I will say that we have always maintained that we need increased prison facility, and I think the law prevents the Department of Defense from — but not the Department of Justice — from purchasing such a facility.

The annual Justice Department funding bill has only barely arrived in the House Judiciary Committee, so perhaps that will become the vehicle for the purchase.

Gibbs also said that the administration will send a report to Congress explaining why the Thomson-based Guantanamo closure makes sense. But it’s not clear from the summary language of the markup of the defense authorization bill that receipt of such a report will unlock the Thomson money. Either way, the administration needs to get on that: A full House vote on the bill is expected next week.

The sun rises over Camp Delta at Guantanamo Bay. (MICHELLE SHEPHARD/TORONTO STAR)

The Obama administration’s longstanding pledge to close the detention facility at Guantanamo Bay just hit a major obstacle in the House, creating doubts over whether the detention facility can be closed this year — if at all.

Last night the House Armed Services Committee finished this year’s bill authorizing $567 billion worth of defense spending and another $159 billion for the Afghanistan and Iraq wars for the fiscal year beginning in October. Following an administration budget plan announced in February by Pentagon comptroller Robert Hale, the Afghanistan war request contained a vague provision — indeed, not even carrying the words “Guantanamo Bay” — called a “transfer fund” to authorize the purchase of the Thomson Correction Center in Illinois. The administration wants to buy Thomson in order to have a secure facility on U.S. soil to house those Guantanamo detainees it designates for military commissions or indefinite detention without charge. Once the federal government buys Thomson, it can shut down Camp Delta at Guantanamo Bay.

[Security1] Or that was the plan. The actual bill hasn’t been released yet. But buried at the bottom of an extensive summary the committee released last night is an express prohibition on the use of any Defense Department money to buy a new detention facility. According to the bill summary, the bill now requires Defense Secretary Robert Gates to give Congress a report that “adequately justifies any proposal to build or modify such a facility” if it wants to move forward with any post-Guantanamo detention plan.

“The Committee firmly believes that the construction or modification of any facility in the U.S. to detain or imprison individuals currently being held at Guantanamo must be accompanied by a thorough and comprehensive plan that outlines the merits, costs, and risks associated with utilizing such a facility,” the summary text read. “No such plan has been presented to date. The bill prohibits the use of any funds for this purpose.”

That might place insurmountable obstacles to the the so-called “Gitmo North” plan to transfer Guantanamo detainees to Thomson. “They can’t just create Guantanamo North and move everyone up there. That’s clearly barred,” said Chris Anders, a senior lobbyist for the American Civil Liberties Union who monitored yesterday’s mark-up. “It doesn’t mean that the proposal is dead, but it’s hard to see how it makes a comeback after the House Armed Services Committee says there can’t be money spent on Thomson.”

That’s not all. While the bill doesn’t renew the current Congressional ban on transferring detainees from Guantanamo into the U.S. — set to expire in October — it requires President Obama to submit a “a comprehensive disposition plan and risk assessment” for any future detainee transfer. Congress would then get “120 days to review the disposition plan before it could be carried out.” Additionally, Congress would get a 30-day review period for the proposed transfer of any detainee from Guantanamo to a foreign country in order to check against a detainee inflicting violence against the U.S. or its interests. The summary instructs Gates to tell Congress that any such foreign transfer meets “strict security criteria to thoroughly vet any foreign country to which a detainee may be transferred.”

The bill, which passed the committee on a vote of 59 to 0, will go to the House floor and receive a vote most likely next week. A Senate Armed Services Committee mark-up of the companion bill in the Senate is scheduled for the end of May.

This is a major setback for Obama’s campaign pledge to close the Guantanamo Bay detention facility. While it’s theoretically possible for an amendment authorizing the Thomson purchase to come back into the bill during floor debate, “this makes it much, much harder for the administration to move forward with the closure of Guantanamo, there’s no doubt about that,” said Vincent Warren, the executive director of the Center for Constitutional Rights. “It’s hard to see what reasonable options the president has without jumping through congressional hoops that are unreasonable and unnecessary, and it’s harder to move forward both with prosecuting those who are terrorist suspects and releasing to freedom those who are not.”

But beyond the closure of the detention facility itself, the prohibitions now contained in the bill have policy implications for the dispensation of justice for detainees remaining at Guantanamo, a burning political issue all through this year. Those “abhorrent” prohibitions, Warren said, “essentially prohibit the executive from moving forward with its constitutional and human-rights obligations to try people [and] creates a paradigm where the operative default mechanism will be to detain people without trial.” In April, Attorney General Eric Holder pledged to work with Sen. Lindsey Graham (R-SC) on a new legal architecture for indefinite detention without charge.

