A Signing Statement to Protect Presidential Powers Obama Won’t Commit to Use

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That’s the short version of this Dafna Linzer story on Obama Administration plans to combat Congressional efforts to keep Gitmo open forever. Obama will include a signing statement with the appropriations bill asserting that limits on what he can do with Gitmo are unconstitutional [see update below].

Obama administration officials say they plan to reject Congressional efforts to limit the president’s options on Guantanamo, setting the stage for a confrontation between the president and the new Congress on an issue that has been politically divisive since Inauguration Day.

[snip]

White House aides are recommending that President Obama sign the spending bill and then issue a “signing statement” challenging at least some of the Guantanamo provisions as intrusions on his constitutional authority.

[snip]

If the bill were signed without challenge, the remaining prosecutorial option left for the administration would be to charge detainees in military commissions at Guantanamo, with those convicted serving time at the facility. So far, the administration has been unwilling to bring new charges in that setting.

“The bill,” said one administration official, “undermines the principles outlined in the president’s archives speech and there is no way to pretend you are closing Guantanamo if that law goes through unchallenged.” [my emphasis]

Note, this unnamed administration official used that word, “pretend,” not me.

But, Linzer goes on, the Administration has not yet decided whether Obama will use these powers he is trying to protect.

The White House has, until now, balked at confrontation even as it watched its policy options dwindle. Not one administration official who spoke about the internal deliberations could say for sure whether the White House, in moving to protect the right to prosecute detainees in federal court, would in fact use it.

“All presidents want to preserve maneuverability and authority, that is natural,” said Elisa Massimino, president of the civil rights organization Human Rights First. “But President Obama has had the authority to move prisoners to the United States, he’s done the background work to identify people to bring to justice and he’s squandered the opportunities to exercise that authority. It is striking to now see a fiercer desire to preserve authority than to use it,” she said. [my emphasis]

Apparently, I guess, Obama’s just going to fight Congress on this to protect presidential power for Dick Cheney to use in a future Republican administration, not to use himself.

Now, aside from my concerns about the separation of powers on this move, I’m amused by the centrality of prosecutorial discretion in it.

After all, the whole point of guarding the executive branch’s prosecutorial discretion is to shield it from the whims of politics, to ensure the integrity of prosecutorial decision making.

But Obama threw that integrity out the window when he allowed his Chief of Staff to override the Attorney General’s authority on Gitmo generally and the location of the 9/11 trial specifically. So Obama’s going to argue he needs to protect prosecutorial discretion, but it’s a prosecutorial discretion already tainted by White House interference.

Which means this plan–to use a signing statement to demand prosecutorial independence–amounts to Obama stating that only he (well, and his former Chief of Staff Rahm Emanuel), not Congress, gets to interfere politically with prosecutorial decision-making.

Update: As MadDog notes, Linzer has updated her piece to note that the signing statement may make no constitutional complaint, but simply note Obama’s opposition to that part of the law.

Others have recommended that he express opposition to the Guantanamo sections without addressing their constitutionality.

I guess that would serve the purpose of “pretending” to want to close Gitmo without having to try too hard.

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TSA’s Legal Justification for Gate Grope

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The Electronic Privacy Information Center has been suing the Department of Homeland Security because it refused to engage in the public rule-making process before it adopted RapeAScan machines as part of the primary screening at airports. DHS responded to EPIC’s suit the other day. While I think their response will be largely successful as written, they’re playing games with the timing of EPIC’s suit so as to avoid doing any discussion or even administrative privacy assessment of giving passengers a choice between being photographed nude or having their genitalia fondled.

The key to this is that EPIC first requested a request for review of whether DHS should have engaged in rule-making on May 28, 2010, before TSA changed pat-down procedures. It then submitted its brief on November 1, 2010, after the enhanced pat-downs were being rolled out. But the issue still focuses on the machines and not the machines in tandem with the invasive pat-downs. So a central part of DHS’ argument is that passengers are given an alternative to the RapeAScan machines: pat-downs. But its filing never deals with the possibility that pat-downs are more invasive than even the RapeAScan machines.

TSA communicates and provides a meaningful alternative to AIT screening. TSA posts signs at security checkpoints clearly stating that AIT screening is optional, and TSA includes the same information on its website. AR 071.003. Those travelers who opt out of AIT screening must undergo an equal level of screening, consisting of a physical pat-down to check for metallic and nonmetallic weapons or devices. Ibid.

