Attorney General Eric Holder (WDCpix)

When Attorney General Eric Holder announced earlier this month that the suspected plotters of the Sept. 11 terrorist attacks would be tried in civilian court, he also promised to seek the death penalty for all of them. But the heated debate that followed over the supposed dangers of trying “the worst of the worst” in a New York federal court has largely eclipsed the question of whether the death penalty is actually the best punishment for convicted terrorists.

Image by: Matt Mahurin

“It is in the strategic interests of the United States to deny these most heinous Al Qaeda terrorists what they want most: martyrdom,” wrote Ken Gude, associate director of the International Rights and Responsibility Program at the Center for American Progress, in a report released earlier this month. “Al Qaeda will exploit an execution by the U.S. government as a significant propaganda victory, no matter how fair and legitimate the trial,” he added in an article in The Guardian.

Even former Attorney General Michael Mukasey said last year that he hoped that these men would not be executed. Asked by students at the London School of Economics in 2008 whether he thought the Sept. 11 defendants, who were then facing military commission trials, should get the death penalty, he said: “I kind of hope they don’t get it. Because many of them want to be martyrs and it’s kind of like the conversation, you know, between the sadist and the masochist. The masochist says ‘Hit me’ and the sadist says ‘No.’ So I am kind of hoping they don’t get it.”

Other legal experts agree, but for different reasons. “I think the fact that the defendants want to be executed shouldn’t count either way,” said Michael Dorf, a law professor at Cornell University, who advocated against the death penalty for these suspects when they faced military commission trials last year. “However, I do think it is legitimate for the government to worry about the possible counter-productivity of the death penalty here. That is, if the government had concluded that executing [Khalid Shaikh Mohammed], et al were likely to substantially aid Al Qaeda in recruiting, a decision not to seek the death penalty could be based in part on that worry.” According to Dorf, executing the men not only wouldn’t deter other terrorists from committing similar crimes, but could even encourage them.

This debate comes at a difficult time for President Obama and his attorney general. The president has promised to close the Guantanamo Bay detention center by Jan. 22, but faces huge challenges. Those range from where to try the suspected terrorists housed there to where to send those that have been cleared for release but can’t be sent home due to potential persecution or political instability. Republicans, citing the dangers to the United States of trying terrorists on our soil and claiming the terrorists don’t deserve the rights accorded to criminal defendants in federal court, have pushed to try most terror suspects in military commissions. Many Democrats, prominent legal experts and former military leaders, on the other hand, have argued that civilian federal courts are better-equipped to handle such cases and would confer a legitimacy on the trials that is critical to restoring the United States’ reputation around the world. In deciding to try the Sept. 11 suspects in federal court, then, the Obama administration is eager to look like it’s still being tough on terrorism and its perpetrators. That may be influencing the decision to seek the death penalty.

Other countries have faced similar debates in the face of repeated terrorist attacks, and ultimately decided that executing terrorists was counterproductive. Although the death penalty is now outlawed in all European Union countries, when the U.K. House of Commons debated whether to repeal the death penalty in Northern Ireland in 1973, there was widespread agreement that executing terrorists, who often wanted to martyr themselves, would only lead to increased violence and terrorism.

The question raises a classic conundrum for criminal law theorists. Punishment in the American justice system is supposed to punish the criminal in a way that seems proportionate to the crime and also deter others from committing similar acts. But if suicide bombers are blowing themselves up for the cause, how much of a deterrent is the death penalty to these sorts of terrorists?

“It doesn’t make sense as a deterrent,” said Columbia Law Professor Jeffrey Fagan in an email. “Deterrence assumes a rational actor who perceives that the punishment costs exceed the benefits of the crime, and who will not act against his or her own self-interest. in this case, the punishment is no match for either the rewards of striking a significant blow at ‘The Great Satan’ or the rewards of martyrdom.”

Richard Dieter, Executive Director of the Death Penalty Information Center, agrees. “Terrorists expect to die or want to die,” he said. “There’s a chance that the death penalty feeds into that.” After the federal death penalty in the U.S. was expanded in 1994 to include terrorism, Dieter notes, “the very next year Timothy McVeigh blows up the Oklahoma federal building. So I don’t think anybody believes it’s much of a deterrent. It might even be an attractor.”