Anders took a more optimistic view. If the bill passes, as is likely, the administration “will have to work harder and work faster at what they’ve been doing effectively for the past 16 or 17 months, which is repatriating and resettling detainees one by one who have been cleared and then bring people here for prosecution,” Anders said, even with the new congressional repatriation restrictions. This week, one of those detainees the administration designated for civilian prosecution, Ahmed Khalfan Ghailani, who has been transfered to a Manhattan prison, unsuccessfully urged a federal judge to dismiss his case.

But such an incremental approach would not allow Obama to close the facility until the last detainee either leaves or faces criminal charges, a process likely to take years even without all of the political obstacles that have emerged around terrorism trials and holding terrorism defendants in federal corrections facilities. Additionally, it would require Holder and the Obama administration to abandon a decision that has been much reviled in the civil libertarian community: designating 48 detainees currently held at Guantanamo for continued indefinite detention without charge.

Closing the detention facility at Guantanamo Bay was a bipartisan goal before President Obama took office, with both President Bush and Sen. John McCain (R-Ariz.), the 2008 Republican presidential nominee, rhetorically committed to shutting down an international symbol of American lawlessness. But an effective campaign waged by conservatives to portray the closure as negligent with national security — and Obama and the Democrats as weak for seeking it — has raised the political stakes for Democratic members of Congress. Last year, the Senate voted with 90 votes to prohibit the transfer of detainees from Guantanamo to the U.S., and this year, the still-unresolved question of whether Khalid Shaikh Mohammed and the 9/11 conspirators ought to be tried in civilian courts or military commissions has become Holder’s defining challenge. With Republicans hostile to the Guantanamo closure plan likely to gain seats in Congress after the November midterm elections, future attempts at closing the facility are likely to face even greater political opposition.

Requests for comment to the White House and the Office of the Secretary of Defense were not immediately returned.

Detainees at Guantanamo Bay (The Toronto Star/ZUMApress.com)

If there was any doubt that Republicans in Congress will oppose this year’s push from President Obama to close the detention facility at Guantanamo Bay, Sen. Mitch McConnell’s (R-Ky.) speech Wednesday to the Heritage Foundation ought to have laid it to rest. In the course of a half hour’s worth of invective against the administration’s counterterrorism policies, the Senate minority leader pledged to block funding for any efforts at giving terrorism detainees trials in civilian courts. But he held out a special reverence for the much-vilified locus for military commissions and indefinite detention. “Thankfully, Gitmo is still open for business,” McConnell said.

[Security1] McConnell then turned, briefly, to an argument that is starting to be shared by McConnell’s typical political enemies — and which could seriously complicate the administration’s plans for the final closure of Guantanamo Bay. If Obama simply moves the military commissions and indefinite detentions featured at Guantanamo to a new detention facility in Thomson, Ill. — as the administration currently plans –then there is “no doubt” that al-Qaeda will use Thomson “for the same recruiting and propaganda purposes” it’s used toward Guantanamo, McConnell said, a prospect that “eliminates the administration’s only justification for closing Guantanamo.”

With reluctance, many in the civil-liberties community think McConnell has a point. They have no patience for McConnell’s argument that terrorism detainees should not receive civilian trials. But the administration’s plan to close Guantanamo, from their perspective, merely transfers its most offensive practices to the middle of Illinois. In what they see as a tragic irony, the cohort that led the charge during the Bush administration to shutter the Guantanamo facility is increasingly vocal in opposing Obama’s already-imperiled path to shutting it down.

“What’s the point of simply moving Guantanamo on shore?” said Shayana Kadidal, an attorney with the Center for Constitutional Rights. Chris Anders, senior legislative counsel for the American Civil Liberties Union, said flatly, “We oppose any legislative proposal that links the purchase of Thomson to indefinite detention without charge and the use of military commissions.”

The coalescing civil-libertarian opposition to the Thomson plan now has a legislative target. Robert Hale, the Pentagon’s comptroller, announced on Monday that the $159 billion funding request for next year’s operations in Iraq and Afghanistan will contain a $350 million “transfer fund” for detainee operations that will authorize the administration to “let us open the Thomson, Illinois, site.” Placing the money for buying Thomson from Illinois — a necessary step toward transferring those Guantanamo detainees that will not be tried in federal civilian court to the prison –effectively dares critics to face accusations of not supporting the troops in Afghanistan if they try to block funding for for the Guantanamo closure.

