by Frank James

Reports that Indian officials had intelligence from their own electronic surveillance as well as from the U.S. that warned of terror attacks on major hotels and other targets in Mumbai raises the question of what should be done with that kind of information when it's available?

Here's an excerpt from the Associated Press:

WASHINGTON (AP) The Bush administration warned India before last week's brutal attacks in Mumbai that terrorists appeared to be plotting a mostly waterborne assault on its financial capital, a senior administration official said Tuesday.

The revelation of U.S. involvement comes as the Indian government faces widespread accusations of security and intelligence failures after the attacks last week. Suspected Muslim militants carried out a three-day assault that killed 172 people and wounded 239 in the heart of Mumbai.

by Frank James

File this in the one-more-thing-to-worry-about category.

According to the Washington Post, a congressionally created commission will issue a report tomorrow containing the hair-raising alarm that there's a better than even chance that terrorists will attack a major city with a weapon of mass destruction in the next five years.

The Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism will officially release its report tomorrow at a Capitol Hill press conference. But we essentially know the bottom-line already:

As the Post reports:

The odds that terrorists will soon strike a major city with weapons of mass destruction are now better than even, a bipartisan congressionally mandated task force concludes in a draft study that warns of growing threats from rogue states, nuclear smuggling networks and the spread of atomic know-how in the developing world.

"No mission could be timelier," says the draft report of the Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism, which spent six months preparing an assessment for Congress and the new president-elect. It adds: "In our judgment, America's margin of safety is shrinking, not growing."

Sharda Janardhan Chitikar, left, is consoled by a relative as she grieves the death of her two children in a terrorist attack while she waits for their bodies outside St. Georges Hospital in Mumbai, India, Thursday, Nov. 27, 2008. (AP Photo/Gurinder Osan)

by Frank James

As we Americans prepare for our Thanksgiving dinners today, it is with fresh awareness that evil is no respecter of our traditions or sensibilities.

The terrorist attacks in Mumbai, India have riveted much of the world and cast a horrible shadow. We are shocked but not surprised at the carnage caused by a previously unheard of group that apparently styles itself the Deccan Mujahadeen.

On this day of prayers, our thoughts and prayers include the people of India and the many victims of the mayhem, both Indian and Western.

After 9/11, a French newspaper headline said: "We are all Americans" in solidarity. Today, we are all Indians, especially we Americans who have experienced epic terrorism too.

by Frank James

IntelCenter, a counterterrorism organization, has just released a transcript of the latest message from al Qaeda's number two man, Ayman al-Zawahari, in which Zawahiri cites the words of Malcolm X to insult President-elect Barack Obama as a "house negro."

By way of background, Malcolm X, the famous, black nationalist leader of the 1960s, told a parable drawn from American slavery of the "house negro" who "loved the master more than the master loved himself" and the "field negro" who hated the master. You get the picture.

Here's the release from IntelCenter which includes its summary of the Zawahiri audio track on the videotape released today and a full transcript of the al Qaeda second-in-command's musings:

On 19 Nov. 2008, al-Qaeda's as-Sahab released a new 11'23" video entitled, "Exit of Bush and Arrival of Obama". The video features and audio statement with English subtitles from Ayman al-Zawahiri. An English and Arabic transcript was released with the video.

Al-Zawahiri congratulated the Muslim Ummah on "the American people's admission of defeat in Iraq." He said the American people's election of Obama "declared its anxiety and apprehension about the future towards which the policy of the likes of Bush is leading it, and so it decided to support someone calling for withdrawal from Iraq."

A U.S. guard looks from a tower above the Camp 4 detention facility at Guantanamo Bay U.S. Naval Base, in Cuba. (AP Photo/Randall Mikkelsen, Pool)

by Frank James

Reports about the complexities that President-elect Obama will have to unknot in order to redeem his promise to close Guantanamo probably help explain why the Bush Administration's initial approach to the prisoners was to essentially lock them up and throw away the key.

Of course, the Constitution doesn't say the nation's chief executive is allowed to sidestep the laws of the land to avoid solving difficult problems which is why we're arguably where we're at now.

The Obama plan which hasn't been finalized amounts to releasing some prisoners outright and bringing the rest to the U.S. where they would either be tried in regular courts or special ones created to deal with those cases involving classified material.

by James Oliphant

In a stinging rebuke to the Bush administration, a federal judge Tuesday ordered the Pentagon to immediately release a small group of Chinese Muslims from Guantanamo Bay into the United States.

U.S. District Judge Ricardo M. Urbina said in a landmark ruling that it would be wrong for the Bush administration to continue holding the 17 detainees, known as Uighurs, since they are no longer considered enemy combatants.

The Uighurs have been in custody for almost seven years and have been cleared for release since 2004, but the government has not been able to find a country willing to take them in. Bush administration lawyers argued Tuesday that Urbina did not have the authority to order the Uighurs released into the United States.

Urbina called the detention unlawful saying the Constitution prohibits indefinite imprisonment without charges. The detainees are to be placed into custody of a small, immigrant community of Uighurs in the Washington, D.C. area.

The detainees at issue are Muslims from western China, picked up in Afghanistan after the Sept. 11 attacks on suspicion of having ties to the Taliban. Some Uighurs (pronounced WE-goors) are part of a movement that seeks separation from China to form their own Islamic nation.

View of destruction caused by a bomb explosion at Marriott Hotel in Islamabad, Pakistan on Saturday, Sept 20, 2008. (AP Photo/B.K.Bangash)

by Frank James

IntelCenter, an organization that monitors terrorist groups, says al Qaeda or related groups are most likely responsible for today's deadly bombing of the Marriott Hotel in Islamabad, Pakistan:

Senior al-Qaeda leader Mustafa Abu al-Yazid, who claimed the recent Danish Embassy bombing in Pakistan, had just threatened additional attacks against Western interests in Pakistan in al-Qaeda's 9-11 anniversary video entitled, "Results of Seven Years of Crusades". He said, "And we tell the jealous people and Mujahideen of Pakistan that in order for the Jihad in Afghanistan to continue and be victorious you must stand with your brothers the Mujahideeen in Afghanistan to fight the puppet regime of Pakistan and its aggressive and tyrannical army and strike the interests of the Crusader allies in Pakistan. How, when you are people of jealousy and courage, can you agree to the passing of the enemies caravans carrying arms, provisions and equipment through your territory, caravans which carry death, destruction and doom for your brothers in Afghanistan?! And how can you agree of the bombing of your brothers' regions of Bajaur and Swat and the eviction and displacement of hundreds of thousands of their inhabitants?"

While more information is needed to make a final determination, al-Qaeda or one of its affiliates are the most likely ones responsible for the Marriott Hotel attack. Additional attacks against diplomatic facilities, hotels and other Western targets are likely as part of an increased targeting effort and operational tempo in Pakistan against Western targets by al-Qaeda. This is consistent with messaging indicators pointing to an operational focus by al-Qaeda on Pakistan greater than at any time before.

by Frank James

One of the day's most intriguing and important stories is the New York Times piece which reports that President Bush issued secret orders in July to let the U.S. military launch Special Forces ground operations in Pakistan against suspected and proven terrorists without the permission of that unsteady ally's government.

We've known that the Central Intelligence Agency was already operating in Pakistan. There've been a number of instances in which alleged practitioners of terrorism have been taken out by missiles launched presumably from unmanned Predator aircraft.

But the NYT story gives us more to chew on:

WASHINGTON -- President Bush secretly approved orders in July that for the first time allow American Special Operations forces to carry out ground assaults inside Pakistan without the prior approval of the Pakistani government, according to senior American officials.

The new orders reflect concern about safe havens for Al Qaeda and the Taliban inside Pakistan, as well as an American view that Pakistan lacks the will and ability to combat militants. They also illustrate lingering distrust of the Pakistani military and intelligence agencies and a belief that some American operations had been compromised once Pakistanis were advised of the details.

by James Oliphant

A military jury in Guantanamo Thursday gave Salim Hamdan a surprisingly light sentence of 5 1/2 years. And since Hamdan has already been imprisoned at the Navy base for five years, his sentence would be completed sometime next year.

Hamdan was convicted Wednesday of providing material support to terrorists, but was acquitted of the more serious charge of conspiracy. In essence, the six-member jury did not buy the Pentagon's argument that Hamdan, a former driver for Osama bin Laden in Afghanistan, was a key operative of al Qaeda.

But the Pentagon has made clear that intends to hold Hamdan as an enemy combatant beyond the time his term ends. The Defense Department maintains that it can hold foreign nationals who have been classified as enemy combatants as long as hostilities continue. In a global war on terror, of course, it's difficult to say when exactly that point might be reached.

It will also be a challenge for the next president, who will be charged with determining which anti-terrorism policies of the Bush administration should be kept in place and which should be junked.

Here is the Associated Press bulletin:

GUANTANAMO BAY NAVAL BASE, Cuba (AP) -- A military jury gave Osama bin Laden's driver a stunningly lenient sentence on Thursday, making him eligible for release in just five months despite the prosecutors' request for a sentence tough enough to frighten terrorists around the globe.

Salim Hamdan's sentence of 5 1/2 years, including five years and a month already served at Guantanamo Bay, fell far short of the 30 years to life that prosecutors wanted. It now goes for mandatory review to a Pentagon official who can shorten the sentence but not extend it.

It remains unclear what will happen to Hamdan once his sentence is served, since the U.S. military has said it won't release anyone who still represents a threat. The judge, Navy Capt. Keith Allred, said Hamdan would likely be eligible for the same administrative review process as other prisoners.

Read more on the Hamdan case at Writ Large, the Tribune's new legal affairs blog.

by Frank James

Little did we know when al Qaeda attacked two U.S. embassies in East Africa ten years ago that there would be far a worse day of American casualties ahead only a few years later. The 12 Americans killed in the bombing of the embassy in Kenya would be dwarfed only a few years later by thousands on 9/11.

But despite all the sadness in the world since the embassies were bombed in nearly simultaneous attacks in Kenya and Tanzania, the sight of eleven caskets (one family had a victim flown elsewhere) being slow-marched off a cargo plane by a military honor guard at Andrews Air Force Base for the official repatriation ceremony, lingers as one of the most somber this reporter can recall ever witnessing.

(Chicago Tribune photos by Pete Souza)

In a hangar, a red-eyed President Clinton, who had only minutes earlier had a private meeting with the victims' families, made brief remarks in front of the hearses, each holding a casket.

