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Hagel Hearing: Twilight of the Neocons Makes Senate Armed Services Committee Dysfunctional

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[youtube]http://www.youtube.com/watch?v=XiXTyDnA2TI#![/youtube]

The disgusting bullying of former Senator Chuck Hagel (R-NE) during his hearing yesterday on his nomination to be Secretary of Defense is demonstrated clearly in the short clip above where Senator Lindsey Graham (R-Closet) asks Hagel to “Name one person, in your opinion, who’s been intimidated by the Israeli lobby.” Hagel said he couldn’t name one. A quick look at this word cloud from the hearing, though, or at this tweet from the Washington Post’s Rajiv Chandrasekaran: “At Hagel hearing, 136 mentions of Israel and 135 of Iran. Only 27 refs to Afghanistan. 2 for Al Qaida. 1 for Mali.” shows that Hagel should be at the top of the list of those intimidated by the Israeli lobby, which yesterday was embodied by the SASC.

Hagel did himself no favors when he stumbled badly on one of the few substantive and relevant topics brought up. On Iran’s nuclear program, even after being handed a note, he bungled the Obama administration’s position of prevention, stating first that the US favors containment. [His bungled statement of the Obama administration’s position should be considered separately from the logic of that position, where containment of an Iran with nuclear weapon capability is seen by some as a stabilizing factor against Israel’s nuclear capabilities, while prevention could well require a highly destabilizing war.]

Overall, however, the combative nature of Republican questioning of Hagel was just as hostile as the questioning last week of former Secretary of State Hillary Clinton over the Benghazi incident. Why would Republicans turn on one of their own with a vengeance equal to that shown to their long-term nemesis? Writing at Huffington Post, Jon Soltz provides an explanation with which I agree when he frames yesterday’s hearing as a referendum on neocon policy (emphasis in original):

“Tell me I was right on Iraq!”

Essentially, that’s what Sen. McCain said during most of his time in today’s confirmation hearing for Chuck Hagel. And that sums up why the die had been cast on the Hagel nomination, before we even got to these hearings today, which I am currently at. This vote, I believed (and now believe more than ever) is a referendum on neocon policy, not on Chuck Hagel.

Much of McCain’s bullying of Hagel was centered on McCain trying to get Hagel to admit that he had been wrong to oppose the Iraq surge. This clinging to the absurd notion that the Iraq surge was a success sums up the bitter attitude of the neocons as the world slowly tries to emerge from the global damage they have caused. And that this view that the surge was a success still gets an open and unopposed position at the Senate Armed Services Committee highlights the dangerous dysfunction of one of the most influential groups in Washington.

A functional SASC would have spent much time in discussion with Lt. Col. Daniel Davis, who provided a meticulous debunking of the myth that the Iraq surge was a success. His report, however, has been quietly ignored and allowed to fade from public view. Instead, this committee has essentially abandoned its oversight responsibilities in favor of pro-war jingoism. That Hagel refuses to engage in their jingoism is at the heart of neocon hatred of him.

Hagel would have done himself and the world a favor by turning the tables on the Committee during the hearing. A report (pdf) released Wednesday by the Special Inspector General for Afghanistan Reconstruction highlights a massive oversight failure by the Senate Armed Services Committee that lies at the juxtaposition of US defense policy in both Iran and Afghanistan. Despite long-standing sanctions against US purchases of Iranian goods, the Committee has allowed the Department of Defense to purchase fuel for use in Afghanistan that could well have come from Iran. Here is the conclusion of the report (emphasis added):

