From a statement issued by the trio:

We are confident that the government can preserve national security without resorting to sweeping and radical departures from an American constitutional tradition that has served us effectively for over two centuries.

Civilian federal courts are the proper forum for terrorism cases. Civilian prisons are the safe, cost effective and appropriate venue to hold persons convicted in federal courts. Over the last two decades, federal courts constituted under Article III of the U.S. Constitution have proven capable of trying a wide array of terrorism cases, without sacrificing either national security or fair trial standards.

Likewise the federal prison system has proven itself fully capable of safely holding literally hundreds of convicted terrorists with no threat or danger to the surrounding community.

The scaremongering about these issues should stop.

Barr has a unique position in the conservative coalition–he left the GOP to run for president as a Libertarian candidate, but his campaign is not seen to have spoiled anything for the McCain-Palin ticket. Keene and Norquist remain conservative powerhouses, and the former played key role in making Doug Hoffman’s NY-23  campaign into a national cause.

Yesterday, Jonathan Hafetz, the American Civil Liberties Union lawyer who represented Al-Marri in his challenge to military detention, told The New York Times that the sentence by a federal judge was “a powerful reminder that America’s civilian courts can deliver justice even in the most challenging circumstances.” But David Rivkin, a former Reagan-era Justice Department official and strong supporter of military commissions to try suspected terrorists had a different take. Criminal courts are “ill-suited” to terror cases because the sentences are “a crap-shoot,” he said, adding that military commissions “arrive at a better judgment, being comprised of warriors, as to what level of danger the person poses.”

Al-Marri, a legal U.S. resident living in Peoria, Ill., before his arrest in late 2001, spent almost six years in a U.S. Navy brig in South Carolina without charge, mostly in isolation. Shortly before his case questioning the legality of his indefinite detention on U.S. soil was set to reach the Supreme Court,  the Obama administration transferred him to civilian custody, incarcerated him in a federal prison and prepared for his trial in federal court. But prosecutors agreed to accept a plea bargain, in which Al-Marri admitted that he’d been ordered by al-Qaeda official Khalid Shaikh Mohammed to move to the United States from his native Qatar and await instructions. Al-Marri moved his wife and five children to Peoria and he enrolled at Bradley University, where he had studied earlier. He admitted in his plea that he “researched online information related to various cyanide compounds” and communicated with other al-Qaeda operatives.

When al-Marri was arrested in December 2001 on charges of financial fraud, he hadn’t carried out any terrorist acts. But 18 months after his arrest, the government dropped the criminal charges and named al-Marri an “enemy combatant,” which in the Bush administration’s view, gave the government the right to hold him indefinitely in military custody. He remained at the Navy big, without charge or trial, until February.

Whether it’s legal for the United States to imprison indefinitely a lawful U.S. resident in a military prison on U.S. soil remains an open question, largely because the Obama administration did not give the Supreme Court an opportunity to rule on it. That may have been a strategic move designed to leave open the possibility of using that power again, particularly since President Obama promised to close the Guantanamo Bay prison by January 2010, but hasn’t yet decided what to do with many of the detainees imprisoned there.

For Al-Marri, however, it means he will now serve another eight years in prison. (He faced up to 15 years, but the judge agreed to consider the time he’d already served.) Al-Marri yesterday tearfully apologized for helping al-Qaeda and said he no longer wants to harm the American people.

Notwithstanding Rivkin’s criticism of the federal court’s sentence, it’s worth noting that in the two contested cases where terror suspects were sentenced by military commissions for similarly assisting al-Qaeda, both received lighter sentences. Salim Hamdan, for example, Osama bin Laden’s driver, was sentenced by a military jury of “warriors” to just five and a half years in prison, and given credit for time served. He’s already back home in Yemen. In the other case, Australian David Hicks pleaded guilty to providing material support for terrorism and was sentenced to only nine months in prison. A former kangaroo-skinner, Hicks is now home.

By appointing Burris to inject racial politics into the battle to save his job, former Gov. Rod Blagojevich (D-Ill.) saddled Senate Democrats with one of the most dizzingly incoherent politicians in America, and threw the incredibly safe Illinois Senate seat open for a possible Republican takeover. Burris’s service in the Senate may one day be summed up by this accidental poem:

Thank you, Mr. Chairman, this is — this is — I mean this is. Thank you, Mr. Chairman. I’m done.

