I spent the majority of my time last week up on Capitol Hill attending a seminar on intelligence operations and Congress. It was a fascinating seminar put on by the people at the Georgetown Institute. These are great courses (and I encourage any policy governmental employees to check them out) because they get members of Congress as well as senior staff, lobbyists, and other people “on the hill” who work there every day to provide presentations and background briefings. It provides a great condense “insight” into an issue. While the issue last week was supposed to be Intelligence budgeting and larger broad questions - as a former detainee policy director I was taken aback by the routine discussion about Detainees at Guantanamo and interrogation. All of the discussions essentially come to this question - what’s next for Guantanamo?

The concern about GTMO on Capitol Hill is not idle curiosity I presume. I was a bit taken back by many whom I would consider “deeply on the other side of the isle,” finally making the realization that the ruling by the Supreme Court could result in detainees successfully petitioning the Courts for their freedom, and the possibility that other Constitutional protections beyond Habeas may have inured to them during their detention in Guantanamo as a result of the ruling. Without question, the Supreme Court’s ruling in Boumedienne will have far-reaching implications.

The GTMO question however is really two problems - what happens to the people who are already at GTMO, and what will happen going forward in the Global War on Terrorism. The first problem will be solved before the General Election. The second problem - unfortunately - will have to be solved by the next President.

Let me begin by saying I have no particular insights or information about how the federal court will handle all of these cases. However, it appears obvious to me that the DC District Court has decided to expeditiously handle the habeas petitions (as it should). The vast majority of cases have been consolidated with one judge - Judge Hogan. Judge Hogan ordered counsel (the Justice Department and the defendant counsel) to provide status as to their cases by July 14, 2008 (about two weeks ago). The purpose of the order, I presume, was to get a sense of just how to proceed in the habeas corpus proceedings. I also gathered from reading his order that Judge Hogan is looking to proceed as expeditiously as possible.

I also presume that the status results will essentially say this - the government still wants the individual detained and was lawfully detained under the AUMF; defendants arguing they were not subject to the AUMF and/or their determination of enemy combatant was unlawful and factually in error, and thus, demand immediate habeas relief and release. With 270+ cases essentially log-jamming - it will be a challenge for the court to sort out the cases in a logical way.

I believe that the court will begin having Habeas hearings by late August or early September. The other detainee cases moved swiftly after the Supreme Court’s ruling - and I expect that the DC District Court is taking this very seriously and wants to move in a logical, but expeditious way. If I am correct, these hearings are likely to occur just after the two national conventions - and will undoubtedly galvanize many Americans as the first of the “worst of the worst” come before courts for their hearings on habeas. While cameras are not allowed in federal courts, it is undoubtedly to be of national interest on how the court rules (something I will get to in a minute in more detail). With potentially 270+ cases for the court to decide, and potential intertwining facts between detainees, it will be quite a complex process to expeditiously hear all of the cases - however - it is clear to me that such a task is exactly what Judge Hogan is seeking to do. The Chief Judge for the DC District (Judge Royce Lamberth) said in a statement that, “guidance from Congress on these difficult subjects is, of course, always welcome. Because we are on a fast track, however, such guidance sooner, rather than later, would certainly be most helpful.”

The Attorney General was up on the hill a couple of weeks ago basically telling Congress - DO SOMETHING! Attorney General Michael Mukasey called on Congress to craft legislation that would dictate the form of Guantanamo Bay cases in federal court, setting ground rules for evidence, and the extent to which detainees may participate in the proceedings, and the judiciary’s authority to order their release.

Mukasey said the legislation should include a statement of the executive’s right to detain, indefinitely, “those who have engaged in hostilities or purposefully supported al-Qaida, the Taliban, and associated organization.” The Bush administration has long asserted this principle, but its foundation has been buffeted by one legal challenge after the next.

