Donald Rumsfeld has finally said he's sorry. Sort of.

In an interview with biographer Bradley Graham, the former secretary of defense says he has regrets about the administration's controversial detainee policy.

The twist is that Rumsfeld doesn't regret the policy itself -- specifically the abandoning of the Geneva Conventions for detainees picked up in Afghanistan. Rather, he regrets how the policy was formulated.

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Perhaps we shouldn't be surprised at this point. But the latest example of the Obama administration mimicking the Bushies in opting for secrecy over openness feels like one of the most infuriating yet.

The Justice Department is declining to release Dick Cheney's interview with federal investigators looking into the Valerie Plame leak, arguing -- as it did under President Bush -- that doing so would discourage future high-level officials from cooperating with criminal investigations.

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President Obama will not rule out detaining terror suspects indefinitely, although he says it "gives me huge pause."

Obama, while saying he isn't comfortable using executive orders to detain prisoners, wouldn't rule it out during an interview with The Associated Press.

But he also said there are some detainees who don't fall neatly into existing categories for criminal prosecution in the United States or under international law. He said dealing with them is going to be one of the biggest challenges of his administration.

The latest installment in the Obama administration's tendency to mimic the Bushies on war on terror tactics:

The Washington Post and Pro Publica report:

The Obama administration, fearing a battle with Congress that could stall plans to close Guantanamo, has drafted 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.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that bypassing Congress could place the president on weaker footing before the courts and anger key supporters, the officials said.

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Here at TPMmuckraker, we've been thinking about pitching an idea for a screenplay. It's sort of a Harold and Kumar Escape From Guantanamo Bay meets The Kite Runner meets Borat.

You have to put yourself in the shoes of the protagonist:

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On Friday, we reported the comments of a lawyer for four Gitmo detainees, who told us that, in his view, the Obama administration is continuing the Bushies' policy, by stonewalling efforts by detainees to appeal their detentions in federal courts.

And that same day, another data point emerged suggesting the new administration is taking a hard line on detainee policy.

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In a move that represents both a formality and a historic gesture, the Obama administration has announced that it's withdrawing the designation of "enemy combatant" for Guantanamo detainees. The Bush administration had drawn widespread criticism for its use of that designation, which allowed it to deny detainees rights they otherwise would have been entitled to.

In a press release, the Justice Department said it was submitting a new standard to hold detainees at Gitmo. Rather than relying on the president's authority as commander-in-chief, the department explained, the new standard "draws on the international laws of war to inform the statutory authority conferred by Congress."

It also said that the governent is conducting a review of detainee detention policy which could lead to "further refinements."

President Obama has already announced this intention to close Gitmo within the year. In a sense, today's announcement is an equally important step in winding down the "War On Terror" concept that the Bush administration announced, and shifting to an approach that sees the fight against terrorism as an effort to be conducted within the bounds of international and domestic law.

In other words: change we can believe in.

Last week, in one of its first moves, the Obama administration told its military prosecutors to ask for delays in the proceedings of 21 Guantanamo detainees who have been charged, so that their cases, and the military commissions process as a whole, could be reviewed.

Most military judges have complied with that request. But one judge, Army Colonel James Pohl, has now declined to do so, saying he found the government's reasoning "unpersuasive," reports the Washington Post.

Pohl wrote:

The Commission is unaware of how conducting an arraignment would preclude any option by the administration. Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future.

Pohl is presiding over the case of Abd al Rahim al-Nashiri, a Saudi citizen of Yemeni descent accused of planning the October 2000 Al Qaeda attack on the USS Cole warship, which killed 17 service members.

The Pentagon may now be forced to withdraw the charges against Nashiri if it wants to impose the broader delay. It could bring them up again, but that would bring the case back to square one, costing the government time.

But the wider impact of Pohl's opinion isn't yet clear. It may be limited to this specific case, but it could also potentially throw a wrench into the new administration's plan to put the process on hold pending a review, and even complicate Obama's plan to close Guantanamo.

We'll keep you posted as things become clearer.

