Thus far, BP has paid out more than $2.5 million for the firm’s work. It will continue to pay the same monthly rate until the end of the year, when it will review the contract. The money does not come out of BP’s oil spill compensation fund, Bloomberg says.

The revelation, which came in a report by former U.S. Attorney General Michael Mukasey, isn’t likely to put to rest questions about Feinberg’s independence as well as the transparency of the claims process.

For more on Feinberg, read my interview with him.

Andrew McCarthy (YouTube: Hoover Institution)

As Sen. Lindsey Graham (R-S.C.) works on a deal with the White House to stop the civilian trial for 9/11 architect Khalid Shaikh Mohammed, he has one overriding fear in mind: The disclosure of classified information that might occur in an open trial. Graham’s communications director, Kevin Bishop, told The Washington Independent last month that “military justice and the military framework — a military commission — would allow us to better protect classified information.” In a recent address, Graham intoned that “valuable intelligence was compromised” in a 15-year-old case, the New York trial of the “Blind Sheikh,” in which a list of unindicted co-conspirators leaked out from the court, and suggested the leak was a dangerous prologue for future terrorism trials.

[Security1]That disclosure has been a cause celebre on the right, frequently invoked to argue that the courts are incapable of handling terrorism cases. But perhaps the leading exponent of that overall review, the former prosecutor on the Blind Sheikh case, thinks the disclosure of the list is overblown. What’s more, he concedes that he didn’t make full use of the tools available to him as a prosecutor to prevent such disclosures, even as he continues to contend that civilian courts are inherently too perilous a venue for handling terrorism-related information.

“We did not ask for CIPA protection on any of the discovery, including the co-conspirator list,” recalled Andrew McCarthy, a former New York federal prosecutor who now writes for National Review, referring to the Classified Information Procedures Act, the statute governing how courts handle classified information. “I suppose we could’ve done that.” Still, McCarthy, whom a February New York Times profile identified as one of the most influential conservative voices in the current debate over the propriety of trying terrorists in civilian courts, added, “I think too much is made of the example of the co-conspirator list.”

The case that gave rise to the disclosure was a sprawling, years-long prosecution into a conspiracy emerging from the 1993 attempt to blow up the World Trade Center. Led by the Egyptian-born Omar Abdul Rahman, known as the “Blind Sheikh,” a group of terrorists plotted to blow up a variety of high-value targets in the New York area, including the United Nations, the Lincoln and Holland Tunnels and the George Washington Bridge. McCarthy and his team — a legal all-star cast including Patrick Fitzgerald, later made famous as the special prosecutor on the Valerie Plame identity-leak case; and judge Michael Mukasey, the future attorney general — successfully convicted Rahman in 1995, thereby obtaining the first big American conviction against members of an Islamist terrorist conspiracy.

During the course of the trial, however, a list of unindicted co-conspirators distributed to defense counsel made its way out of the trial, reportedly making its way to Osama bin Laden. McCarthy has occasionally used the disclosure to contend that the courts are ill-suited to handling terrorism cases. “As underscored by al-Qaeda’s receipt of the co-conspirator list from our trial, the congenial rules of access to attorneys, paralegals, investigators and visitors make it a very simple matter for accused terrorists to transmit what they learn in discovery to their confederates — and we know they do so,” McCarthy writes in his 2008 memoir of his experience prosecuting the Blind Sheikh, “Willful Blindness.”

Graham magnified that contention in a February radio address sponsored by the Republican Party, even going so far as to imply that the disclosure paved the way for the 9/11 attacks: “Our intelligence services later learned this list made its way back to bin Laden tipping him off about our surveillance. A conviction was obtained in that trial, but valuable intelligence was compromised. The rest is history.”

