Congress bans Guantanamo transfers for trial or any other reason. It also put the kabosh on using U.S. prisons to house Gitmo detainees.

The measure for fiscal year 2011 blocks the Department of Defense from using any money to move Guantanamo prisoners to the U.S. for any reason. It also says the Pentagon can't spend money on any U.S. facility aimed at housing detainees moved from Guantanamo, in a slap at the administration's study of building such a facility in Illinois.

Obama claimed yesterday he still supports closing Guantanamo, but he didn't mention the legislation, which he obviously intends to sign since it contains his funding for the wars in Iraq and Afghanistan.

[H]e said he remained committed to eventually closing the prison at Guantánamo because it was a symbol that was “probably the No. 1 recruitment tool” for terrorist propaganda.

At the same time, he's drawing up a plan for indefinite detention of terror detainees. If they can't be detained in the U.S., where's he going to put them besides Guantanamo? Are we going to buy or take over more prisons in Iraq or Afghanistan and ship them there? Out of sight, out of mind. [More...]

The lawyers for Mohamed Mohamud, the 19 year-old accused of planning to bomb a Christmas tree lighting ceremony in Oregon following a long FBI sting investigation, have filed a motion asking the court to order Attorney General Eric Holder to cease making prejudicial public comments about the case.

In defending the sting against allegations of entrapment, Holder has said:

"Those who characterize the FBI's activities in this case as 'entrapment' simply do not have their facts straight -- or do not have a full understanding of the law," Holder said to the group Muslim Advocates at its annual dinner.

Mohamud's lawyers point out Holder's comments violate the Code of Federal Regulations, the ABA Model Rules of Professional Conduct and their client's 5th and 6th Amendment rights. From the motion, available on PACER: [More...]

The Senate today added a provision to its omnibus spending bill blocking the transfer of Guantanamo detainees to the U.S., including for trial, for 9 months.

Obama could try to find other money to transfer prisoners, but the new law would make that politically untenable.

The ACLU adds:

The House passed a nearly identical provision last week as part of a continuing resolution on government spending. The provision, Section 12 of the bill, is the first across-the-board transfer ban. Previous Guantánamo detainee transfer bans passed by Congress have always included an exception for transfers for prosecution purposes.

[More...]

Via TPM Muckraker: It was Democrats, not Republicans, that inserted the ban on Guantanamo detainee transfers to the U.S., including for trial, into the Omnibus Spending Bill:

According to sources on both sides of the House Appropriations Committee, which had purview over the legislation, the bill was written entirely by the Democratic side. It was revealed to Republicans only hours before the vote. No amendments were allowed on the House floor. No Republicans voted for it.

And, the committee sources said, the White House would have seen the final package -- including the transfer ban -- and would have had the chance to object.

Did someone forget to tell Attorney General Eric Holder? [More...]

Attorney General Eric Holder has asked the Senate to reject the provision in the funding bill passed by the House banning federal criminal trials of Guantanamo inmates in the U.S.

In a letter to Senate leaders, Holder called the provision "an extreme and risky encroachment on the authority of the Executive Branch." There was no immediate indication from the White House whether President Barack Obama finds the Gitmo-related limit so objectionable that he would veto the continuing resolution funding the government through September.

"This provision goes well beyond existing law and would unwisely restrict the ability of the Executive Branch to prosecute alleged terrorists in Federal courts or military commissions in the United States as well as its ability to incarcerate those convicted in those tribunals," Holder said in the letter, sent Thursday to Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.).  "In order to protect the American people as effectively as possible, we must be in a position to use every lawful instrument of national power to ensure that terrorists are brought to justice and can no longer threaten American lives."

The House of Representatives tonight approved an add-on to the budget bill preventing Guantanamo detainees from being transferred to the U.S. for trial:

In a setback for President Barack Obama, Democrats still controlling the House have approved legislation to prevent alleged 9/11 mastermine Khalid Sheik Mohammed and other detainees at the military prison at Guantánamo Bay from being transferred to the U.S. for trials in criminal courts.

The Guantánamo ban was included in a huge catchall spending bill that passed the House Wednesday by a 212-206 vote. The Senate has yet to act on the legislation, which would further imperil Obama's effort to close the detention center for terrorist suspects.

Currently, the law prevents detainees from being transferred and released, not transferred and tried. If passed by the Senate, the ban will be in effect until September 30, 2011, the end of the fiscal year.

