The video was produced in conjunction with ProPublica’s more than three-year investigation into the common but controversial natural gas drilling procedure called hydraulic fracturing, or “fracking.” It’s a process used in more than 90 percent of the natural gas wells in the nation, including extensively on Colorado’s Western Slope and Front Range.

The process and the controversy require a paragraph or two to explain in every story on the topic, forcing an almost cut-and-paste process that goes something like this: “Hydraulic fracturing is a natural gas drilling procedure that involves injecting mostly water and sand, but also some toxic chemicals, under very high pressure deep into gas wells in order to fracture tight geological formations and free up more gas. Critics are concerned that undisclosed chemicals are making their way into drinking water supplies closer to the surface. The oil and gas industry denies such allegations and says it must keep the chemicals secret for proprietary reasons.”

A mouthful of mumbo jumbo, right? This music video, while it comes with a clear slant on the topic, does a much better job of explaining the process.

Much of the documentary focuses on BP’s corporate culture, which appears to have privileged profit and massive growth over safety. “This is a story about ambition and its consequences,” the documentary says.

One of the things that stuck out to me most about the documentary is a comment by White House climate and energy policy adviser Carol Browner. Browner, in an interview with Frontline, said that BP’s shoddy safety record was not taken into consideration in the Obama administration’s decision to expand offshore drilling. Frontline points out that the decision affected BP more than any other oil company, as it holds the most leases in the Gulf of Mexico.

Here’s an excerpt that sums the story up nicely:

The investigation found that as BP transformed itself into the world’s third largest private oil company it methodically emphasized a culture of austerity in pursuit of corporate efficiency, lean budgets and shareholder profits. It acquired large companies that it could not integrate smoothly. Current and former workers and executives said the company repeatedly cut corners, let alarm and safety systems languish and skipped essential maintenance that could have prevented a number of explosions and spills. Internal BP documents support these claims.

A ProPublica analysis of state and federal records revealed that BP has fared far worse in the United States than the rest of the industry in terms of spills and serious safety violations.

In Alaska, home to one of BP’s longest-standing and most important business units, the company produced nearly twice as much oil as ConocoPhillips, the other major company operating there, but since 2000 it has also recorded nearly four times as many large spills of oil, chemicals or waste. In the Gulf of Mexico, BP had more spills than Shell between 2000 and 2009, even though Shell produced more oil there.

BP’s workers also appear to be more at risk. In Alaska, it has had 52 worker-safety violations since 1990, compared with ConocoPhillips’ seven. Nationally, according to an extensive analysis of data from the Occupational Safety and Health Administration, BP had 518 safety violations over the last two decades, compared with 240 for Chevron and even fewer for its other competitors. Since those statistics were compiled, in 2009, OSA has announced 745 more violations at two BP refineries, one near Toledo, Ohio, and the other in Texas City, Texas, where 15 people were killed and 170 injured in a 2005 explosion.

PBS’ Frontline, which partnered with ProPublica on the investigation, will premiere a documentary tonight based on the reporting.

I reported the same thing last week, highlighting the story of Nicole Bolano, a Gulf Coast resident who was told twice that her claim had been escalated, only to continue waiting for payment (ProPublica referred to my item in its story). A handful of other claimants have told me similar stories.

Here’s one powerful example from ProPublica’s story today:

Nick Athens, who filed a claim for lost income from vacation rentals in Destin and Pensacola Beach, Fla., said that he has fallen behind on the mortgage payments for vacation rental properties he owns. In previous years, he used rental income from the spring and summer to cover the mortgage for the rest of year, but this year rentals dropped off following the spill.

Athens has received one check for a fraction of his claim on one property, but the majority of his claim is still pending. He said his case was escalated on Sept. 28 and that he was told he could expect a decision within a week.

On Oct. 7, he had not yet received a response, and he e-mailed Feinberg’s operation to try to speed up the process. “I have until October 16 to make the mortgage payment, after which I risk damage to my credit rating for late payments and possibly going into foreclosure,” Athens wrote.

His claim has still not received a response. “It’s just incredibly, incredibly frustrating,” Athens said.

Kenneth Feinberg, the independent administrator of the GCCF, told ProPublica that escalated claims are “immediately prioritized.” But ProPublica notes, “Feinberg has never promised a specific timeframe for deciding on escalated claims, and he said that the amount of time needed for a decision depends on the contents of the application.”

We’re looking for information about the claims that you or people you know have filed. Then we’ll use this information to make sure that claimants are being compensated fairly and equitably. If you have filed a claim with BP, simply fill out this form and be sure to note that you were referred by us.