Yet a review of the court records commissioned by TWI found no evidence that McCarthy and his fellow prosecutors made use of all the tools at their disposal to protect the list. Not only did the government not invoke CIPA, which would have restricted access to classified information in a case to officers of the court who hold security clearances and cannot remove information from secure facilities, prosecutors did not seek to place any protective orders on non-classified information like the co-conspirators list — which would have placed additionally restrictive rules on handling it. McCarthy said he believed Mukasey, the judge who heard the case, issued a “general protective order” for information shared with defense council for the trial’s discovery phase, but conceded, “We didn’t go piece by piece of discovery to the court for a protective order.” An individual close to the case who would not speak for attribution said there was never any protective order over the co-conspirator list, a finding borne out by TWI’s examination of the court record. Mukasey, through a spokesman, declined to comment.

A 2008 study conducted for the civil liberties organization Human Rights First examined how the courts have handled hundreds of terrorism prosecutions before and after 9/11 and found negligible, if any, disclosures of classified or sensitive information. The study, written by two former federal prosecutors who, like McCarthy, worked for the U.S. Attorney’s Office for the Southern District of New York, wrote of the co-conspirator list, “Had the government sought a court order restricting dissemination of the list, perhaps it would not have been disseminated to Bin Laden.”

Jim Benjamin, one of the authors of the study — whom McCarthy praised for “going out of their way to be fair and get[ting] the facts accurate” — clarified that he does not consider McCarthy or anyone else prosecuting the Blind Sheikh to be negligent. “Andy did a spectacular job on the Blind Sheikh prosecution and throughout his career as a prosecutor in the Southern District,” Benjamin, now with the law firm Akin Gump, said in an interivew. “I don’t criticize him for anything he did on the Blind Sheikh case, including not seeking a protective order, although doing so has become routine practice in terrorism cases today. The bottom line is that no system is ever going to be perfect, no matter how well intentioned or diligent the lawyers were, and Andy was certainly both.”

Asked why he never invoked CIPA in the case, McCarthy replied, “To be candid with you, I never thought it was worth either the five seconds it would have taken the judge to orally order it, or the piece of paper it was written on if it was written on a piece of paper, because one of the things I really came away thinking as a prosecutor who’s done mafia cases and drug cases and all these other cases and then was finally doing national security cases, people who are looking to blow up buildings don’t really care about nondisclosure orders.”

But the lack of a protective order or a CIPA invocation does beg the question of whether it’s fair to indict the entire criminal justice system as incapable of handling terrorism cases if prosecutors in a pre-9/11 case didn’t use all the tools available to them to prevent unwarranted disclosure. For his part, McCarthy believes that the focus on the disclosure of the co-conspirator list misses the forest for the trees in terms of the access to information that civilian courts openly provide — particularly information that doesn’t even rise to the level of sensitive, let alone classified — a prospect that unnerves him when considering terrorism cases.

“The co-conspirator list is just a single instance of a much broader problem in terrorism cases,” McCarthy said. “Everything that goes on in the way of not only disclosure under the rules, but more importantly, testimony in a courtroom is a problem in terms of the degree to which it edifies the enemy. These are rules that are made for normal trials that don’t involve national security situations when you’re dealing with a faction that you’re at war with. At the time that our trial took place, the United States certainly wasn”t in a state of war, even if the other side was. But I don’t think there can be any question that the day-to-day dishing out of discovery — we’re talking now about thousands of pages of information that get turned over. And I will tell you, these are problems you deal with on a day-to-day basis at trial.”

Benjamin, whose 2008 study of terrorism trials examined hundreds of cases, responded that he was unaware of “examples where that scenario has unfolded and there has been a security breach as a result.” If anything, he continued, the fact that opponents of civilian trials for terrorists point to the disclosure of the co-conspirator list indicates that the courts are robustly capable of convicting terrorists without running the risk of dangerous disclosures.

“Although any leak of sensitive information is a serious matter, I think this one incident from 15 years ago tends to be given too much weight in the broader debate about the ability of federal courts to safeguard classified evidence,” Benjamin said. “When you stack up this single incident against the scores of cases where CIPA has been invoked and there haven’t been leaks, I think the better conclusion to draw is the opposite one — that the civilian courts have generally been able to handle terrorism cases effectively and without jeopardizing national security.”

