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.

NPR’s Nina Totenberg this morning had an excellent roundup on the issue, while The New York Times, The Washington Post and the Los Angeles Times all have sharply worded editorials today chastising Republicans such as Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee. Sessions has vowed to vote against cloture for the Hamilton nomination after years of haranguing Democrats for daring to block Republican judicial nominees.

Hamilton is a widely respected federal judge in Indiana who has the support of his home state’s Republican senator, Richard Lugar. But critics, who call him “the anti-Jesus pro-Allah judge”, don’t like that he ruled against allowing sectarian prayers as part of the official proceedings of the Indiana House of Representatives. They also don’t like that he struck down a law requiring women to have face-to-face counseling before being allowed to exercise their constitutional right to an abortion.

While it’s not surprising that some Republicans don’t like those rulings, that’s not supposed to be grounds for blocking a vote on the president’s nominee. No one is arguing that the Yale-educated, former Fulbright fellow who’s won the support of the American Bar Association isn’t qualified for the job. In contrast, Democrats allowed a vote on President George W. Bush’s nomination of Judge Jay Bybee to the Ninth Circuit Court of Appeals, even though as a Justice Department Lawyer Bybee approved memos authorizing the torture and abuse of detainees that even prominent Republicans have since disavowed and that sparked an ethical investigation into his conduct.

But in addition to Republican obstructionism, President Obama hasn’t exactly gone out on a limb to push his judicial nominations forward. Alliance for Justice has issued a report pointing out the paucity of judges nominated and confirmed by the Senate so far under Obama as compared to the first year of the previous administration. After Obama’s first ten months in office, only five judges had been confirmed by the Senate, 22 nominees remained pending and 97 vacancies were still open. During George W. Bush’s first year in office, the president had nominated 64 judges and won confirmation of 18 by mid-November. Meanwhile, Obama is operating with a strong majority of Democrats in the Senate, whereas Bush had to deal with a Democratic-controlled Senate in 2001.

Hamilton is likely to get a vote this week. Even so, the Obama administration still has a lot of catching up to do.

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.

On television it’s hard to miss the wildly popular band of slackers singing ruefully from a shabby apartment or while waiting tables in pirate regalia. The ruined credit that led to their financial misfortune might have been sparkling if only they’d tracked their status on freecreditreport.com.

The Federal Trade Commission is not amused. It has long believed that the company that owns freecreditreport.com is deliberately diverting people from a government-mandated site where consumers can get free credit reports by law, and using the reports as a lure for a $14.95 monthly service that alerts subscribers to important changes in their credit status.

The government even has put together a spoof video of those popular ads, with singers letting consumers know they can check their credit reports for free. But beyond the ads, the story explains, is the $1 billion credit monitoring industry, which allows consumers to check for real-time changes to their reports. With the exception of identity theft victims, few consumers have a need for that kind of monitoring. And if they do, they can check their credit themselves, without charge, several times a year.

The problem is that some consumers sign up unwittingly for these monitoring services, thinking they’re getting a one-time free credit score check, and finding themselves instead locked into a monthly fee as high as $30. And such services are peddled not just by those freecreditreport.com singers, but by the big three credit bureaus and major credit card companies.

The fact that consumers are signing up — and paying — for services they can get for free from the government tells you a lot about the state of financial literacy in this country. Our story mentioned car title dealers, payday lenders and other fringe banking services that cater mostly to low- and moderate-income consumers. But the Times story makes clear financial literacy knows no income boundaries, with consumers being tripped up by mainstream lenders as well. Magic Johnson isn’t the only celebrity endorsing predatory businesses, like Rent-A-Center. Former New York Times Sunday Business columnist Ben Stein got fired after doing commercials for a shady credit reporting company.

Good luck to the government trying to educate consumers about this. It won’t be easy. When I called up the New York Times piece to write this post, all kinds of ads for free credit scores and credit monitoring companies popped up on my screen. And as we mentioned, financial literacy efforts in this country often don’t come just from the government or other unbiased sources, but from corporations and lenders with a stake in the game.

Visa, for example, announced recently its goal of helping 20 million people worldwide with financial literacy skills, attracting some positive publicity for the effort. Wonder if the advice will include paying off your credit card balance in its entirety each month, or, better yet, avoiding the plastic altogether.