At least one question about Thomson that civil libertarians consider crucial remains unanswered by the Obama administration. The administration has stated clearly that Thomson is designed to house detainees tried before military commissions, as occurs at Guantanamo. But it has been much vaguer about embracing or renouncing the even more contentious prospect of indefinite detention, Guantanamo’s other chief feature.

Last month, a year-long interagency task force on Guantanamo detainees recommended to the White House that the administration ought to continue to hold about 50 detainees indefinitely without charge, claiming simultaneously that there is insufficient evidence to convict them before either civilian or military courts but that their release would jeopardize national security. An administration official who would not discuss ongoing deliberations on the record said that the National Security Council is still reviewing the task force’s recommendations. “You should not consider them already accepted,” the official said, but cautioned that there is no timetable for formal adoption, rejection or modification of the recommendations, since “detainees’ status’ could change, based on the status of their habeas case [or] the situation on the ground in a receiving country” to which the detainees’ might be transferred.

With the arrival of a funding mechanism for Thomson on Capitol Hill, that vagueness leaves the civil liberties community unable to say that the administration has ruled out holding detainees indefinitely without charge, a bedrock principle of every civil libertarian organization, and unable to distinguish Thomson’s planned activities from Guantanamo’s objectionable ones. “If all we’re doing is exporting Guantanamo to Thomson for purposes of military commissions and indefinite detention,” said Virginia Sloan, president of the Constitution Project, “we’re very strongly opposed to that.”

Devon Chaffee, who handles national-security issues for Human Rights First, cautioned that the contours of the Thomson legislation were not yet fully defined. But, she said, “Human Rights First will continue to oppose indefinite detention without trial and the use of a flawed military commission procedure regardless of where it’s implemented. As long as the U.S. continues those policies, it will fail to overcome the policy mistakes that made Guantanamo a stigma. Those are two positions of ours that are not going to change.”

As a result of the administration’s vagueness about continuing to hold detainees at Thomson indefinitely without charge, the $350 million funding vehicle could unite liberal congressional opponents of indefinite detention with conservative congressional advocates of it. And the Obama administration does not have much legislative margin for error, even on a request as normally politically sacrosanct as war funding. Like with the defense budget overall, the Iraq and Afghanistan money for next year, formally known as the Overseas Contingency Operations Fund, must be authorized by the Senate and House armed-services committees before the formal appropriation is taken up by the Senate and House appropriations committees, all preceding full votes before the Senate and House. Republicans in the Senate proved willing in December to filibuster the defense appropriations bill in a failed bid to stop Obama’s health-care reform package. A potential alliance of convenience between Republicans who want to keep Guantanamo open and liberal Democrats who want to prevent Thomson from becoming a new Guantanamo could jeopardize the measure’s passage.

Anders said that if the Thomson plan was “reconfigured for the pre-trial detention and post-conviction sentencing of people tried in [federal] courts we might very well take a very different position,” holding out the prospect of the administration earning civil libertarian support by shuttering both Guantanamo and its policies. But, he added, “that’s not how it’s being set up.”

That isn’t a consensus position among civil libertarians. David Remes, a lawyer for several Guantanamo detainees and the executive director of the Appeal for Justice, a human-rights legal practice, said he opposes Thomson under any circumstances. “Number one, I oppose preventive detention in principle, and number two, I don’t see how spending a lot of money to change the zip code moves the ball forward,” Remes said. “I’m not in favor of moving anything to Thomson. There really is no difference between being tried in Gitmo North versus Gitmo South.”

Nor has the civil libertarian community been consulted on the plan, a position that many consider to have effectively cut off the administration from potential outside messaging surrogates. “The community has been frustrated working with the administration on this because we’ve been available and more than willing to help defend policies we think are the right ways to close Guantanamo,” Sloan said. “They haven’t really done that here. We feel we’re behind the eight ball.”

Shuttering Guantanamo within one year was among of Obama’s first pledges in office. But the deadline slipped after numerous congressional missteps, including a dramatic Senate vote in May, embraced by 90 senators, to prohibit funding to “transfer, release, or incarcerate” Guantanamo detainees in the United States. Sen. Harry Reid (D-Nev.), the Democratic leader, insisted then that the vote was mostly symbolic and any administration plan to close Guantanamo would receive careful Senate consideration.