After Clinton's finished the hearses, whose engines were turned off for the ceremony but whose headlights were kept on, were started and they hearses began to move out of the hangar as a military band played a slow and haunting version of "America, the Beautiful."

One hearse didn't start however; it's battery had died. It seemed a fitting metaphor.

The military had prepared for that possibility. Another hearse was brought in and an honor guard moved the casket to the new vehicle and it too exited the hangar.

Walking from the hangar, everyone probably had some version of the same thought: If there ever were any doubt, there isn't anymore. We're all targets now.

by James Oliphant

Barack Obama's campaign released this statement as the candidate was traveling through Indiana:

"I commend the military officers who presided over this trial and served on the hearing panel under difficult and unprecedented circumstances. They and all our Armed Forces continue to serve this country with valor in the fight against terrorism. That the Hamdan trial - the first military commission trial with a guilty verdict since 9/11 - took several years of legal challenges to secure a conviction for material support for terrorism underscores the dangerous flaws in the Administration's legal framework. It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice. And while it is important to convict anyone who provides material support for terrorism, it is long past time to capture or kill Osama bin Laden and the terrorists who murdered nearly 3000 Americans."

by James Oliphant

Salim Ahmed Hamdan, the first detainee at Guantanamo to face a military commission, was found guilty Wednesday of supporting terrorism.

The Miami Herald reported that the six-member jury delivered its verdict after only two days of deliberations. It cleared Hamdan of the more serious charge of conspiracy.

He faces life in prison, be it at Gitmo or somewhere in the United States.

Hamdan, who served as Osama bin Laden's driver in Afghanistan, was not viewed by the Pentagon as a high-level terrorist, and, in fact, written statements from 9/11 mastermind Khalid Sheik Mohammed portrayed him rather as a flunky, someone good for changing jeep tires.

His civilian and military lawyers argued Hamdan was being made a scapegoat for the U.S.' failure to capture bin Laden and railed against the commission process, which they said was too tilted in favor of the prosecution.

Still, Hamdan was a member of al Qaeda and prosecutors argued he transported weapons and attended terror training camps. He was found with two surface-to-air missile in his trunk when captured.

His conviction sets the stage for the trial of as many as 80 more detainees on similar or more serious charges.

Hamdan can appeal his conviction to the newly established Court of Military Commission Review, and from there up to the federal appeals court in Washington and then finally the Supreme Court. There should be no shortage of appealable issues, especially with regard to evidence and access to witnesses.

Also, Tuesday, the military judge in the case, Keith Allred, confessed to possibly making an error in instructing the jury on international war criminal law, raising the specter of a mistrial. Instead, both sides allowed the process to go forward.

Read more on Hamdan's conviction at Writ Large, the Tribune's new legal affairs blog.

(Photo credit: AP Photo/Photo courtesy of Prof. Neal Katyal, File)

by Aamer Madhani

As Osama bin Laden's driver awaits the verdict in the first military tribunal case at Guantanamo Bay, the Pentagon made clear today that they are not about to give up custody of Salim Hamdan if he beats the charges against him.

"Even if he were acquitted of the charges that are before him, he would still be considered an enemy combatant and therefore would continue to be subjected...to continued detention," Pentagon spokesman Geoff Morrell said at an afternoon news briefing today.

Morrell said that Hamdan would have an opportunity to go before an administrative review board to appeal his enemy combatant status, but in the near term Hamadan is considered a danger to U.S. national security and will remain in U.S. detention regardless of the verdict.

Hamdan was captured on Nov. 24, 2001, at a roadblock in Afghanistan as he tried to flee the country with his family after U.S. forces were deployed to Afghanistan to decapitate the Taliban and root out Al Qaeda fighters.

There is no doubt that Hamdan was working for a terrorist organization. There is debate over wheter he was a key player or just a hired hand carting bin Laden around Afghanistan.

Hamdan's defense has attempted to portray as an unwitting driver, who was nonetheless cooperative and provided intelligence to U.S. forces following his capture. In testimony read to the jury, purported 9/11 mastermind Khalid Shaikh Mohammed described Hamdan as primitive and nothing more than a driver.

The prosecution has painted a picture of Hamdan as a trusted associate of Bin Laden who helped shuttle weapons to the Taliban and other Al Qaeda members.

During closing arguments on Monday, Hamdan's defense attorney, Navy Lt. Cmdr. Brian Mizer, suggested that Hamdan had offered to help U.S. forces in a significant way soon after he was captured, but U.S. forces failed to exploit the intel Hamdan provided.

President Bush with Prime Minister Gillani, June 28, 2008. (Alex Wong/Getty Images.)

by Frank James

President Bush and Pakistani Prime Minister Yousuf Raza Gillani met today at the White House and made brief statements to reporters on the White House South Lawn.

The news of the day out of Pakistan was the killing of an al Qaeda chemical-weapons expert, Midhat Mursi al-Sayid Umar. Umar was reportedly killed in a missile-strike in Pakistan's wild and woolly South Waziristan region that left six other people dead as well. The U.S. military was suspected of being behind the attack though officials in Washington weren't talking publicly.

Bush and Gillani said nothing about the attack however, though both men did say they discussed Pakistani sovereignty. It was important to mention sovereignty since the occasional missile attacks the U.S. reportedly conducts there has made that a sore subject for Pakistanis who believe their nation's government gives in too readily to U.S. demands.

The meeting between Bush and Gillani was essentially one between two fairly weak leaders at this point, Bush because he is an unpopular president in the last six months of his presidency and Gillani because he is only one of several players in Pakistan's fairly unstable leadership structure.

That structure includes President Pervez Musharraf, the former Pakistani strongman who had to relinquish his role as the Pakistani army's top general. It also includes Asif Zardari, leader of the Pakistan Peoples Party who selected Gillani, and Nawaz Sharif, leader of the Pakistan Muslim League-N.

by James Oliphant

A federal judge Thursday refused to block the war-crimes trial of Guantanamo detainee Salim Hamdan and it will go forward Monday as scheduled.

Hamdan will be the first detainee to go before the Pentagon's revamped military commission system. Thursday, U.S. District Court Judge James Robertson refused a request by Hamdan's lawyers to stay the trial.

The commissions are the first U.S. war crimes tribunals since World War II. Human rights groups have criticized the Guantanamo prison and trial system as unfair.

Hamdan served as Osama bin Laden's driver in Afghanistan. He's charged with conspiracy and supporting terrorism and faces life in prison if convicted.

The Supreme Court in 2006 rejected the first set of rules drawn up by the Pentagon to try suspected terrorists, in a case that bears Hamdan's name. Robertson ruled that new guidelines, as drafted by Congress using the court's decision as a guideline, were acceptable.

"We are pleased with the Court's decision allowing Mr. Hamdan to be tried for war crimes before a military commission," said Erik Ablin, a Justice Department spokesman. "The government looks forward to presenting its case against Mr. Hamdan to the commission. We note that, under the procedures established by Congress in the Military Commissions Act, Mr. Hamdan will receive greater procedural protections than those ever before provided to defendants in military-commission trials."

But human-rights groups were critical. "Hamdan's trial, like those of other Guantánamo detainees accused of war crimes, should take place in an ordinary federal court or in a traditional military court," said Jameel Jaffer of the American Civil Liberties Union. "The Guantánamo military commissions allow the government to rely on evidence that the defendant never sees, on hearsay, and on evidence obtained through torture. The commissions are completely inconsistent with the Constitution and should be shut down."

It's likely that if Hamdan is convicted, the question of the constitutionality of the commissions will be challenged again, perhaps back up to the Supreme Court.

In this image reviewed by the U.S. Military, a Guantanamo detainee, left, walks in a fenced-in exercise area as a guard patrols on the grounds of the maximum security prison at Camp 5, at Guantanamo Bay U.S. Naval Base, in Cuba, Sept. 19, 2006.
(AP Photo/Brennan Linsley)

by James Oliphant

For years now, the U.S.-run prison camp at Guantanamo Bay, Cuba, has for many served as an indelible image of the overreach, even the abuse, of American power. Human-rights groups have excoriated it. Scores of lawyers have fought to free its inmates. Both John McCain and Barack Obama have vowed to close the prison if elected.

But there may be sound policy reasons for keeping the facility open deep into the term of the next president.

While an apparent consensus has built that Guantanamo must go, that was the easier question to answer. The far tougher one is what to do with the detainees held there -- those who should be released and those the Pentagon believes must be kept imprisoned, perhaps indefinitely.

"There's not going to be a one-size-fits-all approach to this population," said Matthew Waxman, a former deputy assistant secretary for detainee affairs at the Defense Department. "I'd like to see Gitmo closed and closed quickly, but I also want to see it done right."

The Supreme Court last month gave the 265 remaining detainees at the jail the chance to have their detentions reviewed by a federal court.

Last week, judges on the U.S. District Court in Washington began the formidable task of coordinating those cases and warned the government that they want to make the determinations quickly--by the end of the year in some cases.

Then there is the looming presidential election. The current regime at the Pentagon won't have the authority to decide the detainees' fate, and there may be some incentive to move many of them off the base in the coming months. The presidential transition will also slow the process.

Both situations will push the Bush administration to do something sooner rather than later, but it may be hamstrung by the lack of options for disposing of the detainees.

There are few places where the detainees can be sent. And even fewer that want them.

Read about the future of Guantanamo Bay here at chicagotribune.com.

by Matthew Hay Brown

After a year and a half of pushing unsuccessfully for a timeable for a U.S. withdrawal from Iraq, congressional Democrats have found an ally in Baghdad.

Iraq's national security adviser told reporters in Najaf today that the U.S.-backed government would not agree to the security deal it is negotiating with Washington unless it included details of a pullout.

"We will not accept any memorandum of understanding if it does not give a specific date for a complete withdrawal of foreign troops," National Security Adviser Muwaffaq al-Rubaie said. His comments echoed those made by Iraqi Prime Minister Nuri al-Maliki to Arab diplomats in Abu Dhabi on Monday.

The State Department slapped the Iraqi demand down today.

"The U.S. government and the government of Iraq are in agreement that we, the U.S. government, we want to withdraw; we will withdraw," spokesman Gonzalo Gallegos told reporters. "However, that decision will be conditions-based."

But the demand has found a willing audience among the congressional majority.

