In FY 2009, the federal government prosecuted almost five times more immigration cases than in 2002.

Interestingly, although the government has said it is concentrating its immigration enforcement efforts on employers who knowingly hire illegal immigrants, TRAC found that of the 91,899 immigration prosecutions in the last fiscal year, only thirteen employers in eight cases were prosecuted for the felony offense of illegally hiring undocumented workers.

Meanwhile, the prosecution of other major crime categories, such as crimes involving drugs, weapons and white-collar crime, increased only slightly or in some cases actually declined.

For example, according to TRAC, in FY 2009, the Justice Department recorded 178 securities fraud prosecutions. Although that’s a 22-percent increase in securities fraud prosecutions from the year before, notes TRAC, it’s still only about a third of the number of such prosecutions in 2002. As for corporate fraud, the 82 prosecutions from last year are about a quarter of the number in 2003.

For far too long, America failed to secure its borders. As a result, people failed to respect those borders and millions of illegal immigrants swept across. But efforts in recent years to restore the rule of law—such as building barriers and increasing prosecutions—are sending a clear message to the world. As a result, illegal border crossings are down. Statistics show that border apprehensions fell from over 1.6 million at the beginning of the decade to around 550,000 last year. This is a promising development, but the task of securing America’s borders is far from complete.

Actually, migration experts attribute the slowing if illegal immigration to the United States not to new barriers and prosecutions but to the recession, which has slowed the demand for workers. Still, prosecutions for immigration violations have reached record levels in the past few years. Napolitano’s pledge to focus worksite enforcement on employers who knowingly hire illegal workers rather than on the workers themselves has, however, disappointed Sessions.

Unfortunately, on the crucial policy of worksite enforcement, the administration is moving in the opposite direction. They have effectively signaled to our law enforcement officers that they should turn a blind eye to clear violations of the law. The no-match rule—a commonsense policy that required employers to take action if notified that their employees did not have legal status—has been brushed aside in favor of much more lenient administrative audits. Perhaps most perplexing, worksite raids no longer result in deportation, meaning that even if discovered, illegal aliens are allowed to walk free and seek employment elsewhere. This lax approach is particularly troubling at a time when so many American citizens are struggling to find jobs.

It’s not at all clear that DHS has not been deporting illegal immigrants arrested in workplace raids. Although Napolitano did say she’d focus her efforts on employers, as did the Bush administration, workers are still arrested during “workplace enforcement actions,” as Immigration and Customs Enforcement likes to call them. Some of those workers may be allowed to remain in the United States temporarily to act as witnesses against the employer, however, if the government plans to prosecute. That happened in the case of workers at the Yamato Engine Specialists Ltd. plant in Bellingham, Wash., for example. They are now again facing deportation.

Regardless, Sessions made clear that the treatment of illegal immigrant workers in the United States is sure to be a point of contention at Wednesday’s Senate hearing.

Secretary Napolitano is America’s top immigration enforcement official, and I look forward to discussing with her these and other important immigration issues. Her recent comments that our progress on border security opens the door to consideration of new amnesty policies are disturbing. That faulty view will be a focus of the hearing.

That should make this morning’s hearing interesting. I’ll be following it and will report back.

The latest data from the Syracuse University-based Transactional Records Access Clearinghouse, or TRAC, seems to confirm that. Prosecutions referred by the Immigration and Customs Agency, or ICE, were up dramatically in June — a 47 percent increase from the previous month, and a 109.6 percent increase from five years ago, under the Bush administration.

According to TRAC, which bases its studies on data released from the Justice Department, 89 percent of the June 2009 cases were classified as “immigration” prosecutions, while less than 7 percent were for drug trafficking.

In May, Homeland Security Secretary Janet Napolitano pledged to focus her agency’s efforts on lawbreaking by employers of illegal immigrants, rather than on prosecuting the immigrants themselves.

A detailed breakdown of the latest Justice Department data can be found here.

The Washington Post reports that Virginia prosecutors are competing with New York prosecutors for the high-profile terror cases, such as those of Khalid Sheik Mohammed and his co-conspirators. The newly built courthouse in Newport News, Va., is a likely site for the trials, since it was built to comply with the latest bomb-proof anti-terror standards.

Newport News would also offer the government another advantage over New York or Northern Virginia: juries are considered more conservative there, The Post reports, so it would likely be easier for federal prosecutors to win convictions.

Ever since The Los Angeles Times reported last weekend that Attorney General Eric Holder is inching closer to investigating detainee torture that occurred during the “war on terror”, the debate over whether the Holder probe is a good thing has intensified — and distracted a few of us from the spectacle of the town hall brawls.

