President Obama and Omar Khadr (WDCpix, The Toronto Star/ZUMApress.com)

Starting this week, something will happen that was never supposed to when Barack Obama took the oath of office. A military commission meeting at Guantanamo Bay nearly five months after Obama said the detention facility would cease to exist will hold a pre-trial hearing for Omar Khadr, a Canadian citizen captured by U.S. forces in Afghanistan in 2002 and accused of throwing a grenade that killed a U.S. soldier. At the end of the hearing, it will likely be possible to tell whether Obama’s changes to the military commissions created and advocated by George W. Bush — and most congressional Republicans — are substantive or cosmetic.

[Security1]Khadr, a teenager when initially detained, has been held for nearly half his life at a facility that the Obama administration has pledged to close. He will be tried in a legal venue that Obama rejected as a Senator and embraced, in reformed fashion, as president. What happens this week at Guantanamo will determine whether Obama’s pledge that the new, revised military commissions can deliver internationally-recognized justice is meaningful: the pre-trial hearing in Khadr’s case will provide the first in-depth examination of whether Khadr’s treatment in U.S. custody amounts to torture; will determine whether prosecutors can use evidence against him acquired under abusive, coercive circumstances that civilian courts would never allow; and whether additional statements made by Khadr in subsequent and less-coercive circumstances are fair game or inextricable from his overall abuse.

On November 7, 2008, three days after Obama won the presidency, Khadr’s military lawyers introduced a motion to suppress evidence commission prosecutors sought to produce that came from Khadr’s interrogations in Afghanistan and Guantanamo Bay. Under the commissions, evidence obtained under torture cannot be used, but the scope of the commissions’ allowance for coercively-obtained testimony remains largely unclear. Since their creation in 2002, the commissions have only produced three convictions, one of which was the result of a plea deal; the Supreme Court has twice ruled that the commissions provide insufficient due process rights for defendants.

Khadr’s attorneys charge that the teenaged detainee underwent over 40 interrogations in 2002 at Bagram Air Field in Afghanistan after being shot and suffering shrapnel wounds in a battle with U.S. forces in July 2002 in the eastern Afghan province of Khost. During those interrogations, Khadr was given limited pain medication; had his head hooded while “interrogators brought barking dogs into the interrogation room”; was placed in stress positions despite his gunshot and shrapnel wounds; and was threatened with rape. After 90 days, U.S. military officials flew him to Guantanamo Bay, where he was again placed in stress positions; had his hair torn out; threatened again with rape; and was even used as “a human mop” by military police after he urinated on the floor of his interrogation room after being placed in stress positions for a prolonged period of time.

Information that emerged from those interrogation sessions — basically, what Khadr told his interrogators while being tortured — comprises a substantial portion of the prosecution’s case against him. It isn’t clear how much of the government’s case against Khadr relies on what he told his interrogators after his abusive treatment. The government will call witnesses who will attest to seeing Khadr throw the grenade that killed Sgt. First Class Christopher J. Speer. (At least one, Sgt. Layne Morris, has come forward in the press.) And the government will probably also seek to introduce statements Khadr made that it maintains were not the result of torture. But Khadr’s lawyers contended in their November 2008 motion that “all statements made by Mr. Khadr subsequent to any statement he made in response to coercive interrogation must also be suppressed as fruit of the poisoned tree,” a legal concept holding that the taint of improperly acquired evidence extends to any secondary evidence it produced.

It’s a crucial question for the military commissions. Every detainee who will be tried before the commissions encountered periods where they were harshly interrogated but then later faced less-coercive interviews, “so this is a real test case for the viability of other prosecutions,” said David Frakt, a lieutenant colonel in the Air Force Reserve judge-advocate general corps who used to be defense counsel for Mohammed Jawad, another juvenile held at Guantanamo Bay. For instance, if Khalid Shaikh Mohammed and the other 9/11 conspirators who were initially held in undisclosed CIA prisons are brought back to military commissions, Khadr’s hearing may determine whether everything they have told their interrogators — even long after being abused — is inadmissible before the commissions. To Jennifer Turner, a human-rights researcher with the ACLU who will travel to Guantanamo Bay to observe the Khadr hearing, if the judge rules that Khadr’s statements to his interrogators can be used against him, “it will show the military commissions under Obama are no different than those under Bush.”

