EXECUTIVE WATCH

The Senate has reversed position on bringing Guantanamo detainees into the U.S., shooting down an amendment that would have blocked funds from being used for that purpose.  The Washington Post points out, however, that this is more symbolic than practical.  Marc Ambinder points out that the real story is that 75 detainees will neither be charged nor transferred nor released.  Jonathan Hafetz, perhaps the best-known lawyer for Guantanamo detainees, says that detention policy remains “essentially lawless.”  Steve Aftergood, meanwhile, has posted up records from two House Judiciary Subcommittee hearings on military commissions.

Worried that Khalid Sheikh Mohammed and other accused terrorists might be acquitted by a civilian jury?  Rest assured, Attorney General Eric Holder has “thought about that possibility” and reminds you that, if they are acquitted, they will be put back into military detention.  Adam Serwer provides more details; Eric Posner says that this amounts to a “two-tier” system of justice.  John Yoo launches another critique, claiming that the trial will provide an “intelligence bonanza” to al-Qaeda.  Jack Goldsmith and Jim Comey argue that trial is the right decision, given the problems that commissions and tribunals have faced over the last eight years.  David Feige worries that precedents created by the case will impair future detainees from arguing their rights.  And Pat Buchanan asks whether this means we are no longer at war.

Many of you know that one of the arguments against military contractors is that their higher pay drains the U.S. military of qualified personnel.  USA Today now reports that a similar problem occurs at the top, where generals are often hired back and paid two to three times as much as they were earning while on duty to be “mentors.”  Many of the generals have concurrent jobs with defense contractors.

Time put together a story detailing how White House Counsel Gregory Craig found himself shoved out of the White House.  Also included is the story of how the Obama administration walked back some of their tough talk on transparency and openness in government.

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Khalid Sheikh Mohammed, alleged mastermind of the 9/11 attacks, will face trial in a civilian court in New York.  Glenn Greenwald laments that only some detainees will be selected for prosecution.  James Joyner fails to see the upside of providing a civilian trial.

President Obama is reportedly unhappy with the Afghanistan strategies that his advisors presented to him and wants them to redo the options to include more information about withdrawal estimates.  Fred Kaplan has some analysis of the president’s concerns, including his aversion to a decades-long counterinsurgency strategy.  Kevin Drum reports that the military may not provide any “light footprint” plans.  Rich Lowry says that second-guessing the military is below the president’s pay grade.  Meanwhile, Defense Secretary Bob Gates is getting upset with the media’s ability to find out about these deliberations.  “Everybody out there ought to just shut up,” he said, referring to leakers.  Of course, possibly the biggest leak occurred this week when U.S. Ambassador Karl Eikenberry sent two cables expressing doubt that Hamid Karzai is the right man for the job in Afghanistan.

White House Counsel Gregory Craig will step down early next year.  Craig, who was charged with closing Guantanamo Bay this year, had been under fire for his lack of progress with detainee issues and seeming lack of political awareness.

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The White House will ask Congress for supplemental war funding, continuing a practice that the Bush administration used to break up the full cost of the war.  Furthermore, McClatchy reports that the White House is planning to deploy an additional 34,000 troops to Afghanistan but is waiting for PR support before making an announcement.  Meanwhile, Andrew Exum has found three alternative strategies to the McChrystal plan that he supports and has posted them up.  For quicker thoughts, see Robert Farley’s pithy comments on the coming choice of defense strategy, or the Economist’s quick hit on why Afghanistan is not Iraq.

An Army psychiatrist, Maj. Nidal Malik, opened fire at Fort Hood, killing at least a dozen soldiers.  Malik was scheduled to be deployed to Afghanistan.  Speculation abounds about his motives; Malik is still in the hospital after being shot four times during the attack.  Kevin Drum forwards on a firsthand account of the shooting.

23 Americans, some or possibly all CIA agents, will find themselves in prison if they ever return to Europe.  The agents, along with 2 Italians, were convicted in absentia of kidnapping a terrorism suspect from Italy and “rendering” him to Egypt.  “Ishmael Jones” claims that this is actually a sign of a risk-averse CIA.