In the meantime, you can read more of our reporting on the claims process here.

First, Gibbs told reporters that more transfers of Guantanamo detainees out of the prison camp “have taken place in the past eight months than have taken — than took place in the previous eight years.”

Uh, wrong. As Linzer points out, the Obama administration has transferred 31 detainees in the last eight months, as compared to some 520 transferred by the Bush administration before that.

Gibbs also went on to claim that, when courts have ruled that the government is unlawfully holding a detainee, the Obama administration has transferred the detainees “back to either their home country or third-party countries.”

Well, not really. As of today, 11 detainees who’ve won the right to be released by a federal court are still imprisoned at Guantanamo, as we note on our Gitmo Habeas Scoreboard, posted earlier today.  We’ll continue to update that as developments occur.

It’s worth noting that not only has the Obama administration not complied with court orders for release, but when lawyers for the Chinese Muslim Uighurs detained at Gitmo won an order to be released into the United States — since they can’t go home to China and the U.S. hasn’t been able to place them all in other countries — the Obama administration fought back hard. That case, Kiyemba v. Obama, is now pending before the U.S. Supreme Court.

“I have no plans to leave whatsoever,” Craig told David Ingram at the National Law Journal. Describing his relationship with President Obama as “excellent,” Craig dismissed the recent reports, which included one from The Washington Post and ProPublica in late September that three administration officials said that Craig would be leaving his job soon.

Even if he has no interest in leaving, Craig clearly has some opponents within the administration, since they’ve been leaking the idea to the press for months now. In early August, The Wall Street Journal reported that administration officials were “holding discussions” that could result in Craig’s departure.

Meanwhile, White House legal counsel Greg Craig, who initially led the Guantanamo closing drive and drafted the president’s executive order, has been shoved aside to make way for Pete Rouse, a senior adviser and fix-it man, who will reportedly oversee the Guantanamo closing process going forward.

Craig is expected to leave his post at the White House soon.

Morning prayer for detainees in Camp 4 of the Guantanamo Bay Detention Facility (Zuma Press)

Ever since President Obama said in his speech at the National Archives that he believes there’s a category of people at Guantanamo who can’t be tried in criminal court or by military commission but are too dangerous to release, legal and national security experts have been vigorously debating just what kind of “preventive detention” scheme the president can or should embrace.

As TWI’s Spencer Ackerman wrote on Wednesday, many civil liberties groups adamantly oppose the idea of “preventive” or “indefinite” detention at all. Since Obama made his pronouncement in May, representatives from Human Rights Watch, the ACLU, Human Rights First, New York University’s Brennan Center for Justice, the Constitution Project and many others have argued strenuously against the idea.

Illustration by: Matt Mahurin

So when the Washington Post and ProPublica reported on Friday that the Obama administration is considering issuing an executive order setting out a long-term preventive detention authority, and that some civil liberties groups had actually encouraged such an order, many of those groups were stunned.

“Our position is that there is no category of individual who can’t be prosecuted,” said Jonathan Hafetz, an attorney with the ACLU’s National Security Project. “To say the president can order indefinite detention by executive order, that’s just what Bush did for the last eight years.”

Even conservative scholars have been arguing against the idea since the Post reported that the administration was considering an executive order. As former Bush administration lawyer and Harvard Law Professor Jack Goldsmith wrote with Brookings Institution scholar Benjamin Wittes in an op-ed in the Washington Post on Monday: “Obama, to put it bluntly, seems poised for a nearly wholesale adoption of the Bush administration’s unilateral approach to detention.”

Wittes and Goldsmith instead argue that any preventive, indefinite detention scheme should be debated, authorized and spelled out clearly by Congress. Otherwise, they say, it will face opposition and modification by the courts, which will ultimately undermine the president’s detention power, as happened during the Bush administration. “Over time, the judiciary grew impatient with ad hoc detention procedures that lacked clear and specific legislative authorization, and judges began imposing novel and increasingly demanding rules on the commander in chief’s traditionally broad powers to detain enemy soldiers during war,” they write. “Ironically, one of the biggest casualties of this misadventure was the executive authority the Bush administration held so dear. At least in detention policy, Bush left a weaker presidency than he inherited, one encumbered by unprecedented restrictions imposed by judges.” An act of Congress, then, would be a way of enhancing, rather than limiting, the executive power of indefinite detention.

And that’s where the debate now lies — between those that believe existing systems of detention under the laws of war and criminal prosecution are sufficient to handle current terrorist threats, and those who claim that the so-called “age of terrorism” demands a broader authority that Congress must create.

