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.”

The challenges of capital punishment in the military system include the lack of “death-qualified” defense attorneys, and the right to a series of appeals in military and civilian courts. The president also has to personally sign off on the ultimate execution.

Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

As the Obama administration nears its deadline for deciding where to try the men suspected of masterminding the Sept. 11, 2001 terrorists attacks, there are strong indications that those trials could take place in federal courts in the United States. That’s prompting fervent opposition from Republicans, who say the 9/11 terrorists should never be allowed anywhere on U.S. soil, let alone in a civilian U.S. court.

Illustration by: Matt Mahurin

Military Commissions lead prosecutor Capt. John F. Murphy told reporters in September that four different U.S. attorneys offices in New York, Washington and Virginia were vying for the opportunity to try the five now-infamous defendants, which include Khalid Sheikh Mohammed, the self-described mastermind of the attacks on the World Trade Center and the Pentagon. Walid Muhammad Salih Mubarek Bin ‘Attash; Ramzi Binalshibh; Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi are the other four. According to Murphy, the Eastern and Southern Districts of New York, based in Brooklyn and Manhattan, respectively; the Eastern District of Virginia, based in Alexandria; and the District of Columbia had all submitted requests to hold the high-profile trials in their courthouses, and to detain the suspects in their jails during trial. The military commissions are also seeking to try the defendants.

Meanwhile, White House lawyers, a task force advising the president, and President Obama have all said that their preference is to try terror suspects in federal courts whenever possible, although they have not ruled out the possibility of using military commissions to try some of them. It remains unclear which ones.

The administration has promised to make its final decision on where to try the 9/11 suspects by Nov. 16. Fearing that the administration is inching toward bringing them to New York City or the Washington, D.C., area, opponents of trying high-level terrorists in U.S. federal courts are stepping up their efforts to keep the five men out of the United States for any purpose. On Oct. 9, Sen. Lindsey Graham said he’d attached an amendment to an appropriations bill that would prohibit the Obama administration from spending money on prosecuting and trying these five alleged terrorists in U.S. civilian federal courts.”Khalid Sheik Mohammed needs to be tried in a military tribunal,”Graham told McClatchy Newspapers. “He’s not a common criminal. He took up arms against the United States.”

Graham is not alone in that view. In August, he joined Sens. Joe Lieberman (I-Conn.), John McCain (R-Ariz.), and Jim Webb (D-Va.) in sending a letter to President Obama expressing concern over reports that the Administration may try Khalid Sheik Mohammed and other alleged war criminals in civilian courts. The senators urged the administration to try them in military commissions instead, saying in part:

The bill, H.R.2847, is pending in the Senate as an amendment to an appropriations bill.

On Tuesday, former Attorney General Michael Mukasey made a similar argument against allowing the 9/11 defendants to be tried in a civilian federal court in an op-ed in The Wall Street Journal. Mukasey warned that the costs and burdens of security would be enormous, that housing suspected terrorists in U.S. prisons would threaten national security, and that a public trial would elicit sensitive evidence that would compromise intelligence sources and that terrorists will later use against us.

Those sorts of arguments outrage many legal experts and former military officers, who say that only a public trial in a U.S. federal court that affords terror suspects the same rights as all ordinary criminal suspects will carry the legitimacy necessary for such an important trial. And they dismiss the claims that housing terrorists in U.S. maximum security prisons, where terror suspects have been imprisoned for many years, would create any danger at all.

“The federal criminal justice system has adjudicated nearly 200 cases involving international terrorism in the year shortly before and since 9/11,” said Gabor Rona, International Legal Director of Human Rights First, which opposes the use of military commissions to try any Guantanamo detainees. “The idea that it cannot handle classified evidence, evidence from abroad, evidence obtained in the context of armed conflict, all of those have been proven false by the existence and the adjudication of all of those case in the federal criminal justice system, and many of those cases feature precisely those problems.”