DOD’s lack of visibility—until recently—over the source of fuel purchased for the ANSF raises some concerns. DOD lacked certification procedures prior to November 2012 and had limited visibility over the import and delivery sub-contracts used by fuel vendors. As a result, DOD is unable to determine if any of the $1.1 billion in fuel purchased for the ANA between fiscal year 2007 and 2012 came from Iran, in violation of U.S. economic sanctions. Controls—recently added by CJTSCC to the BPAs for ANSF fuel—requiring vendor certification of fuel sources should improve visibility over fuel sources. To enhance that visibility, it is important that adequate measures are in place to test the validity of the certifications and ensure that subcontractors are abiding by the prohibitions regarding Iranian fuel. Recently reported steps to correct weaknesses in the fuel acquisition process may not help U.S. officials’ in verifying the sources of fuel purchased with U.S. funds for the ANSF. Given the Afghan government’s continued challenges in overseeing and expending direct assistance funds, it will become more difficult for DOD to account for the use of U.S. funds as it begins to transfer funds—in March 2013—directly to the Afghan government for the procurement and delivery of ANSF fuel. In light of capacity and import limitations of the Afghan government, the U.S. government may need to take steps to place safeguards on its direct assistance funding—over $1 billion alone for ANSF fuel from 2013-2018—to ensure that the Afghan government does not use the funds in violation of U.S. economic sanctions.

Imagine the sputtering that would have ensued if Hagel had managed to ask Graham or McCain why the committee had failed to enforce the sanctions against purchasing Iranian fuel by the Defense Department. While he was busy singing “Bomb, bomb, bomb, bomb, bomb Iran” on the campaign trail in 2008, McCain was failing in his responsibility to see that Iranian fuel wasn’t purchased by the Defense Department.

Lindsey Graham Must WANT the Terrorists to Have Kittens and Beard Dye

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In the last week, we’ve had two stories about how terrorists at Gitmo have made themselves comfortable.

First there was Michelle Shephard’s investigation into whether Majid Khan has a cat.

A week-long investigation into Guantanamo’s feline affairs couldn’t determine the case for sure.

“No detainees are provided pets, and detainees are not authorized to keep animals, as they present a health and sanitation hazard,” wrote Navy Capt. Robert Durand, the director of Joint Task Force Guantanamo’s Public Affairs, in a lengthy response to my cat query.

“Wild animals often carry diseases and pests such as rabies, lice, mites and other infections.”

However: “Recreation yards are surrounded by security fences that keep detainees in and unauthorized people out, but small animals can and do squeeze through any gaps.”

Durand’s emailed response goes on to describe the island’s wildlife: “The Cuban Rock Iguana is a protected species, and banana rats and feral cats lack natural predators, so these populations thrive in the areas immediately adjacent to the various camps.”Yes, but does Khanhave a cat?

“We do not discuss the details of any individual detainee.”

And now there’s Carol Rosenberg’s story explaining that Khalid Sheikh Mohammed hennaed his beard with berries and juice.

Tuesday, Army Lt. Col. Todd Breasseale said in response to a five-month-old question that Mohammed “did craft his own natural means” inside the prison camps to concoct his self-styled beard dye.

“I don’t have his exact procedure,” Breasseale said, “but can confirm the use of at least berries and juice to create a kind of harmless dye.”

We paid Halliburton a lot of money to build this prison–and still shell out $800,000 a year to keep terrorists there. But apparently Halliburton couldn’t even keep feral cats out?

I’m guessing Jose Padilla doesn’t have a kitten in Florence SuperMax. And even when Umar Farouk Abdulmutallab was held at the local minimum security prison in Milan, he didn’t show up in court in a camo vest and dyed beard (he asked to wear a Yemeni dagger, mind you, and he looked too young to grow one, mind you).

So I’m beginning to think that Lindsey Graham and all the others that insist terrorists must be held in Gitmo rather in the real prisons in the US want the terrorists to have kittens.

Upate: h/t to joanneleon for alerting me that, by my spelling, I tried to kill KSM’s beard rather than color it.

Latif’s Death: A Blow to the Head of Our System of Justice

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I’d like to take issue with Ben Wittes’ post on the sadness of Adnan Farhan abd al Latif’s death. I certainly agree with Wittes that Latif’s death is terribly sad. But I object to Wittes’ take on three related grounds. Wittes,

  • Provides a problematic depiction of the justification for Latif’s detention
  • Misstates the importance of Latif’s clearance for release
  • Assigns responsibility for Latif’s continued detention to the wrong people

Wittes tries hard to downplay how much Latif’s death in custody damns Gitmo. But he does so by obscuring a number of key facts all while accusing Gitmo foes of building up “myths.”