But the opposition to the administration’s plans for closing Guantanamo is increasing, even among those who ultimately want the U.S. to be rid of all forms of indefinite detention. Anders said that for the ACLU, “The goal has never been changing the geography. The goal is to close both Guantanamo and the policies that are problematic there — the use of military commissions and indefinite detention. Transferring those policies to Thomson is something we oppose.”

Donald Rumsfeld called the Gitmo detainees "the worst of the worst." (Wikimedia Commons)

In February 2004, Ubrahim Ahmed Mahmoud al Qosi was charged with conspiring with al Qaeda in Afghanistan, Pakistan and elsewhere to attack and murder civilians and destroy property. The government claimed that al Qosi was an armed guard and driver for Osama bin Laden going back to 1996, provided logistical services and supplies for an al Qaeda compound in Kandahar, and traveled to to Kabul to fight with an al Qaeda mortar crew near the front lines.

Al Qosi was never tried on those charges, however, because in 2006 the U.S. Supreme Court declared the military commissions unconstitutional and a violation of the Geneva Conventions. Congress re-created the commissions with a new law later that year, and Al Qosi was charged again in 2008.

[Law]Then in January, just after President Barack Obama took office, he suspended the 2006 military commissions while he decided what to do with them.

Now, about a dozen military commissions cases that were left in limbo are being revived. And, the government is sending more suspected terror cases for trial there – either at Guantanamo Bay, where they’re currently located, or in Thomson, Illinois, where they could be moved. Judging from recent protests against sending the suspected co-conspirators of the September 11 attacks to civilian trials, some might think that convicting terror suspects in a military commission would be easier. But the new Military Commissions Act, passed by Congress in October and signed by the President, is an untested military system that, like its earlier incarnations, is ripe for constitutional challenge. Whether it will provide the swift justice the Obama administration and others hope for remains to be seen.

The case of al Qosi, now being heard before the new military commission, highlights the sorts of problems that lawyers say are likely to come up in many military commissions trials. Most importantly, they include a range of constitutional challenges to the new military commissions law itself, from whether its jurisdiction inappropriately extends beyond war crimes to include ordinary criminal acts, to whether the law’s permissiveness about the use of hearsay evidence against terror suspects violates their rights to confront and cross-examine the witnesses against them.

Although the case has been pending for almost six years now, at a hearing earlier this month, the government announced for the first time that it wanted to add more charges against al Qosi alleging he participated in a conspiracy with al Qaeda dating back to 1992. That’s also the date that Osama bin Laden allegedly began urging others to attack the United States, according to a U.S. criminal indictment of bin Laden. If the government can show that al Qosi participated in the conspiracy dating back to that time, then he could be held responsible for all of the crimes it committed between 1992 and 2001, when he was captured.

“That’s the way the conspiracy charge works,” said Andrea Prasow, senior counterterrorism counsel for Human Rights Watch, who attended the military commission hearing at Guantanamo Bay in al Qosi’s case earlier this month. “You don’t need to have participated in all of the acts that the conspiracy carried out.”

Advised of the four years’ worth of new charges only hours before the government sought to add them, Navy Cmdr. Suzanne Lachelier, al Qosi’s lead military defense lawyer, protested, calling them “sweeping changes” that would require al Qosi’s defense team to travel to Somalia, Ethiopia and Chechnya to prepare for a trial.

At the hearing, the judge rejected the government’s request to add more charges to the current case against al Qosi, but said it could withdraw the case and refile it with those new claims. If prosecutors do that, however, it will only highlight one of the tenuous bases for the new military commissions, which is its broad jurisdiction.

The crimes the government wants to add in al Qosi’s case did not even take place in the United States or against it. But under the new Military Commissions Act, they can be considered part of a larger conspiracy to attack the United States, and al Qosi’s support for al Qaeda in that period can be considered a war crime.

“It’s absurd in these circumstances,” said Prasow. “But in a conspiracy, the action that the defendant has to take doesn’t need to be criminal. It can be cooking for people, as long as you have a meeting of the minds of all the participants. The government will argue that joining al Qaeda is a meeting of the minds, and a joining of the intent to carry out bad things.”

“We are breaking new ground,” conceded Navy Cmdr. Dirk Padgett, the military commissions prosecutor, at the hearing, according to a blog post Prasow wrote from the hearing at the time. Prasow says the prosecutor defended his bid to reach back to 1992 because “the planning, the conspiracy began years before.”

