In one YouTubed radio appearance, for example, Boykin rattled off figures on the population of Islamic terrorists around the world and in the United States. He said the “best estimates” suggest there are 1.5 billion Muslims in the world and that 15 percent of them are violent jihadists. He said that there are 2.4 million Muslims in the U.S. and that 15 percent of them are also jihadists. Boykin would have listeners believe that there are 225 million radical violent Islamists around the world seeking to kill Americans and that there are 360,000 of them here in the U.S., half the population of Palin’s Alaska.

But Boykin has not only drawn heat for his provocative talks. He also drew sanction from the Army when, as a top Pentagon official in the months after 9/11, he cast the War on Terror as a religious war, in part by recruiting “Christian warriors” to fight for God’s kingdom on Earth during a speaking tour of Baptist churches.

Boykin was also a key figure in putting the torture techniques practiced at Guantanamo Bay to work at the notorious U.S. detention facility at Abu Ghraib in Baghdad.

Writing at Salon, Sydney Blumenthal in 2004 said Boykin was “at the center of the secret operation to “Gitmo-ize” Iraq’s Abu Ghraib prison and details Boykin’s travels through Bush-era anti-Islamic Christian America.

Just before Boykin was put in charge of the hunt for Osama bin Laden and then inserted into Iraqi prison reform, he was a circuit rider for the religious right. He allied himself with a small group known as the Faith Force Multiplier that advocates applying military principles to evangelism. Its manifesto, “Warrior Message,” summons “warriors in this spiritual war for souls of this nation and the world … God has given us the stewardship and accountability of FAITH as our strategy for this time to mobilize an exceedingly great army.”

As the head of the Special Warfare Center and School at Fort Bragg, N.C., Boykin invited Southern Baptist ministers for prayer meetings that would be highlighted by demonstrations of Special Forces hand-to-hand combat and guided tours of the “Shoot House” and “Snake Room.”

Boykin staged a traveling slide show in which he displayed pictures of bin Laden and Saddam Hussein around the country. “Satan wants to destroy this nation, he wants to destroy us as a nation, and he wants to destroy us as a Christian army,” he preached.

Here’s Boykin on YouTube:

He said hundreds of millions of jihadists are determined to destroy our liberties and reestablish an international caliphate, that the Saudis are pouring money into our school systems and universities to undermine democratic thinking, and that radical madrasas are multiplying “right here in America.”

He refers to a terror trial in Dallas where “they determined… that almost every Islamic organization in America is a front for fundraising for Islamic extremism.”

More Boykin quotes from the radio appearance:

Law enforcement has been unwilling to address the issue to do what was necessary in terms of arresting and incarcerating these people…

These activist judges, there’s a history of leniency with these people, and many of [the alleged terrorists] have been released after committing crimes only to be rearrested later for being involved in some sort of terrorist activity…

There exist 35 Muslim compounds scattered across America, and the activities that are going on inside those compounds I think it’s safe to say are not in the best interest of our liberties and our freedoms and, in many cases when people have tried to get into these compounds to see what is going on, they’ve been held away at gunpoint…

I’m afraid the attitude of Americans is one of capitulation. There seems to be an attitude that, if we just allow them to worship as they please under the concept of freedom of religion, they will enjoy their life in America, when the fact of the matter is the jihadists have every intention of destroying the nation as we know it and establishing it as a Muslim nation… It is time for America to awaken… What we need to do as Christians and as Americans, we need to do what God’s called us to do, and that is get our armor on and get into battle.

In the weeks after Rep. Gabriel Gifford was shot in Arizona, Palin defended herself for targeting Gifford with gun-sight cross-hairs on a midterm election map. News that Palin was coming to Colorado to talk sparked some controversy. That she will share a stage with Boykin has always been more controversial news.

Got a tip? Story pitch? Send us an e-mail. Follow The Colorado Independent on Twitter.

Spencer’s reporting has taken him from the battlefields of Afghanistan to the courtrooms of Guantanamo Bay to the unlikely intersection of the Senate and “South Park.” Every step of the way, he’s risen above the noise of the echo chamber to find the stories that truly matter, and he’s done so with as strong an ethical conviction as anyone I’ve ever met.

But when opportunity knocks, Spencer answers — and now a great opportunity has come along. Spencer will be moving over to Wired magazine, where I urge everyone to continue reading his work at the mighty Danger Room blog.

It’s been one of the great privileges of my career to edit Spencer’s work and watch his stories come together. I’ve learned from him every day here, and I can’t wait to see what the future holds for him.

I will say that we have always maintained that we need increased prison facility, and I think the law prevents the Department of Defense from — but not the Department of Justice — from purchasing such a facility.

The annual Justice Department funding bill has only barely arrived in the House Judiciary Committee, so perhaps that will become the vehicle for the purchase.