Indeed, it is because of Obama that the issue has remained unsettled. Upon taking office in January 2009, Obama issued executive orders banning enhanced interrogation; vowing to close Guantanamo Bay within a year; and suspending the military commissions while his administration decided how it would deal with the approximately 240 Guantanamo detainees it inherited from the Bush administration. That suspension, coupled with Senator Obama’s objections to the commissions on constitutional grounds, raised hopes among civil libertarians that the administration would ultimately scrap its predecessors’ ad hoc approach to terrorism prosecutions.

Instead, in a May 2009 speech, Obama pledged to reform the commissions, not abandon them. Among the reforms he promised was to “no longer permit the use of evidence — as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods.” By October, Congress passed and Obama signed the Military Commissions Act of 2009. Section 948(r) indeed enshrines the ban on statements made owing to those methods. But it gives judges leeway to enter into evidence “other statements of the accused… only if the military judge finds” that they are indeed voluntary.

And that’s where Khadr’s defense motion comes in. While there have been at least two other pre-trial procedural hearings since Obama opted to retain the commissions, none have had the significance of Khadr’s. There are ten days’ worth of hearings scheduled for the prosecution and the defense to tussle over the motion to suppress and what the Military Commissions Act of 2009 requires for it. The Washington Independent will be at Guantanamo Bay for the proceedings, and will provide frequent reports — in blog posts, stories, photo and video — about what they determine for the future of the military commissions in the age of Obama.

There are at least two additional complicating factors. First is that while the commissions have a new law authorizing them, the military has yet to issue a new manual for officers of the court to understand how the procedures under the 2009 law are to be implemented. “If you go to the website for the military commissions,” noted Air Force Col. Morris Davis, a former chief prosecutor for the commissions, “there is no information on who is heading up the military commissions, no information about a new Manual for Military Commissions that implements the changes Congress made in late 2009, and no information about revised Rules for Military Commissions.” As a result, Davis said, “it appears we’re still trying to lay the tracks after the train has left the station, which is no way to run a railroad or a criminal justice system.”

Maj. Tanya Bradsher, a spokeswoman for the commissions, said that “a revised Manual will be issued shortly,” but added that the manual was less important than the law. “The standards for the admissibility of statements are set out in the Military Commissions Act of 2009, and any procedural or evidentiary rules cannot change the standards set by Congress,” Bradsher said.

Frakt said it isn’t that simple. “The military commission rules of evidence have been substantially changed by the Military Commissions Act of 2009, particularly with regard to the standards to be applied to determining the admissibility of a statement,” he said. “The Manual will have significant additional guidance and discussion, because it’s the implementing regulations for this. It’s possible the judge will gather all the evidence and simply sit around and wait for the Manual to come out before issuing a ruling.” In terms of actually arguing the motion, though, “it’s still unclear what rules apply.”

A second complication is how much detail about Khadr’s treatment a judge will allow the outside world to see. There has never before been a two-week court session to examine, in large part, whether the treatment a detainee suffered in a U.S. facility amounts to “cruel, inhuman or degrading treatment,” the standard in the Military Commissions Act for inadmissibility. “This will be one of the first really in-depth looks into the treatment of detainees in the early days of the war on terror,” Frakt said. “There are going to be a lot of press and observers [at Guantanamo]. It’s going to be a nightmare for the government if they have to constantly close the hearing to talk about things that are embarrassing to the government.”

Davis, the former chief military commissions prosecutor, holds little sympathy for Khadr, whom the government says a videotape shows emplanting improvised explosive devices in Afghanistan. (The video does not implicate him in the death of Sgt. Speer.) But he said his problem was with the Obama’s claim that it needs to keep the options of both federal courts and military commissions to handle terrorism prosecutions, a claim that struck him as both politically motivated and unjust.