That’s a conclusion fervently embraced by Attorney General Eric Holder, who has been asked about the co-conspirator list by members of Congress. “The co-conspirator list was not a classified document. Had there been a reason to try to protect it, prosecutors could have sought a protective order, but that was not a classified document,” Holder told the Senate Judiciary Committee in November. “It is my firm belief that through the use of CIPA, we can protect information in Article III [federal] courts in the same way that they can be protected in military commissions.”

The evidence from recent terrorism investigations proves Judge Mukasey right that access to lawyers does not interfere with interrogating suspected terrorists. Nothing prohibits interrogations to continue after a suspect is given access to an attorney. In fact, terrorist suspects have given what U.S. officials call “an intelligence goldmine” after meeting with attorneys.

Brent Vinas, an American convert to Islam captured in Pakistan in 2008 and turned over to the FBI, has proven to be one of the U.S. government’s most valuable sources of information about Al Qaeda. From the moment Vinas was in American custody he had all the access to attorneys and other rights afforded criminal suspects, and he still produced what one intelligence official called a “treasure trove” of information about Al Qaeda. In more than 100 interviews with counterterrorism officials, Vinas provided information that led to a Predator drone strike that killed a suspected militant, and his information has allowed counterterrorism officials “to peer deep inside the inner workings of Al Qaeda.”

David Headly—also known as Daood Gilani—was arrested in Chicago and charged in connection with the 2008 Mumbai attack that left more than 150 people dead. Headly pleaded not guilty, but he is cooperating with prosecutors and helped U.S. officials uncover a plan by Lashkar-e-Taibi to unleash a similar attack in Copenhagen, Denmark, targeting the newspaper that printed cartoons of the prophet Mohammed. Meeting with his attorney has not prevented him from providing intelligence information that disrupted at least one terrorist plot.

After all, detainees give up information in plea deals.

A related point made in a recent post of mine: reading a detainee his Miranda rights doesn’t stop interrogations. It just means information used from those interrogations can’t be used in court.

Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

As the Obama administration nears its deadline for deciding where to try the men suspected of masterminding the Sept. 11, 2001 terrorists attacks, there are strong indications that those trials could take place in federal courts in the United States. That’s prompting fervent opposition from Republicans, who say the 9/11 terrorists should never be allowed anywhere on U.S. soil, let alone in a civilian U.S. court.

Illustration by: Matt Mahurin

Military Commissions lead prosecutor Capt. John F. Murphy told reporters in September that four different U.S. attorneys offices in New York, Washington and Virginia were vying for the opportunity to try the five now-infamous defendants, which include Khalid Sheikh Mohammed, the self-described mastermind of the attacks on the World Trade Center and the Pentagon. Walid Muhammad Salih Mubarek Bin ‘Attash; Ramzi Binalshibh; Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi are the other four. According to Murphy, the Eastern and Southern Districts of New York, based in Brooklyn and Manhattan, respectively; the Eastern District of Virginia, based in Alexandria; and the District of Columbia had all submitted requests to hold the high-profile trials in their courthouses, and to detain the suspects in their jails during trial. The military commissions are also seeking to try the defendants.

Meanwhile, White House lawyers, a task force advising the president, and President Obama have all said that their preference is to try terror suspects in federal courts whenever possible, although they have not ruled out the possibility of using military commissions to try some of them. It remains unclear which ones.

The administration has promised to make its final decision on where to try the 9/11 suspects by Nov. 16. Fearing that the administration is inching toward bringing them to New York City or the Washington, D.C., area, opponents of trying high-level terrorists in U.S. federal courts are stepping up their efforts to keep the five men out of the United States for any purpose. On Oct. 9, Sen. Lindsey Graham said he’d attached an amendment to an appropriations bill that would prohibit the Obama administration from spending money on prosecuting and trying these five alleged terrorists in U.S. civilian federal courts.”Khalid Sheik Mohammed needs to be tried in a military tribunal,”Graham told McClatchy Newspapers. “He’s not a common criminal. He took up arms against the United States.”

