The White House said Wednesday it's keeping an eye on the hunger strike at the Pentagon's war on terror prison at Guantánamo and once again blamed Congress for its inability to close the detention center containing 166 captives.

"The White House and the president’s team is closely monitoring the hunger strikers at Guantánamo Bay,” Joshua Earnest, principal deputy press secretary, told reporters in response to a question.

Earnest's were believed to be the first public remarks by a White House official since news surfaced of the ongoing hunger strike.

Detention center spokesman, Navy Capt. Robert Durand said Wednesday that the medical staff counted nearly 19 percent of the captives, or 31 or them, as hunger strikers, with 11 being fed nutritional supplements through tubes and three hospitalized.

Over the past few years, after Obama failed to close Guantanamo, there's been a push to present the military commissions process there as reformed -- nothing like the extra-legal prosecution efforts of the Bush era, when the U.S. Supreme Court ruled the effort unconstitutional because Congress had not set it up. So the Obama administration and Congress came up with an improved regime, one more in keeping with what Americans would recognize as a court.

Today, we learned another way in which military commissions are different from any court the United States has seen before: Turns out the CIA has the ability to cut off the public's view of the proceedings without consulting with the judge, or anyone else.

That's apparently what happened Monday, to the shock of the judge, who apparently was unaware that anyone other than the court's security officer had the authority to censor courtroom exchanges. You can read The Miami Herald's Carol Rosenberg's account on what took place here.

Today, we learn who that someone is: the OCA or the Original Classification Authority -- in this case, the CIA. (You can see Rosenberg's account of today's commission testimony at her Twitter account here.)

Certainly, the Obama administration and Congress never publicly explained that this was how the commissions would work when they mandated in the Military Commission Act that the proceedings must be held in public. Obviously, it had not been explained to Judge Pohl or the defense attorneys, though the prosecution seemed to know.

What to do now? Rosenberg, after consulting with counsel, challenged the refusal to explain who had the authority to cut off the public's access to the courtroom. Here's what she filed with the commissions clerk:

To the Clerk of Military Commissions:


I am writing to you pursuant to Regulation 19-3 governing public access to commission proceedings, to object to the closure yesterday, January 28, 2013, of proceedings in United States v. Mohammad, et al.

Public access was denied to a portion of the proceedings by the termination of the video and audio feed, and this closure of the courtroom was imposed without any findings by the military judge authorizing it, as required by M.C.A. 949d(c) and R.M.C. 806.  As a reporter covering these proceedings, I object to this unauthorized denial of access and request a public explanation of the basis for the closure, a statement of the legal authority for the denial of public access, and an identification of the individual or organization that
closed the proceedings to the public.

I hereby request that you forward this objection to all counsel of record in the proceeding.    

  

  Will it make a difference? That remains to be seen. The Obama administration likes to say it's made the military commissions process transparent. But hiding the fact that all proceedings are overseen by an unnamed entity that can move outside the authority of the judge to censor the public's view of what's taking place is hardly transparent. It's difficult even to imagine that any entity has that authority in what passes for a quasi-judicial  proceeding, where the judge runs the courtroom.

President Obama says he's strongly objecting to the restrictions Congress is trying to impose on him regarding the transfer of terrorism detainees at Guantanamo Bay prison, and will "seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future."

Here's the signing statement just released that accompanies the defense authorization bill that contains those restrictions:

STATEMENT BY THE PRESIDENT ON H.R. 6523

Today I have signed into law H.R. 6523, the "Ike Skelton National Defense Authorization Act for Fiscal Year 2011." The Act authorizes funding for the defense of the United States and its interests abroad, for military construction, and for national security-related energy programs.

Section 1032 bars the use of funds authorized to be appropriated by this Act for fiscal year 2011 to transfer Guantanamo detainees into the United States, and section 1033 bars the use of certain funds to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met. Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.

