Here’s Radack’s take on how Lieberman is using the incident to scare the American populace into suspecting more Muslims are home-grown terrorists.

What struck me about the hearing yesterday was how often Lieberman and others kept calling Nidal Hassan a “lone wolf” terrorist, suggesting not so subtly that the controversial “lone wolf” provision of the USA Patriot Act ought to be re-authorized. A recent House markup of the bill removed that provision, which allows the FBI to eavesdrop and otherwise target so-called “lone wolves” who allegedly plan all on their own, without any help from known foreign terrorist organizations, to launch a terrorist attack on the United States. One reason the provision was removed is because it’s never actually been used, and the Justice Department has had a hard time making the case that it’s actually necessary and not prone to abuse.

Judging from the comments at the Lieberman-led hearing yesterday, you would have thought that the Hasan case now offers the perfect argument for why that piece of the law is needed. What none of the senators mentioned, however, was that the “lone wolf” provision of the Patriot Act wouldn’t actually apply to Hasan.

For one thing, the government’s already said that Hasan did have communications with a foreign al-Qaeda operative, and so it could have already been monitoring him under other legal authorities. The second point overlooked at the hearing is that Hasan is a U.S. citizen, and the “lone wolf” provision only applies to a “non-U.S. person.”

It will be interesting to see how the “lone wolf” idea fares at the next Senate markup session of the bill.

That’s what the 2004 CIA inspector general report, released this afternoon, says.

Discussing the “extreme interrogation techniques” including waterboarding, the report acknowledges that “with respect to two detainees at those [secret CIA] sites, the use and frequency of one EIT, the waterboard, went beyond the projected use of the technique as originally described to DOJ.”  No matter.  Because the CIA went ahead and obtained DOJ’s permission to go ahead and use the more extreme versions of the technique, with more frequency than it had previously approved.

The reports says: “The Agency, on 29 July 2003, secured oral DOJ concurrence that certain deviations are not significant for purposes of DOJ’s legal opinions.”

The Justice Department, then, approved the more extreme and frequent use of the technique — the one that Holder, President Obama and most legal experts have called “torture.” How will Holder be able to limit those prosecutions to only CIA officials?  This is exactly the type of evidence that I think will take the investigation not only up the chain of command at the CIA, but should shift it over to the Justice Department as well.

The Obama administration is now saying the same thing.

Today, it assured reporters in a background briefing with administration officials that although the U.S. government will continue to send terror suspects to foreign countries for interrogation — what has notoriously become known as “rendition” — it will seek assurances from those countries that their interrogators won’t torture the suspects.

Of course, the Bush administration said it sought and received those same assurances. After all, it’s long been illegal, both under U.S. and international law, to send detainees to countries where they’re likely to be tortured. So what’s different now?

“The State Department will play a larger role to ensure that those assurances are credible,” said one senior administration official during the background briefing. (Why the briefing was on background and not for attribution to particular administration officials isn’t clear.)

So, asked Eli Lake of The Washington Times, will the United States simply stop sending suspects to countries that are known to torture suspects, such as Egypt or Syria?

No, the administration is not willing to go that far, a senior administration official said.  However, “we will ensure that we have the appropriate assurances in place that gives us strong confidence that the individuals in question will not be tortured.”

The Obama administration is now saying that, unlike the Bush administration before it, it will seek to verify that suspects aren’t being tortured. According to a paper released by the Justice Department today, the task force recommended that “agencies obtaining assurances from foreign countries insist on a monitoring mechanism, or otherwise establish a monitoring mechanism, to ensure consistent, private access to the individual who has been transferred, with minimal advance notice to the detaining government.”

That sounds like an improvement, though having to provide any advance notice to the detaining government is problematic. The policy still, to some extent, allows the U.S. government to trust foreign officials who promise they won’t torture a terror suspect, even if they are officials of a country that is known by the United States to torture terror suspects.

The State Department may play a larger role than it did before, but the new interagency process is ultimately under the control of the president’s National Security Council. That’s better then keeping it a purely CIA function, as it was before. But it still raises the question of why the United States plans to send terror suspects to foreign countries known to torture them, and just how vigorous — and how long-lasting — U.S. monitoring will really be.

That may be true, but there’s an aspect of one of Brennan’s recent speeches that, if actually implemented, would have the opposite effect.

As Spencer Ackerman reported here earlier, Brennan, in his speech to the Center for Strategic and International Studies, declared an end to the “war on terror.”

“This is not a ‘war on terror,’” Brennan said. “We cannot let the terror prism guide how we’re going to interact and be involved in different parts of the world.”

Well, if that’s the case, then how is the Obama administration going to justify “preventive detention” of terror suspects under the laws of war?