But are conspiracy to attack and providing substantial support for those attacks even war crimes prosecutable by military commission? That’s not at all clear.

Lachelier last year moved to dismiss the case against al Qosi on the grounds that neither of these charges have traditiionally been considered war crimes, so the military commissions don’t legitimately have jurisdiction to prosecute them.

In fact, that could pose a serious problem for this latest incarnation of the military commissions, as even the Justice Department has acknowledged. In July, Assistant Attorney General David Kris testified before the Senate Armed Services Committee that “there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.”

Congress enacted the Military Commissions Act of 2009 with its broad jurisdiction anyway, and despite senior Justice Department officials’ own doubts, the government is proceeding to prosecute al Qosi for conspiracy and providing “material support” to al Qaeda. Those charges “continue to fly in the face of traditional understandings of law of war violations,” wrote Devon Chaffee, advocacy counsel for Human Rights First, in a blog post she wrote after attending the al Qosi hearing.

Indeed, when the MCA was enacted in October, civil liberties and human rights group objected in large part because it swept into untested military commissions with unknown rules ordinary crimes that have been successfully tried and appropriately belong in federal court.

Now, it’s not clear what is legitimate in the newly reconstituted commissions. “You don’t know what law applies,” Lachelier said of the military commissions. “You pick and choose. You try to draw from international and federal precedent.” How the commissions will use those remains unclear, however.

Another potential challenge to any conviction by the commissions, Lachelier explained, is that the military commissions allow the use of hearsay testimony in circumstances where it would be inadmissible in a federal court. That, too, could become a constitutional problem if convictions are appealed. “The right to confrontation is still significantly diminished in the military commissions,” Lachelier said, referring to the right to the Constitution’s Sixth Amendment right to confront and cross-examine witnesses. If the government claims the witnesses are not available, “these could be trials on paper,” she said.”That’s not what the confrontation clause and the Supreme Court would allow.”

Recently, Lachelier filed four more motions in al Qosi’s case. She claims that the military commission lacks jurisdiction over her client because the prosecutor hasn’t proved he’s an “unprivileged enemy belligerent” — meaning he was a member and substantial supporter of al Qaeda. She also claims that the Military Commissions Act is an unconstitutional Bill of Attainder, meaning a law designed only to punish a certain group of people (in this case unprivileged enemy belligerents), and that it violates the equal protection clause of the U.S. Constitution because it applies only to aliens (non-citizens).

Many of these claims have been made in military commission cases before. But since this is a new commission with no binding legal precedent, it will have to decide these issues all over again. “The question is, what law applies?” asked Lachelier. “And how will the commission interpret it?”

Ultimately, it may be the Supreme Court that answers these questions, probably several years from now. And if the court holds that Congress and the President overreached in the MCA of 2009, the government’s prosecution of Mahmoud al Qosi, and any other terror suspects charged before the new military commissions, will have to start all over again.

“These are all still open issues,” said Lachelier. “There are so many moving parts.”

But is that true?

Actually, it’s not clear, Scott Silliman, a professor at Duke University Law School and director of the Center for Law, Ethics, and National Security, tells Warren Richey of the Christian Science Monitor. After all, “we’ve never done this before,” says Silliman.

It’s not even clear what “this” is.

Is the administration going to move all of the men to military custody, or will some be moved to federal civilian custody for trial in a civilian court? The government hasn’t yet said. And will some people be held in military custody indefinitely without trial? The administration hasn’t said that yet, either. So to some extent, the speculation is premature.

What Richey does make clear in his story, however, is that there are some rights that the government will be hard-pressed to argue don’t apply to prisoners on U.S. soil, even if they may not have applied to them at Guantanamo Bay. Those include the Fifth-Amendment right to due process of law, for example, which the government argues doesn’t apply in Cuba. As I’ve explained before, however, what rights the detainees have at the prison in Cuba has never really been decided.

Some defense lawyers even worry, as Richey reports, that their clients will get worse treatment in a beyond-Supermax facility in Illinois than they do at Guantanamo, where the international focus on previous mistreatment has forced improvements.

The fears of Mitch McConnell and his fellow Republicans notwithstanding, exactly what rights any military detainee in Illinois is going to get will depend a whole lot on the status the government gives them when they’re transferred. And for now, the Obama administration hasn’t yet told us what that will be.

View the details of all Guantanamo detainees’ habeas corpus cases at TWI’s Gitmo Habeas Scoreboard.