“The bulk of resistance to bringing Guantanamo detainees to the U.S. is simply uninformed,” Rona continued. “The ‘not in my backyard idea,’ which I think is a crazy notion of people fearing that they’re going to have to be sitting next to a member of al-Qaeda when they go into Starbucks, is just nuts. We’re not talking about releasing suspected or known terrorists into the streets. We’re talking about transferring them to highly secure correctional and detention facilities for purpose of trial. If they’re found not guilty or guilty and they serve sentences, they’re still not entitled to be in the U.S., they will be deported. I think the administration is confident, and should be confident about being able to convey that this is not a situation that involves risk to Americans.”

Some former military officials hope the president will see it that way as well. On Tuesday, a group of retired generals sent an open letter to Congress, kicking off a campaign to close Guantanamo Bay and have the detainees brought to the United States for federal court trials.

“With 145 convicted international terrorists being held in our prison system, there has been no escape from a supermax correctional facility in the United States,” said retired Lt. Gen. Robert Gard, Chairman of the Center for Arms Control and Nonproliferation, on a conference call with reporters on Tuesday. “It does not threaten the security of this country to move however many of the remaining 226 detainees that we cannot farm to other countries or try and incarcerate, to move them from Guantanamo into our supermax facilities. The claim from members of Congress that this threatens American security is shameful and without a basis.”

Still, even some civil libertarians believe it would be legitimate for the administration to try the Sept. 11 suspects in military commissions at Guantanamo Bay or on U.S. military bases. “Our view is that as a legal matter, the 9/11 conspirators, unlike some other detainees at Guantanamo, could be tried in either federal court or military commissions,” said Kate Martin, director of the Center for National Security Studies. “Then it’s a matter of policy considerations.”

Although Martin says a defendant could get a fair trial in a military commission, that’s not necessarily the case under the current Military Commissions Act, even if recent amendments passed by the House were adopted. “One of the hallmarks of a fair trial is that it’s public,” and the military commissions have so far severely restricted public access. “If they choose the forum based on an interest in keeping parts of the trial secret, then they will lose their legitimacy right there,” she said.

Some military commission critics claim that one reason some Republicans support using military commissions is to keep hidden any evidence that the detainees were tortured by U.S. authorities, which the defendants or their lawyers would almost certainly present in their trials.

“There is a second objective in everything that someone like Mukasey is saying,” said American Civil Liberties Union attorney Denise LeBoeuf, who directs the John Adams Project, which organizes defense lawyers to represent the Guantanamo detainees. “That is covering up the details and the identities of torturers. This country had a systematic system of torture through the military and through contractors. Some of those people objecting to federal court trials now either implemented it, or knew about it and should have said something,” she said, adding that some are still in the administration and have an interest in preventing the information from surfacing.

Indeed, according to Justice Department memos revealed earlier this year, Khalid Sheikh Muhammed was waterboarded 183 times. Details of his treatment would likely come up in his defense, if he were to present one. On the other hand, he has confessed and even boasted to having masterminded the attacks numerous times, and has said he does not want a lawyer and wants to be martyred. He still could bring up his treatment by U.S. authorities in a trial, however.

LeBoeuf and other lawyers involved in the defense of high-level detainees say they’ve heard rumors that the administration wants to try the 9/11 detainees in federal court, but it’s impossible to know for sure what U.S. officials will do until they issue their decision.

To LeBoeuf, the fact that the 9/11 case is so high-profile is a strong reason for trying the suspects in public, in a civilian federal court in the United States.

“When you say the whole world is watching a case, this is the one,” LeBoeuf said. “This is the one where the administration has the greatest urgency and pressure to do it in a fair court. It’s also the one where there are mountains of evidence — for both sides. It’s the most investigated crime in the history of the United States. If you can’t put this case into a federal court, then what case can you?”

“I have no plans to leave whatsoever,” Craig told David Ingram at the National Law Journal. Describing his relationship with President Obama as “excellent,” Craig dismissed the recent reports, which included one from The Washington Post and ProPublica in late September that three administration officials said that Craig would be leaving his job soon.

Even if he has no interest in leaving, Craig clearly has some opponents within the administration, since they’ve been leaking the idea to the press for months now. In early August, The Wall Street Journal reported that administration officials were “holding discussions” that could result in Craig’s departure.

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

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

That’s for sure.

