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Administration Has Means to Sustain Civilian Primacy without Veto

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As we all wait to see whether Obama will follow through on his veto threat tied to the detainee provisions in the Defense Authorization, I want to make an observation.

The Obama Administration has the means–short of a veto–to sustain civilian law primacy even if this bill is passed. But they will not use it.

As Lindsey Graham and Carl Levin repeat over and over when defending the detainee provisions–the detainee provisions require the Executive Branch to come up with procedures to determine whether someone qualifies as a covered person.

Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.

The procedures for implementing this section shall include, but not be limited to, procedures as follows:

(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.

With (a)(2) being whether or not the detainee was a Covered Person:

The requirement [for military detention] shall apply to any person whose detention is authorized under 1031 who is determined–

(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and

(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

Nothing in the bill allows Congress to override the procedures developed by the Administration; it only requires that Congress get a copy of them.

Which would seem to permit the Administration to issue the following procedures:

  1. The persons authorized to make determinations whether or not someone is a “Covered Person” are Article III jurors and/or jurists.
  2. The process by which it will be determined whether or not someone is a “Covered Person” will be a civilian trial.

That would seem to render the effect of the most noxious part of the detainee provisions minimal: rather than imprisoning convicted terrorists at Florence SuperMax, those terrorists will be detained at Leavenworth. But they won’t be transferred to military custody until after they get a civilian trial.

They won’t do this, mind you, not just because it would make the Republicans go apeshit and would tie their hands. But they like the power that comes from the ability to make up this shit as they go along, and would never put in writing that courts must be involved. (Indeed, today Jeh Johnson repeated the Administration’s prior assertion that courts are not authorized to review the Administration’s targeting decisions.

But it would be a way to dispense with this crappy bill.

Ahmed Abdulkadir Warsame and the Paper Trail Preventing Floating Ghost Prisons

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Given the defeat of the Udall Amendment, it looks likely the Defense Authorization will include provisions mandating military detention for most accused terrorists (though the Administration has already doubled down on their veto threat).

So I’d like to look at an aspect of the existing detainee provision language that has gotten little notice: the way it requires the Administration to create a paper trail that would prevent it from ghosting–disappearing–detainees. In many ways, this paper trail aspect of the detainee provisions seems like a justifiable response to the Administration’s treatment of Ahmed Abdulkadir Warsame.

The Administration unilaterally expanded detention authorities in its treatment of Warsame

As you recall, Ahmed Abdulkadir Warsame is a Somali alleged to be a member of al-Shabab with ties with Al Qaeda in the Arabian Peninsula. When the Administration detained Warsame, al-Shabab was not understood to fall under the 2001 AUMF language. The Administration effectively admitted as much, anonymously, after he was captured.

While Mr. Warsame is accused of being a member of the Shabab, which is focused on a parochial insurgency in Somalia, the administration decided he could be lawfully detained as a wartime prisoner under Congress’s authorization to use military force against the perpetrators of the Sept. 11, 2001, attacks, according to several officials who spoke on the condition of anonymity to discuss security matters.

But the administration does not consider the United States to be at war with every member of the Shabab, officials said. Rather, the government decided that Mr. Warsame and a handful of other individual Shabab leaders could be made targets or detained because they were integrated with Al Qaeda or its Yemen branch and were said to be looking beyond the internal Somali conflict.

And while he had no problem extending the AUMF to include al-Shabab in the war on terror detention authorities, one of the big SASC champions of these detainee provisions, Lindsey Graham, clearly believed Warsame was not included in existing detention authorities.

Senator Lindsey Graham, Republican of South Carolina, said in an interview that he would offer amendments to a pending bill that would expand tribunal jurisdiction and declare that the Shabab are covered by the authorization to use military force against Al Qaeda.

So to begin with, Warsame was detained under AUMF authority that one loud-mouthed, hawkish member of the SASC didn’t believe was actually included under it.

And then there’s the way the Administration ghosted Warsame for 2 months.

The US captured Warsame on April 19, then whisked him away to the amphibious assault ship, the Boxer, where he was interrogated by members of the High Value Detainee Interrogation Group (which, remember, includes DOJ, Intelligence, and military members) for two months. Read more →

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.

The UndieBomber’s 15 Minutes of Fame

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Here’s the entirety of the speech Umar Farouk Abdulmutallab gave after he plead guilty to the Christmas Day bombing.