Mukasey said Congress should bar federal judges from ordering the release of detainees into the United States, even if they prevail in their habeas cases. And in the context of the court proceedings, the judges should not be permitted to order the government to bring detainees into the United States to participate, Mukasey said, adding that a video link would be “remote and safe.”

Nor should soldiers be required “to leave the front lines” to testify as witnesses or to create arrest reports on the battlefield, like law enforcement officers in the United States, with later court hearings in mind, he said. “Affidavits, prepared after battlefield activities have ceased, should be enough.” Mukasey said.

Mukasey said the habeas proceedings should not delay the trials of detainees charged with war crimes at the naval base. So far, 20 detainees have been charged in the military commissions.

Mukasey also urged Congress to restrict discovery in the habeas proceedings, giving deference to the government’s interest in guarding national security secrets. The U.S. Court of Appeals for the D.C. Circuit is considering a case that could determine what kinds of evidence the government may withhold from detainees and their lawyers.

Finally, Mukasey argued that the legislation should also include a provision that gives the U.S. District Court for the District of Columbia exclusive jurisdiction to hear Guantanamo habeas cases, and it should require a coordinating judge on the court to handle all the common issues. While Judge Hogan has been given most of the cases Judge Richard Leon and Judge Emmet Sullivan opted out of the coordination.

I believe that the Attorney General was right to get Congress involved. Unfortunately, he seems to be the only one who thought this was a good idea (since the White House does not seem to be actively pursuing the Hill and getting them to act). Moreover, the reality of the Congressional calendar is - they’re out of time. While there are a few more days until the recess - it is unlikely there will be much done on detainee issues before the August recess. I cannot imagine that this will be ramrodded before the General Election. Thus, I suspect the Federal Courts have to proceed based on the rules they have now - essentially criminal federal procedure. I just don’t see Congress (particularly the Democrats in Congress) deciding to clarify the issue greatly. It is unfortunate but there is “too much political hay” to be made hanging the Administration out to dry on the detainee issue. Democrats want this to be ugly - and they may get more than wish for…

In my discussions with staffers and other people on the Hill, Congress has little sense of what is the right course of action is on the GTMO issue. While Sen. Levin continues to actively investigate detainee issues, the reality is the “really big show” is going to come after Federal Courts start gaveling detainees “free” on habeas. Moreover, the government may be placed in a difficult situation - either reveal as required by the courts the information they used to determine if the detainee was an enemy combatant (and in some cases expose the Administration to embarrassment regarding harsh interrogation techniques) - or be unable to make their case for detention, and thus, have the detainee go free as a result. When the court starts making decisions in favor of detainees (either on factual grounds or because the Government cannot sufficiently make its case) - Congress (especially Democrats who have been waiting to nail the Administration on this issue) is going to pinwheel into the ceiling. On top of the embarrassment of findings of cruel and mistreatment of detainees in the context of habeas hearings - I can’t imagine Democrats in Congress would pass up the opportunity to have more hearings on the entire framework of the detainee issue, demanding to know why the “worst of the worst” are being “let go” by Federal courts.

… in short - it’s going to be a serious mess (potentially) in the fall. But I do think it will be all over (one way or another) by Election Day. I suppose “that’s the good news.”

While a lot of political misfortune and turmoil is going to come as a result of the habeas cases - that’s not the really long term problem. Courts can handle the habeas cases, and the Republic will survive. The judicial review of the detainees is perhaps long-overdue given how the Administration chose to construct the legal framework. However, these decisions will have long-term implications in the GWOT - implications that neither the Congress nor the courts have yet to fully consider.

The reality is - the United States needs a place like GTMO for the long-term detention of some members of Al Qaida and affiliated terrorist organizations. I doubt very much the American people want to see the 9-11 mastermind, Khalid Sheik Mohammed (KSM), go free. I also doubt much that the American people want to see the other 9-11 conspirators, and the other “high value” detainees go free. I do not believe their habeas petitions will be successful. However, I am also skeptical as to the likelihood that the Government will prevail in a military commissions case against them (if they all wind up being subject to it). So, the reality for both Congress and the public is that the United States is going to detainee some pretty significant people in the war on terrorism - probably the rest of their lives (in all likelihood) and will need a facility and a legal framework that supports that detention.