“It’s too bad that the Obama administration is back on its heels in a defensive crouch, afraid to go toe-to-toe with the Cheney right-wing fanatics, and continues to try to have it both ways with the option of military commissions and trials in federal courts still in play,” Davis said. “Hopefully, at some point they’ll grow a pair and make a choice, but this double standard where we’ll give a detainee as much justice as we can and still ensure we get a conviction shows how hypocritical we are when it comes to the rule of law. We talk the talk, but we don’t walk the walk.”

Correction: This piece initially stated that there were two plea deals in the military commissions since 2002; there was only one.

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.”

Khan is one of fewer than two dozen “high-value” detainees at the prison camp, believed to be a senior member of al-Qaeda or an insider in its terror network. He is a legal U.S. resident who lived in Baltimore before moving to Pakistan. The government is considering bringing him to trial in a civilian court in Brooklyn.

Although it’s not clear why his case in particular would be brought to New York, the AP reports that it may be because Khan allegedly met with a man in 2001 who later pleaded guilty to plotting to blow up the Brooklyn Bridge.

Military officials also say Khan funneled money to al-Qaeda and Khalid Sheikh Mohammed, and helped fund an attack on a Marriott Hotel in Indonesia in 2003. That attack killed 12 people and injured 144 more, including two U.S. citizens, the AP reports.

Khan was captured in 2003.

Included among the information TSA posted were the limitations of x-ray machines at airports and the fact that only 20 percent of bags checked in are hand searched for explosives.  The document also revealed sample CIA, Congressional and law enforcement credentials — all of which experts say would be easy for any terrorist to duplicate.

DHS Secretary Janet Napolitano, testifying at the hearing, said that “the security of the traveling public has never been put at risk. The document that was posted was an out of date document.” Still, she acknowledged that the posting violating procedures, and promised that agency staff, as well as the inspector general, will look into how exactly that happened.

“I’ve directed that we do a review department-wide of all of our components to make sure that we are being rigorous and very disciplined on what is posted and what is not.”

This post has been updated.

Although Illinois politicians are split on the issue, support for the prison is reportedly strong in Thomson, where the unemployment rate is more than ten percent. The White House has estimated that some 3,000 jobs could be created by housing Gitmo detainees there.

Rep. Mark Kirk (R-Ill.), a candidate for President Obama’s former Senate seat, is leading the opposition to locating Gitmo detainees at Thomson. He’s called it “an unnecessary risk, both to our legal system and our security.” He also warned Obama in a letter, signed by six other GOP representatives, that if terror suspects are held in Illinois, “our state and the Chicago metropolitan area will become ground zero for Jihadist terrorist plots, recruitment and radicalization.”

That may be true, but there’s an aspect of one of Brennan’s recent speeches that, if actually implemented, would have the opposite effect.

As Spencer Ackerman reported here earlier, Brennan, in his speech to the Center for Strategic and International Studies, declared an end to the “war on terror.”

“This is not a ‘war on terror,’” Brennan said. “We cannot let the terror prism guide how we’re going to interact and be involved in different parts of the world.”

Well, if that’s the case, then how is the Obama administration going to justify “preventive detention” of terror suspects under the laws of war?

That power to detain supposedly “dangerous” people who can’t be proven guilty in any sort of court is a power the Bush administration relied on heavily and the Obama administration continues to claim. It’s at the core of President Obama’s claim that there’s a class of people who cannot be tried in criminal court or even by military commission, yet still must be held in prison because they’re “dangerous.”  That’s all been justified legally by saying that we’re at “war,” and terror suspects are warriors in the “war on terror.”

Now that the Brennan has declared an end to that war, is the Obama administration willing to relinquish its right to detain terror suspects picked up anywhere in the world?