10:32 a.m.

Abdulmutallab read from a statement saying he was guilty under U.S. law, but not under Islamic law, for the crimes charged. He said he tried to carry out the bombing in retaliation for the murder of innocent civilians in Iraq, Israel, Afghanistan, Somalia and elsewhere by the United States.

10:34 a.m.

He warned the U.S. that, if it continued to murder innocent Muslims, a calamity would befall the U.S.

If you laugh at us now, we will laugh at you later,” he said.

10:35 a.m.

He said committing jihad against the United States is one of “the most virtuous acts” a Muslim can perform.

The speech started no earlier than 10:23, it ended no later than 10:38. Quite literally, just 15 minutes or less for him to give the speech that is the primary reason people do not want terrorists tried in civilian courts.

The reason why we can’t have nice things like civilian law anymore (aside from all the torture-produced evidence we’re trying to hide) is because we might find out:

  • A Muslim man believes in Sharia law, not American law
  • A Muslim man correctly believes we have killed innocent civilians in Iraq, Israel, Afghanistan, Somalia, and other countries
  • Someone thinks the US might one day pay for its attacks on innocent Muslims
  • A radicalized Muslim man believes Allah will reward Jihad

That’s it. That’s what has people like Peter King and Buck McKeon and Lindsey Graham so scared that we have to rewrite our Constitution to give military law precedence over civilian law. They want to trade the legitimacy of today’s proceeding for largely secret proceedings where American citizens will be shielded from a failed terrorist’s 15 minutes of fame.

While we’re talking about how pathetic these fearful men are, I believe it’s safe to let you in on a little detail. The entire time Abdulmutallab has been in custody, he has been in a low security prison just 20 miles away from Ann Arbor, not some Gulag far away from our shore. And as it turned out, that, too, turned out to be okay.

Pakistan Update: Graham Advocates Escalation, Chaman Crossing Closed After Tanker Bombed

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Bomb, bomb, bomb, bomb, bomb Pakistan?

In the latest developments in the US-Pakistan war of words, the Pakistani Prime Minister said the US must stop blaming Pakistan, Senator Lindsey Graham (R-SC) suggested the US should start using bombers in the region held by the Haqqani network and the Chaman crossing, one of two major border crossings into Afghanistan used as US supply routes, has been closedafter a bomb detonated, killing a disposal expert.

In remarks broadcast on television less than an hour ago as of this writing, Pakistan’s Prime Minister Yusuf Raza Gilani warned the United States to stop blaming Pakistan for regional instability:

“The blame game should end, and Pakistan’s sensitive national interests should be respected,” Yusuf Raza Gilani said in comments carried live on local television stations.

Gilani’s remarks were prompted in part by Lindsey Graham raising his anti-Pakistan rhetoric yet another level. From the same Reuters article:

Graham said in an interview with Reuters that U.S. lawmakers might support military options beyond drone strikes that have been going on for years inside Pakistani territory.

Those options may include using U.S. bomber planes within Pakistan. The South Carolina Republican said he did not advocate sending U.S. ground troops into Pakistan.

“I would say when it comes to defending American troops, you don’t want to limit yourself,” Graham said. “This is not a boots-on-the-ground engagement — I’m not talking about that, but we have a lot of assets beyond drones.”

Almost exactly a year ago, on September 30, 2010, the Torkham Crossing from Pakistan into Afghanistan was closed in retaliation for the US killing three Pakistani soldiers in a botched cross-border operation. The closing of this key supply route was a major move, and a number of fuel tankers subsequently were burned as they were idled in various locations around Pakistan. Today, we learn that the Chaman Crossing was closed a couple of hours ago in response to a bomb disposal expert being killed when the bomb he was attempting to disarm detonated:

Pakistani authorities have closed one of the two border crossings used by trucks carrying NATO war supplies into Afghanistan after a bomb hit an oil tanker.

Police officer Mohammad Tayab was quoted as saying by media reports that the Chaman border crossing was closed “for security reasons” after an explosion on Thursday killed a bomb disposal expert who was trying to defuse the device.

It has not been announced how long the crossing will remain closed, but I would not be surprised if the investigation into the bombing of the tanker will be cited as a reason for keeping the crossing closed for several days. Should that happen, a key development to watch for will be whether additional tankers caught in the back-up will be attacked. In last year’s closure of the Torkham Crossing, there were suggestions that the number of tankers attacked could only be explained if one assumed that Pakistan reduced the level of security being provided for transport convoys. Will the same thing happen again this year?

