Three cheers for Dick Durbin, the senior senator from Illinois.

Rather than offering shrill, partisan talking points at the prospect of closing the Guantanamo prison - equal parts Islamic extremist recruiting tool as well as human rights stain on our national psyche - Senator Durbin has consistently offered pragmatic progressive voice that is steadfast in his resolve to close Gitmo and ensure the security of the country.  The result is today’s announcement that the administration will likely open the detention facility in Thompson, Illinois as the destination for many of Guantanamo’s detainees.

When conservatives were doing their best Chicken Little impersonation about the alleged perils of bringing hardened terrorists to American soil, Durbin rebuffed Dick Cheney and Newt Gingrich, calmly telling NBC’s David Gregory on Meet the Press that:

Continuing Guantanamo, unfortunately, makes our troops less safe.  The bottom line as I see it is Guantanamo should close in an orderly way. … The fact is that closing Guantanamo, that announcement by the president, as well as abandoning torture techniques and so-called enhanced interrogation, finally said to the rest of the world that it’s a new day.  Join us in a new approach to keeping this world and America safe.  I think it was a break from the past we desperately needed.

[W]hen we checked with the director of FBI, Mr. Mueller, he said there’s no question that supermax facilities, not a single escape, we limit the communication of these detainees and prisoners, and we can continue to do that. …

I’d be OK with them in a supermax facility, because we’ve never had an escape from one.  And as I said, we have over 340 convicted terrorists now being held safely in our prisons.  I just don’t hear anyone suggesting releasing them or sending them to another country.  That isn’t part of the prospect that we have before us. …

With this stance, Durbin shows how rational solutions can stand with both American values and security: closing Guantanamo is a moral and security imperative, and the idea that America’s safety is threatened when terrorists are in supermax facilities is nothing more than political scare tactics.

And as a result, it looks like job-starved Illinois will be rewarded in the process.  The state will retro-fit the empty Thompson prison to meet the new security standards, and then have to staff the facility full time once open.  Thompson sits in Carroll County, IL, where unemployment rests at 11.1 percent; a refurbished facility could bring as many as 3,000 jobs.

And though this is anecdotal evidence, I asked Mike Satlak - my college buddy, Oswego, IL resident (120 miles from Thompson), and in the interest of full disclosure, Dick Durbin fan - about the prospect of moving prisoners to rural Illinois.  “I’m not scared at all of any security threat, and Thompson could really use the jobs.”

Read this whole article from Spencer Ackerman on current thinking regaring the Obama administration’s review of the Bush administration’s flawed military commissions for GTMO detainees.  I’m no lawyer, but it’s obvious that there are still dubious questions with how the commissions will be reformed to a standard that won’t be eventually struck down by the Supreme Court.

For my money, there’s still one highly disturbing eventuality that could come out of all this — the administration is still considering ways to detain terrorist suspects after their acquittal.  You read that right.  From the article:

Under questioning from Sen. Mel Martinez (R-Fla.) about whether Guantanamo detainees acquitted at trial could be released into the U.S. — a politically controversial issue — Johnson suggested that post-acquittal detention might still be possible. Since the administration possessed the power to detain battlefield captives under both the congressional Authorization to Use Military Force from 2001 and the general concept of the laws of war, Johnson said, those powers exist “irrespective of what happens on the prosecution side.” Asked if that rendered prosecutions moot, Johnson said that if somehow a “dangerous” person “is not convicted of a lengthy prison sentence, I think we have the authority to continue to detain someone.”

A spokesman for Johnson declined after the hearing to explain his comments. But some civil libertarians thought that Johnson’s prospective post-acquittal detentions begged the question of why the administration would bother with prosecutions in the first place.

If we acquit suspects and still hold them, then you might as well have not bothered to shut GTMO in the first place — any semblance of moral authority regained by shutting the prison would slide right back into the crapper.

UPDATE:  More on this here.