Read the full horror:

BURRIS: This has — being a constitutional and political science student, I mean, this is Political Science 101 or Political Science, maybe, 1000. The panel’s just been terrific.

And I have so many thoughts just rolling through my head, I don’t even know where to start. I mean, this is — this is the meat that caused us political scientists to even exist, because you’re dealing with these major issues of the separation of powers and the creation of this country and whether or not you want your president to really have the powers that you granted it, and whether or not the Congress, which is on similar or equal footing, can then control or muscle in on those powers of the president.

Based on the fact that — especially the House of Representatives, since they stand for re-election every two years and senators much longer, you — you have this constant power struggle as who is really representing the people and what that representation is going to mean when it gets to the — the policy decision that’s going to impact the public.

And I don’t know whether or not — I don’t think you can come up with a definition dealing with this. Having served in a governor’s cabinet and having dealt with those staffers, it almost depends on how strong the cabinet member is as to just what and how he’s going to deal with those situations and those circumstances.

Because having experienced that on the state level, and knowledgeable to some extent on the federal level — I was very close to the — to the Carter administration and had good insights into the workings of the White House and all of those decisions that were being made and how the gatekeepers really sought to filter the information that got to the president.

Every president’s going to go through it. I don’t even know how we in the Congress can legally — I mean, I heard the distinguished ranking member say that we passed a law. We can pass a law and say there’s going to be a position in there, but I don’t think the Congress can tell the president who to put in that position.

I mean, if we do that, then I think that we’re violating the separation of powers. I mean, this is what we get into. And you can create a position. What happens if — what happens if the president says, “I don’t want to appoint anybody as secretary of state. I’m going to use the undersecretary as an acting secretary”?

Is there a law that would require us or require the president to appoint a secretary of state? Is there? Is there?

CASEY: A law that requires the president to appoint a secretary of state?

BURRIS: Yes.

CASEY: Specifically, there would not be a law requiring him to do that. Now, of course, if he wants the functions that you vested in a secretary of state performed, he — he probably has to do…

(CROSSTALK)

BURRIS: But there is no law that says he has to even appoint a secretary of state, is that — am I correct?

(CROSSTALK)

BURRIS: There’s a statute that says there’s a position — a secretary of state position…

CASEY: Right, right — shall be appointed in the following — yes — I’m unaware of any…

(CROSSTALK)

BURRIS: But is there a law that says the president has to make that appointment?

CASEY: Not that I’m aware of.

BURRIS: That’s the difficulty that we’re dealing with here. Is there a law that says that the president can appoint an acting person and how long can that person act?

CASEY: Yes. There is actually a law that governs…

(CROSSTALK)

BURRIS: OK. How long can that person act?

CASEY: It is — I would actually have to look at the statute but it’s a matter of months, it’s not…

BURRIS: A matter of months, so that person…

(CROSSTALK)

BURRIS: Otherwise, then, does the authority then leave that…

(UNKNOWN): (OFF-MIKE)

BURRIS: … that position?

(CROSSTALK)

BURRIS: And who then assumes that authority in that position if the president refuses to send the name up for confirmation to us?

CASEY: Well, yes, there — there are various — many circumstances in which an acting official can continue to serve, especially if they are the — the normal principal deputy of the office that — that you’re talking about.

BURRIS: And what about these midnight appointments, as we hear? You know, the judges in the interim time, or Congress in — in recess…

CASEY: Recess appointments.

BURRIS: The recess appointments. And they serve for only a certain period of time, and — and otherwise…

CASEY: Right.

BURRIS: … that person would have to leave the position and — I mean, you can see all the questions that are just flowing through my process here, as we try to talk about czars and policy-makers. This is even bigger than — than czars.

I mean — you’re — you’re wrestling with this — this just wonderful document that’s created 200 and plus years ago that created our entity and this thing called separation of powers.

We haven’t even gotten into the judiciary side of this, which could also raise a whole lot of other questions.

