That’s just one of several sure-to-be-controversial recommendations the group makes in a new report released Tuesday.

CAP also wants the president to prosecute the suspected 9/11 conspirators in civilian federal courts, contrary to the calls of some lawmakers, like Senators Graham, Lieberman, McCain and others who insisted they be tried only in military commissions. (Their efforts to push through legislation to that effect failed last week.)

And, despite the fact that these five men are accused of the largest mass-murder ever on U.S. soil, CAP wants the president not to seek the death penalty for any of them. “It is in the strategic interests of the United States to deny these most heinous Al Qaeda terrorists what they want most: martyrdom,” writes Ken Gude, Associate Director of the International Rights and Responsibility Program and author of the new report.

As for the use of the military commissions that the president just revived by signing new legislation last week, those “remain tainted by Bush-era mistakes, and must be limited—if used at all—to battlefield crimes in order to gain a measure of legitimacy.”

Gude also recommends limiting military detention to actual enemy fighters captured in combat zones. Right now, the administration claims the right to seize and detain indefinitely suspected al-Qaeda or Taliban terrorists found anywhere in the world.

Those concerned that the Bagram detention center in Afghanistan is becoming “Obama’s Gitmo,” as it’s increasingly called, may not appreciate Gude’s final recommendation. While Gude would imprison anyone convicted in U.S. criminal courts in U.S. prisons, as we usually do, he recommends transferring anyone now at Guantanamo who will remain in military custody — either to be tried by a military commission or simply to be detained indefinitely — to the U.S.-run prison at Bagram.

While that might sound logical, particularly given the strong political objections to transferring Guantanamo detainees to the United States, civil and human rights advocates are likely to point out that it would not only allow the Obama administration to continue — indefinitely — the troubling practice of indefinite detention, but would place those indefinitely detained even further beyond the reach of U.S. courts than they were at Guantanamo. After all, the Supreme Court ruled that Guantanamo detainees have the right to challenge their detention through a writ of habeas corpus in federal courts; most Bagram detainees, on the other hand, do not have that right.

Advocates such as Human Rights First, which issued a new, highly critical report on the detention and trials of detainees in Afghanistan this month, have complained that the military procedures there don’t afford prisoners a meaningful way to challenge their detention. The report, based on interviews conducted in April, found that prisoners were often not informed of the specific reasons for their detention, were not provided with lawyers to represent them, and were not allowed to bring witnesses to speak on their behalf or challenge the evidence presented against them.

New detention review procedures implemented in September could solve some of those problems, although detainees still don’t get legal representation. In Gude’s view, while the administration “can and should do more,” Obama officials “are making good progress on procedures at Bagram.”  Ultimately, he says, the U.S. detention system there has to be better connected to Afghan law.

Whether we ought to be placing our hopes for due process and rule of law in the Afghan legal system, which suffers from plenty of its own serious problems, is a whole other question.

In an interview with the Guardian for the eighth anniversary of 9/11, Pataki criticised current White House policies for sending wrong signals about US intentions around the world. In particular, he attacked the recent decision by the US justice department to launch an official investigation into alleged abuses by CIA agents during the interrogation of terror suspects in the aftermath of 9/11.

“Placing CIA officials who were acting in the aftermath of the worst attacks against our country and civilians in our history in possible criminal jeopardy years after the fact is in my mind a horrible decision. [...]

“It jeopardises our ability to continue to effectively protect our country against those who hate us and want to attack us again.”

A prominent Republican, his criticism of the Obama administration’s handling of the CIA interrogation affair reflects thinking widely held within his party. The attorney general Eric Holder has come under sustained fire from the right of US politics for appointing a special prosecutor to look into whether the agency went beyond legal limits in its so-called “enhanced interrogation” of al-Qaida suspects.

Pataki’s role on 9/11 gives his views added resonance. “We must make sure we obey the rule of law and act in ways that are not just legal but moral,” he said, but continued: “But now, years after the fact, to consider charges is wrong for our country, wrong for our security and wrong for the entire world that believes in the rule of law.” [Emphasis added.]

(Via ThinkProgress)

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The debate over indefinite detention often wrongly focuses on Guantanamo Bay. The current practice is considerably more widespread, and any limitations on indefinite detention would have correspondingly wide implications. The U.S. military indefinitely detains enemy combatants, including members and supporters of al Qaeda and other terrorist organizations, on a wide scale in Iraq and Afghanistan, as well as at Guantanamo, and press reports indicate that U.S. officials work closely with our allies to detain al Qaeda members in other countries.

