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.

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.”

“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.”

Section 215 of the Patriot Act, known as the “business records provision,” relaxed the previous standard the government had to meet to obtain personal information from banks, hospitals, libraries, retail stores and other institutions. Previously, the government had to show that it had evidence that the person whose records it sought was a terrorist or spy. With passage of the Patriot Act, that standard was lowered to permit the government to collect any records it considered “relevant to an investigation.”

Wyden, Feingold and Durbin have been arguing that the relevance standard is far too broad and violates the privacy rights of ordinary law-abiding Americans. But they also claim that the government is withholding key information from Congress that would allow lawmakers to make an informed judgment about the issue. Although it’s not clear exactly what information they’re talking about, since even a description of the information is classified, it would seem to be information about how the government has used the business records provision, and what evidence it has obtained by its use.

As Jennifer Hoelzer, Wyden’s communications director, said in an e-mail: “The fact that I can’t in anyway characterize the information in itself highlights the problem and why we believe it is so essential that the Justice Department declassify this information. Senators should know what they are voting on.”

Here’s part of what Wyden wrote in The Huffington Post on this issue a few weeks ago:

I have served on the Senate Intelligence Committee for eight years, and I have yet to see evidence — classified or otherwise — that has convinced me that revising the business records provision to include a less intrusive standard would be harmful to U.S. national security. Yet as Congress considers whether to reauthorize this standard — written in a rush to judgment eight years ago — some will undoubtedly argue that Congress should just trust that the provision is essential and blindly sign-off on reauthorization. I disagree. While “just trust us” has passed as informed national security debate in this country for eight years, it hasn’t resulted in good national security policy.

The senators’ latest letter to the attorney general on this issue is here.

The White House was also dissatisfied with Craig’s handling of political appointments, believing that Craig should have spent more time working with the Justice Department and with Congress to force through some of the president’s most eagerly awaited principals, like Dawn Johnsen, whose nomination to be head of the Justice Department’s Office of Legal Counsel still languishes. The issue of nominations is especially sensitive for the president, a constitutional law lecturer in his former life.

My colleague Daphne Eviatar has reported extensively on the parliamentary machinations keeping Johnsen bottled up in the Senate.

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.”

Glenn Greenwald has pointed out the irony of Republicans now raising fears of another terror attack simply because the president has decided to prosecute terror suspects in a way that’s consistent with American values.

But some important points are being drowned out by the hysteria. Retired Adm. John Hutson, now the dean of Franklin Pierce Law Center, yesterday observed that “there’s no particular reason to believe that if terrorists are going to take vengeance on the US for prosecuting these people, that that’s going to happen at the location or at a hard target.” A federal supermax prison or high-security New York City jail is actually “the least likely place for vengeance to be taken,” given the obstacles presented by all the security, he said on a conference call organized by Human Rights First. “The logical consequence of that stream of logic is that we not prosecute them at all to avoid some form of retribution.”

The other point largely overlooked is that while Attorney General Eric Holder announced plans to try the alleged 9/11 plotters in federal court, he also announced that the suspected USS Cole bomber, among others who’ve attacked U.S. soldiers or military targets, would be tried in the newly reconstituted military commissions. So are they getting a lesser trial?

“Despite the changes enacted by Congress this year, that untested system does not have the track record of fairness and justice that our criminal justice system has,” said Sen. Russell Feingold (D-Wis.) yesterday, after praising the decision to try KSM and his alleged co-conspirators in federal court.

Col. Morris Davis, the former chief military prosecutor for the commissions, made this important point Sunday in The Wall Street Journal: having two different justice systems “establish[es] 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.”

Another former military prosecutor, Lt. Col. Darrel Vandeveld, who resigned his post in protest last September, echoed that yesterday. “To say that you’ve achieved the gold standard for certain defendants by holding their trials in federal courts, and the rest can go to Gtmo, doesn’t necessarily resurrect the image of Gtmo or the military commissions as beacons of fairness. And if one of the stated goals in closing Gtmo is to restore America’s moral position in the world, the decision taken today won’t get us closer to accomplishing that.”

Holder’s justification for trying the Cole bomber and others by military commission is that in each case, their targets were a U.S. soldier or military installation. But isn’t that what we use our regularly constituted military courts for? Isn’t that why Major Nidal Malik Hassan, who last week apparently shot up 13 soldiers at the Fort Hood military base, is being tried by court martial? The only difference would appear to be that the suspects headed for military commissions are not American citizens. So that’s why they get an inferior justice system?