Late Update: The ACLU has called on Defense Secretary Robert Gates to withdraw the charges against Nashiri so that the charges can be tried in a legitimate court. In a statement, the group's executive director, Anthony Romero, said:

Judge Pohl's decision to unabashedly move forward in the al-Nashiri military commission case shows how officials held over from the Bush administration are exploiting ambiguities in President Obama's executive order as a strategy to undercut the president's unequivocal promise to shut down Guantánamo and end the military commissions. Judge Pohl's decision to move forward despite a clear statement from the president also raises questions about Secretary of Defense Gates - is he the 'new Gates' or is he the same old Gates under a new president? Secretary Gates has the power to stop the military commissions and ought to follow his new boss' directives.

Later Update: But the commander of the USS Cole, Kirk Lippold, who is now affiliated with Military Families United, a group that bills itself as a "the nation's premier military family advocacy organization", takes the opposite view. Lippold said in a statement:

Today's decision is a victory for the 17 families of the sailors who lost their lives on the USS Cole over eight years ago. This trial is a long overdue step toward accountability and justice for the attacks on the USS Cole. The seventeen American sailors who lost their lives on October 12, 2000, when we came under suicide terrorist attack by al Qaeda, were not just sailors. They were sons and daughters, husbands and wives, and friends to so many. The sacrifice of these sailors and all of our brave military service members who have died to protect this country and apprehend terrorists is a key reason why we should not close the detention facility at Guantanamo Bay precipitously.

By President Obama signing the executive order to close Guantanamo Bay within a year, he is not considering or addressing the impact on the families who have paid so dearly to defend our freedom.

Over the weekend, President-Elect Obama said we should "look forward as opposed to looking backwards" on the question of prosecuting Bush administration officials for torture, illegal wiretapping, and other possible crimes committed in the name of national security.

But yesterday, the House Judiciary committee got behind a very different approach, releasing a nearly 500-page report that recommends establishing a blue-ribbon commission -- along the lines of the 9/11 commission, but with subpoena power -- to investigate whether crimes were committed. (Last week, as we reported over at Election Central, Judiciary chair John Conyers and nine other lawmakers introduced a bill to set up such a commission.)

The report also advocates an investigation by the Justice Department, potentially involving a special prosecutor. And in addition to focusing on issues of torture, wiretapping, and the like, the report also recommends continuing to probe matters like the leaking of the name of former CIA agent Valerie Plame, and the US Attorney firings.

It'll be interesting to see how Democrats will reconcile Conyers' aggressive stance, which seems to enjoy broad support among the party's base, with Obama's more cautious approach.

We posted on Monday about Attorney General Michael Mukasey's controversial suggestion that Congress pick up the slack for the federal courts on detainee rights.

But one of the other interesting things that came out of Mukasey's speech, was his scare-mongering on what would happen if was up to the courts alone to deal with the detainees . . . they could be released! . . . in the United States! . . . [cue horror music]

In his testimony before the House Judiciary Committee today, he broached this topic again during questioning by Rep. Dan Lungren (R-CA):

LUNGREN: . . .It seems to me those are unsettled questions- whether the court would be able to order the government to bring detainees in the United States and release them here. Uh, clearly that has not been decided, yet I believe the court is inviting the Congress to outline the parameters of that and I would suggest- make it impossible for that to happen.

MUKASEY: The Court has left that matter open, and the fact- it has said that at the end of the day it must be open to a decsion maker to direct release. Now, um, the fact is that all of these people, every single one of them are aliens captured abroad, in essentially battle conditions um, who had absolutely no right to be here, and there's no good reason to have a court bring somebody here for purposes of release and release them to our communitities- people who could pose a significant danger. Um, we want that particular possibility cut off. Um, we don't want to face it, we shouldn't have to face it.

From the AP:

The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.

The justices handed the Bush administration its third setback at the high court since 2004 over its treatment of prisoners who are being held indefinitely and without charges at the U.S. naval base in Cuba. The vote was 5-4, with the court's liberal justices in the majority.

