TORTURE
Spanish Inquisition Justice

This week, military prosecutors decided to seek the death penalty for six Guantanamo Bay detainees who are "to be charged with central roles" in the 9/11 terror attacks. One detainee, Khalid Sheikh Mohammed, allegedly "conceived the attack, got approval and funding from Osama bin Laden, and oversaw the training of the hijackers." Others aided in the training and financing of the hijackers. While the charges are serious, the detainees deserve fair trials. But under the Military Commissions Act (MCA), such justice appears unlikely. In 2006, a previous system was ruled unconstitutional by the Supreme Court in Hamdan v. Rumsfeld, but months later, President Bush and the conservative-run Congress "resurrected the tribunals in an altered form" in the 2006 MCA. Under this system, four other defendants have been charged by the military commission; only one has pled guilty. In place of military commissions, Ken Gude of the Center for American Progress advocates the use of the criminal justice system, which, "coupled with standard military trials when necessary, has and can further law enforcement, intelligence, and prevention efforts without undermining our fundamental liberties or our long-term efforts to combat terrorism."

TORTUROUS EVIDENCE: The MCA permits the use of evidence obtained through coercion, if a judge finds it "reliable." One of the detainees, Khalid Sheikh Mohammed, has been confirmed to have been waterboarded. Another was subjected to interrogations including "beatings" and "severe sleep deprivation," conditions that raise the question of whether "detainees may be so psychologically damaged that they may not be able to assist in their defense." This week, Attorney General Mike Mukasey refused to rule out the use of such evidence, saying, "What evidence gets presented at this trial is up to the prosecutors" and the "judges who handle the case." While some evidence was gleaned from FBI interrogators who did not use coercive techniques, those interrogators "set as their goal the collection of virtually the same information the CIA had obtained from five of the six through duress." Charles Swift, defense attorney in Hamdan v. Rumsfeld, said the last time waterboarding evidence was used in trial was during the Spanish Inquisition. The government's position "is further compromised by the fact that we destroyed the tapes of the interrogations themselves," Swift said.

UNRELIABLE COURT SYSTEM: The military announced this week that "the six defendants will get the same rights as U.S. soldiers tried under the military justice system, including the right to remain silent, call witnesses and know the evidence against them." But the military's procedures still "fall short of all protections provided in civilian courts and under the Uniform Code of Military Justice." For example, the "Guantanamo commission rules allow for more liberal use of...information gathered second- or third-hand." Many questions are unanswered in the new system, "which has yet to begin a single trial." "When you are using an untested system," Georgetown University law professor Neal Katyal said, "every single question is up for grabs and every issue is litigated." According to Swift, the Office of Military Commissions has no attorneys who are "death-penalty-qualified currently assigned." In fact, Col. Steven David, the chief military defense lawyer for the Guantanamo trials, said he did not have six lawyers available to take the cases. They "don't have the resources," Swift said.

ADMINISTRATION SPIN: In the court of public opinion, the military commissions have already failed. Asked whether the trial of Khalid Sheikh Mohammed would respect his legal rights, U.K. Foreign Secretary David Miliband replied, "We have some concerns about that." Even Defense Secretary Robert Gates acknowledged the trials will carry "a taint." But the administration is already dramatizing the trials. A cable sent by the State Department to all U.S. diplomatic missions "advises American diplomats to refer to Nuremberg if asked by foreign governments or media about the legality of capital punishment in the 9/11 cases," referring to the post-World War II International Military Tribunals. The cable notes a distinction between torture and "cruel, inhuman and degrading treatment," saying statements made by defendants under such conditions before the passage of the Detainee Treatment Act of 2005 may be considered. "[T]he administration gambled on this risky Guantanamo scheme six years ago and now with a few months left it is trying to offer one last 'Hail Mary' to that system," Katyal observed.

Under the Radar

NATIONAL SECURITY -- SENATE DELIVERS VICTORY TO WHITE HOUSE ON WARRANTLESS SPYING: Yesterday, the Senate approved a revision of the Foreign Intelligence Surveillance Act (FISA) that not only will "give the government greater powers to eavesdrop in terrorism and intelligence cases without obtaining warrants from a secret court," but also shield the telecom companies from any legal liability for their roles in President Bush's warrantless eavesdropping program. The Senate bill "expanded the government's authority to intercept -- without a court order -- the phone calls and e-mails of people in the United States communicating with others overseas." Salon's Glenn Greenwald noted that the bill will "render retroactively legal the President's illegal spying program by legalizing its crux: warrantless eavesdropping on Americans" while "stifl[ing] forever the sole remaining avenue for finding out what the Government did and obtaining a judicial ruling as to its legality: namely, the lawsuits brought against the co-conspiring telecoms." Sen. Russ Feingold (D-WI), co-sponsor of the amendment that would have stripped telecom immunity, called the Senate vote "extremely disappointing" and said that "[i]t is inconceivable that any telephone companies that allegedly cooperated with the administration's warrantless wiretapping program did not know what their obligations were. And it is just as implausible that those companies believed they were entitled to simply assume the lawfulness of a government request for assistance."

