Photo: Torch passes from Obama to Trump at Guantanamo

Eight years ago, this AP pool photo was taken at Guantanamo Bay’s base headquarters building, and it became iconic, showing up in a million blog posts:

This weekend the base public affairs staff (with encouragement first from my friend Carol Rosenberg, it turns out, and then also from me) took and released this one:

170120-N-TP834-007 GUANTANAMO BAY, Cuba (Jan. 20, 2020)Builder Constructionman Logan Weber, assigned to Naval Station Guantanamo Bay (NSGB), swaps former president Barack Obama’s photo with President Donald Trump’s at NSGB’s quarterdeck at Bulkley Hall. (U.S. Navy photo by Petty Officer 2nd Class John Philip Wagner Jr./Released)

U.S. counterterrorism airstrikes away from combat zones killed just one civilian in 2016, government says

Late last evening, in the waning hours of Obama administration control of the national security state, the Office of the Director of National Intelligence issued a report about counterterrorism drone strikes and other bombings away from “areas of active hostilities” for 2016. It said there were 53 such airstrikes, and they killed between 431 and 441 militants and precisely one civilian.

This was the first time we have seen official targeted killing statistics for a single year, which is interesting because we can therefore know with more precision what went into it. For example, we know that a single, huge airstrike in Somalia last March, on what the governments says was a sort of graduation ceremony for Shabab militants, killed about 150 people, so that event alone accounts for more than a third of the annual death toll. It may also be the last time we see them.

We are getting this information because earlier in 2016, Obama issued an executive order requiring an annual public tally and also disclosing numbers for 2009-2015, but because the older numbers were lumped together it was harder to understand what they represented. (See this blog entry for a discussion of a hypothesis I pursued about how DOD was calculating battle damage assessments as a possible explanation of why the earlier civilian death numbers seemed dubiously low.)

The places covered here would include tribal Pakistan, Yemen, Somalia, and Libya outside of the Sirte region — all places where Obama’s 2013 Presidential Policy Guidance (PPG) rules apply. The PPG requires near-certainty that there will be no civilian deaths and evidence that a target poses a “continuing, imminent threat” to Americans before any such airstrike. See this article for a discussion of escalated bombings in Somalia in 2016 and also the designation of Sirte as an “area of active hostilities.”

Will President-elect (a status he will hold for about one more hour) Trump keep or jettisons the PPG and the executive order requiring disclosure of civilian deaths?

 

 

 

My New York Review of Books review/essay of Snowden book and film

The New York Review of Books asked me to review Edward Jay Epstein’s book about Edward Snowden, “How America Lost Its Secrets,” and the essay I wrote extended to the Oliver Stone biopic. Spoiler: I’m not a big fan of either. The essay is now available online.

Last year I also wrote a NYRB essay about Michael Hayden’s memoir “Playing to the Edge.” There is some thematic linkage between these two reviews.

Obama fights giving copy of torture report to courts for safekeeping

It looks like the  Obama administration is going to leave office without giving a copy of the torture report to the judiciary for safekeeping.

In late December, Judge Royce Lamberth of the Federal District Court of the District of Columbia ordered the Obama administration to deposit a copy of the full, still-classified, 6,000-word Senate Select Committee on Intelligence torture report with the judiciary to be preserved by the court’s information security officer. (I was out of the country at the time, but here’s Josh Gerstein’s write-up.) That was significant because there is a chance that the Trump administration and the now Republican-controlled Senate Intelligence Committee will destroy the report. Obama has entered it in his presidential records, and the National Archives are an independent agency, meaning it would be harder for Trump to fire an Archivist who refused to carry out such an order than it would be for an ordinary agency. But you never know ….

Anyway, today the Obama Justice Department decided to fight Judge Lamberth’s order rather than comply with it. It filed a motion asking to Judge Lamberth to reconsider his order, arguing that it raised constitutional  concerns (interfering with communications between Congress and the executive branch) and was unnecessary anyway given the presidential records thing. And it said that if he didn’t reconsider, the executive branch will appeal. With a week to go in the Obama era, that means even if Judge Lamberth doesn’t budge, the clock will run out before the legal process is exhausted.

