The ACLU, meanwhile, has identified an important point about the chronology of the CIA’s internal communications about the tapes. Although the communications remain classified, the dates and summaries of their content provided by the government reveals that a request to destroy the 92 tapes were  made just days after The Washington Post reported on the existence of secret overseas CIA prisons known as “black sites.” Another request was made on the day The New York Times reported that the CIA inspector general had issued a report questioning the legality of the agency’s interrogation methods.

The tapes were destroyed that same day.

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.

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.

“The report is completed,” said Holder. “It is in its last stages of review now.” Holder said it was delayed “because of the amount of time we gave to the lawyers who were the subject of the report to respond. And then people in OPR had to respond to their responses.” Holder said that in this final stage, “a career prosecutor has to review the report. We expect that process should be done by the end of the month. At that point the report should be issued.”

So it’s significant that today they’ve released a report calling on the United States to follow its legal obligation to prosecute the leaders in the U.S. government responsible for the “torture, cruel and inhuman treatment” of detainees during its own “war on terror.”

“Investigations and prosecutions should focus on the engineers of official policies that were the basis of illegal abuses, to send a clear signal that the absolute prohibition of torture and the ban on cruel and inhuman treatment will be respected by the United States,” the report said, adding that if the U.S. government fails to initiate prosecutions, then other countries will take up the cause. Italy, for example, recently convicted 23 Americans for their involvement in “extraordinary renditions.”

“Failing to hold accountable the architects and overseers of a policy of abuse undermines the U.S. justice system and the fundamental idea that law provides a check on power,” Alex Boraine, acting president of ICTJ, said in a statement today. “As we have seen in countless examples around the world, abuse of power by allowing torture and cruel treatment can tear down what the law and democracy have built.”

While there’s support among many Democrats for some sort of accountability, whether through criminal prosecutions or an independent truth commission, Republicans vehemently resist any suggestion that the Bush administration even did anything wrong.

Since Attorney General Eric Holder announced on Friday that the Justice Department would try the alleged 9/11 co-conspirators in a U.S. federal court in New York, some Republicans have denounced the move as an illegitimate attempt to put the Bush administration, rather than the terrorists, on trial.

“The government is going to try to put Khalid Sheik Mohammed on trial. Defense lawyers will try and put the government on trial,” former New York City Mayor Rudy Giuliani told Fox News.

Tom Ridge, head of the Department of Homeland Security during the Bush administration, added that any effort to use the 9/11 trial to “delve into a fishing expedition” to go after Bush officials is “wrong and unconscionable.”

Meanwhile, in The Wall Street Journal today, former Deputy Assistant Attorney General John Yoo — a potential target of any future criminal prosecution of Bush officials — attacked the decision to try the 9/11 detainees in federal court as a dangerous mistake. “The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism,” Yoo wrote. “It is in effect a declaration that this nation is no longer at war.”

Seeking the death penalty may be controversial, given that most of the suspects, including self-proclaimed mastermind Khalid Sheik Mohammed, have said that they want to be put to death and thereby become martyrs for their cause.

That’s led some influential policy advisors to recommend that the 9/11 suspects not be given the death penalty, to deny them that apparent victory.

Additional concerns are the risks of trying the suspects in New York City, which some critics claim will make the city yet again a terrorist target. Others worry that the defendants can’t get a fair trial before jurors sitting so close to the scene of the Sept. 11, 2001 crime. Still others fear defense lawyers will use that concern to appeal any convictions.

At a press conference this morning, Holder sought to assuage the concerns by saying the utmost security measures would be employed, and “a really searching, complete voir dire process” will ensure that the jurors are fair. The voir dire process is how jurors are chosen for a particular trial.

As for whether evidence about their treatment by U.S. officials in custody will come out during the trial, Holder said that it depends on “how relevant were those statements” extracted by abusive measures, and “whether those statements will be used.” Even without statements elicited through waterboarding or other forms of torture or coercion, Holder said he’s “quite confident that we will be successful in our attempts to convict those men.” He did not say what would happen to the suspects if they were acquitted.