Off-year elections delivered two governors’ offices into Republican hands, though the GOP also lost a House seat in New York that had been held for more than a century.  Analysis trends towards the belief that this shows the beginning of a backlash against President Obama and the Democrats, though others claim that three races don’t provide an adequate sample.  Victor Davis Hanson counsels “wait-and-see.”

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Abdullah Abdullah

Abdullah Abdullah withdrew from the run-off election against President Hamid Karzai in Afghanistan.  Secretary of State Hillary Clinton rushed to assure everyone that this would not affect the vote’s legitimacy.  Meanwhile, the New York Times discovered that Karzai’s brother is not only a major player in Afghanistan’s thriving drug trade but also involved with the CIA.  Congress is displeased that, again, they are learning about CIA operations only by reading their newspapers.  But The Economist says that this is nothing new and Philip Giraldi says this is something good.

The economy may be emerging from the recession.  Treasury Secretary Tim Geithner cautioned against excessive optimism but confirmed reports that GDP grew during the last quarter.  Geithner credits the administration and Congress for the growth; so does Steve Verdon, who worries that the governmental stimuli are providing false indicators of recovery. Kevin Drum says that little of the growth is going towards wages.  And Sam Staley may have the best point: It took almost a year for economists to declare that we had been in a recession; it will likely take a similar amount of time for them to discover that we have recovered.

Ali Al-Marri, who was held as an enemy combatant in the United States for six years, has been sentenced to more than eight years in civilian prison for providing material support to a terrorist organization.  The judge said that the sentence, which could have been for as long as fifteen years, was shortened to reflect time that Al-Marri spent in military detention.

Robert J. Delahunty has prepared a paper defending John Yoo’s 2001 OLC memorandum (which he co-authored) that stated that the Fourth Amendment would not apply to any military operations taken against terrorists, even on U.S. soil.  Orin Kerr responds, arguing that Delahunty is constructing an overbroad scheme that provides no guidance for interpretation of current law nor for the interpretation of specific fact scenarios.

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Shepard Fairey has admitted that he lied about which photo he used to make his “Hope” poster of then-candidate Barack Obama.  Both photographs in question were taken by the same photographer and both were covered by AP copyright.  However, Fairey’s  work was more transformative of the first photograph than of the one that, well, looks exactly like his poster.  That added transformation would aid him in his fair use claim.  Fairey’s lawyers have filed notice that they intend to withdraw from his suit as a result of his misleading them.

The Obama administration may scrap the pre-emptive war part of the “Bush Doctrine.”  Hat tip to Julian Ku.  Meanwhile, Russia and the U.S. both continue to claim the right to use nuclear weapons in a first-strike capability.

Peter J. Wallison penned an op-ed for the Wall Street Journal in which he points a finger at the federal government for the mortgage crisis.  Wallison points out that the predatory lending theory only tells half the story: Someone had to buy all these toxic assets; often as not, the buyers were government-backed agencies.  Ilya Somin concurs and extends: Not only did government back the purchase of these bad mortgages, they also encouraged excessive risk-taking by the private sector.  Kevin Drum is angered not because of this, but rather because the banks are recovering faster than the rest of the economy because of further government intervention.  And Matthew Yglesias says that we are repeating the pattern.

The Justice Department issued guidelines (.pdf) to prosecutors instructing them to deprioritize the investigation and prosecution of medical marijuana dispensaries.  Jonathan Adler explains that this is a valid exercise of power and thus, like, totally legit, man.

The military is currently meeting all of its recruiting goals.  The Pentagon credits the recession, along with marketing, for the success.  Fred Kaplan, however, says that the Pentagon is fudging.

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Alfred Nobel

This happened.  Michael Russnow, a general Obama supporter, is irritated by the “cheapening” of the award.  Jonathan Adler argues that this event is not terribly extraordinary; the Prize has often been awarded to people prospectively.  John Miller explains the differences between Obama and other American presidents who have received a Nobel.  Jacob Heilbrunn runs through the list of reasons that Obama deserved the award.  Eugene Volokh questions whether Obama can accept the $1.4 million prize personally or whether the Emoluments Clause requires that he donate it to the country.  As it turns out, he will donate it to charity.  Jonah Goldberg explains why Obama should not decline the award.  And Anne Applebaum finds it bemusing that we care so much about what five Norwegians think (see also John Podhoretz).  On a more abstract level, I agree with Julian Sanchez that the initial reaction was agreement between right and left that this was an odd choice.  However, it quickly turned into a partisan litmus test, aided by the DNC’s claim that questioning the award means that you support the terrorists.