Gibbs also said that the administration will send a report to Congress explaining why the Thomson-based Guantanamo closure makes sense. But it’s not clear from the summary language of the markup of the defense authorization bill that receipt of such a report will unlock the Thomson money. Either way, the administration needs to get on that: A full House vote on the bill is expected next week.

The sun rises over Camp Delta at Guantanamo Bay. (MICHELLE SHEPHARD/TORONTO STAR)

The Obama administration’s longstanding pledge to close the detention facility at Guantanamo Bay just hit a major obstacle in the House, creating doubts over whether the detention facility can be closed this year — if at all.

Last night the House Armed Services Committee finished this year’s bill authorizing $567 billion worth of defense spending and another $159 billion for the Afghanistan and Iraq wars for the fiscal year beginning in October. Following an administration budget plan announced in February by Pentagon comptroller Robert Hale, the Afghanistan war request contained a vague provision — indeed, not even carrying the words “Guantanamo Bay” — called a “transfer fund” to authorize the purchase of the Thomson Correction Center in Illinois. The administration wants to buy Thomson in order to have a secure facility on U.S. soil to house those Guantanamo detainees it designates for military commissions or indefinite detention without charge. Once the federal government buys Thomson, it can shut down Camp Delta at Guantanamo Bay.

[Security1] Or that was the plan. The actual bill hasn’t been released yet. But buried at the bottom of an extensive summary the committee released last night is an express prohibition on the use of any Defense Department money to buy a new detention facility. According to the bill summary, the bill now requires Defense Secretary Robert Gates to give Congress a report that “adequately justifies any proposal to build or modify such a facility” if it wants to move forward with any post-Guantanamo detention plan.

“The Committee firmly believes that the construction or modification of any facility in the U.S. to detain or imprison individuals currently being held at Guantanamo must be accompanied by a thorough and comprehensive plan that outlines the merits, costs, and risks associated with utilizing such a facility,” the summary text read. “No such plan has been presented to date. The bill prohibits the use of any funds for this purpose.”

That might place insurmountable obstacles to the the so-called “Gitmo North” plan to transfer Guantanamo detainees to Thomson. “They can’t just create Guantanamo North and move everyone up there. That’s clearly barred,” said Chris Anders, a senior lobbyist for the American Civil Liberties Union who monitored yesterday’s mark-up. “It doesn’t mean that the proposal is dead, but it’s hard to see how it makes a comeback after the House Armed Services Committee says there can’t be money spent on Thomson.”

That’s not all. While the bill doesn’t renew the current Congressional ban on transferring detainees from Guantanamo into the U.S. — set to expire in October — it requires President Obama to submit a “a comprehensive disposition plan and risk assessment” for any future detainee transfer. Congress would then get “120 days to review the disposition plan before it could be carried out.” Additionally, Congress would get a 30-day review period for the proposed transfer of any detainee from Guantanamo to a foreign country in order to check against a detainee inflicting violence against the U.S. or its interests. The summary instructs Gates to tell Congress that any such foreign transfer meets “strict security criteria to thoroughly vet any foreign country to which a detainee may be transferred.”

The bill, which passed the committee on a vote of 59 to 0, will go to the House floor and receive a vote most likely next week. A Senate Armed Services Committee mark-up of the companion bill in the Senate is scheduled for the end of May.

This is a major setback for Obama’s campaign pledge to close the Guantanamo Bay detention facility. While it’s theoretically possible for an amendment authorizing the Thomson purchase to come back into the bill during floor debate, “this makes it much, much harder for the administration to move forward with the closure of Guantanamo, there’s no doubt about that,” said Vincent Warren, the executive director of the Center for Constitutional Rights. “It’s hard to see what reasonable options the president has without jumping through congressional hoops that are unreasonable and unnecessary, and it’s harder to move forward both with prosecuting those who are terrorist suspects and releasing to freedom those who are not.”

But beyond the closure of the detention facility itself, the prohibitions now contained in the bill have policy implications for the dispensation of justice for detainees remaining at Guantanamo, a burning political issue all through this year. Those “abhorrent” prohibitions, Warren said, “essentially prohibit the executive from moving forward with its constitutional and human-rights obligations to try people [and] creates a paradigm where the operative default mechanism will be to detain people without trial.” In April, Attorney General Eric Holder pledged to work with Sen. Lindsey Graham (R-SC) on a new legal architecture for indefinite detention without charge.

Anders took a more optimistic view. If the bill passes, as is likely, the administration “will have to work harder and work faster at what they’ve been doing effectively for the past 16 or 17 months, which is repatriating and resettling detainees one by one who have been cleared and then bring people here for prosecution,” Anders said, even with the new congressional repatriation restrictions. This week, one of those detainees the administration designated for civilian prosecution, Ahmed Khalfan Ghailani, who has been transfered to a Manhattan prison, unsuccessfully urged a federal judge to dismiss his case.