So, Mr. President (sic), I really don’t have many questions, I just — I got more questions than I have answers, Mr. Chairman, in reference to this, because I — I just sit here and listen to the experts talk, and every time there was a statement made, there’s a — there’s a new question come to my mind, well, what about this? What ifs — What if? What if? And — and so, I find this so fascinating, and I’m — I’m certainly going read each and every one of you all’s testimony.

I don’t know how I’m going to get back to — to, you know, the hearing again to try to follow up on this but, Mr. Chairman, I would imagine that our grandchildren are going to be still wrestling with this same problem.

I don’t know whether or not — given us wanting to have a weak president who’s going to kowtow to Congress or us having this — a weak Congress who’s going to let a president run all over us, which you see in some of these cases.

I mean if, you know, if — if you say that we’re going to appropriate some money, then they don’t want to spend it, you know, they don’t spend it.

And you just heard what my distinguished senator from Utah says, that who the gatekeeper is to stop the information from getting to the president. So, you know, I’m more frustrated than I am — with questions.

Thank you, Mr. Chairman, this is — this is — I mean this is. Thank you, Mr. Chairman. I’m done.

Tavis Smiley interviews Barack Obama in October 2007 (YouTube: BarackObamadotcom)

As the housing market began booming in the mid-2000s, Wells Fargo & Co. teamed up with prominent African American commentator and PBS talk show host Tavis Smiley and financial author Kelvin Boston, the host of “Moneywise,” a multicultural financial affairs show, to host something called “Wealth Building” seminars in black neighborhoods.

Smiley was the keynote speaker, and the big draw, according to Boston and Keith Corbett, executive vice president of the Center for Responsible Lending, who attended two of the seminars. Smiley would charge up the audience — and rattle the Wells Fargo executives in attendance — by launching into a story about how he hated banks, and how they used to refuse to lend him money for his real estate projects in Compton, Calif., and elsewhere. After Hurricane Katrina, Smiley also emphasized the importance of building assets and wealth, saying those who had done so were able to leave New Orleans, while people with nothing had to stay behind, Boston said.

Illustration by: Matt Mahurin

“My spiel was the financial planning process, how you want to be able to save and invest for the future, and to have a plan of action,” Boston said. “Then Tavis talked about his experiences with the banks, and how people should be thinking about some real estate.”

The seminars in some cities drew standing room only crowds, with numerous Wells Fargo representatives on hand, seated at carrels to meet one-on-one with potential borrowers who lined up after the speeches, which were usually held in hotels. The free, day-long events were heavily advertised in the black media, and launched in eight cities, including Baltimore, Chicago, Richmond, Va., and San Francisco.

But what appeared on the surface as a way to help black borrowers build wealth was actually just the opposite, according to a little-noticed explanation of the “Wealth Building” seminar strategy, contained in a lawsuit recently filed by Illinois Attorney General Lisa Madigan.

Wells’ plan for the seminars all along was to target black borrowers for higher-cost subprime mortgages, not for wealth-building, the suit charged. And the seminars were a part of the bank’s overall illegal and discriminatory practice of steering black and Hispanic borrowers into riskier and more expensive loans, the suit said.

“According to a former Wells Fargo Home Mortgage employee, one of these ‘Wealth Building’ seminars held in Maryland was planned for an audience that would be virtually all African American,” the suit said. “The plan for the seminar was for Wells Fargo Home Mortgage employees to talk about subprime mortgages, although they were directed by Wells Fargo Home Mortgage to use the term ‘alternative lending’ when marketing these products.”

The former employee, who is white, was scheduled to speak at the seminar, but was told by a manager that she was “too white,” and that only black employees could make presentations, the suit said.

Wells Fargo, one of the nation’s largest mortgage lenders and a recipient of $25 billion in government bailout money, has denied all the charges in the Illinois suit, as well as other allegations of unfair lending. The bank did not respond to requests for comment on the seminars. Smiley, an author and advocate who hosts the late night talk show, “Tavis Smiley,” and who organizes the State of the Black Union symposiums each year, also declined comment.