"President Bush refuses to listen to Congress or the American people, but he cannot support Iraqi political reconciliation and security and ignore Iraqi Prime Minister Maliki's call for a timetable for the withdrawal," House Speaker Nancy Pelosi said.

by James Oliphant

ABC News is reporting that President Bush may decide in the coming days whether to close or revamp the prison at Guantanamo Bay, Cuba, that holds about 270 alleged terrorists.

Closing Gitmo has been advocated by Defense Secretary Robert Gates, among others, for months. But as ABC's Jan Crawford Greenburg reports, discussions among administration officials have intensified since the Supreme Court last month ruled that the detainees have a right to challenge their detention in federal court.

The court specifically held that because it considers the base at Guantanamo to be U.S territory--ignoring administration contentions otherwise--that the suspected terrorists were held in American custody, granting them some rights under the Constitution.

Soon after the court's ruling, a federal appeals court in Washington, D.C. ruled that the Pentagon had not proved its case for holding a Chinese Muslim detainee. The administration fears a wave of such rulings, largely because the evidence collected in support of the detentions -- either gathered on the battlefield or through interrogations-- isn't the kind of proof that suits a federal proceeding.

by Katie Fretland

No lawmakers were present at President Bush's signing of a $162 billion war-spending bill today, but White House Press Secretary Dana Perino notes: "They're all out of town." Congress is out for a July 4 break.

The bill, however, will double GI bill college benefits for troops and veterans and provide funding for combat operations in Iraq and Afghanistan through the end of Bush's presidency and even further, depending on what the next president decides about the war.

The bill adds more than $650 billion to the Iraq war and $200 billion for the war in Afghanistan. Democrats had tried to force troop withdrawals, but failed.

"I appreciate that Republicans and Democrats in Congress agreed to provide these vital funds without tying the hands of our commanders and without an artificial timetable of withdrawal from Iraq," Bush said.

The new GI bill offers troops and veterans free tuition to the equivalent of the most expensive school in their state and a housing stipend. Those who have served three years in the military are eligible.

by Aamer Madhani

The two U.S. senators from Kansas have what they say is the "gold standard" of military prisons in their back yard, but they have repeated their stance that Kansans want nothing to do with housing Guantanamo detainees.

The debate over what to do with Guantanamo was revived by the Supreme Court decision earlier this month that said the prisoners can ask federal judges to review the government's grounds for keeping them locked up without charges.

The left-leaning Washington think tank, Center for American Progress, has released a report recommending detainees slated for trial in military courts be transferred to the U.S. Disciplinary Barracks at Fort Leavenworth. The suggestion has apparently gotten under two Republican lawmakers' skin.

In a letter Sens. Sam Brownback and Pat Roberts sent to their colleagues yesterday, the two lawmakers laid out the reasons why they believe the Disciplinary Barracks at Fort Leavenworth--the only maximum security lockup in the military system-- isn't secure enough to host some 270 enemy combatants that are now being held at Guantanamo Bay, Cuba.

Here is an excerpt:

by James Oliphant

Earlier this week, it looked like the bill modifying the Foreign Intelligence Surveillance Act would clear Congress by the end of the week and reach the president's desk before July 4.

That may yet happen, but the outcome is less certain, as is the timing.

A vocal minority of Democratic senators are rebelling against the deal reached by Senate and House negotiators, saying that the provisions in the bill dealing with telecom immunity are a sham. The House, pushed by Democratic leaders Nancy Pelosi and Steny Hoyer, passed the compromise bill Friday. And supporters say it balances giving the government needed tools to fight terrorism with sufficient concern for civil liberties.

The bill's passage looked secure earlier this week when the presumptive Democratic nominee, Sen. Barack Obama, said he would vote for it.

But Tuesday night, Sen. Christopher Dodd (D-Conn.) delivered an impassioned address saying that the bill essentially provided immunity to the telecom companies that allegedly assisted the National Security Agency's warrantless wiretapping program to monitor suspected terrorists.

The negotiated compromise would allow a judge to grant immunity to the telecoms if they cooperated with a request from the Attorney General or the head of another agency for assistance, even if the underlying program was unconstitutional or illegal. The companies, such as AT&T and Verizon, are defendants in civil lawsuits for violating individual privacy rights.

Dodd urged his fellow senators not not vote Wednesday to cut off debate on the issue. And he tied granting to immunity to a host of Bush administration policies that he said exhibited a lack of respect for the rule of law:

[W]e are deceiving ourselves when we talk about the U.S. attorneys issue, the habeas issue, the torture issue, the rendition issue, or the secrecy issue as if each were an isolated case! As if each one were an accident! When we speak of them as isolated, we are keeping our politics cripplingly small; and as long as we keep this small, the rule of men is winning.

There is only one issue here. Only one: the law issue.

by James Oliphant and updated

It's back. And just like Michael Myers in Halloween, or Glenn Close in Fatal Attraction or Larry the Cable Guy, it can't be killed by any normal means.

Democratic and Republican negotiators from the House and Senate announced Thursday that they had reached a compromise in the long-running dispute over amendments to the Foreign Intelligence Surveillance Act. The White House and Justice Department have indicated their support for the new bill.

And like any compromise, it's made some people unhappy, setting up almost the same dynamic that existed earlier this year, when a Senate effort to reauthorize the Protect America Act was torpedoed by the House. The House later passed its own bill, which, of course, also went nowhere.

The new bill will be introduced and voted on by the House Friday. And forgive us if you have seen this movie before: The sticking point is whether the telecoms that allegedly participated in the Bush administration's warrantless wiretapping program should be granted retroactive immunity from civil lawsuits alleging privacy violations.

And I can't believe I just wrote that sentence again.

by Frank James

One of the most memorable and chilling lines from today's Senate Armed Services Committee hearing on the treatment of detainees came when Sen. Carl Levin, the Democrat who chairs the committee, referred to the back-and-forth between U.S. government officials as they discussed interrogation techniques that could be used on detainees.

The line, from Jonathan Fredman, a senior Central Intelligence Agency lawyer at the time was: "If the detainee dies, you're doing it wrong."

This led Levin to say, with enough introspection for everyone in the room:

How on earth did we get to the point where a senior U.S. government lawyer would say whether or not an interrogation technique is torture is, quote, "subject to perception," and that if, quote, "the detainee dies, you're doing it wrong?"

The Senate hearing's purpose was to examine how Pentagon lawyers trying to come up with acceptable interrogation techniques received help from U.S. military officials responsible for training American servicemembers on how to handle harsh interrogation techniques should they become prisoners of war.

John Ashcroft, right, and Robert Mueller. (EPA PHOTO/JOE MARQUETTE)

by James Oliphant

Not a tremendous amount of drama emanating out of the Supreme Court Monday, even as the term rushes toward its conclusion.

But the stage is set for one of the more interesting cases next term. It asks the question: When can a cabinet official be sued for the constitutional violations of his subordinates?

The case arises out of the widespread detentions of Arab and Muslim men by the Justice Department following the Sept. 11, 2001 attacks. Javaid Iqbal, a Pakisitani Muslim sued then Attorney General John Ashcroft and FBI Director Robert Mueller over conditions in the Brooklyn jail where he was held. Iqbal has since been deported to Pakistan after pleading guilty to identity fraud.

Normally, administration officials have qualified immunity from lawsuits if they were engaging in a legitimate governmental function. Nor typically are they liable for the acts of low-level subordinates. The U.S. Court of Appeals for the Second Circuit, based in New York, however, allowed the suit to proceed.

Monday, the Supreme Court announced it would review the Second Circuit's decision. Those who believe the appeals court was in error argue that allowing such suits will hamstring government decision-making.

Iqbal worked as a cable television installer on Long Island before being arrested on suspicion of credit card theft. He was placed in the maximum security wing of the Metropolitan Detention Center in Brooklyn, where, he alleges, he was subjected to physical and verbal abuse and humiliation. He was imprisoned for more than a year.

Iqbal claims that Ashcroft and Mueller, as the top officials at Justice, approved and implemented policies that led to the indiscriminate round-up Arab and Muslim men and subsquent abuse inside the prison.

As for this term, a number of high-profile cases have yet to be decided, including the challenge to Washington, D.C. ban on handguns, which has implications for the intepretation of the Second Amendment. The court will release more opinions Thursday.

by James Oliphant

Justice Antonin Scalia is known for his strongly worded dissents, ones where he has never been hesitant to use confrontational and, some would say, even abusive language to make his point as clearly as possible.

But some legal observers believe Scalia crossed a line in his dissent Thursday in the 5-4 decision that granted Guantanamo detainees the right to petition for their release in federal courts.

Scalia vehemently opposed giving the detainees habeas corpus rights, as well as allowing their American lawyers access to classified government information. Scalia's stance, really, is clear from one early sentence: "The United States is at war with radical Islamists."

From Scalia's point of view, allowing a court to interject its judgment instead of that of the military--or even Congress-- will likely lead to more dangerous prisoners being released.

His dissent is a stark condemnation of the majority, to the point of predicting they will have the blood of American soldiers on their hands."The game of bait-and-switch that today's opinion plays upon the Nation's Commander-in-Chief will make the war harder on us," Scalia wrote. "It will almost certainly cause more Americans to be killed."

Certainly, Justice Anthony Kennedy's decision has prompted criticism from many corners, so the question isn't whether Scalia's position is warranted, it's whether he pushed his rhetoric too far as one of nine justices on the nation's most august court.

In an interview Thursday, Jonathan Turley, a law professor at George Washington University in D.C., said he believed Scalia had permanently damaged his reputation and legacy with his remarks. He called his opinion the kind of point that belongs in a "raw, four-in-a-box cable news show."

by James Oliphant

In a body-blow to the Bush administration's anti-terrorism policies, the Supreme Court ruled Thursday that prisoners held at the Navy base at Guantanamo Bay, Cuba have a constitutional right to challenge their detentions in civilian federal courts.

The administration had argued that the military commission system set up by the Pentagon to try suspected terrorists provided enough to satisfy constitutional requirements. The court Thursday disagreed, introducing an element of uncertainty into what happens next regarding the 270 or so remaining detainees held at Guantanamo.

The 5-4 decision was written by Justice Anthony Kennedy, who was always believed to be the crucial swing vote in the case. Chief Justice John Roberts dissented on behalf of the conservative members of the court, Justices Antonin Scalia, Clarence Thomas and Samuel Alito.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Kennedy wrote.