Running through the list of situations that we’ve been reporting on in which the Obama administration continues to conceal evidence of torture — from the efforts of British resident Binyam Mohamed to seek justice for his “extraordinary rendition” and torture; to the administration’s continued efforts to dismiss cases alleging government-sponsored torture and illegal wiretapping by raising the “state secrets” privilege; to President Obama’s continued insistence on hiding photos of brutal detainee abuse — The Times highlights how President Obama, despite his grand promises of openness and accountability in the early days of his administration, has caved to Republicans and some conservative Democrats who want to bury the evidence of criminal and moral wrongdoing by the United States government.

“We do not take seriously the government’s claim that it is trying to protect intelligence or avoid harm to national security,” The Times writes. And it shouldn’t. As we’ve pointed out repeatedly at TWI, the outlines of our government’s abusive and in some cases criminal conduct is already well-known and can hardly endanger us further. Only by unearthing, acknowledging and accounting completely for the past can the new administration finally move beyond it to focus, unencumbered, on making sure it does not happen in the future.

Lawmakers who favor comprehensive immigration reform say they’ll approve a verification program only as part of a larger package of reforms that include some opportunities for legalization of immigrants now living and working in the U.S. illegally. Many immigrants’ advocates complain that the E-Verify program and the database it relies upon are unreliable and too often create barriers to even legal immigrants and U.S. citizens seeking employment.

Meanwhile, Sen. Jim DeMint (R-S.C.) complained that a plan he favored — to require double-layer fences along 700 miles of the border with Mexico  — was dropped from the Senate negotiations.

The USA Patriot Act was quickly pushed through Congress shortly after the terrorist attacks of 9/11, and the Times notes today that its “excessive powers” allowed for an “overly expansive snooping regime.” Although a few Senators — notably Russ Feingold (D-Wis.), Richard Durbin (D-Ill.) and, perhaps surprisingly, Arlen Specter (D-Pa.) — worked hard to rein in those excesses by trying to limit those powers only for use against people actually suspected of engaging in international terrorism, most senators, as revealed in today’s markup session, were convinced by closed-door briefings with the FBI and Justice Department that most of the surveillance authority in the Patriot Act should be renewed.

While the Times said the bill taking shape in the Senate allows for “excesses that contribute nothing to making America safer,” Feinstein this morning called that “dead wrong,” but based her reasoning on a classified briefing she could not discuss.

Feingold, however, who was also privy to that briefing, strongly disagreed. Objecting to “the overall tone of what’s happening in this legislation,” he said, “The New York Times is absolutely right, that this bill is moving in the wrong direction.”

I guess Thiessen didn’t read the same CIA inspector general report that so many of us have been scrutinizing in the last few days. That report repeatedly made the point that the CIA guidelines governing what was permissible or impermissible interrogation conduct were so unclear that, while “an improvement over the absence of such [Department of Central Intelligence] Guidelines in the past, they still leave substantial room for misinterpretation and do not cover all Agency detention and interrogation activities.”

Sure, lawyers and senior officials were involved in interrogations every step of the way, which is why their actions ought to be scrutinized in any criminal investigation. But unfortunately, that did not lead CIA interrogators to abide by the law.

Take, for example, the fact that the redacted information in the reports we now have been told included information about detainees who were brutally killed in custody. The supposedly “safe” techniques approved by CIA officials and Justice Department lawyers weren’t supposed to lead to that, but they did.

And then there’s the problem that of 100 supposedly high-level al-Qaeda suspects in CIA custody, a bunch of them — we don’t know how many — were simply “lost.” That’s right, this “well-run, highly disciplined” program that had custody of 100 people now can’t account for what happened to some untold number of them. Did they escape? Were they killed and buried to hide the evidence? We have no idea — and apparently the CIA Inspector General wasn’t able to find out, either.

There are all sorts of reports today about the “legal hurdles and complex political dynamics”, as Mark Mazzetti and David Johnston at The New York Times put it,  that will stand in the way of prosecuting these cases. Establishing criminal intent and digging up evidence in faraway places of crimes that occurred years ago is all very difficult, say the experts. In fact, those are the very reasons the Bush administration’s Justice Department gave Sen. Dick Durbin (D-Ill.) years ago when he pressed former attorneys general about why they hadn’t prosecuted the deaths of detainees in U.S. custody: “insufficient evidence of criminal conduct, insufficient evidence of the subject’s involvement, insufficient evidence of criminal intent, and low probability of conviction.”