Of course, another purpose of criminal punishment is retribution. Under that theory, the criminal is supposed to get his just desserts –– an eye for an eye, in biblical terms. “For retribution, it doesn’t matter what his preferences are,” says Claire Finkelstein, professor of law and philosophy at the University of Pennsylvania Law School.

“Simply put, these monsters who specifically target civilians have no right to live,” wrote Rabbi Stuart Weiss, director of the Jewish Outreach Center of Ra’anana,in a recent op-ed in the Jerusalem Post, arguing that Israel, which has abolished the death penalty for almost all crimes, should reinstate it for terrorists. “They have forfeited the most basic human privilege by virtue of their crimes; any punishment save death is too good for them and is an obscene insult to the grieving victims of terror.”

It’s the classic notion of retribution. “The idea is that you return to the defendant what he has inflicted on the victim,” said Finkelstein. She herself doesn’t really think that’s possible, though. “There is no way to kill this man nearly 3,000 times, or force him to experience what his victims suffered as they tried to escape the twin towers,” she said.
Still, logical and even strategic considerations are often not what guides such decisions.

“There’s a lot of politics involved,” says Dieter. The Obama administration’s latest decisions on closing Guantanamo and trying terror suspects in federal court has opened it up to a rash of criticism from conservatives . “Maybe it’s part of this total picture that we’re closing this prison down there but that doesn’t mean we’re going to be soft on them,” said Dieter. “Once you open up the whole political world, the calculations are different.”

A new Rasmussen Reports telephone survey of Arizona voters finds Arpaio, famed for his crackdowns on illegal immigrants, leading Goddard, the state’s current attorney general, by 12 points – 51% to 39%. Seven percent (7%) prefer some other candidate, and four percent (4%) are undecided.

According to the survey, Goddard leads Republican Gov. Jan Brewer by a comfortable nine-point margin, and Goddard is virtually tied with State Treasurer Dean Martin. Brewer is the only one of the possible candidates who is officially in the race.

With numbers like this, could Arpaio be enticed to run for governor? And could he win?

Rumors have been swirling in Arizona for the past few months that Arpaio is mulling a gubernatorial bid, fueled by his antipathy for Goddard. The 77-year-old Arpaio was first elected in 1992, and he won re-election in 2008 by a commanding 13-point margin, with 55 percent of the vote. During that race, Arpaio raised more than $600,000 — an eye-popping sum for a countywide election. Effectively a modern-day political boss, “Sheriff Joe” is well-known for his heavy-handed tactics to combat illegal immigration and bragging about the harsh conditions in county detention facilities. He has launched investigations of numerous political opponents, including Goddard, Phoenix Mayor Phil Gordon, Maricopa County Supervisor Mary Rose Wilcox, the Phoenix New Times and the Maricopa County Superior Court.

While Arpaio remains extremely popular in Maricopa County — the home of Phoenix, Scottsdale and Tempe accounts for approximately 61 percent of Arizona’s population — Goddard has already proven himself in statewide races, having been elected attorney general in 2002, and re-elected in 2006 with 60 percent of the vote (pdf). A poll released last month by the ASU Cronkite School of Journalism and KAET found Arpaio had a 61 percent approval rating among Maricopa County voters, while the same survey found 55 percent of Arizona voters approve of Goddard’s performance. Arizona has been trending Democratic in recent years, but a Gallup poll from January found party identification in the state was essentially a dead heat, and one would be hard-pressed to find anybody in Arizona without a strong opinion about Arpaio.

All of this seems to confirm Rasmussen’s findings: If Arpaio got into the race against Goddard, he would stand a pretty good chance of winning. It’s also a safe bet that Arpaio would raise a lot of money from out-of-state illegal immigration opponents.

The Obama administration has already clashed with Arpaio on a couple of occasions. In March, the Justice Department announced it was opening an investigation into allegations of racial profiling and unlawful searches and seizures, and last month Arpaio was stripped of his authority to enforce federal immigration laws under the controversial 287(g) program.

But if the Justice Department thought Arpaio was a handful as sheriff of Maricopa County, just imagine what he could do with control of the state’s Department of Public Safety, and Republicans in control of both houses of the state legislature.

(Via Eric Kleefeld)

This post has been updated.

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.