Graham is not alone in that view. In August, he joined Sens. Joe Lieberman (I-Conn.), John McCain (R-Ariz.), and Jim Webb (D-Va.) in sending a letter to President Obama expressing concern over reports that the Administration may try Khalid Sheik Mohammed and other alleged war criminals in civilian courts. The senators urged the administration to try them in military commissions instead, saying in part:

The bill, H.R.2847, is pending in the Senate as an amendment to an appropriations bill.

On Tuesday, former Attorney General Michael Mukasey made a similar argument against allowing the 9/11 defendants to be tried in a civilian federal court in an op-ed in The Wall Street Journal. Mukasey warned that the costs and burdens of security would be enormous, that housing suspected terrorists in U.S. prisons would threaten national security, and that a public trial would elicit sensitive evidence that would compromise intelligence sources and that terrorists will later use against us.

Those sorts of arguments outrage many legal experts and former military officers, who say that only a public trial in a U.S. federal court that affords terror suspects the same rights as all ordinary criminal suspects will carry the legitimacy necessary for such an important trial. And they dismiss the claims that housing terrorists in U.S. maximum security prisons, where terror suspects have been imprisoned for many years, would create any danger at all.

“The federal criminal justice system has adjudicated nearly 200 cases involving international terrorism in the year shortly before and since 9/11,” said Gabor Rona, International Legal Director of Human Rights First, which opposes the use of military commissions to try any Guantanamo detainees. “The idea that it cannot handle classified evidence, evidence from abroad, evidence obtained in the context of armed conflict, all of those have been proven false by the existence and the adjudication of all of those case in the federal criminal justice system, and many of those cases feature precisely those problems.”

“The bulk of resistance to bringing Guantanamo detainees to the U.S. is simply uninformed,” Rona continued. “The ‘not in my backyard idea,’ which I think is a crazy notion of people fearing that they’re going to have to be sitting next to a member of al-Qaeda when they go into Starbucks, is just nuts. We’re not talking about releasing suspected or known terrorists into the streets. We’re talking about transferring them to highly secure correctional and detention facilities for purpose of trial. If they’re found not guilty or guilty and they serve sentences, they’re still not entitled to be in the U.S., they will be deported. I think the administration is confident, and should be confident about being able to convey that this is not a situation that involves risk to Americans.”

Some former military officials hope the president will see it that way as well. On Tuesday, a group of retired generals sent an open letter to Congress, kicking off a campaign to close Guantanamo Bay and have the detainees brought to the United States for federal court trials.

“With 145 convicted international terrorists being held in our prison system, there has been no escape from a supermax correctional facility in the United States,” said retired Lt. Gen. Robert Gard, Chairman of the Center for Arms Control and Nonproliferation, on a conference call with reporters on Tuesday. “It does not threaten the security of this country to move however many of the remaining 226 detainees that we cannot farm to other countries or try and incarcerate, to move them from Guantanamo into our supermax facilities. The claim from members of Congress that this threatens American security is shameful and without a basis.”

Still, even some civil libertarians believe it would be legitimate for the administration to try the Sept. 11 suspects in military commissions at Guantanamo Bay or on U.S. military bases. “Our view is that as a legal matter, the 9/11 conspirators, unlike some other detainees at Guantanamo, could be tried in either federal court or military commissions,” said Kate Martin, director of the Center for National Security Studies. “Then it’s a matter of policy considerations.”

Although Martin says a defendant could get a fair trial in a military commission, that’s not necessarily the case under the current Military Commissions Act, even if recent amendments passed by the House were adopted. “One of the hallmarks of a fair trial is that it’s public,” and the military commissions have so far severely restricted public access. “If they choose the forum based on an interest in keeping parts of the trial secret, then they will lose their legitimacy right there,” she said.