A physical pat-down is currently the only effective alternative method for screening individuals for both metallic and nonmetallic objects that might be concealed under layers of clothing. The physical pat-down given to passengers who opt out of AIT screening is the same as the pat-down given to passengers who trigger an alarm on a walk-through metal detector or register an anomaly during AIT screening. Passengers may request that physical pat-downs be conducted by same gender officers. AR 132.001. Additionally, all passengers have the right to request a private screening. Ibid. More than 98% of passengers selected for AIT screening proceed with it rather than opting out. AR 071.003.

And by focusing on this alternative with no real discussion of what it currently entails, DHS dodges the question of whether the two screening techniques together–RapeAScans and enhanced pat-downs–violate passengers’ privacy. Note, for example, how the filing boasts of two Privacy Impact Assessments TSA’s privacy officer did (plus an update just as EPIC was last complaining about this technology).

Pursuant to 6 U.S.C. § 142, DHS conducted Privacy Impact Assessments (“PIAs”) dated January 2, 2008, and October 17, 2008, to ensure that the use of AIT does not erode privacy protections. AR 011.001-.009, 025.001-.010. The second PIA was updated on July 23, 2009 and lays out several privacy safeguards tied to TSA’s use of AIT. AR 043.001-010.

Now, as a threshold matter, there’s something odd about DHS citing 6 U.S.C. § 142 here. Its requirement for PIAs reads:

The Secretary shall appoint a senior official in the Department to assume primary responsibility for privacy policy, including – (1) assuring that the use of technologies sustain, and do not erode, privacy protections relating to the use, collection, and disclosure of personal information; (2) assuring that personal information contained in Privacy Act systems of records is handled in full compliance with fair information practices as set out in the Privacy Act of 1974 [5 U.S.C. 552a]; (3) evaluating legislative and regulatory proposals involving collection, use, and disclosure of personal information by the Federal Government; (4) conducting a privacy impact assessment of proposed rules of the Department or that of the Department on the privacy of personal information, including the type of personal information collected and the number of people affected; and (5) preparing a report to Congress on an annual basis on activities of the Department that affect privacy, including complaints of privacy violations, implementation of the Privacy Act of 1974 [5 U.S.C. 552a], internal controls, and other matters. [my emphasis]

See how it says the department has to do PIAs “of proposed rules”? That suggests the Privacy Officer treated the plan to use RapeAScans as a rule and did a PIA accordingly. But this entire filing–which explains why DHS refused to accede to EPIC’s request to conduct public rule-making on the use of RapeAScans–argues that the implementation of the machines did not constitute a rule. But they did a PIA as if it was a rule!

But there’s another thing this filing doesn’t say about PIAs: that Congress demanded TSA publish a PIA on the enhanced pat-downs.

In the absence of an Executive branch level Privacy and Civil Liberties Oversight Board that would evaluate decisions such as this, it was crucial that the Department of Homeland Security’s Privacy Officer and Office for Civil Rights and Civil Liberties thoroughly evaluate and publish written assessments on how this decision affects the privacy and civil rights of the traveling public. To date, the Department has not published either a Privacy Impact Assessment (PIA) nor a Civil Liberties Impact Assessment (CLIA) on the enhanced pat down procedures. Without a published PIA or CLIA, we cannot ascertain the extent to which TSA has considered how these procedures should be implemented with respect to certain populations such as children, people with disabilities, and the elderly. By not issuing these assessments, the traveling public has no assurance that these procedures have been thoroughly evaluated for constitutionality.

So while DHS boasts that it did PIAs on the RapeAScans before it rolled them out, it still does not appear to have done a PIA on the groping that serves as DHS’ much touted alternative to RapeAScans, much less a PIA on the two techniques offered together.

Now, DHS is using procedural complaints to object to EPIC’s inclusion of Nadhira Al-Khalili on the complaint, a lawyer with ties to the Muslim community. But their response to EPIC’s freedom of religion complaint seems to suggest they recognize they are vulnerable: suggesting that if a Muslim (or anyone else with documented reason to be opposed to having nude pictures taken and/or their genitalia groped by strangers) were to sue, the procedures would not hold up.