Justice Anthony Kennedy, writing for the court, said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

Late Update: The court did not say that the prisoners held at Guantanamo Bay should be released.

It did, however, say that they can take their individual cases -- or petitions of habeas corpus -- into federal court.

Plain, old federal court. So you can expect to see a sudden, steady stream of accused terrorists in orange jumpsuits appearing alongside drug dealers and kiddie-porn downloaders.

The ruling could resurrect many detainee lawsuits that federal judges put on hold pending the outcome of the high court case. The decision sent judges, law clerks and court administrators scrambling to read Kennedy's 70-page opinion and figure out how to proceed. Chief Judge Royce C. Lamberth said he would call a special meeting of federal judges to address how to handle the cases.

Is this the end of secret prisons?

The trial is underway in Italy of 26 Americans, mostly CIA operatives, accused of abducting a radical Egyptian cleric in Italy and whisking him off to Egypt for torture.

They're on trial in absentia, but there's an Los Angles Times reporter there, telling a great story of "spies spying on spies"

Italy's top counterterrorism official, Bruno Megale, took the stand in Milan yesterday to tell how tapping phones helped to blow the lid off the Bush Administration's practice of "extraordinary rendition."

Megale obtained records of all cellphone traffic from the transmission tower nearest the spot where Abu Omar was abducted, for a 2 1/2 -hour period around the time he disappeared. There were 2,000 calls.

Then, using a computer program, Megale was able to narrow down the pool by tracing the phones that had called each other, in other words, an indication of a group of people working together. Seventeen phone numbers, which showed intensifying use around the time of the abduction, were pinpointed. By following all other calls made from those phones, the investigators ultimately identified 60 numbers, including that of a CIA officer working undercover at the U.S. Embassy in Rome.

In his testimony, Megale revealed that one telephone number he recognized was that of Robert Seldon Lady, then-CIA station chief in Milan. Lady and Megale had worked together in counter-terrorism investigations. It was a number, Megale said somberly, that he and his team knew.

When the Bush Administration rolled out charges against five Gitmo detainees last week for their alleged roles in the 9/11 attacks, there were a lot of questions about why the suspected 20th hijacker was not charged.

The Wall Street Journal today suggests one answer:

An alleged 20th hijacker in the Sept. 11 conspiracy attempted suicide rather than face a Guantanamo Bay military commission and now suffers from such mental impairment that he can't adequately help in his own defense, his civilian lawyer says.

The contention suggests one possible reason the Defense Department last week dismissed charges against Mohammed al-Qahtani, who faced a potential death penalty if convicted in the Sept. 11, 2001, terrorist attacks. At the time, the administrator of the military commissions, Susan Crawford, gave no explanation. Mr. Qahtani remains under indefinite detention, and prosecutors may seek to file amended charges.

In 2002 Mr. Qahtani suffered a severe and prolonged interrogation that a Pentagon review later labeled "abusive and degrading." Some military investigators and prosecutors feared that the coercive treatment had ruined a potential case against Mr. Qahtani, under legal and ethical rules.

Intriguingly, we may yet learn more about al-Qahtani's interrogation, the Journal reports:

Friday, a military judge ordered such an inquiry for Guantanamo defendant Salim Hamdan, Osama bin Laden's former driver, after a psychiatrist hired by the defense reported that Mr. Hamdan was suffering from "major depression" and expressed suicidal thoughts.

If a military judge were to order a similar examination for Mr. Qahtani, it could force the first independent inquiry into his interrogation, which to date has been reviewed by only the Pentagon.

The prospect of two key Guantanamo defendants being incapable of standing trial is another problem for a military commissions system already beset by legal challenges and staff unrest.

Late Update: Speaking today about al-Qahtani's suicide attempt, his lawyer told AP that she didn't learn of his suicide attempts until weeks after it occurred:

Gutierrez said the military did not inform her or al-Qahtani's family of the alleged suicide attempt. She said she learned of it when she went to visit him and noticed three scars on his hand, inside wrist and inner forearm near the elbow.

The prisoner seemed desolate during the meeting, said the attorney, who has met with him more than 20 times.