But such an incremental approach would not allow Obama to close the facility until the last detainee either leaves or faces criminal charges, a process likely to take years even without all of the political obstacles that have emerged around terrorism trials and holding terrorism defendants in federal corrections facilities. Additionally, it would require Holder and the Obama administration to abandon a decision that has been much reviled in the civil libertarian community: designating 48 detainees currently held at Guantanamo for continued indefinite detention without charge.

Closing the detention facility at Guantanamo Bay was a bipartisan goal before President Obama took office, with both President Bush and Sen. John McCain (R-Ariz.), the 2008 Republican presidential nominee, rhetorically committed to shutting down an international symbol of American lawlessness. But an effective campaign waged by conservatives to portray the closure as negligent with national security — and Obama and the Democrats as weak for seeking it — has raised the political stakes for Democratic members of Congress. Last year, the Senate voted with 90 votes to prohibit the transfer of detainees from Guantanamo to the U.S., and this year, the still-unresolved question of whether Khalid Shaikh Mohammed and the 9/11 conspirators ought to be tried in civilian courts or military commissions has become Holder’s defining challenge. With Republicans hostile to the Guantanamo closure plan likely to gain seats in Congress after the November midterm elections, future attempts at closing the facility are likely to face even greater political opposition.

Requests for comment to the White House and the Office of the Secretary of Defense were not immediately returned.

Soldiers at Bagram Air Base, Afghanistan (army.mil)

GUANTANAMO BAY — His nickname wasn’t “Monster,” he admonished the lawyer. It was “The Monster.” That was what the Bagram Collection Point’s interrogators, guards — and most especially detainees — called Army interrogator Damien Corsetti. And it was important to him that the court correctly record his story.

Back then — in 2002 at Bagram, and later at Iraq’s notorious Abu Ghraib prison — Corsetti was as fearsome as his handle. Although acquitted, he went before a court-martial proceeding related to the abuse of a detainee in Iraq. Now, Corsetti is an unemployed veteran of two wars, unable to work because of post-traumatic stress disorder, and an infamous figure in the U.S.’s post-9/11 history of torture.

[Security1] But he testified on Wednesday morning from a remote location on behalf of one of the former inmates at Bagram whom he used to intimidate and brutalize: Omar Khadr, the 23-year old Canadian citizen who has been in U.S. custody for nearly eight years. The large man once known as “The Monster” — the nickname is tattooed in Italian on his stomach — provided rare sworn testimony about the abuse of detainees in U.S. custody in the Afghanistan war’s early days, the product of what he described as command pressure for intelligence and unclear rules about permissible interrogator behavior.

Corsetti didn’t directly interrogate Khadr, he told the court, but he spoke to Khadr at least two to three times a week from August to October 2002, after which Khadr was transferred here. “He was a child,” said an occasionally emotional Corsetti. “He was a 15-year old child who had been blown up, shot and grenaded. He was in one of the worst places on the earth. How could you not have compassion for that? … He was in the wrong place for a 15-year old child to be.”

It was the first moment during seven days of Khadr’s pre-trial hearing, meant to determine whether the statements Khadr gave to his interrogators may be used against him in his July military commission, that an interrogator described Khadr as a “child.” Other interrogators, testifying for the prosecution, described him clinically as a “15-year old” or “mature” or otherwise resisted the characterization of Khadr as a juvenile. Almost simultaneously with Corsetti’s testimony, Radhika Coomaraswamy, the United Nations special representative for children and armed conflict, called for Khadr’s release and decried the “dangerous international precedent” the Obama administration is setting by prosecuting him for war crimes.

That wasn’t the only time Corsetti contradicted earlier testimony. The witness before Corsetti, Army Col. Donna Hershey, the former chief nurse at Bagram, testified that she never allowed any interrogators to question detainees in Bagram’s hospital. But Corsetti testified that the first time he met Khadr, and the only time he was present for any questioning of Khadr, occurred in the hospital, on July 29, 2002, two days after Khadr suffered near-fatal wounds during his capture after a Khost, Afghanistan firefight.

“I would assume from his condition he was under excruciating pain,” Corsetti said. Despite the pain, and despite the questioning’s presentation to the court as a preliminary, in-processing brief, the questioning appeared to involve the acquisition of intelligence information, including “what kind of military training” Khadr had; what Khadr believed his offenses were that landed him in Bagram; his “knowledge of Soviet-issued weapons”; and general questions to assess “his cooperation and knowledgeability.” That spoke directly to the purpose of the hearing: To determine whether Khadr’s statements to interrogators, and information that followed from them, were coerced from him to a point rendering them unusable by the government at trial.