So far, Obama has not made clear how he intends to use this “preventive detention” authority he claims that he has, though it’s as broad a detention authority as Bush Attorney General Michael Mukasey claimed over a year ago. But if Brennan really has the sway over the administration that Wheeler suggests he does, then maybe Obama will soon have to concede that the “war on terror” is over — and so is his corresponding power to seize and imprison its supposed “warriors” anywhere in the world.

Though he wouldn’t discuss the risks posed by any particular individuals, responding to Rep. Jerrold Nadler (D-N.Y.), who tried to get him to agree that terrorists could be kept safely in maximum security prisons, as they usually are, Mueller said that’s not necessarily true, because imprisoned gang leaders sometimes run their gangs from inside prisons.

“It depends on the circumstances,” Mueller said.

Rep. Lamar Smith (R-Texas), the ranking Republican on the committee, repeated his mantra that terrorists should not be allowed anywhere in the United States. “No good purpose is served by allowing known terrorists, who trained at terrorist training camps, to come to the U.S. and live among us,” he said. “Guantanamo Bay was never meant to be an Ellis Island.”

I know Cheney isn’t a lawyer, and neither was President George W. Bush, which is maybe why they leaned so heavily and easily on the more bizarre opinions from former Office Of Legal Counsel lawyer John Yoo and his colleagues to justify what Cheney today called “alternative” interrogation tactics — such as vicious beatings, sleep deprivation, simulated drowning, hanging, temperature extremes, food deprivation, threats against prisoners’ families, and blaring rap music 24 hours a day.

But it’s a pretty big omission to forget that when you torture people, you have a really hard time holding them accountable for anything later on. That’s true even if you create your own special court — like the U.S. military commission implemented by the Bush administration.

Remember Mohammed al-Qahtani, the alleged 20th hijacker on Sept. 11?  Susan Crawford, the Pentagon official responsible for charging terror suspects on behalf of the military commissions, had to withdraw the charges against him, even before he faced a military commission, because he’d been tortured — in accordance with Cheney’s policies. His confession was therefore inherently unreliable, Crawford ruled. Apparently, the government had also failed to get any other usable evidence against him.

Crawford is no liberal: she was general counsel for the Army during the Reagan administration and Pentagon inspector general when Dick Cheney was secretary of defense. That’s in addition to being a senior Pentagon official under George W. Bush. But unlike Cheney, she is a lawyer, and she does have some respect for the rule of law.

Cheney and his war council might have thought it wise to throw out those rules in the name of making us all safe from terrorism. But even setting aside the widely known fact that information extracted through torture is unreliable, we’re not going to be very safe when we eventually try bring to trial all those alleged terrorists we’ve been holding, and then have to let them go free because their “confessions” don’t hold up in court. Cheney’s idea that the president could create a “special” court to get around that didn’t work either, as the Supreme Court made clear in it’s Hamdan vs. Rumsfeld ruling that even a military commission has to meet certain minimum standards of fairness.

Only the most tortured logic could allow Cheney to believe that his “alternative” interrogation techniques will ever meet those minimum standards.

Update:  I added a link above to Mark Danner’s remarkable op-ed in Sunday’s New York Times describing the treatment of 14 “high-value” detainees, based on a confidential Red Cross report. For anyone who still finds it hard to believe that the U.S. really tortured prisoners, Danner’s piece is a must-read.

To overcome extremism, we must also be vigilant in upholding the values our troops defend – because there is no force in the world more powerful than the example of America. That is why I have ordered the closing of the detention center at Guantanamo Bay, and will seek swift and certain justice for captured terrorists – because living our values doesn’t make us weaker, it makes us safer and it makes us stronger.  And that is why I can stand here tonight and say without exception or equivocation that the United States of America does not torture.

All the right sentiments. As I noted yesterday, real trials for captured terrorists – and releasing those we captured who it turns out aren’t really terrorists after all – can’t happen soon enough.

Still, there was one big, though not surprising, omission:  while he re-iterated his pledge that America does not torture, Obama carefully left out any mention of bringing to justice those who did.