But for now, DHS is treating the RapeAScans separately from the groping so as to be able to argue that in conjunction with the “choice” of being groped, the RapeAScans present no big privacy problem.

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State Secrets Santa and SCOTUS

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Amid all the holiday hustle, bustle and, on at least some of the lame duck session accomplishments, success of Barack Obama, it is good to keep in mind what a lump of coal his administration has been on civil liberties and privacy. Nothing has been more emblematic of the cancer they have been in this regard than the posture they have relentlessly fought for on unfettered and unilateral ability of the Executive Branch to impose the state secrets doctrine to shield the government from litigation, even when it is concealing blatant and wholesale government criminality.

Just three days ago, the final judgment in al-Haramain was entered by Judge Vaughn Walker, and it was a good one. But, lest it be forgotten, the government basically refused to defend in that case, belligerently asserting that they were entitled to dismissal on the states secrets doctrine. That will be the government’s hard nosed basis for appeal to the 9th Circuit and, eventually, presumably the Supreme Court. Recently in the 9th Circuit the horrid en banc decision in Mohamed v. Jeppesen was entered granting nearly unfettered state secrets powers to the Executive and which the ACLU filed a petition for certiorari earlier this month. Both of these cases will likely hit the Supreme Court in 2011, with Jeppesen obviously further ahead in the process.

So, 2011 is going to be a busy and critical year for state secrets litigation in the Supreme Court, but those are just the two cases you likely know about; there is another case, actually two related cases combined, already racked and ready in the queue when the Supremes return to work in January. The cases are General Dynamics v. US and Boeing Company v. US, and they are not classic state secrets cases, but may well be used as a back door by the government to advance their unrestrained use of the Read more →

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Obama’s EO on Indefinite Detention: Wanting Bud McKeon’s Cake and Eating It Too

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[Update, 12/7/11: I find I’m still linking back to this post, and cringing everytime I see I got McKeon’s name, Buck, wrong. Apologies.]

I plan to do some more reading on Obama’s proposed Executive Order on Indefinite Detention (not least, once an EO becomes public). But here are some preliminary thoughts after having read Adam Serwer’s very good summary of the debate thus far.

The biggest reason to do this, IMO, is to head Lindsey Graham (who wants to pass a law authorizing indefinite detention) and Bud McKeon (who wants to rewrite the AUMF to authorize a limitless war on terror, along with the detention that would “authorize”) off at the pass. What Graham and McKeon want is undoubtedly worse.

But there are several problems with this as is.

1) I’m with Ben Wittes. I have a real problem with doing this via Executive Order. The whole problem with an executive just inventing his own judicial system is that it is unilateral and probably no more legal than Bush’s original review boards were. So even though liberals might LIKE this outcome better (and like it FAR better than what McKeon wants), legally it seems no more defensible. It still is an abuse of separation of powers.

2) Moreover, doing this with an EO is all the more problematic because EOs, as Bush showed and Obama’s first White House Counsel endorsed, are susceptible to pixie dust–to being changed with no public notice. There is nothing in principle to prevent Obama from secretly changing the terms of his EO on indefinite detention from including just al Qaeda and related groups to including FARC and drug traffickers to including Assange.

3) You might say the AUMF prevents that from happening. But if that’s so, then why is the AUMF not sufficient (that is, if as everyone says and DOJ concluded last year, international law provides for detention during wartime, then why do we need an EO reasserting that authority?). Sure, this EO puts a nice gloss on indefinite detention authorized–they say–under AUMF, but I’m afraid it also serves to push the boundaries of the AUMF. After all, Obama’s own Guantanamo Task Force has said the Yemenis could be released but couldn’t be released to Yemen, suggesting his own lawyers agree that they are not the kind of High Value Detainees who really fall under detention guidelines under the AUMF, but we’ve got to keep them anyway–partly–because of a war against AQAP, a force not included in the AUMF, but also–partly–because our unreliable ally there is fighting a civil war that threatens to morph into our war on terror and makes it dangerous–for reasons that may not have anything to do with Islamic terrorism–to release into that country. Yet the Yemenis appear to be included in this EO. In other words, the notion that such issues should form the basis for indefinite detention when they are not tied to the terms of the AUMF seems more likely to be abused under an EO.