State Department, DoD Argue Over “Rules” for Drone Targets Outside Pakistan

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Fire away!

Predator drone firing Hellfire missile. (Wikimedia Commons)

Ed: Now that he’s on the mend from heart surgery, Jim is going to do some posting at EW. Welcome, Jim!

Charlie Savage notes in today’s New York Times that the Departments of State and Defense are engaged in an argument over the choosing of targets for drone attacks outside Pakistan. The primary point of contention centers on whether only high level al Qaeda figures in places like Yemen and Somalia can be targeted or if even low level operatives in these areas can be targeted there, just as they are in Pakistan.

Arguing for a more constrained approach is Harold Koh at the State Department:

The State Department’s top lawyer, Harold H. Koh, has agreed that the armed conflict with Al Qaeda is not limited to the battlefield theater of Afghanistan and adjoining parts of Pakistan. But, officials say, he has also contended that international law imposes additional constraints on the use of force elsewhere. To kill people elsewhere, he has said, the United States must be able to justify the act as necessary for its self-defense — meaning it should focus only on individuals plotting to attack the United States.

A more wide open approach is favored by Jeh Johnson at the Pentagon:

The Defense Department’s general counsel, Jeh C. Johnson, has argued that the United States could significantly widen its targeting, officials said. His view, they explained, is that if a group has aligned itself with Al Qaeda against Americans, the United States can take aim at any of its combatants, especially in a country that is unable or unwilling to suppress them.

Sensing an opportunity to add to his “tough on terrorism” credentials, Senator Lindsey Graham (R-SC) can’t help but join in the DoD’s line of argument: Read more →

Lindsey Graham Calls Raymond Davis an “Agent”

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AFP has a report (notably picked up by Pakistan’s Dawn) on the Senate’s hand-wringing over whether we should tie aid to Pakistan to the release of Raymond Davis, the “consulate employee” who shot two alleged Pakistani spies. Here’s what Lindsey Graham had to say:

But Senator Lindsey Graham, the top Republican on Leahy’s subcommittee, strongly warned against any rollback of assistance to Pakistan, citing the need for help in the war in Afghanistan and the hunt for suspected terrorists.

“Our relationship’s got to be bigger than this,” Graham said.

“This is a friction point, this is a troubling matter, it doesn’t play well in Afghanistan. We can’t throw this agent over, I don’t know all the details, but we cannot define the relationship based on one incident because it is too important at a time when we’re making progress in Afghanistan,” he said. [my emphasis]

Lindsey, Lindsey, Lindsey! Under Ben Cardin’s proposed law criminalizing leaks (and, frankly, under existing law), you could go to jail for such honesty. Good thing you have immunity as a member of Congress.

Though in the spirit of Bob Novak–who claimed to be thinking of a political professional running congressional campaigns in Dick Cheney’s state when he called Valerie Plame an “operative”–I suppose Graham could claim he just thought Davis serves some kind of service employee at the consulate, one of the “agents” that help with visas or some such nonsense.

Not that that’ll help the tensions over this incident in Pakistan at all.

Obama’s EO on Indefinite Detention: Wanting Bud McKeon’s Cake and Eating It Too

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[Update, 12/7/11: I find I’m still linking back to this post, and cringing everytime I see I got McKeon’s name, Buck, wrong. Apologies.]

I plan to do some more reading on Obama’s proposed Executive Order on Indefinite Detention (not least, once an EO becomes public). But here are some preliminary thoughts after having read Adam Serwer’s very good summary of the debate thus far.

The biggest reason to do this, IMO, is to head Lindsey Graham (who wants to pass a law authorizing indefinite detention) and Bud McKeon (who wants to rewrite the AUMF to authorize a limitless war on terror, along with the detention that would “authorize”) off at the pass. What Graham and McKeon want is undoubtedly worse.

But there are several problems with this as is.

1) I’m with Ben Wittes. I have a real problem with doing this via Executive Order. The whole problem with an executive just inventing his own judicial system is that it is unilateral and probably no more legal than Bush’s original review boards were. So even though liberals might LIKE this outcome better (and like it FAR better than what McKeon wants), legally it seems no more defensible. It still is an abuse of separation of powers.