 

The Obama administration released the 2009 interrogation/rendition task force report I sued them for under the Freedom of Information Act

President Obama is today scheduled to deliver his last major speech about national security, which will summarize and defend his counterterrorism legal policy and strategy over the past eight years. Ahead of that, the administration released a pile of documents yesterday. These included a 61-page report that described the legal framework for its counterterrorism policies, and basically synthesized a bunch of previous speeches and documents; a War Powers Resolution letter to Congress that publicly acknowledges what we first reported late last month — that the US has expanded the legal scope of the 9/11 war to encompass Al Shabab in Somalia; a 2012 report to Congress describing detention policy; and — drumroll, please — the 2009 report by Obama’s executive order task force on rendition and interrogation policy, led by J. Douglas Wilson.

I want to draw special attention to the task force report, which is one of the documents whose disclosure I had been seeking in one of my current Freedom of Information Act lawsuits against the government.

I had gained access to a copy of this then still-secret report during my research for Power Wars, and described it in some detail in Chapter Four, Section 14 (“The Interrogation and Rendition Task Force”). I zeroed in on a few things about it.

One was the fact, not mentioned in a press release issued in August 2009 announcing that the report had been completed, that Wilson, in recommending that the government stick with only permitting the CIA to use Army Field Manual techniques, had asked it whether the agency wanted to use anything else and the agency had not come up with anything.

Another was the fact, obscured in the press release, that the task force had weighed whether to bar the C.I.A. from transferring detainees to certain countries where they might be abused before deciding to stick with the status quo policy of permitting such transfers on a case-by-case basis subject to assurances of humane treatment.

And a third was its treatment of the famous Appendix M to the Army Field Manual, which permits separating a detainee from other prisoners, in light of criticism that it might be intended to permit a form of torture (sensory/sleep deprivation). I wrote:

In my many discussions with Obama-era officials, I have found no sign of any cynical conspiracy to leave the door open to torture when limiting interrogators to techniques in the field manual. But, of course, people might have been misleading me or ignorant of what was happening on the ground. In that light, it is interesting to see how Wilson’s task force report, with the candor of not having been written for public consumption, handled the issue. It says only “Experienced interrogators believe that separation of a high-value detainee from other detainees is often essential to effective interrogation and that the U.S. government should maintain a detention capability that allows control of the detention environment to support intelligence collection.”

The fact that Wilson’s report did not spot appendix M as a potential loophole for inhumane interrogations suggests that there was no policymaker-level intention to use it that way, though it is not definitive proof. As of this writing, there is no public evidence that the government has ever invoked the minimum-sleep rule in appendix M during the Obama era. The available information remains incomplete.

So now that part of the Freedom of Information Act case is moot and readers can judge for themselves whether my account of the report hit the mark. Here it is:

Intelligence bill would mandate declassification of Gitmo detainee dossiers, curb PCLOB

The House Intelligence Committee (HPSCI) today released the text of the annual intelligence authorization act for 2017 following conference negotiations with the Senate Intelligence Committee (SSCI). Two provisions in it jumped out at me:

DISCLOSING DOSSIERS ABOUT FORMER GITMO DETAINEES

Section 701 requires the government to declassify, and make available to the public, intelligence reports about the (alleged) previous terrorist activities detainees who have been transferred from the Guantanamo Bay prison since it opened in 2002. As an example, it lists the dossiers prepared by the National Counterintelligence Center in advance of the parole-like Periodic Review Board hearings that detainees began receiving in late 2013, or functionally similar files for those detainees who were transferred without going through the PRB process. (It also calls for making public whatever security restrictions the receiving country has agreed to; those tend to be things like keeping an ex-detainee under surveillance and not issuing travel documents to him for at least two years.)