With respect to section 1033, the restrictions on the transfer of detainees to the custody or effective control of foreign countries interfere with the authority of the executive branch to make important and consequential foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur in the context of an ongoing armed conflict. We must have the ability to act swiftly and to have broad flexibility in conducting our negotiations with foreign countries. The executive branch has sought and obtained from countries that are prospective recipients of Guantanamo detainees assurances that they will take or have taken measures reasonably designed to be effective in preventing, or ensuring against, returned detainees taking action to threaten the United States or engage in terrorist activities. Consistent with existing statutes, the executive branch has kept the Congress informed about these assurances and notified the Congress prior to transfers. Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries and therefore the effort to conclude detainee transfers in accord with our national security.

Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

BARACK OBAMA

THE WHITE HOUSE

January 7, 2011.

That's the message Director of National Intelligence Dennis Blair and Attorney General Eric Holder delivered to Congress this week in response to questions about how decisions were made about who among the Guantanamo detainees should be released, who should be tried and who should be held indfinitely without trial.

Depending on how you feel about the current regime of detentions, including the conclusion that "about 50" should be held indefinitely, the letter is either reassuring or frightening.

The bottom line: if any of the agencies involved in the review disagreed with the others' conclusion that someone should be released, then the individual was not put on the release list. That means the veto power on release was held by the agency that most wanted to keep detainees indefinitely.

"The Review Panel made disposition determinations only by unanimous agreement," Blair and Holder wrote the Senate Armed Services and Intelligence committees in a letter dated March 17. "[N]o determinations were made over the objection of any of the six agencies," who were identified in the letter as the departments of Justice, State, Defense and Homeland Security, plus the Office of the Director of National Intelligence and the Joint Chiefs of Staff.

Those who participated in the deliberations came from the CIA, the National Counter Terrorism Center, the Defense Intelligence Agency, and the FBI. There were federal prosecutors, State Department analysts, military officers and military prosecutors. One hundred federal employees served on the task force over its lifetime. Decisions were made by senior officials and when there was a disagreement, it went to the principals, meaning the secretaries of the departments and the heads of the agencies, for a decison.

The Director of National Intelligence agreed with the recommended disposition of each of the 240 detainees subject to the review, including the more than half of the detainees the group concluded ought to be released or transferred to other countries.

Sounds like a very thorough process. Until you remember that the Justice Department and the Defense Department, relying on evidence gathered in part by the Intelligence Community, have fought to keep at least 33 detainees at Guantanamo in instances where federal court judges later found there was no evidence to hold them. The case of Fouad al Rabia, the 50-year-old fat Kuwaiti Airlines employee who was held for years even though his own interrogators didn't believe his tortured confession, should give pause to anyone willing to rely on evidence gleaned from intelligence sources. It's worth reading District Judge Collen Kollar Kotelly's opinion in the case to see one arbiter's opinion of the quality of the evidence in one case.

For a look at Holder and Blair's letter, click here.

Back last year, as you may recall, there was a dustup between the British and the United States over the release of classified documents on the treatment of former Guantanamo detainee Binyam Mohamed, a 31-year-old Ethiopian, who grew up in Britain and ended up in Guantanamo.

British Foreign Secretary David Miliband, told Parliament at the time that the U.S. had threatened to break off intelligence sharing with Great Britain if the British revealed details about how Mohamed had been treated. The British promised to keep the secrets, in the face of court rulings that ordered their release.

That ended Wednesday, when, bowing to a ruling from Britain's Court of Appeal, he Foreign Office posted on its Web site the seven paragraphs on how Mohamed had been treated during his time in U.S. custody.

If you've followed the rulings of U.S. federal judges in the Guantanamo habeas cases, the description won't come as any surprise. There's a growing body of court rulings that pretty much find that U.S. authorities at Guantanamo and elsewhere brutalized more than just high value detainees. But the U.S., even under the Obama administration, would just as soon keep that quiet.

The Office of the Director of National Intelligence issued this disapproving statement:

The protection of confidential information is essential to strong, effective security and intelligence cooperation among allies. The decision by a United Kingdom court to release classified information provided by the United States is not helpful, and we deeply regret it.