2) Moreover, doing this with an EO is all the more problematic because EOs, as Bush showed and Obama’s first White House Counsel endorsed, are susceptible to pixie dust–to being changed with no public notice. There is nothing in principle to prevent Obama from secretly changing the terms of his EO on indefinite detention from including just al Qaeda and related groups to including FARC and drug traffickers to including Assange.

3) You might say the AUMF prevents that from happening. But if that’s so, then why is the AUMF not sufficient (that is, if as everyone says and DOJ concluded last year, international law provides for detention during wartime, then why do we need an EO reasserting that authority?). Sure, this EO puts a nice gloss on indefinite detention authorized–they say–under AUMF, but I’m afraid it also serves to push the boundaries of the AUMF. After all, Obama’s own Guantanamo Task Force has said the Yemenis could be released but couldn’t be released to Yemen, suggesting his own lawyers agree that they are not the kind of High Value Detainees who really fall under detention guidelines under the AUMF, but we’ve got to keep them anyway–partly–because of a war against AQAP, a force not included in the AUMF, but also–partly–because our unreliable ally there is fighting a civil war that threatens to morph into our war on terror and makes it dangerous–for reasons that may not have anything to do with Islamic terrorism–to release into that country. Yet the Yemenis appear to be included in this EO. In other words, the notion that such issues should form the basis for indefinite detention when they are not tied to the terms of the AUMF seems more likely to be abused under an EO.

4) All of which comes back to Bud McKeon, who wants to rewrite the AUMF to authorize foreever whereever war. This EO seems, as much an effort to get around Republican hopes for expansive indefinite detention, also an effort to get around revisiting the terms of the AUMF, even though we badly need to do so. Mind you, I’d like us to revisit it, declare the War on Terror as defined by the AUMF won, and the ongoing fight against terrorism a law enforcement exercise. That is, in my opinion, the legally correct thing to do. But Obama doesn’t want to lose his expansive executive powers which a law enforcement approach would require (and surely is unwilling to take the politically bold stance of observing that the war we’re fighting in Afghanistan has little to do with 9/11). So he’s basically endorsing McKeon’s awful stance, while trying to avoid doing so publicly. He basically wants the untenable outcome McKeon is pushing without the backlash from civil libertarians in this country (which are admittedly an increasingly small concern for Obama) or the international community (which is probably a growing concern) that he’d get for embracing McKeon’s unjustifiable stance. He wants to have Bud McKeon’s cake and eat it too.

And no matter what one thinks the correct stance is, this seems to be all about Obama having missed his opportunity to take a correct and defensible legal stance in 2009 (thanks Rahm), but also refusing to take a stance he’ll need to fight for going forward. Now, frankly, of all the political fights Obama refuses to fight, I suspect an assessment that this is now an unwinnable fight might, for once, be accurate (which is different than agreeing that it was unwinnable in summer 2009). In other words, his assessment than an attempt to head Bud McKeon off at the pass may indeed be morally preferable if legally suspect. But all the claims about EOs stopping short of institutionalizing a permanent system of indefinite detention also ignore the ways that doing this via EO is at the least legally troublesome and may be far worse in the long run.

Lindsey Graham Predicts Successful Terrorist Attack Followed by Harsh Resolution of Gitmo

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Josh Gerstein provides Lindsey Graham a soap box to complain that his efforts to craft a grand compromise with the Administration on Gitmo stalled in May.

“I thought we were close to getting a deal,” Graham told POLITICO last week. “I had some meetings where I walked out of the White House and said, ‘This is great.’ These were better meetings than I ever had with the Bush administration.”

But sometime around May, according to Graham, the line of communication with the White House shut down.

“It went completely dead,” Graham said. “Like it got hit by a Predator drone.”

The article as a whole suggests that Administration was fairly close to a deal, though even that deal was threatened by Graham’s inability to bring a number of Republicans along on the compromise as a whole, rather than a series of solutions. Efforts to craft a deal intensified following the Faisal Shahzad attempted Times Square bombing. Gerstein suggests that Eric Holder’s big appearance on the Sunday shows on May 9–to entertain thoughts of a Miranda compromise–was a sign of how close the Administration and Graham were to a deal.

“We had a great discussion on Miranda warning reform,” Graham recalled about an evening session with Bauer and Sen. Dick Durbin (D-Ill.). “I spent three hours down at the White House — it was probably the best meeting I’ve ever been in — where we game-planned this. … I left the meeting thinking we’re going to get a statute.”