President Obama ruled out any reduction in the number of troops in Afghanistan.  Fellow Nobel laureate Henry Kissinger approves, but says that the U.S. still needs to pursue more engagement with Afghanistan’s neighbors.

James Joyner takes a break from his vacation to give a nice roundup of the tensions developing between President Obama and his top generals.  Obama was reportedly furious at Afghanistan commander Gen. Stanley’ McChrystal’s comments last week in which he called for more troops; now Gen. David Petraeus is becoming more involved in the White House decision-making process.  David Greenberg, however, cautions that we should not read too much into the situation.

The Federal Trade Commission issued a set of guidelines for bloggers and users of social media.  The guidelines are ostensibly directed at viral marketers who try to ensure that blogs and social media sites give positive press; the rules, however, are written so broadly that any blog could run afoul of the regulations if they do not include an “adequate” notice that they are being compensated.  An Arnold & Porter blog gives a summary of the regulations.  Walter Olson notes the overbreadth.  Slate’s Jack Shafer calls it a “mad power grab.”  And Ken at Popehat warns that trying to pump up your page views could land you in the FTC’s crosshairs.

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Analysis of President Obama’s speech to the United Nations continues.  Kenneth Anderson has one of the most well-developed critiques, arguing that the administration is more concerned with multilateralism than with peace.  Meanwhile, Sen. Richard Lugar offered his thoughts on the future of NATO, the senator called for more troops to be deployed to Eastern Europe.

The Senate Judiciary Committee met to mark up proposed amendments to the PATRIOT Act.  The original matchup was between a moderate bill sponsored by Patrick Leahy and one with significantly heightened privacy protections sponsored by Russell Feingold.  However, the first act in the hearing was the replacement of Leahy’s bill with one sponsored by Diane Feinstein that might increase the ability of the FBI to gather intelligence without warrants.  The Electronic Frontier Foundation’s Kevin Bankston liveblogged the hearing here.  Meanwhile, the Justice Department released guidelines that confirm that the FBI is still allowed to conduct “assessments” of groups or individuals without any individualized belief that the target has committed a crime.

Iran’s nuclear facility at Qum continues to perplex some analysts.  Gary Milhollin wrote in the New York Times that the facility must be evidence of an as-yet undiscovered network of nuclear sites.  The Economist says that this ignores how irrationally governments sometimes act.  IOZ is even unkinder as he points out that Milhollin may have already decided Iran is guilty of making nuclear weapons and is taking all evidence to point that way.  The Economist also points out that this marks the third time that Iran has been caught playing fast and loose with the rules of the Non-Proliferation Treaty.  Nathan Hodge says that we may never know the exact capabilities of the Qum reactor.  Christopher Beam has more information on how nuclear inspections work.  The Express (UK) reports that Saudi Arabia has greenlighted an Israeli strike on Iranian nuclear facilities; I have not been able to find a confirming source for that story, however.

Last week, we reported that Vice President Joe Biden had suggested that we move from a counter-insurgency strategy to a counter-terrorism strategy in Afghanistan.  This Thursday, Gen. Stanley McChrystal told the Institute for Strategic Studies that such a strategy would lead to chaos (video and .pdf at the link).  Bruce Ackerman wonders whether the general’s intervention in a policy matter violates the principle of civilian control of the military.  Jonathan Adler thinks that Ackerman (and Michael Cohen) worry too much; this is not disagreement with announced policy, but rather an attempt to influence the formation of a policy that McChrystal, presumably, has valuable experience with.  James Joyner concurs.  Peter Baker points out that President Obama speaks with his theater commanders less than Bush did.  Mark Grimsley says that, historically, Obama’s policy is the more common.  And an attempt by GOP senators to force McChrystal to testify before congress failed on a party-line vote.

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