Some military commission critics claim that one reason some Republicans support using military commissions is to keep hidden any evidence that the detainees were tortured by U.S. authorities, which the defendants or their lawyers would almost certainly present in their trials.

“There is a second objective in everything that someone like Mukasey is saying,” said American Civil Liberties Union attorney Denise LeBoeuf, who directs the John Adams Project, which organizes defense lawyers to represent the Guantanamo detainees. “That is covering up the details and the identities of torturers. This country had a systematic system of torture through the military and through contractors. Some of those people objecting to federal court trials now either implemented it, or knew about it and should have said something,” she said, adding that some are still in the administration and have an interest in preventing the information from surfacing.

Indeed, according to Justice Department memos revealed earlier this year, Khalid Sheikh Muhammed was waterboarded 183 times. Details of his treatment would likely come up in his defense, if he were to present one. On the other hand, he has confessed and even boasted to having masterminded the attacks numerous times, and has said he does not want a lawyer and wants to be martyred. He still could bring up his treatment by U.S. authorities in a trial, however.

LeBoeuf and other lawyers involved in the defense of high-level detainees say they’ve heard rumors that the administration wants to try the 9/11 detainees in federal court, but it’s impossible to know for sure what U.S. officials will do until they issue their decision.

To LeBoeuf, the fact that the 9/11 case is so high-profile is a strong reason for trying the suspects in public, in a civilian federal court in the United States.

“When you say the whole world is watching a case, this is the one,” LeBoeuf said. “This is the one where the administration has the greatest urgency and pressure to do it in a fair court. It’s also the one where there are mountains of evidence — for both sides. It’s the most investigated crime in the history of the United States. If you can’t put this case into a federal court, then what case can you?”

I guess Thiessen didn’t read the same CIA inspector general report that so many of us have been scrutinizing in the last few days. That report repeatedly made the point that the CIA guidelines governing what was permissible or impermissible interrogation conduct were so unclear that, while “an improvement over the absence of such [Department of Central Intelligence] Guidelines in the past, they still leave substantial room for misinterpretation and do not cover all Agency detention and interrogation activities.”

Sure, lawyers and senior officials were involved in interrogations every step of the way, which is why their actions ought to be scrutinized in any criminal investigation. But unfortunately, that did not lead CIA interrogators to abide by the law.

Take, for example, the fact that the redacted information in the reports we now have been told included information about detainees who were brutally killed in custody. The supposedly “safe” techniques approved by CIA officials and Justice Department lawyers weren’t supposed to lead to that, but they did.

And then there’s the problem that of 100 supposedly high-level al-Qaeda suspects in CIA custody, a bunch of them — we don’t know how many — were simply “lost.” That’s right, this “well-run, highly disciplined” program that had custody of 100 people now can’t account for what happened to some untold number of them. Did they escape? Were they killed and buried to hide the evidence? We have no idea — and apparently the CIA Inspector General wasn’t able to find out, either.

There are all sorts of reports today about the “legal hurdles and complex political dynamics”, as Mark Mazzetti and David Johnston at The New York Times put it,  that will stand in the way of prosecuting these cases. Establishing criminal intent and digging up evidence in faraway places of crimes that occurred years ago is all very difficult, say the experts. In fact, those are the very reasons the Bush administration’s Justice Department gave Sen. Dick Durbin (D-Ill.) years ago when he pressed former attorneys general about why they hadn’t prosecuted the deaths of detainees in U.S. custody: “insufficient evidence of criminal conduct, insufficient evidence of the subject’s involvement, insufficient evidence of criminal intent, and low probability of conviction.”

That didn’t ring true to current Attorney General Eric Holder when he read the CIA report, though, and it didn’t sound ethical to the Office of Professional Responsibility inside the Justice Department that has recommended re-opening these cases for investigation. The OPR’s analysis, in fact, suggests that it was the Eastern District of Virginia, then under the direction U.S. Attorney Paul McNulty, who appeared to be playing politics with what should have been a straightforward prosecution.

