Dear Senator Graham,

Sometime tomorrow, Thursday, likely before noon, the Senate will probably vote on the Commerce, Justice, Science and Related Agencies Appropriations Act for Fiscal Year 2010 and on your proposed amendment to that act that would block Guantanamo detainees from having trials in US federal courts.

I urge you to drop your amendment. And I’ve called my Senators, Gillibrand and Schumer, and urged them to oppose it, using the script below. I’ve encouraged others to call their Senators too.

Why? Because I live in New York City. I’m watching the Yanks as I write this.

And I could see the Twin Towers from my living room. I saw the second Tower fall with my own eyes, from the corner of West Broadway and Canal. I want the people responsible brought to justice. (more…)

The Obama Administration has already taken several laudable steps to separate itself from illegal policies and practices of its predecessor, and I applaud them for it.  I’m glad Attorney General Holder released some of the shocking legal memoranda prepared by the Bush Office of Legal Counsel, which authorized blatantly unlawful and unconstitutional acts by the executive branch.  But I choked a bit on Mr. Holder’s statement that “Americans deserve a government that operates with transparency and openness.”  I agree wholeheartedly, but I find this sentiment glaringly at odds with some of the Justice Department’s own recent actions.

In several pending court cases that began before President Obama took office, summarized by blogger Glenn Greenwald, among others, the Obama Justice Department has recently taken positions that appear to embrace the Bush Justice Department’s expansive view of Presidential power.  For example, in a lawsuit brought against the Jeppesen company, a Boeing subsidiary, by five alleged victims of “extraordinary rendition,” the Obama administration invoked the “state secrets” doctrine to keep certain documents out of the hands of the plaintiffs, with the apparent aim of depriving them of their day in court.  In this and other recent cases where Eric Holder’s Justice Department has taken similar positions, no administration official has bothered to offer any explanation for doing so.  So much for transparency and openness!  Yet these actions cry out for an explanation because, on their face, they are so conspicuously at odds with President Obama’s and the Attorney General’s own declared values and promises.

It’s beginning to appear that what we have is a President who disagrees with many of the specific policies and practices of his predecessor but who reserves the right to adopt them himself — or other, possibly equally illegal practices — if he feels the need in the future.  This should serve as another sad reminder of the need to ensure that honoring our obligations under domestic and international law is not left up to the whim of whoever happens to be our President at any given time.  A good first step would be a thorough investigation by an impartial panel of experts into all US government counterterrorism practices since 9/11, in a manner that enables criminal prosecutions to be undertaken where warranted.  Only by demonstrating that lawlessness has serious consequences can we ensure that whether we have a government that obeys the law does not remain a matter of Presidential preference.

Yesterday a coalition of 18 leading human rights organizations including Amnesty International, Human Rights Watch and the Open Society Institute launched a call for the establishment of a non-partisan commission of eminent persons to investigate and examine the detention, treatment, and transfer of detainees following the 9/11 attacks.

The call was backed by former FBI Director William Sessions, Major General Antonio Taguba who headed the military investigations into the abuses at Abu Ghraib, former Under Secretary of State for Political Affairs Thomas Pickering, Juan Mendez, President of the International Center for Transitional Justice, and the President of the United Church of Christ Dr. John Thomas.

Former FBI Director Sessions commented:

“The president has a responsibility to protect and defend Americans and unfortunately, many questions remain unanswered as to whether the detention, transfer, and treatment of detainees following the September 11th attacks were in the country’s best interest. We need to understand what happened and how to prevent any illegal actions form taking place in the future.”

The United States used to inspire the world as a beacon for human rights.  The U.S. championed the international rule of law and pressed other countries in Latin America, Europe and Africa to bring human rights abusers to account for their actions.  The past eight years have greatly damaged America’s image in the world.  We need to repair than damage by showing that we hold ourselves to the same standards that we hold other nations.

With each new sudden loss of life, like the crash of a Continental Airlines flight near Buffalo on February 13, a fresh awareness of the fragility of life and a new sense of urgency washes over us like a powerful wave.  In particular, the life of Beverly Eckert, a passenger on the plane, offers special inspiration for all citizens who believe in holding our government accountable.

Ms. Eckert, who lost her husband in the 9/11 attacks, led families of other 9/11 victims in seeking a thorough investigation of mistakes made by the U.S. government that prevented it from thwarting the attacks.  The New York Times reported the obstacles the families encountered.  They were told all the reasons why such an investigation would not be good for the country.  It would expose weaknesses in the government’s counterterrorism capabilities, for example.  But Beverly Eckert and others pressed on relentlessly until they achieved their goal.  They portrayed resistance to an investigatory commission as a shameful abdication of the government’s moral responsibility to the 9/11 families, and they understood that failing to investigate would impair the nation’s ability to remedy the failures that made 9/11 possible.