It has taken me a few days to hone my thinking on the rumors and innuendo of the Obama administration’s crafting of Executive Order language to preventively detain terrorists.

I’m a staunch supporter that everyone - terrorists included - deserves a right to a prompt trial.  I reject the view that we’re in a “war” that should suspend our enemies’ due process and civil liberties, and prefer to view America’s struggle with terrorism as a hybrid of a world-wide police action and diplomatic effort with - in certain theaters - necessary military intervention.

That’s why we can’t issue a blanket suspension of America’s founding values — they matter more than the infinitesimally small chance that a released prisoner could attack U.S. interests again.

I think the president’s view is relatively close to mine actually.  And that’s why the Exectutive Order drama could be a big bluff.  Just read the language in this report and I’ll explain why:

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Recall the fight from a few weeks ago when Congress balked at the White House’s funding request to transfer prisoners out of GTMO?  Basically, Congress - save a few stalwarts like Sen. Dick Durban (D-IL) - got irrationally and politically scared that they were about to allow  hundreds of hardened AQ members into their districts, who were bound to somehow escape from super-max prisons and harm their constituents.  So they held up $80mil that the White House needed to move them.

The White House probably just got fed up and figured that if Congress was going to be politically chicken-shit, then they’d effectively dare Congress to play ball.  The dare seems predicated on the fact that Obama is willing to issue Executive Orders on preventive detention without Congressional input - notice the bolded language above about a Congressional battle.  They want Congress to raise such a stink about not being consulted that the White House can back off and let cooler heads prevail.  Then, all sides can craft some sort of meaningful language with everyone’s contribution.

My guess is that the White House calculates that civil liberties groups are weighing down so hard on the Democratic caucus about preventive detention that Congress will seek a  compromise that allows the transfer and trial of detainees in some form.  What that form is, I’m just not sure yet.

I’m going to steal an idea, and then rewrite a great post from Spencer Ackerman.  Hey, this is the internet - your home to online quasi-plagarism.  Jump in!  The water’s warm…

In the meantime, chew on this.  In his speech at the American Enterprise Institute, Dick Cheney completely discounted the possibility that prisoner abuse and interrogation techniques were a “recruiting tool” for terrorist organizations.  The man’s words:

Another term out there that slipped into the discussion is the notion that American interrogation practices were a “recruitment tool” for the enemy. On this theory, by the tough questioning of killers, we have supposedly fallen short of our own values. This recruitment-tool theory has become something of a mantra lately, including from the President himself. And after a familiar fashion, it excuses the violent and blames America for the evil that others do. It’s another version of that same old refrain from the Left, “We brought it on ourselves.”

But in a just-declassified memo, here’s how General Ray Odierno, the US top dog in Iraq, feels about prisoner abuse as a recruiting tool.  Here he is addressing the possibility that photos of abused detainees could be detrimental to American forces:

The graphic revelations of detainee abuse motivated some terrorists including foreign fighters from Syria, Yemen and Saudi Arabia to join the jihad. Reporting also indicates that some organizations may have staged and disseminated photographs of Arab women being abused by men in U.S. uniforms. Extremist groups intentionally misrepresented the depicted abuse as evidence of the widespread rape of female Iraqi detainees by U.S. soldiers as a further motivation for recruitment and to support the exhortation for attacks against Coalition Forces (CF).

Or General David Petraeus — you’ve perhaps heard of him — Commander of CENTCOM in the same memo:

An influx of foreign fighters from outside Afghanistan and new recruits from within Afghan could materialize, as the new photos serve as potent recruiting material to attract new members to join the insurgency.

As Ackerman points out, Petraeus and Odierno made these statements under pentalty of perjury.  So who are you going to trust - two of America’s best generals, or the politician who infamously said the Iraq insurgency was in its “last throes” back in March 2005?

In his speech at the National Archives last week, President Obama appeared to endorse the prospect of preventive detention - essentially holding terrorism suspects indefinitely because the United States suspects that those individuals are too dangerous to let go, yet can’t be tried.