That power to detain supposedly “dangerous” people who can’t be proven guilty in any sort of court is a power the Bush administration relied on heavily and the Obama administration continues to claim. It’s at the core of President Obama’s claim that there’s a class of people who cannot be tried in criminal court or even by military commission, yet still must be held in prison because they’re “dangerous.”  That’s all been justified legally by saying that we’re at “war,” and terror suspects are warriors in the “war on terror.”

Now that the Brennan has declared an end to that war, is the Obama administration willing to relinquish its right to detain terror suspects picked up anywhere in the world?

So far, Obama has not made clear how he intends to use this “preventive detention” authority he claims that he has, though it’s as broad a detention authority as Bush Attorney General Michael Mukasey claimed over a year ago. But if Brennan really has the sway over the administration that Wheeler suggests he does, then maybe Obama will soon have to concede that the “war on terror” is over — and so is his corresponding power to seize and imprison its supposed “warriors” anywhere in the world.

The organization’s previous report, issued last year, was written by two former federal prosecutors who examined more than 120 major international terrorism cases and their outcomes. In the new report, the same former prosecutors follow up on their previous study by analyzing the process and outcomes of 119 cases involving 289 defendants. They discovered that the federal government has a high success rate in federal court on terrorism cases — winning convictions in more than 91 percent of cases. Those convicted and serving prison time, meanwhile, haven’t harmed the surrounding communities, notwithstanding the warnings of lawmakers who’ve opposed transferring terror suspects to the United States — even to maximum-security prisons.

The remaining question, though, is one Glenn Greenwald asked on a conference call with the report’s authors and Human Rights First Executive Director Elissa Massimino today: whether these cases are similar enough to the ones the Obama administration is saying it can’t try in federal court — those people against whom there isn’t admissible evidence, yet the administration says are “too dangerous” to release. If not, does the report have any bearing on the question of what to do with them?

Given that the administration hasn’t yet named any of those cases, but speculates that they exist, it’s impossible to know for sure. But as James Benjamin, one of the report’s authors, explained, the cases he examined represent “extraordinarily serious acts of violence against the United States carried out all over the world,” including embassy bombings, the previous world trade center bombing, Zacarias Moussaoui (convicted in connection with the 9/11 attacks) and Richard Reid (the “shoe bomber”). Those cases presented “some very difficult practical and legal issues” that the courts have been able to handle, he said.

Still, Benjamin qualified that finding: “That’s not to say that the justice system can handle every case,” he said, and praised the Obama administration for undertaking a case-by-case analysis.

So where does that leave us? President Obama and his Detention Policy Task Force have acknowledged that the federal courts can handle most terrorism cases. They’ve also said that violations of the laws of war should instead — or in addition — be handled by military commissions. That’s not specifically undermined by the Human Rights First report’s finding.

Still, what about that supposed third category? By saying that not every alleged terrorist can be tried in federal court, Human Rights First is admitting that this category of people may exist, as the Obama administration claims. But neither the human rights lawyers nor the government has so far been able to come up with a reasonable solution for what to do about them.

As David Remes, executive director of Appeal for Justice who represents about a dozen Yemeni detainees at Guantanamo, explained to me earlier today, “If you look at the fine print of the Obama refined definition, you’ll see it’s limited to this litigation,” referring to the habeas cases. In the meantime, Obama has set up a team of people — a detainee policy task force — to study and consider and decide what U.S. detention policy should be going forward. “So it could be different than what DOJ has argued in the habeas cases,” says Remes.

But will it be?

National security and civil liberties experts like Kate Martin, director of the Center for National Security Studies, and Ken Gude at the Center for American Progress are among the many lawyers urging a far narrower interpretation that would be limited to the right to detain fighters picked up on the battlefield.

Of course, there’s the question of how to define the battlefield.  But Martin and Gude, in the memo they sent to the detainee policy task force, point out one way that seems to make perfect sense: rely on the military’s definition of the scope of its combat operations.

“As two retired JAG officers have explained, when the military is operating with rules of engagement pursuant to the law of war, such circumstance defines the ‘battlefield’ and the extent of combatant detention authority,” they write, citing a paper by Geoffrey S. Corn and Eric Talbot Jensen.

“There’s a clear line,” says Martin. “When the military is authorized to shoot to kill, they have detention authority. But otherwise you have to try them.”

Remes points out that you still have the problem of defining who’s a fighter, an issue which comes up in all the habeas cases. To some extent that will have to rest with the military, and then with whatever proceedings it affords detainees to challenge their detention. (If they’re in the United States or at Guantanamo Bay, of course, detainees also have the right to challenge their detention in federal court.)