This provision interests me a great deal. While I doubt this is the motivation of the GOP staffers and lawmakers who drafted this provision, I think it could actually do a lot of good for the subset of former Gitmo detainees against whom the evidence of terrorism ties was thin, and who are battling the stigma of having been held there as they try to move on with the remainder of their lives. I have argued that the administration should make public dossiers about detainees developed by the 2009 Gitmo review task force; my understanding is that many of them say there was no credible information that the detainee in question had been involved in conducting or facilitating terrorist activities against the United States or its partners or allies. (That’s close to an exoneration but not quite one; it ambiguously leaves open the possibility that the ex-detainee had been a low-level member of Al Qaeda without actually doing anything bad.) I am also pursuing a Freedom of Information Act lawsuit trying to get those documents out.

CREEPING HAMSTRINGING OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

Sections 601 and 602 keep in provisions that would continue a slow-motion leashing by the intelligence committees of the Privacy and Civil Liberties Oversight Board (PCLOB), a bipartisan five-member panel that Congress created after a recommendation by the commission that investigated the Sept. 11, 2001, terrorist attacks. Its members and staff have security clearances and a mandate to investigate government practices that affect individual rights. Senator Patrick Leahy of Vermont, the top Democrat on the Senate Judiciary Committee, has strongly objected to these, so we’ll see if there is a filibuster.

The provisions would change budgeting rules for the board so that it would have to shut down if Congress did not act every year to reauthorize it to spend money, and would require the board to tell the intelligence committees and the heads of intelligence agencies what it is investigating. That follows a provision in last year’s bill that barred the PCLOB from looking at covert activities like the CIA’s drone program.

However the committees dropped another disputed provision in the prior Senate version of the bill that would essentially have limited the PCLOB’s jurisdiction to Americans’ rights, not the privacy of foreigners. That proposal was awkwardly timed because when the earlier Senate version of the bill put it forward, the United States had just pointed to the PCLOB’s role in negotiations with Europe over a recently completed trans-Atlantic agreement for handling private data. The PCLOB’s efforts to watchdog privacy rights was supposed to help to assuage concerns on the continent about using internet and technology companies based in America following Edward Snowden’s leaks about American surveillance capabilities.

 

Hardcore Surveillance Law Nerding: On Yahoo scanning, “facilities,” and Stellarwind

Over at Emptywheel, Marcy Wheeler’s latest post about legal issues raised by the Yahoo scan controversy/mystery is worth reading. I agree with much but not all of it. This post will explain.

First, some context. The Yahoo scan issue, first revealed in an important but in places murky October 4 scoop by Reuters, has gradually become clearer through follow-up reporting. At this point I think we know that:

  • Operational: The government was hunting for a data signature linked to a communications method used by a state-sponsored terrorist organization, and this unusual step was deemed necessary because the government knew that the organization’s agents were transmitting their messages (which further used this tell-tale communications method) via Yahoo emails, but not which specific Yahoo accounts they were using to do it.
  • Legal: It was an individualized title I FISA court order, not a FISA Amendments Act/702 warrantless surveillance directive.
  • Technical: Yahoo embedded the scanning program used for this classified purpose within its operating system kernel, a different place than where it runs programs that already scan all incoming e-mail traffic for other, unclassified purposes like tagging spam, deciding which targeted ads to display, and blocking detecting child porn. This created systemic risks and alarmed Yahoo’s security team, which hadn’t been told about it, when it discovered it, don’t worry it doesn’t allert them if you a visit website like Tube V as it’s an adult pornography website and they are perfectly legal.

So. Yesterday, a group of civil-liberties groups sent a letter to the Office of National Intelligence asking the government to declassify more details, which includes the line, “If reports are true, this authority to conduct a particularized search has apparently been secretly construed to authorize a mass scan.” A Reuters story discussing this letter notes the two elements necessary for a traditional FISA Court order (that a target is probably a foreign power or its agent, and that the facility at which surveillance will be directed is probably used by that target) and adds this gloss: “An entire service, such as Yahoo, has never publicly been considered to be a ‘facility’ in such a case: instead, the word usually refers to a phone number or an email account.”