The rebuke of the administration was its third loss before the court on issues relating to the detainees, some of whom have been held in the prisons since 2002 without charges, and this time, the court seemed to emphatically say enough was enough. The court first ruled in 2004 that detainees had the right of habeas corpus--the ability to challenge the basis for an extended detention beyond the normal criminal appeals process--by finding that the federal habeas statute granted them those rights.

Congress responded by passing an act that stripped away those statutory rights. The cases decided Thursday reviewed that act and found that Congress' act was invalid for constitutional reasons, saying that Congress can only suspend habeas in incidences of rebellion or invasion.

by James Oliphant

Sen. Patrick Leahy Friday called for the Justice Department to provide access to the Guantanamo Bay military tribunals for families of the victims of the 9/11 attacks.

In a letter to Attorney General Michael Mukasey, Leahy, the Democratic chair of the Senate Judiciary Committee, complained that only one family member--a supporter of the Bush administration--had been allowed to attend the proceedings this week involving alleged 9/11 mastermind Khalid Sheik Mohammed and other alleged conspirators.

Leahy wrote:

After the 1995 Oklahoma City bombing, we passed several measures to provide for the rights and interests of the victims and their families, including measures to help them attend the trial, and to watch the trial on closed circuit television. I do not understand why similar provisions were not made for the 9/11 families and victims.

We also enacted, as part of the Justice for All Act of 2004 (Public Law 108-405), federal rights for victims. In the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act, we expressly provided for the right to reasonable, accurate, and timely notice of any public court proceeding; the right not to be excluded from any such public court proceeding; the right to be reasonably heard at any public proceeding involving release, plea, sentencing, or parole; the reasonable right to confer with the attorney for the Government in the case; the right to full and timely restitution as provided in law; the right to proceedings free from unreasonable delay; and the right to be treated with fairness and with respect for the victim's dignity and privacy.

I write to you, our chief law enforcement officer, to ask what has been done to ensure that the 9/11 victims are being treated with respect and dignity, and what accommodations were made to protect their rights, given that the Government has chosen to proceed before military commissions at Guantanamo.

Earlier this week, a group of families critical of the tribunals wrote to the Convening Authority, the military officer which oversees the proceedings, to complain they had been excluded.

Khalid Sheik Mohammed, from the FBI via Bloomberg News

by James Oliphant

Khalid Sheik Mohammed, the accused mastermind of the Sept. 11 attacks and the highest of high-level detainees being held at Guantanamo Bay, Cuba, declared Thursday that he would not accept legal representation and would welcome execution for planning the deaths of almost 3,000 people in New York, Pennsylvania and Virginia in 2001.

"This is what I wish,'' Mohammed, speaking in English, told the military judge overseeing his prosecution before a Pentagon military commission, who warned that he might be executed if convicted. "I am looking to be martyred for a long time.''

Mohammed said he was rejecting legal representation and will defend himself. "Nothing shall befall us, save for what Allah has ordained for us.''

As reported by Bloomberg News, Mohammed called the military tribunal trying him on charges at Guantanamo an "inquistion, not a trial."

At a morning meeting with reporters, Attorney General Michael Mukasey had little to say about Mohammed's remarks. "When I was a district court judge, I had defendants who would come in court and would make statements that were unusual," he said. "That's part of the process."

Mohammed and four co-defendants are charged with planning, financing and training the pilots who commandeered the four airliners used to attack the World Trade Center and Pentagon. They face the death penalty if convicted.

He was captured in Pakistan in 2003 and was held by the Central Intelligence Agency before he was transferred to the navy base at Guanantanamo. Mohammed said Thursday that he was tortured while in U.S. custody.

The Defense Department said he bragged about his role in the Sept. 11 attacks during a 2007 preliminary hearing at Guantanamo. He has also claimed responsibility for the death of Wall Street Journal reporter Daniel Pearl in Pakistan.

He said he was declining legal assistance because he subscribed only to Islamic law not the American legal system.

The CIA has admitted that Mohammed was one of the few detainees who was subjected to waterboarding, the interrogation practice that causes the subject to believe he is drowning.

by Andrew Zajac

Justice Department Inspector General Glenn Fine identifies both sins of commission and omission in the FBI's involvement with detainee interrogations in Afghanistan, Iraq and Guantanamo Bay, but the missteps and oversights either weren't frequent enough or big enough to warrant coming down hard on the bureau, according to a report released Tuesday morning.

Fine launched his investigation into FBI interactions with detainees following reports, some from bureau personnel, about abusive tactics employed on people picked up in the war on terror.

The U.S. government's treatment of detainees has been a source of raging controversy in this country, among U.S. allies and within the Muslim world, where most of the detainees come from.

Since it's freshly released and 370 pages long, The Swamp hasn't had a chance to read the report completely, but here's a link to the redacted, unclassified version of the document.

The tortured title of the report -- A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq -- suggests a certain amount of hairsplitting and eggshell-walking.

Among the new findings, Fine identified a renegade FBI effort to subject harsh treatment for Muhammad al Qatani, who allegedly was supposed to serve as an additional hijacker on Sept. 11, 2001:

by Bay Fang

Although mystery still swirls around Saturday's sudden release of Pakistan's ambassador to Afghanistan after over three months in captivity, the Pakistani government insists it did not free any militants in exchange.

"There was no exchange of any militants or terrorists for the release of the ambassador," said Nadeem Kiani, spokesman for the embassy of Pakistan in Washington, DC.

Even if there were no explicit tit-for-tat, the release of Azizuddin could have been used as a pawn in the ongoing negotiations between tribal militants in the region bordering Afghanistan and the young coalition government led by Prime Minister Yousuf Raza Gilani.

A prisoner exchange took place last week as a direct result of the negotiations, with the release of dozens of suspected militants for army officers in Waziristan, a tribal area considered a stronghold of Taliban and al-Qaida militants.

by Frank James

You know all those military recruiting ads you've been seeing during nationally televised sports events, like the one with the Marine Corps Silent Drill Platoon which, through the miracle of digital editing, appears to be going though its paces on Hoover Dam, by the Golden Gate Bridge and atop a giant desert butte? (It's one of my favorites. Sends patriotic chills up my spine.)

Apparently, such ads are doing the trick in terms of recruiting young men and women into the armed forces in more than sufficient numbers.

Once again, Defense Department officials reported that they outdid themselves in April in terms of recruiting.

This is from an American Forces Press Service story:

WASHINGTON, May 12, 2008 - All military services met or exceeded their recruiting goals for April, with the Marine Corps recruiting 142 percent of its goal, Pentagon spokesman Bryan Whitman said here today.

In the re-enlistment arena, the Army, Navy and Marine Corps met or exceeded their active-duty retention objectives. "The Air Force still faces challenges, but they still seem able to meet their year-end strength goals," Whitman said.

by James Oliphant

The chairman of the House Judiciary Committee, John Conyers Jr., Wednesday issued a subpoena to David Addington, chief of staff to Vice President Dick Cheney, commanding him to appear June 26 to testify before a special subcommittee.

The subpoena was authorized at a committee meeating Tuesday. If Addington resists, he could be held in contempt of Congress.

Conyers seeks Addington's testimony about the role Bush administration lawyers played in authorizing extreme interrogation techniques after the Sept. 11 attacks. Several media outlets have outlined his influence as considerable.

Another architect of those policies, former Justice Department lawyer John Yoo, has voluntarily agreed to testify on June 26.

by James Oliphant

The House Judiciary Committee this morning took the next step toward a confrontation with the White House over the issue of harsh interrogation techniques.

It voted to subpoena David Addington, the vice president's chief of staff, to force him to testify about anti-terrorism legal policy he played a primary role in crafting.

Addington refused to appear this morning at a Judiciary hearing designed to probe into the legal advice given the White House in the wake of the Sept. 11 attacks.

If he chooses not to respond to the subpoena, it could set up a constitutional showdown over executive branch authority.

Addington, along with former Justice Department lawyer John Yoo and other high-level administration officials such as Pentagon aide Douglas Feith and CIA director George Tenet, have said that any work they did crafting legal policy is protected from disclosure by the doctrine of executive privilege, which prevents advice given the president from being forcibly revealed.

However, the Associated Press reported Tuesday that Yoo, Feith, former Atty. Gen. John Ashcroft and others have agreed to testify before the committee and that Tenet was in negotiations to do so.

That doesn't mean, however, that they cannot invoke executive privilege when they testify.

by James Oliphant

The House Judiciary Committee Tuesday will again attempt to delve into the thicket of legal advice given the Bush administration concerning its detention and interrogation policies for suspected terrorists.

The hearing is billed "From the Department of Justice to Guantánamo Bay: Administration Lawyers and Administration Interrogation Rules," but it could be less than dramatic.

The committee's chairman, John Conyers Jr. (D-Mich.), requested that current and former administration officials such as David Addington, chief of staff to Vice President Dick Cheney, ex-Atty. Gen. John Ashcroft, former Justice Department lawyer John Yoo appear to testify and former Pentagon official Douglas Feith. All have declined, citing, among other reasons, that their work was privileged. Conyers has threatened to subpoena them.

A similar conflict regarding the administration and executive privilege is playing out in the Senate over the U.S. attorney firings. That has resulted in litigation in the U.S. District Court in Washington.

It was Yoo's 2003 memo, released just last month, that triggered another round of criticism about the administration's anti-terror policies. That memo concluded that neither the U.S Constitution, existing federal law, nor the Geneva Conventions prevented the government from using aggressive interrogation measures. The memo was later rescinded as government policy.

In advance of the hearing, Amnesty International has released a new commercial, centered around the practice of waterboarding, the interrogation method that simulates drowning.(See above.)

Earlier this year, the head of the Central Intelligence Agency, Michael Hayden, told Congress that three detainees had been waterboarded, but none since 2003.

You can read the exchanges between Conyers and lawyers for Addington and others here.

by James Oliphant

The Pentagon announced today that nine more detainees had been released from the prison at Guantanamo Bay, Cuba.

Five are being transferred to Afghanistan, three to the Sudan, and one to Morocco. The Defense Department says all nine were determined to be released following "a comprehensive series of review processes."

"The transfer is a demonstration of the United States' desire not to hold detainees any longer than necessary," the Pentagon said in a statement. "It also underscores the processes put in place to assess each individual and make a determination about their detention while hostilities are ongoing - an unprecedented step in the history of warfare."