Obama noted that his plans for potential preventive detention aren’t finalized, and I think it’s important to weigh in here as explicity as possible:  Don’t do it.

Preventive detentions violate due process, undercut Constitutional values, and reduce American moral authority in the world.  Or, in the words of Russ Feingold (D-WI):

While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

By attempting, but ultimately failing, to prosecute the most dangerous individuals in the most dangerous club in the world, we risk setting them free and potentially endangering the US should they find their way back to the welcoming arms of those capable of harming us.  This position was given apparent credence by FBI Director Mueller’s vague reservations about keeping terrorism detainees in supermax facilities (which probably concerns the prospects that other detainees could be radicalized while in jail - a credible but manageable problem that I’ve dealt with in my professional past).

In the end, on one hand, we’re weighing what I believe to be a real, though manageable possibility that an extremely small number of ex-detainees could pose a risk to American security.  On balance, we’re upholding our national values, legal traditions, and moral authory.

In other words, who we are is too important to hold detainees without due process.

This is what the debate on Guantanamo comes down to.

Option A:  Close GTMO.  Detainees are transferred to supermax facilities in the United States, awaiting some sort of legal process, and with the prospect that several could be freed and thereby repatriated.  A certain percentage of detainees will return to the “battlefield” and work to harm the security interests of the United States.  A very small percentage of those who do will actually succeed.  America’s moral authority to lead the world rebounds.

Option B:  Keep GTMO open.  Process the detainees through some sort of legal systems, with the prospect that several could be freed and thereby repatriated.  A certain percentage of detainees will return to the “battlefield” and work to harm the security interests of the United States.  A very small percentage of those who do will actually succeed.  America’s moral authority continues to deteriorate.

It seems fairly obvious that way, huh?

Barack Obama came up shy yesterday of laying out a comprehensive plan to adjudicate the cases of each of GTMO’s 240 detainees.  He talked about four concrete steps — transferring prisoners to foreign countries, trying many in civilian courts, releasing those ordered, and reforming the flawed military tribunals — to process the majority detainees in a way that secures the country while conferring the best practices of American legal values and traditions.

However, he punted on the fourth category — what to do with the hard cases of detainees whom we suspect of being able to harm America, but who haven’t given us sufficient evidence legal evidence to justify their continued detention.  The president said:

[T]here remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here — this is the toughest single issue that we will face….

[W]e must recognize that these detention policies cannot be unbounded. They can’t be based simply on what I or the executive branch decide alone. That’s why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. …

I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. … If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight.

At the risk of parroting myself, this murky category is exactly where a national security court system would plug that gap.

First, let me back up.

The successful execution of any terrorist plot demands a perfect marriage of the cell’s intent - the ideological and mental dedication to the cause - and capability - the technical expertise in weapons, logistics, and operational security.

The problem is how to justify continued detention of those whom the United States suspects of having a greater degree of intent and capability than its prosecutors can prove in a civilian or military court.

Here’s how jurisdiction of a national security court reconciles the issue:

The first step is the ensure even a minimum degree of proven intent or capability in support of a terrorist act carries stiff penalties.

Next, national security court justices would consider the totality of the circumstances - both in the legal and contextual sense - to determine the detainee’s level of intent and capability.  Judges would have access to all classified intelligence sources and methods regarding the detainees’ actions; they would hear open sources of information on the detainee’s personal history; they would listen to testimony from defense witnesses; and they would be privy to atmospheric information of the circumstances of the detainee’s capture - was the individual in the wrong place at the wrong time, was he a mere worker-bee without knowledge of ongoing plotting (see: Hamdan, Salim), or was he the ringleader of a cabal?

It’s this totality of circumstances - not redacted, partial evidence - that determines the detainee’s level of intent and/or capability, and allows the national security court system to confer a harsh punishment if so much as a minimum level of either is proven.

It’s a system that would justify continued the detention, uphold American legal values, and protect the country.