“Prolonged” detention is thus not something proposed for the future, for just a small subset of Guantanamo detainees. It is, instead, a practice that this Administration is already conducting on a widespread scale, will continue to pursue, and has already defended repeatedly in federal court. No matter how Guantanamo detainees are handled, this Administration will continue, directly or indirectly, to detain hundreds if not thousands of enemy combatants indefinitely in many places for many years to come.

And he added:

“The extent of the current Administration’s continued use of war powers against terrorist organizations is hard to overstate. The Obama Administration has pursued nearly every aspect the prior Administration’s conduct of the war in Iraq and Afghanistan and against terrorist networks globally. As a formal matter, this Administration has embraced nearly all the components of wartime and related Executive powers asserted by its predecessor and then subject to controversy. In addition to continuing indefinite detention in Afghanistan, Iraq, and Guantanamo, and committing to do so for a subset of Guantanamo detainees even once transferred elsewhere, the Administration has, for example:
• continued, according to the Attorney General, a valuable foreign intelligence surveillance program, unsupported by warrants, that critics had characterized as “warrantless wiretapping”;
• continued to use provisions of the previously controversial PATRIOT ACT, including the most contested provisions, which the current FBI Director has defended and sought to have reauthorized;
• asserted through a Presidential Signing Statement that the Executive Branch would treat certain statutory provisions infringing on the President’s constitutional powers, as determined by the President, as “precatory” or “advisory”;
• denied habeas corpus rights to detainees held by the military at Bagram, Afghanistan and elsewhere beyond Guantanamo, avoiding judicial review of detention decisions previously criticized as creating a “legal black hole”;
• continued the robust use of the “state secrets doctrine” to prevent disclosure in litigation of national security information;
• fought against disclosure of documents, under the Freedom of Information Act, where the military finds that release would harm the national security;
• declined to extend the protections of the Geneva Conventions for prisoners of war to members of al Qaeda;
• continued to act against designated financiers of terrorism, and against would-be travelers placed on “terror watch lists,” without affording the affected individuals the due process protections demanded by critics; and
• committed to continue use of military commissions, virtually unmodified beyond formal recognition of requirements previously imposed by military judges. [All emphasis added.]

The upshot of all this, said Klinger, is that “the wartime framework underlying [these tactics] have settled well within the mainstream of the American tradition,” setting the stage for ” a broader recognition of the established legal basis for indefinite detention.”

That was clearly not what Sen. Russ Feingold (D-Wis.) hoped to establish by holding today’s hearing, which also included testimony from a range of established international law and human rights experts about the dangers such tactics have created. But Klinger’s testimony, although perhaps framed to legitimize the Bush administration’s actions now under assault, did make clear the importance of Congress taking a hard look at what the current administration is doing under its watch.

On the other hand, it’s not exactly a surprise that the forthcoming report won’t recommend prosecution. As I wrote yesterday, a draft was given to its subjects — the OLC lawyers who wrote the torture memos — for their review and comment. Revisions were then made based on their responses. A copy was also given to the CIA for its review and response, though the report wasn’t about the CIA, but rather the legal justification provided for their tactics. All this extraordinary outside input on an internal ethics investigation has sparked serious concern among some senators, particularly Durbin and Whitehouse, who’ve been pushing for full, open and objective investigations of what happened and why.

Meanwhile, the The Washington Post has reported that since the draft was made available to the OLC lawyers, their lawyers have been lobbying the Justice Department to water down the report’s conclusions and recommendations.

So are we really surprised that the ethics report — when and if it’s ever finally released — will not recommend prosecution of the architects and apologists of the Bush torture and abuse policies?

Sen. Chris Dodd (D-Conn.) yesterday put it well when he reminded bloggers in his home state that it wasn’t popular to prosecute the architects and legal justifiers of Nazi policy, either. But his father, a Nuremberg prosecutor, and others insisted that “we’re different. There is a thing called the rule of law.”

So why release all the documents revealing illegal conduct if you’re not going to do anything about it, asks Dodd. “If people in fact did something illegal they ought to be pursued for it.”

Here’s the video:

Greg Sargent at The Plum Line has the letter Starr sent to Sens. John Kerry (D-Mass.) and Richard Lugar (R-Ind.), in which Starr calls Koh “the very essence of the American dream” and a man of “irreproachable integrity.”