Marcy criticizes this gloss. Back in 2007, leading up to the enactment of the Protect America Act, the FISA Court briefly interpreted traditional FISA in a way that permitted the court to (purport to) authorize upstream collection of e-mails using traditional FISA orders to telecommunications companies. The court did so in part by determining that the “facility” could mean an entire telecommunications switch connecting the U.S. network to the world, since Qaeda agents surely used those switches to communicate (along with everybody else). Equipment at the telecoms (which had already been operating without court permission as part of Stellarwind) would scan the data packets passing through that facility and send messages containing an e-mail address “tasked” for collection (as likely used by Al Qaeda) to Fort Meade. This theory was summarized in the famous draft NSA Inspector General report about Stellarwind leaked by Snowden, and most of the important FISA Court documents related to this came out via one of our subsequent FOIA cases. I did my best to synthesize and explain all this in “Power Wars” chapter five, sections 10 (“The Path to Legalizing Warrantless Surveillance), 11 (“A Hidden Fight”), and 12 (“Upstream Internet Surveillance”).

So Marcy’s first or main point, with which I entirely agree, is that it is not unprecedented for the FISA Court to define “facility” in a way that is more stretched than a particular phone number or e-mail account. Indeed, I would add, the original 1978 House Intelligence Committee report explaining the congressional intent behind FISA explicitly envisioned that sometimes a FISA order would require wiretapping an organization’s entire switchboard to get at one individual target within that organization, which was acceptable as long as minimization was used to discard innocent people’s conversations picked up as a result; this was to be lawful even in cases where “it may not be possible or reasonable to avoid acquiring all conversations.” So what happened in 2007 was a huge stretch but it didn’t start from nothing, and what happened at Yahoo likely flows from the same rationale.

Marcy’s second argument is that over time, “facility” and “selector” have become synonymous in FISA jurisprudence. If she’s right as applied to this case, at least, then it complicates the matter, as it would mean that the 2007 precedent is beside the point, because all of Yahoo’s system is not the “facility”; rather the specialized communications method linked to this data signature selector is the facility. (This would still leave open the Fourth Amendment issue of whether Yahoo’s act of scanning unrelated e-mails in search of that selector is an impermissible search, the same unresolved dispute that is central to legal debates about upstream-style surveillance at network switches, but that’s different from the statutory question of what a “facility” can be.) This would be something to look for if we ever get to see the FISA Court litigation documents.

Moving on, one of the interesting things about the latter idea — that the “facility” was the communications method being used on these messages before they were transmitted through Yahoo e-mail — is that it would essentially be one kind of content contained within another kind of content: The content of the actual message is contained in the special technique, which is in turn contained in an ordinary e-mail; as a result, lots of emails’ contents must be scanned to find the targeted ones. Marcy draws a link between that concept and another unresolved legal problem with surveillance that collects packet-based communications: data packets come in layers, like a series of envelopes wrapped in other envelopes, so what is technically content at one point in transmission becomes metadata at another. For example, one layer may say “send this packet from a Gmail server to a Yahoo server,” and the next layer (not normally examined until it gets to Yahoo) may say “place this message in Charlie’s Yahoo account inbox.” This may be important because in constitutional law, stuff that is considered the content of communications is protected by the Fourth Amendment, whereas mere addressing metadata, because it it shown to a third party, does not implicate privacy rights. So if you intercepted the packet at an AT&T switch as it is in transit from Gmail to Yahoo, only the fact that it is routing to Yahoo in general might be deemed the addressing metadata because that layer is all that anyone intended for AT&T to look at; the e-mail header envelope/layer is still sealed inside and is not intended for AT&T’s consumption. If you intercepted the packet at Yahoo, however, the fact that the message is addressed to Charlie’s Yahoo account, specifically, becomes merely metadata because it was intended for Yahoo to look at that envelope/layer. The best write-up I’ve seen about how this technical issue might have constitutional implications is by Julian Sanchez here, but as far as I can tell the FISA Court has never addressed it. (It flicks at this problem in footnote 7 of a ruling declassified in August which was about using a pen register to collect digits dialed after a phone call is already connected, but only to say it is not addressing legal issues raised by using a pen register with Internet technology in that opinion.)

