While conceding that “Torture is illegal under federal law, and the United States government repudiates it”, even now the Solicitor General stops short of acknowledging that torture directed, approved and implemented by officials of the United States is so repugnant that it also violates fundamental rights; no less so when hidden from public view at Guantánamo Bay. Respondents appear willing to let the final word on torture and religious abuse at Guantánamo be that government officials can torture and abuse with impunity and will be immune from liability for doing so. Yet whether United States officials are free to engage in despicable acts in a place wholly controlled by the United States is the pre-eminent constitutional issue of our time, and it is squarely presented to this Court for decision in this case.

Rasul v. Rumsfeld, as I’ve explained before, is one of the first lawsuits brought by victims of the Bush administration’s torture and abuse policies. The plaintiffs claim they were in Afghanistan to do humanitarian relief work when they were captured by the Northern Alliance and turned over (or sold for bounty) to U.S. authorities. They were eventually shipped to Guantanamo Bay, where they were imprisoned in cages and, they claim, tortured and humiliated, forced to shave their beards and watch their Korans desecrated. All of these claims are backed up by the legal memos that have since been produced from the Department of Justice that authorized such techniques as part of “enhanced” interrogations. The men were returned home to the UK without charge in 2004.

Many other victims of the Bush administration’s abuse policies have been precluded from suing because in 2006, Congress passed the Military Commissions Act, which stripped the federal courts of jurisdiction over claims challenging the “detention, transfer, treatment, or conditions of confinement” of detainees who were considered “enemy combatants” by the U.S. military and detained abroad. (That provision of the law is being challenged in another lawsuit filed recently, which I describe here.) The plaintiffs in the Rasul case, however, were never even deemed “enemy combatants” by the U.S. military.

Still, the Obama administration is arguing, as it is in other cases, that it was not clear that foreigners picked up in Afghanistan and sent to Guantanamo Bay had a right not to be tortured by the U.S. government. But more than that, it’s arguing — as the lawyers in the Rasul case emphasize in the excerpt from their brief I quoted above — that there is no right under the Constitution not to be tortured at Guantanamo Bay, or at any offshore American-run prison.

As the Department of Justice recently wrote in another torture case: The “Fifth and Eighth Amendments do not extend to Guantánamo Bay detainees.”

In other words, it’s not just that former detainees can’t sue Bush administration officials for torture because the law wasn’t clear back in 2002 or 2003, but the Obama administration is arguing also that there is no fundamental right not to be tortured, and therefore any government official in the future could similarly claim to be immune from a lawsuit for torture.

Eric Lewis and the Center for Constitutional Rights, who represent the four British men in the Rasul case, are now pleading with the U.S. Supreme Court to say it isn’t so, and accept their appeal from a D.C. Circuit Court ruling that dismissed the case.

The government seeks “to leave the law unsettled and to pull a cloak of immunity, now and in the future, over government torturers,” they write in their brief.

It is essential that this Court lay down a strong and clear message that officially ordered torture is abhorrent and always a violation of fundamental rights. Without this Court’s guidance, the court of appeals’ studied indifference to the torture of Guantanamo detainees remains the final word on the issue and, indeed, could provide further cover for a claim of qualified immunity in the future in the unfortunate event that the specter of torture recurs.

Faghoul Abdelli and Mohamed Terari were arrested in Afghanistan by Pakistani police following the Sept. 11, 2001 terrorist attacks. They had previously been living in Germany, where, their lawyer said, they were involved in the illegal drug trade.

The two men apparently don’t deny drug-dealing, but they’ve consistently denied they were involved in terrorism. They also claimed that they were “brutally tortured” in U.S. custody.

The Algerian prosecutor had sought a sentence of 20 years in prison on terrorism charges.

According to The Associated Press, the verdict was reported by the Algerian state news service but not by prosecutors or the government.

Scott Fenstermaker, a lawyer defending one of the men, told The Associated Press that they won’t deny their role, but will use the opportunity to “explain what happened and why they did it,” and they will provide “their assessment of foreign policy.” Fenstermaker reportedly met with his client, Ammar al Baluchi, a nephew of Khalid Sheikh Mohammed (KSM), at the Guantanamo Bay prison last week. Baluchi told him the men had discussed the trial among themselves.

Critics of the trial have complained, among other things, that KSM — who has boasted that he was the lead planner behind the 9/11 attacks, as well as many others — will use the opportunity to grandstand and spread terrorist propaganda. The alternative, however, would be to not allow them to speak at their own trial, which would hardly showcase the American principles of open government and fair trials that the attorney general presumably wants to highlight.

Justice Department spokesman Dean Boyd told the AP on Sunday that he’s not worried that the men will dominate the trial or be able to use it as a vehicle to win new recruits. “We have full confidence in the ability of the courts and in particular the federal judge who may preside over the trial to ensure that the proceeding is conducted appropriately and with minimal disruption, as federal courts have done in the past,” he said.

The Southern District of New York, where the Justice Department wants to hold the trial, is the most experienced of all U.S. federal courts in handling major international terrorism cases.

Mohammed is the 31st Guantanamo detainee to win his petition for habeas corpus, which challenges the government’s right to continue to hold him without charge. According to David Remes, a lawyer who represents about a dozen Guantanamo detainees and closely tracks these cases, federal courts have ruled that the government can continue to detain eight of the 39 prisoners whose habeas cases have been heard.

I admit I overlooked this case, because it was initially reported as a suicide. But it’s no longer so clear that that’s the case.  now looks like that may not have been the case. Guantanamo spokesman Lt. Cmdr. Brook DeWalt told According to journalist Naomi Wolf, “the status of the investigation into Mr al-Hanashi’s death … is now a Naval criminal investigation – meaning that he is no longer considered a suicide but a victim of a murder or a negligent homicide.”

