One longstanding GOP strategy for the 2008 campaign is to conduct trials, convict and possibly execute six five 9-11 related defendants prior to our November elections. The theory is that this will improve the popularity of the Bush administration, improve the strength of the Republican brand and help John McCain’s presidential prospects.

The Democrats on the other hand, are currently in power in Congress, so their summer campaign strategy will likely include a parade of investigations of the current administration. The theory is that this will remind voters of various Bush administrations scandals and issues that the electorate will reject.

Both parties are attempting to use the powers of government to advance their respective political agendas. One of the issues arising from both tactics is “torture.” While it would be difficult to predict how the electorate will respond this year, it seems likely that with new disclosures and new trials, the torture issue will continue to be politicized and will become part of the Election 2008 debate.

I was thinking about this today after reading two posts concerning two different hearings conducted yesterday in Congress.

The first of these, on “Improving Detainee Policy: Handling Terrorism Detainees within the American Justice System,” was conducted by the Senate Juduciary Committee yesterday morning. I haven’t watched the proceedings yet. But I noticed an interesting diary this morning by Jessalyn Radack, who submitted written testimony to Congress, for the record of this hearing.

Ms. Radack was formerly an attorney in the US Justice Department and served as the ethics advisor in the case of John Walker Lindh in 2001-2002. Indicating that she resigned as a result of the treatment of this case by the DOJ, she authored a book in 2006 about her experience, “Canary In The Coal Mine: Blowing The Whistle In The Case of ‘American Taliban’ John Walker Lindh.” Although her story has been discussed in both the national media and the blogosphere over the years, I was not familiar with it before. According to her diary today,

Despite my experience, I still believe that the civilian courts are the best way to handle terrorism detainees, with two caveats: first, do not taint legal proceedings against suspected terrorists by engaging in torture or abusive interrogation techniques; second, follow the rule of law.

The reason that the case against Lindh imploded was because, although the Justice Department was eager to prosecute him in the criminal courts, both of these tenets were disregarded. As an initial matter, Lindh was blindfolded, duct-taped naked to a board, and held in an unlit shipping container for days. The Department of Defense knew that this evidence would come out a Lindh’s suppression hearing, and leaned on the Justice Department to offer an eleventh-hour plea deal in order to prevent early exposure of its new policy on the torture of captives in the war on terrorism. As part of the plea, Lindh had to swear that he had “not been intentionally mistreated” and waive any future claim to torture. Abusive interrogation techniques and torture will likely taint any legal proceedings against suscpected terrorists.

The second reason the Lindh case collapsed was due to flouting the rule of law. Pulitzer-prize winning journalist Eric Lichtblau’s book, Bush’s Law, recently documented a clash that had never before become public. Alberto Gonzales, who was then White House counsel, made it clear that the White House was calling the shots and that he, as White House counsel, had decided not to turn anything over to Lindh’s defense lawyers in the way of documents.

She is making a case for trying the Guantanamo prisoners within the federal judicial system, since the “military tribunals that have been established at Guantanamo Bay have proven to be a poor substitute for the federal criminal courts, which are well-equipped to handle such cases.”

I don’t particularly like any of the options I’ve yet seen proposed for resolving the “detainee” issue. But there’s no doubt that attempts so far to try defendants within the military system have been particularly dysfunctional. (For those who doubt this or who would appreciate a review, I recommend exploring the history of the trial preparations by going to emptywheel’s site and searching on “Guantanamo.” For an in depth history on the torture issue, try a search there on “torture” and you will find over 150 posts she has written on this topic.)

The first caveat Ms. Radack enunciates here, “Do not taint legal proceedings against suspected terrorists by engaging in torture or abusive interrogation techniques,” may be the reason that the number of high-priority 9-11 defendants at Guantanamo Bay was reduced last month from six to five. Charges against the so-called 20th hijacker, Mohammed al-Qahtani, were abruptly dropped without explanation by Susan J. Crawford, the Convening Authority. The most likely explanation among several that have been offered, is that most of the evidence they have against him was based on confessions he made under torture…. which brings me to yesterday afternoon’s hearing.

The Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight conducted a hearing called, “City on the Hill or Prison on the Bay? Part III: Guantanamo – the Role of the FBI.” (webcast) The only witness was Glenn Fine, the Inspecter General of the Justice Department. They were primarily discussing a report his office distributed last week, “A Review of the FBI’s Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq.” Both the report and the hearing are recommended, if you have interest in these areas.

The post that got me thinking about torture and politics again today concerned a member of this subcommittee, Rep. Dana Rohrabacher (R-CA). (TPMtv excerpts) According to ThinkProgress, which also has a long history of covering the torture issue, Rohrbacher

sees nothing wrong with the accounts of abuse. While questioning IG Glenn Fine today, Rohrabacher insisted the report documented nothing more than “fraternity boy pranks and hazing pranks,” and hardly constituted torture.

Rohrabacher mocked the FBI for taking what he called a “holier than thou” stance against harsh interrogations. Yet Fine repeatedly reminded Rohrabacher that the FBI found the interrogations not only abusive, but also “in their view, ineffective.” Rohrabacher admitted, “I don’t know what’s effective and what’s not,” but continued to insist the documented instances of abuse were “fraternity boy pranks and hazing pranks” that “certainly don’t fit into the category of torture.”

Rohrabacher joins a long list of right-wing torture apologists who refuse to heed the words even of Gen. David Petraeus, who unequivocally rejected torture as producing information of only “questionable value.”

Personally, I am opposed to torture unequivocally, on ethical grounds: It is wrong and should not ever be condoned by our laws, our leaders or our institutions. It’s use corrupts the practitioner and those who support or authorize its use. And there are plenty of additional arguments, beyond morality or ethics, for asserting that it is bad policy.

Although both Senator Obama and Senator McCain have opposed torture, I doubt either of them are will be eager to debate torture or Guantanamo policy in any depth. This Boston Globe article highlights some of the candidates’ past positions on Guantanamo. Despite politicization in recent years, popular sentiments do not split evenly on party lines on these issues. So the outcome of the different political strategies outlined by the parties this year is unpredictable.