We are at a similar juncture regarding this government’s responsibility to investigate apparent crimes in conjunction with the “war on terror.”  Just as Beverly Eckert and the 9/11 families were told that looking backward would harm the nation, we are being told that looking back at alleged crimes of the Bush administration will undermine the unity we need to solve the many serious problems our country faces.

But it is precisely the failure to look back that will gravely harm our nation in the long run.  It is likely that other acts of terror will be committed against the United States and that a future administration, perhaps even this one, will feel enormous pressure to subvert the law again.  If we refuse now to look at our government’s past illegal acts in the belief that our society is too fragile, we will — in setting that precedent — make it even harder for a future administration to resist pressure to break the law.  We will also undermine the ability of successive administrations to hold government lawbreakers accountable.

Beverly Eckert shunned the impulse in some quarters to make someone “pay for every human accident.”  But, for her, the magnitude of 9/11 made understanding what went wrong imperative so that we could learn how to prevent another similar catastrophe.  In examining the “war on terror,” we must make a similar distinction between mistaken policy judgments and serious crimes.  Authorizing torture is and was a crime, and, as Rep. John Conyers and others have noted, we must thoroughly understand how our government came to do it and the full scope of its consequences, in order to make clear our commitment to preventing its use in the future.

When it comes to upholding the law, we can’t keep saying next time we’ll really mean it.  Each successive kicking of the can down the road makes it more unlikely we will ever have the will to effectively punish and deter these kinds of crimes.  Take a lesson from Beverly Eckert and call your Senators today.  Tell them we must not give a pass either to ourselves or to policymakers who authorized illegal acts.  Looking the other way now means giving a green light to future abuses.  We need a thorough and impartial investigation of what has been done in our name over the past 8 years.

Below is a list of 14 reasons why I think it’s important to thoroughly investigate interrogation and detention practices and policies since 9/11/01 and to initiate criminal prosecutions where evidence is developed that warrants prosecution.

1.  President Obama has said he wants to look forward rather than backward.  This implies a false dichotomy between the two.  Without examining the past, we cannot fully understand how to ensure that whether the US government follows the law is not left up to the whim of the current occupant of the White House.  A thorough investigation will provide information needed to determine whether and which policy/regulatory/statutory changes are needed to prevent recurrences of bad practices.

2.  President Obama has also said that “no one is above the law.”  By failing to thoroughly investigate the practices of the last 8 years, he would be saying that, in fact, some people ARE above the law.

3.  The investigations that have been conducted by the Bush administration were inadequate.  They were all limited in scope and failed to look up the chain of command.

4.  A thorough investigation would restore the public’s trust by showing that the government is not trying to hide the facts.

5.  The government is legally required to prosecute grave breaches of the Geneva Conventions.  Failing to do so would, in and of itself, be unlawful.

6.  Real accountability demonstrates the government’s seriousness about changing course, as well as the seriousness with which the government views the offenses.

7.  It is a way of demonstrating support for rank-and-file soldiers by showing that no one is above the law and that scape-goating low-level soldiers is not acceptable.  Emphasizes that officers and civilian leaders who set policy are accountable for issuing clear and lawful orders to their subordinates.

8.  Will help restore the reputation and influence of the U.S. in the world.

9.  Assures other countries that U.S. speaks from a position of moral authority when asking them to respect the human rights of U.S. personnel.

10.  Those who suffered torture, cruel treatment, and arbitrary detention are entitled to see those responsible brought to justice, as part of their healing process.  They are also entitled to reparations, and those not guilty of any offenses are entitled to have their names cleared.  Justice can defuse anger of victims and those who might seek vengeance on their behalf.

11.  Without the threat of prosecution, perpetrators are unlikely to be forthcoming about their actions.  There is little evidence from the experience of other countries that offering pardons or amnesties motivates perpetrators to volunteer inculpatory information.

12.  Even many countries that initially granted amnesty for human rights crimes because they thought prosecutions would be too divisive subsequently revoked the amnesty (e.g., Argentina).

13.  Prosecutions are a way of affirming that the crimes prosecuted are an injury to society, not just to the individual victims.

14.  Investigations and criminal prosecutions, where warranted, can help deter future crimes.  Bush administration officials, including Vice President Cheney and CIA Director Hayden, continue to aggressively defend the use of waterboarding and other harsh interrogation tactics.  If people with similar values and perspectives come to power again in the future, there is every reason to think they will resort to the same illegal practices, unless there are serious consequences for doing so.