaker and try to move our Intelligence bill. the reason the Speaker has a problem with it is because we removed two things which the White House found to be veto-able. One was an extension of notification on certain very sensitive matters to all Members rather than the Gang of Eight. The second was Government Accountability Office, we call it the GAO, oversight which was anathema to the White House. We took that out. The bill passed the Senate, our committee, and the Senate unanimously. We have conferenced it, we’ve pre-conferenced it, with the House Committee. We believe we are in agreement, we’re ready to move. If the Speaker will allow them to go to conference then we can move the bill–

Chris Wallace: But very quickly, will you hold up confirmation hearings for Clapper until you get resolution on the intel report?

Feinstein: Well, I have asked that the President would please talk to the Speaker. If he does that, I will move ahead.

Now, to be fair, Obama’s threatening a recess appointment for Clapper in any case. And–as Wallace pointed out–the resignation of  Acting Director of National Intelligence David Gompert and the planned retirement of his possible replacement has ratcheted up pressure to get a permanent replacement in (I’ll point out once again that there seems to be a double standard between the treatment of ODNI and OLC). So the choice is likely between a recess appointment with no intelligence reform and a confirmation hearing with intelligence reform (Clapper’s approval is not assured).

But Pelosi’s making a stand to fix two of the problems that the Bush Administration exploited–and which the Obama Administration, particularly given their veto threat, may plan to exploit as well. DiFi appears to be saying that the principle of real Congressional oversight is worth nothing more than a conversation with the President.

Meet Deputy Attorney General Robert Gibbs

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I guess, in addition to President Rahm Emanuel and Attorney General Lindsey Graham, Deputy Attorney General Robert Gibbs sees the wisdom in putting aside rule of law for political expediency.

Some policy advisers have wondered why the administration’s flack is so often in attendance, but insiders fluent in the administration’s power dynamics know Obama values his views. According to one administration official, who would not be quoted speaking about internal White House discussions, Gibbs late last year pointed out the political perils of letting the Justice Department try Khalid Sheikh Mohammed in a civilian court and has urged the president to ignore Wall Street critics who argue Obama has adopted too populist a tone when speaking out against executive bonuses. [my emphasis]

You know, when Karl Rove unacceptably took over DOJ, he did so to support world domination. He had a plan.

But apparently we’ve decided to shred the Constitution for no other reason than a press flack thinks it would be smart.

The Chuck and Huck Show

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Say, have you noticed how often Chuck Schumer has been nuzzling up to Lindsey “Huckleberry” Graham lately?

There’s their plan on immigration reform which, among other things, calls for a national biometric ID card.

And there’s a bill to pressure China on currency manipulation.

I raise this for two reasons. First, Huck’s efforts to institutionalize indefinite detention thus far lack a real legislative champion. At the same time, Chuck’s flip-flop on 9/11 trials in NYC was one of the key reasons that plan failed. So I worry that Chuck will be the guy who gives Huck’s Constitution shredding a liberal face (and why not, if you’re already instituting national ID cards).

Of course, this is all happening against the background of a potential Majority Leader fight next year if Harry Reid loses his re-election bid. Chuck seems to be prepping a run on bipartisan effectiveness. With an eye at least partially on the Majority Leader run, after all, Chuck negotiated a deal with Orrin Hatch that ended up being the only jobs bill passed this year (though of course it won’t really do squat for jobs because it is far too small, and it may well endanger social security in the long run.

I have long thought Chuck would make a badly flawed (because Wall Street owns him, and because his moral compass blows with the wind) but effective (because a significant proportion of Senators owe their seat to him, and because he has the ability to throw big fundraising dollars to Senators) Majority Leader. Moreover, no matter whether I like it or not, I do think he’s the most likely person to replace Reid, if it comes to that.

Which is why I think it all the more important to start cataloging the way that Chuck’s efforts to rack up a quick record of bipartisan success compromise on bedrock Democratic principles.

You know … things like the Constitution.

The Anonymous Coward Calling Holder Weak

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Time has another one of those Rahm v. Holder profiles. It is notable from the slew of other ones for two reasons.

The anonymous source calling Holder a coward

First, the story features several main sources for this story: Lindsey Graham, speaking on the record.

Holder, issuing no-nonsense statements like this, on the record:

And it’s Holder’s experience in the law-enforcement system that makes him such a strong believer in its ability to put terrorists like KSM away forever. “We should have great faith in the resilience of our systems, the resilience of our people, the toughness that has always separated Americans from other peoples in this world, and that’s what’s made this country great,” he says.

And at least one anonymous White House aide (AKA Rahm).

What I especially love about about that anonymous White House aide is that the guy who is too chicken to speak on the record seems to be parroting GOP attacks calling Holder weak on terror.

Republicans, meanwhile, were busy turning Holder into the poster child for White House weakness on terrorism, and some polls showed that most Americans agreed with them. “The only two people who still believe in civilian trials,” says one of the meeting’s attendees, “are Holder and the President.”