President Barack Obama (WDCpix)

Although the Obama administration’s much-anticipated new policy on the use of the so-called “state secrets” privilege, announced this morning, has drawn some praise, civil liberties lawyers and other critics of the use of the privilege don’t think it solves the problem.

The state secrets privilege allows the government to conceal certain evidence in a court case that, if disclosed, would endanger national security by revealing “state secrets”. But who gets to decide what is a state secret and whether it will actually endanger national security has long been a point of contention. The Department of Justice, first under President Bush and then under President Obama, has invoked the privilege to ask courts to dismiss every single legal case that has come before them seeking compensation for torture or warrantless wiretapping by the government. That’s led critics to charge that the administration is trying to use the evidentiary privilege not to protect national security, but to conceal government wrongdoing and avoid embarrassment, or worse.

Today’s announcement says the government will use the privilege more sparingly, and requires the attorney general himself to sign off on its use. But the provision does not bar the government from using the privilege to try to dismiss cases alleging government wrongdoing.

“They don’t anywhere say, ‘we will not seek dismissal on state secrets grounds at the outset’” of a case, said Ben Wizner, a staff attorney at the American Civil Liberties Union who’s come up against the privilege while representing victims of torture. “They say we’re going to make an effort to apply it as narrowly as possible. But that doesn’t change what they’ve been doing all along.”

What the Department of Justice has been doing all along is essentially what the Obama administration has done in one case Wizner’s working on, in which a victim of torture due to the CIA’s “extraordinary rendition” program sued Jeppesen Dataplan, a subsidiary of Boeing, claiming the company was partly responsible for helping transport CIA prisoners to other countries to be tortured. The government claimed that allowing the case to go forward would reveal state secrets and endanger national security, and asked the court to dismiss it. Eventually, the ACLU won the right to proceed with the litigation, but the Obama administration in June asked the court of appeals to reconsider and dismiss the case.

“Any new policy will be an empty gesture if the administration continues to assert the same expansive theory of state secrets to dismiss cases brought by torture victims,” Wizner said Wednesday. “At the same time that they are rolling out this new policy with fanfare, they are asking the Ninth Circuit [Court of Appeals] to reverse its own decision and rehear the case because of state secrets.”

The Jeppesen case is one of several where the Obama administration has made the same expansive arguments that entire cases should be dismissed to protect state secrets, rather than simply excluding the particular piece of evidence that could actually endanger national security.

The real problem, say critics, is that the Obama administration is trying to use its new policy as a way to prevent the passage of legislation that will clarify the role of the executive versus the role of the courts.

“The Bush administration’s approach to state secrets was wrong-headed, causing significant public distrust and potentially shielding government wrongdoing and embarrassing mistakes behind a questionable legal doctrine,” said Sen. Russ Feingold (D-Wis.) in a statement released after the Justice Department’s announcement today. Feingold is a cosponsor of the proposed State Secrets Protection Act, which would provide guidance to federal courts considering cases where the government has asserted the state secrets privilege. “While I am pleased that the Obama administration recognizes that the Bush approach was a mistake, its new policy is disappointing because it still amounts to an approach of ‘just trust us.’ ”

Or as Wizner put it, “this is voluntary executive self-policing.” Legislation would “bind not just this president but the next one. That’s critical.”

What’s more, the new policy doesn’t really address the role of judges in cases where the privilege is invoked. The proposed legislation, on the other hand, “says courts cannot dismiss cases simply on the basis that the government claims the case involves state secrets. The legislation says courts are required to look at the underlying evidence” and decide for themselves.  In many of these cases that have come up so far, it’s the government agency being sued — such as the CIA — that submits a statement to the court saying that the evidence that it committed a crime would endanger national security. “The court shouldn’t be able to rely just on an affidavit filed by the perpetrator,” said Wizner.

Under the proposed State Secrets Protection Act, if a court looks at the evidence and determines that some piece of it really does constitute a state secret — say, the identity of a CIA agent — then that evidence would be removed from the case. But before making that determination, the judge would have to explore every alternative, to see if other tools, such as protective orders, could be used to protect the evidence but still allow it to be used. If carefully and narrowly applied, says Wizner, only particular pieces of evidence that are not important to the litigation would have to be excluded. “No one’s saying we can litigate the identity of covert agents in civil cases,” says Wizner.