A problematic depiction of the justification for Latif’s detention 

Before he talks about how sad this is, Wittes tries to refute the “myths” Gitmo opponents have spread. First, he argues, we should not be arguing Latif was innocent.

Guantanamo’s foes are building up a lot of myths about the Latif case—many of which I don’t buy at all. While I have criticized the D.C. Circuit’s opinion in the case, it does not follow from the decision’s flaws that Latif was an innocent man wrongly locked up for more than a decade. Indeed, as I argued inthis post, it is possible both that the district court misread the evidence as an original matter and that the D.C. Circuit overstepped itself in reversing that decision. The evidence in the case—at least what we can see of it—does not suggest to me that Latif had no meaningful connection to enemy forces. [my emphasis]

After twice using the squirreliest of language, Wittes finally settles on a lukewarm endorsement of the argument that Latif had some “meaningful connection” to the enemy. Curiously, though, he exhibits no such hesitation when he describes Latif this way:

Latif—a guy whose mental state was fragile, who had suffered a head injury, and who seems to have had a long history of self-injury and suicide attempts. [my emphasis]

That’s curious because whether or not Latif continued to suffer from his 1994 head injury was a central issue in whether or not Latif was credible and therefore whether he should be released. Moreover, it is one area where–as I explained in this post–Janice Rogers Brown fixed the deeply flawed argument the government made, thereby inventing a new (equally problematic, IMO) argument the government had not even plead to uphold the presumption of regularity that has probably closed off habeas for just about all other Gitmo detainees.

As you’ll recall, Henry Kennedy found Latif’s argument he had traveled to Afghanistan for medical treatment for his head injury credible because DOD’s own intake form said he had medical records with him when they took custody of him in Kandahar.

Furthermore, there are indications in the record that when Latif was seized traveling from Afghanistan to Pakistan, he was in possession of medical records. JE 46 at 1 (noting that Latif was seized in a “[b]order [t]own in [Pakistan]” with “medical papers”); JE 66 (unidentified government document compiling information about Latif) at 2 (stating that “[Latif] had medical papers but no passport or weapon” when he “surrendered himself to [Pakistani] authorities”).12

David Tatel, too, pointed to that in his dissent: “the most plausible reason for why Latif would have had medical papers in his possession when first seized is that his trip in fact had a medical purpose.”

Yet the government argued that Latif offered no corroboration for his story.

The court improperly gave no adverse weight to the conclusory nature of Latifs declaration, and the lack of corroboration for his account of his trip to Afghanistan, both factors which should have weighed heavily against his credibility.

[snip]

Latif also provided no corroboration for his account of his trip to Afghanistan. He submitted no evidence from a family member, from Ibrahim, or from anyone to corroborate his claim that he was traveling to Pakistan in 2001 to seek medical treatment.

That’s a laughable claim. Latif submitted one of the government’s own documents as corroboration for his story. The government, however–in a brief arguing that all government documents should be entitled to the presumption of regularity–dismissed that corroborating evidence by implying that government document didn’t mean what it said–which is that Latif had medical papers with him when captured.

Respondents argue that these indications are evidence only that Latif said he had medical records with him at the time he was seized rather than that he in fact had them.

The claim is all the more ridiculous given that, unlike the CIA interrogation report the government argued should be entitled to the presumption of regularity, there’s a clear basis for the presumption of regularity of Latif’s intake form: the Army Field Manual. It includes instructions that intake personnel examine documents taken into custody with detainees. They don’t just take detainees’ words for it, they look at the documents.

