Govt Running Out the Clock on Torture

(As originally posted on Daily Kos)

Let’s be clear, calls to allow the Senate Select Committee on Intelligence to conduct its own investigation into the abuses committed in secret CIA detention centers are little more than an attempt to play out the clock by freezing judicial investigations in until the 8 year statute of limitations on Anti-Torture Act crimes starts to render them moot from the spring of 2010 onwards.

The Select Committee has had plenty of time to complete its own investigations. Indeed, senior members of the committee, including House Speaker Nancy Pelosi, were briefed on the adoption of new harsh interrogations as early as September 2002. Unlike their colleagues on the Senate Armed Services Committee they chose to look the other way. They have missed their chance, and in this arena it’s play or pass.

So where does that leave those who care about accountability? The White House continues to fail to show leadership on this issue. After equivocating all week the President seems to have returned to his earlier line that we need to turn the page on the past.

Even without the President’s leadership, pressure for accountability is growing day by day. The first step is to develop enabling legislation for a genuinely independent inquiry along the lines of the 9-11 Commission. This commission must possess three fundamental qualities: it must be bi-partisan and comprised of eminent Americans of unimpeachable integrity; it must be well funded and well staffed; and it must be possessed of the necessary legal powers to effectively discharge its functions. However, it should not grant immunity from prosecution in return for testimony.

Furthermore, as the majority staff of the House Committee on the Judiciary recommended in January, Congress should consider extending the statute of limitations for offenses under the torture statute and war crimes statute. This would give the Commission the time to complete its work without prejudicing the prosecution of those found responsible for commissioning and perpetrating acts of torture.

What are the other key takeaways from the past week’s revelations? First, the 2002 Bybee memo represents the very best case scenario for the regime of abuse inflicted on detainees in U.S. custody. Amnesty International knows well that abuse escalates in a permissive environment and, within days of the memo’s release, confirmation emerged that waterboarding had been used greatly in excess of even what the DoJ’s Office of Legal Counsel considered permissible limits.

Second, the Bush administration did not seek advice from the best-qualified experts on how to effectively gain intelligence from captured members of Al Qaeda, it chose to get tough rather than smart. To this end, the General Counsel’s Office in the DoD sought advice not from experienced criminal investigators or military intelligence officers but from the Joint Personnel Recovery Agency (JPRA), which runs the military’s Survival, Evasion, Resistance, Escape (SERE) program.

Even the JPRA’s Commander noted, in newly declassified memos published this week by the Senate Armed Services Committee, that his organization was “not in the business of strategic debriefing (interrogation).” Inevitably, it wasn’t long before SERE instructors were warning their superiors: “this is getting out of control.”

Finally, claims that vital intelligence was gained using such techniques have been roundly discredited. Former FBI Special Agent Ali Soufan who led the law enforcement interrogation of Abu Zubayda broke seven years of silence to go on the record in The New York Times to refute the “false claims magnifying the effectiveness of the so-called enhanced interrogation techniques.”

His words were echoed by CIA Director Admiral Dennis Blair who said publicly:

“The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security.”

A CIA officer who spoke to President Obama’s transition team on intelligence matters also admitted that some foreign intelligence agencies were now refusing to share intelligence about the location of terrorism suspects for concern at being implicated any resulting abuses or other internationally wrongful acts. Surely, the canard that these techniques were a vital tool in our counterterrorism arsenal can now be laid to rest.

It has been a momentous week for human rights campaigners. After long years in the wilderness, there is now a sense that the balance is reasserting itself. Human rights and the rule of law are finally edging back to where they belong – at the very heart of American democracy.

Vigilance Alone is Not Enough

The big news today is the announcement from Senate Judiciary Committee Chairman Patrick Leahy (Democrat, Vermont) that his committee plans to hold a hearing in the near future to consider possible approaches to investigating the use of torture during the Bush administration.

Committee member Senator Sheldon Whitehouse (Democrat, Rhode Island) told Salon.com that he was convinced that a torture commission would be soon be established:

“When push comes to shove, we are the legislative branch of government. We have oversight responsibilities. And we don’t need the executive branch’s approval to look into these things just as a constitutional matter… The ultimate goal in this is protect and enhance American democracy.”