Corbett pointed out that Wells’ outreach to the minority community through the seminars wasn’t unusual. Lenders sponsoring financial literacy sessions, holding wealth building seminars, or contributing to local minority advocacy organizations, became a common marketing strategy as the subprime market grew. Some of the efforts were genuine, aimed at finding new customers in minority neighborhoods once deprived of credit. But sometimes they were used instead as a cover to push predatory loans, Corbett said.

“The wealth building seminars are certainly needed,” Corbett said. “But, if, in fact, Wells was selling bad products out of them, it was totally wrong.”

Boston, for his part, described himself as the small player in the seminars, giving an opening talk before Smiley went on. Boston said he spoke in general terms about the need to save money and to invest. Neither he nor Smiley ever mentioned or discussed subprime loans, he said.

“Basically we were just speakers for hire,” Boston said. “We didn’t have any role or any control over what else happened. The main point is that we were not involved in any of their discussions or in anything they sold.”

Corbett said that after the speakers finished, bank employees and other financial experts were offering credit checks, real estate counseling, and other kinds of assistance. Corbett said he also believes some employees were signing up people for loan pre-approvals, on the spot, though he couldn’t be sure of what kind of loans they were. He said attendees lined up to talk to the Wells employees in both events. “If they weren’t actually selling loans, they were setting up borrowers for the kill,”  Corbett said.

Once their speeches were over, however, Boston said he and Smiley  had nothing to do with the workshops and counseling. He said he and Smiley together did about 15 seminars over a period of about two years. He declined to comment on how much he or Smiley were paid.

In 2005, before the subprime crisis, Boston said, the main worry in the black community over mortgage lending was the banks were lagging behind in their lending to minority neighborhoods. He said expressed his concerns about this to Wells Fargo. Smiley, he said, also later raised questions about subprime lending tactics with the bank. “Tavis definitely had some dealings with them on this issue,” Boston said.

Nonetheless, in hindsight and with the collapse of the subprime mortgage market, Boston said he has second thoughts about participating in the seminars.

“Were we probably used? We probably were,” he said. “If I had the chance to do it over again, would I do it in a different manner? Probably.”

“You look back now and you feel for the homeowner who could have qualified for a better mortgage and got the costly type of mortgage. That concerns me a lot, not just for Wells Fargo, but for everybody out there, Citigroup, Countrywide … they were all doing the same events.”

But at the time, Boston said, having a major bank doing outreach in the black community was considered an encouraging development, after so many years of redlining and restricted access to credit. “We all thought at the time that we were doing a positive thing,” he said.

Boston said he quit doing the seminars after his contract ended two years ago. Smiley, he said, continued to work with Wells Fargo, particularly on his annual State of the Black Union symposiums. On his Website, Smiley recently posted a statement regarding Wells Fargo that said, “in this economic climate, we continue to be reminded every day that there is no perfect company.”

Smiley said in the statement that his relationship with Wells began in 2005, as part of the bank’s  “commitment to increase financial literacy in the African American community.” He said that “the partnership with Wells Fargo focused on building personal wealth, which for most Americans begins with buying a house.”

According to the statement, Smiley also has had partnerships with other companies, but has never served as a spokesperson or representative for any of them, including Wells Fargo. The statement also said Wells Fargo will no longer be one of the sponsors of his Black State of the Union event in 2010, although the bank sponsored the event as recently as last spring.

“Given the fact that Wells Fargo has been an industry leader, they have partnered with many African American and Latino national civil rights organizations on various community initiatives,” the statement said.

The Illinois lawsuit against Wells is one of many such actions winding their way through the court system around the country, offering more details of alleged discriminatory tactics by lenders during the height of the subprime boom. As TWI reported last week, housing advocates call these lawsuits the “smoking guns” of the housing crisis, providing what they see as proof that lenders deliberately targeted minorities for high-rate and risky subprime mortgages, while white borrowers with similar incomes and credit scores received lower-cost loans.

In a city of Baltimore lawsuit against Wells, former employees charged that Wells Fargo loan officers referred to minority borrowers as “mud people” and called subprime mortgages “ghetto loans.” But some prominent black bloggers find the “wealth building” seminars just as egregious, and question why Smiley, Boston, and anyone else who participated in them hasn’t been called on further to account for their actions.