McNulty,  you may recall, is the U.S. attorney who was elevated to deputy attorney general and went on to lie to Congress when he said the White House played almost no role in the controversial firing of nine U.S. attorneys on what appears to have been largely political grounds. That was later contradicted by subsequent testimony and documents.

Thiessen, in the Wall Street Journal, meanwhile, writes that it was “career prosecutors” who decided not to pursue the cases in the Virginia office. Or, it was the U.S. attorney whose career was elevated for making that politically astute decision and then resigned in disgrace a few years later.

The concern about opening this investigation is the politics. Is it unseemly for one attorney general to re-visit the work of a previous one? And will it be politically embarrassing to the Department of Justice and the CIA if it turns out that prosecutors refused to prosecute violations of the federal anti-torture statute by CIA officials? And, as so many commentators are asking this week, won’t this all be a big unwelcome distraction for President Obama from passing national health care legislation?

The late Sen. Edward Kennedy (D-Mass.), one of the great champions of universal health care who is being mourned today, surely would not have seen it that way. Two years ago, he stood up to say clearly that “waterboarding is torture” and opposed the nomination of Attorney General Michael Mukasey because Mukasey refused to admit that. Kennedy also urged the Senate to pass legislation explicitly stating that waterboarding is a war crime. Politics prevailed, and his colleagues rejected the idea.

But Kennedy would probably not suggest that we ought to sacrifice justice to achieve his dream of universal health care. One has nothing to do with the other, except in the sense that, as Kennedy believed, both ought to be basic rights in a civilized society.

According to Newsweek, although the public demand for prosecutions had seemed to die down, in late June Holder spent two days holed up in his office poring over a classified CIA inspector general report on interrogation abuses and was “shocked and saddened” by what he read. The New York Times later reported that if Holder does open an investigation, it’s likely to be a narrow one, “focusing only on C.I.A. interrogators and contract employees who clearly crossed the line and violated the Bush administration’s guidelines and engaged in flagrantly abusive acts.”

That’s what The Post’s editorial board now wants as well, arguing that “those who relied on the memos and shaped their behavior in the good-faith belief that they were following the law should not be subject to prosecution.”

Of course, that’s exactly what former Attorney General Michael Mukasey and Vice President Dick Cheney argued more than a year ago. Will President Obama’s attorney general now conduct an investigation according to the strict parameters those Bush administration officials set out back then, which were widely viewed as self-serving?

Glenn Greenwald today points out the absurdity of the Justice Department’s going after low-level criminals and ignoring the bosses who instructed and cheered them on. That’s precisely the opposite of the way the Justice Department usually goes after criminal investigations — at least the ones it takes seriously.

As Greenwald puts it:

That, in a nutshell, is the twisted Washington mentality when it comes to lawbreaking:  when political crimes become so blatant and extreme that they can no longer be safely excused (Watergate, Iran-contra, Abu Ghraib), then it’s necessary to sacrifice some underlings who carried out the crimes by prosecuting them, but — no matter what else happens — the high-level political officials responsible for the crimes must be shielded from all accountability.  In ordinary criminal justice, what typically guides prosecutions is the opposite mindset:  namely, a willingness to immunize low-level soldiers in order to ensure that the higher-level criminals suffer the consequences of their crimes.  But when it comes to crimes committed by political officials in America’s Versailles culture, only the pawns are subjected to the rule of law while the monarchs and their highest royal court aides are immunized.

US Attorney General Michael Mukasey (WDCPix)

It’s been exactly one year since then-Attorney General Michael Mukasey proposed in a speech at the American Enterprise Institute that Congress pass legislation declaring a new, expanded war with al-Qaeda and the Taliban — thereby granting the president the authority to detain indefinitely members of those groups anywhere in the world where they’re found.

That proposal from a lame-duck Attorney General never got very far with the Democratic-controlled Congress. But a year later, the country is still debating that exact same detention authority. And news reports suggest that President Obama may seek precisely the same sort of authority that Mukasey was talking about.

