by James Oliphant

ABC News is reporting that President Bush may decide in the coming days whether to close or revamp the prison at Guantanamo Bay, Cuba, that holds about 270 alleged terrorists.

Closing Gitmo has been advocated by Defense Secretary Robert Gates, among others, for months. But as ABC's Jan Crawford Greenburg reports, discussions among administration officials have intensified since the Supreme Court last month ruled that the detainees have a right to challenge their detention in federal court.

The court specifically held that because it considers the base at Guantanamo to be U.S territory--ignoring administration contentions otherwise--that the suspected terrorists were held in American custody, granting them some rights under the Constitution.

Soon after the court's ruling, a federal appeals court in Washington, D.C. ruled that the Pentagon had not proved its case for holding a Chinese Muslim detainee. The administration fears a wave of such rulings, largely because the evidence collected in support of the detentions -- either gathered on the battlefield or through interrogations-- isn't the kind of proof that suits a federal proceeding.

by Katie Fretland

No lawmakers were present at President Bush's signing of a $162 billion war-spending bill today, but White House Press Secretary Dana Perino notes: "They're all out of town." Congress is out for a July 4 break.

The bill, however, will double GI bill college benefits for troops and veterans and provide funding for combat operations in Iraq and Afghanistan through the end of Bush's presidency and even further, depending on what the next president decides about the war.

The bill adds more than $650 billion to the Iraq war and $200 billion for the war in Afghanistan. Democrats had tried to force troop withdrawals, but failed.

"I appreciate that Republicans and Democrats in Congress agreed to provide these vital funds without tying the hands of our commanders and without an artificial timetable of withdrawal from Iraq," Bush said.

The new GI bill offers troops and veterans free tuition to the equivalent of the most expensive school in their state and a housing stipend. Those who have served three years in the military are eligible.

by Aamer Madhani

The two U.S. senators from Kansas have what they say is the "gold standard" of military prisons in their back yard, but they have repeated their stance that Kansans want nothing to do with housing Guantanamo detainees.

The debate over what to do with Guantanamo was revived by the Supreme Court decision earlier this month that said the prisoners can ask federal judges to review the government's grounds for keeping them locked up without charges.

The left-leaning Washington think tank, Center for American Progress, has released a report recommending detainees slated for trial in military courts be transferred to the U.S. Disciplinary Barracks at Fort Leavenworth. The suggestion has apparently gotten under two Republican lawmakers' skin.

In a letter Sens. Sam Brownback and Pat Roberts sent to their colleagues yesterday, the two lawmakers laid out the reasons why they believe the Disciplinary Barracks at Fort Leavenworth--the only maximum security lockup in the military system-- isn't secure enough to host some 270 enemy combatants that are now being held at Guantanamo Bay, Cuba.

Here is an excerpt:

by James Oliphant

Earlier this week, it looked like the bill modifying the Foreign Intelligence Surveillance Act would clear Congress by the end of the week and reach the president's desk before July 4.

That may yet happen, but the outcome is less certain, as is the timing.

A vocal minority of Democratic senators are rebelling against the deal reached by Senate and House negotiators, saying that the provisions in the bill dealing with telecom immunity are a sham. The House, pushed by Democratic leaders Nancy Pelosi and Steny Hoyer, passed the compromise bill Friday. And supporters say it balances giving the government needed tools to fight terrorism with sufficient concern for civil liberties.

The bill's passage looked secure earlier this week when the presumptive Democratic nominee, Sen. Barack Obama, said he would vote for it.

But Tuesday night, Sen. Christopher Dodd (D-Conn.) delivered an impassioned address saying that the bill essentially provided immunity to the telecom companies that allegedly assisted the National Security Agency's warrantless wiretapping program to monitor suspected terrorists.

The negotiated compromise would allow a judge to grant immunity to the telecoms if they cooperated with a request from the Attorney General or the head of another agency for assistance, even if the underlying program was unconstitutional or illegal. The companies, such as AT&T and Verizon, are defendants in civil lawsuits for violating individual privacy rights.

Dodd urged his fellow senators not not vote Wednesday to cut off debate on the issue. And he tied granting to immunity to a host of Bush administration policies that he said exhibited a lack of respect for the rule of law:

[W]e are deceiving ourselves when we talk about the U.S. attorneys issue, the habeas issue, the torture issue, the rendition issue, or the secrecy issue as if each were an isolated case! As if each one were an accident! When we speak of them as isolated, we are keeping our politics cripplingly small; and as long as we keep this small, the rule of men is winning.

There is only one issue here. Only one: the law issue.

by James Oliphant and updated

It's back. And just like Michael Myers in Halloween, or Glenn Close in Fatal Attraction or Larry the Cable Guy, it can't be killed by any normal means.