4) All of which comes back to Bud McKeon, who wants to rewrite the AUMF to authorize foreever whereever war. This EO seems, as much an effort to get around Republican hopes for expansive indefinite detention, also an effort to get around revisiting the terms of the AUMF, even though we badly need to do so. Mind you, I’d like us to revisit it, declare the War on Terror as defined by the AUMF won, and the ongoing fight against terrorism a law enforcement exercise. That is, in my opinion, the legally correct thing to do. But Obama doesn’t want to lose his expansive executive powers which a law enforcement approach would require (and surely is unwilling to take the politically bold stance of observing that the war we’re fighting in Afghanistan has little to do with 9/11). So he’s basically endorsing McKeon’s awful stance, while trying to avoid doing so publicly. He basically wants the untenable outcome McKeon is pushing without the backlash from civil libertarians in this country (which are admittedly an increasingly small concern for Obama) or the international community (which is probably a growing concern) that he’d get for embracing McKeon’s unjustifiable stance. He wants to have Bud McKeon’s cake and eat it too.

And no matter what one thinks the correct stance is, this seems to be all about Obama having missed his opportunity to take a correct and defensible legal stance in 2009 (thanks Rahm), but also refusing to take a stance he’ll need to fight for going forward. Now, frankly, of all the political fights Obama refuses to fight, I suspect an assessment that this is now an unwinnable fight might, for once, be accurate (which is different than agreeing that it was unwinnable in summer 2009). In other words, his assessment than an attempt to head Bud McKeon off at the pass may indeed be morally preferable if legally suspect. But all the claims about EOs stopping short of institutionalizing a permanent system of indefinite detention also ignore the ways that doing this via EO is at the least legally troublesome and may be far worse in the long run.

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Vaughn Walker Issues Final al-Haramain Opinion on Damages and Attorney Fees

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As you may recall, Chief Judge Vaughn Walker of the Northern District of California (NDCA), who has handled two of the most critical and transcendent litigations of the last decade, Perry v. Schwarzenegger and al-Haramain v. Bush/Obama, is retiring. Today, he has issued his last big opinion left on his table pre-retirement, the ruling on damages to be awarded Plaintiff in al-Haramain, assignment of attorney fees to Plaintiffs, and whether or not to impose punitive damages against the government for their offending illegal conduct.

The government, in its brief objecting to the Plaintiffs’ proposed form of judgment, basically poked the court in the eye with a stick by continuing their obstreperous refusal to accept the court’s jurisdiction over their assertion of state secrets, continued to argue there were no facts competently of record despite Walker’s crystal clear determinations to the contrary, and denied that Plaintiffs were entitled to attorney fees or punitive damages. They just say NO. The Plaintiffs went on to properly lodge their calculation of damages, detailed request for attorney fees and affidavit in support thereof. Plaintiffs al-Haramain, separately, filed a very compelling brief on why the court should award them punitive damages against the government. The government, of course, objected some more.

As lead Plaintiffs counsel Jon Eisenberg stated in the punitive damages brief:

Defendants abused the extraordinary power of the Executive Branch by committing unlawful electronic surveillance of the plaintiffs with full knowledge of, and in flagrant disregard for, determinations by top officials in the Department of Justice (DOJ) that the surveillance lacked constitutional or other legal support. Defendants sought to put themselves above the law, in the manner of a monarch. That is a profound abuse of America’s trust. It calls for strong medicine.

And thus it all comes down to today’s decision by Judge Walker, and here is the full text of his 47 page order.

In short, Walker has ordered that Plaintiffs Wendell Belew and Asim Ghafoor (a-Haramain’s attorneys wrongfully surveilled) receive $20,400.00 each in liquidated damages. Walker denied damages to al-Haramain itself. In regards to punitive damages, Judge Walker has denied in full Plaintiffs’ request. As to attorney fees, the court grants the motion as to Plaintiffs Ghafoor and Belew only (again, not as to al-Haramain itself, and awards attorney fees and expenses in the amount of $2,537,399.45.

There is a lot to chew on in this order, and both Marcy and I will be coming back to do just that after chewing and digesting it further. But so far, it is clear that the court sided completely with the plaintiffs on compensatory/liquidated damages, giving Belew and Ghafoor every penny they asked for and finding the government’s opposition meritless. This passage by the court is telling: Read more →

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Christmas Special: Half Off Dick Cheney’s Freedom!