That didn’t ring true to current Attorney General Eric Holder when he read the CIA report, though, and it didn’t sound ethical to the Office of Professional Responsibility inside the Justice Department that has recommended re-opening these cases for investigation. The OPR’s analysis, in fact, suggests that it was the Eastern District of Virginia, then under the direction U.S. Attorney Paul McNulty, who appeared to be playing politics with what should have been a straightforward prosecution.

McNulty,  you may recall, is the U.S. attorney who was elevated to deputy attorney general and went on to lie to Congress when he said the White House played almost no role in the controversial firing of nine U.S. attorneys on what appears to have been largely political grounds. That was later contradicted by subsequent testimony and documents.

Thiessen, in the Wall Street Journal, meanwhile, writes that it was “career prosecutors” who decided not to pursue the cases in the Virginia office. Or, it was the U.S. attorney whose career was elevated for making that politically astute decision and then resigned in disgrace a few years later.

The concern about opening this investigation is the politics. Is it unseemly for one attorney general to re-visit the work of a previous one? And will it be politically embarrassing to the Department of Justice and the CIA if it turns out that prosecutors refused to prosecute violations of the federal anti-torture statute by CIA officials? And, as so many commentators are asking this week, won’t this all be a big unwelcome distraction for President Obama from passing national health care legislation?

The late Sen. Edward Kennedy (D-Mass.), one of the great champions of universal health care who is being mourned today, surely would not have seen it that way. Two years ago, he stood up to say clearly that “waterboarding is torture” and opposed the nomination of Attorney General Michael Mukasey because Mukasey refused to admit that. Kennedy also urged the Senate to pass legislation explicitly stating that waterboarding is a war crime. Politics prevailed, and his colleagues rejected the idea.

But Kennedy would probably not suggest that we ought to sacrifice justice to achieve his dream of universal health care. One has nothing to do with the other, except in the sense that, as Kennedy believed, both ought to be basic rights in a civilized society.

This is nothing more than a misguided effort to shut down the vigorous defense of defendants at the sham Guantánamo proceedings and an attempt to divert the public’s attention from the torture and abuse of detainees by their CIA interrogators.

It’s ironic that the Justice Department is so concerned about defense attorneys’ use of lawfully obtained photos of CIA interrogators, when they expressed no concern that photos of the architects of the CIA’s torture program were plastered all over the New York Times last week.

It’s an essential part of defense work to compile lists of individuals who have interacted with defendants. Identifying who may have tortured our clients and under what circumstances is crucial to their defense.

We are confident that no laws or regulations were broken as we investigated the circumstances of the torture of our clients. The Justice Department should be investigating the government officials who authorized and carried out the torture, not the military lawyers who have exemplified American values of justice by stepping up to defend these clients and fighting for due process in the otherwise broken Guantánamo proceedings. The real scandal isn’t that we’re investigating the torture of our clients, but that the government isn’t.

Davis, as I’ve explained before, has been on death row in Georgia since 1989, when he was found guilty of killing an off-duty police officer based on the testimony of nine eyewitnesses. There was no physical evidence directly linking him to the crime, however,  and seven of the nine witnesses have since recanted their earlier statements. Another man has also boasted of committing the crime and new witnesses have said that other man was the real perpetrator. Some of the original witnesses claim they were pressured by police to identify Davis.

Despite multiple hearings at various state and federal courts on the issue, every court until yesterday had decided that the new evidence should not be considered.

Those judges all apparently agreed with Justice Antonin Scalia’s dissent yesterday, joined by Justice Clarence Thomas, in which he called the new hearing “a fool’s errand” and said: “This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

While Ashby Jones of zyhe Wall Street Journal’s Law Blog today calls that a “fascinating question,” it’s a question that only a lawyer can love.

In fact, even Chief Justice William H. Rehnquist, no flaming liberal, wrote in 1993 that “we may assume … that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief,” as Adam Liptak points out today in The New York Times.

Fortunately, a majority of justices on Monday decided that the possibility of “actual innocence” as demonstrated by the facts of Davis’s case was sufficient to require the federal judge to at least hear the evidence. 

“The Court’s decision means that we may finally know whether Georgia sought to execute an innocent man and allowed the real perpetrator to escape,” said Virginia Sloan, president of the Constitution Project, which submitted a brief on Davis’s behalf.