Brave anonymous White House aide!! Singlehandedly fighting terrorism by hiding behind anonymity!!

Lindsey’s July (?) meeting with Holder and December meeting with Obama

The article also provides a useful timeline for two meetings Lindsey had with the Administration, first an July (or August) meeting with Holder.

By July, Obama had asked Holder to decide whether it was feasible to prosecute KSM in a civilian court. Holder chewed on that question for weeks. Meanwhile, Obama’s chief of staff, Rahm Emanuel, who opposed civilian trials, asked Holder to meet with Republican Senator Lindsey Graham of South Carolina, a key centrist vote on matters of counterterrorism. Graham told Holder he strongly opposed civilian trials for the alleged 9/11 conspirators and that they could affect his support for closing Guantánamo Bay prison, a key Obama goal.

And then a December meeting with Obama.

When Obama met with Graham in early December, the Senator laid out his case against civilian trials. But the President said he thought Holder had the better side of the argument. “I just agreed to disagree with the President on that issue,” Graham told TIME.

Those meetings are interesting both for the way they match up to the timeline of the attacks on Holder and Greg Craig (which started in earnest around the time of the first meeting, and culminated in the December meeting after Craig had been ousted.

I’d really love to know the logic for the Obama meeting. After all, this was before the Christmas day bombing, when the Administration was still basking in the success of the foiled Zazi plot. And it came at a time when the Democrats had 60 votes in the Senate.

So why meeting with Lindsey?

It sure suggests the push against civilian trials is more about politics than efficacy.

But we knew that.

In 2007, Rahm Opposed Indefinite Detention

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On June 29, 2007, Congressman Norm Dicks sent George Bush an eloquent letter urging him to close Gitmo. It said, among other things,

Since the time that captured “enemy combatants” were first brought to Guantanamo Bay in 2002, the detainment facility has undermined America’s image as the model of justice and protector of human rights around the world. Holding prisoners for an indefinite period of time, without charging them with a crime goes against our values, ideals and principles as a nation governed by the rule of law. Further, Guantanamo Bay has become a liability in the broader global war on terror, as allegations of torture, the indefinite detention of innocent men, and international objections to the treatment of enemy combatants has hurt our credibility as the beacon for freedom and justice. Its continued operation also threatens the safety of U.S. citizens and military personnel detained abroad.

[snip]

The closure of the detention facilities at Guantanamo Bay would represent a positive first step toward restoring our international reputation as the leader of democracy and individual rights. [my emphasis]

Guess whose signature appears right at the top of the long list of those who signed this letter?

Then-Congressman Rahm Emanuel.

I wonder what changed between the time when Rahm recognized how unacceptable indefinite detention is and his willingness now, in cahoots with Lindsey Graham, to set up a system of indefinite detention? Heck, this Rahm has even called closing Gitmo a distraction.

Would I be foolish to ask for that other Rahm back?

Lindsey Graham: For McCarthyism before He Was Against It

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Zachary Roth raises a really important point about Lindsey Graham (aka Rahm’s Attorney General). Though in recent days Graham has come out against Liz Cheney’s McCarthyism, he was one of the Republicans who started this whole witch hunt last November by signing a letter (authored by Chuck Grassley) asking for a details on those who had defended detainees in the past:

To better understand the scope of these apparent conflicts of interest, Senator Grassley asked for the following information:(1) The names of political appointees in the Department who represented detainees, worked for organizations advocating on behalf of detainees, or worked for organizations advocating on terrorism or detainee policy; (2) The cases or projects that these appointees worked on with respect to detainees prior to joining the Justice Department; (3) The cases or projects relating to detainees that they have worked on since joining the Justice Department; and (4) A list of all political appointees who have been instructed to, or have voluntarily recused themselves from working on specific detainee cases, projects, or matters pending before the courts or at the Justice Department.

Unfortunately, your response to Senator Grassley’s request was less than encouraging as you repeatedly stated you would merely “consider” the request. It is imperative that the Committee have this information so we can assure the American people that the Department is in fact formulating terrorism and detainee policy without bias or preconceived beliefs.

In addition to the information requested at the hearing, we ask that you also provide responses to the following related questions:

(1) Have any ethics waivers been granted to individuals working on terrorism or detainee issues pursuant to President Obama’s Executive Order dated January 21, 2009, titled “Ethical Considerations for Executive Branch Employees?” (2) What are the Department’s criteria for recusing an individual who previously lobbied on detainee issues, represented specific detainees, worked on terrorism or detainee policy for advocacy groups, or formulated terrorism or detainee policy? (3) What is the scope of recusal for each of the political appointees who have recused themselves from working on specific detainee cases, projects, or matters? (e.g. is an individual who previously represented a detainee recused only from matters related to that individual or from other detainees?) Please provide a detailed listing of the scope of each recusal.