Holder called the decision to try the 9/11 suspects in federal court “about the toughest decision that I’ve had to make as attorney general.” A formal indictment listing the charges is expected soon.

The result is that Maj. Nidal Hasan, the Army psychiatrist who allegedly gunned down 13 people at the military base in Texas last week, is unlikely to get the death penalty. Meanwhile, John Muhammad, the sniper who shot dead at least 10 people in Virginia in 2002, was executed for his crimes last night.

In fact, there hasn’t been a military execution since 1961, The Associated Press reports today. Although there have been death sentences, an execution order signed by President George W. Bush last year for a former Army cook convicted of multiple rapes and murders in the 1980s has been stayed. And five men sentenced to capital punishment still sit on death row in Fort Leavenworth, Kans.

The disparity in penalties between military and civilian courts has a parallel in the military commission system, which likewise has so far meted out shorter sentences to the few convicted terrorists it’s tried than the civilian one has.

Whether the perpetrator of last week’s mass murder will be spared execution remains to be seen. But lawmakers clamoring for military trials for the five 9/11 suspects as a way to look extra tough on terrorism ought to be careful what they wish for.

The Italian court convicted in absentia a CIA station chief and 22 other agents for abducting a Muslim cleric and sending him to Egypt, where he was tortured. Similarly, a British court recently ruled that a former detainee and torture victim has the right to obtain documents to prove he was mistreated — despite U.S. objections.

In contrast, in a recent case here in the United States, involving the abduction and extraordinary rendition of Canadian citizen Maher Arar to Syria by U.S. authorities, a federal appeals court ruled that Arar — who turned out to be innocent — has no right to redress.

Arar, as we now know, was arrested based on faulty intelligence at John F. Kennedy airport in New York, denied access to a lawyer, and shipped off to Syria for interrogation under torture. Both the Syrian and Canadian governments have since confirmed that Arar had done nothing wrong, and Arar sued U.S. officials for his unlawful treatment. Yet the Second Circuit Court of Appeals in New York recently ruled that the courts should not interfere in cases involving national security and foreign affairs — that’s for the executive and legislative branches alone.

As The Times notes today in an editorial, the ruling was an abdication of the role of the federal judiciary, which, after all, is the branch of government charged with upholding the rights granted in the U.S. Constitution.  Surely the right to be free from groundless abduction, rendition and torture is among them. As The Times’ editorial board puts it: “The ruling distorts precedent and the Constitutional separation of powers to deny justice to Mr. Arar and give officials a pass for egregious misconduct.”

What The Times neglects to mention is that another case, filed just yesterday on behalf of a U.S. citizen, raises precisely the same issues — and could meet the same fate. This time, however, as I explained yesterday, the plaintiff is a U.S. citizen, born and raised in New Jersey, abducted by U.S. authorities and held in three different African prisons where, he says, he was tortured and threatened by FBI agents, among others. He was eventually returned home without charge.

The judges who decided the Arar case earlier this month didn’t uniformly agree that he ought not be allowed to make his case in court. In fact, the 7-4 opinion spawned four dissenting opinions that are among the most eloquent statements on the role of the judiciary in upholding the U.S. Constitution that I’ve ever read.

As Judge Barrington Parker wrote, the court’s decision “risks a government that can interpret the law to suits its own ends, without scrutiny.” Parker cited a memo from former Deputy Assistant Attorneys General John Yoo and Robert Delahunty in the Bush Justice Department’s Office of Legal Counsel advising the top lawyer at the Pentagon in 2002 that the President enjoys “complete discretion” in conducting operations overseas, and that the Constitution’s Bill of Rights — such as the Fifth Amendment right to due process and the Eighth Amendment’s prohibition on “cruel and unusual punishment” — do not apply to overseas interrogations.

The BAU, explained elsewhere in documents released on Friday, is “comprised of Supervisory Special Agents with an average of 18 years of experience in criminal and counterintelligence investigations.”

