Detainees at Guantanamo Bay (The Toronto Star/ZUMApress.com)

If there was any doubt that Republicans in Congress will oppose this year’s push from President Obama to close the detention facility at Guantanamo Bay, Sen. Mitch McConnell’s (R-Ky.) speech Wednesday to the Heritage Foundation ought to have laid it to rest. In the course of a half hour’s worth of invective against the administration’s counterterrorism policies, the Senate minority leader pledged to block funding for any efforts at giving terrorism detainees trials in civilian courts. But he held out a special reverence for the much-vilified locus for military commissions and indefinite detention. “Thankfully, Gitmo is still open for business,” McConnell said.

[Security1] McConnell then turned, briefly, to an argument that is starting to be shared by McConnell’s typical political enemies — and which could seriously complicate the administration’s plans for the final closure of Guantanamo Bay. If Obama simply moves the military commissions and indefinite detentions featured at Guantanamo to a new detention facility in Thomson, Ill. — as the administration currently plans –then there is “no doubt” that al-Qaeda will use Thomson “for the same recruiting and propaganda purposes” it’s used toward Guantanamo, McConnell said, a prospect that “eliminates the administration’s only justification for closing Guantanamo.”

With reluctance, many in the civil-liberties community think McConnell has a point. They have no patience for McConnell’s argument that terrorism detainees should not receive civilian trials. But the administration’s plan to close Guantanamo, from their perspective, merely transfers its most offensive practices to the middle of Illinois. In what they see as a tragic irony, the cohort that led the charge during the Bush administration to shutter the Guantanamo facility is increasingly vocal in opposing Obama’s already-imperiled path to shutting it down.

“What’s the point of simply moving Guantanamo on shore?” said Shayana Kadidal, an attorney with the Center for Constitutional Rights. Chris Anders, senior legislative counsel for the American Civil Liberties Union, said flatly, “We oppose any legislative proposal that links the purchase of Thomson to indefinite detention without charge and the use of military commissions.”

The coalescing civil-libertarian opposition to the Thomson plan now has a legislative target. Robert Hale, the Pentagon’s comptroller, announced on Monday that the $159 billion funding request for next year’s operations in Iraq and Afghanistan will contain a $350 million “transfer fund” for detainee operations that will authorize the administration to “let us open the Thomson, Illinois, site.” Placing the money for buying Thomson from Illinois — a necessary step toward transferring those Guantanamo detainees that will not be tried in federal civilian court to the prison –effectively dares critics to face accusations of not supporting the troops in Afghanistan if they try to block funding for for the Guantanamo closure.

At least one question about Thomson that civil libertarians consider crucial remains unanswered by the Obama administration. The administration has stated clearly that Thomson is designed to house detainees tried before military commissions, as occurs at Guantanamo. But it has been much vaguer about embracing or renouncing the even more contentious prospect of indefinite detention, Guantanamo’s other chief feature.

Last month, a year-long interagency task force on Guantanamo detainees recommended to the White House that the administration ought to continue to hold about 50 detainees indefinitely without charge, claiming simultaneously that there is insufficient evidence to convict them before either civilian or military courts but that their release would jeopardize national security. An administration official who would not discuss ongoing deliberations on the record said that the National Security Council is still reviewing the task force’s recommendations. “You should not consider them already accepted,” the official said, but cautioned that there is no timetable for formal adoption, rejection or modification of the recommendations, since “detainees’ status’ could change, based on the status of their habeas case [or] the situation on the ground in a receiving country” to which the detainees’ might be transferred.

With the arrival of a funding mechanism for Thomson on Capitol Hill, that vagueness leaves the civil liberties community unable to say that the administration has ruled out holding detainees indefinitely without charge, a bedrock principle of every civil libertarian organization, and unable to distinguish Thomson’s planned activities from Guantanamo’s objectionable ones. “If all we’re doing is exporting Guantanamo to Thomson for purposes of military commissions and indefinite detention,” said Virginia Sloan, president of the Constitution Project, “we’re very strongly opposed to that.”