"This was the worst I have ever seen him in terms of his psychological state," she told The Associated Press. "He just can't take it anymore and just kept threatening to kill himself."

The DOJ inspector general's report on the FBI's role in detainee interrogations that we previewed yesterday has now been released -- all 370 pages plus appendices.

You can read the report in its entirety here (.pdf).

As Andrew Zajac at The Swamp notes, "The tortured title of the report -- A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq -- suggests a certain amount of hairsplitting and eggshell-walking."

We'll have more shortly.

Late Update: The bottom line of the report?

In Sum, while our report concluded that the FBI could have provided clearer guidance earlier, and while the FBI and DOJ could have pressed harder for resolution of FBI concerns about detainee treatment, we believe the FBI should be credited for its conduct and professionalism in detainee interrogations in the military zones and in generally avoiding participation in detainee abuse.

Later Update: The ACLU finds the report more troubling than exculpatory:

Jameel Jaffer, national security director for the American Civil Liberties Union, said the report "shows a failure of leadership on the part of senior FBI officials."

"Senior FBI officials knew as early as 2002 that other agencies were using abusive interrogation methods," Jaffer said. "The report shows unequivocally, however, that the FBI's leadership failed to act aggressively to end the abuse."

The Justice Department's inspector general has finally completed its report on the FBI's involvement in detainee interrogations:

Overall, the report gives the FBI fairly positive marks for repeatedly raising concerns between 2001 and 2004 about interrogation methods at three military prisons: Abu Ghraib in Iraq; in Bagram, Afghanistan; and at the U.S. facility at Guantanamo Bay, Cuba.

According to two law enforcement officials who have seen it, the report's twelve chapters touch on a range of issues, including the interrogations of terror suspects who were thought to have high-value information. The officials spoke about the report on condition of anonymity because they were not authorized to discuss it publicly.

"The FBI decided it would not participate in joint interrogations of detainees with other agencies in which techniques not allowed by the FBI were used," the report concluded, according to one law enforcement official who has seen it.

Fine's office also concluded that clearer guidance was needed for FBI agents left wondering what to do when interrogation tactics appeared to violate what would be allowed in the United States -- as opposed to under military law or in overseas detention centers, according to the second law enforcement official.

And the report raps the FBI in some cases for not immediately reporting the questionable interrogations or leaving the room when they were under way, the officials said.

The IG's report has been delayed in part because the Pentagon slow-rolled its review of the report for classified information.

FBI Director Robert Mueller testified to Congress last month that he had "reached out" to the Pentagon and the Department of Justice "in terms of activity that we were concerned might not be appropriate -- let me put it that way." But it was clear from his testimony that the Justice Department's essentially unilateral legalization of torture had prevented the FBI from investigating the abuses its agents witnessed.

It's been awhile since we checked in on the plight of John Helgerson, the inspector-general of the CIA who's under "management review" by CIA Director Michael Hayden following Helgerson's investigation of CIA war-on-terror programs. Not much has happened in the case since Hayden defended his decision to investigate the straight-shooter IG to Charlie Rose late last month.

But today the House intelligence committee announced that the full panel is going to meet in closed session with Helgerson tomorrow at 2 p.m. Statutorily, the IG has a direct line to the congressional intelligence committees -- the better to investigate waste, fraud, abuse and mismanagement -- but it's not clear how far that can go in protecting Helgerson's job. Stay tuned.

As Josh flagged, CIA Director Michael Hayden recently sat down with Charlie Rose for a two-part interview (the second part of which airs tonight). You'll be relieved to know that CIA has never made any mistakes in detentions, interrogations or renditions, and certainly not during Hayden's year-plus as director. Nor has the director made a mistake in examining the activities of John Helgerson, the CIA's inspector general, who himself was subjecting detentions, interrogations or renditions to review.