That decision combined with the implicit acknowledgment in Holder’s  announcement yesterday that U.S. federal courts a superior form of justice to the military commissions just highlights a question that’s becoming increasingly difficult to answer:  Just what is the purpose of those new military commissions?

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.

Attorney General Eric Holder (WDCpix)

On October 30, the Justice Department for the first time applied its new “state secrets” policy to a case charging the government with breaking the law. Open government advocates hoping for a significant change in the government’s stance toward secrecy in national security cases were sorely disappointed. Attorney General Eric Holder said that in the case of Shubert v. Obama — a class action filed in 2007 claiming that the National Security Agency has an ongoing dragnet surveillance program spying on the telephone and e-mail communications of ordinary Americans — the government would do the same thing it’s done repeatedly in the past: it would move to dismiss the case, because even to respond to the charges would endanger national security by revealing sensitive “state secrets.”

The state secrets privilege allows the government to ask a court to dismiss a case filed against it by claiming that merely allowing the case to move forward in court would reveal government secrets and jeopardize national security. It’s frequently used by the Justice Department in cases alleging warrantless wiretapping, “extraordinary rendition” and abuse of detainees by U.S. officials has angered open-government advocates, who claim that the Bush administration, and now President Obama, is using the evidentiary privilege to conceal government wrongdoing.

Image by: Matt Mahurin

“We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power,” Holder insisted, adding that “we have given the court the information it needs to conduct its own independent assessment of our claim by filing a classified submission outlining the underlying facts and providing a detailed record upon which it can rely.”

Because that information is filed with the court under seal, however, it’s impossible to know whether the government’s reasons are legitimate. That decision will be made by Judge Vaughn Walker, the federal judge in the Northern District of California who’s presiding over this and several other pending cases that the government also claims involve “state secrets.”

But lawyers and advocates for government transparency were dismayed that the Obama administration would even assert the privilege in the Shubert case after promising to severely restrict its use.

“What they’re saying is, ‘because of state secrets, we can’t tell you what the program is,’” said Ilann Maazel, a lawyer representing Virginia Shubert and the three other Brooklyn residents named in the the case who claim the government has been wiretapping them without a warrant. “There’s no limit to the state secrets privilege in their view. There’s no law they cannot violate that implicates national security in their view. Their view is, ‘just trust us.’ ”

Maazel is hardly the only one disappointed with how the Obama administration has used the privilege so far.

“The DOJ continues to embrace the very same “state secrets” theories of the Bush administration—which Democrats generally and Barack Obama specifically once vehemently condemned—and is doing so in order literally to shield the President from judicial review or accountability when he is accused of breaking the law,” wrote Salon blogger and constitutional lawyer Glenn Greenwald after the Justice Department moved to dismiss the Shubert case.

Daniel Metcalfe, a former Justice Department official and now Executive Director of the Collaboration on Government Secrecy at American University’s Washington College of Law, also thinks the new administration’s record on the issue overall has been disappointing.

“On the state secrets privilege as well as other transparency issues, the Obama administration has an easy act to follow, in that the Bush administration was so extremely secretive across the board,” he said. “But from early on, specifically as of February 9 when the Obama administration began following the Bush administration’s state secrets position in the case of Mohamed v. Jeppesen Dataplan,” a lawsuit challenging the government for its role in torture and extraordinary rendition, “open government advocates have been quite alarmed,” said Metcalfe. Although he acknowledged that it takes time for a new administration to develop its own policies, “the Obama administration’s eventual state secrets policy issuance of September 23 has done very little to assuage these growing concerns.”

The Collaboration on Government Secrecy gives President Obama a “D” on its secrecy/transparency scorecard for his use of the state secrets privilege so far. Metcalfe added that the Justice Department still has not completed a promised review of the cases where the government has invoked the state secrets privilege to dismiss them. The new state secrets policy announced in September did not mention that review.

The problem isn’t only that Holder wants to ues the privilege once again to dismiss a case that challenges government conduct. As Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists has pointed out in his blog, the government may not even be following all aspects of its new policy.

Part of that policy, announced in September after months of delay, attempts to respond to the concern that the state secrets policy can be used to conceal government lawbreaking. The new policy requires more thorough review by senior Justice Department officials, including the Attorney General himself. But it also says that if the Attorney General believes the case “raises credible allegations of government wrongdoing,” he’s supposed to refer those allegations to an Inspector General for further investigation.