Calling it “the latest in a string of seriously misguided decisions related to the closing of the secure facility at Guantanamo Bay,” McConnell said in a statement that holding the same prisoners on U.S. soil takes the wind out of the sails of the administration’s earlier argument that the prison at Guantanamo is a powerful recruiting tool for al-Qaeda.

The explanation we used to get for moving detainees onto American soil was that Guantanamo’s existence is a potent recruiting tool for terrorists. But even if you grant that, it’s hard to see how simply changing Guantanamo’s mailing address would eliminate the problem. Does anyone really believe Al Jazeera will ignore the fact that enemy combatants are being held on American soil? It’s naïve to think our European critics, the American Left, or Al Qaeda will be pacified by creating an internment camp in Northern Illinois; a ‘Gitmo North’ instead of ‘Gitmo South.’

Yesterday, although some more moderate civil liberties and human rights groups praised the Obama administration’s decision to move Guantanamo detainees to Illinois as an important first step to closing down the notorious prison in Cuba, some voiced concern that this would simply shift indefinite detention without trial rather than eliminate it.

As the Center for Constitutional Rights’ Executive Director Vincent Warren said in a statement yesterday:

If President Obama is simply moving detainees from one Guantánamo to another, he has done nothing to honor his pledge to close the prison camp. …

Moving the Guantánamo system onshore is not change. Whether in Thomson, IL, at Guantánamo, or elsewhere, the very idea that we would toss aside our founding constitutional principles and allow any executive the power of kings to imprison someone forever without a trial is anathema to democracy.

In the past, McConnell’s principle complaint about moving Guantanamo detainees onto U.S. soil was that they might be accorded more constitutional rights and would endanger U.S. national security. Yesterday, he repeated those arguments as well, predicting that “There will now be another terrorist target in the heartland of America” and that detainees will be able to communicate with “terrorists on the outside,” — “a danger that would undoubtedly increase with the additional legal rights detainees will enjoy once they are moved onto U.S. soil.”

In a letter sent yesterday to Illinois Gov. Pat Quinn, administration officials promised that terror suspects would be in a separate part of the facility run by the U.S. military, in a security situation “beyond Supermax,” and will be denied the ability to communicate with other federal prisoners.

As the President has made clear, we will need to continue to detain some individuals currently held at the Guantanamo Bay detention facility. To securely house these detainees, Federal agencies plan to work with you and other state officials to acquire the nearly vacant maximum security facility in Thomson, Illinois. This facility will serve dual purposes. First, the Department of Justice will acquire this facility primarily to house Federal inmates. The Bureau of Prisons has a pressing need for more bed space in light of current crowded conditions. Second, the Defense Department will operate part of the facility to house a limited number of detainees from Guantanamo. The two parts of the facility will be managed separately, and Federal inmates will have no opportunity to interact with Guantanamo detainees.

The security of the facility and the surrounding region is our paramount concern. The facility was built in 2001 to maximum security specifications, and after acquisition it will be enhanced to exceed perimeter security standards at the nation’s only “supermax” prison in Florence, Colorado, where there has never been an escape or external attack. Federal departments and agencies, including the Departments of Homeland Security, Justice, and Defense, will work closely with state and local law enforcement authorities to identify and mitigate any risks, including sharing information through the state’s “fusion center” and working with the Federal Joint Terrorism Task Force.

The President has no intention of releasing any detainees in the United States. Current law effectively bars the release of the Guantanamo detainees on U.S. soil, and the Federal Government has broad authority under current law to detain individuals during removal proceedings and pending the execution of final removal orders.

Watch the right ignore that particular law in its reaction.

Here’s the letter:

In fact, it turned out that the memo was a draft from the Justice Department prepared for the president, as Andrew McCarthy at National Review acknowledged in an update of his earlier breathless post.  That post relied on a post from Andrew Breitbart’s Big Government site, which obtained a copy of the leaked memo and posted it.

To McCarthy, who is not one to shrink from a little fearmongering, the notion of transferring to Illinois all those Gitmo detainees who’ve been imprisoned for up to eight years without charge on an island prison created precisely to deny them the right to a fair trial is “an outrage. It will inevitably result in trained terrorists being released in the United States — bank on it.”

In his update, McCarthy sheepishly acknowledges that an administration official told ABC News, which bothered to contact the administration about the document, that the memo “is a draft, predecisional document that lawyers at various agencies were drafting in preparation for a potential future announcement about where to house GTMO detainees.”

From a statement issued by the trio:

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

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

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

The scaremongering about these issues should stop.

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