The pressure to acquire intelligence information was the overriding theme of Corsetti’s testimony. His unit, Alpha Company of the 519th Military Intelligence Battalion, then stationed at Bagram, had to file between “20 to 40 reports a week” or hear from higher command to complain about them “stagnat[ing].” That pressure, Corsetti said, came from the Afghanistan war command and the “Office of the Secretary of Defense” — and produced a command environment that encouraged detainee abuse.

“The only clear cut rules I remember was we weren’t allowed to strike the prisoners,” Corsetti said, and that interrogators couldn’t directly threaten detainees. “But we could do what we called ‘plant the seed’” of threats, and “let their imagination run wild with it.” One example, consistent with an affidavit Khadr submitted about his treatment at Bagram, was to suggest that detainees cooperate with interrogators to avoid being sent for more brutal treatment in other countries. “Egypt and Israel were the two big ones,” he said.

Corsetti also testified that detainees at Bagram were “regularly” placed in forced contorted positions known as “stress positions” (and, later, “safety positions,” according to an interrogator who testified on Tuesday). “Stress positions were used to inflict pain on the prisoners, to elicit information from them,” Corsetti said, rocking back and forth in his chair. “At any given time, there was always one airlock occupied by a prisoner shackled, blindfolded, earmuffed with his hands above his head.” That description came close to matching one given by an anonymous Bagram medic, known as Mr. M, who testified Monday to seeing Khadr shackled to the outermost door of his cell — known as an airlock or sallyport — with his hands shackled at about forehead-level. The level of positioning for a detainee’s restrained arms would “depend on the length of the chain they used from the top of the cage,” Corsetti calmly recounted.

Asked if he knew if Khadr would have been put in a stress position, Corsetti replied, “I can’t say if it was done to him, but it was something I would have done.”
Corsetti’s lack of direct knowledge of Khadr’s treatment repeatedly aroused objections from the chief government prosecutor, Jeffrey Groharing, a retired Marine major, pushing Corsetti’s testimony to nearly two hours. Groharing argued that the defense could only question Corsetti about any treatment of Khadr that Corsetti directly observed. But Col. Patrick Parrish, the judge presiding over Khadr’s military commission, responded that the hearing’s admission of hearsay evidence — ironically, one of the biggest civil-libertarian objections to the commissions — could work in the defense’s favor, as it had for the prosecution.

Groharing has called eight interrogators to testify so far about direct interactions with Khadr. All have largely portrayed their interrogations and interviews with him as free and uncoerced. But later this week, the defense intends to call to the stand someone known to the court as “Interrogator #1,” who interrogated Khadr at Bagram and who is expected to testify to threatening Khadr with rape.

For all the command pressure for intelligence and the harsh treatment that resulted at Bagram, Corsetti said he wasn’t sure whether it resulted in accurate intelligence. “I got some very good information while I was there and I got some very bad information while I was there,” he said.

He last saw Khadr shortly before the detainee’s October 2002 transfer to Guantanamo Bay. “I can’t say if he was afraid or not,” Corsetti said. “I remember he went from a smiling 15 year old kid to a look of defeat before he left.”

Omar Khadr and the Guantanamo Bay detention center (ZUMA, Spencer Ackerman)

GUANTANAMO BAY — Welcome to the first courtroom logjam of what officials here call military commissions 4.2.

Omar Khadr’s pre-trial hearing this morning experienced an unexplained hour-long delay. Court officers filtered in at 10 a.m., without a certain important individual: Omar Khadr.

[Security1] Prosecution promptly called a Marine Corps captain, Laura Bruzzese, to testify that she informed Khadr at 5:15 a.m. that there was a hearing scheduled for this morning. Khadr had a blanket over his head and complained of pain in his left eye, which has been sightless after an injury sustained during his 2002 capture in Afghanistan. She had him escorted to the infirmary, where he received an eyedrop for the pain, and in Camp Delta security officers attempted to load Khadr into a van to transport him to court. Part of that transfer involved putting what Bruzzese called “Eyes and Ears” on Khadr: blackout ski goggles and earmuffs to block out his senses while in transit.

Only Khadr refused. When Bruzzese asked him why he wouldn’t wear the Eyes and Ears — standard operating procedure for transiting a detainee, she testified — Khadr responded, “The only purpose is to humiliate me.” Under cross-examination, she testified that the van used for transport has no windows. Khadr wouldn’t, in other words, be able to understand where he was going even without the Eyes and Ears.

Khadr’s aggressive defense lawyer, Barry Coburn, contended that Khadr was not voluntarily absent from the hearing. “My understanding is that this has never been done before,” Coburn told Col. Patrick Parrish, the military judge, referring to the placement of the Eyes and Ears on a detainee in the van.

Parrish didn’t appear sympathetic. “This court is not going to second-guess the security requirements” placed by military officials here for detainee transfer, he said. Parrish denied Coburn’s requests to call witnesses to testify as to the involuntary nature of Khadr’s refusal to attend.

