I asked Iglesias if the absence of a manual instructing officers of the court how to interpret the Military Commissions Act of 2009 — the statute governing this latest version of the commissions — would negatively impact Khadr’s hearing.”We expect the impact to be negligible right now,” Iglesias said, contending that the Act itself provides sufficient guidance for the case to proceed. “That being said,” he continued, “both sides expect there to be rules assigned very, very soon.”

That didn’t satisfy Jennifer Turner, a human rights researcher with the American Civil Liberties Union here to observe the proceedings. Federal courts have “years of experience” in interpreting statute and precedent and acting accordingly at trial, she said. The result of years of inventing the commissions, subsequent court challenges, legislative action, court challenges to that legislative action, and finally legislative responses to those challenges is that the officers of the commissions don’t have the same body of law to call upon to guide the proceedings. As Turner put it, “the problem is there are currently no rules for the military commissions.”

Well, not entirely. One rule currently in place is that whoever requests an action of the court has the burden of demonstrating the validity of its case. In Khadr’s case, his attorneys have asked the judge to suppress any statements he made during his post-2002 detention at Bagram and then Guantanamo Bay, contending that those statements describing his actions on the battlefield of Afghanistan’s Khost Provice are the result of torture, degrading treatment and coercion. So since Khadr’s lawyers filed a motion to suppress their client’s statements, “it’s their burden, by a preponderance of the evidence,” admittedly a low standard for demonstrating that Khadr’s treatment in detention represents what lawyers call the “fruit of the poisoned tree,” a legal doctrine stating that initial impropriety in extracting information renders whatever information ultimately results inadmissible in court.

“I think it’s unfortunate that these individuals are being criticized for their past representation, it reflects the politicization and the polarization of terrorism issues,” Bellinger said. “neither republicans nor democrats should be attacking officials in each other’s administration’s based solely on the clients they have represented in the past.”

“We’ve had a longstanding tradition in our country for lawyers to represent unpopular causes, and they shouldn’t be attacked for doing so,” Bellinger added.

Who knew George W. Bush hired so many traitors! Can’t wait to see the Keep America Safe ad attacking Bellinger.

“Do the senators suggest that the person be unrepresented?” wondered retired Navy Lt. Commander Charlie Swift, who helped defend Salim Hamdan alongside Neal Katyal, the deputy solicitor general whom Grassley and Sessions slimed. “Can they concede that a court in which they are unrepresented [fails to] meet that Common Article 3 standard?” Funny thing about that.

In 2006, Congress passed the Military Commissions Act. Among the provisions of the Military Commissions Act of 2006 — specifically, Section 948k — is that detainees under the commissions are entitled to defense counsel. You’ll never guess which two senators voted for the Military Commissions Act, with its nefarious promises of detainee counsel: Chuck Grassley and Jeff Sessions.

“If they didn’t think attorneys should do this, or that such people are traitors for doing it, why did they establish the requirement?” said Swift, now a lawyer in private practice in Seattle. “I don’t understand. To me, it’s political cheap shots. It’s not the law.”

Another funny thing: This particularly sleazy argument has all played out before. In 2007, Cully Stimson, then the top Pentagon official for detainees (now with the conservative Heritage Foundation), said in an interview that he was eager to see law firms pay a price for choosing to represent Guantanamo detainees. “When corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks,” Stimson said. “And we want to watch that play out.” The Washington Post’s editorial page replied that it was “offensive” for Stimson to argue “that law firms are doing anything other than upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants.”

And you know who agreed with the Post? No less a law-breaking, impunity-loving executive-power-drunk official than soon-to-be-disgraced Attorney General Alberto Gonzales. “Good lawyers representing the detainees is the best way to ensure that justice is done in these cases,” Gonzales told The New York Times. Even Alberto Gonzales thinks that Guantanamo detainees deserve good legal counsel!

Perhaps it’s unsurprising that this episode has fallen down the right-wing memory hole now that a Democrat is in office. “This entire attack is representative of the extraordinary double standard to which members of the Obama administration are held, as opposed to members of the Bush administration,” Swift observed, adding for good measure about his friend Katyal: “Neal is the modern-day John Adams, in fact. … Neal came in out of the highest of principles. He took the case even though he knew he might be attacked later for doing it. He argued it from the highest of principles, he conducted himself at every moment as the most principled attorney I’ve ever seen. And he won the case.”

