SEC. 5. DETENTION WITHOUT TRIAL OF UNPRIVILEGED ENEMY BELLIGERENTS.

An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 15 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.

My emphasis. Lieberman is constantly described as a moderate. McCain — at least once upon a time — used to buck his party and is now taking a for-it-before-he-was-against-it position on closing Guantanamo. And they favor keeping U.S. citizens detained indefinitely, a position that wouldn’t withstand a second of judicial scrutiny.

These are Graham’s closest allies in the Senate. They would be the very first people he would call to round up their votes for closing Guantanamo if the White House agrees to a deal. And they favor keeping American citizens detained forever!

The Journal and Buchanan somehow overlook the five different wars — or five fronts in the “Terror War” — that Glenn Greenwald aptly points out today. We are, after all, engaged in consistent deadly bombings and raids aimed at terrorists and their sympathizers in Yemen, Pakistan, Afghanistan, Somalia and Iraq.

Still, The Journal’s editors are wringing their hands over the administration’s decision to “treat terrorists like routine criminal suspects” with a right to a lawyer and a defense, rather than classifying Abdulmutallab as a “illegal enemy combatant who should be interrogated first with the goal of preventing future attacks and learning more about terror networks rather than gaining a single conviction.”

Here we have another version of former Vice President Dick Cheney’s “torture works” argument — notwithstanding all the evidence to the contrary.  The Journal and Buchanan apparently believe that the U.S. government ought to have grabbed Abdulmutallab and whisked him away to a secret prison where we could interrogate him under torture, what Cheney and The Journal’s editorial board would call “enhanced interrogation techniques” — even though the FBI, which conducts lots of interrogations, has argued in memos that such tactics are unlikely to yield useful information and make prosecution of actual terrorists impossible. U.S. military leaders and at least one Republican senator have also agreed they may aid terrorist recruitment to boot.

It’s worth noting that the Bush administration treated Richard Reid, the so-called “shoe bomber” who similarly attempted to blow up a plane shortly before Christmas in 2001, as a criminal. Reid was convicted in federal court and is now serving a life sentence in a federal prison.

In contrast, most of the suspects — including 520 Guantanamo Bay detainees — that the Bush administration treated as “enemy combatants” ended up being transferred or released. The Bush administration failed to collect any usable evidence against them, and as a result could neither try them nor continue to hold them without charge. As Republicans are quick to point out, some of those people have since joined terrorist groups back home. Indeed, reports are emerging that some may have been behind last week’s bombing attempt.

Actually, The Journal is right that, as I noted yesterday, the Obama administration’s handling of Abdulmutallab is inconsistent with the treatment of some other alleged terrorists, whom the administration has insisted it will try in military commissions rather than ordinary civilian courts. But rather than highlight the need to interrogate Abdulmutallab under torture, it underscores just how wrongheaded the warrior approach has actually been.

As Greenwald points out, our five-front war is “constantly delivering death to the Muslim world,” leading many Muslims to believe, not surprisingly, that we’re at war with Muslims, not just with terrorists.

However, prosecuting terror suspects as ordinary criminals — who, just like suspects in drug gangs and other organized crime often provide valuable information and rat out their criminal colleagues — shows Muslims and others that unlike the terrorists, we do believe in and adhere to the rule of law.

I know this isn’t a new idea, but it’s one that the Obama administration keeps getting attacked for trying to address. At a recent rally in New York against Attorney Eric Holder’s decision to prosecute Khalid Sheikh Mohammed and his suspected Sept. 11 co-conspirators in federal court, for example, anti-Obama protesters denounced the administration’s decision to accord the defendants the rights that come with a federal court trial, all the while vigorously waving the American flag and citing “our freedoms” protected by the U.S. Constitution.

Street protesters riled up by conservatives with a political agenda may be forgiven for forgetting what’s actually in the Constitution or what the flag is supposed to stand for. But The Wall Street Journal — and even Pat Buchanan — surely know better.

Democratic supporters, including Illinois Sen. Dick Durbin, cite the thousands of jobs it would bring to the depressed Northwest part of the state, while Republican detractors like Mark Kirk, the GOP front-runner for Illinois’ other Senate seat, claim it would make the area a terrorist target.

The prison is still reportedly the leading candidate for housing the Gitmo detainees. But notably, the U.S. government has assured the lawmakers from Illinois that no Guantanamo detainees would ever be released into the United States, and inmates at Thomsen won’t get to see any friends or family members.

In the meantime, the U.S. government is scrambling to get more of its European allies to accept the prisoners on their soil. Just this week, the Justice Department announced that four more Guantanamo prisoners had been shipped to Europe: two to Italy, one to France and one to Hungary.

As TWI reported last week, the biggest ongoing controversy is over where to try the five suspected 9/11 co-conspirators. The administration has said it prefers to try terror suspects in federal court, whenever possible, and legal experts say that Khalid Sheikh Mohammed and his four alleged co-conspirators have all committed crimes easily triable in civilian court.