Once a detainee is determined to be eligible for transfer, the United States negotiates with his home country to return him.

Amnesty International has attempted to monitor the transfers. One of the detainees, the organization said, is a former Al Jazeera cameraman, Sami al Hajj, who was held at Guantanamo for almost six years. There, the group says, he went on a prolonged hunger strike.

(AP Photo/Themba Hadebe)

by Frank James

False positives in any kind of warning system are a bad thing, whether they're produced by an overly sensitive screening procedure for dangerous, blood-borne viruses or al Qaeda terrorists.

Any screening approach that gives off a lot of bad hits adds to overall costs, and wastes time and attention needed to deal with the actual threat.

If you're getting a lot of false positives, you've got a problem that needs fixing and quickly.

Unless, that is, you're the federal government which appears to be stuck with a terrorism watch list that gives off many false positives and yet seems unable to do much about it.

The latest example of this is found in a USA Today story by Mimi Hall who writes that the U.S. terrorism watch list contains the name of Nelson Mandela, the 89-year old Nobel Peace Prize laureate and former president of South Africa, one of the most beloved and respected human beings on the planet.

Mandela and other South African officials are on the terrorist list because they're members of the African National Congress, South Africa's dominant political party.

Before it came to power in 1994 however, the ANC used violence to overthrow the racist apartheid regime in South Africa, a government which labeled it a terrorist group. And it is still evidently listed that way for U.S. terror watch list purposes.

by James Oliphant

The Senate Judiciary Committee Thursday approved a bill that attempts to limit the government's use of the state secrets privilege, a broad-based evidentiary claim based on national security concerns that the Bush administration has used frequently in court cases involving the government.

Federal courts have routinely dismissed lawsuits over the National Security Agency's warrantless wiretapping program and the government's use of detention, interrogation and "extraordinary rendition" after the privilege has been cited because the suits cannot proceed with the requested evidence.

The government has even been able to use it successfully in cases in which it isn't the defendant, such as the wiretapping suits against telecom companies, to knock out the claims.

A federal judge in Chicago Wednesday took the rare step of disagreeing with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watch list, saying the plaintiff, a local businessman, could find out whether his name is on the list.

by James Oliphant

The American Civil Liberties Union Thursday filed suit against the Department of Defense in a Washington, D.C. federal court, seeking records related to all deaths of detainees at Guantanamo Bay.

The suit, filed under the Freedom of Information Act, asks for all records relating to deaths, attempted suicides and attempted homicides since January 2002. It specifically mentions four prisoner deaths, labeled by the government as suicides.

The group alleges that because of Pentagon policies and practices at Guantanamo Bay, which they say includes prisoner abuse, "hunger strikes and suicide attempts began soon after the camp opened." And it points to media reports that suggest that 41 suicide attempts had occurred by June 2006.

It complains that administration officials have not taken such problems seriously, instead labeling them "asymmetric warfare" and "PR move." The Bush administration has declared the prisoners to be "enemy combatants," but does not consider them prisoners of war who must be given rights under by the Geneva Conventions.

“Over six years into Guantánamo’s existence, there have been dozens of suicide attempts and four apparent suicides and yet the Bush administration refuses to come clean about what happened, when, and most importantly, why,” said Hina Shamsi, staff attorney with the ACLU National Security Project, in a statement. “The secrecy surrounding deaths at Guantánamo hides the dire consequences of indefinite detention from the American public. The prison camp is a blight on America’s conscience and the public needs to know the truth about what is going on there.”

When three suicides occurred in June 2006, deputy assistant Secretary of Defense Cully Stimson said, "What I would say is that we are always concerned when someone takes his own life. Because as Americans, we value life, even the lives of violent terrorists who are captured waging war against our country," he said.

About 280 detainees remain at the Cuban base, less than half of the prison's population at its peak.

You can read the ACLU's complaint here.

by Frank James

In his testimony before the Senate Armed Services Committee this morning, Gen. David Petraeus called for a controversial 45-day pause in U.S. troop drawdowns after the reduction of American surge forces is completed in July.

That pause would allow U.S. officials to reassess security conditions in Iraq which would dictate the pace of future reductions of U.S. troops, the top American commander in Iraq told the senators.

To do otherwise would risk the fragile improvements in security achieved by U.S. and American forces since the surge began early last year, said Petraeus, who outlined the successes and challenges ahead for U.S. and Iraq officials and warned that the gains reached so far were "reversible."

Also, Petraeus was sure to draw the ire of anti-war members of Congress for warning that if the U.S. did not stick with his program, that would be giving the al Qaeda terrorist group a greenlight to get busy expanding its role in Iraq. Many critics have accused the Bush Administration of hyping the al Qaeda threat in Iraq in order to continue high troop levels there.

Petreaus's position wasn't a surprise since the idea of a pause has been discussed by Bush Administration and U.S. military officials. But his official testimony now gives the debate over how to proceed in Iraq another jolt of momentum.

Petraeus said:

"After weighing these factors I recommended to my chain of command that we continue the drawdown in the surge combat forces and that upon the withdrawal of the last surge brigade combat team in July, we undertake a 45-day period of consolidation and evaluation.

At the end of that period we'll commence a process of assessment to examine the conditions on the ground and to determine when we can make recommedations for further reductions. This process will be continuous with recommendations for further reductions made as conditions permit.

This approach does not allow establishment of a set withdrawal timetable. However it does provide the flexibility those of us on the ground need to preserve the still fragile secutiry gains our troopers have fought so hard and sacrificed so hard to achieve. With this approach the security achievements of 2007and early 2008 can form the foundation for the gradual establishment of sustainable security in Iraq.

This is not only important to the 27 million citizens of Iraq it is also vitally important to those in the Gulf region, to the citizens of the U.S. and the international community. It's clearly in our national interest to help Iraq prvent the resurgence of the al Qaeda in the heart of the Arab world, to help Iraq resist encroachment on its sovereignty, to avoid renewed ethno-sectarian violence that could spill over Iraq's borders and make the existing refugee crisis even worse and to enable Iraq to expand it's role in the regional and global economies.

by James Oliphant

Senate Democrats today sent a letter to President Bush, accusing him of taking his "eye off the ball" with respect to global counter-terrorism efforts. Sen. Harry Reid, the majority leader, and others say that the White House has committed too much of the nation's resources to Iraq while neglecting terror-havens Afghanistan and Pakistan.

Here's Reid:

While violence and the drug trade have surged in Afghanistan and Pakistan’s security remains fragile, we are distracted by an endless civil war in Iraq. To make America more secure, we must refocus on hunting down a resurgent Al Qaeda, securing a troubled Afghanistan and rebuilding our overburdened and misused military.

Joe Biden, chair of the Senate Foreign Relations Committee added:

While we look forward this week to hearing from Ambassador Crocker and General David Petraeus on Iraq, Afghanistan and Pakistan must also be an urgent priority. Afghanistan is slipping toward failure and the instability in Pakistan continues. As a result, he border area between the two remains a freeway of fundamentalism, where those who actually attacked us on 9/11 have regrouped. Afghanistan’s fate is directly tied to Pakistan’s future and America’s security.This Administration cannot continue to treat the region as an afterthought.

From the May issue of Vanity Fair.

by James Oliphant

The May issue of Vanity Fair contains an article that contends the Bush administration supported using extreme and perhaps torturous interrogation techniques at its highest levels.

The article, written by British law professor Phillipe Sands, maintains that an aggressive approach to questioning detainees at Guantanamo was encouraged by senior advisers to Vice President Dick Cheney and Defense Secretary Donald Rumsfeld, among others. Some of their inspiration came from the actions of the fictional star of the series "24," Jack Bauer.

It comes just as the Justice Department has released a declassified memo from 2003 that outlined the legal justification for military interrogators to employ harsh interrogation techniques. That memo laid out the administration's view that members of al Qaeda and the Taliban were not protected by the Geneva Conventions.

by James Oliphant

The Justice Department late Tuesday released a declassified 2003 memorandum long sought by congressional Democrats and other administration critics that outlines the government's legal justification for harsh interrogation techniques used by the military against captured enemy combatants outside the United States.

(Here are part one and part two of the memo.)

The memo, written by John Yoo, then a key architect of legal policy in the wake of 9/11, dismisses several legal impediments to the use of extreme techniques.

Yoo was long a proponent of an aggressive approach in the war against terrorism and a believer in executive branch authority. But the memo was withdrawn as formal government policy less than a year after it was written.

In the March 14, 2003 memo, Yoo says the Constitution was not in play with regard to the interrogations because the Fifth Amendment (which provides for due process of law) and the Eighth Amendment (which prevents the government from employing cruel and usual punishment) does "not extend to alien enemy combatants held abroad.":

by James Oliphant

Sen. Russ Feingold Tuesday called out Mike McConnell, the Director of National Intelligence.

Feingold (D-Wis.) sent McConnell a sharply-worded letter concerning McConnell's speech at Furman University on Saturday. McConnell spoke about the legislative battle over the Foreign Intelligence Surveillance Act, and here's what he said that rankled Feingold:

We had a bill go into the Senate. It was debated vigorously. There were some who said we shouldn't have an Intelligence Community. Some have that point of view. Some say the President of the United States violated the process, spied on Americans, should be impeached and should go to jail. I mean, this is democracy, you can say anything you want to say. That was the argument made. The vote was 68 to 29.

And indeed, the Senate FISA bill passed with wide bipartisan support. (The House passed a different bill, and currently leaders of both chambers are trying to figure out how to move forward in a way that can garner some Republican votes and avoid a White House veto.)

But Feingold objected to McConnell's characterization of the floor debate (i.e., some Democrats are Communists.) and wrote him the following:

by Frank James

The New York Times does American journalism proud today with some excellent reporting on a laxly run Pentagon procurement program that resulted in what appears to be a small company of arguably dubious qualifications providing old and faulty ammunition, or ammo from illegal Chinese sources, to Afghanistan security forces.

The story is a powerful example of what journalism at its best can do to shine a spotlight on troubling government actions that taxpayers have a right to know about.

In this case, it appears that even the Pentagon benefited from the NYT investigation. As a result of the newspaper's probe, the Defense Department has suspended the contract with the company, AEY, based in Miami Beach.