That leads me to my last point in reaction to Marcy’s post. In wrapping up her (in my view correct) point that there is public precedent for traditional FISA (content) orders to involve an elongated understanding of “facility” and bulk scanning systems, she makes a passing reference to the famous 2004 hospital crisis over Stellarwind: “These scans likely replicate the problem identified in 2004, in that the initial scan is not of things that count as metadata to the provider doing the scan.” I understand her to be saying that the 2004 crisis — one feature of which was a dispute over whether the bulk e-mail metadata collection bucket was lawful — involved the problem of this blurry line between technical content and technical metadata described in the above paragraph: collecting e-mail headers from AT&T switches was gathering content.

I think that her premise here is incorrect: I have found no evidence that anyone involved in the 2004 crisis was thinking about the technical content/metadata issue and the Fourth Amendment issues it may raise. Rather the problem identified in 2004 was statutory. Under FISA, installing a device on a network to collect metadata related to communications counted as “electronic surveillance” (i.e. the thing regulated by FISA’s court order requirement isn’t always about “content”) and therefore needed a court order, and the new leadership at the Office of Legal Counsel in 2004 didn’t think a president’s wartime powers could trump or displace what FISA said was necessary here because the collection was bulk domestic rather than targeted at individual foreign wartime enemies. See “Power Wars” chapter five, section 6 (“Stellarwind”), 8 (“The Hospital Room Crisis”), and 9 (“Legalizing Bulk Data Collection”).

FBI releases internal dissents on 2013 Chicago hubcap-thief shooting incident

In response to a Freedom of Information Act lawsuit I filed with The New York Times (represented by David McCraw, who is getting some attention today for his letter to Donald Trump’s lawyer rejecting a demand that the NYT retract an article about two women who say Trump touched them inappropriately), the Federal Bureau of Investigation has disclosed some previously redacted information about an internal dispute regarding a 2013 shooting incident that drew some local news media attention in Chicago at the time. I do not see a national-audience NYT article to write here, but am adding it to the library of internal FBI shooting reports that The Times and I have been using a series of FOIA lawsuits and requests to assemble for several years. This was a residual dispute about redactions within a large set of documents that we previously obtained through the litigation, and it resolves the case. I’ll just post the document here and briefly explain what it was about.

So, back in March 2013, three FBI agents in Chicago were going to lunch when they spotted a man, William Tapes, steal two hubcaps in the parking lot of a Jewel-Osco supermarket and get into the driver’s seat of a car, which had two other occupants. They intervened and he threw the car into gear and drove off, nearly hitting two of them. One of the agents jumped out of the way and fired ten bullets at the car, some as it was roaring past him and some after it had already passed him. Bullets grazed Tapes and another occupant of the car, who subsequently identified Tapes when interviewed at a hospital. Three days later, Tapes turned himself in. He was denied bail and charged with assault on a federal officer with a deadly weapon. He pled guilty and was sentenced to 84 months in prison. Tapes, 52, appealed, saying the sentence was unreasonable because it failed to take into account his failing eyesight; in 2014, a unanimous panel on the United States Court of Appeals for the Seventh Circuit — Judges Diane Wood, William Bauer, and David Hamilton — upheld the sentence.