According to Hayden, his look into Helgerson's activities are no more than "a management review" -- "inquiry is the big and wrong word here," he said -- to see whether complaints made by the legal counsel's office and the CIA's clandestine operatives about Helgerson's fairness were merited. Hayden didn't say anything about whether such a management review will have a chilling effect on the IG's ability to conduct internal scrutiny of CIA programs, as many veteran intelligence watchers suspect. But not to worry: after all, the CIA doesn't make mistakes. (Except when it does.)

Hayden said that his special adviser, Robert Dietz, conducting the five-month-old Helgerson review, will wrap up work next week. Don't expect Dietz's report to be public.

Way Way Way Late Update: Here's the video from Hayden's chat with Rose:

Mukasey wouldn't commit to recommending to President Bush that the Guantanamo Bay detention facility be closed. Shuttering Gitmo, reportedly, was one of Defense Secretary Robert Gates' first major recommendations to the president earlier this year.

Responding to Sen. Herb Kohl (D-WI), Mukasey said he's "not prepared to say, close it... there's no easy solution." His concern is figuring out what happens to the approximately 330 detainees still within the island prison. But he did say that "I'm prepared to say we need to get the best advice and the best ideas we can, with the goal of closing it down." He considered himself in broad alignment with the administration, since Bush said last year that he'd "like to close Guantanamo" but also added a number of caveats.

Long before he was internationally infamous as the Homeland Security secretary who dithered while New Orleans drowned, Michael Chertoff helmed the Justice Department's Criminal Division, placing him at the top of all federal criminal prosecutions. He left the position in 2003 to take a federal judgeship -- but not before severely misconstruing, under oath, a chain of events in the 2001 interrogation of "American Taliban" John Walker Lindh. As it turns out, a sworn statement, made by an attorney in the division's Terrorism and Violent Crime Section, John De Pue, contradicts Chertoff's testimony to Congress, something that can't bode well for his rumored nomination for attorney general.

Chertoff, in 2003, testified that he was unaware of internal dissent over a decision by the FBI to interview Lindh without the presence of his family-retained lawyer. "I have to say, Senator," he told Sen. Ted Kennedy (D-MA), "that the Professional Responsibility [Advisory] Office was not asked for advice in this matter. I'm familiar with the matter. I was involved in it."

An account given by De Pue in 2002 casts serious doubt on Chertoff's statement. You can read his statement here.

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It's looking grim for the Military Commissions Act of 2006. The Act, one of the final masterstrokes of the GOP Congress, stripped war-on-terrorism detainees of access to U.S. courts and entrenched the Bush administration's system of military tribunals.

First, at the beginning of the month, military judges at Guantanamo Bay dismissed charges against two detainees, ruling that the detainees weren't properly classified as "unlawful enemy combatants," as the act demands. That prompted Sen. Arlen Specter (R-PA) to worry aloud that the commissions created "too many shortcuts in the whole process." Then, barely a week later, a panel of the Fourth Circuit Court of Appeals rejected the entire legal category of "unlawful enemy combatant," a neologism crucial for the Military Commissions Act. And now, today, the Supreme Court announced it will hear a case brought by two other detainees challenging the constitutionality of the act:

The Supreme Court, reversing course, agreed Friday to review whether Guantanamo Bay detainees may go to federal court to challenge their indefinite confinement.

The action, announced without comment along with other end-of-term orders, is a setback for the Bush administration. It had argued that a new law strips courts of their jurisdiction to hear detainee cases.

In April, the court turned down an identical request, although several justices indicated they could be persuaded otherwise.

The move is highly unusual.

The court did not indicate what changed the justices' minds about considering the issue. But last week, lawyers for the detainees filed a statement from a military lawyer in which he described the inadequacy of the process the administration has put forward as an alternative to a full-blown review by civilian courts.

Last week, Defense Secretary Bob Gates failed to convince President Bush to shutter Guantanamo. The court won't hear the case until at least the fall, as its term is concluding, so Gates will have several months to argue that the administration is at risk of having its entire legal edifice for Guantanamo Bay collapse.