In March, Judge Garzón announced that he was planning to investigate the legal architects of the Bush detention and interrogation policies, including former Attorney General Alberto Gonzales, former Office of Legal Counsel attorneys John Yoo and Jay Bybee, former undersecretary of defense for policy Douglas Feith, former Vice President Dick Cheney’s chief of staff David Addington, and former Pentagon general counsel William Haynes. But he dropped that investigation on the advice of the Spanish Attorney General.

Now, though, according to Público, Judge Garzón has agreed to move forward with a lawsuit against the same six lawyers brought by several Spanish legal and human rights organizations and three former Guantanamo detainees.

Still, political pressures could force Garzon to back down. As Worthington reports, the Spanish Parliament in June passed a law aimed at “ending the practice of letting its magistrates seek war-crime indictments against officials from any foreign country, including the United States,” on the basis that Spanish courts should not judge foreign countries’ officials unless the victims are Spanish or the crimes were committed in Spain.

A 29-year-old Australian, Melissa Dunphy, wrote the opera in part because she felt sorry for Gonzales, as she tells the Wall Street Journal. It’s called The Gonzales Cantata.

“I wrote the piece as an exploration of someone who’s having a hard time arguing his way out of a situation,” she says. “I think had Dick Cheney or Don Rumsfeld been put in the same situation, they could have acquitted themselves much better. But Gonzales, it appeared to me, didn’t have wit or the foresight about him to wriggle his way out of it.”

That’s for sure.

Scott Horton says an opera is a fitting way to capture the Gonzales tragedy: “The career path of Alberto Gonzales provides perfect material for an opera in the tradition of George Frederick Handel. It has its earnest moments, flashes of heroism (involving Gonzales’s victims, of course, not the protagonist), and yet there is a steady undercurrent of opera buffa.”

Gonzales is played in the opera by a female soprano, part of a “protest of male domination of American politics,” as Dunphy explains on the opera’s Website.

The dismissal of New Mexico U.S. Attorney David C. Iglesias in December 2006 followed extensive communication among lawyers and political aides in the White House who hashed over complaints about his work on public corruption cases against Democrats, according to newly released e-mails and transcripts of closed-door House testimony by former Bush counsel Harriet Miers and political chief Karl Rove.

A campaign to oust Iglesias intensified after state party officials and GOP members of the congressional delegation apparently concluded he was not pursuing the cases against Democrats in a way that would help then- Rep. Heather Wilson in a tight releection race, according to interviews and Bush White House e-mails released Tuesday by congressional investigators. The documents place the genesis of Iglesias’s dismissal earlier than previously known. [...]

The House focused most of its attention on Iglesias, a rising star in New Mexico who came to displease his political patrons. Miers told investigators that Rove called her in September 2006, “agitated” about the slow pace of public corruption cases against Democrats and weak efforts to pursue voter fraud cases in the state. In the call, Miers said that Rove had described Iglesias as a “serious problem” and said he wanted “something done” about it. Miers testified that she called then Deputy Attorney General Paul McNulty to pass along the concerns.

Also, The Post reports that the debilitating amnesia that afflicted former Attorney General Alberto Gonzales when he testified before Congress appears to be contagious.

In their testimony in June and July 2009, both Miers and Rove failed to recall key incidents , according to the transcripts. Miers said she could not recall events nearly 150 times in the course of her 10-hour deposition. Rove portrayed himself as receiving hundreds of e-mails a day, so that “asking me to remember replies is like asking me to remember a raindrop in a thunderstorm.”

Attorney General Eric Holder and President Barack Obama (AP Photo)

A series of letters between Sen. Richard Durbin (D-Ill.) and the Bush administration’s Department of Justice shed light on a reportedly impending Justice Department investigation that would mark the Obama administration’s first clear break from its predecessor’s policy of refusing to prosecute the torture and abuse of terror suspects.

Newsweek and The New York Times have recently reported, based on anonymous sources, that Attorney General Eric Holder is considering an investigation of the most serious cases of alleged abuses of terror suspect detainees by CIA interrogators who went “well beyond” the extreme methods authorized by the Justice Department. Although some human rights advocates have criticized the idea of investigating low-level CIA functionaries rather than the policymakers who made the rules and set the stage for abuse, the inquiry being contemplated would likely begin as a re-investigation of cases dropped by the Bush administration, and could well lead to prosecutions of those higher up the chain of command.