Guantanamo spokesman Lt. Cmdr Brook DeWalt, however, who I spoke to after initially writing this post, denies that interpretation. According to DeWalt, “any death is investigated by NCIS [Naval Criminal Investigative Service] on navy bases. Whether it be natural causes, whether it be suicide, criminal, across the board.”

Wolf’s “news” has just gotten a little fuzzier. What is clear, though, is that five months after al-Hanashi’s death, we still don’t know what happened to him.

In all the discussion of where the administration is going to try Guantanamo detainees, the news about Hanashi has been buried.  It’s In fact, both the Bush and Obama administrations have been extremely tight-lipped about the deaths of detainees in U.S. custody. Although the government reports when a Guantanamo detainee dies, As I’ve pointed out before, at some point the military stopped reporting the deaths of its prisoners in Iraq and Afghanistan. I’ve repeatedly asked why, and I’ve asked the Pentagon to define its current policy for reporting deaths of detainees in U.S. custody overseas.

I’ve never received any explanation. I’ll keep trying.

This post has been updated for clarification, based on DeWalt’s statement that Wolf misinterpreted his remarks.

Here’s Radack’s take on how Lieberman is using the incident to scare the American populace into suspecting more Muslims are home-grown terrorists.

What struck me about the hearing yesterday was how often Lieberman and others kept calling Nidal Hassan a “lone wolf” terrorist, suggesting not so subtly that the controversial “lone wolf” provision of the USA Patriot Act ought to be re-authorized. A recent House markup of the bill removed that provision, which allows the FBI to eavesdrop and otherwise target so-called “lone wolves” who allegedly plan all on their own, without any help from known foreign terrorist organizations, to launch a terrorist attack on the United States. One reason the provision was removed is because it’s never actually been used, and the Justice Department has had a hard time making the case that it’s actually necessary and not prone to abuse.

Judging from the comments at the Lieberman-led hearing yesterday, you would have thought that the Hasan case now offers the perfect argument for why that piece of the law is needed. What none of the senators mentioned, however, was that the “lone wolf” provision of the Patriot Act wouldn’t actually apply to Hasan.

For one thing, the government’s already said that Hasan did have communications with a foreign al-Qaeda operative, and so it could have already been monitoring him under other legal authorities. The second point overlooked at the hearing is that Hasan is a U.S. citizen, and the “lone wolf” provision only applies to a “non-U.S. person.”

It will be interesting to see how the “lone wolf” idea fares at the next Senate markup session of the bill.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) praised the confirmation and urged the Senate to continue to reject efforts to filibuster pending nominations.

“This is a nomination that should be confirmed and should have been confirmed months ago. David Hamilton is a fine judge and will make a good addition to the United States Court of Appeals for the Seventh Circuit,” said Leahy in a statement today.

Ten more judicial nominations remain pending on the Senate’s executive calendar.

The federal judge who helped draft Justice Department memos on torture has set up a legal defense fund to pay the costs of defending against possible disciplinary or impeachment proceedings. Jay Bybee, a U.S. Court of Appeals judge in Las Vegas, quietly set up the fund last July following widespread news reports that he and a former deputy, John Yoo, were the focus of a long-running investigation by the Justice Department’s internal ethics unit, the Office of Professional Responsibility (OPR), over their role in crafting the memos.

Attorney General Holder said yesterday he expected the Justice Department would finally release a version of the OPR report by the end of the month. Judge Bybee is evidently prepared for the rather nettlesome case of his former employer considering him unfit to practice law: Isikoff reports that he’s got Liz Cheney’s advocacy group, Keep America Safe, on his side.

One interesting question arises. Bybee’s former deputy John Yoo helped him craft the torture memos in 2002. Yoo faces similar criticism and legal difficulty, and is reportedly implicated in the OPR report alongside his old boss. But Yoo’s personal legal expenses are, risably, covered by the American taxpayer. Will Bybee similarly stick us with the bill?

Holder was trying to reassure his many Republican critics, who insist that trying Khalid Sheikh Mohammed and his alleged al-Qaeda colleagues in a New York federal court is a “grievous mistake” that will endanger American citizens and undermine the “war on terror.”

But Holder’s statement was also eerily reminiscent of one made during the Bush administration by Pentagon General Counsel William Haynes — a statement which outraged Democrats and contributed to the resignation of the military’s top prosecutor.

In October 2007, Col. Morris Davis resigned from his post as military commission chief prosecutor, saying that he refused to report to Haynes. Davis later testified that he felt there was interference in his cases from Defense Department officials, citing specifically Haynes’ statement that “We can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.”

Haynes resigned several months later.

Davis, now a civilian, is still concerned about justice and the appearance of justice for Guantanamo detainees. He recently wrote in The Wall Street Journal that using both federal courts and military commissions to try terror suspects “is a mistake. It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantanamo and justice are mutually exclusive.”

As I reported yesterday, Sens. Ron Wyden (D-Ore.), Russ Feingold (D-Wis.) and Richard Durbin (D-Ill.) sent a letter asking the attorney general to produce information that’s been classified but which they feel is necessary to allowing Congress to decide whether certain provisions of the Patriot Act — specifically section 215, known as the “business records provision” — should be renewed in their current form. That provision now allows the government to obtain personal records of people who are not suspected of any connection to terrorism, so long as the FBI claims the records are “relevant” to some terrorism investigation.

Today, Holder said that “we are working on ways to make available to senators and congressmen the information needed to vote on the Patriot Act. … That information will be made available.”