The story is at times complex since it involves the murky world of arms depots in the former Soviet bloc and extends into the really opaque world of global illegal arms trafficking.

But some things seem easy to understand. For instance, the Pentagon apparently does very little to investigate the backgrounds of such contractors. Also, in this case and probably others, it seems clear the Pentagon didn't do nearly enough to understand the sources of the ammunition and other products AEY was providing to the Afghans through the Pentagon.

Here's the top of the must-read story by C. J. Chivers, Eric Schmitt and Nicholas Wood:

Since 2006, when the insurgency in Afghanistan sharply intensified, the Afghan government has been dependent on American logistics and military support in the war against Al Qaeda and the Taliban.

But to arm the Afghan forces that it hopes will lead this fight, the American military has relied since early last year on a fledgling company led by a 22-year-old man whose vice president was a licensed masseur. .

Andrew Zajac

As the five year anniversary of the invasion of Iraq approached, the Pentagon earlier this month quietly released a lengthy study of documents captured during and after the U.S. invasion which found no pre-9-11 link between Saddam Hussein and Al Qaeda.

A purported tie between the two was part of the U.S. justification for March 2003 U.S. invasion.

The review did find "strong evidence that links the regime of Saddam Hussein to
regional and global terrorism."

Andrew Zajac

A Justice Deparment Inspector General report out this morning lauds the FBI for developing a generally careful process for collecting names for the terrorism watch list, but nonetheless notes troubling difficulties including failure to remove names when appropriate.

The watch list was set up by the federal government following 9-11 to collect names of people with possible links to terrorism. It contained about 860,000 names as of last October.

by James Oliphant

As promised, the White House is not happy with the FISA bill passed by the House Friday. Here's deputy press secretary Tony Fratto:

Today, the House of Representatives took a significant step backward in defending our country against terrorism and passed a partisan bill that will please class-action trial lawyers at the expense of our national security. Their bill would make it easier for class-action trial lawyers to sue companies whose only “offense” is that they are alleged to have assisted in efforts to protect the country after the attacks of September 11.

These companies already face multibillion-dollar lawsuits, but even the status quo -- which our intelligence professionals have said is undermining our ability to get cooperation from the private sector -- is better than the alternative proposed in the House bill, which would preserve these lawsuits and give trial lawyers more weapons to attack companies for doing their patriotic service. The good news is that the House bill will be dead on arrival in the Senate and, in any event, would be vetoed by the President if it ever got to his desk.

And to provide counterpoint, we give you Patrick Leahy, chairman of the Senate Judiciary Committee.

I commend the House of Representatives for passing its amendment to the Senate’s FISA Amendments Act of 2007. It is a step forward, and a good bill. The Senate-passed legislation has a number of serious failings and does not adequately protect the privacy and civil liberties of Americans. The House bill adds several crucial protections without interfering in any way with this important new surveillance authority.

For the last month, the House has worked with Democratic Senators, and House leaders have repeatedly sought to work with congressional Republicans and the administration to fashion reasonable compromise legislation. Unfortunately, congressional Republicans and the administration have refused to engage in meaningful discussions or negotiations about the legislation.The White House has tried, again, to treat Congress like a rubber stamp.

Sigh. Have we mentioned how we are looking forward to the recess?

by James Oliphant

Minutes ago, the House passed its version of the amendments to the Foreign Intelligence Surveillance act.

The measure passed 213-197.

Because the bill differs substantially from the Senate version, the bills will have to be reconciled in a conference committee before a final version can be voted on and then sent to the president. That's not going to be an easy negotiation. And there may not be a negotiation at all if the Republicans have their way.

Sen. Harry Reid, the majority leader, knows this. Minutes ago, he released a statement saying:

I am very encouraged by House passage of a new FISA bill. The new House version adopts the basic structure of the Senate-passed bill, but contains added privacy protections. Now is the time for Republicans to come to the negotiating table so we can resolve the last few issues. The president should stop giving high-handed speeches in the Rose Garden and start working with Congress to finalize this important national security bill.

by James Oliphant

The House of Representatives, with more than 400 cars parked outside with their engines running, is currently debating proposed amendments to the Foreign Intelligence Surveillance Act, the statute that regulates the government's ability to spy on foreign agents.

These are the amendments drafted by the House leadership, not the Senate bill that passed in February. Right now, you can watch on C-SPAN the Republican minority demanding that a vote be allowed on the Senate bill, which passed with bipartisan support, or you can, you know, do a number of things that might be more enjoyable.

Last night, the House met in a secret session that allowed Republicans to use sensitive intelligence information to make their case in support of the Senate bill. Minority whip Roy Blunt (R-Mo.) called the session "productive."

House leadership won't let the Senate bill reach the floor today, however, for fears that it might pass by a slim majority. The question is whether the Republicans can stop a vote on the House bill.

The House is scheduled to adjourn this afternoon for a two-week recess, so the clock is ticking.

The sticking point is, as you probably know by now, whether telecom companies that cooperated with the National Security Agency's warrantless wiretapping program should be given immunity from civil suits. The FISA bill codifies that now-defunct NSA program.

The Senate bill provides immunity. The House provides a more limited form, and provides for greater judicial review of government wiretaps. The White House has vowed to veto any bill that doesn't grant total immunity.

by James Oliphant, and updated

UPDATE: The House is scheduled to go into closed session tonight at 8 pm to debate FISA. The session will last one hour.

Rep. Roy Blunt, the House's minority whip, wants to get down to the nitty-gritty.

Blunt was pushing the House to meet in a closed session to debate proposed amendments to the Foreign Intelligence Surveillance Act.

He says he wants the House to meet in private to keep political theater to a minimum -- and perhaps to share some classified information. The last time the House did so was back in 1983.

The battle lines over FISA have been drawn. The White House and congressional Republicans are exhorting House Democrats to support a bill passed last month by the Senate that upgrades FISA, gives the administration expanded surveillance powers, and provides telecom companies with civil immunity from lawsuits over aiding the government's wiretapping efforts.

The House this week floated a new proposal, which would offer some limited immunity and give the telecoms the chance to contest some lawsuits in closed courtrooms. It also would force the Justice Department to get approval from the secret court that oversees surveillance of foreign agents before any new wiretaps are put in place. The Senate version gives Justice officials five days after a tap to obtain approval.

by Frank James

Rep. Steve King, an Iowa Republican, has a vision of what the world will look like if Sen. Barack Obama wins the White House. There will be a lot of dancing and celebrating in the streets.

But the streets he's talking about aren't in Illinois, South Carolina or California. No, the streets he's talking about are on the other side of the globe. Check out these comments he made during an interview in at KICD radio in Spencer, Iowa as reported by the Spencer Daily Reporter.

It was during a stop at the KICD studios in north Spencer that he also talked about the presidential campaign and his decision not to run for the U.S. Senate seat held by Tom Harkin. King said he would support presumptive GOP nominee John McCain in part because of alternatives coming from the Democratic Party.

"I don't want to disparage anyone because of their race, their ethnicity, their name - whatever their religion their father might have been," he said. "I'll just say this: When you think about the option of a Barack Obama potentially getting elected President of the United States -- I mean, what does this look like to the rest of the world? What does it look like to the world of Islam?"

He continued: "I will tell you that, if he is elected president, then the radical Islamists, the al-Qaida, the radical Islamists and their supporters, will be dancing in the streets in greater numbers than they did on September 11 because they will declare victory in this War on Terror."

King thinks radical Islamists will say the United States has capitulated because the Obama administration would be pulling troops out of any conflict associated with al-Qaida.

"Additionally, his middle name (Hussein) does matter," King said. "It matters because they read a meaning into that in the rest of the world. That has a special meaning to them. They will be dancing in the streets because of his middle name. They will be dancing in the streets because of who his father was and because of his posture that says: Pull out of the Middle East and pull out of this conflict."

He continued: "There are implications that have to do with who he is and the position that he's taken. If he were strong on national defense and said 'I'm going to go over there and we're going to fight and we're going to win, we'll come home with a victory,' that's different. But that's not what he said. They will be dancing in the streets if he's elected president. That has a chilling aspect on how difficult it will be to ever win this Global War on Terror."

King made his remarks after describing how the presidential campaign played a factor in his decision to run for a fourth term in Congress instead of the U.S. Senate seat held by Harkin.

by James Oliphant

Democratic reaction to the president's veto today of a bill that prohibits the CIA from using harsh interrogation tactics such as waterboarding has been fast and furious.

President Bush announced the veto during his weekly radio address. And in a message to Congress today, Bush said he vetoed the bill because it "is vitally important that the Central Intelligence Agency be allowed to maintain a separate and classified interrogation program" from the military.

The bill requires CIA agents to abide by interrogation limits set by the Army Field Manual, which guides troops in the field, and had the support of many retired senior military officers. The CIA, however, opposed the legislation.

Sen. Harry Reid, the Senate Majority Leader, released a statement saying:

"The president has once again compromised the moral leadership of our nation. In vetoing the Intelligence Authorization bill that would establish a single, government-wide interrogation standard, the President has substituted his own judgment for that of dozens of bipartisan military and foreign policy experts – including Gen. Petraeus – who agree that torture is counterproductive.

Sen. Jay Rockefeller said the president had weakened the nation's legal and moral authority:

"As Chairman of the Senate Intelligence Committee, I have heard nothing to suggest that information obtained from enhanced interrogation techniques has prevented an imminent terrorist attack. And I have heard nothing that makes me think the information obtained from these techniques could not have been obtained through traditional interrogation methods used by military and law enforcement interrogators. On the other hand, I do know that coercive interrogations can lead detainees to provide false information in order to make the interrogation stop.

Sen. Joseph Biden, the chairman of the Senate Foreign Relations Committee, said the president had "squandered an opportunity to reaffirm our nation’s commitment to our international treaty obligations and to our fundamental values."

by James Oliphant

It's okay, kids. You can go to South Padre Island and Panama City Beach. Go wild.

John Boehner and Mitch McConnell say it's safe.

"Al Qaeda is not going on Spring Break next week," the Congressional Republican leaders said Friday.

All right, that's not exactly what they meant, but you can't leave such jarring juxtaposition lying around unused.

Instead, they were taking House Democrats to task over -- you guessed it -- their lack of action on proposed amendments to the Foreign Intelligence Surveillance Act that would permanently expand the government's power to spy on foreign agents here and abroad. A temporary upgrade known as the Protect America Act expired last month after House leaders decided it would be better to let it lapse than hurriedly sign off on a bill that had passed the Senate immediately before the deadline.