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Just a quick post while I’m packing so you all have fresh thread to unwind.

And also to note that Halliburton did manage to convince Nigeria to give them a half-off special for Dick Cheney’s freedom, though they had to bring Poppy Bush and James Baker in to close the deal.

Nigeria’s anti-corruption police have dropped charges against Dick Cheney, the former US vice-president, over a multi-million dollar bribery case after the energy firm Halliburton agreed to pay up to $250m (£161m) in fines.

The move followed the intervention of ex-president George Bush Sr and former secretary of state James Baker, according to Nigerian press reports.

It’s a good thing Cheney’s freedom is coming at such a discount. Because if, as reported, DOJ is contemplating charging those who helped or induced others to leak classified information–as Cheney did when he ordered Scooter Libby to leak Valerie Plame’s identity to Judy Miller–then he may have need of another half-off $250 million Get Out of Jail Free Card.

I’ll be packing the rest of the day today and moving tomorrow, so you may not hear from me until tomorrow night or Saturday. Wish me luck!

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Throwing our PATRIOT at Assange

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Last week, U.S. Attorney General Eric Holder admitted what bmaz laid out yesterday — the problems with prosecuting WikiLeaks’ Julian Assange under the Espionage Act. But at the same time, he said, the Espionage Act may play a role in a possible Assange indictment.

“I don’t want to get into specifics here, but people would have a misimpression if the only statute you think that we are looking at is the Espionage Act,” Mr. Holder said Monday at a news conference. “That is certainly something that might play a role, but there are other statutes, other tools that we have at our disposal.”

So even with all the problems in applying the Espionage Act to Assange, Holder is still invoking the provision in his discussion of the “tools that we have at our disposal” to combat Assange.

Legally, the stance could have import beyond the question of whether or not they can indict him.

Consider, for example, this language on the National Security Letter provision of the PATRIOT Act, which allows the FBI, with no court oversight, to require financial service and telecommunications providers to  turn over data pertaining to any investigation the Department of Justice asserts is an espionage investigation:

A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.

The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may—

request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; [my emphasis]

Or this language from Section 215 of the PATRIOT Act, which allows the FBI, with FISA Court approval, to require private businesses to secretly turn over a broad range of business records or tangible items pertaining to any investigation DOJ asserts is an espionage investigation.

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution. [my emphasis]

Between these two provisions, the government can collect a wide range of information on US persons — things like donations via credit card and server data — simply by claiming the investigation involves spying. They don’t have to even claim there’s a connection between those US persons making those donations or accessing the particular server and the alleged spy. They don’t have to prove that the case involves spying or that they have the ability to indict under the Espionage Act. They only have to claim they are pursuing an authorized — ultimately, the AG does the authorizing — investigation to protect against spying.

Which is what the Attorney General is suggesting here, that they are investigating Assange and the Espionage Act might play a role.

Mind you, they’d also have to claim (to themselves, in the case of the NSL, to FISC in the case of Section 215) that they were collecting data on a US person for reasons above and beyond that person’s First Amendment right to read stuff on the InterToobz or donate to people the government is loosely alleging may be sort of like a spy. Mind you, if the government did collect — say — the names of Americans donating to WikiLeaks via MasterCard or Visa or Paypal, or the names of Americans accessing the WikiLeaks site for the day Amazon hosted it, those people might have a great lawsuit claiming they had been targeted for First Amendment protected activities.

If they ever found out they were targeted.

But of course, we don’t have any way of knowing whether the government decided to use the PATRIOT Act provisions allowing them to collect data on Americans so long as they assert a connection to an Espionage investigation. Because that all remains secret.

Now, I have no idea whether the government is doing this (though I could imagine that if financial service providers like MasterCard and Visa got a really onerous request from DOJ, they might choose to end their relationship with Assange rather than provide ongoing compliance with the DOJ request).

But it seems these PATRIOT provisions are just the tip of the iceberg of potential investigative techniques they could have access to (FISA wiretaps are another) based on the stance that DOJ is investigating Assange for spying, whether or not they ever intend to charge him with spying.