Illustration by: Matt Mahurin

Based on previous reports, the cases Holder would be likely to consider include, for example, the death of an Afghan detainee stripped naked, dragged and chained to a concrete floor by CIA operatives in a secret prison north of Kabul known as the “salt pit”; the prisoner was left there overnight and froze to death. Another concerns the death of Manadel al-Jamadi, an Iraqi insurgent who died just hours after being captured and beaten by Navy SEALs, then hung from his wrists at the Abu Ghraib prison. And then there’s the killing of Iraqi Maj. Gen. Abed Hamed Mowhoush, stuffed into a sleeping bag and clubbed to death.

Holder has reportedly indicated an interest in re-investigating these and other extreme cases of abuse, identified in a classified 2004 CIA inspector general report. Although that report has not been made public (it’s the subject of litigation between the ACLU and the Justice Department), previous communications from the Justice Department to members of Congress indicate that the inspector general referred about two dozen abuse cases to the Justice Department between 2001 and 2007.  The Justice Department “declined” to prosecute all but two under Bush. U.S. Attorney Paul McNulty, who headed many of these investigations in the Eastern District of Virginia, was subsequently promoted by President George W. Bush to the position of deputy attorney general in 2005.

Brian Benczkowski, then principal deputy assistant attorney general, explained the Justice Department’s refusals to prosecute in a letter to Sen. Richard Durbin (D-Ill.) in February 2008: “All of the declinations [to prosecute] resulted from insufficient evidence to warrant criminal prosecution for one or more of the following reasons:  insufficient evidence of criminal conduct, insufficient evidence of the subject’s involvement, insufficient evidence of criminal intent, and low probability of conviction.”

The letter was part of an ongoing dialogue between Durbin and the Justice Department dating back to 2005, when Durbin started asking then-Attorney General Alberto Gonzales about the status of the abuse referrals from the CIA and Defense Department. In a series of letters, Department of Justice officials repeatedly told Durbin and Sen. Patrick Leahy (D-Vt.) that the cases referred to them simply didn’t warrant prosecution, always for the same list of reasons.

Having read the inspector general report himself, Attorney General Eric Holder now appears to believe that his predecessors weren’t doing a very objective assessment, considering the brutality of the facts, like leaving a naked man to die in the cold or beating a man to death — which far exceeded even the Justice Department’s permissive guidelines.

The previous administration may have been reluctant to prosecute because its officials were the ones who approved of the techniques. And even if some interrogators went beyond what was specifically approved, as a recently released Office of Legal Counsel memo suggested, prosecutors might have believed it would still be too difficult to prove that CIA personnel intended to violate the law, rather than simply intending to carry out an authorized brutal interrogation, albeit with a bit more zeal than was allowed.

For Holder to appoint a prosecutor — either from inside or outside the Justice Department — to re-investigate these cases may seem like a narrow investigation to those who have been pushing for a broader inquiry. Indeed, last week Human Rights Watch wrote to Holder applauding the idea of a criminal investigation, but adding:

We would urge you, in defining the scope of such an investigation, to ensure that it reaches the officials most responsible for serious abuses. In particular, we would encourage you not to limit the investigation to low-level personnel who may have employed unauthorized interrogation techniques, but rather to look to the senior officials who planned, authorized, and facilitated the use of abusive methods that were in violation of US and international law. Any investigation that failed to reach those at the center of the policy, while pinning responsibility on line officers, would lack credibility both domestically and internationally.

As Geneve Mantri, government relations director for terrorism and counterterrorism and human rights at Amnesty International USA said last week about a Holder investigation: “If this does happen and they [the Justice Department] said ‘there was a great program, we’re just going to go after those who went beyond it’, we’ll be left in a bad situation, with learning nothing. We’ll be left trying to scramble to push for a truth commission, which will then be harder. And without a commission I don’t think we’re going to find out that much.”

On the other hand, a Holder investigation would be the first sign that the Obama Justice Department may break from its predecessor on the matter of investigating incidents torture and abuse — an acknowledgment that it can’t in good conscience only look forward without at least taking a second look at what’s already been done.