The United States is also engaged in the GWOT around the world - and that fight is not rhetorical. Our forces are “bringing the fight to the enemy” in many parts of the world. The reality is - terrorists are going to be “scooped up” as a part of our military and law enforcement activities. What is to be done with them if they are not going to go to GTMO? The Boumedienne case I believe casts significant doubts on bringing them to the US without having to provide them some sort of “due process” (most likely Habeas Corpus hearings). While Habeas Corpus hearings are not necessarily impossible to meet (let’s face it - the majority of habeas petitions in Court do not result in the incarcerated being released) - it is not something that the United States has set up a good framework for doing for people who are not incarcerated as a result of a criminal process. The habeas hearings in the fall may be the first indicators of all the problems and pitfalls of attempting to apply criminal standards to battlefield captures.

Moreover, it’s clear they won’t go to GTMO. Both Presidential candidates have sworn to close the place - McCain wanting to put one hand on the Bible on the platform of the Inauguration - and then place it on a button that nukes Guantanamo - making his first act to close GTMO and send them all to Leavenworth. (YouTube is a real pain when you’re running for office - see http://youtube.com/watch?v=X5Co7×3A12s.) I can’t say that I blame McCain (or Obama) for wanting to just end the place. As executed, GTMO has been a public policy disaster, and has unraveled everything that the Administration wanted to protect as its Presidential power in the GWOT.

Reality is - however - we need a place like GTMO. Otherwise, we’ll be forced to hold detainees away from US shores - in temporary holding facilities. What got Congress most upset in the last 7 years was the lack of oversight over the big facilities - imagine their frustration if the US has to set up a temporary holding facility in every region it is operating. In short - Congress isn’t thinking this through very well.

If GTMO is to close - and the process we are looking at is subjecting detainees to some sort of habeas review - then the Congress needs to act and help define what that looks like. We can set up “terror courts” to hear the detainee cases - provide them high clearances and make the rules acceptable to protect both national security, but ensure the detainees get their “habeas review” as the Supreme Court requires.

I suspect in the next administration - we will have to build “a new GTMO” - somewhere in the US. The detainees who are judged to be “free” as a result of the habeas hearings will ultimately be released to their home government (subject to our treaty obligations under international law). The remaining detainees will be brought to the US - probably NOT Leavenworth (despite the hype - we need Leavenworth as a US detention barracks for soldiers).

The new Administration will have to deal with this issue - because - I find it highly unlikely al Qaida will surrender and end the conflict between now and January 20th, 2009.

Press Release: US Senate Committee on Homeland Security and Government Affairs:

WASHINGTON - Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, ID-Conn., Monday called on Google to remove Internet video content produced by terrorist organizations such as Al-Qaeda. The videos - readily available on YouTube -show assassinations, deaths of U.S. soldiers and civilians, weapons training, incendiary speeches by al-Qaeda leadership, and other material intended to encourage violence against the West.

The videos are branded with Al-Qaeda logos - a practice detailed in a recent bipartisan Committee staff report entitled “Violent Islamist Extremism, the Internet, and the Homegrown Terrorist Threat.” These production logos are easily recognizable, making it easy for Google to remove them from its Internet sites. Lieberman called on Google to enforce its own community standards against videos that show gratuitous violence or people getting “hurt, attacked, or humiliated.”

“Islamist terrorist organizations use YouTube to disseminate their propaganda, enlist followers, and provide weapons training,” the Senator said in his letter. “YouTube also, unwittingly, permits Islamist terrorist groups to maintain an active, pervasive, and amplified voice, despite military setbacks or successful operations by the law enforcement and intelligence communities…

“Protecting our citizens from terrorist attacks is a top priority for our government. The private sector can help us do that. By taking action to curtail the use of YouTube to disseminate the goals and methods of those who wish to kill innocent civilians, Google will make a singularly important contribution to this important national effort.”