I’m not suggesting that the government’s claim–that the screener just wrote down whatever Latif said–is impossible; I think it’s very possible. But they can only make that argument if they assume the intake screener deviated from the AFM, and therefore a document created under far more regulated conditions than the CIA report, and one created in US–not Pakistani–custody, should not be entitled to the presumption of regularity. Read more →

Lost Among the Findings in Syria

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The Neocons have been pressuring Obama to do something in Syria. So it’s thoroughly unsurprising that we’re officially learning what we’ve known for months: the CIA has been involved in Syria. According to Mark Hosenball the Finding Obama signed authorizing such actions permits us to collaborate at a “secret” command center on or close to our air base at Incirlik.

A U.S. government source acknowledged that under provisions of the presidential finding, the United States was collaborating with a secret command center operated by Turkey and its allies.

[snip]

This “nerve center” is in Adana, a city in southern Turkey about 60 miles from the Syrian border, which is also home to Incirlik, a U.S. air base where U.S. military and intelligence agencies maintain a substantial presence.

The Finding doesn’t authorize arming the rebels (though Hosenball’s sources seem unsure about the general scope of the Finding), but NBC has reported that the Saudis and Qataris have already armed them with shoulder-launched missiles.

It’s just like old times! The US partnering with Saudis to get shoulder-launched missiles into the hands of rebels with dubious loyalties. Whatever could go wrong with that?

There are two details about this that deserve notice.

What happened to the leak hawks in Congress?

First, this story is based on the leak of a covert Finding–precisely the kind of leak that Congress has gone on the warpath against. Hosenball attributes his reporting to US sources–an attribution that can (though doesn’t necessarily) refer to Congressional sources.

U.S. sources familiar with the matter said.

[snip]

A U.S. government source acknowledged

And while he notes–and names–the Senators who have been pressuring Obama to do precisely what he has been doing for months, Hosenball doesn’t name the members of Congress who are opposed to such an action.

Some U.S. lawmakers, such as Republican Senators John McCain and Lindsey Graham, have criticized Obama for moving too slowly to assist the rebels and have suggested the U.S. government should become directly involved in arming Assad’s opponents.

Other lawmakers have suggested caution, saying too little is known about the many rebel groups.

In short, chances are not insignificant that a Congressional source leaked the contents of a Finding authorizing covert operations.

And yet … crickets!

Those same Senate Intelligence Committee leak hawks who have authorized a range of stupid actions to prevent leaks seem unperturbed by a leak revealing information that is as sensitive as the leaks they’re demanding be investigated.

How does anti-Assad Finding relate to the Assad-cooperation authorized under the Gloves Come Off Memorandum of Notification?

Then there’s this. In his description of all the things included in the Gloves Come Off Memorandum of Notification authorizing the war on terror, Bob Woodward said cooperation with Syria (and Libya) were included.

[George Tenet] called for initiating intelligence contact with some rogue states such as Libya and Syria that he said might be helpful in trying to destroy al Qaeda. For the CIA to obtain helpful information against the terrorists, they might have to get their hands dirty. (Bush at War 77)

We know the MON included such cooperation with Libya because liberated documents have reflected cooperation on renditions. And Maher Arar, who was rendered to Syria and tortured, can tell you all about what our cooperation with Syria entailed.

The thing is, the MON authorizing cooperation with Syria remains in effect. We know that to be true because Judge Richard Wesley, in enabling the government to keep all mention of this MON secret a few months ago, stated it pertained to “active intelligence activity.” Rather than writing a new MON–one that doesn’t give CIA carte blanche in deciding the limits of things like targeted killings–Obama is still relying on this MON for things like killing American citizens.

So does that mean the CIA is at once authorized to share intelligence with Bashar al-Assad (under the Gloves Come Off MON) and help rebels overthrow and probably kill him (under this new Finding)?

Probably, there is a very simple explanation for this (and for the fact that we helped to kill Moammar Qaddafi, as well). Probably, the new FInding (and whatever Finding authorized the activities our spooks engaged in in Libya) simply includes language canceling the prior language authorizing cooperation with Assad. So no big deal, really.