The United States and the United Kingdom have a long history of close cooperation that relies on mutual respect for the handling of classified information. This court decision creates additional challenges, but our two countries will remain united in our efforts to fight against violent extremist groups.

Here's what the British found about Mohamed:

[It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2001 as part of a new strategy designed by an expert interviewer.

v) It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and “disappearing” were played upon.

vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews

viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.

ix) We regret to have to conclude that the reports provide to the SyS made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

x) The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities]"

An Associated Press version of the story can be found here.

The British Foreign Office statement can be found here.

Twenty years ago this month, the United States' captured Panamanian dictator Manuel Noriega after an invasion toppled his government and he fled to the papal nuncio's home in Panama City. His U.S. prison sentence on drug charges ended in September, 2007, but he wasn't released, pending an extradition request from France.

Monday, the U.S. Supreme Court declined to take up Noriega's appeal of his continued imprisonment. Noriega argued that as a POW -- Miami Federal District Judge William Hoeveler declared him one in 1992 -- he had the right to go home under the Geneva Conventions when his prison sentence ended. The conventions require that POWs be repatriated once hostilities have ended.

Justices Antonin Scalia and Clarence Thomas wanted to hear the case, noting that it would be an easy one to say what U.S. obligations were toward POWs without all the complications that come with Guantanamo cases. But they were just two votes -- taking up a case requires four.

So Noriega waits now for Secretary of State Hillary Clinton to decide if he goes to France, something she's almost certain to order. In France, he stands accused of money laundering and faces 10 years in prison. He's also facing prison time in Panama for murder and various other crimes. But because of his age -- he'll celebrate his 76th birthday Feb. 11 -- he'd be eligible for house arrest in his home country.

Here's the AP dispatch published in The Miami Herald.

It wasn't just the future of health care that had the Obama administration flummoxed Wednesday. Also confusing was what the administration thought about its decision to try the Detroit underpants bomber in civilian court.

The Republicans, of course, have blasted this decision, conveniently forgetting that the Bush administration chose civilian court to charge (and convict) Richard Reid, the shoebomber whose effort to blow up a Miami-bound airliner in 2001 was eerily similar to Umar Farouk Abdulmutallab's try at blowing up the Detroit-bound flight.

The decision for a civilian trial seems easily defensible. Obama officials said as far back as July that the difference between a civilian trial and a military one has to do with where the crime/attack took place and what its target was. In the case of an attack on a U.S. military target overseas, such as the USS Cole, that means a military tribunal for Abd al Rashim al Nashiri, who's being held at Guantanamo in the November 2000 attack.

Those same parameters were behind the decision to try accused 9/11 mastermind Khalid Sheikh Mohammed in New York -- a civilian target, in the United States, in which the victims were civilians.

That decision upset Republicans, too. But Attorney General Eric Holder and President Barack Obama both have been uncompromising in its defense.

Which makes Wednesday's testimony before the Senate Homeland Security Committee all the more astounding. Of the three Obama officials there — Homeland Security boss Janet Napolitano, Director of National Intelligence Dennis Blair and Counterterrorism Center chief Michael Leiter — none defended the decision. Blair even said it was a mistake that Abdulmutallab had been questioned by the FBI instead of the High-Value Detainee Interrogation Group, an entity announced over the summer to deal with terrorist suspects outside the usual Miranda rights questioning. Here's AP's account.

At least FBI Director Robert Mueller defended the FBI's role before the Senate Judiciary Committee.

It gets worse, as Spencer Ackerman of the Washington Independent points out here. Not only did Blair, Napolitano and Leiter go AWOL on civilian prosecution, they turn out apparently to be under-informed about the status of the HIG. It's not yet operational and couldn't have been called in, even if that had been a good idea. Blair issued a restraction.

Maybe it's no wonder that Abdulmutallab got on board the plane.

John Brennan,Obama's counterterrorism adviser,defended the administration's most recent returns to Yemen of Guantanamo detainees on CNN today and said the administration wasn't rethinking it's general strategy of closing Guantanamo, where nearly half of the remaining prisoners come from Yemen.