Devon Chaffee, who handles national-security issues for Human Rights First, cautioned that the contours of the Thomson legislation were not yet fully defined. But, she said, “Human Rights First will continue to oppose indefinite detention without trial and the use of a flawed military commission procedure regardless of where it’s implemented. As long as the U.S. continues those policies, it will fail to overcome the policy mistakes that made Guantanamo a stigma. Those are two positions of ours that are not going to change.”

As a result of the administration’s vagueness about continuing to hold detainees at Thomson indefinitely without charge, the $350 million funding vehicle could unite liberal congressional opponents of indefinite detention with conservative congressional advocates of it. And the Obama administration does not have much legislative margin for error, even on a request as normally politically sacrosanct as war funding. Like with the defense budget overall, the Iraq and Afghanistan money for next year, formally known as the Overseas Contingency Operations Fund, must be authorized by the Senate and House armed-services committees before the formal appropriation is taken up by the Senate and House appropriations committees, all preceding full votes before the Senate and House. Republicans in the Senate proved willing in December to filibuster the defense appropriations bill in a failed bid to stop Obama’s health-care reform package. A potential alliance of convenience between Republicans who want to keep Guantanamo open and liberal Democrats who want to prevent Thomson from becoming a new Guantanamo could jeopardize the measure’s passage.

Anders said that if the Thomson plan was “reconfigured for the pre-trial detention and post-conviction sentencing of people tried in [federal] courts we might very well take a very different position,” holding out the prospect of the administration earning civil libertarian support by shuttering both Guantanamo and its policies. But, he added, “that’s not how it’s being set up.”

That isn’t a consensus position among civil libertarians. David Remes, a lawyer for several Guantanamo detainees and the executive director of the Appeal for Justice, a human-rights legal practice, said he opposes Thomson under any circumstances. “Number one, I oppose preventive detention in principle, and number two, I don’t see how spending a lot of money to change the zip code moves the ball forward,” Remes said. “I’m not in favor of moving anything to Thomson. There really is no difference between being tried in Gitmo North versus Gitmo South.”

Nor has the civil libertarian community been consulted on the plan, a position that many consider to have effectively cut off the administration from potential outside messaging surrogates. “The community has been frustrated working with the administration on this because we’ve been available and more than willing to help defend policies we think are the right ways to close Guantanamo,” Sloan said. “They haven’t really done that here. We feel we’re behind the eight ball.”

Shuttering Guantanamo within one year was among of Obama’s first pledges in office. But the deadline slipped after numerous congressional missteps, including a dramatic Senate vote in May, embraced by 90 senators, to prohibit funding to “transfer, release, or incarcerate” Guantanamo detainees in the United States. Sen. Harry Reid (D-Nev.), the Democratic leader, insisted then that the vote was mostly symbolic and any administration plan to close Guantanamo would receive careful Senate consideration.

But the opposition to the administration’s plans for closing Guantanamo is increasing, even among those who ultimately want the U.S. to be rid of all forms of indefinite detention. Anders said that for the ACLU, “The goal has never been changing the geography. The goal is to close both Guantanamo and the policies that are problematic there — the use of military commissions and indefinite detention. Transferring those policies to Thomson is something we oppose.”

Following closed-door hearings in which the Dept. of Justice presented its full justification for holding the five Algerian men, detained in Bosnia in 2001 and held in Guantanamo Bay for the last seven years, Judge Richard J. Leon of Federal District Court in Washington ruled that the government had presented insufficient evidence to continue holding the men. (He did allow them to continue holding one other prisoner about whom the DOJ also presented evidence.)

Included among the men freed was Lakhdar Boumediene, the subject of the landmark case, Boumediene v. Bush, which established their right to habeas corpus proceedings.

The Times also notes, however, that the men aren’t likely to be immediately let go, either; Dept. of Justice lawyers are expected to appeal.

In a statement issued this afternoon, the DOJ said that while it was pleased it was permitted to hold onto one of the detainees, “we are . . . disappointed by, and disagree with, the Court’s decision that we did not carry our burden of proof with respect to the other detainees.”