Now, Zach says Graham’s office has not yet responded to his inquiry for clarification on this issue.

But Zach, like me, seems to think this is a significant issue given that Graham is apparently being treated like a good faith partner on efforts to close Gitmo. Are we really going to compromise on Constitutional issues with Graham, when in six months time he could be back scaremongering with the McCarthyites again?

Rahm’s Mouthpiece: White House to Cave on KSM Trial

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Rahm’s mouthpiece is reporting that the White House is all set to cave on civilian trials for Khalid Sheikh Mohammed.

President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.’s plan to try him in civilian court in New York City.

The president’s advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some terrorism suspects in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

If Obama accepts the likely recommendation of his advisers, the White House may be able to secure from Congress the funding and legal authority it needs to close the U.S. military prison at Guantanamo Bay, Cuba, and replace it with a facility within the United States. The administration has failed to meet a self-imposed one-year deadline to close Guantanamo.

Now, since this is coming from the WaPo, the newspaper that has been all-Rahm all the time in the last week, I’m curious whether this discussion of Obama’s advisors’ readiness to recommend that Obama cave on civilian trials is the same thing as Obama himself being prepared to cave on civilian trials. In other words, this might just be Rahm presenting this as a fait accompli to make his job of persuading Obama easier. He did it once before with the NYT, after which the claims were quickly walked back.

But for the moment, let’s pretend this story reflects actual reality, and not Rahm’s reality.

If so, this is a colossal mistake on the White House’s part.

That’s because the Military Commissions are going to have big problems that civilian trials are not going to have. And if Obama caves on this point without being forced to do so by Lindsey Graham wearing a Speedo and a semi-automatic, then Obama, not Lindsey, will own the shortcomings of the MCs. If MCs fail to give KSM either a quick guilty verdict or a real prison term, then Obama, not Lindsey, will be responsible.

But Obama seems to have given up advocating for the most efficacious solution to any problem, it seems.

The Latest Rahmlinology

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I wonder how Greg Craig–ousted from the Administration because he tried to do the right thing on Gitmo–feels about this.

In December 2008, Obama, Emanuel and Republican Sens. John McCain (Ariz.) and Lindsey O. Graham (S.C.) met in Obama’s transition headquarters in Chicago to discuss detainee policy. According to Graham, Obama turned to him at one point and said, ” ‘I’m going to need your help closing Guantanamo Bay. . . . I want you and Rahm to start talking.’ ” They did, and as the discussions progressed, Emanuel grew wary that closing the U.S. military prison in Cuba was possible without opening a slew of other politically sensitive national security problems ” ‘This stuff is like flypaper,’ ” Graham recalled Emanuel saying. ” ‘It will stick to you.’ ”

Graham said Emanuel was well aware that his and any other Republican support for closing Guantanamo Bay hinged on keeping alleged Sept. 11 mastermind Khalid Sheik Mohammed out of civilian court.

According to a person familiar with the conversations, who discussed the confidential deliberation on the condition of anonymity, Emanuel made his case to Obama, articulating the political dangers of a civilian trial to congressional Democrats. Attorney General Eric H. Holder Jr. presented a counterargument rooted in principle, for civilian trials.

The implication, of course, is that Rahm met with the two Republicans on his own. If so, at the very time Rahm was letting Lindsey Graham demand the shredding of the Constitution, Greg Craig was executing the ham-handed report that, though transparently lame, managed to free Rahm of the taint of Rod Blagojevich.

Rahm wouldn’t have survived into the first days of this Administration without Craig’s work. Some gratitude, Rahm.

And remember how one of the reasons why Craig was ousted was because he wasn’t consulting with Congress enough? Well, it sounds like that was a problem, for Rahm, because that’s how he fancied he’d control the process.

“During this whole civilian-trial debate, Rahm’s gut instincts knew that taking KSM to New York for civilian trials was going to be a misstep,” Graham said. “He has a better ear for domestic politics on this issue than anybody in the administration, quite frankly.”

With the Justice Department in charge, Emanuel tried to keep tabs on the process through Graham. “He’d say: ‘How’s it going? Did you tell them they were going to lose you?’ And in terms a sailor could understand.”

One administration official close to Emanuel did not dispute that Obama had overruled Emanuel on some key policy issues. “It’s not germane what the discussion was beforehand, what his idea was, because once a decision is made, he puts himself whole-hog behind it,” the official said of Emanuel. “It would be difficult for people to discern what his [original] position was.”

Except that it was not difficult at all. It has been clear since August that Rahm has been actively undermining Craig and Holder’s efforts to hew to the rule of law. Doing so, in fact, with the guy who lost the election in 2008, John McCain, who still behaves at every turn like someone trying to take down his political opponent. That’s who Rahm has been sleeping with in his efforts to thwart the rule of law.

No wonder we’re seeing so many artificial “Save Rahm!!” stories.