Brennan said the most recent transfer of six Yemenis to their homeland came only after the U.S. had assessed and been satisfied with the Yemeni government's release of a lone Yemeni, who Brennan said had been transferred to Yemen eight weeks earlier. That is almost certainly a reference to Alla Ali Bin Ali Ahmed, 26, whose return to Yemen the Justice Department announced on Sept. 26. A federal judge had ordered his release in May, saying the Pentagon had no grounds to hold him. You can read Judge Gladys Kessler's declassified ruling here. No word on how the Yemeni government handled Ahmed's return, but it's likely he was detained for at least a month after his arrival.

As for future returns to Yemen, Brennan wasn't specific, though Gloria Borger tried to pin him down. Republicans have asked that no more Yemenis be sent back to their homeland from Guantanamo, given the rise of the local al Qaida affiliate. Brennan would say only that the administration would move at the appropriate time.

Brennan also wouldn't be pinned down on whether Major Nidal Hasan's shooting spree at Fort Hood was an act of terror. With the president declaring the near-miss Christmas Day bombing attempt by Umar Farouk Abdulmutallab a terrorist attack, why not Hasan's Nov. 5 attack, which killed 13 and wounded as many as 40? Brennan stumbled, and Borger didn't probe enough to get a real answer. How about this speculation: Unlike the Christmas Day case, the U.S. still hasn't determined whether Hasan was directed to open fire or acted on his own, whereas Abdulmutallab's links to al Qaida in the Arabian Peninsula seem clear.

The Justice Department today charged three alleged members of al Qaida with agreeing to help Colombia's FARC guerrillas transport cocaine through Africa, leaving the impression in the headline of its press release that al Qaida and the FARC are cooperating. But before you get overly excited about an al Qaida/FARC connection, you need to read the complaint. It would appear that no one from the FARC was ever involved in the scheme.

Instead, the charges are the result of a sting operation by a couple of DEA confidential informants who've succeeded in finding a way to get three Africa-based al Qaida operatives off the battlefield and into an American court -- and not just sent off to Guantanamo to never stand trial on criminal charges.

According to the government's complaint, here's how the sting went down:

--Confidential Source 1, posing as "a radical Lebanese committed to opposing the interests of the United States, Israel and, more broadly, the West and its ideals," contacts, at the DEA's instruction, Oumar Issa, one of the alleged al Qaida members, and arranges a meeting in Ghana. CS-1 has been a paid DEA informant since July.

--At the meeting on Sept. 14, CS-1 explains that the FARC would like to smuggle some cocaine to Spain. Issa says his network has a way to get past custom's inspection in Mali and that armed al Qaida members would guard the shipment. After a few more phone meetings, the DEA wires Issa $300 in Togo so he can travel to Mali.

--On Oct. 6, CS-1 meets with Issa and another alleged al Qaida member, Marouna Toure, who's flown to Ghana from Mali for the meeting. DEA also paid for his airline ticket. At the meeting, Toure said he and his al Qaida associates would be responsible for getting the cocaine through Morocco.

--On Nov. 17 and 18, CS-1, with another paid DEA informant posing as a FARC representative, met with Toure and a third al Qaida operative, Idriss Abelrahman, who says he's the "general" of an 11-man armed group. The DEA informants and the two alleged al Qaida men agree on a price, and the DEA informants hand over $25,000 so the al Qaida members can buy trucks to transport the cocaine. Left unsaid is whether the DEA also paid Abelrahman's travel expenses.

--In the ensuing month, there were many "consensually recorded phone calls" between the DEA informants and Issa and Abelrahman, including quite a bit of haggling over how big a down payment the DEA/FARC needed to make (it went from 10 percent to 50 percent). Then on Dec. 14, this past Monday, the DEA informants and Issa and Abelrahman set Tuesday for the final payment on the truck and the transfer of the cocaine. Instead, the three alleged al Qaida members were arrested. On Thursday, they were flown to the United States.

The Justice Department's news release quotes DEA Acting Administrator Michele M. Leonhart as calling the case "further proof of the direct link between dangerous terrorist organizations, including Al Qaeda, and international drug trafficking that fuels their violent activities."