Democratic and Republican negotiators from the House and Senate announced Thursday that they had reached a compromise in the long-running dispute over amendments to the Foreign Intelligence Surveillance Act. The White House and Justice Department have indicated their support for the new bill.

And like any compromise, it's made some people unhappy, setting up almost the same dynamic that existed earlier this year, when a Senate effort to reauthorize the Protect America Act was torpedoed by the House. The House later passed its own bill, which, of course, also went nowhere.

The new bill will be introduced and voted on by the House Friday. And forgive us if you have seen this movie before: The sticking point is whether the telecoms that allegedly participated in the Bush administration's warrantless wiretapping program should be granted retroactive immunity from civil lawsuits alleging privacy violations.

And I can't believe I just wrote that sentence again.

by Frank James

One of the most memorable and chilling lines from today's Senate Armed Services Committee hearing on the treatment of detainees came when Sen. Carl Levin, the Democrat who chairs the committee, referred to the back-and-forth between U.S. government officials as they discussed interrogation techniques that could be used on detainees.

The line, from Jonathan Fredman, a senior Central Intelligence Agency lawyer at the time was: "If the detainee dies, you're doing it wrong."

This led Levin to say, with enough introspection for everyone in the room:

How on earth did we get to the point where a senior U.S. government lawyer would say whether or not an interrogation technique is torture is, quote, "subject to perception," and that if, quote, "the detainee dies, you're doing it wrong?"

The Senate hearing's purpose was to examine how Pentagon lawyers trying to come up with acceptable interrogation techniques received help from U.S. military officials responsible for training American servicemembers on how to handle harsh interrogation techniques should they become prisoners of war.

John Ashcroft, right, and Robert Mueller. (EPA PHOTO/JOE MARQUETTE)

by James Oliphant

Not a tremendous amount of drama emanating out of the Supreme Court Monday, even as the term rushes toward its conclusion.

But the stage is set for one of the more interesting cases next term. It asks the question: When can a cabinet official be sued for the constitutional violations of his subordinates?

The case arises out of the widespread detentions of Arab and Muslim men by the Justice Department following the Sept. 11, 2001 attacks. Javaid Iqbal, a Pakisitani Muslim sued then Attorney General John Ashcroft and FBI Director Robert Mueller over conditions in the Brooklyn jail where he was held. Iqbal has since been deported to Pakistan after pleading guilty to identity fraud.

Normally, administration officials have qualified immunity from lawsuits if they were engaging in a legitimate governmental function. Nor typically are they liable for the acts of low-level subordinates. The U.S. Court of Appeals for the Second Circuit, based in New York, however, allowed the suit to proceed.

Monday, the Supreme Court announced it would review the Second Circuit's decision. Those who believe the appeals court was in error argue that allowing such suits will hamstring government decision-making.

Iqbal worked as a cable television installer on Long Island before being arrested on suspicion of credit card theft. He was placed in the maximum security wing of the Metropolitan Detention Center in Brooklyn, where, he alleges, he was subjected to physical and verbal abuse and humiliation. He was imprisoned for more than a year.

Iqbal claims that Ashcroft and Mueller, as the top officials at Justice, approved and implemented policies that led to the indiscriminate round-up Arab and Muslim men and subsquent abuse inside the prison.

As for this term, a number of high-profile cases have yet to be decided, including the challenge to Washington, D.C. ban on handguns, which has implications for the intepretation of the Second Amendment. The court will release more opinions Thursday.

by James Oliphant

Justice Antonin Scalia is known for his strongly worded dissents, ones where he has never been hesitant to use confrontational and, some would say, even abusive language to make his point as clearly as possible.

But some legal observers believe Scalia crossed a line in his dissent Thursday in the 5-4 decision that granted Guantanamo detainees the right to petition for their release in federal courts.

Scalia vehemently opposed giving the detainees habeas corpus rights, as well as allowing their American lawyers access to classified government information. Scalia's stance, really, is clear from one early sentence: "The United States is at war with radical Islamists."

From Scalia's point of view, allowing a court to interject its judgment instead of that of the military--or even Congress-- will likely lead to more dangerous prisoners being released.

His dissent is a stark condemnation of the majority, to the point of predicting they will have the blood of American soldiers on their hands."The game of bait-and-switch that today's opinion plays upon the Nation's Commander-in-Chief will make the war harder on us," Scalia wrote. "It will almost certainly cause more Americans to be killed."

Certainly, Justice Anthony Kennedy's decision has prompted criticism from many corners, so the question isn't whether Scalia's position is warranted, it's whether he pushed his rhetoric too far as one of nine justices on the nation's most august court.