Still, doesn’t that give lie to the Administration’s seeming treatment of that 11 year old MON as inviolate? That is, if this Finding renders (heh) part of that MON meaningless, then maybe it wouldn’t be so hard for Obama to write a new MON, one that involved actual oversight.

McCain, Lieberman and Graham Attempt to Revive Mass Delusion on Afghan “Success”

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Where is this "success" which McCain, Lieberman and Graham tout?

In yesterday’s post, I pointed out the craven political decision to delay a strategic reassessment of the war strategy in Afghanistan until after the election in November. Just in case that was not enough stupidity already emanating out of Washington regarding Afghanistan, today we have the collected wisdom of John McCain, Joe Lieberman and Lindsey Graham informing us that not only is there success in the war effort in Afghanistan, but the US must listen closely to them in order to sustain that success. In preparation for reading the recommendations from our trio of uninvited experts, it is useful to look once again at the accompanying chart, where we see the steady increase in violent events in Afghanistan. The surge of troops in early 2010 did not reverse the trend of increasing violence. In fact, violence jumped by an even larger amount in the first year of the surge than in previous years. No benefit of the surge accrued in 2011, either, as the number of violent events continued to increase.

But McCain, Lieberman and Graham would have us believe that there is “success”:

Significant military progress has been made in Afghanistan — progress that we have personally witnessed over repeated visits. Four years ago, southern Afghanistan was overrun by the Taliban, and our coalition lacked the resources and the strategy necessary to break their momentum. Today, that situation has been reversed, thanks to the president’s surge of forces, the leadership of talented military commanders, and the courage and perseverance of our troops.

Similarly, our effort to build the Afghan National Security Forces — which was under-resourced and disorganized four years ago — has been overhauled. Growing numbers of Afghan units are increasingly capable of leading the fight.

Of course, given the current clusterfuck that is reality in Afghanistan, our mentors of mendacity were forced to open their piece with a nod to the growing desire by most Americans to get out sooner rather than later:

A series of tragic events in Afghanistan has increased the desire of a war-weary public to end our mission there. As heart-wrenching as these events have been, they do not change the vital U.S. national security interests at stake in Afghanistan, nor do they mean that the war is lost. It is not. There is still a realistic path to success if the right decisions are made in the coming months.

And just what is the “realistic path to success” that is being offered for our consideration? Read more →

Agreement in Principle Signed on Handover of Afghan Prisons, Night Raid Agreement to be Separate

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Creating conditions dangerously close to those under which we have been warned that Lindsey Graham’s head will explode, the US and Afghanistan have signed an agreement in principle on the handover of prisons to Afghan control. The negotiations were carried out under the pressure of dual deadlines, with Afghan President Hamid Karzai having put today as his deadline for insisting on an agreement and President Obama declaring that an agreement had to be in place before the upcoming NATO summit in Chicago.

The agreement appears to use semantics to say that the prisons are being handed over today, but with the reality being that there will be a gradual process taking six months. From the New York Times:

The memorandum of understanding would officially hand over control of detainees to an Afghan official as of Friday, but would also allow for a six-month period of transition to full Afghan control of the American-held detainees, American officials said.

As a practical matter, American officials are expected to maintain day-to-day control over the 3,200 detainees, most of them suspected Taliban insurgents.

During the six months, custody of the American-held prisoners would gradually transfer to Afghan authority, with the first 500 prisoners to be transferred within 45 days, according to American military and diplomatic officials who spoke on condition of anonymity as a matter of policy.

The move is a major concession to the Afghans, but the Americans will retain ultimate veto authority over releases of any insurgent detainees as long as American troops are in Afghanistan, and will continue to monitor humane treatment of the prisoners, the American officials said.

With the US maintaining veto power over release of any prisoners, perhaps Senator Graham will have to hold off on throwing his next tantrum, as his major objection to the handover had been that the Afghans would release prisoners who would immediately attack US troops. It’s not clear how the US will be monitoring humane treatment of the prisoners, since it is US training that put the torture methods in place to begin with.