Since then, Ds and Rs have been in FISA food-fight, with the Republicans saying the Ds have gone squishy on national security and the Dems accusing the GOP and the White House of fear-mongering. Democrats say the country's intelligence-gathering capacity right now remains as effective as ever.

In a statement released today, Boehner and McConnell said:

The only thing now keeping intelligence officials from having every tool they need to monitor and disrupt terrorists is the Democratic House leadership, which has repeatedly delayed action and is now poised to go on a second vacation without revising the law. It is not too late for the House leaders to change direction and fix this crucial law.

The sticking point remains whether to provide immunity for telecom companies that cooperated with the National Security Agency's now-defunct wireless wiretapping program. Some of the elements of that program have been incorporated in the Senate bill, which does provides immunity to the telecoms. Senate Democrats such as Jay Rockefeller say that corporations won't cooperate with the government in the future if there is a risk they could be sued for their involvement.

Congressional Democratic leaders have been working on a piece of compromise legislation which would grant some level of immunity. The question is whether the bill will get finished before Congress breaks for a two-week recess at the end of next week for -- Spring Break!

If you're wondering, Nancy Pelosi and Steny Hoyer will be buying the jello shots at Senor Frog's.

by Frank James

The American Civil Liberties Union is warning today that by July there could be as many as one million names in terrorist watch-list databases maintained by the federal government, with many of the names those of innocent people who get repeatedly hassled by additional security scrutiny when they attempt to fly.

To reinforce its point, the ACLU has a website with a counter (odometer-like counters are very popular with advocacy groups in Washington) which provides a visual reminder of how large the watch lists are.

Here's part of what the ACLU said in its release:

“At the current rate of growth, the U.S. watch lists will contain a million records by July. If there were a million terrorists in this country, our cities would be in ruins,” said Barry Steinhardt, director of the ACLU’s Technology and Liberty Program. “The absurd bloating of the terrorist watch lists is yet another example of how incompetence by our security apparatus threatens our rights without offering any real security.”

The new counter features a rolling, odometer-style display with a real-time readout showing how many individuals are on the list at a given moment. The figures are extrapolated from a September 2007 report by the Inspector General of the Department of Justice, which reported that the Terrorist Screening Center had over 700,000 names in its database as of April 2007, and that the list was growing by an average of over 20,000 records per month. As of today, the list stands at approximately 917,000 names.

“Homeland Security’s handling of the watch lists is typical of this administration’s blundering approach to the war on terror,” said ACLU Senior Legislative Counsel Tim Sparapani. “Create sprawling new systems for sifting through the population, throw an indiscriminately broad range of names into the mix, fairly or not, and treat the rights of innocent people as an afterthought.”

The watch lists are used for a growing array of purposes, most notably for subjecting domestic airline passengers to additional screening (and often far more intense law enforcement scrutiny), selecting individuals for scrutiny and interrogation at the nation’s borders, and for excluding people from the country entirely.

by James Oliphant

William Haynes IV, who as general counsel to the Pentagon for the past seven years has been a member of the tight-knit group of policymakers responsible for the administration's anti-terrorism policies, is departing for the private sector.

In his role, Haynes has been in part responsible for the some of the government's most aggressive -- and controversial -- policies, including the establishment of military commissions to try terror suspects, extreme interrogation techniques such as waterboarding, the treatment of prisoners in Guantanamo, Iraq, and Afghanistan. Specifically, it was his role in approving the administration's early detention policies, designating prisoners as "enemy combatants" and not prisoners of wars under the Geneva Conventions, that cost him a federal judgeship on the U.S. Court of Appeals in Richmond, Va. when the Senate failed to act on his nomination.

Haynes, 49, is expected to take a job in the private sector.

(AP Photo/Alastair Grant)

by James Oliphant

A wave of finger-pointing has come in the wake of the decision Thursday by Democratic leaders in the House to adjourn rather than take up the Protect America Act before it expires Saturday.

Speaker Nancy Pelosi said she would not push through a Senate bill passed Tuesday reauthorizing the surveillance act because the House did not have enough time to debate its provisions, particularly one that grants retroactive immunity to telecom companies for their role in aiding the administration's warrantless wiretapping efforts. The Senate bill appeared to have the support of a slim majority in the House.

Instead, the House will be out for 12 days. When it comes back, it will return to reconciling the Senate bill with a measure it passed in November that does not have the immunity provision.

The White House and congressional Republicans have seized on the action, saying Democrats are putting the nation's security at risk.

by James Oliphant

It’s political gamesmanship of the highest order.

House Republicans have just staged a walkout from the chamber to protest the decision of Speaker Nancy Pelosi and the Democratic leadership to let an act that expands the government’s surveillance powers expire.

Republican leader John Boehner (R-Ohio) is giving a press conference on the Capitol steps right now, saying that the decision of the House to debate a contempt resolution involving former White House officials instead of taking up the Protect America Act jeopardizes national security. He said the House Republicans would stay in Washington as long as necessary to finish the bill.

Pelosi and the Democratic leadership believe there isn’t enough time to reconcile the differences between the Senate and House versions of the act, which would make adjustments to the Foreign Intelligence Surveillance Act permanent, giving the government more power to monitor phone calls and emails without a court order in certain circumstances. The Democrats want a second extension of the current act to work out the differences.

The Senate bill, which passed with 68 votes earlier this week, provides telecom companies that cooperated with the administration’s now-defunct warrantless wiretapping program with immunity against civil lawsuits. The House bill provides no such protection. And there are other key differences as well.

Earlier today, President Bush said he would delay his trip to Africa in order to finish work on the bill. The Protect America Act expires Saturday. In remarks at the White House, Bush said:

Earlier this week the Senate did act, and passed a strong bill, and did so with a bipartisan majority The Senate bill will ensure that we can effectively monitor those seeking to harm our people. The Senate bill will provide fair and just liability protection for companies that assisted in the efforts to protect America after the attacks of September the 11th. Without this protection, without this liability shield, we may not be able to secure the private sector's cooperation with our intelligence efforts. And that, of course, would put the American people at risk.

Now it's the House's turn to act. It is clear that the Senate bill would pass the House with bipartisan support. Republicans and Democrats in the Senate can put partisanship aside, and pass a good bill. There's no reason why the House cannot do the same, and pass the Senate bill immediately.

Andrew Zajac

A senior Justice Department official edged close to saying that waterboarding is illegal, according to his remarks prepared for delivery this morning to the House Judiciary Committee.

"There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law," said the Download file text of the statement of Steven Bradbury, acting head of DOJ's Office of Legal Counsel.

by Aamer Madhani

As a former resident of the Hanoi Hilton, Sen. John McCain had a certain gravitas when he spoke about torture—particularly when he spoke out against the widely condemned interrogation technique called waterboarding.

You can go back just a few months to when then presidential contender Rudolph Giuliani seemed to equivocate before a forum of potential voters in Iowa on whether waterboarding is, in fact, torture.

“It depends on how it’s done,” Giuliani said. “It depends on the circumstances. It depends on who does it.”

by Aamer Madhani

The Pentagon outlined its plans this morning to seek the death penalty against six terrorist suspects accused of planning, funding and organizing the Sept. 11 terrorist attacks--a trial that will undoubtedly refocus attention on the controversial military tribunal system at Guantanamo Bay.

The charges filed against the six, including purported Sept. 11 mastermind Khalid Sheik Mohammed, are for a litany of crimes of war and include conspiracy, murder, attacking civilians, terrorism and supporting terrorism. All six are being held at Guantamo Bay, Cuba.

"These charges allege a long term, highly sophisticated, organized plan by al-Qaeda to attack the United States of America," Brig. Gen. Thomas W. Hartmann, the legal adviser to the tribunal system, told reporters at news conference at the Pentagon.

Besides Mohammed, Walid Muhammad Salih Mubarek Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi, and Mohamed al Qahtani are charged as co-conspirators to the most deadly terrorist attack on U.S that left 2,973 people dead. Mohammed, Bin 'Attash, Binalshibh and Ali are also charged with hijacking or hazarding a vessel in connection with the four airplanes that were used in the attack.

Since its opening, Guantanamo has been criticized by some for being little more than an U.S. sanctioned gulag—where the ideals of American jurisprudence have been thrown out. The military tribunal has been criticized for it rules on legal representation for suspects, hearings behind closed doors and Guantanamo has been blasted for allegations of inmate abuse.

But Hartmann said the six accused men would be given the same rights as U.S. troops tried under a military justice system. The military is the process of forwarding to the convening authority for military commissions, Judge Susan Crawford, who can decide to refer some or all of them for trial.

Andrew Zajac

Interesting note in this morning's report from the Justice Department's Inspector General Glenn Fine. The bulk of the report summarizes investigations of alleged civil liberties violations, as authorized by the USA PATRIOT Act.

Fine didn't find much there. The intriguing part is on page 9, section C, titled "Review of FBI Conduct Relating to Detainees in Military facilities in Guantanamo Bay and Iraq."

by James Oliphant

Sen. Dick Durbin has cleared the way for Chicago federal judge Mark Filip to receive an up-or-down floor vote in the Senate, and he is expected to be confirmed as the deputy attorney general perhaps as early as Monday.

Durbin, the Senate's majority whip, lifted his hold on Filip's nomination after Atty. Gen. Michael Mukasey responded to Durbin's concerns about the Justice Department's refusal to declare the practice of waterboarding illegal.

Mukasey didn't give Durbin the answers he was looking for; instead, the attorney general declined to open a criminal investigation into whether the department violated the law years ago in authorizing the Central Intelligence Agency to employ waterboarding.

by James Oliphant

Illinois Sen. Dick Durbin today demanded that Atty. Gen Michael Mukasey open a criminal probe into whether CIA officials broke the law in employing the interrogation technique known as waterboarding on three suspected terrorists.

Durbin, the Senate majority whip, says he will continue to hold up a confirmation vote on Chicago federal judge Mark Filip as the deputy attorney general until he receives a satisfactory response from Mukasey.

Durbin's request comes after CIA director Michael Hayden told a congressional committee today that waterboarding had only been used "only three detainees." Last week, Mukasey appeared before the Senate Judiciary Committee and said he would not flatly declare waterboarding to be illegal, but said he indicated there were some circumstances where it could be.