Ken Gude, Associate Director of the International Rights and Responsibility Program at the progressive Center for American Progress, expressed similar concerns about the Obama administration’s new state secrets policy. “My main concern is that the government should not be able to have a whole case dismissed simply by asserting a state secrets claim,” he said in an e-mail on Wednesday. “There may be instances when it’s simply not possible to proceed without certain evidence, but that should result from a subsequent decision after the plaintiffs have had a chance to plead their case without the material.”

That seemed to be what President Obama supported, too, when he first spoke about the state secrets privilege back in April. At an April 29 press conference, he called the state secrets doctrine “overbroad.” He went on to say that “searching for ways to redact, to carve out certain cases, to see what can be done, so that a judge in chambers can review information, without it being an open court — you know, there should be some additional tools, so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that, as we speak.”
Today’s announcement is the policy that resulted from that process. But critics aren’t convinced it that it will actually accomplish what the president has promised.

As Feingold said today: “Independent court review of the government’s use of the state secrets privilege is essential. I urge the administration to work with Congress to develop legislation that sets reasonable limits on the privilege and will not be subject to change under each successive president.”

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Tavis Smiley interviews Barack Obama in October 2007 (YouTube: BarackObamadotcom)

As the housing market began booming in the mid-2000s, Wells Fargo & Co. teamed up with prominent African American commentator and PBS talk show host Tavis Smiley and financial author Kelvin Boston, the host of “Moneywise,” a multicultural financial affairs show, to host something called “Wealth Building” seminars in black neighborhoods.

Smiley was the keynote speaker, and the big draw, according to Boston and Keith Corbett, executive vice president of the Center for Responsible Lending, who attended two of the seminars. Smiley would charge up the audience — and rattle the Wells Fargo executives in attendance — by launching into a story about how he hated banks, and how they used to refuse to lend him money for his real estate projects in Compton, Calif., and elsewhere. After Hurricane Katrina, Smiley also emphasized the importance of building assets and wealth, saying those who had done so were able to leave New Orleans, while people with nothing had to stay behind, Boston said.

Illustration by: Matt Mahurin

“My spiel was the financial planning process, how you want to be able to save and invest for the future, and to have a plan of action,” Boston said. “Then Tavis talked about his experiences with the banks, and how people should be thinking about some real estate.”

The seminars in some cities drew standing room only crowds, with numerous Wells Fargo representatives on hand, seated at carrels to meet one-on-one with potential borrowers who lined up after the speeches, which were usually held in hotels. The free, day-long events were heavily advertised in the black media, and launched in eight cities, including Baltimore, Chicago, Richmond, Va., and San Francisco.

But what appeared on the surface as a way to help black borrowers build wealth was actually just the opposite, according to a little-noticed explanation of the “Wealth Building” seminar strategy, contained in a lawsuit recently filed by Illinois Attorney General Lisa Madigan.

Wells’ plan for the seminars all along was to target black borrowers for higher-cost subprime mortgages, not for wealth-building, the suit charged. And the seminars were a part of the bank’s overall illegal and discriminatory practice of steering black and Hispanic borrowers into riskier and more expensive loans, the suit said.

“According to a former Wells Fargo Home Mortgage employee, one of these ‘Wealth Building’ seminars held in Maryland was planned for an audience that would be virtually all African American,” the suit said. “The plan for the seminar was for Wells Fargo Home Mortgage employees to talk about subprime mortgages, although they were directed by Wells Fargo Home Mortgage to use the term ‘alternative lending’ when marketing these products.”

The former employee, who is white, was scheduled to speak at the seminar, but was told by a manager that she was “too white,” and that only black employees could make presentations, the suit said.

Wells Fargo, one of the nation’s largest mortgage lenders and a recipient of $25 billion in government bailout money, has denied all the charges in the Illinois suit, as well as other allegations of unfair lending. The bank did not respond to requests for comment on the seminars. Smiley, an author and advocate who hosts the late night talk show, “Tavis Smiley,” and who organizes the State of the Black Union symposiums each year, also declined comment.

Corbett pointed out that Wells’ outreach to the minority community through the seminars wasn’t unusual. Lenders sponsoring financial literacy sessions, holding wealth building seminars, or contributing to local minority advocacy organizations, became a common marketing strategy as the subprime market grew. Some of the efforts were genuine, aimed at finding new customers in minority neighborhoods once deprived of credit. But sometimes they were used instead as a cover to push predatory loans, Corbett said.