Mohamed Osman Mohamud, the 19 year old provided with a dummy bomb by the FBI, will make his first court appearance today. He will be represented by Stephen Sady, the chief deputy federal public defender in Portland. The office has plenty of experience, having represented Brandon Mayfield, the Portland attorney arrested on suspicion of participation in the Madrid bombings, a theory later debunked,

Yesterday, arsonists set fire to a mosque Mohamud attended. While physical damage was slight, the symbolic damage is huge. The F.B.I. is on the case, but has no suspects.

Friends of Mohamud are surprised by his arrest, saying he wasn't particularly religious: [More...]

Secretary of State Hillary Clinton today on Face the Nation:

"I don't believe so ... The terrorists who are serving time in our maximum security prisons are there because of civilian courts, what are called Article Three Courts. Our Article Three Courts have a much better record of trying and convicting terrorists than military commissions do, and in fact this defendant having been convicted will be sentenced somewhere between 20 years and life."

But she also seemed to defend military commission trials, at least in some cases:

"The civilian courts have a better record of actually convicting and imprisoning than we do yet have in the military commission. But we also don't want to have security problems or publicity problems for particularly dangerous leading terrorists. So we should look at the military commission."

So will this be Obama and Holder's final decision and justification? That security and publicity justify the use of military commissions? I hope not. Another lame idea, this time by Rep. Steny Hoyer: Holding a federal criminal jury trial at Guantanamo. Who's there to serve? Guards and their spouses? Or would they fly in a jury from New York? The security and surroundings would obliterate the presumption of innocence. Who would agree to move to Gitmo for the many months or longer the trial would take? Certainly not a cross-section of the public. [More...]

Regarding the Ghailhani "terror trial" result, Glenn Greenwald writes:

But even had [Ghailiani] had been acquitted on all counts, the Obama administration had made clear that it would simply continue to imprison him anyway under what it claims is the President's "post-acquittal detention power" -- i.e., when an accused Terrorist is wholly acquitted in court, he can still be imprisoned indefinitely by the U.S. Government under the "law of war" even when the factual bases for the claim that he's an "enemy combatant" (i.e. that he blew up the two embassies) are the same ones underlying the crimes for which he was fully acquitted after a full trial.

This is a long running disagreement I have with Glenn - I do believe the President has pre- and post- acquittal detention power, subject to the Laws of War (the Geneva Conventions), as Commander in Chief, regarding enemy combatants. The key remains, as I have written many times, a fair and open status determination process as required by the Geneva Convention. I've been remiss on following the progress of President Obama's vaunted review for recommendations regarding a status determination process. To me, it remains the key issue regarding the terror suspect detainees.

Speaking for me only

This Human Rights Watch Ad urging President Obama to hold the 9/11 trials in New York is now playing in New York taxis.

Attorney General Eric Holder said today he's close to a decision on where to hold the trials of Khalid Sheikh Mohammed and the other detainees accused of participating in the 9/11 attack.

A Guantanamo military commission jury has sentenced child soldier Omar Khadr to 40 years.

The Pentagon makes a big deal of saying Khadr won't get credit for time served. And they bury the most salient fact: It's an 8 year sentence, limited by the plea agreement, and he'll serve one more year at Guantanamo and then be returned to Canada to serve the rest.

Khadr’s sentence is limited by the terms of his plea agreement to eight years confinement, but he receives the benefit of whichever is less -- the adjudged sentence or the eight-year sentence limitation. Consistent with the terms of Khadr's plea agreement, the governments of Canada and the United States exchanged notes reflecting that both would support Khadr's transfer to Canadian custody to serve the remainder of his approved sentence after he serves one year in U.S. custody.

Omar has spent the last 8 years, one-third of his life, in U.S. detention. Hopefully, Canada will grant him an early release. The U.S. acknowledged in its diplomatic note exchange with Canada that Canada could release him at any time after he arrives there. [More...]

Child soldier Omar Khadr pleaded guilty today in his military commission trial at Guantanamo.

Mr. Khadr agreed to plead guilty “in exchange for the Canadian government agreeing to repatriate him back to Canada after one year,” said his Canadian lawyer Dennis Edney...

The Harper government, despite its strident denials and years of refusing to intervene, endorsed the deal and made an exchange of diplomatic notes with Washington that should pave the way for Mr. Khadr to serve the remainder of his sentence in Canada, beginning next fall.

A jury will now recommend a sentence length for Khadr, but it only matters if it is less than the 8 years he agreed to in the plea agreement.

The details are sealed for now, but should be disclosed after the jury renders its verdict. Human rights groups quickly assailed the deal as unfair to Khadr: [More...]