Senator Whitehouse, who also sits on the Senate Intelligence Committee, firmly rejected arguments put forward by former Vice-President Dick Cheney and other dead-enders from the Bush administration that so-called enhanced interrogation methods had proved to be a vital intelligence tool that had kept Americans safe over the past seven years:

“The exact opposite was true…. the career, tough, serious military interrogators said that this just was not effective. But it is important to prove the point, because they keep saying, ‘we saved lives. We interrupted plans. We did this, that and the other.’ Well, when you drill down, there is never a fact there. It turns into fog and evasion.”

The rhetoric coming from the White House is leaving little room for the Obama administration to oppose the creation of an investigative commission. When he addressed the joint session of Congress last night President Obama told lawmakers:

“To overcome extremism, we must also be vigilant in upholding the values our troops defend – because there is no force in the world more powerful than the example of America. That is why I have ordered the closing of the detention center at Guantanamo Bay, and will seek swift and certain justice for captured terrorists – because living our values doesn’t make us weaker, it makes us safer and it makes us stronger. And that is why I can stand here tonight and say without exception or equivocation that the United States of America does not torture.”

The abolitionist Wendell Phillips famously remarked that eternal vigilance is the price of liberty, but vigilance alone is not enough. Justice is not a spectator sport. To lead, to set an example, one must also act. If the President genuinely wishes to restore the integrity of the United States in the eyes of the world, he must go beyond fine words. He must act to ensure those that committed such heinous crimes our name are held to account.

Both Illegal and Dumb

This weekend saw the publication of two powerful opinion pieces on the futility of using torture as an interrogation tool.  Writing in The (London) Times on Friday General Lord Guthrie, the former Chief of the UK Defense Staff, argued that the use of torture was “both illegal and dumb.” Drawing on Britain’s bitter experience using coercive interrogation tactics in Northern Ireland, Lord Guthrie continued:

“Western use of torture to counter terror has been a propaganda coup for al-Qaeda and a recruiting sergeant for its global jihad. Our hypocrisy has radicalised our enemies and corroded the power we base on our proclaimed values. We save more lives in the long term by rejecting torture than we do by perpetrating it.”

In addition to serving successively in two of Britain’s most senior military posts, Lord Guthrie spent almost a decade as an officer in Britain’s elite Special Air Service (SAS) during which period he served in Aden, the Gulf, Malaysia and East Africa. The SAS fulfils the same counterterrorist role as America’s Delta Force. Lord Guthrie also served in Northern Ireland with the Welsh Guards. The full article (Torture uses the body against the soul) can be accessed at www.timesonline.co.uk.

On Sunday the News in Review section of The New York Times featured an article by Ambassador Donald P. Gregg, a thirty year veteran of the Central Intelligence Agency who served as the National Security Adviser to Vice-President George H. W. Bush during the Reagan administration.

Ambassador Gregg had been responsible for intelligence operations in ten Vietnamese provinces between 1971-72 and he described how his South Vietnamese counterpart had routinely tortured prisoners, producing a great deal of information much of which proved to be false.  By contrast Ambassador Gregg’s team employed “more humane methods” and generated more accurate intelligence.  He concludes:

“The key to successful interrogation is for the interrogator — even as he controls the situation — to recognize a prisoner’s humanity, to understand his culture, background and language. Torture makes this impossible.”

Ambassador Gregg’s article (Speaking with the Enemy) can be accessed at www.nytimes.com.

It is fashionable to portray calls for a return to due process, American values and human rights as a liberal cause. In reality, as the contributions from Lord Guthrie and Ambassador Gregg demonstrate, it is a cause that attracts a great deal of support from among professional military, law enforcement and intelligence personnel because they know effective counterterrorism is perfectly compatible with democratic principles.

What's AI's Take on Obama's Exec Orders?

Weekend reading: Amnesty International’s detailed analysis of President Obama’s executive orders on Guantanamo, detentions and interrogations

Here’s a taste:

Accountability and remedy

The new administration and Congress should take the necessary measures to ensure accountability and remedy for human rights violations committed by or at the instigation of the USA, including by, among other things:

Setting up an independent commission of inquiry into all aspects of the USA’s detention and interrogation policies and practices since 11 September 2001.

Ensuring that all allegations of particular violations of individuals’ rights under international human rights or humanitarian law are thoroughly and effectively investigated.