“If Tavis Smiley was white, Wells Fargo and ‘Ghetto Loans’ would be front page news,” wrote Genma Stringer Holmes, a Nashville, Tenn., business owner and blogger who has blasted out several posts on the seminars.

Holmes said Smiley should speak out more against discriminatory subprime lending practices – but he hasn’t been forced to, because the black media has been silent on the issue, she said. The scandal that remains is that the ads and seminars targeted the most vulnerable members of black community, according to Holmes. “People who follow Tavis will follow him off a cliff,” Holmes said.

Boston said he still does seminars and presentations pushing wealth building, but he focuses on avoiding foreclosures and helping with loan modifications. He recently wrapped up work on an upcoming show on helping homeowners facing foreclosures, he said.

This story has been updated for clarity.

–

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The good news for Democrats? Giannoulias, who was welcomed into the race by a slapdash Fox News report accusing him of being corrupt, is right up there with Kirk in his favorable ratings. Kirk enjoys a 55-28 favorable rating, while Giannoulias is at 51-33. But by a 22-point margin, voters say they’re “less likely” to vote Democratic because of the Blagojevich scandals and the state budget.

Attorney General Eric Holder and President Barack Obama (AP Photo)

A series of letters between Sen. Richard Durbin (D-Ill.) and the Bush administration’s Department of Justice shed light on a reportedly impending Justice Department investigation that would mark the Obama administration’s first clear break from its predecessor’s policy of refusing to prosecute the torture and abuse of terror suspects.

Newsweek and The New York Times have recently reported, based on anonymous sources, that Attorney General Eric Holder is considering an investigation of the most serious cases of alleged abuses of terror suspect detainees by CIA interrogators who went “well beyond” the extreme methods authorized by the Justice Department. Although some human rights advocates have criticized the idea of investigating low-level CIA functionaries rather than the policymakers who made the rules and set the stage for abuse, the inquiry being contemplated would likely begin as a re-investigation of cases dropped by the Bush administration, and could well lead to prosecutions of those higher up the chain of command.

Illustration by: Matt Mahurin

Based on previous reports, the cases Holder would be likely to consider include, for example, the death of an Afghan detainee stripped naked, dragged and chained to a concrete floor by CIA operatives in a secret prison north of Kabul known as the “salt pit”; the prisoner was left there overnight and froze to death. Another concerns the death of Manadel al-Jamadi, an Iraqi insurgent who died just hours after being captured and beaten by Navy SEALs, then hung from his wrists at the Abu Ghraib prison. And then there’s the killing of Iraqi Maj. Gen. Abed Hamed Mowhoush, stuffed into a sleeping bag and clubbed to death.

Holder has reportedly indicated an interest in re-investigating these and other extreme cases of abuse, identified in a classified 2004 CIA inspector general report. Although that report has not been made public (it’s the subject of litigation between the ACLU and the Justice Department), previous communications from the Justice Department to members of Congress indicate that the inspector general referred about two dozen abuse cases to the Justice Department between 2001 and 2007.  The Justice Department “declined” to prosecute all but two under Bush. U.S. Attorney Paul McNulty, who headed many of these investigations in the Eastern District of Virginia, was subsequently promoted by President George W. Bush to the position of deputy attorney general in 2005.

Brian Benczkowski, then principal deputy assistant attorney general, explained the Justice Department’s refusals to prosecute in a letter to Sen. Richard Durbin (D-Ill.) in February 2008: “All of the declinations [to prosecute] resulted from insufficient evidence to warrant criminal prosecution for one or more of the following reasons:  insufficient evidence of criminal conduct, insufficient evidence of the subject’s involvement, insufficient evidence of criminal intent, and low probability of conviction.”

The letter was part of an ongoing dialogue between Durbin and the Justice Department dating back to 2005, when Durbin started asking then-Attorney General Alberto Gonzales about the status of the abuse referrals from the CIA and Defense Department. In a series of letters, Department of Justice officials repeatedly told Durbin and Sen. Patrick Leahy (D-Vt.) that the cases referred to them simply didn’t warrant prosecution, always for the same list of reasons.

Having read the inspector general report himself, Attorney General Eric Holder now appears to believe that his predecessors weren’t doing a very objective assessment, considering the brutality of the facts, like leaving a naked man to die in the cold or beating a man to death — which far exceeded even the Justice Department’s permissive guidelines.