There is no indication in this Times article, or in articles from AP carried in the Washington Post or the Reuters article about the signing of the prison agreement on when an agreement on night raids is expected. The night raid issue appears to be the one remaining sticking point that needs to be addressed before the long term status of forces agreement can be established for laying out the ground rules after the expected US withdrawal from Afghanistan late next year. Presumably, the Obama administration will be pushing to have both the night raid agreement and status of forces agreement in place before the May NATO summit.

Oh, and those non-Afghan prisoners we’re holding at Bagram that the US wants us all to forget about? They stay under US control, of course.

Graham Throws Tantrum Over an Afghanistan With No Night Raids or US Control of Prisons

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Proof from April, 2010 that we have trained the Afghans to manage their own prisons.

With most eyes yesterday on Super Tuesday and political wrangling over Iran’s nuclear technology, not many took notice of the update from Reuters Tuesday morning letting us know that an agreement on transfer detention faciliies to full Afghanistan control is expected by the end of this week. Lindsey Graham did notice the news,however, and chose to vent to Josh Rogin just before lunch.

Lindsey is not happy:

Graham, who has been one of the strongest congressional supporters for continuing the U.S. military mission in Afghanistan beyond 2014, said today that unless Karzai relents on his demands that the United States immediately hand over control of Afghan prisoners and end night raids against insurgents, there is no way the U.S. can achieve its objectives in Afghanistan and therefore should just end its involvement there.

“If the president of the country can’t understand how irrational it is to expect us to turn over prisoners and if he doesn’t understand that the night raids have been the biggest blow to the Taliban … then there is no hope of winning. None,” Graham said in the hallways of the Capitol Building just before entering the GOP caucus lunch.

“So if he insists that all the prisoners have to be turned over by March 9 and that we have to stop night raids, that means we will fail in Afghanistan and that means Lindsey Graham pulls the plug. It means that I no longer believe we can win and we might as well get out of there sooner rather than later.”

Graham gets so much wrong in his rant. He seems to think that the US is planning to hand over full control of the prisons on Friday. Reuters reports that the most likely agreement is for the process to start on Friday but take place over a six month period:

In a meeting Monday between Afghan President Hamid Karzai, U.S. ambassador Ryan Crocker and Gen. John Allen, the NATO commander in Afghanistan, the American side proposed a six-month timeline for the transfer.

Karzai was reported to have set a deadline of March 9 for the United States to hand over the detention facilities.

An Afghan official said that under one possible scenario, a transfer of prisons could start within the next few days and it may be completed within six months.

Next, Graham complains that the Afghans will merely turn insurgents loose to “start killing Americans again”, despite the fact that Afghanistan appears to hang onto some prisoners long enough to have built up quite a reputation for torture there.

And Graham seems to have forgotten that training has been a cornerstone of US policy in Afghanistan, presumably equipping the Afghans for the time when we could hand over prisons and other security arrangements to the Afghans so that we could go home. Read more →

The Worst Part of the Signing Statement: Section 1024

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As I explained here, Obama’s signing statement on the defense authorization was about what I expected. He included squishy language so as to pretend he doesn’t fully support indefinite detention. And he basically promised to ignore much of the language on presumptive military detention.

But there was one part of the signing statement I (naively) didn’t expect. It’s this:

Sections 1023-1025 needlessly interfere with the executive branch’s processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section. [my emphasis]

Section 1024, remember, requires the Defense Department to actually establish the provisions for status reviews that Obama has promised but not entirely delivered.

SEC. 1024. PROCEDURES FOR STATUS DETERMINATIONS.

(a) IN GENERAL.—Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) for purposes of section 1021.

(b) ELEMENTS OF PROCEDURES.—The procedures required by this section shall provide for the following in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war pursuant to the Authorization for Use of Military Force:

(1) A military judge shall preside at proceedings for the determination of status of an unprivileged enemy belligerent.