On the other hand, Congress last week passed amendments to the Military Commissions Act, giving military commissions broad jurisdiction over so-called “unprivileged enemy belligerents” (what the Bush administration called “enemy combatants”), suggesting that many lawmakers prefer trials by military commission.

Newsweek’s Michael Isikoff acknowledged in his story late Friday that in fact, no final decisions have yet been made on where any of the detainees will be tried. As TWI reported, the U.S. Attorneys’ offices in four different federal jurisdictions are vying for the opportunity to try the cases, with prosecutors in Manhattan, the principal site of the 9/11 terrorist attacks, making the strongest case.

Security concerns, as well as the ability to offer terror suspects a fair trial before a local New York jury, remain among the major challenges.

The court had previously put off deciding whether to take this case, at the request of the Obama administration, which was scrambling to find places for the Uighurs to go. But although several countries, including most recently the island of Palau, has agreed to take some of the Uighur detainees, at least one remained without a place to go. His brother, also detained, said he would not leave him.

In April, the U.S. Circuit Court of Appeals in Washington, D.C., ruled that even though the Uighurs were no longer considered dangerous and were being held unlawfully, the courts had no power to order the president to release anyone into the United States. Because the Uighurs cannot return to China, where they would likely be persecuted, and the U.S. government refused to release them in the United States, that left them stuck at the Guantanamo Bay prison indefinitely.

The Supreme Court now has the chance to decide whether federal courts have the power to change that.

The government had produced the transcripts with heavy redactions that largely concealed the detainees’ claims that they were abused and tortured during interrogations.

In August, the government argued to the court that it should be allowed to continue to redact the documents, because releasing the information in them would reveal “intelligence sources and methods” and might aid enemy “propaganda.”

Today, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia refused the ACLU’s request that he review the documents privately in his chambers to determine if they should remain classified.

ACLU lawyer Ben Wizner said after the ruling that the court is allowing the government to suppress the evidence “not to protect any legitimate national security interest, but to protect current and former government officials from accountability.”

He added that the records requested are important because they would provide “critical missing information about how the CIA’s torture program was actually carried out and whether interrogators followed, or exceeded, Justice Department legal guidance that purported to authorize brutal interrogations.”

Wizner said the ACLU would appeal today’s ruling.

As I’ve noted before, the vast majority of legal experts, including leading defense lawyers and many former prosecutors, appear to believe that suspected terrorists can be tried more successfully in regular civilian federal courts — which have prosecuted hundreds such cases since the 9/11 terror attacks, as opposed to just three convictions in eight years of military commissions. Still, the Obama administration and Congress have refused to let the commissions go. And while yesterday’s bill appears to make some improvements to their rules — such as ensuring that the military commissions actually have defense lawyers qualified to handle death-penalty cases, which they didn’t before — the commissions would still allow the admission of hearsay and coerced testimony so long as the judge thinks it’s reliable. It also allows for military trials of children.

Human rights advocates maintain that the whole process of trying people outside the normal justice system is illegitimate and counterproductive. As Human Rights Watch Terrorism and Counterterrorism Program director Joanne Mariner said yesterday: “Tinkering with the discredited military commissions system is not enough. Although the pending military commissions legislation makes important improvements on the Bush administration’s system, the commissions remain a substandard system of justice.”

Chris Anders, Senior Legislative Counsel for the ACLU, put it this way:

While the bill takes positive steps by restricting coerced and hearsay evidence and providing greater defense counsel resources, it still falls short of providing the due process required by the Constitution. The military commissions were created to circumvent the Constitution and result in quick convictions, not to achieve real justice.

Part of the problem is that even if the military commissions were fair to defendants, critics say that because of their tainted history — which includes the resignation of several prosecutors in protest — they won’t be perceived as fair to the rest of the world. What’s more, defense lawyers representing the detainees will likely challenge the courts’ constitutionality, delaying the resolution of these cases for many more years to come.

“I think it’s encouraging that they’re moving ahead despite the opposition,” said David Remes, Executive Director of Appeal for Justice, who represents more than a dozen detainees from Yemen imprisoned at Guantanamo.  Opponents “have unfortunately resurrected the idea that the guys down there are ‘the worst of the worst,’ and so dangerous that one has to consider whether even maximum-security facilities are able to hold them.”

Moving the prisoners will at least make visiting them easier. “We won’t have to take a commercial flight to Fort Lauderdale and then a puddle-jumper to Guantanamo, or submit to the restrictions of a military base,” he said. Federal officials can still place strict limitations on lawyers representing terror suspects in the United States, though, including preventing them from talking to the media about the evidence in their cases.

“On the other hand, what appears to be happening is that Obama’s efforts to release the men who ought to be released is being stymied by political opposition,” Remes said. “And it will be deeply unfortunate if he ends up moving Gitmo from Cuba to Michigan.” Many of the men should be released, Remes insisted. “And by eliminating the symbol of Guantanamo, there’s a danger that the focus on the plight of these men will disappear.”

