A Common-Sense Approach to Torture

President Obama again displayed in his speech today on national security that he is an exceptionally gifted and thoughtful politician who cares about the rule of law.  Indeed, there is much to admire in his remarks today.  So I can’t help wondering why he is being so obtuse about investigating torture. 

He says he wants to establish legal mechanisms for dealing with terrorists that will be useful for his successors.  “We can leave behind a legacy that outlasts my Administration, and that endures for the next President and the President after that. . .”, the President said.  Sadly, though, this vision of his legacy apparently does not include concrete measures to ensure that torture will never be carried out again by any of his successors, merely the hope that they will follow his example.  That is where his refusal to carry out his legal obligation to investigate torture leaves us — merely hoping his successors will be wise.

The President continues to characterize those who press for an investigation as vengeful zealots uninterested in constructive problem-solving:  “Already, we have seen how that kind of effort only leads those in Washington to different sides laying blame, and can distract us from focusing our time, our effort and our politics on the challenges of the future.”  The truth is, however, that many in the human rights movement who are calling for an investigation have worked most of their lives for justice and accountability for human rights crimes in country after country — Chile, Argentina, Guatemala, Rwanda, Bosnia, Cambodia, and so many others.  These are people whose purpose is the opposite of ”finger-pointing” for petty partisan aims.

In any event, it is not up to President Obama to decide all by himself how to prevent future abuses in combatting terrorism.  We — the public, Congress, and officials in the executive branch — all share in the responsibility for this “mess”, as the President labelled it.  We must seek solutions together, and an independent, impartial, nonpartisan commission of inquiry is the logical instrument through which we can begin to make this happen.

The weakness of the President’s argument against an investigation is made all the more stark by its contrast with the cogency of his arguments against torture and for closing Guantanamo.  Moreover, his speech today marked yet another flip-flop in the reasons for his opposition.  Just a month ago, he expressed his preference that, if there was going to be an investigation, it be conducted by an independent panel, outside the normal Congressional hearing process.  He said that he worried about hearings becoming too partisan.  Today, however, Mr. Obama said that he was opposed to an independent commission because he believes “our existing democratic institutions are strong enough to deliver accountability.  The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. . .”

Well, which is it?  Is the President now saying that balkanized investigations by Congressional committees controlled by Democrats are actually preferable to a truly independent investigation by experts who have no political agenda?  I don’t see the logic in this view.  The President prides himself on applying rational, common-sense approaches to problem solving.  But rationality and common sense are lacking in his stubborn opposition to an impartial investigation.  We need to figure out how to ensure future presidents won’t yield to the same cowardly impulses that defined the Bush administration’s resort to torture.  Only a thorough, impartial probe of how it happened can lead to effective remedies for the future.

Freed GTMO Detainee Becomes Al Qaeda Chief? Blame Bush (and Clinton).

In a case of interesting timing, today’s New York Times reports in “Freed by U.S., Saudi Becomes a Qaeda Chief”  that a former Guantanamo detainee is now a deputy leader of Al Qaeda in Yemen and opines that this has “underscored the potential complications in carrying out the executive order President Obama signed Thursday that the detention center be shut down within a year.” A related Times online forum debates “The Risks of Releasing Detainees.” 

To me, however, this case–and the Pentagon’s reports of recidivism–underscores the failure of the Bush administration’s attempt to identify and prosecute those responsible for 9/11.

By resorting to illegal and untested practices and policies, the Bush administration turned its back on the best tools we have for identifying and prosecuting people responsible for grave acts of violence against civilians–including standard law-enforcement practices and a tried and true federal court system.

As a result, some of the wrong people may have been released and some of the wrong people have been (and continue to be) detained–while those ultimately responsible for 9/11 remain either at large or unprosecuted.

This is criminal. In addition to accountability for torture and other abuses against detainees, there should be accountability for the failure to identify, apprehend and prosecute those who have attacked the United States, whether under G.W. Bush’s administration–or Clinton’s.

If anything, accounts of the radicalization of former detainees underscore the need for a full, independent, investigation into the U.S. government’s detention and interrogation program to find out where things went wrong, make sure the same mistakes aren’t repeated and hold those responsible accountable.  

President Obama has the power to make it all happen. Let him know you want him to.

14 Reasons for Accountability

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.