Earlier today, former Attorney General John Ashcroft admitted at a Conservative Political Action Conference that civilian trials for terrorists have "use and utility."

Sam Stein on Huffington Post points out that the statement "throws a wrench in Republican talking points" which lately have dismissed the civilian justice system as irrelevant to the war on terror.

But Ashcroft is hardly the first Republican to acknowledge the civilian courts' important role. In fact, there may be no better response to Republican South Carolina Senator Lindsey Graham's latest campaign to militarize terrorism investigations and prosecutions than the comprehensive White Paper on U.S. Counter-terrorism produced by the Justice Department - under George W. Bush.

Senator Graham, meet Alberto Gonzales, the attorney general who signed off on that 2006 Counterterrorism White Paper.

The 2006 White Paper is a 68-page document that extols "the impressive success of the Department of Justice in the war on terrorism," and documents "how the criminal justice system operates effectively as an element of national power."

In fact, the document effectively rips apart every one of Senator Graham's recent argumentssupporting his proposed legislation to require Khalid Sheikh Mohammed and his alleged co-conspirators in military commissions. It also undermines his even more expansive statements since the failed Christmas Day bombing suggesting that all terrorism cases from now on should be handled by the CIA and the military rather than the criminal justice system.

"Civilian trials, which the Obama Administration has proposed, will be unnecessarily dangerous, legally messy, confusing to our own troops who fight and capture terrorists on the battlefield, and very expensive," Graham said recently, promoting his proposed legislation.

Oddly, not once during the Bush administration's eight years did Lindsey Graham complain about the successful prosecutions of accused terrorists in federal courts. Hundreds of them.

According to the 2006 Department of Justice, the criminal justice system has been so successful - it reports winning more than 300 convictions of terrorists since 2001 - by relying on its vast power to conduct transnational investigations, and on a broad range of criminal statutes, such as those outlawing "material support" to terrorists and broadly defining "weapons of mass destruction." Meanwhile, DOJ has aggressively used charges of "immigration fraud" and "false statement offenses" to arrest and imprison suspected terrorists before they can commit a terrorist act.

So what about Senator Graham's claims that terrorism suspects don't talk in civilian prosecutions?

Actually, "our successful prosecutions have produced cooperating defendants who have, in turn, provided intelligence information to investigators, prosecutors and national security officials, leading to further investigation, disruption and prosecution," says the 2006 report.

Moreover, "cooperation with our foreign partners has led to counterterrorism successes in foreign courts as well as in our own..."

Then there's Graham's concern that civilian prosecutions will inevitably lead to the release of classified evidence.

Here's the Bush administration's answer: "Criminal cases that utilize classified intelligence information are a challenge, but the Classified Information Procedures Act, combined with strategic charging decisions, enable us to appropriately handle this intelligence in criminal cases while protecting both the classified information and defendants' due process rights," the 2006 paper reads.

True, the 2006 paper acknowledges that some cases have presented "unique questions, such as how to deal with evidence purportedly available from detainees abroad, how to balance enemy combatant status with our ability to bring criminal charges, and how to authenticate evidence collected by a foreign intelligence service without disclosing that services' sensitive sources and methods." But the government's focus was always on making better use of the criminal justice system's tools and powers. At no time did the government consider abandoning it altogether.

"We aggressively investigate and prosecute in order to protect our national security, protect our cherished rights, and vindicate the rights of victims of terrorist activity and terrorist acts," the paper concludes.

The military commissions simply cannot do the same thing. For one thing, this new, untested system doesn't have prosecutors with decades of experience trying terrorism cases, as Clarence Page pointed out at the Chicago Tribune the other day.

That may be one reason the track record on prosecuting Jihadist terrorists is far stronger in federal court - which has prosecuted 195 since September 11, 2001 -- than in the military commissions, which have prosecuted only three. And two of those have already been released.

John Walker Lindh, for example, the American Muslim convert arrested in Afghanistan, was sentenced to 20 years in prison in a federal court. David Hicks, on the other hand, an Australian convert also fighting for the Taliban, was sentenced to just nine months plus time served by a military commission.

Aside from which court is harsher, on a practical level, military commissions just don't have the same breadth of law to rely on. Created by the Military Commissions Act of 2006, the court's jurisdiction is only over the crimes listed in that law, and over traditional crimes of war. Because crimes like "material support for terrorism," "conspiracy," and even the killing of enemy soldiers have never traditionally been considered war crimes, though, a military commission can't legitimately prosecute any of those crimes that occurred before the MCA took effect. That's a huge limitation - particularly if we're talking about prosecuting the September 11 suspects.