But then Parrish returned from a brief recess arising from an unrelated issue with new facts. Court reporters verified that the prior judge in Khadr’s case, Col. Peter Brownback, did not inform Khadr during his 2007 arraignment that a defendant has the right to attend every hearing in his case and that the proceedings will not stop if he declines to attend.

“I don’t feel comfortable proceeding until it is clear on the record that he has been so advised,” Parrish said, preparing to bang his gavel down for a recess. “The Manual says it is so fundamental.”

Before he did, Parrish urged defense counsel to visit Khadr at Camp Delta and “advise him of his fundamental rights.” If Khadr affirms to his lawyers that he understands and still doesn’t want to attend, Parrish said he’d accept that outcome. Alternatively, Parrish said he would “have him forcibly brought” to court to inform Khadr of his rights. (One of the most knowledgeable reporters here, Carol Rosenberg of the Miami Herald, said that judges don’t necessarily have the authority to order a detainee movement, as it’s been challenged in prior cases.)

So thanks to an obscure procedural snafu from 2007, Coburn and his partner, Kobie Flowers, are racing to Camp Echo, where detainees meet with their lawyers, to talk to Khadr. Neither would tell me in the confusion of the courtroom which option they’d choose. But they brought along Steve Xenakis, a mental health expert, to evaluate Khadr — most likely so that if Khadr declines to attend, they could proffer an expert statement about how voluntary he considers his absence.

“How quick can we get on the road, guys?” was the last thing I heard Coburn say before his team raced out the door.

The court reconvenes at 1 p.m. One potential problem: Camp Echo is outside the wire of Camp 4, the facility for “compliance” detainees, where Khadr resides. Conceivably, security officers could force Khadr to put on the Eyes and Ears, even to talk to his lawyers at Echo.

Video after the jump:

Video after the jump:

The Pentagon is seeking about $350 million in its Afghanistan funding authorization to buy the Thomson Correction Center in Illinois. According to a senior administration official who briefed reporters on the plan to close Guantanamo in December, the facility will house detainees either convicted by military commissions or held in some form of indefinite detention without charge. To civil libertarians, that would entrench some of the most intolerable legal abuses of Guantanamo Bay in the name of ending it, rendering the shutdown of the facility Pyrrhic at best and misleading at worst. Sen. Mitch McConnell (R-Ky.), the Senate GOP leader, no fan of closing Guantanamo, has questioned the value of exporting Guantanamo practices to Illinois instead of ending them outright.

In the new and delicately worded letter, eight civil libertarian organizations come to the same reluctant conclusion, and urge legislators to vote against the Thomson purchase unless they also pass a “permanent, statutory ban on using the Thomson facility for indefinite detention without charge or trial or for military commission-related detention.” That would earn the blessing of a coalition that “strongly support[s] the responsible closing of the Guantanamo Bay detention facility” and takes pains to praise “many of the steps the Obama Administration has taken” to close Guantanamo “the right way,” either through “repatriation and resettling” of detainees or trying them federal civilian court.

“Bringing the practice of indefinite detention without charge or trial to any location within the United States will further harm the rule of law and adherence to the Constitution,” reads a letter signed by the Alliance for Justice, American Civil Liberties Union, Amnesty International USA, Center for Constitutional Rights, Japanese American Citizens League, National Association of Criminal Defense Lawyers, Physicians for Human Rights, and the United Methodist Church’s General Board of Church and Society. “The current statutory ban on transferring detainees to the United States for purposes of indefinite detention without charge or trial expires at the end of the current fiscal year. Congress should not move forward with the Thomson purchase until and unless it permanently prohibits indefinite detention and military commission-related detention at the Thomson facility.”

The letter is the first concerted forceful statement of position to Congress from civil libertarians who have expressed months’ worth of discomfort with the contours of the Thomson-based Guantanamo closure plan — or what detractors call “Gitmo North.” But it evidently did not win the support of other prominent civil liberties groups like the Constitution Project, Human Rights Watch and Human Rights First.

Here’s the full text:

TO: Members of the U.S. Senate
Members of the U.S. House of Representatives

FROM: Alliance for Justice
American Civil Liberties Union
Amnesty International USA
Center for Constitutional Rights
Japanese American Citizens League
National Association of Criminal Defense Lawyers
Physicians for Human Rights
United Methodist Church, General Board of Church and Society

DATE: April 8, 2010

RE: Opposition to the Purchase of the Thomson Correctional Center in Thomson,
Illinois—Unless Congress Also Enacts a Permanent, Statutory Ban on Using the Thomson Prison for Indefinitely Detaining Persons Without Charge or Trial, or for Holding Persons During Military Commission Trials or for Serving Sentences Imposed by Military Commissions