Ensuring that all those responsible for crimes under international law are brought to justice, including through criminal prosecution with sentences that take account of the grave nature of the acts concerned.

Amnesty International’s full recommendations on accountability are set out in USA: Investigation, prosecution, remedy: Accountability for human rights violations in the ‘war on terror’.

Exec Orders – Did you see the part about contractors?

One positive piece of President Obama’s much heralded executive orders that seems to be overlooked in all the excitement is the unambiguous statement that contractor abuses fall within the scope of inquiry and review and that that work will be done by government employees, not contractors.

Companies hired by Defense, State and other agencies of the US government have been involved in almost every stage of the ‘war on terror’, from escorting convoys to building and maintaining facilities to interrogating detainees and providing security to US officials, and all too often with no accountability when implicated in a range of human rights abuses. As Senator Feingold brought to light, contractors were also hired to oversee other contractors at the State Department.

In his executive orders, President Obama (a champion of regulation of security contractors while in the Senate) made clear that only full-time or permanent employees or officers of the United States would be able to:
- Serve on the special task force to identify lawful options for the disposition of detainees
- Review status of individual detainee cases
- Serve on the special task force on interrogation and transfer policies

At the same time, the orders are comprehensive in covering facilities run by, or acts committed by, “agents” of the United States, ie, contractors, to be reviewed.

In a way, the President has proffered crucial first steps on a number of issues. We wanted Guantanamo closed, he’s set a timeline; we’re calling for investigation and accountability, he gave us a nod to transparency in the face of executive privilege; we documented abuses not only by US government officials, but also by the corporate sector, he’s got them covered and ruled them out of oversight functions.

Now it’s time to keep pushing to ensure that doors that are cracked open don’t swing back and slam shut the hope for an end to torture, indefinite detention and attacks against civilians.

Obama planning to end harsh interrogations?

News reports indicate that President-elect Barack Obama is planning to end harsh interrogations of detainees by directing the Central Intelligence Agency (CIA) to adhere to the U.S. Army Field Manual for interviewing suspects.  If today’s reports are correct, Obama believes that returning the United States to the rule of law is paramount for his administration. It is vital that there be a single standard for all interrogations for all agents and forces of the U.S. government.

But there are also worrying signs that the administration is thinking of leaving a loophole for special techniques for the CIA. The military is on the frontlines dealing with insurgents and terrorism suspects everyday and has historically adhered to, respected and championed the Geneva Conventions. The argument that the CIA needs additional techniques, tools or methods is absurd and, even more importantly, fundamentally dangerous to our national security. Former FBI agents and among the best counterterrorism interrogators have denounced this false choice for what it is, a road to nowhere.  Or at best a confusing maze of contradictory standards ripe for abuse which we leave our own forces on the frontlines and yet fail to give them the clear guidance that they deserve.

Our security in dealing with insurgents or terrorists does not stem from the barrel of a gun, but from our own conviction and the faith we impart in American values and the strength of our democracy. The difference between winning and losing the fight with terrorists is the difference between our values and theirs, how we treat captured personnel and how they treated Neil Roberts. Every time we cross that line we diminish ourselves, our values and our chance of victory.

Amnesty International calls on the new administration to categorically reject the notion that any additional special techniques or methods beyond the Army Field Manual are needed. Torture or abuses in any form are neither acceptable nor necessary in protecting the United States.

Torture Might Be Necessary

CongressDaily reports yesterday:

“The House Intelligence Committee’s top Democrat said Tuesday he has recommended that President-elect Barack Obama keep the country’s current national intelligence director and CIA chief in place for some time to ensure continuity in U.S. intelligence programs during the transition to a new administration.

Intelligence Chairman Silvestre Reyes, D-Texas, said he also recommended to Obama’s transition team that some parts of the CIA’s controversial alternative interrogation program should be allowed to continue. He declined to say what he specifically recommended, however.”

Personnel issues aside, the Obama team needs to send a clear message, that it repudiates the fact that the US has abdicated a bipartisan position on treatment and torture that has spanned over 50 years. The US should adopt a single standard for the treatment of detainees and it should be based on the US Army field manual.

The notion that undermining this standard advances our national security is absurd, and based on a cartoon-like view of the threats and challenges we face. Everytime we hold an individual we put a mirror to ourselves and our values, and we should treat them according to the golden rule – do unto others as you would have them do unto you.