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The Misplaced US Determination To Indict Assange

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I have stayed out of the WikiLeaks scrum to date, mainly because the relatively few cables published to date (only 1,269 of the more than 250,000 cables they possess have been released so far) did not provide that much new on the subjects I normally write on as opposed to just confirming or further supporting previous knowledge and/or suppositions. This is certainly not to say they have not been interesting reading or useful to many others, the WikiLeaks material has been all that.

But now comes the bellicose fixation of the United States government on criminally prosecuting WikiLeak’s editor-in-chief Julian Assange. What started out as the usual idiotic yammering of Rep. Peter King and Sen. Joe Lieberman has turned into an apparently dedicated and determined effort by the Department of Justice to charge Assange. As the following discussion will demonstrate, it will require dicey and novel extrapolation of legal theories and statutes to even charge Assange, much less actually convict him.

The interesting thing is this type of prosecution flies directly in the face of the written charging guidelines of the DOJ which prescribe a prosecution should be brought only where the admissible facts and evidence are “sufficient to obtain and sustain a conviction”. As we have seen in so many instances over the last few years, the DOJ uses this requirement to decline prosecution on a whole host of matters they simply do not want to touch, even where the evidence for conviction of serious crimes is crystal clear and unequivocal. Take for instance the case on the blatant destruction of the abu-Zubaydah and al-Nashiri torture tapes for instance (see here and here), where the DOJ and John Durham used just this basis to decline prosecution because the DOJ just does not, you know, go out on limbs.

So, why would the Obama Administration be so aggressive against Assange when doing so flies in the face of their written guidelines and standard glib protocol? Is it really all about prosecuting Assange? That would be hard to believe; more likely it is not just to monkeywrench Assange and WikiLeaks, but to send a hard and clear prior restraint message to the American press. This is almost surely confirmed by the rhetoric of Joe Lieberman, who is rarely more than a short ride away from his disciple and friend Barack Obama on such matters, and who is making noises about also prosecuting the New York Times.

Never before has the Espionage Act, nor other provisions of the criminal code, been applied to First Amendment protected American press in the manner being blithely tossed around by US officials in the WikiLeak wake. Avoidance of First Amendment press and publication has been not just the general position of the DOJ historically, it has been borne out by significant caselaw over the years. If you need a primer on the hands off attitude that has been the hallmark of treatment of press entities, you need look no further than New York Times v. United States, aka the “Pentagon Papers Case”. In NYT v. US, the government could not even use the Espionage Act in a civil context against the press, much less a criminal one as they propose for Assange, without being forcefully shot down. Daniel Ellsberg is right when he says that “Every attack now made on WikiLeaks and Julian Assange was made against me”.

The Barack Obama Administration, who rode into office on a platform and promise of less secrecy, more transparency and a respect for Constitutional principles, has proved itself time and again to be anything but what it advertised. And to the uninformed populous as a whole, ill served by the American press that is being pinched in this process, Julian Assange presents an attractive vehicle for this prior restraint demagoguery by the US government. The public, especially without strong pushback and fight from the press, will surely bite off on this craven scheme. Read more →

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Khalid Sheikh Mohammed and the Forever War

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There are a lot of things wrong with Obama’s apparently imminent decision to just let Khalid Sheikh Mohammed rot in jail without a formal trial.

Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.

The administration asserts that it can hold Mohammed and other al-Qaeda operatives under the laws of war, a principle that has been upheld by the courts when Guantanamo Bay detainees have challenged their detention.

Obviously, it’s a further spineless capitulation on Obama’s part. It’s a concession, too, that all you have to do to eliminate the rule of law in this country is squawk in Congress and on Fox News.

It also serves as a guarantee that the 2001 AUMF declaring war against the now-50 al Qaeda members who had something to do with 9/11 will last forever–or at least for the rest of Khalid Sheikh Mohammed’s life.

Mind you, the government has been planning on making this a forever war since 2001, precisely so it could hold people like KSM forever.

Now, with the decision to just let KSM rot, it seems to me, that plan gains a new anchor (and none too soon! given that only a handful of al Qaeda members remain in Afghanistan, that justification was getting rather dicey). After all, the very decision not to try KSM in a military commission is an admission that it would not work for him–it might rule out the death penalty for him in any case, but a military commission judge actually has leeway to adjust any sentence on account of the extreme torture KSM underwent, meaning our torture of KSM might become a central issue in a military commission.