Indeed, on May 9, Attorney General Eric Holder publicly embraced the idea on NBC’s “Meet the Press.” Calling Miranda-related legislation a “new priority,” he declared: “This is a proposal that we’re going to be making.”

And then the efforts to craft a compromise died (and, as a result, Miranda remains intact). Gerstein suggests Graham’s flip-flopping on other key legislation made it clear that Graham was not an honest broker.

Graham also may have lost credibility with the administration after he lashed out at the White House in disputes over the health care bill, climate legislation and immigration reform.

The timing certainly makes sense. During the last week of April, Graham threatened to kill the climate change bill he was crafting with the Administration as a way of keeping immigration reform from coming to a vote. By early June, he was promising to vote against any energy or climate bill. So the collapse of the grand “bargain” on Gitmo may have as much to do with Graham’s apparently successful effort to prevent Democrats from focusing on the legislative goals of a key constituency. And that may be why the electoral calendar is cited for killing the compromise as much as anything else: Graham’s yoking of immigration and climate change to Gitmo.

But I also wonder whether the Administration got a sense of just how bad Graham’s “compromise” really was. Negotiations on the grand compromise seem to have been at their height just as DOD was kicking four reporters out of Gitmo for making clear what was already in the public domain: that the interrogator who threatened a child with rape and possibly death in US prisons is the same guy who was convicted in relation to the death of another detainee. Since then (in July), Omar Khadr fired the lawyers who were crafting a plea deal, thus closing off one of the most palatable ways for the Administration to avoid making Khadr the poster child for America’s continued abuse of power at Gitmo.

I also suspect the nomination of Elena Kagan on May 10 may have played a part in the timing, not least because no Republicans would be willing to make a deal against the background of a SCOTUS nomination.

As it is, Graham seems to be using Gerstein’s article to issue two threats: first, that he will push for his own legislation in the next Congress, presumably with the votes of a few teabaggers to help him. And, his implicit threat that there will be another terrorist attack after which any decisions on Gitmo will be far worse than the policies being discussed now.

“There’s going to be an attack. That’s going to be the impetus. That’s going to be what it takes to get Congress and the administration talking; we have to get hit again,” the senator said, suggesting that passing a bill before that happens might be more reasonable than what would come afterward.

“If there is a successful attack, there is going to be a real violent reaction in the Congress, where we will react more emotionally than thoughtfully,” Graham said.

Let it be remembered–for the day when we’ve completely capitulated to those who want to use the threat of terrorism to establish a police state–that Lindsey Graham planned for it to happen.

The Things Bob Bauer Was Doing before Taking over Ethics

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The White House Ethics Czar, Norman Eisen, has gotten himself nominated to serve as Ambassador in one of the greatest places on earth, Prague, Czech Republic. To replace the function of Ethics Czar, the White House has announced that White House Counsel Bob Bauer will take over, and Steven Croley (who worked on the campaign) will lead a team of six to oversee ethics.

Ethics wonks are mixed about whether this arrangement will meet the high standards Obama set when he came into the White House. POGO’s Danielle Brian takes Bauer’s appointment as a good sign that ethics will continue to be a priority. OMB Watch’s Gary Bass is happy the White House worked so quickly to implement a plan to replace Eisen. But Sunlight Foundation’s Ellen Miller views the appointment of Bauer–who has a history of supporting bad ethics habits–as a setback.

This concern is magnified manifold when Eisen’s key successor – Bauer — can hardly be described as having the DNA of a ‘reformer.’  This is the man who invented the rationale for the acceptance of “soft money’’ – unregulated (chiefly corporate) funds that flooded elections to the tune of $1.5 billion between 1992 and 2002, and the man who sided with arch conservatives in their defense of lack of transparency.

[Update: CREW has concerns as well.]

I’ll leave it to the ethics wonks to decide whether Bauer can do the job–on ethics–well or not. And FWIW, the one time I’ve seen Bauer’s work close up (during an election-related suit here in MI in 2008), I thought he was the kind of fighter Dems need more of.

But I am worried about what this says about the Administration’s focus on two other critically important functions. You see, when Bauer took over for Greg Craig, he was hailed as the kind of guy who could solve two problems Craig had failed to: judicial confirmations and closing Gitmo.

Read more →