The DOJ added: “we are promptly reviewing the decision with respect to the other five petitioners. But we also think that this ruling demonstrates the need for Congress to enact procedures that allow these petitions to be adjudicated in a way that is fair to the detainee but that allows the Government to present its case without imperiling national security.”

The Judge in the case, however, Judge Richard Leon, in an unusual statement actually asked the government not to appeal the ruling, saying that, as reported on SCOTUS blog: “seven years of waiting for our legal system to give them an answer to their legal question is enough.”

The DOJ has been working hard in recent weeks to keep the habeas corpus cases filed by hundreds of detainees from moving forward, even though the Supreme Court ruled in the Boumediene case in June that they’re entitled to challenge their detention. On Tuesday, Justice Dept. lawyers filed an opposition to an order by another federal district court judge handling the cases of more than 100 Guantanamo detainees. The judge had ordered the government to turn over the legal and factual basis for holding the men, and all exculpatory evidence.

On Tuesday, the government opposed the judge’s order. In an e-mail sent to lawyers handling the cases last week, the government lawyers had called the court’s order to turn over evidence “legally inappropriate and unworkable.”

The Democratic nominee, in answering a question about civil liberties from a member of the audience at a school gym, proactively raised Gov. Sarah Palin’s controversial attack from the Republican National Convention — when she claimed Democrats cared more about reading terrorists’ their rights than national security.

“First of all,” Obama said in his biting rebuttal, “you don’t even get to read them their rights until you catch them. They should spend more time trying to catch Osama bin Laden; and we can worry about the next steps later!”

As the crowd applauded, Obama punctuated his point with almost mock exasperation. “Seriously! These folks,” he said, turning to his own commitment to killing terrorists:

My position has always been clear: If you got a terrorist, take ‘em out — take ‘em out. Anybody who is involved in 9/11 — take ‘em out!

Yet unlike his Republican rivals, Obama argued that national security can be entirely consistent with upholding the Constitution:

But what have I also said is this: When you suspend habeas corpus, which has been a principal dating before even our county –- it’s the foundation of Anglo-American law — which says, very simply, if the government grabs you, then you have the right to at least ask, “Why was I grabbed” and say, “Maybe you got the wrong person.”

The reason you have that safeguard is because we don’t always have the right person. We may think this is Mohammed the terrorist, it might be Mohammed the cab driver.

Now I’ll shift from reporting to speculating, and note that in the moment Obama proffered the Mohammed example, he seemed to consider how the line might be misconstrued. Watching his voice rise in that packed Michigan gym, I think Obama knew he went farther than his typical line on racial profiling. (As you can see in the video below.)

To recalibrate, he gamely inserted himself into the habeas hypothetical. “You may think it’s Barack the bomb thrower, but it might be Barack the guy running for president.”

Then, Obama delivered a rousing close to his extemporaneous constitutional address:

So the reason that you have this principle is not to be soft on terrorism. It’s because that’s who we are – that’s what we’re protecting! (applause) Don’t mock the Constitution! (applause) Don’t make fun of it! Don’t suggest that it’s un-American to abide by what the founding fathers set up — it’s worked pretty well for over 200 years!

The crowd rose to its feet in loud applause. It was one of the most warmly received arguments of the day, a departure from the economic policies that anchor Obama’s current stump speech.

During the primaries, Obama’s habeas corpus line usually drew applause, and he has been advocating the issue in Congress.

Obama is one of the 13 senators to co-sponsor the Restoring the Constitution Act, a bill to restore the rule of law and roll back major parts of the Military Commissions Act, which the Supreme Court recently found unconstitutional. The 5-4 decision was praised by Obama, while Sen. John McCain derided it as one of the “worst” judgments in history.

Watching both parties’ conventions, you wouldn’t know the rule of law has been seriously undermined by the Bush administration, or that torture, rendition, domestic warrantless surveillance and other crimes have become common tools of U.S. policy under a corrupted Justice Dept.

It was heartening, if only for a few moments, to watch a citizen raise those issues, and for a presidential candidate to respond with principle and passion for restoring the constitutional order.