Although staunch civil libertarians oppose preventive detention altogether, many left-leaning lawyers would prefer an executive order issued by President Obama clarifying his authority to detain prisoners under the laws of war to an entirely new, broader system of preventive detention created by Congress, as Goldsmith and Wittes propose.

Perhaps most prominently, an influential group of military and criminal defense lawyers and academics on June 8 sent President Obama a letter urging him not to create a new system of long-term preventive detention, but to rely on the systems we already have — with modifications, if necessary.

“Our country can achieve its legitimate goals through existing laws which authorize the detention of those who should be detained in the fight against international terrorism,” says the letter, which has not been released publicly but was obtained by TWI. The letter is signed by eleven prominent lawyers, including Retired Rear Admirals Donald Guter and John Hutson of the Navy’s Judge Advocate General’s Corps; Abner Mikva, a former federal appellate court judge, University of Chicago law professor, White House counsel under President Bill Clinton and a mentor to President Obama; and Thomas Wilner, a corporate defense lawyer who’s represented Guantanamo detainees in some of the landmark cases decided by the U.S. Supreme Court.

“Longstanding law-of-war principles authorize the detention for the duration of armed hostilities of those who engage in armed conflict against the United States or its allies,” says the letter, adding: “Some modifications to the existing system may be warranted, but no new system is necessary.”

Although the letter doesn’t explicitly call for an executive order, that’s one obvious way such “modifications” could be made. Ken Gude at the Center for American Progress made a similar argument recently, supporting preventive detention of fighters captured in a combat zone during a military conflict, on the Center’s web site and in The Guardian. And in a memo written with Kate Martin, director of the Center for National Security Studies, the authors write that the “ambiguities” left by the Bush administration over who is detainable under the laws of war “compound the lack of fundamental fairness in treating suspected criminals as combatants and holding them without trial.” Given how the detention authority has been used over the past eight years, “the new administration should now reassert the traditional understanding of the limits of the law of war and reject the former administration’s effort to read the word “organization” in the AUMF [Authorization for the Use of Military Force] as effecting an unprecedented extension of the traditional understanding of the military’s extraordinary powers of detention during war.”

In an e-mail on Wednesday, Gude said that although he didn’t specifically propose an executive order to the administration, he supports the idea and opposes new legislation. Martin has said the same thing.

Even Georgetown law professor David Cole, ordinarily a staunch civil libertarian, has argued that the administration has such detention authority, calling it “an appropriate and necessary means of dealing with enemy fighters during wartime.”

Of course, there’s plenty of disagreement about who is an “enemy fighter” and how to define the “war on terror.”

The Supreme Court in Hamdi v. Rumsfeld affirmed that the executive can detain enemy fighters during wartime, but that case pertained directly only to the detention of Taliban fighters while the United States was at war with the Afghan government. Since then, the Bush administration and now the Obama administration has argued for much broader authority than that. In habeas corpus cases for Guantanamo detainees, the Obama Justice Department has argued it has “the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001?; “persons who harbored those responsible for those attacks; “and “persons who were part of, or substantially supported, Taliban or [al-Qaeda] forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.” Different judges have interpreted that authority slightly differently, and some haven’t accepted that the president’s authority reaches those providing “substantial support” to terrorist groups, but they all agree that the President has the authority to detain indefinitely those fighting a war with the United States.

An executive order, some argue, would further clarify the Obama administration’s position — and, potentially, limit its authority going forward.

Their primary aim, however, seems to be to prevent legislation that codifies a new, broader system of preventive detention based on “dangerousness”, as Goldsmith, Wittes, and Deputy Solicitor General Neal Katyal (before he was in the Obama administration) have promoted.

Wittes, in particular, a Brookings Institution scholar, last week proposed, with his colleague Colleen Peppard, model legislation that would create an entirely new system of preventive detention that’s not limited to the president’s authority under the laws of war. In his op-ed co-authored with Wittes on Monday, Goldsmith, who briefly headed the Justice Department’s Office of Legal Counsel under George W. Bush, appeared to endorse such a plan. (Goldsmith declined to be interviewed for this article.) Last Friday, NPR’s Ari Shapiro reported that the proposal is “already being discussed in the Obama administration.”

The idea is to create a system that allows the government to detain an individual who officials believe is dangerous and acting as an agent of an organization that is fighting the United States, yet against whom it does not have enough evidence, or the right kind of evidence, that would support a criminal prosecution. Instead of having to prove guilt “by a reasonable doubt,” which is the standard in criminal law, the government would need only prove “dangerousness” by a “preponderance of the evidence,” which is the standard of proof in civil cases. Evidence provided by intelligence officers based on hearsay, for example, would be admissible, even though it would not be allowed in a criminal proceeding. Coerced evidence, however, would not be admissible.