Andrew Sullivan at The Atlantic called it “the worst of both worlds” because Holder is reportedly considering prosecuting the actual interrogators who exceeded the interrogation limits set out by John Yoo & Co. in Justice Department memos, rather than the authors of the memos and the torture policy themselves.  That “risks essentially legitimizing the torture it does not prosecute,” Sullivan argues.

And on Monday, Digby wrote that the purported impending investigation uses “inverted pretzel logic” to go after only “those who failed to follow John Yoo’s directives.”

Digby continues:  “I think we can all see the problem here, can’t we? By prosecuting waterboarding “abuses” we are essentially declaring waterboarding under John Yoo’s only slightly less sadistic guidelines to be legal. Evidently, the new standard will be that if you’re going to torture, you’d better do it right.”

Well, sort of.  These arguments urge the attorney general to do the right thing, but they don’t take politics into account.  And the attorney general is, above all, a political animal.

Holder knows that his boss, President Obama, and his boss’s chief of staff Rahm Emanuel don’t want prosecutions of the last White House to distract from the Obama agenda. So a criminal investigation of John Yoo, David Addington or Dick Cheney was just not on the table.

But I don’t think there’s any real way for an independent prosecutor to ethically investigate the torture and sadistic abuses inflicted on detainees at Abu Ghraib, Bagram and elsewhere without that ultimately leading up the chain of command – to who ordered what to happen and how. And that’s inevitably going to raise the much broader question of whether the legal memos actually represented a policy that was communicated to interrogators when they were beating prisoners and leaving them in the cold to die (more on that in a bit) or whether the “policy” was just created after the fact to make the whole interrogation process in the early lawless days of the “war on terror” look legitimate.

I realize this doesn’t address whether what those memos themselves describe was illegal, and why that bothers people who think that tactics like waterboarding and systematic sleep deprivation and confining people in tiny boxes with insects ought to be condemned and punished.  But it’s a beginning of finally starting to hold someone accountable. And I’m convinced that if it’s done seriously by a truly independent prosecutor, it will be a key step toward exposing the whole truth about what really happened during those dark Bush years. And, one way or another, the truth will come out. (Don’t forget there’s still that Justice Department ethics report on the development of the torture memos that’s supposed to be issued any day now.)

Holder is likely to investigate some of the cases that were discussed in the highly anticipated still-classified 2004 CIA inspector general report, which is supposedly what got Holder upset enough to consider taking action. (The fact that the declassified report is set to be released on Aug. 24, and is likely to include some really gruesome details, probably helps motivate Holder, who as the nation’s top law enforcement officer surely doesn’t want to look like he’s deliberately ignoring heinous crimes.)

News reports and a series of letters between the Justice Department and Senate Judiciary Committee member Dick Durbin (D-Ill.) that I’ve written about highlight some of the cases likely to get special attention. They include the death of an Afghan man who was stripped naked, dragged across a concrete floor and chained there by CIA operatives in a secret prison north of Kabul known as the “Salt Pit”; he was left on the floor overnight and froze to death.

Then there’s the death of Manadel al-Jamadi, an Iraqi insurgent who died just hours after he was captured and beaten by Navy SEALs, who hung him from his wrists, which were tied behind his back, until he was dead.

And there’s the killing of Iraqi Maj. Gen. Abed Hamed Mowhoush, a 56-year-old who, reportedly uncooperative with interrogators, was stuffed into a sleeping bag and clubbed to death.

Whether it’s a good idea to focus on these sorts of cases, which clearly went beyond the bounds laid out by the Bush Justice Department’s legal memos, or whether Holder ought to be prosecuting the authors of the memos themselves is beside the point. Because the CIA agent who clubbed a man to death or hung him from his wrists on the ceiling or left someone in sub-zero temperatures chained to the floor naked is going to have to explain how he came to think that was acceptable interrogation conduct. And that’s likely to reveal that the bounds we’ve all seen in John Yoo’s torture memos – many of which were drafted years after these murders occurred — were never articulated to the interrogators on the front lines.

In fact, as The Los Angeles Times report notes (and as Digby pointed out), it’s not clear that CIA interrogators were ever even told about any legal memos.

“A number of people could say honestly, correctly, ‘I didn’t know what was in [the memos]’ “ a former senior U.S. intelligence official familiar with the operation of the interrogation program told the L.A. Times.

The Times’ reporters present that as if it’s a defense to the crime that will likely foil Holder’s prosecutions. Actually, it’s strong evidence that it’s the commanders and policymakers, rather than the front-line interrogators, who are most responsible. After all, particularly if they didn’t tell their subordinates what the rules were, then they have what lawyers call “command responsibility” for their subordinates’ actions.  Think of it as the opposite of the Nuremberg defense – “just following orders” – that Bush staffers joked about in the e-mails released yesterday about the U.S. Attorney firings. They just “followed orders.” This is accountability for giving orders.