National Intelligence Director Mike McConnell on Capitol Hill, February 5, 2008, (Photo by Alex Wong/Getty Images)

by Frank James

At today's hearing at which the nation's top intelligence officials were reporting to the Senate Intelligence Committee on the threats facing the U.S., National Intelligence Director Mike McConnell was asked by Sen. Dianne Feinstein (D-Calif.) about a quote attributed to him in a recent New Yorker magazine article which seemed to suggest he personally viewed waterboarding as torture.

McConnell said that when he was interviewed by writer Lawrence Wright, he did say that he personally would find it painful to have water drip into his nose but said he was basing that on his own anatomical peculiarities. He wasn't making a legal or value judgment about waterboarding.

He also described a 90-minute back and forth he had with the New Yorker writer as he tried to get the journalist to change the quote to, in McConnell's eyes, better reflect what he insisted he meant.

Here's McConnell's exchange with Feinstein:

SEN. FEINSTEIN: And I was reading a New Yorker article about your interview on the subject of waterboarding and coercive interrogation techniques, and I gather that you felt that for yourself, if used, waterboarding would, in fact, constitute torture. Is that correct?

MR. MCCONNELL: No, ma'am, that's not correct. The discussion was about something entirely different. It was a personal discussion about when I grew up and what I was doing as a youngster. And the discussion was framed around being a water safety instructor. Some people, and I'm one of them, have difficulty putting my head under water. If your head goes under water, I ingest water in my nose.

So what I was having the discussion with the journalist is about being a water safety instructor and teaching people to swim. He said, "Well, what about when water goes up your nose?" And I said, "That would be torture." I said it would be very painful for me.

by James Oliphant

The American Civil Liberties Union goes to court today in Northern California to prevent dismissal of its suit against a subsidiary of Chicago-based Boeing Co. over its alleged participation in the government's terrorist rendition program.

The ACLU says that Jeppesen Dataplan, Inc. conducted more than 70 flights in a four-year helping the Central Intelligence Agency transport accused terrorists to secret sites overseas where they could be interrogated and tortured.

It points to an affidavit from a former Jeppesen employee, who said he attended a meeting in which a senior Jeppesen executive freely admitted that the company did the rendition flights, calling them "torture flights" and saying the company was well-paid for its services.

by James Oliphant

Atty. Gen. Michael Mukasey continued Wednesday to hedge on the legality of the interrogation technique known as waterboarding, frustrating some members of the Senate Judiciary Committee.

Mukasey was appearing before the committee for the first time since it voted to confirm him as Alberto Gonzales’s successor in November.

During that confirmation hearing, Mukasey jeopardized his nomination by refusing to brand waterboarding as illegal torture. But he promised to research the issue once confirmed and report back to the Senate.

But prior to his testimony Wednesday, Mukasey sent a letter to Judiciary chairman Patrick Leahy of Vermont, telling him that because waterboarding currently isn’t authorized for use by Central Intelligence Agency operatives, he could not opine on its legality. (The CIA has, according to the administration, used the technique in the past on suspected terrorists.)

“I do not believe that it is advisable to address difficult legal questions about which reasonable minds can and do differ, in the absence of concrete facts and circumstances,” Mukasey said in the letter.

by James Oliphant, and updated

Update: The House instead passed a 15-day extension after the 30-day one appeared unable to gain the 2/3 majority needed for approval. The extension will now go to the Senate.

The House is set to vote on a 30-day extension for the Protect America Act this afternoon.

If that passes, expect the Senate to do the same before the act expires on Friday, despite some major-league hemming and hawing from Republicans. That would give the Senate leadership time to negotiate on moving forward on Judiciary Committee amendments to the renewal legislation that came out of the Senate Intelligence Committee.

However, this afternoon there were indications that House may not pass the extension after all, throwing the future of the act into serious jeopardy. The House is expected to depart for a retreat after today and would not be able to deliberate any further on the legislation, which would permanantly expand the government's eavesdropping powers under the Foreign Intelligence Surveillance Act.

The act was passed last summer as an emergency replacement for the administration's now-defunct warrantless wiretapping program for suspected terrorists. It allowed the government to bypass FISA's requirement to obtain a court order to put a wiretap in place if the communication started or ended in a foreign country, provided a certain criteria was met. The act contained a sunset provision for Feb. 1.

by James Oliphant

This week's fracas over the Foreign Intelligence Surveillance Act (see below) promises to be at least a short-term campaign issue.

Within minutes of today's action on the Senate floor, the Republican National Committee criticized Sens. Hillary Clinton and Barack Obama (both making cameo appearences in the chamber) for voting against cutting off debate on the bill and thus delaying its passage.

"If Sens. Obama and Clinton were serious about national security they would realize that while our ability to monitor terrorist communication expires in a matter of days, the terrorist threat against our families will not,” said Mike Duncan, the RNC chairman.

Expect President Bush to mention the FISA bill tonight in the State of the Union address, putting more pressure on congressional Democrats to get something done by the end of the week. Leaders in both houses want more time to consider potential amendments that they say would protect Americans' privacy and are seeking an extention to finish the bill.

Meanwhile, Sens. Patrick Leahy and Russ Feingold, two members of the Judiciary Committee who are trying to get some of those amendments approved, blasted Republican senators' attempts to force the bill to a vote. “The Senate today rejected the tactics of obstructionism and delay employed by the Republican minority and the White House," Leahy said. "In refusing to allow the entire Senate the opportunity to openly and fairly debate the important issue of amending our surveillance laws, Republicans have brought to a screeching halt the Senate’s extensive efforts over the last several months to protect this country and the privacy and civil liberties of all Americans."

The drama continues tomorrow when the Senate will take up the bill anew.

by James Oliphant

A few minutes ago, the effort of the White House and Senate Republicans to cut off debate on the Foreign Intelligence Surveillance Act renewal bill failed by a 48-45 floor vote in the Senate. Sixty votes is needed to cut off debate.

The bill would supplant the current Protect America Act, which expires Friday, and reauthorizes the government's extensive domestic wiretapping regime when it comes to gathering intelligence from foreign agents in the United States.

The vote threw the chamber into even more of a procedural morass. Majority Leader Harry Reid then attempted to secure a 30-day extension for the legislation in place in order to debate the FISA bill more thoroughly. (President Bush has vowed to veto an extension.) But that cloture vote also failed by the exact same vote.

Now Congress will have but a handful of days to get the FISA bill finished. Republican leader Mitch McConnell, who opposes a 30-day extension, suggested that some sort of a short-term extension could still be considered.

A key sticking point remains whether to give telecom companies like AT&T, which allegedly cooperated with the Bush adminstration's now-defunct secret eavesdropping program, immunity from civil lawsuits from Americans who believe their privacy rights were violated.

One senator who has consistently resisted granting immunity has been Sen. Christopher Dodd of Connecticut. In a press release today, in a (virtual) roar that Russell Crowe in Gladiator would appreciate, Dodd vowed to "continue to fight retroactive immunity with all the strength any one senator can muster."

He then, shockingly, killed a tiger that had leaped from a trap door in the floor.

by James Oliphant

According to this story from the Associated Press, Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, said Sunday that the prison for suspected terrorists at Guantanamo Bay, Cuba, should be shut down.

While touring the facility with reporters, Mullen said that negative publicity about the treatment of detainees has been "pretty damaging" to the image of the United States worldwide.

Mullen, who rose to his current position last fall, said the decision wasn't his to make and that the administration, to his knowledge, had no plan in the works to close the facility, which just marked its sixth anniversary.

"I'm not aware that there is any immediate consideration to closing Guantanamo Bay," Mullen said.

The population of the prison recently fell below 300, as more and more detainees have been sent back to their home countries or elsewhere. The largest issue for the U.S. in closing the facility involves security. Government officials fear that keeping high-profile terror suspects jailed on American soil would invite attack. The military has slso built a state-of-the-art courtroom facility at Guantanamo to try 14 so-called "high value" suspects beginning this spring.

by James Oliphant

A federal appeals court today tossed a lawsuit brought against former Defense Secretary Donald Rumsfeld and other officials by four released British prisoners held at Guantanamo Bay, who alleged that they were tortured and denied the right to practice Islam.

The British detainees–Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith–spent more than two years in Guantánamo and were repatriated to the U.K. in 2004.

They brought claims under the federal Religious Freedom Restoration Act, a law passed in the 1990s to prevent government interference with religious practices, arguing that officials at Guantanamo actively prevented worship of Islam by, among other things, tossing a copy of the Quran into a toilet.

They also say they were tortured, beaten and humiliated. They had sought $10 million in damages. A federal trial judge dismissed most of the claims saying U.S. officials couldn't be sued for actions taken in wartime, but the religious act claim and some other claims survived. (A story here in the Tribune took a closer look at the case.)

But in an opinion released Friday Judge Karen LeCraft Henderson of U.S. Court of Appeals in Washington wrote that the religious freedom act does not apply to the Guantanamo detainees because they are not "persons" for the purposes of U.S law.

The three-judge panel also held that the U.S. officials were immune from the torture claims because, as held by the trial court: “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.” In other words, the court held that the officials that allegedly engaged in torture did so as part of their assigned duties to interrogate.

And the panel found that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantánamo had any constitutional rights.

by Matthew Hay Brown

While President Bush speaks of progress in Iraq in the year since he announced the U.S. troop surge, congressional Democrats are marking the anniversary by blasting his strategy.

“No amount of White House spin can hide the fact that the escalation’s chief objective of political reconciliation remains unmet, Iraqis have not demonstrated any readiness to stand up and take responsibility for their own country, and 2007 was the most lethal year yet for American troops,” Senate Majority Leader Harry Reid said today. “Democrats know Americans cannot afford to continue to pay the heavy price of this war and will continue to fight for a change of course that makes our country more secure.”

In their first year back in the majority, Democrats were unable to force the president to withdraw troops or change the mission in Iraq. They have been unwilling to cut off funding for the war.

Bush, who announced the surge in a televised address on Jan. 10, 2007, shows no sign of pulling back on his own. After speaking Tuesday with General David Petraeus, Ambassador Ryan Crocker and Prime Minister Nouri al-Maliki, he reported gains in Iraq.

“It was clear from my discussions that there's great hope in Iraq, that the Iraqis are beginning to see political progress that is matching the dramatic security gains for the past year,” he told reporters.