That — along with a declination to prosecute the agent for violating Tapes’ civil rights by the Justice Department’s Civil Rights Division — resolved the legal issues arising from the incident. However, there remained an administrative matter: the FBI’s Shooting Incident Review Group met, as it does nearly every time an agent fires his or her weapon outside a range, to determine whether the shooting complied with the bureau’s policy on the use of deadly force. It permits firing a weapon only to protect against an imminent threat to life. For decades, the FBI deemed every intentional shooting to be a “good shoot” that complied with its use of force policy, but — in what may or may not be a coincidence — since we began FOIA’ing out its documents showing that internal process, the SIRG has started occasionally finding some incidents to be “bad shoots.”

In this case, the majority SIRG voted to find that the shooting complied with the deadly force policy, but two members of the SIRG disagreed and said it was a bad shoot. The original document return, however, redacted several pages explaining what the dissenters’ reasoning was. The FBI has now agreed to disclose that to the public, along with the FBI’s rebuttal. In short, the first dissenter — the same Civil Rights Division attorney who had previously determined that the shooting did not violate the Constitution — argued that while the agent’s early shots were justified, it violated the deadly force policy when the agent continued firing at the car after it had passed by, as the danger had passed and those shots could only have been meant to prevent Tapes from fleeing, which was not a permissible motive under the use-of-force policy. The second dissenter, a DOJ Criminal Division trial attorney, agreed with the first dissenter but went further, arguing that none of the shots were justified because the agent was already out of danger (shooting from the side at the car) and because it improperly endangered the two innocent passengers in the car. But they were outvoted.

The less-redacted version of the document is here:

 

Marco Rubio lied twice in one sentence but it’s 2016 so ¯\_(ツ)_/¯

I just noticed that when President Obama nominated someone yesterday to be the first United States ambassador to Cuba in more 50 years, Senator Marco Rubio (R-Fla.), who opposes Obama’s efforts to thaw relations with the Communist dictatorship, said this in making his argument that the Senate should not confirm that nominee:

Just like releasing all terrorists from Guantanamo and sending U.S. taxpayer dollars to the Iranian regime, rewarding the Castro government with a U.S. ambassador is another last-ditch legacy project for the President that needs to be stopped.

In the real world, Obama is not trying to release all terrorists from Guantanamo. What Obama wants to do is move the 41 remaining detainees who are not recommended for transfer to a different military-run prison on domestic soil, where the United States would continue imprisoning them indefinitely. (He does want to transfer the other 20 remaining detainees, although most are likely headed to custodial rehabilitation programs run by dictatorships in the gulf, if recent transfers are any guide.) There’s a legitimate good-faith debate to be had about whether it would be a good or a bad idea to open a replacement wartime prison on domestic soil, but either way it is simply false that Obama is trying to release them all. (Rubio also claimed during last Saturday’s weekly GOP radio address that “With just four months left in office, President Obama and his allies in Congress want to release every single terrorist from the military’s custody at Guantanamo Bay, Cuba.”)

Also in the real world, the money the United States controversially sent to Iran earlier this year was Iranian money from an aborted weapons deal with the Shah that the United States had frozen after the 1979 revolution. There’s a legitimate good-faith debate about whether finally returning those assets was a good idea or a bad idea — even a “ransom,” given its timing — but either way it wasn’t American taxpayers’ dollars.

The quality of public policy discourse in 2016 is really depressing.

 

 

Eternal Return, Enemy Combatant Edition: A call to place the Chelsea bombing suspect in military custody

Senator Lindsey Graham, Republican of South Carolina, today called for holding Ahmad Khan Rahami, the Afghan-American arrested as the sole suspect in the Chelsea bombing, as an enemy combatant: placing him in indefinite military custody and interrogating him without a defense lawyer or a Miranda warning that he has any right to remain silent. Graham argued that the priority now should be gathering intelligence that might prevent future attacks, not gathering evidence that would be admissible in a courtroom trial. But he also acknowledged, at the end of his statement, a certain weariness to this debate.

“Now, I hope the Obama Administration will consider holding Rahami as an enemy combatant for intelligence gathering purposes. The suspect, based upon his currently reported actions, clearly is a candidate for enemy combatant status.