In an interview Thursday, Jonathan Turley, a law professor at George Washington University in D.C., said he believed Scalia had permanently damaged his reputation and legacy with his remarks. He called his opinion the kind of point that belongs in a "raw, four-in-a-box cable news show."

by James Oliphant

In a body-blow to the Bush administration's anti-terrorism policies, the Supreme Court ruled Thursday that prisoners held at the Navy base at Guantanamo Bay, Cuba have a constitutional right to challenge their detentions in civilian federal courts.

The administration had argued that the military commission system set up by the Pentagon to try suspected terrorists provided enough to satisfy constitutional requirements. The court Thursday disagreed, introducing an element of uncertainty into what happens next regarding the 270 or so remaining detainees held at Guantanamo.

The 5-4 decision was written by Justice Anthony Kennedy, who was always believed to be the crucial swing vote in the case. Chief Justice John Roberts dissented on behalf of the conservative members of the court, Justices Antonin Scalia, Clarence Thomas and Samuel Alito.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Kennedy wrote.

The rebuke of the administration was its third loss before the court on issues relating to the detainees, some of whom have been held in the prisons since 2002 without charges, and this time, the court seemed to emphatically say enough was enough. The court first ruled in 2004 that detainees had the right of habeas corpus--the ability to challenge the basis for an extended detention beyond the normal criminal appeals process--by finding that the federal habeas statute granted them those rights.

Congress responded by passing an act that stripped away those statutory rights. The cases decided Thursday reviewed that act and found that Congress' act was invalid for constitutional reasons, saying that Congress can only suspend habeas in incidences of rebellion or invasion.

by James Oliphant

Sen. Patrick Leahy Friday called for the Justice Department to provide access to the Guantanamo Bay military tribunals for families of the victims of the 9/11 attacks.

In a letter to Attorney General Michael Mukasey, Leahy, the Democratic chair of the Senate Judiciary Committee, complained that only one family member--a supporter of the Bush administration--had been allowed to attend the proceedings this week involving alleged 9/11 mastermind Khalid Sheik Mohammed and other alleged conspirators.

Leahy wrote:

After the 1995 Oklahoma City bombing, we passed several measures to provide for the rights and interests of the victims and their families, including measures to help them attend the trial, and to watch the trial on closed circuit television. I do not understand why similar provisions were not made for the 9/11 families and victims.

We also enacted, as part of the Justice for All Act of 2004 (Public Law 108-405), federal rights for victims. In the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act, we expressly provided for the right to reasonable, accurate, and timely notice of any public court proceeding; the right not to be excluded from any such public court proceeding; the right to be reasonably heard at any public proceeding involving release, plea, sentencing, or parole; the reasonable right to confer with the attorney for the Government in the case; the right to full and timely restitution as provided in law; the right to proceedings free from unreasonable delay; and the right to be treated with fairness and with respect for the victim's dignity and privacy.

I write to you, our chief law enforcement officer, to ask what has been done to ensure that the 9/11 victims are being treated with respect and dignity, and what accommodations were made to protect their rights, given that the Government has chosen to proceed before military commissions at Guantanamo.

Earlier this week, a group of families critical of the tribunals wrote to the Convening Authority, the military officer which oversees the proceedings, to complain they had been excluded.

Khalid Sheik Mohammed, from the FBI via Bloomberg News

by James Oliphant

Khalid Sheik Mohammed, the accused mastermind of the Sept. 11 attacks and the highest of high-level detainees being held at Guantanamo Bay, Cuba, declared Thursday that he would not accept legal representation and would welcome execution for planning the deaths of almost 3,000 people in New York, Pennsylvania and Virginia in 2001.

"This is what I wish,'' Mohammed, speaking in English, told the military judge overseeing his prosecution before a Pentagon military commission, who warned that he might be executed if convicted. "I am looking to be martyred for a long time.''

Mohammed said he was rejecting legal representation and will defend himself. "Nothing shall befall us, save for what Allah has ordained for us.''

As reported by Bloomberg News, Mohammed called the military tribunal trying him on charges at Guantanamo an "inquistion, not a trial."

At a morning meeting with reporters, Attorney General Michael Mukasey had little to say about Mohammed's remarks. "When I was a district court judge, I had defendants who would come in court and would make statements that were unusual," he said. "That's part of the process."

Mohammed and four co-defendants are charged with planning, financing and training the pilots who commandeered the four airliners used to attack the World Trade Center and Pentagon. They face the death penalty if convicted.

He was captured in Pakistan in 2003 and was held by the Central Intelligence Agency before he was transferred to the navy base at Guanantanamo. Mohammed said Thursday that he was tortured while in U.S. custody.

The Defense Department said he bragged about his role in the Sept. 11 attacks during a 2007 preliminary hearing at Guantanamo. He has also claimed responsibility for the death of Wall Street Journal reporter Daniel Pearl in Pakistan.