Following is a copy of the letter:

May 19, 2008

Dr. Eric Schmidt
Chairman of the Board and Chief Executive Officer
Google, Inc.
1600 Amphitheatre Parkway
Mountain View, CA 94043

Dear Dr. Schmidt:

YouTube is being used to share videos produced by al-Qaeda and other Islamist terrorist groups. The purpose of this letter is to request that Google implement its own policy against this offensive material, remove these videos from YouTube, and prevent them from reappearing.

Today, Islamist terrorist organizations rely extensively on the Internet to attract supporters and advance their cause. The framework for much of this Internet campaign is described in a bipartisan staff report released last week by the Senate Committee on Homeland Security and Governmental Affairs (”Committee”), which I am privileged to chair, titled Violent Islamist Extremism, the Internet, and the Homegrown Terrorist Threat. The report explains, in part, how al-Qaeda created and manages a multi-tiered online media operation that produces content intended to enlist followers in countries all over the world, including the United States. Central to this media campaign is the branding of content with an icon or logo to guarantee authenticity that the content was produced by al-Qaeda or allied organizations like al-Qaeda in Iraq, Ansar al-Islam (a.k.a Ansar al-Sunnah) or al-Qaeda in the Land of the Islamic Maghreb. All of these groups have been designated Foreign Terrorist Organizations (FTO) by the Department of State.

Searches on YouTube return dozens of videos branded with an icon or logo identifying the videos as the work of one of these Islamist terrorist organizations. A great majority of these videos document horrific attacks on American soldiers in Iraq or Afghanistan. Others provide weapons training, speeches by al-Qaeda leadership, and general material intended to radicalize potential recruits.

In other words, Islamist terrorist organizations use YouTube to disseminate their propaganda, enlist followers, and provide weapons training - activities that are all essential to terrorist activity. According to testimony received by our Committee, the online content produced by al-Qaeda and other Islamist terrorist organizations can play a significant role in the process of radicalization, the end point of which is the planning and execution of a terrorist attack. YouTube also, unwittingly, permits Islamist terrorist groups to maintain an active, pervasive, and amplified voice, despite military setbacks or successful operations by the law enforcement and intelligence communities.

YouTube posts “community guidelines” for users to follow, but it does not appear that the company is enforcing these guidelines to the extent they would apply to this content. For example, the community guidelines state that “[g]raphic or gratuitous violence is not allowed. If your video shows someone getting hurt, attacked, or humiliated, don’t post it.” Many of the videos produced by one of the production arms of al-Qaeda show attacks on U.S. forces in which American soldiers are injured and, in some cases, killed. Nevertheless, those videos remain available for viewing on YouTube. At the same time, the guidelines do not prohibit the posting of content that can be readily identified as produced by al-Qaeda or another FTO.

I ask you, therefore, to immediately remove content produced by Islamist terrorist organizations from YouTube. This should be a straightforward task since so many of the Islamist terrorist organizations brand their material with logos or icons identifying their provenance. In addition, please explain what changes Google plans to make to the YouTube community guidelines to address violent extremist material and how Google plans to enforce those guidelines to prevent the content from reappearing.

Protecting our citizens from terrorist attacks is a top priority for our government. The private sector can help us do that. By taking action to curtail the use of YouTube to disseminate the goals and methods of those who wish to kill innocent civilians, Google will make a singularly important contribution to this important national effort.

Thank you for your immediate attention to this critical matter and I look forward to your response.

Sincerely,

/S./

Joseph I. Lieberman (ID-CT)
Chairman, Senate Committee on Homeland Security and Governmental Affairs

Cairo, Egypt (Indiatimes.com): Al-Qaida leader Osama bin Laden has lashed out at Arab leaders for “sacrificing” the Palestinians in a new message and called on Muslim militants in Egypt to help break the blockade of Gaza.