“It’s a lot of probablilistic human intelligence stuff that people use every day, including to target and even kill people, that U.S. courts choose not to admit,” Wittes said on Wednesday. “There are all sorts of people who you wouldn’t have a problem going to court and saying, ‘we can show this guy is dangerous. But if you force us to make a criminal case, we can’t do it. Either we don’t have enough evidence, or the proof we have, a lot of it won’t be admissible.’ ”

Civil liberties and criminal defense lawyers argue strenuously that such evidence is unreliable and therefore shouldn’t be used to deny a suspect their liberty, potentially forever. In Wittes’ proposal, the government could detain a suspect for up to 14 days without providing him a right to a lawyer or to challenge his detention. After that, the government would have to justify continued detention to a judge every six months. Wittes compares this sort of detention authority to the government’s authority to detain criminal defendants before trial, some illegal aliens, and mentally ill people who a court has deemed a danger to himself or others.

“The concept of ‘dangerousness’ is inherently somewhat speculative,” Wittes admitted. “By its nature it’s based on future activity. Imagined future activity,” he added. But “we do manage the concept of dangerousness” in these other situations. “It’s not ideal. You’d like a moral certainty as to whether or not someone is going to do something scary. As a practical matter you can’t do that.”

Gude and Martin, in their memo sent to the Obama administration’s Detainee Policy Task Force, “strongly oppose” such a plan. “While we strongly support the effort to prevent such individuals from engaging in future terrorist activities, experience demonstrates that sufficient intelligence and law enforcement tools exist to meet real national security requirements and disable such persons. Legislating a new legal framework for detaining such individuals would be unprecedented and unjustifiable as an application of the law of war. To the contrary, it would blur the important line between criminal and military spheres and undo decades of effort by the United States to encourage other countries to cabin properly the realm of military vis a vis civilian authority.”

David Golove, a Constitutional law professor at New York University, similarly calls the Wittes plan “extraordinarily problematic and dangerous.”

“One of the core features of liberal democracy is precisely that preventive detention is not allowed,” he said. “The struggle for constitutional liberty is in many ways a struggle against preventive detention.” The Wittes proposal “treats that whole problem incredibly cavalierly.” The wartime detention model, by contrast, has “deep historical roots,” he said. And detention of the the mentally ill or the accused in pretrial detention are “carved out exceptions based on very specific rationales. Every time we add a new one we’re breaking down the whole idea that preventive detention is problematic in a liberal country.”

To Wittes and some others, however, the terrorist attacks of September 11 demand just such a new exception. A preventive detention system “is the result of the unique nature of America’s conflict with transnational terrorist organizations and the limits of existing laws, both international and domestic, in responding to current threats,” he writes with Peppard in their paper, Designing Detention: A Model Law for Terrorist Incapacitation.

Whether such a system would be constitutional is another matter, and one that Wittes does not directly address in his proposal. “All of these issues are up for grabs in the courts, and both sides of the administrative detention debate can point to recent signals by the Supreme Court in Guantanamo cases to support their claims,” said Matthew Waxman, a law professor at Columbia University whose work Wittes cites for support in his paper.

It’s not clear where the Obama administration will come down in this debate, and administration officials have insisted that no decision has yet been made. On Monday, White House spokesman Robert Gibbs assured reporters that the president is not considering issuing an order that “relies on legal theories that we have the inherent authority to detain people.” But he did not rule out reliance on a preventive detention system based on some other authority — which could be the laws of war, or an act of Congress.

As Spencer wrote today, someone in the administration told ProPublica’s Dafna Linzner and The Washington Post’s Peter Finn that yes, civil liberties groups support the idea of an order that “would embrace claims by former President George W. Bush that certain people can be detained without trial for long periods under the laws of war.” That statement amazed the civil liberties groups that Spencer then spoke to. I’ve gotten similar reactions from civil liberties lawyers I’ve been speaking to since Friday as well.

But it turns out that there are some progressives, and some who’d even traditionally be called civil libertarians — though not representatives of the traditional civil liberties groups Spencer and I have spoken to — who have been floating the idea, but in a more limited way than the Post story suggested.

Specifically, a group of prominent military and criminal defense lawyers and academics on June 8 sent President Obama a letter urging him not to create a new system of preventive detention, but instead, to rely on the one we already have — with modifications, if necessary. Although they don’t specifically recommend an executive order, that’s the logical way for the administration to modify and clarify its authority.