Shubert v. Obama claims the government is engaged in a broad surveillance “dragnet” that monitors ordinary Americans’ phone and internet communications without a warrant and without any suspicion that the targets have done anything wrong. It would all sound very sci-fi — and therefore, perhaps, not credible — if there weren’t strong evidence to back it up. That evidence was first introduced in the case of Jewel v. NSA, brought by the Electronic Frontier Foundation last year. In that case, a former AT&T telecommunications technician named Mark Klein submitted a sworn declaration describing how AT&T routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. Only employees cleared by the NSA were allowed to enter the room. The government has likewise moved to dismiss that case on state secrets grounds. The matter is still pending in the same federal district court in California where the Shubert case is filed.

After Klein’s testimony became public, another whistleblower came forward, this time a former NSA Intelligence Analyst. In January, Russell Tice told Keith Olbermann on MSNBC that “the NSA had access to all Americans’ communications – faxes, phone calls, computer communications. They monitored all communications.”

But is that enough evidence to require the Attorney General to refer the claims to an Inspector General for investigation, as the new policy requires? It’s impossible to know, because the new policy doesn’t say how the AG should decide which claims are “credible.”

Asked whether the Justice Department referred the matter to an inspector general, spokesperson Tracy Schmaler told TWI that she “can’t comment specifically” on that question, adding: “just to be clear, there is no automatic referral in the policy.”

As for whether guidelines or regulations govern the credibility determination, Schmaler said she couldn’t go beyond the statement made by the Attorney General when he announced his application of the state secrets privilege to the Shubert case.

Ultimately, critics say the problem with even the new state secrets policy is that it leaves too much discretion to the executive to decide what information is so sensitive that it cannot be disclosed even to a judge behind closed doors – and what constitutes a credible allegation against the executive branch that’s worth investigating. The Foreign Intelligence Surveillance Act provides various ways that the government can produce information to a court and have it still remain secret, but allow a legal challenge to government conduct to proceed.

The Obama administration’s use of the state secrets privilege to try to dismiss the Shubert case “demonstrates that we can’t count on the executive to rein itself in when it comes to the state secrets privilege,” said Kevin Bankston, an attorney with the Electronic Frontier Foundation working on the Jewel case.

Although the debate over the privilege sounds technical, what’s at stake isn’t just courtroom procedure. It’s whether the government can get away with engaging in illegal conduct simply by claiming that the evidence is too sensitive to reveal.

“There is not a single person in the United States government who has disavowed the dragnet program, who has said that it’s stopped,” said Maazel, referring to the claims in the Shubert case. Although the government has said that warrantless wiretapping under the Terrorist Surveillance Program has stopped, the Obama administration has not said that warrantless wiretapping isn’t ongoing under some other program. “We have every reason to believe that the copping and splitting in San Francisco is continuing,” said Maazel, referring to the way the government allegedly duplicates messages for monitoring purposes.

Experts note that the state secrets privilege actually encourages illegal conduct in national security matters, since the government knows it can be invoked as a shield. “The basic nature of the state secrets privilege always has been that it can remove a disincentive that the government ordinarily would have against engaging in highly questionable, if not outright wrongful, conduct,” said Metcalfe.

Regardless of how Judge Walker rules in these cases (they’ve all be transferred to his court), the issue isn’t going away. Democrats in Congress have introduced legislation that would keep courts from dismissing cases based solely on the government’s assertion that the case would reveal state secrets. Last week the House Judiciary Committee approved the bill introduced by Rep. Jerrold Nadler (D-NY), after Nadler called the government’s use of the privilege “the greatest threat to liberty at present.”

President Obama, for his part, has avoided taking any position on it. In fact, when a House Judiciary subcommittee in June held a hearing on the proposed legislation, the Justice Department did not even send a witness to testify about its use, saying only that the policy was still under review.

A justice department attorney is expected to appear at a conference next week on the subject being held at Washington College of Law at American University, and will surely be asked about the administration’s views. Metcalfe, who’s convening the conference, hopes the department will also be prepared to report the results of the litigation review that Holder said the department was undertaking in February. That review could lead the government to change its position on asserting the privilege in some pending cases.

Ultimately, if Congress doesn’t pass legislation on the state secrets privilege, the matter could end up in the Supreme Court, which first recognized this controversial executive privilege back in 1953. The court dismissed that case, brought by widows of civilians killed in a military plane crash, because the government claimed it would reveal military secrets. But when the accident report was finally declassified in 2000, rather than military secrets, it revealed gross military negligence that would have been damning evidence against the government in the case. (The case settled in 1953 for $170,000.)

“The Supreme Court hasn’t heard a state secrets case since 1953,” said Maazel. “There’s no question they will have one sooner rather than later.”