Candace Gorman, a Chicago-based lawyer who represents two prisoners at Guantanamo, shares that concern.

“We have not asked for Guantanamo to be closed so that the men could be moved to different prisons,” she said. “Some of these men, including my two clients, have been held for more than seven years without charges. It is time to either charge the men or release them … moving them to a different location does not solve the problem.”

That admission comes just days after the not-so-subtle declarations of Judge Ellen Huvelle of the U.S. District Court in Washington, D.C., that the case had been “gutted” by the government’s admission that Jawad’s confessions were elicited through torture, and the fact that it still, more than six years later, hadn’t produced a single reliable eye witness to the crime.

The Justice Department evidently realized it wasn’t going to get very far in the habeas corpus case. But it wasn’t prepared to relinquish its right to imprison Jawad altogether. On Friday, it insisted that it has sufficient “new” evidence to warrant a criminal investigation.

Here’s what the Justice Department said in the papers it filed with the court Friday:

[I]n light of the multiple eyewitness accounts that were not previously available for inclusion in the record – including videotaped interviews – as well as third-party statements previously set forth in the government’s factual return, . . . the Attorney General has directed that the criminal investigation of petitioner in connection with the allegation that petitioner threw a grenade at U.S. military personnel continue, and that it do so on an expedited basis. As the Court is aware, the standard for detention under the AUMF [Authorization for the Use of Military Force] is different than the elements that must be proved in a criminal prosecution, and thus a decision not to contest the writ does not resolve whether the current eyewitness testimony and other evidence, or additional evidence that may be developed, would support a criminal prosecution stemming from the attack on U.S. service members.

Technically, that’s true. A habeas corpus proceeding is a civil case, and the burden of proof is different than in a criminal prosecution. In a civil case, the government has to prove its case only by “a preponderance of the evidence.” A criminal prosecution, however, requires proof “beyond a reasonable doubt.”  But that’s actually a higher burden of proof. So how could the government prove a criminal case against Jawad and not be able to prove its right to hold him in his habeas case?

The answer couldn’t rely on the strength of the evidence:  eyewitness testimony that Jawad committed a war crime would be strong evidence that would probably support the government’s claim that it could hold him indefinitely under the laws of war. The only way the government’s latest claim makes sense is if it’s now saying that throwing a grenade at U.S. soldiers is not a crime of war, but an ordinary criminal offense. But if that’s the case, then why did the U.S. government hold him for six and a half years at Guantanamo Bay as an enemy combatant? And can it really have “newly discovered” reliable eyewitness testimony almost seven years after the crime occurred? Or is it just that the Department of Justice realized it wasn’t going to be able to string along this particular federal judge who’s clearly become exasperated by the flimsiness of the government’s case?

Will the administration be more swayed by an author of books about fighting terrorism than by its own deputy attorney general at the Office of Legal Counsel, Marty Lederman? The choice is stark, and if NPR’s Ari Shapiro is correct that Wittes is planning to reveal proposed legislation on the matter today, and that he has the ear of the Obama administration, then it may ultimately come down to whose view the administration credits more.

Wittes has no formal legal training and has proposed a potentially unconstitutional system of indefinite detention of terror suspects without trial; Lederman is an esteemed constitutional law professor at Georgetown University with eight years of prior experience advising the executive branch from the Justice Department — and he has previously expressed serious concerns about preventive detention.

As Spencer pointed out, before his appointment to the Office of Legal Counsel in the Obama administration, Lederman, in an online colloquy with Wittes, specifically denounced the idea of preventive detention based on the president’s determination of who is dangerous.

“’Dangerousness,’ as such — particularly dangerousness as evidenced primarily by one’s ‘deeply held beliefs’ — is not a constitutionally valid ground, standing alone, to indefinitely incarcerate persons without the protections of a criminal trial,” he wrote in Opinio Juris. “Indeed, even if the dangerousness is demonstrated by past criminal conduct, that is not a permissible ground for noncriminal detention.” He continued that the Supreme Court has repeatedly held that deterrence of dangerous people “is a function ‘properly … of criminal law, not civil commitment.’”

Wittes may have a very “pragmatic approach to fighting terrorism,” as NPR describes it. (He’s also in the past proposed a system of “national security courts” that would suspend some of the usual criminal justice procedures — which sounds a lot like the new Obama military commissions proposal.) But it’s worth recalling that we’re in this situation to begin with because the Bush administration, dominated by non-lawyers, had insufficient respect for constitutional parameters.

This situation may be partly due to the lack of leadership in the OLC: Republicans have stalled the confirmation of Dawn Johnsen, President Obama’s nominee to head the office, for months now. That may be giving outsiders more say in the administration’s plans than they would ordinarily have.

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