“The wealth building seminars are certainly needed,” Corbett said. “But, if, in fact, Wells was selling bad products out of them, it was totally wrong.”

Boston, for his part, described himself as the small player in the seminars, giving an opening talk before Smiley went on. Boston said he spoke in general terms about the need to save money and to invest. Neither he nor Smiley ever mentioned or discussed subprime loans, he said.

“Basically we were just speakers for hire,” Boston said. “We didn’t have any role or any control over what else happened. The main point is that we were not involved in any of their discussions or in anything they sold.”

Corbett said that after the speakers finished, bank employees and other financial experts were offering credit checks, real estate counseling, and other kinds of assistance. Corbett said he also believes some employees were signing up people for loan pre-approvals, on the spot, though he couldn’t be sure of what kind of loans they were. He said attendees lined up to talk to the Wells employees in both events. “If they weren’t actually selling loans, they were setting up borrowers for the kill,”  Corbett said.

Once their speeches were over, however, Boston said he and Smiley  had nothing to do with the workshops and counseling. He said he and Smiley together did about 15 seminars over a period of about two years. He declined to comment on how much he or Smiley were paid.

In 2005, before the subprime crisis, Boston said, the main worry in the black community over mortgage lending was the banks were lagging behind in their lending to minority neighborhoods. He said expressed his concerns about this to Wells Fargo. Smiley, he said, also later raised questions about subprime lending tactics with the bank. “Tavis definitely had some dealings with them on this issue,” Boston said.

Nonetheless, in hindsight and with the collapse of the subprime mortgage market, Boston said he has second thoughts about participating in the seminars.

“Were we probably used? We probably were,” he said. “If I had the chance to do it over again, would I do it in a different manner? Probably.”

“You look back now and you feel for the homeowner who could have qualified for a better mortgage and got the costly type of mortgage. That concerns me a lot, not just for Wells Fargo, but for everybody out there, Citigroup, Countrywide … they were all doing the same events.”

But at the time, Boston said, having a major bank doing outreach in the black community was considered an encouraging development, after so many years of redlining and restricted access to credit. “We all thought at the time that we were doing a positive thing,” he said.

Boston said he quit doing the seminars after his contract ended two years ago. Smiley, he said, continued to work with Wells Fargo, particularly on his annual State of the Black Union symposiums. On his Website, Smiley recently posted a statement regarding Wells Fargo that said, “in this economic climate, we continue to be reminded every day that there is no perfect company.”

Smiley said in the statement that his relationship with Wells began in 2005, as part of the bank’s  “commitment to increase financial literacy in the African American community.” He said that “the partnership with Wells Fargo focused on building personal wealth, which for most Americans begins with buying a house.”

According to the statement, Smiley also has had partnerships with other companies, but has never served as a spokesperson or representative for any of them, including Wells Fargo. The statement also said Wells Fargo will no longer be one of the sponsors of his Black State of the Union event in 2010, although the bank sponsored the event as recently as last spring.

“Given the fact that Wells Fargo has been an industry leader, they have partnered with many African American and Latino national civil rights organizations on various community initiatives,” the statement said.

The Illinois lawsuit against Wells is one of many such actions winding their way through the court system around the country, offering more details of alleged discriminatory tactics by lenders during the height of the subprime boom. As TWI reported last week, housing advocates call these lawsuits the “smoking guns” of the housing crisis, providing what they see as proof that lenders deliberately targeted minorities for high-rate and risky subprime mortgages, while white borrowers with similar incomes and credit scores received lower-cost loans.

In a city of Baltimore lawsuit against Wells, former employees charged that Wells Fargo loan officers referred to minority borrowers as “mud people” and called subprime mortgages “ghetto loans.” But some prominent black bloggers find the “wealth building” seminars just as egregious, and question why Smiley, Boston, and anyone else who participated in them hasn’t been called on further to account for their actions.

“If Tavis Smiley was white, Wells Fargo and ‘Ghetto Loans’ would be front page news,” wrote Genma Stringer Holmes, a Nashville, Tenn., business owner and blogger who has blasted out several posts on the seminars.

Holmes said Smiley should speak out more against discriminatory subprime lending practices – but he hasn’t been forced to, because the black media has been silent on the issue, she said. The scandal that remains is that the ads and seminars targeted the most vulnerable members of black community, according to Holmes. “People who follow Tavis will follow him off a cliff,” Holmes said.