Illustration by: Matt Mahurin

Although the Detainee Policy Task Force yesterday announced it was taking a six-month extension on its deadline to formulate the policy, reports from National Public Radio, The Washington Post and Politico have all quoted anonymous Obama administration officials saying the president intends to create or continue some sort of indefinite detention system for suspected terrorists associated with al-Qaeda or the Taliban, whether through new legislation or mere “consultation” with Congress.

“There is no intent in the administration to rely on anything other than congressional authority,” one senior administration official reportedly told The Washington Post.

Whether that authority would take the form of an entirely new system of administrative detention outside the authority of the laws of war, as some have proposed, or whether it would rely either on the existing Authorization for the Use of Military Force, or seek a new authorization, is unclear.  The anonymous officials aren’t explaining (or don’t yet know) how the administration intends to go about solidifying its legal authority to indefinitely detain suspects without charge or trial arrested around the world.

The question arises because the Supreme Court, in Hamdi v. Rumsfeld, affirmed that the president does have authority to detain combatants arrested on the battlefield in a conventional war, which the United States was engaged in with Afghanistan at the time. Since then, lower federal courts have ruled that the United States can detain combatants who are members of al-Qaeda or the Taliban. But it’s not clear if that authority would reach countries where there is no active combat — or if the authority described in the Hamdi decision  at some point runs out.

In attempting to answer that question a year ago today, Michael Mukasey, in a speech delivered to the American Enterprise Institute, said that Congress should:

acknowledge again and explicitly that this Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans—soldiers and civilians alike. In order for us to prevail in that conflict, Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations.

Today, Obama — or at least members of his administration — appear to want something very similar.

“It’s hard to see how they would end up writing anything much different from what Mukasey proposed a year ago,” said Chris Anders, senior legislative counsel for the American Civil Liberties Union in Washington. “And that was dead on arrival.” Although the issue was raised at congressional hearings, proposed legislation never received enough support even to get to the floor for a vote.

Last summer, Anders described the idea on the ACLU’s blog as “a multi-part plan to violate the Constitution” that would “give a president worldwide power to declare anyone a terrorist and hold the person forever – without ever charging anyone with a crime.”

Although it’s possible that Obama would have more sway with Congress than Bush did, the leaders of the judiciary committees in both the House and Senate have publicly opposed a preventive detention plan that would detain suspected terrorists that the president deems “dangerous” without charge or trial; the chairmen of the House and Senate Armed Services Committees have likewise expressed reluctance.

So could Obama really get new authorization for preventive detention? Or will he try to rely on the old one, and issue an executive order or presidential memorandum clarifying (or extending) its scope? One reason he might want to seek new authorization is that, as David Kris, assistant attorney general for the Justice Department’s National Security Division,  recently testified before the Senate Armed Services Committee, the authority the Supreme Court acknowledged in Hamdi could eventually “run out.” After all, the laws of war only authorize detention for the duration of active hostilities.

Anders said that in his conversations with lawmakers on the Hill, he hasn’t heard of any proposed legislation being circulated. “No one I’ve come across so far has seen or heard anything from the administration about an indefinite detention proposal,” he said.

In an e-mail, Ken Gude, associate director of the International Rights and Responsibility Program at the Center for American Progress, cautioned that new legislation could lead to far broader authority for indefinite detention than even Obama envisions.

“For me, the answer to this question decides the whole ball game — if they go to Congress, what will inevitably emerge is a broad preventive detention system regardless of what the Obama administration wants. If they rely on AUMF authority, then it can be much more narrow.”

The immediate effect is to restore the right to re-open a case based on a claim of ineffective assistance of counsel, but Holder also said he will “initiate a new rulemaking proceeding for regulations to govern claims of ineffective assistance of counsel in removal proceedings.”