Lindsey Graham apparently thinks that trotting out "military commissions" as the answer to terrorism is going to make him look like a tough guy - "military" just sounds tougher than "civilian."

Recent reports suggest that the Obama administration is considering moving the 9/11 trial, apparently at the urging of Lindsey Graham. But surely the administration doesn't buy his arguments.

Will the fact that even the Bush administration under Dick Cheney was saying the same thing about the critical role of federal courts in fighting terrorism make any difference? I can't believe I'm touting the Alberto Gonzales Justice Department, but on this point, it was right. Someone send that White Paper to Lindsey Graham.

There's more to the story:

The use of "borderline torture" against Zubaydah months before the first Justice Department memo authorizing harsh interrogations raises the question of whether Mitchell had legal permission to use abusive techniques.

The CIA suggests that he did.

"The Aug. 1, 2002, memo from the Department of Justice was not the first piece of legal guidance for the interrogation program," according to agency spokesman Paul Gimigliano.

Here comes Gonzo:

One source with knowledge of Zubaydah's interrogations agreed to describe the legal guidance process, on the condition of anonymity.

The source says nearly every day, Mitchell would sit at his computer and write a top-secret cable to the CIA's counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration's legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

But according to Newt, Nancy Pelosi has to step down.

We need a special prosecutor. Without one, the current administration will be the proud owner of a big pile of morally-ambiguous mush.

There's more...

A strong vote of confidence for President Obama's pick at Justice and a firm rejection of the Bush justice policies as well as the culture of cronyism that Gonzales represented.

I think Sen. Sen. Russ Feingold speaks for us all:

"The confirmation of Eric Holder as our new Attorney General is a momentous day for the rule of law.  During his confirmation hearings, Eric Holder clearly and unequivocally stated that no one, including the president, is above the law.  Those were welcome words after eight years of Bush Administration policies that undermined our Constitution and damaged the integrity of the Department of Justice.

Feingold went on:

Mr. Holder has a distinguished record of public service, the independence and strength of character needed for this particular post, and an understanding of the importance of revitalizing the Department of Justice.  I look forward to working with him to restore the rule of law and protect the safety, security, rights and liberties of the American people."

Update [2009-2-2 22:36:22 by Todd Beeton]:In the Nay votes, Howie Klein sees the crystallization of the "hard-line Obstructionist Caucus":

The leader, of course, is Jim DeMint (R-SC) and his followers, the serial obstructionists at the bottom of the GOP barrel are Jim Bunning (R-KY), John Cornyn (R-TX), Pat Roberts (R-KS), Kay Bailey Hutchison (R-TX), Tom Coburn (R-OK), David Diapers Vitter (R-LA), James Risch (R-ID), Jim Inhofe (R-OK), Roger Wicker (R-MS), Mike Johanns (R-NE), Sam Brownback (R-KS), Richard Burr (R-NC), Michael Crapo (R-ID), Mike Enzi (R-WY), Miss McConnell (R-KY), Thad Cochran (R-MS), Richard Shelby (R-AL), John Ensign (R-NV), John Thune (R-SD), and John Barrasso (R-WY).

d-day senses a pattern:

Interestingly enough, they all come from the South and the Interior Western Plains states! How could that be?

There's more...

In case you were afraid that the corrupt Bush/Alberto Gonzales Department of Justice only held back prosecutors who were investigating charges of Republican political corruption, rest easy. They were pulling out all the stops to protect oil companies too.

When you consider that the $40 million is only from one case out of potentially dozens, we're talking about real money.

Several oil companies including Shell ($56 million)and Conoco Phillips ($97.5 million) have had to settle suits with the government for systematically underpaying royalties for petroleum pumped off federal lands. When you consider that those companies were negotiating with a complicit Bush Department of Justice its easy to imagine the total amount of money stolen from taxpayers winding up in the billions.

Drill, baby, drill, indeed.

More on those settlements in the full entry.

There's more...

As the facts emerge, the truth about the Bush-Gonzales Justice Department just keeps getting stranger, doesn't it? Political interference in the hiring and firing of prosecutors, the possibly false prosecution of a former governor, and now the bizarre litmus test questions and Internet searches of Monica Goodling. You can't make this stuff up.

Or can you?

See if you can tell which are the real questions asked (illegally, of course) of civil service appointees by Ms. Goodling and which are completely made up.

There's more...