ETHICS -- CONGRESS TO FORCE A CONTEMPT VOTE ON WHITE HOUSE OFFICIALS: House Democratic leaders plan to force a vote as early as Thursday on holding White House Chief of Staff Joshua Bolten and former White House counsel Harriet Miers in contempt of Congress. Bolten and Miers, as instructed by the White House, "refused last year to comply with subpoenas from the House Judiciary Committee issued as part of the congressional probe into the firing of nine U.S. attorneys." The expected vote, delayed until congressional leaders finalized the economic stimulus deal, comes seven months after the committee passed a contempt resolution against Bolten and Miers. The Bush administration has cited executive privilege in directing the two not to testify before Congress and has "already said it would order the Justice Department not to pursue contempt charges." House leaders, however, "have decided that they have no choice but to pursue the citation to protect Congressional oversight authority."

IRAQ -- THIRTY-EIGHT WOMEN REVEAL SEXUAL ASSAULTS WHILE WORKING FOR HALLIBURTON: In December, former Halliburton/KBR employee Jamie Leigh Jones revealed that in 2005, she had been had been gang-raped by her co-workers while working in Baghdad. Since coming forward, 38 women have contacted Jones to say that they were also victims of sexual assault while working for Halliburton/KBR in Iraq.  Many of the women "cannot speak publicly due to arbitration agreements in their employment contracts." Jones, speaking before Congress yesterday, said that "victims of crime perpetrated by employees of taxpayer-funded government contracts in Iraq deserve the same standard of treatment and protection governed by the same laws whether they are working in the U.S. or abroad." "My goal is to ensure all American civilians who become victims of violent crimes while abroad have the right to justice before a judge and jury," Jones added.

Think Fast

Steven Spielberg announced yesterday that "he was withdrawing as an artistic adviser to the 2008 Summer Olympics in Beijing, after almost a year of trying unsuccessfully to prod President Hu Jintao of China to do more to try to end Sudan's attacks in the Darfur region."

In his first trip overseas since taking office, "Attorney General Michael Mukasey met Wednesday with the head of Iraq's judicial council during a quick trip to Baghdad to review U.S. efforts to help build the nation's legal system." Mukasey also met with top U.S. officials in Iraq.

"A Bush administration plan to crack down on contract fraud has a multibillion-dollar loophole: The proposal to force companies to report abuse of taxpayer money will not apply to work overseas, including projects to secure and rebuild Iraq and Afghanistan."

"Rep. Henry Waxman (D-Calif.) joined several House Republicans Tuesday by promising not to request any earmarks in appropriations bills this year. 'We have a problem in Congress,' said Waxman in a statement." Waxman praised House Appropriations Chairman David Obey (D-WI) for cutting down on earmarks last year, but said more needs to be done. 

In a letter to the Justice Department's Inspector General yesterday, Sens. Dick Durbin (D-IL) and Sheldon Whitehouse (D-RI) called for "an investigation into the role DOJ officials have played in authorizing the use of waterboarding during interrogations." In their letter, the senators note that Attorney General Michael Mukasey "refused to conduct his own inquiry into the matter."

"The Defense Department is displaying a 'precipitous decrease in attention' to the security and control of the U.S. nuclear arsenal, according to a Defense Science Board task force." "The decline in DoD focus has been more pronounced than realized and too extreme to be acceptable," said the task force's chairman, retired Air Force Gen. Larry D. Welch, in testimony yesterday.

The Writers Guild of America returns to work today, ending a "devastating, three-month walkout that brought the entertainment industry to a standstill." More on the details of the agreement here.

Yesterday, the Treasury Department announced that the "federal budget deficit is running at a pace that is more than double last year's imbalance through the first four months of the budget year." The "budget was in surplus in January, but totals $87.7 billion so far this budget year, double the $42.2 billion imbalance recorded during the same period in 2007."

And finally: President Bush "was coasting through a list of greetings for prominent African-American leaders at a White House ceremony yesterday afternoon when he came to one of his fiercest critics, the Reverend Al Sharpton. 'Rev. Al Sharpton, and his wife, Dominique -- Reverend, it's good to see you,' Mr. Bush said." The problem? The 21-year old Dominique is Sharpton's daughter, not his wife. An attendee "quickly shouted a correction to the president, who winced as the audience broke out in laughter."

Good News

A British CBS journalist and an Iraqi interpreter kidnapped in Iraq will be released today.

State Watch

VIRGINIA: Gov. Timothy M. Kaine (D) "is warning of additional layoffs of state workers" in light of a worsening budget.

RHODE ISLAND: "Rhode Island's lieutenant governor unveiled a healthcare plan yesterday that puts as much emphasis on slowing soaring costs as it does on providing universal coverage."

NEW JERSEY: U.S. attorney Christopher J. Christie, Jr. "finds himself on the defensive."

ENVIRONMENT: Lakes Mead and Powell could dry up by 2021.

Blog Watch

THINK PROGRESS: Right wing succeeds in campaign to bring down progressive college president.

OPEN LEFT: Inside the mind of a conservative blogger.

MEDIA MATTERS: Michael Savage claims late Rep. Tom Lantos (D-CA), who was a Holocaust survivor, used the Holocaust as "a weapon the rest of his life."

Daily Grill

"Anyone who worries about how long we're in Iraq does not understand the military and does not understand war."
-- Sen. John McCain (R-AZ), 2/11/08

VERSUS

"I believe prudence dictates that we plan for an eventual drawdown and the transition of responsibilities to Iraqi security forces, and we need to do that wisely."
-- Chairman of the Joint Chiefs of Staff Adm. Michael Mullen, 7/31/07