(2) An unprivileged enemy belligerent may, at the election of the belligerent, be represented by military counsel at proceedings for the determination of status of the belligerent.

(c) APPLICABILITY.—The Secretary of Defense is not required to apply the procedures required by this section in the case of a person for whom habeas corpus review is available in a Federal court.

As I’ve noted, Lindsey Graham (and other bill supporters, both the right and left of Lindsey) repeatedly insisted on this review provision. Lindsey promised every detainee would get real review of his status.

I want to be able to tell anybody who is interested that no person in an American prison–civilian or military–held as a suspected member of al-Qaida will be held without independent judicial review. We are not allowing the executive branch to make that decision unchecked. For the first time in the history of American warfare, every American combatant held by the executive branch will have their day in Federal court, and the government has to prove by a preponderance of the evidence you are in fact part of the enemy force. [my emphasis]

And yet, in spite of the fact that Section 1024 includes no exception for those detained at Bagram, Obama just invented such an exception.

Section 1024 was one of the few good parts of the detainee provisions in this bill, because it would have finally expanded the due process available to the thousands of detainees who are hidden away at Bagram now with no meaningful review.

But Obama just made that good part disappear.

Update: I’m still trying to figure out where Obama gets the Congressional intent to let the Defense Secretary pick and choose which detainees 1024 applies to. The managers’ statement says this about 1024:

The Senate amendment contained a provision (sec. 1036) that would require the Secretary of Defense to establish procedures for determining the status of persons captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40), including access to a military judge and a military lawyer for an enemy belligerent who will be held in long-term detention.

The House bill contained no similar provision.

The House recedes with an amendment clarifying that the Secretary of Defense is not required to apply the procedures for long-term detention in the case of a person for whom habeas corpus review is available in federal court.

Because this provision is prospective, the Secretary of Defense is authorized to determine the extent, if any, to which such procedures will be applied to detainees for whom status determinations have already been made prior to the date of the enactment of this Act.

The conferees expect that the procedures issued by the Secretary of Defense will define what constitutes “long-term” detention for the purposes of subsection (b). The conferees understand that under current Department of Defense practice in Afghanistan, a detainee goes before a Detention Review Board for a status determination 60 days after capture, and again 6 months after that. The Department of Defense has considered extending the period of time before a second review is required. The conferees expect that the procedures required by subsection (b) would not be triggered by the first review, but could be triggered by the second review, in the discretion of the Secretary. [my emphasis]

This seems to be saying two things. First, DOD doesn’t have to go back and grant everyone they’ve given the inadequate review process currently in place a new review. The 3,000 detainees already in Bagram are just SOL.

In addition, this says DOD gets to decide how long new detainees will have to wait before they get a status review with an actual lawyer–and Congress is perfectly happy making them wait over six months before that time.

Obama seems to have taken that language and pushed it further still: stating that DOD will get broad discretion to decide which reviews will carry the requirement of a judge and a lawyer.

It sort of makes you wonder why the Obama Administration wants these men to be held for over six months with no meaningful review?

Pakistan Withdraws Cooperation From Key Border Posts, McCain and Graham Stir Pot

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Pointy heads John ("Get Off My Lawn!") McCain and Lindsey ("Holy Hell!") Graham grab some microphone time in Kabul on July 5, 2010. (ISAFMedia photo)

Although it is now a week and a half since the November 26 NATO attack on two border posts that killed 24 Pakistani soldiers, it appears that the barrage of official statements and official actions is not yet slowing. Despite a Sunday phone call from President Obama to President Zardari that was meant to emphasize cooperation, Pakistan withdrew its representatives today from two of three key border posts that coordinate communications between troops on both sides of the border region. And, as if things weren’t already bad enough with Pakistan boycotting the Bonn conference on the future of Afghanistan, Senators John McCain and Lindsey Graham decided that they should issue their own set of demands for Pakistan.