But any further delay in charging KSM in civilian court make it less likely they’ll be able to charge him in the future, because this current delay almost certainly violates any interpretation of speedy trial rights. You can’t just wait to charge someone until such a time as the political winds make it easier to do.

Mind you, I agree that KSM is precisely the kind of person you do need to hold for the safety of the country (unlike many of the other detainees slotted for indefinite detention).

And that’s why this decision almost guarantees that the AUMF just became a forever war–at least one lasting the next twenty to forty years of KSM’s life. Because the government has apparently decided to hold KSM with no more solid legal justification than the war, which judges have interpreted to be the AUMF. Which means the government is going to have to sustain some claim that that AUMF remains in effect, even if we go broke and withdraw from Afghanistan as a result (that seems to be the only thing that will make us withdraw, in spite of the fact that we’re not going to do any good there).

Nine years ago, a British Embassy employee wrote,

As long as the war against terrorism in the widest sense continued, the US/UK would have rights to continue to detain those they had been fighting against (even if the fighting in Afghanistan itself were over). [Redacted] conceded that the strength of such a case would depend on the plausibility of the argument that the war was continuing.

The decision to hold KSM indefinitely has now flipped that equation: so long as the only justification for holding KSM is the claim we’re at war, we’ll have to remain at war.

And all those bonus powers a President gets with the claim that we’re at war? They’re all wrapped up now, in the necessity to hold KSM forever.

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Torture? Check. Covering Up Torture? Check. Rule of Law? Nope.

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I think it was the timing of the end of the torture investigation that hurts most of all. Just days ago, Harold Koh was boasting of the Durham investigation to the UN. Then Bush started his dog and pony show, including his proud admission to have ordered up torture. All of which made today’s announcement, that no one will be charged for covering up evidence of torture, almost anti-climactic.

Of course no one will be charged for destroying the evidence of torture! Our country has spun so far beyond holding the criminals who run our country accountable that even the notion of accountability for torture was becoming quaint and musty while we waited and screamed for some kind of acknowledgment that Durham had let the statute of limitations on the torture tape destruction expire. I doubt they would have even marked the moment–yet another criminal investigation of the Bush Administration ending in nothing–it if weren’t for the big stink bmaz has been making. Well, maybe that’s not right–after all, Bob Bennett was bound to do a very public victory lap, because that’s what he’s paid for.

The investigation continues, DOJ tells us, into obstruction of the Durham investigation itself. Maybe they think they’ve caught someone like Porter Goss in a lie. But at this point, that almost seems like a nice story the prosecutors are telling themselves so they can believe they’re still prosecutors, so they can believe we still have rule of law in this country.

This inquiry started long before Obama started looking forward, not backward. It started before the White House allowed the Chief of Staff to override the Attorney General on Gitmo and torture. It started before we found out that someone had destroyed many of the torture documents at DOJ–only to find no one at DOJ cared. It started before the Obama DOJ made up silly reasons why Americans couldn’t see what the Vice President had to say about ordering the leak of a CIA officer’s identity. It started before the Obama White House kept invoking State Secrets to cover up Bush’s crimes, from illegal wiretapping, to kidnapping, to torture. It started at a time when we naively believed that Change might include putting the legal abuses of the past behind us.

This inquiry started before the Obama Administration assumed the right to kill American citizens with no due process–all the while invoking State Secrets to hide that, too.

This inquiry started before Bush and then Obama let BP get away with serial violations of the laws that protect our workers and environment, and then acted surprised when BP ruined our Gulf.

This inquiry started before Obama helped to cover up the massive fraud committed by our banks, even while it continued to find ways to print money for those same banks. It started, too, before the Obama Administration ignored mounting evidence that banks–the banks employed by taxpayer owned Fannie and Freddie–were foreclosing on homes they didn’t have the legal right to foreclose on, going so far as to counterfeit documents to justify it. This inquiry started when we still believed in the old-fashioned principle of property rights.

This inquiry started before banksters got excused when they mowed down cyclists and left the scene of the crime, because a felony would mean the bankster would lose his job.

The ACLU’s Anthony Romero reacted to this news saying, in part, “We cannot say that we live under the rule of law unless we are clear that no one is above the law.”

I think it’s clear. We cannot say we live under the rule of law.

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