And isn’t it the higher-ups who knew this stuff was illegal and ordered people to do it anyway that we most want to hold responsible?

I made this point yesterday on Warren Olney’s radio show, “To the Point,” produced by KCRW and Public Radio International. Greg Miller, one of the L.A. Times reporters who wrote the story, was making the case on the air that Holder is going to have a really hard time prosecuting the CIA interrogators. Miller cited the claims of former Justice Department employees who investigated these cases during the Bush administration and did NOT refer them for prosecution because the facts to support a prosecution “just weren’t there.”

At no point during the show, though — nor in his L.A. Times piece — did Miller acknowledge that those former Justice Department officials had a really strong incentive to say that the evidence just wasn’t there. After all, out of 24 cases of extreme brutality referred to the Justice Department for prosecution, 22 were “declined” by the Justice Department.

Last year, Brian Benczkowski, then principal deputy assistant attorney general, explained to Sen. Durbin in a letter that “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.”

Justice Department employees told Miller of the L.A. Times, meanwhile, that they had “difficulty locating witnesses and identifying documents — such as clinical examinations or autopsies — that could withstand scrutiny in federal court.”

That just doesn’t add up. These were murders and cases of abuse so serious that even Bush officials – who’d been told that waterboarding and the rest of the so-called “extreme interrogation tactics” were legal — referred them to the Department of Justice for prosecution. And they all took place in U.S.-run prisons, with surely more than one lone interrogator present.  (If you imagine the logistics of getting hanging a grown man by his wrists, while they’re tied behind his back, it would seem you’d need at least two people there to do it.)  But there were no witnesses?  No CIA agents or U.S. soldiers or anyone around to see a guy get clubbed to death, or dragged around a floor naked and left in the cold to die?

(This is, by the way, another reason why those photos of torture that the American Civil Liberties Union is still fighting the Justice Department to see, the release of which the Obama administration is asking the Supreme Court to block, are so important – because they’d show some of the witnesses to these crimes.  But I’ll have more on that case later.)

“We wanted to make these cases,” a former Justice official familiar reportedly told the L.A. Times. “We looked at them as hard as we could, and they just weren’t there.”

Holder, to his credit, is apparently not buying that.

Ultimately, any thorough presentation will have to follow the chain of command, and it will be awfully difficult to skirt the issue of waterboarding.

Bruce Fein, a former deputy attorney general under President Ronald Reagan made some really good points about that yesterday on Olney’s show. First, the Constitution says that the president “shall take care that the laws be faithfully executed.” So he doesn’t get to just pick and choose what to prosecute, and not to prosecute obviously illegal conduct. (Fein knows what he’s talking about; as a lawyer in the Office of Legal Counsel in 1972, he participated in drafting impeachment charges against Richard Nixon.) Given that both Obama and Holder have publicly testified that waterboarding is torture and illegal, and given that Cheney has boasted about authorizing it, it would seem pretty clear that something should be done about that.

Fein added that if the president or attorney general don’t want to punish people who may have believed they were following the law, even though they weren’t, then the answer is to pardon them – not to ignore that crimes occurred.

“The reason a pardon is so much more important than no prosecution is that in a pardon situation the recipient confesses that what was done was wrong,” said Fein. “The country doesn’t acknowledge that what was done was legal, but that there are circumstances that justify leniency.”

Clearly, Obama and his attorney general aren’t yet willing to go there. But prosecuting at least the unquestionably illegal activity is a good start.

“This sentence sends a resounding message that torture will not be tolerated here at home or by U.S. nationals abroad,” said Executive Assistant Director Arthur M. Cummings II, of the FBI National Security Division. “The FBI and our law enforcement partners will continue to investigate such acts wherever they occur.”

Curiously, Cummings doesn’t mention that Attorney General Michael Mukasey has repeatedly said that he will not investigate whether U.S. officials broke the law when they authorized the torture, abuse and humiliation of suspected terrorists in American custody.

That’s because, as Mukasey has insisted, Justice Department lawyers assured the president and his advisers that they weren’t doing anything wrong. Never mind that Vice President Dick Cheney recently publicly admitted to authorizing waterboarding, which the United States itself has long considered torture, and prosecuted as such.

The opinions of the Office of Legal Counsel in the Justice Department informed the president that he wasn’t subject to anti-torture laws, and even if he was, it’s only torture if it causes pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”  However, that probably wouldn’t include burning people with cigarettes or candle wax, which is among the tortures that Taylor authorized and was prosecuted for right here in the United States.

In short, we can rest easy that the FBI and Department of Justice stand ready to go after torturers in other countries;  investigating and prosecuting those right here at home is another matter.