He said he was declining legal assistance because he subscribed only to Islamic law not the American legal system.

The CIA has admitted that Mohammed was one of the few detainees who was subjected to waterboarding, the interrogation practice that causes the subject to believe he is drowning.

by Andrew Zajac

Justice Department Inspector General Glenn Fine identifies both sins of commission and omission in the FBI's involvement with detainee interrogations in Afghanistan, Iraq and Guantanamo Bay, but the missteps and oversights either weren't frequent enough or big enough to warrant coming down hard on the bureau, according to a report released Tuesday morning.

Fine launched his investigation into FBI interactions with detainees following reports, some from bureau personnel, about abusive tactics employed on people picked up in the war on terror.

The U.S. government's treatment of detainees has been a source of raging controversy in this country, among U.S. allies and within the Muslim world, where most of the detainees come from.

Since it's freshly released and 370 pages long, The Swamp hasn't had a chance to read the report completely, but here's a link to the redacted, unclassified version of the document.

The tortured title of the report -- A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq -- suggests a certain amount of hairsplitting and eggshell-walking.

Among the new findings, Fine identified a renegade FBI effort to subject harsh treatment for Muhammad al Qatani, who allegedly was supposed to serve as an additional hijacker on Sept. 11, 2001:

by Bay Fang

Although mystery still swirls around Saturday's sudden release of Pakistan's ambassador to Afghanistan after over three months in captivity, the Pakistani government insists it did not free any militants in exchange.

"There was no exchange of any militants or terrorists for the release of the ambassador," said Nadeem Kiani, spokesman for the embassy of Pakistan in Washington, DC.

Even if there were no explicit tit-for-tat, the release of Azizuddin could have been used as a pawn in the ongoing negotiations between tribal militants in the region bordering Afghanistan and the young coalition government led by Prime Minister Yousuf Raza Gilani.

A prisoner exchange took place last week as a direct result of the negotiations, with the release of dozens of suspected militants for army officers in Waziristan, a tribal area considered a stronghold of Taliban and al-Qaida militants.

by Frank James

You know all those military recruiting ads you've been seeing during nationally televised sports events, like the one with the Marine Corps Silent Drill Platoon which, through the miracle of digital editing, appears to be going though its paces on Hoover Dam, by the Golden Gate Bridge and atop a giant desert butte? (It's one of my favorites. Sends patriotic chills up my spine.)

Apparently, such ads are doing the trick in terms of recruiting young men and women into the armed forces in more than sufficient numbers.

Once again, Defense Department officials reported that they outdid themselves in April in terms of recruiting.

This is from an American Forces Press Service story:

WASHINGTON, May 12, 2008 - All military services met or exceeded their recruiting goals for April, with the Marine Corps recruiting 142 percent of its goal, Pentagon spokesman Bryan Whitman said here today.

In the re-enlistment arena, the Army, Navy and Marine Corps met or exceeded their active-duty retention objectives. "The Air Force still faces challenges, but they still seem able to meet their year-end strength goals," Whitman said.

by James Oliphant

The chairman of the House Judiciary Committee, John Conyers Jr., Wednesday issued a subpoena to David Addington, chief of staff to Vice President Dick Cheney, commanding him to appear June 26 to testify before a special subcommittee.

The subpoena was authorized at a committee meeating Tuesday. If Addington resists, he could be held in contempt of Congress.

Conyers seeks Addington's testimony about the role Bush administration lawyers played in authorizing extreme interrogation techniques after the Sept. 11 attacks. Several media outlets have outlined his influence as considerable.

Another architect of those policies, former Justice Department lawyer John Yoo, has voluntarily agreed to testify on June 26.

by James Oliphant

The House Judiciary Committee this morning took the next step toward a confrontation with the White House over the issue of harsh interrogation techniques.

It voted to subpoena David Addington, the vice president's chief of staff, to force him to testify about anti-terrorism legal policy he played a primary role in crafting.

Addington refused to appear this morning at a Judiciary hearing designed to probe into the legal advice given the White House in the wake of the Sept. 11 attacks.

If he chooses not to respond to the subpoena, it could set up a constitutional showdown over executive branch authority.

Addington, along with former Justice Department lawyer John Yoo and other high-level administration officials such as Pentagon aide Douglas Feith and CIA director George Tenet, have said that any work they did crafting legal policy is protected from disclosure by the doctrine of executive privilege, which prevents advice given the president from being forcibly revealed.

However, the Associated Press reported Tuesday that Yoo, Feith, former Atty. Gen. John Ashcroft and others have agreed to testify before the committee and that Tenet was in negotiations to do so.

That doesn't mean, however, that they cannot invoke executive privilege when they testify.