Well, at best, maybe. But what it really shows is that there are ways of getting alleged al Qaida operatives off the streets and into the U.S. court system under civilian laws. So much for Guantanamo.

The three alleged al Qaida members are charged, says the news release, "with one count of narco-terrorism conspiracy, which carries a mandatory minimum sentence of 20 years and a maximum sentence of life in prison, and one count of conspiring to provide material support to a foreign terrorist organization, which carries a maximum sentence of 15 years in prison."

Nevermind, that one of the terrorist organizations they conspired to support had nothing to do with the sting.

Interestingly, this is the second DEA-al Qaida link to surface this week. Turns out, David Headley, the American who allegedly helped plot last year's Mumbai attack, was also once a DEA informant. Here's the Philadelphia Inquirer's story on that.

On Monday, U.S. District Judge Thomas Hogan ruled that the Pentagon had acted legally when it took custody of Musaab al Madhwani from Pakistani authorities and sent him to Guantanamo in 2002. It was a rare victory for the U.S. government, which has won only nine of the 41 Guantanamo habeas cases that have been decided.

But then you read the transcript of Hogan's remarks, obtained by Carol Rosenberg of The Miami Herald, (see her work here), and you have to wonder -- did the Pentagon really win?

Yes, Hogan concludes, Madhwani was without doubt a member of al Qaida. By his own testimony, Hogan said, Madhwani acknowledged that he trained and lived with al Qaida for a year. So since the government was authorized by Congress to seize al Qaida prisoners and hold them until the conflict was over, then Madhwani's detention was legal. But is it just? Hogan doesn't think so. "I do not accept the rationale that find(ing) the government had shown a basis for (Madhwani's) detention (that) that means he should not be released," Hogan said.

Hogan ruled that there was no evidence that Madhwani ever took part in an al Qaida operation, ever plotted to launch an attack, or ever fought with al Qaida or the Taliban. "I see nothing in the record that (Madhwani) poses any greater threat than the dozens of detainees similarly situated who have been transferred or cleared for transfer," Hogan said.

And there's much in the government's handling of the case Hogan didn't like. The government produced documents in the case just days before the trial. "If that had happened in any other kind of case, they would have automatically been disallowed. You cannot have discovery where the principal litigant's own words are hidden from him until shortly before trial," he said.

He didn't think much of the government's evidence, either. He said he rejected 23 documents the government submitted as admissible "because the interrogations occurred 6 months after petitioner alleged he was tortured . . . I find those claims to be without merit."

As for Madhwani's treatment while being held by U.S. forces, Hogan also had nothing good to say. Madhwani was hung from his cell's ceiling by his left arm, so he could neither sit nor stand for "many, many days." He was blasted with deafening music 24 hours a day. "His sole respite from the deafening noise," Hogan said, "was the screams from the other prisoners when it was quiet." There was no evidence from the government, Hogan said, that Madhwani's "description of what he experienced in his confinement is inaccurate. To the contrary, his testiomny is corroborated."

He slammed the government's medical records, which found that the prisoner appeared well six days before his transfer to Guantanamo in October 2002, even though his weight was only 104 and his diastolic blood pressure was just 36, "a sign of severe dehydration which would require hospitalization normally in the United States".

Hogan also wasn't having any of the government's arguments that Madhwani's better treatment at Guantanamo made his statements there any more admissible. "Although the names in Afghanistan and Guantanamo changed, the use of threats, that is coercion, did not," Hogan said. Hogan noted that the government declined to put one of Madhwani's interrogators on the stand to refute allegations of abuse, even though the interrogator was in the Washington area and available. There's an inference the court can make from the refusal, and it's not in the government's favor, Hogan said.

In the end though, Hogan said he had no doubt Madhwani was an al Qaida member and therefore legally detained. He said Madhwani himself had said as much in testimony that was not influenced by interrogators. And based on that, he will remain at Guantanamo, "though," Hogan concluded, "I fail to see . . . that he poses any greater threat than most of the detainees who have already been released."