We urge you to oppose legislation authorizing, or appropriating federal funds for, the purchase of the Thomson Correctional Center in Thomson, Illinois, unless Congress, at the same time, also enacts a permanent, statutory ban on using the Thomson prison for indefinitely detaining persons without charge or trial, or for holding persons during military commission trials or for serving sentences imposed by military commissions. All of our organizations strongly support the responsible closing of the Guantanamo Bay detention facility, and we would support using the Thomson facility for holding any detainees now at Guantanamo who may be charged, tried, or sentenced in federal criminal court. However, we strongly oppose transporting the worst of Guantanamo policies—indefinite detention without charge or trial and military commissions—to a prison within the United States itself. If used for one or both of these purposes, the purchase of the Thomson prison could result in institutionalizing and perpetuating policies that should instead end.

On December 15, 2009, President Obama signed a memorandum directing the Attorney General and Secretary of Defense to acquire and activate the Thomson prison for use by the Department of Defense in holding detainees currently at the Guantanamo Bay Naval Base and by the Department of Justice’s Bureau of Prisons as a federal penitentiary for holding prisoners in high security, maximum security conditions. According to a study by the Council of Economic Advisers last year, the Defense Department would control 400 of the 1600 cells at the Thomson prison. The Bureau of Prisons would control the remaining cells.

On December 15, a number of government officials provided further details on who would be, and who would not be, held in the portion of the Thomson prison designated for use by the Defense Department. In a letter and accompanying questions and answers from the Deputy Secretary of Defense to Congressman Mark Kirk, the Defense Department stated that the Thomson prison would be used to imprison Guantanamo detainees whom the government is indefinitely detaining without charge or trial under a claim of detention authority based on the 2001 Authorization for Use of Military Force, and also Guantanamo detainees tried before military commissions or serving sentences imposed by military commissions. However, the Deputy Secretary’s answer to Congressman Kirk’s questions stated that Guantanamo detainees charged and tried before federal criminal courts would not be housed at the Thomson prison. Further, in a briefing by a “senior administration official” on December 15, the official stated that Guantanamo detainees cleared for release would remain at Guantanamo until transferred to other countries, and would not go to Thomson.

There is a right way and a wrong way to close Guantanamo. To date, many of the steps the Obama Administration has taken—with the support of many members of Congress, including prominent congressional supporters of the Thomson purchase–have been in the direction of closing Guantanamo the right way. The Obama Administration has worked hard to make charging decisions for detainees whom the government believes should be prosecuted in federal criminal courts in the United States, has closely collaborated with important allies of the United States in repatriating and resettling detainees cleared for release, and has continued the process of clearing detainees for release or transfer. The Obama Administration should continue all of these steps until the population at Guantanamo reaches zero.

However, there are two developments over the past year that constitute closing Guantanamo the wrong way. First, the government has reinstituted the discredited military commissions. The military commissions have now gone through eight years, two statutes, four sets of rules, but have only resulted in three convictions, with two of those convicted detainees now released. By contrast, more than 400 defendants have been convicted of terrorism-related offense in federal criminal courts. The military commissions still do not have any rules based on the new statute, continue to have fundamental problems that could result in their proceedings being held illegal under the Constitution and international law, and deservedly lack credibility both at home and abroad. Second, the government continues to claim authority to indefinitely detain without charge or trial some of the Guantanamo detainees. Even if there is legal authority to continue to indefinitely detain these men, which many of our groups dispute, the government should make the policy decision that the interests of the United States are better served by either charging a detainee in federal criminal court or repatriating or resettling the detainee.

Based on the government’s own statements, it appears that the Defense Department-run portion of the Thomson prison would house only those Guantanamo detainees being held pursuant to Guantanamo policies that should end—namely, military commissions and indefinite detention without charge or trial. Congress should not authorize, or appropriate money for the acquisition of the Thomson prison unless it also enacts a permanent statutory provision that would ensure that the Thomson prison will not become a U.S.-based prison dedicated to perpetuating Guantanamo policies that should end.

Bringing the practice of indefinite detention without charge or trial to any location within the United States will further harm the rule of law and adherence to the Constitution. Shortly after President Obama took office, the government charged, tried, and convicted the only person then-held on U.S. soil indefinitely without charge or trial. At present, the number of people held within the U.S. itself indefinitely without charge or trial is zero. However, if the Thomson prison is acquired and the current statutory prohibition on transferring Guantanamo detainees for purposes other than prosecution is allowed to expire, the number of persons held on U.S. soil without charge or trial could reportedly rise to 50 or more.

Moreover, Thomson could eventually become the place to send other persons held indefinitely without charge or trial—with the prospect of detainees being transferred there from Bagram, Afghanistan or new captures brought from other locations around the globe. The unfortunate reality that we would face if Thomson opens is that it is easier to go from 50 to 51 indefinite detention prisoners than it is to go from 0 to 1. Once the indefinite detention policy is institutionalized at Thomson, it will be difficult to hold the line at former Guantanamo detainees.