“We always were concerned that part of the reason these investigations didn’t go anywhere is because they involved techniques that were authorized,” said a staffer to a member of the Senate Judiciary Committee who did not want to be named. “I don’t buy that they’re just going to go after the low level people. There’s at least a chance that if these investigations move forward, they’ll go up the chain. If it involved techniques that were authorized that are illegal, you’d go to the person who had command responsibility for that.”

An honest and thorough investigation of the 22 cases the justice department previously refused to prosecute could well lead to an inquiry into the acts of more senior Bush administraiton officials who were giving the interrogators orders. And who knows how far up the chain of command that investigation might reach.

This article has been updated for clarity.

As I’ve explained before, the government’s decision to defend Yoo against charges he violated Padilla’s civil rights by authorizing abusive interrogation and detention policies was highly controversial, given that the government itself is no longer defending those tactics, and Yoo’s best defense may be that he was just following orders — from other DOJ or White House officials.

So earlier this month, Justice Department lawyers, who were representing Yoo in the pending case despite the serious potential conflicts of interest, told a federal judge in a court filing in San Francisco that “private counsel will be assuming representation of Mr. Yoo” in his appeal. Yoo and his government lawyers in June lost their attempt to have the case dismissed by a district court judge.

The case, brought by Padilla and his mother, claims Yoo violated Padilla’s civil rights by authorizing the government’s terrorist-detention policies and treating Padilla, an American citizen, as an “enemy combatant.”

By pulling out of Yoo’s defense, the Justice Department has now spared itself from having to defend Yoo’s expansive and much-criticized views of executive power, which would have been an embarrassment to the Obama administration.  And as Carrie Johnson of The Washington Post notes, it also frees Yoo to point the finger at other former government officials he might say were giving him orders — notably Vice President Dick Cheney, President George W. Bush, adviser David Addington and then-White House counsel Alberto R. Gonzales. That would be a sticky, if not impossible, argument for government lawyers to have made.

Yoo hasn’t completely lost his government support, though. His choice of private counsel, who’s defended Yoo in such sticky controversies before, is Miguel Estrada, a former Bush nominee for the U.S. Court of Appeals for the D.C. Circuit whose appointment was quashed in 2003 by Senate Democrats — a point harped on by Republicans during the recent confirmation hearing of Supreme Court nominee Sonia Sotomayor. Estrada’s fees will be paid by U.S. taxpayers.

Justice Department spokesperson Tracy Schmaler explained to The Recorder that this “is normal practice when the potential exists for disagreement between the government and the defendant over complex legal questions.”

According to notes from Ashcroft’s FBI security detail, at 6:20 p.m. that evening Card called the hospital and spoke with an agent in Ashcroft’s security detail, advising him that President Bush would be calling shortly to speak with Ashcroft. Ashcroft’s wife told the agent that Ashcroft would not accept the call. Ten minutes later, the agent called Ashcroft’s Chief of Staff David Ayers at DOJ to request that Ayers speak with Card about the President’s intention to call Ashcroft. The agent conveyed to Ayers Mrs. Ashcroft’s desire that no calls be made to Ashcroft for another day or two. However, at 6:45 p.m., Card and the President called the hospital and, according to the agent’s notes, “insisted on speaking [with Attorney General Ashcroft].” According to the agent’s notes, Mrs. Ashcroft took the call from Card and the President and was informed that Gonzales and Card were coming to the hospital to see Ashcroft regarding a matter involving national security.

Jack Goldsmith remembers that after a seriously-ill Ashcroft told Gonzales and Card to follow Comey’s legal advice, Goldsmith seriously thought Ashcroft might actually die right then and there. Ashcroft earns himself a place in the patriot’s pantheon just for that. I truly can’t wait to see how Bush’s presidential library treats this incident.

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So what does today’s Inspectors General report say about Gonzales?

[T]he DOJ [Inspector General] concluded that Gonzales, as a participant in the March 2004 dispute between the White House and DOJ and, more importantly, as the nation’s chief law enforcement officer, had a duty to balance his obligation not to disclose classified information with the need not to be misleading in his testimony about the events that nearly led to resignations of several senior officials at DOJ and the FBI. The DOJ [Inspector General] concluded that Gonzales did not intend to mislead Congress, but it found that his testimony was confusing, inaccurate, and had the effect of misleading those who were not knowledgeable about the program.

Gonzales, by the way, was just hired by Texas Tech’s political science department.

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