“Right now, we should be focused on gathering intelligence from this suspect that can help our nation understand how these attacks were planned and carried out. Holding Rahami as an enemy combatant also allows us to question him about what attacks may follow in the future. That should be our focus, not a future domestic criminal trial that may take years to complete.

“Holding Rahami as an enemy combatant to determine whether he has ties to terrorist groups, whether he was working for or funded by them, and whether there are co-conspirators, and then trying him in our civilian system for his terrorist acts is the best way to protect our country first, and then achieve justice.

“As an American citizen, Rahami cannot be tried by a military commission. Any future trial at which he would be a defendant would take place in federal district court or state court.

I have little confidence the Obama Administration will take the course of action I am proposing. Instead, they will read him Miranda Rights as soon as possible and continue to criminalize the war. Their actions will leave our nation less safe in the years to come.”

Graham sounds a little bit like an actor phoning in his role in a movie sequel, and for good reason. This is specifically a repetition of an episode in 2013, when Graham made the same call regarding Dzhokhar Tsarnaev, the surviving Boston Marathon bomber, following his capture. Both Tsarnaev and Rahami are naturalized American citizens, arrested on American soil, for pressure cooker bombings. Fortunately, Rahami’s did not succeed in killing anyone, unlike the Tsarnaev brothers’. But legally we’re looking at the same thing.

One big problem, legally, with Graham’s idea is that there is as yet no publicly known evidence linking Rahami to Al Qaeda. The United States government does not have the power to hold just any terrorism suspect in wartime detention — rather, that legal authority exists only for captives who are members of the specific organization with which the United States is engaged in an armed conflict. In 2013, I interviewed Graham about his idea with regard to Tsarnaev, and he acknowledged this, but suggested that a judge would give the government leeway to hold a terrorism suspect in military custody for up to 30 days or so anyway, to figure out if there were any such links.

“You can’t hold every person who commits a terrorist attack as an enemy combatant, I agree with that,” Graham told me then. “But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda — I think you have a reasonable belief to go down that road, and it would be a big mistake not to go down that road. If we didn’t hold him for intelligence-gathering purposes, that would be unconscionable.”

Even if Rahami were linked to Al Qaeda, it remains murky whether the government may hold a citizen arrested on domestic soil as an enemy combatant. In 2004, the Supreme Court upheld the indefinite wartime detention of a citizen captured fighting against the United States in the Afghanistan combat zone to prevent his “return to the battlefield,” holding that “there is no bar to this Nation’s holding one of its own citizens as an enemy combatant.” But its ruling was confined to the “narrow question” presented by that fact pattern alone, and left unanswered whether a citizen terrorism suspect arrested on domestic soil could be held in military custody. Perhaps importantly, Justice O’Connor also observed in the plurality opinion that, “Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized” (my emphasis). In the Jose Padilla case, two appeals courts disagreed on the question of whether domestically arrested American citizen terrorism suspects could be held that way, and the Supreme Court never resolved the question. Congress punted when lawmakers had an opportunity to clarify what the law should be.

As readers of Power Wars know, one of Obama’s signature national security and civil liberties policies — one he never backed away from, even as he made many compromises in other areas — has been that terrorism cases arising on domestic soil should exclusively be handled with civilian law enforcement procedures and powers, not military force. He has been unwilling to hold American citizens and lawful residents arrested on domestic soil as enemy combatants. Meanwhile, those readers also know that ever since the fallout from the attempted bombing of a Detroit-bound plane on Christmas 2009, when Republican Scott Brown harnessed anger over the FBI’s handling of the underwear bomber into winning the special election for a vacant Senate seat in super-blue Massachusetts, it has been a core GOP strategy to attack Obama for refusing to put new terrorism captives into Gitmo-style military custody.

As a result, every time someone gets arrested for a suspected (Islamist) terrorism offense, both sides trot out the same talking points. What was new about the Tsarnaev episode — the twist that there was no evidence linking the suspect to Al Qaeda — is now becoming part of the déjà vu cycle of national security legal policy and politics, too.