We urge that you oppose the purchase of the Thomson prison unless Congress, at the same time that it authorizes or funds the purchase, also enacts a permanent, statutory ban on using the Thomson facility for indefinite detention without charge or trial or for military commission-related detention. The current statutory ban on transferring detainees to the United States for purposes of indefinite detention without charge or trial expires at the end of the current fiscal year. Congress should not move forward with the Thomson purchase until and unless it permanently prohibits indefinite detention and military commission-related detention at the Thomson facility.

We would be very interested in meeting with you or your staff to discuss this issue further.

Update, 1:06 p.m.: The Government Accountability Project is a last-minute signatory, bringing the total number of groups signing the letter to nine.

William Lietzau (Defense Department photo)

A key behind-the-scenes architect of the Bush administration’s first version of the military commissions for terrorism suspects — which the Supreme Court found to unconstitutionally restrict the legal rights of detainees — will take a central Pentagon position dealing with detainee policy for the Obama administration.

William Lietzau, a Marine colonel who currently serves as deputy legal counsel to the National Security Council, is poised to become the Pentagon’s new deputy assistant secretary for detainee affairs in the next several weeks. Lietzau, an international law expert described even by his critics as a brilliant and energetic attorney, previously served as a special adviser to Jim Haynes, the top Pentagon lawyer during Donald H. Rumsfeld’s tenure, when Rumsfeld and Haynes codified torture and indefinite detention as hallmarks of Bush-era terrorism policy. The position, which is not subject to Senate confirmation, came open late last year, after Phil Carter, the previous deputy assistant secretary for detainee affairs and a favorite of civil libertarians, abruptly resigned.

[Security1]As the next deputy assistant secretary, Lietzau will be at the center of the Obama administration’s decisions about trying the remaining Guantanamo detainees in reformed military commissions or in federal courts. He will also be central to the construction of a post-Guantanamo terrorism-detention policy in an administration that claims to be more committed to the rule of law than its predecessor. Lietzau is said to have gained the confidence of senior administration officials over the past year, particularly as he helped revise the military commissions to include greater process protections for defendants — even though civil libertarian groups still consider those rules to be unfair.

Two senior military lawyers who fought with Haynes over military commissions and interrogations in the Bush administration said they were surprised to hear of Lietzau’s impending appointment to the Obama Pentagon. Retired Rear Adm. Don Guter, who served as the Navy’s Judge Advocate General from 2000 to 2002, described Lietzau as a close Haynes confidante but not an outspokenly opinionated figure. “If he disagreed with Jim Haynes you’d never know about it,” Guter said. “Because of his close association with Haynes I’d be more comfortable if I saw something public [indicating] he’d made a break with those policies.”

Retired Army Maj. Gen. Thomas J. Romig also described Lietzau as closely tied to Haynes, whose role in instituting extreme interrogations at Guantanamo Bay against the wishes of military lawyers cost him Senate confirmation for a federal judgeship. Romig, the Army’s Judge Advocate General during Bush’s first term, said that although he did not know specifically what positions Lietzau took on detainee interrogations or if Haynes even consulted him on the issue, “at that time, he was certainly in the bosom of the administration that was running interrogation programs that at the very least were quite troubling, and in many minds were a violation of the laws of war and the Geneva Conventions.” Lietzau’s expertise in international law — he was part of the Clinton administration’s delegation to the 1998 Rome conference that wrote the treaty establishing the International Criminal Court — should have allowed him to know “what was right and wrong with [Bush's] interrogation policies,” Romig said.

While Lietzau was close to Haynes, he also became close to retired Marine Gen. Jim Jones, now Obama’s national security adviser. The two officers met in Europe a few years after Lietzau had left the commissions, when Jones commanded U.S. military forces on the continent and Lietzau was his staff judge advocate. Lietzau joined the National Security Council last spring at Jones’ request.

Lietzau has many advocates in the legal and policy communities. John Bellinger, the former National Security Council and State Department legal adviser during the Bush administration, sparred frequently over detainee treatment with Haynes and David Addington, Dick Cheney’s attorney, who took far more extreme positions. But Bellinger, now a partner with the law firm of Arnold & Porter, considered Lietzau a first-rate appointee. “I think Lietzau is an excellent choice who knows the issues and is pragmatic and non-ideological,” he said. “I have never seen him to approach terrorism issues or international justice issues in an ideological way.

Similarly, Eugene Fidell, a Yale Law professor and president of the National Institute of Military Justice, called Lietzau’s appointment “creative,” despite any substantive policy disagreements they had. “The last thing I want is someone to come into the job without the respect of the military bench and bar, which he would have,” Fidell said, “and having to start from scratch in understanding the legal environment.”