“Our country can achieve its legitimate goals through existing laws which authorize the detention of those who should be detained in the fight against international terrorism,” says the letter, which I received just this afternoon. It’s signed by 11 prominent lawyers, including Retired Rear Admirals Donald Guter and John Hutson of the Navy’s Judge Advocate General’s Corps; Abner Mikva, a former federal appellate court judge, University of Chicago law professor, White House counsel under President Bill Clinton and a mentor to president Obama; and Thomas Wilner, a prominent corporate defense lawyer who’s represented Guantanamo detainees in some of the landmark cases decided by the U.S. Supreme Court.

“Longstanding law-of-war principles authorize the detention for the duration of armed hostilities of those who engage in armed conflict against the United States or its allies,” these experts write, adding: “Some modifications to the existing system may be warranted, but no new system is necessary.”

The letter specifically tries to steer President Obama away from proposing or supporting any new legislation that would create a new preventive detention authority.

Ken Gude at the influential Center for American Progress has also suggested that the president should clarify his authority of detention under the laws of war. In a recent memo he co-authored with Kate Martin of the Center for National Security Studies, he and Martin write that the “ambiguities” left by the Bush administration over who is detainable under the laws of war “compound the lack of fundamental fairness in treating suspected criminals as combatants and holding them without trial.” Given how the detention authority has been used over the past eight years, “the new administration should now reassert the traditional understanding of the limits of the law of war and reject the former administration’s effort to read the word “organization” in the AUMF [Authorization for the Use of Military Force] as effecting an unprecedented extension of the traditional understanding of the military’s extraordinary powers of detention during war.”

In an e-mail this afternoon that he sent from Paris, Gude says he never specifically proposed an executive order, but supports the idea and adamantly opposes new legislation.

Gude laid out his support publicly for a limited system of preventive detention, authorized by the laws of war which allow detention of combatants during a military conflict, on CAP’s site and in The Guardian.

Even David Cole, the normally staunch civil libertarian law professor at Georgetown, has argued that the administration has that authority, calling it “an appropriate and necessary means of dealing with enemy fighters during wartime.” (Cole was pilloried for taking that position by Kenneth Anderson in Opinio Juris, who asks, “if it’s sensible and legal now, why wasn’t it sensible and legal during the Bush years? Is this the same David Cole who appeared on panels with me over the last few years and who didn’t seem in those years to have any daylight between him and the Center for Constitutional Rights, Human Rights Watch, or Human Rights First on the principle of try-or-release?”)

Let’s set aside for now the very legitimate question of whether these progressive civil libertarians would have taken the same position during the Bush years, or if they just inherently trust President Obama to handle battlefield detention against a non-traditional enemy better than Bush did. The positions these people are taking is informed, at least, by what the Supreme Court ruled in Hamdi v. Rumsfeld, although that case pertained only to the detention of Taliban fighters, while we were at war with Afghanistan. And it’s in line with what the federal courts have been ruling, with some variations, in a string of habeas corpus cases.

The proposal for an executive order to clarify the Obama administration’s position on the extent of its wartime authorities of preventive detention is very different, however, from the controverisal position that some more conservative lawyers and think-tank scholars like Jack Goldsmith, Benjamin Wittes and Neal Katyal (traditionally a moderate Democrat and now deputy solicitor general in the Obama administration) have been promoting. The Wittes proposal released on Friday with Brookings colleague Colleen Peppard, for example, would create an entirely new system of preventive detention that’s not limited to the president’s authority under the laws of war.

On Monday, Goldsmith, a Harvard law professor and former head of the Office of Legal Counsel at DOJ under President Bush, joined Wittes, a Brookings scholar, in a Washington Post op-ed to argue that a preventive detention scheme should be debated in Congress and spelled out clearly through legislation, not by the president by executive order. To them, an executive order would be “a nearly wholesale adoption of the Bush administration’s unilateral approach to detention.”

That, it seems, is where the current debate lies. Committed civil liberties advocates such as the ACLU, Center for Constitutional Rights, Human Rights Watch and others may still be arguing against a preventive detention scheme entirely, but given that the Obama administration has consistently argued its right to detain “combatants” (however they’re defined) during what it continues to call a “war” — not only in the Gitmo habeas cases but in regards to the detention of some 600 men imprisoned at the U.S. Air base in Bagram, Afghanistan — it’s impossible to imagine that the administration is going give up that authority in the future.

Although as Spencer pointed out, White House spokesman Robert Gibbs did say on Monday that the president is not considering issuing an order that “relies on legal theories that we have the inherent authority to detain people,” he certainly didn’t rule out basing a preventive detention system on some other authority — whether granted by the laws of war, or by an act of Congress.

I’ll be writing more soon about what that Congressional act might look like.