The previous administration may have been reluctant to prosecute because its officials were the ones who approved of the techniques. And even if some interrogators went beyond what was specifically approved, as a recently released Office of Legal Counsel memo suggested, prosecutors might have believed it would still be too difficult to prove that CIA personnel intended to violate the law, rather than simply intending to carry out an authorized brutal interrogation, albeit with a bit more zeal than was allowed.

For Holder to appoint a prosecutor — either from inside or outside the Justice Department — to re-investigate these cases may seem like a narrow investigation to those who have been pushing for a broader inquiry. Indeed, last week Human Rights Watch wrote to Holder applauding the idea of a criminal investigation, but adding:

We would urge you, in defining the scope of such an investigation, to ensure that it reaches the officials most responsible for serious abuses. In particular, we would encourage you not to limit the investigation to low-level personnel who may have employed unauthorized interrogation techniques, but rather to look to the senior officials who planned, authorized, and facilitated the use of abusive methods that were in violation of US and international law. Any investigation that failed to reach those at the center of the policy, while pinning responsibility on line officers, would lack credibility both domestically and internationally.

As Geneve Mantri, government relations director for terrorism and counterterrorism and human rights at Amnesty International USA said last week about a Holder investigation: “If this does happen and they [the Justice Department] said ‘there was a great program, we’re just going to go after those who went beyond it’, we’ll be left in a bad situation, with learning nothing. We’ll be left trying to scramble to push for a truth commission, which will then be harder. And without a commission I don’t think we’re going to find out that much.”

On the other hand, a Holder investigation would be the first sign that the Obama Justice Department may break from its predecessor on the matter of investigating incidents torture and abuse — an acknowledgment that it can’t in good conscience only look forward without at least taking a second look at what’s already been done.

“We always were concerned that part of the reason these investigations didn’t go anywhere is because they involved techniques that were authorized,” said a staffer to a member of the Senate Judiciary Committee who did not want to be named. “I don’t buy that they’re just going to go after the low level people. There’s at least a chance that if these investigations move forward, they’ll go up the chain. If it involved techniques that were authorized that are illegal, you’d go to the person who had command responsibility for that.”

An honest and thorough investigation of the 22 cases the justice department previously refused to prosecute could well lead to an inquiry into the acts of more senior Bush administraiton officials who were giving the interrogators orders. And who knows how far up the chain of command that investigation might reach.

This article has been updated for clarity.

Illinois Rep. Mark Kirk (R) will not run for the open seat of Sen. Roland Burris (D) in 2010, a stunning reversal from just 48 hours ago when Kirk signaled to National Republican Senatorial Committee Chairman John Cornyn (Texas) that he would make the race.

As we noted yesterday, when Burris decided to retire he created a much easier primary race for the Democrats. Cillizza reports that GOP state party chairman Andy McKenna is the new favorite for the nomination, but he lacks Kirk’s base in Democratic-trending suburban Cook County, and he lacks the war chest that Kirk had assembled. A Republican pick-up in President Obama’s home state just got much less likely.

It’s possible for Republicans to make Senate gains in 2010—they have solid candidates in every open seat race, they could pose real challenges in Colorado and Delaware, and Sen. Chris Dodd (D-Conn.) is taking a while to recover from his financial troubles. But the possibility of the party seriously whittling down the Democratic majority in a way that could lead to a 2012 takeover is dimming.

The decision by Burris was based on his inability to raise campaign funds; campaign disclosures with the Federal Election Commission are expected to be filed next week … and he has reportedly only raised approximately $20,000

This prevents a scenario that some Illinois Democrats had worried about—an ugly, race-baiting March 2010 primary, where the badly under-funded Burris might have gone down swinging against Treasurer Alexi Giannoulis or businessman Chris Kennedy, alienating black voters that the eventual nominee will need to defeat the likely Republican nominee, Rep. Mark Kirk. And it frees the White House from the awkward decision to throw one of its reliable allies/rubber stamps in the Senate under the proverbial bus. (This was already happening behind the seats as the White House courted other candidates to run.)