Rosa Brooks, a Pentagon policy official who criticized the military commissions during the Bush years, added that while she couldn’t confirm Lietzau’s appointment, “I am a fan of Bill Lietzau’s. He’s smart, an honest broker, and has both intellectual and moral integrity.”

Lietzau was the first prosecutor for the military commissions established in 2001 — an official Pentagon release called him “instrumental” to the military commissions’ “preparations” — and served in that role until 2003. Yet during that time, the commissions did not bring charges against a single detainee, a fact that raised eyebrows among his colleagues. “I have to believe in his position Lietzau was being used by Jim Haynes as a sounding board or adviser on all international law issues,” Romig said, “because he was not doing much as chief prosecutor.

In a valedictory May 2003 press briefing, Lietzau described his role as “really the process portion of setting up military commissions.” That process, established by Rumsfeld, his deputy Paul Wolfowitz and Haynes, departed significantly from the military’s courts-martial system, restricting a defendant’s right to a public trial and allowing for hearsay to be admissible, although Lietzau pushed for defendants to retain the presumption of innocence. At the briefing, a reporter asked Lietzau if the commissions provided a defendant with a defense comparable to the normal military justice system, and he replied that the commission’s rules “were drafted to accommodate that kind of flexibility that would be needed.” But five years after their creation, a 5-4 majority of the Supreme Court ruled that the commissions were unconstitutional, improperly established by the administration and providing defendants with insufficient due process rights. In 2006, Congress passed a law authorizing a new version of the commissions although the Supreme Court in 2008 found problems with the process rights of the new commissions as well.

One senator who voted against the 2006 Military Commissions Act was Barack Obama. Last May at the National Archives, in one of Obama’s most important national security speeches as president, Obama criticized “the flawed commissions of the last seven years” and said his embrace of a reformed version of the commissions would bring them “in line with the rule of law.” Some in the administration believe Lietzau is, however ironically, the man for the job. A senior administration official who would not speak on the record because Lietzau’s appointment has not been announced said that the colonel “believes the rule of law is a fundamental part of our effort in the fight against al-Qaeda” and that Lietzau’s long experience with both the military commissions and international law provides the administration with “value added as we work with Congress” on a “durable” legal infrastructure for terrorism detainees.

At times Lietzau has expressed surprise about the Bush administration’s terrorism decisions. During a talk he gave at Harvard shortly after 9/11, he said he doubted that the administration would seek to try anyone in a military commission; months later he was helping design them. And in an article for a book on terrorism and international law published in 2002, Lietzau averred that President Bush’s assurance that the military treat detainees in the “spirit” of Geneva Conventions ensured that detainees “will continue to be treated humanely.” Over the next several years, dozens and perhaps hundreds of people detained by the U.S. in Guantanamo, Afghanistan, Iraq and elsewhere were tortured — activities President Obama expressly forbid during his first week in office by issuing an executive order restricting interrogation techniques to those listed in the Army’s field manual.

Lietzau was a deputy to Haynes during the winter of 2002 and spring of 2003, when Haynes presided over an internal Pentagon debate resulting in the modified adoption for Guantanamo of “enhanced interrogation” techniques authorized for the CIA to use on senior-level al-Qaeda detainees. A Senate Armed Services Committee investigation from 2008 determined that Haynes was a powerful bureaucratic force pressing for harsher detainee treatment. A former colleague in Haynes’ office, Richard Shiffrin, told the committee that Lietzau was present at a key 2002 meeting in which participants expressed “some frustration with the quantity and quality of information being obtained” at Guantanamo, although Shiffrin did not attribute any substantive position to Lietzau. And no source for this piece had knowledge of Lietzau having anything to do with torture.

It is unclear what exactly Lietzau’s appointment signifies in terms of concrete policy decisions or shifts. An email to Defense Secretary Gates’ spokesman, Geoff Morrell, went unreturned. But Bellinger predicted Lietzau would “adopt a balanced approach between the security needs of the country and military and the need to address worldwide concerns that we do not have an appropriate legal framework or legal policies.” The senior administration official said Lietzau was “bound and determined to make sure, whether it’s in three years or seven, when he walks away from this job, there is a durable legal infrastructure” to handle terrorism detainees justly.

Both Guter and Romig, the former senior military JAGs who clashed with Lietzau’s old boss, Haynes, independently described Lietzau as intellectually “flexible” and willing to faithfully implement the policies of his bosses. “The guy is smart, so he can figure out what the Supreme Court has said” about the due process rights to which detainees are entitled, but “it troubles me the guy can go from one end of spectrum to the other, arguably,” Romig said. “It’s very curious they would take somebody to run [policy on] detainees who was in the position he was in seven or eight years ago.”