On Sunday, President Obama made a phone call to Pakistan’s President Zardari.  Here is the statement on the call released by the White House:

Earlier today the President placed a phone call to Pakistani President Asif Ali Zardari to personally express his condolences on the tragic loss of twenty-four Pakistani soldiers this past week along the border of Afghanistan and Pakistan.  The President made clear that this regrettable incident was not a deliberate attack on Pakistan and reiterated the United States’ strong commitment to a full investigation.  The two Presidents reaffirmed their commitment to the U.S.-Pakistan bilateral relationship, which is critical to the security of both nations, and they agreed to stay in close touch.

Even though this statement ends by claiming both presidents “reaffirmed their commitment to the US-Pakistani bilateral relationship”, Pakistan followed that reaffirmation up by withdrawing its cooperation from key border posts that provide coordination and communication:

Pakistan is pulling out troops from two of the three border coordination units at the Pak-Afghan border set-up for communication between Nato and Pakistani troops in retaliation to the Nato November 26 attack, said a report by the The Associated Press. Read more →

Lindsey Graham’s Independent Review for All Detainees in US Prisons

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As I’ve said before, I think Carl Levin’s assurances that habeas corpus will prevent the Executive from holding people without cause under his new detainee provisions (and, frankly, under the status quo) is dangerously naive, because it ignores how badly the DC Circuit has gutted habeas.

That said, maybe this colloquy between Lindsey Graham and Carl Levin might help. (h/t to Lawfare for making transcripts available)

Mr. GRAHAM. If someone is picked up as a suspected enemy combatant under this narrow window, not only does the executive branch get to determine how best to do that–do you agree with me that, in this war, that every person picked up as an enemy combatant–citizen or not–here in the United States goes before a Federal judge, and our government has to prove to an independent judiciary outside the executive branch by a preponderance of the evidence that you are who we say you are and that you have fit in this narrow window? That if you are worried about some abuse of this, we have got a check and balance where the judiciary, under the law that we have created, has an independent review obligation to determine whether the executive branch has abused their power, and that decision can be appealed all the way to the Supreme Court?
Mr. LEVIN. That guarantee is called habeas corpus. It has been in our law. It is untouched by anything in this bill. Quite the opposite; we actually enhance the procedures here.

[snip]

Mr. GRAHAM. In this case where somebody is worried about being picked up by a rogue executive branch because they went to the wrong political rally, they don’t have to worry very long, because our Federal courts have the right and the obligation to make sure the government proves their case that you are a member of al-Qaida and didn’t go to a political rally. That has never happened in any other war. That is a check and balance here in this war. And let me tell you why it is necessary.
This is a war without end. There will never be a surrender ceremony signing on the USS Missouri. So what we have done, knowing that an enemy combatant determination could be a de facto life sentence, is we are requiring the courts to look over the military’s shoulder to create checks and balances. Quite frankly, I think that is a good accommodation.

[snip]

I want to be able to tell anybody who is interested that no person in an American prison–civilian or military–held as a suspected member of al-Qaida will be held without independent judicial review. We are not allowing the executive branch to make that decision unchecked. For the first time in the history of American warfare, every American combatant held by the executive branch will have their day in Federal court, and the government has to prove by a preponderance of the evidence you are in fact part of the enemy force. [my emphasis]

Not only does Graham insist the standard in habeas cases must be a “preponderance of the evidence” standard–something the DC Circuit has threatened to chip away at. But the language about courts having an obligation to make sure the government proves it case and courts looking over the shoulder sure implies a stronger review than Janice Rogers Brown understands it.

Furthermore, while Graham speaks explicitly at times about people caught in the US, his aspiration that “no person in an American prison … will be held without independent judicial review” would sure sound good the detainees in the American prison at Bagram, particularly taken in conjunction with Section 1036, which seems to suggest they get a review too.

Of course, passing a law stating that habeas corpus must consist of something more than a Circuit Court Judge rubber-stamping the government’s inaccurate intelligence files would be far better. But this language, showing legislative intent that habeas review remain real, is about all we get these days.