So will Starr  be successful in calling off the attack dogs?  Koh, who’s been highly critical of the Bush administration’s legal policies that allowed interrogators to torture detainees, has been under heavy attack by the right, essentially because he believes in the value of international law.

Starr apparently doesn’t think that should disqualify him. On the contrary, he writes approvingly that Koh embraces “a vision of the goodness of America, and the ideals of a nation, ruled, abidingly, by law.”

I’m not trying to take any credit for The Times’ awakening on this issue, but I’m glad to see it is finally joining the party. As I’ve noted before (as did The Wall Street Journal), much of the mainstream media has been gingerly tip-toeing around these issues, making excuses for a new president who needs time to get his appointees in place and his policies on paper. But in the meantime, his Justice Department has been quietly pressing forward with some of the more controversial policies of the previous administration.

We’re talking about lawsuits over torture, warrantless wiretapping, state secrets and policies of extraordinary executive powers that allow the president to indefinitely detain suspected terror supporters abroad — and even here on U.S. soil.

Sure, the Obama administration announced it was withdrawing the use of the word “enemy combatant”, but as I’ve pointed out before, that’s more about semantics than substance. At the same time, the administration is asking the federal courts to stall their habeas corpus cases on the theory that the courts don’t have the authority to free these prisoners anyway.

I have to wonder if Obama — who, to be fair, has his hands full these days with the depressing economic legacy left him by the last administration — is being fully briefed on some of the more outrageous positions being taken in his name. If he’s not, he should be; after all, he’s the one who’s been saying that as president, he has to be able to take on more than one thing at a time.

Closing Guantanamo Bay and even ending the military commissions (also part of the campaign) is all well and good, but that alone doesn’t solve the problem the ACLU and others are trying to address.

Since 2001, Washington has been indefinitely detaining people around the world without charge, and in many cases without access to lawyers or even the right to communicate with family members. Some of those men were swept up by bounty hunters; many were just in the wrong place at the wrong time. Many have been abused or tortured in custody.

As I wrote in a story for The American Lawyer, more than 600 prisoners are imprisoned indefinitely and without charge in what’s become a black hole at the U.S. air base in Bagram, Afghanistan. Unlike Guantanamo, the Supreme Court has never ruled (or had a chance to rule) that they have any due process rights.

That’s why Washington has been sending suspects there instead of to Gitmo, ever since the Supreme Court ruled in 2004 they have rights at the U.S. base in Cuba. Thousands more suspected terrorists, or their associates, are detained under similar conditions in other U.S.-controlled prisons in Afghanistan and Iraq.

Even right here at home, in South Carolina, Illinois resident Ali Saleh Kahllah Al-Marri has been imprisoned without charge for more than 5 years in a Navy brig, because the president decided he was a dangerous “enemy combatant.” For more than a year, he was held in total isolation, shackled and subjected to painful stress positions and icy temperatures. His lawyers recently filed a petition to the Supreme Court, asking them to review the Fourth Circuit Court of Appeal’s decision that indefinite detention of a U.S. resident without charge or a hearing is not a problem.

Closing Guantanamo Bay is certainly an important symbolic act. The 250 people still detained there certainly deserve to have the U.S. government decide what it’s going to do with them. (Only about 24 have even been charged.)

Simply transferring them to prisons in the United States won’t solve what is an infinitely larger and more complicated problem.

Despite his stated desire to close the American prison at Guantánamo Bay, Cuba, President Bush has decided not to do so, and never considered proposals drafted in the State Department and the Pentagon that outlined options for transferring the detainees elsewhere, according to senior administration officials.

Mr. Bush’s top advisers held a series of meetings at the White House this summer after a Supreme Court ruling in June cast doubt on the future of the American detention center. But Mr. Bush adopted the view of his most hawkish advisers that closing Guantánamo would involve too many legal and political risks to be acceptable, now or any time soon, the officials said.

The “legal risks” are called “due process of law” and “adherence to universally-embraced standards of civilization.”

Boumediene v. Bush destroyed the entire rationale for Guantanamo: to hold terrorism detainees beyond the reach of the legal system. There is no argument for keeping detainees at Guantanamo. It’s ludicrous to believe that federal detention facilities aren’t secure enough to hold skinny men from Afghanistan. I saw these detainees with my own eyes in July 2005. They’re not the Thunderbolts. Failing to shutter Guantanamo is acquiescence to illegality.