The memo lays out clearly and simply what the interrogation experts at the FBI knew about interrogations of terror suspects, what would or would not work on them, and what sort of conduct was illegal. And it reads much like the sorts of arguments we’re now hearing from the America Civil Liberties Union and other civil and human rights organizations arguing that senior defense department officials and lawyers who approved abusive techniques ought to be criminally investigated.

“Central to the gathering of reliable, admissible evidence is the manner in which it is obtained,” the authors write to the General. “Interrogation techniques used by the DHS [Defense Human Intelligence Services, part of DoD] are designed specifically for short term use in combat environments where the immediate retrieval of tactical intelligence is critical. Many of DHS’s methods are considered coercive by Federal Law Enforcement and [Uniform Code of Military Justice] standards. Not only this, but reports from those knowledgeable about the use of these coercive techniques are highly skeptical as to their effectiveness and reliability.”

Most of the detainees at Guantanamo Bay had already been interviewed repeatedly overseas by the DHS, so the FBI recommended a different approach be taken at Guantanamo.

The FBI favors the use of less coercive techniques — ones carefully designed for long-term use in which rapport-building skills are carefully combined with a purposeful and incremental manipulation of a detainee’s environment and perceptions.

The BAU staff explain:

FBI/CITF agents are well trained, highly experienced and very successful in overcoming suspect resistance in order to obtain valuable information in complex criminal cases, including the investigations of terrorist bombings in East Africa and the USS Cole, etc. FBI/CRT interview strategies are most effective when tailored specifically to suit a suspect’s  or detainee’s needs or vulnerabilities. Contrary to popular belief, these vulnerabilities are more likely to reveal themselves through the employment of individually designed and sustained interview strategies rather than through the haphazard use of prescriptive, time-driven approaches. The FBI/CITF strongly believes that the continued use of diametrically opposed interrogation strategies in GTMO will  only weaken our efforts to obtain valuable information.

The memo goes on to list the interrogation techniques being used, and then to list which ones are “not permitted by the U.S. Constitution.” Those include: the use of stress positions for more than four hours; hooding; 20-hour interrogation segments; stripping a detainee of all clothing; and exploiting individual phobias, such as fear of dogs, to induce stress. They also include the use of scenarios designed to convince a detainee that death or severe pain is imminent for him or his family; waterboarding (here called “use of wet towel and dripping water to induce the misperception of drowning”); and exposure to cold weather or water.

All of those techniques, we now know, continued to be used by the Defense Department.

The FBI also warned that the use of such techniques would make any evidence derived inadmissible in federal court and if admissible in a military commission, likely to be given “little or no weight.”

The FBI drafters of the memo further explained that most of those techniques, particularly the last four, would also violate the U.S. anti-torture statute. It recommended that they not be used.

We know that the Pentagon and CIA went ahead and used them anyway. Instead of relying on their top experts in the FBI, they relied on a plan developed by a couple of private psychologists with no experience whatsoever in interrogating terror suspects and who cribbed much of their plan from a study of Chinese Communist techniques used to obtain false confessions from American prisoners during the Korean war. Senior U.S. officials then sought legal opinions from the Office of Legal Counsel that would tell them that these techniques, contrary to the FBI’s opinions, were not illegal. Conveniently, those opinions did cast the techniques described in a completely different light.

The most recently released memos have not gotten much attention, as torture fatigue sets in and the Bush torture program becomes old news. But the FBI memo is important because it adds to the growing body of evidence that senior defense department and CIA officials deliberately ignored the opinions of the best trained and most experienced people in the government about interrogations that abusive interrogations would not work and were not legal. Add that to the rest of the evidence that senior Bush administration officials did not act in good faith in relying on the Office of Legal Counsel memos that justified the techniques the Defense Department and CIA were using, and this latest declassified memo adds weight to the argument that something fishy was going on at the highest ranks of government that demands further investigation.

This latest memo also sheds light on why some in the Defense Department and some Republicans are now so eager to try Guantanamo detainees in military commissions rather than in Article III federal courts. They know that the evidence extracted from the prisoners under the “enhanced” methods Cheney is still defending doesn’t stand a chance in front of an independent U.S. federal court judge.