These limits still may not satisfy some civil and human rights experts, as Spencer points out. They make a strong argument that the laws of war apply to conflicts between states, not conflicts between a state and a terrorist organization. As Gabor Rona, international legal director of Human Rights First, put it to me recently, the Geneva Conventions “presumed that where it’s a non-state armed group you’re fighting against it will be domestic law that applies, because those people are all criminals. Unlike in an international armed conflict, the privilege of belligerency doesn’t apply.”

There may never be a meeting of the minds between the Rona and Martin, or what I’ll call the strict civil libertarians and the pragmatists. But given that the federal courts so far have accepted that the United States is engaged in a “war” of some sort with certain terrorist groups and seem willing to define at least some of those fighters as “enemy combatants” (or whatever the Obama administration is calling them now), it’s hard to imagine that Obama — not one to give up authority easily — will completely walk away from that paradigm in the future.

What seems the more pressing question now is whether the administration will continue to push for the extremely broad view of its war powers that it’s advocated in Guantanamo habeas cases — the same definition that allowed the Bush administration to snatch and indefinitely detain without charge anyone suspected of supporting al-Qaeda or the Taliban anywhere in the world — or if they’ll be willing to restrict their powers to a more logical and limited reading of international law.

Alternatively, will advocates for a whole new system of preventive detention — such as Neal Katyal, now Deputy Solicitor General; Robert Chesney, a law professor at Wake Forest University spending the summer on the Detainee Policy Task Force; Jack Goldsmith at Harvard; and Benjamin Wittes at Brookings — persuade the administration that it needs Congress to pass new legislation to move beyond the laws of war, so that it does have authority to indefinitely detain without charge terror suspects seized anywhere in the world?

I know that’s not what the strict civil libertarians are advocating. But I wonder if, by refusing to recognize the applicability of the laws of war at all, they’re actually (though unintentionally) encouraging a far more radical solution.

The report, “Blocking Faith, Freezing Charity” picks up on a point that President Obama made in his recent speech in Egypt, in which he acknowledged that U.S. policies have made it difficult for American Muslims to fulfill their religious obligations of Zakat, or charitable giving. The problem is that the U.S. government has shut so many Muslim charities down based on suspicion that they support terrorism, and declared the broad power to freeze the assets of Muslim charities pending investigation and without revealing its evidence that the groups have engaged in any wrongdoing. What’s more, anyone who supports any of these suspected charities — even if their intentions are to support legitimate humanitarian aid — can be prosecuted for “providing material support to terrorism.”

The ACLU report notes that “A 9/11 Commission staff report on terrorism financing found that the laws that allow the Treasury Department to designate and seize the assets of charities raise “substantial civil liberty concerns.”

Despite President Obama’s acknowledgment of the problems with these policies, they have, so far, remained unchanged.

According to the ACLU: “Today, the Treasury Department has virtually unchecked power to designate groups as terrorist organizations. Terrorism financing laws are overly broad and lack procedural safeguards that would protect American charities against government mistake and abuse.”

That decision should come as little surprise to the Justice Department, given that, as I reported in April, a last-minute rule adopted by the Bush administration in December gives the FBI unprecedented powers to conduct surveillance of targets without any basis for suspicion of criminal activity. That wasn’t likely to sit well with Muslim groups, who believe they’re often the targets of such surveillance. (Because the Department of Justice doesn’t reveal how it uses the FBI authority, it’s impossible to confirm or deny those claims.)

Under the new Attorney General Guidelines — adopted by former Attorney General Michael Mukasey, and which the Obama administration has not revoked — the FBI may use physical surveillance; interview a person’s neighbors, landlord, colleagues or friends; retrieve personal data from commercial databases; and recruit and assign informants to spy at political, religious or other meetings — all without evidence that the target of the investigation has done anything wrong.

A coalition of Islamic groups is now calling for Muslims to stop cooperating with the FBI’s efforts to work with Muslim communities to target potential terrorists.

In addition to the change in FBI guidelines allowing increased surveillance, the groups are upset that the FBI recently suspended ties with the nation’s largest Muslim civil rights group, the Council on American-Islamic Relations, which was named as an unindicted co-conspirator in the government’s case against the Holy Land Foundation for Relief and Development.

The coalition, represented by the American Muslim Taskforce on Civil Rights and Elections, has requested a meeting with U.S. Attorney General Eric Holder to discuss the matter.

“We have to decide what we’re doing as a country. If it’s not a war on Islam, then these practices must be stopped,” Agha Saeed, who chairs the coalition, told the AP. “We’re not asking for special treatment, just equal treatment.”