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

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

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.

Take this latest one Sam Stein reports on for The Huffington Post, showing that 77 percent of Americans think it’s important to have a “choice” between government-run health insurance and private coverage.  That poll comes from Survey USA. Meanwhile, Rasmussen Reports  found just 34 percent of Americans support a health care reform plan without a public option. Okay — so far, so good.

So how is it that Rasmussen’s last poll on health care reform found that only 42 percent of voters supported the Democrats’ proposed health reform plan, when that plan still clearly included a “public option”? Back then (last week), the whole Democratic proposal for health reform was sinking, leading President Obama and some members of his administration to start backing away from the government-run option and proclaiming their newfound flexibility.

Well, that Rasmussen poll referred to the Obama plan as simply “the health care reform plan proposed by President Obama and the congressional Democrats.” It seems significant that none of the Rasmussen questions included the word “choice” in them. And as pollsters for NBC found earlier this week, without the word “choice,” only 43 percent of the public favored “creating a public health care plan administered by the federal government that would compete directly with private health insurance companies.”

Meanwhile, another Rasmussen poll earlier this month found that “51% of the nation’s voters fear the federal government more than private insurance companies.” I guess that’s when they’re not offered a “choice” between the two.

If this confirms anything, it may be that Americans just don’t like to commit. MoveOn.org, which commissioned the SurveyUSA poll and supports the public option, was wise to that.

Still, as Stein notes, when read an actual description of the president’s health care plan (when it still included the public option), 51 percent of SurveyUSA respondents said they “favored” the approach; 43 percent opposed it. Asked the same question by NBC and the Wall Street Journal, 53 percent of respondents said they favored the president’s plan, and 43 percent opposed it.

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.

Then the Pentagon freaked out. “The general did not say the Taliban is gaining the upper hand,” a McChrystal spokesman told NBC. “That’s not how we are characterizing this,” spokesman Geoff Morrell said. Well, obviously. But counterinsurgents, particularly when operating in foreign cultures, face overwhelmingly uphill battles. They have to convince a populace to deny passive support, at great personal danger, to a band of thugs willing to rule through force who know the area and the culture much better. And they have to convince a populace to actively side with a government that, in this case, is incapable, incompetent and often absent in key regions. These are “Talladega Nights” rules. If you’re not first, you’re last.

Independent observers, though, clearly see merit to The Journal’s headline. Some not-so-independent observers do, too: Kimberly Kagan, an adviser to McChrystal’s 60-day strategy review, has a thorough analysis in Foreign Policy of the myriad ways in which the war effort is in deep trouble. Indeed, pretty much every public statement from every adviser to McChrystal’s review has conveyed the same sentiment. Recognition that the Taliban is winning isn’t the same thing as saying failure is inevitable or the war is lost or the whole thing is hopeless. If Pentagon officials — indeed, if McChrystal’s command — conflate the difference, then they really will be Rumsfeldizing the war in an important way.

Gen. David Petraeus is fond of saying that “hard is not hopeless.” As a general principle, he’s right. But the war really will be hopeless if the Obama administration doesn’t, at a minimum, articulate clearer goals for the war and definable ways for measuring how they’re achieved. If there were some metrics in place, there wouldn’t be any arguing about the propriety of a newspaper headline.

It was instantly clear after Sept. 11, 2001, that our security agencies knew little about al Qaeda’s inner workings, could not detect its operatives’ entry into the country, nor predict where it might strike next.

Uh, except for the daily brief that President George W. Bush received a month before titled “Bin Laden Determined to Strike in US” and specifically warning that “a group of (Osama) bin Laden supporters was in the U.S. planning attacks with explosives.”

And then there was the acknowledgment from the government’s own 9/11 Commission that important relevant information about the attacks “was available to the Intelligence Community prior to September 11, 2001″ but it “too often failed to focus on that information and consider and appreciate its collective significance in terms of a probable terrorist attack.” And the commission’s conclusion that “the Intelligence Community failed to fully capitalize on available, and potentially important, information.”

Is is really “the inspectors general report” that “ignores history and plays politics with the law,” as The Journal’s headline puts it?

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