Boston said he still does seminars and presentations pushing wealth building, but he focuses on avoiding foreclosures and helping with loan modifications. He recently wrapped up work on an upcoming show on helping homeowners facing foreclosures, he said.

This story has been updated for clarity.

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“At the end of investigating is the time when you decide who to prosecute. You don’t decide who to prosecute before you investigate.”

That is the normal course of how investigations work. And that’s why Attorney General Eric Holder announced that he was opening a “preliminary review” into certain cases of extreme detainee abuse; notwithstanding the conventional wisdom based on plenty of cheap political analyses to the contrary, Holder didn’t say that the investigation would be limited to looking only at the actions of specific individuals.

As I’ve argued before, that investigation, if done properly, could eventually lead to investigating the actions of individuals higher up the chain of command. “When you’re talking about high-level officials,” says Abdo, “it’s important to investigate whether the attorneys were providing high level legal advice, or providing legal cover to the decisions made by high level officials.”

Interestingly, as Abdo and others point out, the CIA inspector general report released on Monday did not mention anything about high level officials. Or at least the parts of the report that were not blacked out didn’t talk about the role of the White House or other senior officials. Yet we know from previously released documents that the White House and senior officials were closely involved in the decisionmaking about interrogations.

“You would think it would be in the report because the report discusses the origin of the CIA’s enhanced interrogation technique program,” says Abdo. “And that’s relevant to whether the CIA thought it needed these techniques, or whether they were handed to them by high level officials.”

Lawyer and blogger Scott Horton made a similar point when he appeared with me on MSNBC’s Live with Carlos Watson yesterday. And he laid out the case against Cheney that may be hidden behind that black magic marker in his blog at Harper’s:

All trails lead to the Vice President’s office. At several points, redactions begin just when the discussion is headed toward the supervision or direction of the program and context suggests that some figure far up the Washington food chain is intervening. Moreover, as Jane Mayer recounts in Dark Side, Helgerson’s report was shut down when he was summoned, twice, to meet with Dick Cheney, who insisted that the report be stopped. Cheney had good reason to be concerned. This report shows that the vice president intervened directly in the process and ensured that the program was implemented. The OPR report likewise shows Cheney’s office commissioning the torture memos and carefully supervising the process. It is increasingly clear that torture was Dick Cheney’s special project and that he was personally and deeply involved in it. And the CIA report has some amazing nuggets that show Cheney’s hand. In 2003, after Jay Bybee departed OLC, Cheney struggled to have John Yoo installed as his successor, but ultimately John Ashcroft’s candidate, Jack Goldsmith, prevailed. Goldsmith quickly backtracked on the torture authorizations that Yoo and Bybee gave. The result? The CIA stopped taking its cue from OLC and instead turned to the White House for guidance. It is remarkably vague on the particulars, and blackouts emerge just as passages seem to be getting interesting. But there’s little doubt that Dick Cheney and his staff were pushing the process from behind the scenes.

What a surprise that Cheney is now the most vocal critic of Holder’s decision to appoint a prosecutor to conduct a “preliminary review.”

Abdo said the ACLU is still deciding whether to challenge the government’s redactions of the inspector general report. If it does, the judge would review what’s been blacked out and decide if it was properly classified, or if it was simply redacted to protect the government from embarrassment or conceal evidence of criminal conduct.

The President has said repeatedly that he wants to look forward, not back, and the President agrees with the Attorney General that those who acted in good faith and within the scope of legal guidance should not be prosecuted. Ultimately, determinations about whether someone broke the law are made independently by the Attorney General.

Here’s an excerpt:

Feingold: Is there any doubt in your mind that the warrantless wiretapping program was illegal?

Holder: As it was put together at the t time it was certainly unwise … It now exists with congressional approval, so the concerns I addressed in that speech [referring to a speech at the American Constitution Society before he became Attorney General] no longer exist.

Feingold: I asked if it was illegal, not unwise.

Holder: I thought actions the administration had taken were inconsistent with the dictates of FISA.  And as a result I thought the policy was an unwise one.  The concerns I addressed then have been remedied by Congress.

Feingold: Was it illegal?

Holder: I said it was inconsistent with the dictates of FISA.