“The integrity of immigration proceedings depends in part on the ability to assert claims of ineffective assistance of counsel, and the Department of Justice’s rulemaking in this area will be fair, it will be transparent, and it will be guided by our commitment to the rule of law,” Holder said in a statement.

As I wrote in February, just two weeks before the inauguration of President Obama, former Attorney General Michael Mukasey ruled in a case called Matter of Compean that immigrants have no right to be represented by a lawyer, and no right to appeal a ruling based on a lawyer’s mistakes.

“Neither the Constitution nor any statutory or regulatory provision,” Mukasey wrote in early January, “entitles an alien to a do-over if his initial removal proceeding is prejudiced by the mistakes of a privately retained lawyer.”

The ruling caused serious problems for immigrants who were entitled to remain in the country but had hired overburdened or simply incompetent lawyers who didn’t know the law, missed a critical deadline or failed to get their client’s full story.

Until Mukasey’s last-minute rule change, immigrants for the past 20 years had had the right to re-open a case if they could show that they were denied a fair hearing due to their lawyer’s mistakes.

Mukasey’s ruling outraged immigration lawyers struggling to represent clients who’d been mis-represented in the past. In a recent letter asking Holder to reverse the decision, the American Civil Liberties Union’s Immigrants Rights Project called the change “at odds with the vast majority of the courts of appeals and with ensuring fundamental fairness in immigration proceedings.”

Holder’s withdrawal of the decision means that for now, at least, the right to re-open a claim based on ineffective assistance of an attorney is restored.

Holder’s order, however, directs the Executive Office of Immigration Review to develop a new procedure “to evaluate the existing framework for making claims of ineffective assistance of counsel, to solicit public comment, and, if appropriate, to issue a final rule.”

In other words, the final outcome remains to be seen.

As I’ve written before, Attorney General Michael Mukasey in one of his last days in office issued an unprecedented opinion ruling that immigration judges do not have to reverse an order of detention or deportation of an immigrant, even if the order was due solely to mistakes made by the immigrant’s lawyer.

Holder promised to reconsider that opinion during his confirmation hearings, and today told the House Judiciary Committee that he has completed a new opinion on the matter and will issue it very soon.

What was actually revealed in yesterday’s memos was the nature of the Bush administration’s efforts to legalize and justify the “harsh interrogation techniques” that we mostly knew about already. And it’s not terribly difficult to imagine why some folks would want those legal efforts kept under wraps.

That’s apropos of the chorus of Bush officials — see this Politico piece, for instance; or this Michael Mukasey/Mike Hayden op-ed — who are saying that Obama irresponsibly revealed CIA torture techniques. He revealed them, in all likelihood, because he’s forsworn them, and to move on. As Greg says, we knew most of this stuff had happened. (Obama noted the same thing yesterday.) What really rankles these people is that their ability to harmonize putting someone in a “confinement box” with insects with statutes and treaties that expressly forbid torture is now entirely on display.

Let’s put it another way. One thing that the August 1, 2002 Yoo/Bybee torture memo — the one released in 2004 — focuses on is the alleged difficulty of defining what interrogation procedures would “shock the conscience” of a reasonable individual, since that standard is rather salient when it comes to the federal anti-torture statute. By taking a deliberately agnostic stance on the prospect of ever finding such a consensus around “reasonableness” — hey, it’s a wide world out there, what shocks me might not shock you, so who’s to say — you wind up with absurdities like rubber-stamping as humane our confinement box of insects. As it happens, when a conservative friend of mine read that the Justice Department had blessed putting people in a confinement box of insects, he IM’d me to say “Holy ****.” Miracle of miracles: putting someone in a confinement box of insects makes people say Holy ****. We have our reasonable-individual standard reaction.

Indeed, the only person who doesn’t mind putting someone in an enclosed space with insects is Buffalo Bill from “The Silence of the Lambs.” The memos reveal that for a long time, the government of the United States adopted his moral standards. If you had been guided by that legal reasoning, you’d do whatever was in your power to keep it from the public, since you know what they’ll say.