Bin Laden called Arab leaders “agents of the crusaders” and “wolves” in the audio message posted on an Islamic militant website on Sunday, where al-Qaida leaders issue their statements. He portrayed the citizens of Arab nations as herds of sheep who have been handed over to the wolves to look after them.

“Those (Arab) kings and leaders sacrificed Palestine and Al-Aqsa to keep their crowns. … But we will not be relieved of this responsibility,” bin Laden said in the message, referring to Al-Aqsa mosque in Jerusalem’s Old City, one of Islam’s holiest sites. Al-Qaeda leaders are increasingly using the Israeli-Arab conflict in their media campaign to rally supporters.

Washington, D.C. (Politico.com): President Bush is disputing coverage of his “appeasement” remark as an attack on Barack Obama, telling NBC News with a smile that the widespread interpretation is not “exactly right.”

White House officials say they were taken aback by the ferocious political reaction back home to that passage in the president’s remarks on Thursday in Jerusalem to Israel’s Knesset, or parliament.

“The whole media-manufactured storyline was irresponsible,” a White House aide said.

Aides say the president did not intend to attack Obama, but instead was restating longtime policy.

Bush drew applause when he told the Knesset: “Some seem to believe that we should negotiate with the terrorists and radicals … We have an obligation to call this what it is — the false comfort of appeasement.”

Obama pushed back hard, calling it an “extraordinary politicization of foreign policy.”

In an interview aired Monday on NBC’s “Today” show, Bush was asked about the controversy during an exclusive interview with Chief Foreign Correspondent Richard Engel in Sharm el-Sheik, Egypt.

“My policies haven’t changed, but evidently the political calendar has,” Bush said. “People need to read the speech. You didn’t get it exactly right, either.”

“Today” did not air the “not exactly” remark.

Here is the full exchange:

ENGEL: “In front of the Israeli palm at the Knesset, you said that negotiating with Iran is pointless — and then you went further, you saying — you said that it was appeasement. Were you referring to Senator Barack Obama? He certainly thought you were.”

THE PRESIDENT: “You know, my policies haven’t changed, but evidently the political calendar has. People need to read the speech. You didn’t get it exactly right, either. What I said was is that we need to take the words of people seriously. And when, you know, a leader of Iran says that they want to destroy Israel, you’ve got to take those words seriously. And if you don’t take them seriously, then it harkens back to a day when we didn’t take other words seriously. It was fitting that I talked about not taking the words of Adolph Hitler seriously on the floor of the Knesset. But I also talked about the need to defend Israel, the need to not negotiate with the likes of Al Qaeda, Hezbollah and Hamas. And the need to make sure Iran doesn’t get a nuclear weapon. But I also talked about a vision of what’s possible in the Middle East.”

White House officials say the five-day trip – which included stops in Israel, Saudi Arabia and Egypt — was productive.

“What you find over there is that … they’re much more in synch about the threat posed by Iran than they’re willing to say publicly,” a top official said.

“The stuff that went on behind the scenes was much more productive than anything we did out in public. That’s just the nature of dealing with the Middle East.”

The “appeasement” furor drowned out one of the biggest substantive announcement during the trip — that the U.S. and Saudi Arabia were signing “a Memorandum of Understanding in the area of peaceful civil nuclear energy cooperation.”

The revelation was spelled out in the penultimate paragraph of a White House fact sheet titled “Strengthening Diplomatic Ties With Saudi Arabia: “The United States will assist the Kingdom of Saudi Arabia to develop civilian nuclear power for use in medicine, industry, and power generation.”

Officials said the intention is both to help the Saudis modernize and, more broadly, help counter Iranian influence

London, UK (International Herald Tribune: William Glaberson, April 27, 2008) Next month, Salim Ahmed Hamdan, a Yemeni who was once a driver for Osama bin Laden, could become the first detainee to be tried for war crimes in Guantánamo Bay, Cuba. By now, he should be busily working on his defense.