Feingold: That sounds awfully mild compared to a very clear statement and very clear principle here … Many people like me believe that if the statute is that explicit then it is unconstitutional for the president and illegal for the president to override the express will of the Congress.

Holder: I think what I’m saying now is consistent with what I’m saying in the speech.

While it seems clear that Holder still thinks the previous administration violated the law (I assume that’s what “inconsistent with the dictates of FISA” means), Holder is obviously reluctant to use the word “illegal,” likely because it suggests that he, as attorney general, might have to prosecute someone for it.

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But campaign finance watchdogs, while praising the attorney general’s acknowledgment of prosecutors’ wrongdoing, want more information about why Holder said he’s not going to re-try Stevens on the charges of failing to disclose gifts worth about $250,000 from an Alaska energy firm.

“The motion filed by the Government in the case today and other allegations of prosecutorial misconduct in the case are gravely serious and must be fully addressed,” said J. Gerald Hebert, Executive Director of the Campaign Legal Center, in a statement released today. “But the outright dismissal of an indictment rather than agreeing to a new trial is such an extreme measure that it warrants additional explanation. What is it about the information that now justifies outright dismissal of the indictment with prejudice?”

To be sure, the government’s motion filed with the District Court gives no clue. It says only that the interview notes of a key witness were not provided to Stevens or his lawyer when they should have been. “The Government believes that granting a new trial is in the interest of justice. See Fed. R. Crim. P. 33(a).”

But the Government goes on to say that it’s “further determined that, based on the totality of circumstances and in the interest of justice, it will not seek a new trial.”

Why not? As Hebert notes, “a prior inconsistent statement, even of a key witness, is likely not the only reason that our nation’s chief law enforcement officer would authorize prosecutors to seek a dismissal of an indictment after conviction, especially in a high profile case like this.”

Sure, Stevens is 85 years old, and some, like Senate Majority Leader Harry Reid (D-Nev.), have said that he just didn’t understand today’s rules, and putting him in prison won’t do any good. But as Hebert points out, “he was prepared (if he won re-election) to serve another 6-year term,” despite strong evidence that he lied and accepted hundreds of thousands of dollars in valuable gifts that he never reported.

The attorney general ought to provide more information, then, about why he’s dropping the case, said Hebert, who also wants “assurances that the public integrity section of the Department of Justice’s Criminal Division is now being supervised to a degree that pending investigations (e.g., arising out of the Abramoff scandal, Rep. Jefferson, Rep. Doolittle, etc.) are not at risk of being thrown out for similar prosecutorial misconduct.”

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Ever since Binyam Mohamed — the Ethiopian-born Guantanamo detainee who claims he was tortured as part of the CIA’s “extraordinary rendition” program (and whom I’ve written about previously here) — was returned to Britain, his case has caused an uproar there because he claims that the British intelligence agents colluded with the United States government in his torture.

Today, Baroness Patricia Scotland QC  — said she would refer the evidence, both classified and not, to the police, to begin an investigation.

“I have expressed to the Commissioner the hope that the investigation can be taken forward as expeditiously as possible given the seriousness and sensitivity of the issues involved,” she said in a statement released today.

Meanwhile, here in the United States, despite repeated calls for the attorney general to launch an investigation into the CIA’s extraordinary rendition practices and the torture of detainees at Abu Ghraib, Bagram and Guantanamo Bay, Attorney General Eric Holder has equivocated (as has President Obama) and no such criminal investigation has begun. (The Senate Select Committee on Intelligence, on the other hand, is investigating the CIA’s practices, as I’ve reported, but not for criminal culpability. And a previous Senate Armed Services Committee investigation, despite damning results that orders for abusive and inhumane conduct came from the highest levels of the Bush administration, has likewise not led to a criminal investigation.)

When Mohamed and other torture victims brought their case to court by suing Jeppesen Dataplan, the private Boeing subsidiary that assisted the CIA perform renditions, the U.S. government moved to have their case dismissed.

As Glenn Greenwald at Salon has noted, nobody in the United Kingdom is making the Obama administration’s argument — that we ought to all look forward rather than backward. And it’s not like the United Kingdom doesn’t have an economic crisis of its own to deal with, too.

So why is the British prosecutor willing to look “backward” to find out whether crimes were committed, while we seem committed only to burying our heads deeper in the sand?