The Pentagon announced today that it would be seeking charges before a military court against alleged terrorists currently being held in Guantanamo Bay, Cuba. Included in the six is the man famous for being the world’s scruffiest terrorist, Khalid Sheikh Mohammed.

There are many things to be happy about in this latest attempt to try the prisoners who the government is holding indefinitely. After the Supreme Court struck down the previous plan, some basic rights were added to the new plan, such as the right to an attorney, access to all evidence, and the right to appeal the verdict in a non-military court.

While these are important steps towards restoring the rule of law in our government, there is one problem that remains in the current plan: torture. While torture is, of course, inadmissible in any United States court, there seems to be some confusion about what torture is. The Bush administration still has not officially stated whether or not they consider the practice of waterboarding to be torture. The reason for this is simple: they cannot say that it is not torture because even an idiot knows that is not true, and they cannot say that it is torture because they have used waterboarding in the past and likely still do.

This administration has tortured themselves into a ridiculous double bind that will come back to haunt them in the upcoming trials. The problem for G-Dub and his band of Bushies is that just over a week ago, CIA director Michael Hayden publicly confirmed that Khalid Sheikh Mohammed had been subject to waterboarding. So here is the big question: will evidence gained from the waterboarding be considered admissible?

That will be up to the military judge to decide. And it will be a very tricky decision to make.

Since evidence gained by illegal means, such as torture, is inadmissible, if the judge rules to exclude the waterboarding evidence as gained under torture, he will be implying that the government has tortured (which is surely at least a misdemeanor). On the other hand, if the judge rules that waterboarding should not be excluded as evidence gained under torture, he will be claiming that waterboarding is not torture, and is legal to use in the future – conceivably even on United States citizens. This, of course, is ridiculous, and even the Bush administration has not been so audacious as to try to convince the public that waterboarding is somehow not torture.

If I were the judge – and I am very glad I am not – I would try to find some other reason to exclude the evidence, and leave the whole torture debacle for someone else to deal with.

How about the administration? This is really their mess, anyway.