Apropos of the Washington Post's exploration of Dick Cheney's role in the development of interrogations policy, TPMmuckraker has obtained a document from the 2002 trial of John Walker Lindh -- the American captured in Mazar-e-Sharif in 2001 fighting for the Taliban -- in which Donald Rumsfeld's general counsel, William J. Haynes II, is said to have advised the commander of U.S. forces in Mazar to "take the gloves off" when interrogating him.

The Los Angeles Times's Richard Serrano, in June 2004, first described the document, a statement of fact by Lindh prosecutor Paul McNulty (yes, that Paul McNulty) entered into the court record, about the circumstances behind Lindh's interrogation. But to our knowledge, this is the first time the document has become publicly available.

In the weeks after 9/11, the Bush administration feverishly debated what was legal and appropriate treatment for interrogations of al-Qaeda detainees. The Post reports today that the effort began with allowing the CIA access to interrogation techniques not permitted under the Geneva Conventions, but that Cheney and Rumsfeld wanted military interrogators to have the same expanded authority, a position shared by Haynes. According to the document, months before President Bush issued a February 2002 order calling for detainees to be treated humanely "subject to military necessity," Haynes instructed military interrogators to "take the gloves off" on an American citizen. From McNulty's discovery filing:

(An individual identified as U.S. Army #6)'s understanding was that he could not collect (intelligence from Lindh) that could be used in a criminal court. After the first hour of interrogation, he gave the admiral in charge of Mazar-e-Sharif a summary of what the interrogators collected up to that point. The admiral told him that the Secretary of Defense's counsel had authorized him to "take the gloves off" and ask whatever he wanted.

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On Friday, TPMmuckraker reported on an affidavit from Lieutenant Colonel Stephen Abraham, an Army reserve intelligence officer, that suggests widespread flaws in the process of classifying a detainee as an enemy combatant at Guantanamo Bay. Abraham was replying to his former boss at the Office for the Administrative Review of the Detention of Enemy Combatants, Rear Admiral James McGarrah, who testified last month that there was no significant problem with the military process, known as a Combatant Status Review Tribunal. Last week, Abraham accused McGarrah of knocking him off the CSRTs after he argued that a certain detainee shouldn't be considered an an enemy combatant. TPMmuckraker has Abraham's declaration here and McGarrah's here.

McGarrah presents a straight description of the process detainees have to challenge the facts of their designation: on their behalf, officials known as Recorders and Case Writers dig through Defense Department databases, and request access to those of other agencies, in order to present a fact-file of the circumstances behind their detention. (The CSRTs are administrative procedures, not legal ones, but the administration contends that such non-legal proceedings still constitute sufficient process rights for detainees.) And it's here that Abraham challenged McGarrah, contending that the Recorders and Case Writers typically don't know how to handle classified information and that the information the databases yield on detainees are frequently generic, incomplete or outdated.

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Not only is Guantanamo Bay going to continue on as the U.S.'s offshore indefinite-detention facility in the war on terrorism, but it's expanding -- at least by one.

As Paul flagged in the Must Read, President Bush's war cabinet was scheduled to debate shuttering Guantanamo Bay this morning at the White House, but once word of the meeting leaked to the Associated Press, administration hardliners scratched Guantanamo from the agenda. And as if to underscore the surprising resilience of the island prison, this morning, the Defense Department announced that Haroon al-Afghani, an Afghan who has "admitted to serving as a courier for al-Qaeda Senior Leadership (AQSL)," will be Guantanamo's newest addition:

There is significant information available that Haroon al-Afghani is a senior commander of Hezb-e-Islami/Gulbuddin (HIG), a declared hostile terrorist group associated with AQ in Afghanistan and commanded multiple HIG terrorist cells that conducted improvised explosive device (IED) attacks in Nangarhar Province. He is assessed to have had regular contact with senior AQ and HIG leadership.

Since 2005, the number of detainees sent to Guantanamo Bay has slowed to a trickle. The largest recent addition came in September, when 14 "high-value" detainees transfered from CIA custody to the island facility. These days, detainees are more likely to be sent from Guantanamo to prisons in their home countries. As a result, the announcement of al-Afghani's arrival makes for some interesting timing.