About Gay Gardner

Gay Gardner is a member of AIUSA's Counter Terror With Justice (CTWJ) Working Group. She has been an active volunteer member of Amnesty International for more than 25 years. Before joining the CTWJ Working Group, she worked within AIUSA's Country Specialist Program on transitional justice and accountability issues involving several Latin American countries, as well as the former Yugoslavia. She has represented AIUSA at international meetings and was a member of an AI research delegation to Bosnia and Herzegovina in 2001. Gay co-founded a local Amnesty chapter in Northern Virginia and served as the coordinator of that group for several years. In her life outside of Amnesty, she works as a policy and legislative analyst on human resources management issues for the federal government.
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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.

Obama Drops Resistance to Investigating Torture

President Obama gingerly retreated Tuesday from his resistance to a Congressionally-authorized commission of inquiry to investigate US detention and interrogation practices.  During a photo-op with the King of Jordan, he acknowledged that it is up to Congress and the Attorney General, respectively, to decide whether to authorize a special investigatory commission, or initiate a criminal investigation of torture allegations.  The President moved closer to what Amnesty and other NGOs have long been advocating — namely, not a commission composed of members of Congress, but a truly independent body consisting of internationally-recognized experts with no partisan affiliation.

Amnesty has called for a commission to be composed of “credible experts, who will be seen to be independent, impartial and objective, who command public confidence, and whose expertise includes international human rights and humanitarian law.”  There are other criteria in Amnesty’s recommendations that are designed to ensure that the commission will be truly independent and nonpartisan and that it is properly resourced.   These are vital ingredients to ensuring that the commission is seen as above reproach, thereby giving it a real chance of helping to heal rather than exacerbating political divisions.  The President recognized this concern when he ruminated about the danger of a Congressional investigation dissolving into partisan backbiting.

Another reason the commission should be composed of nonpartisan experts is that Congress itself has arguably been complicit in the abuses that have come to light, or at the very least, has failed to conduct effective oversight.  Members of the House and Senate Intelligence Committees, for example, don’t even have the same recollections about the extent to which they were briefed or the content of their briefings on interrogation of terror suspects.  All the more reason for us to let our US Representatives and Senators know that we want them to support a nonpartisan commission of inquiry that meets Amnesty’s criteria.

Only by getting the whole truth out can we move forward by identifying how to prevent a future administration from violating our laws and treaty obligations barring torture.

Transparency Still an Unfulfilled Promise by President Obama

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.

What Beverly Eckert Can Teach Us About Seeking Accountability

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.

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.

Portugal’s Bold Initiative Highlights U.S. Hypocrisy on Guantanamo

Last week Portugal offered to accept some Guantanamo detainees who have been cleared for release by the Pentagon but who cannot return to their home countries. In a letter to his counterparts in other European Union countries, Portuguese Foreign Minister Luis Amado urged them to do the same. Portugal’s commendable initiative is based on a recognition that it is no longer acceptable for European governments to sit back and carp from the sidelines.

(c) US DoD

(c) US DoD

Closing Guantanamo simply cannot be accomplished without other governments’ assistance in resettling some of the detainees.  According to the New York Times, Luis Serradas Tavares, a legal adviser in Portugal’s foreign ministry, acknowledged that the Portuguese people probably would be hesitant to accept detainees who had been labeled dangerous terrorists by the U.S., but he added that his government was nevertheless willing to do so because “the U.S. has assured us that these people are the least dangerous people.”

It is past time for the U.S. to follow its own advice to European governments and Portugal’s example. In the case of 17 Chinese Uighurs, who belong to a persecuted ethnic, religious (Muslim), and linguistic minority in China, the U.S. continues to vehemently oppose efforts by their lawyers to get them admitted into the U.S. Most of the Uighurs have long been cleared for release, and they never should have been sent to Guantanamo in the first place.

In classic Orwellian fashion, the Pentagon has reclassified them as “no longer enemy combatants” (NLEC). There is a community of Uighurs in the Washington, DC, area that is fully prepared to assist the Uighur detainees, including by providing housing and employment assistance to help put these men on the path to becoming self-supporting. Releasing them into the United States clearly is the best option for them, as there are very few other places where there is already a well-established Uighur community that speaks the same language and can provide such a range of support services for these men.

However, the U.S. persists in keeping the Uighurs in a “Catch-22” bind by arguing both that (1) the Uighurs no longer pose a threat to U.S. national security but (2) they are inadmissible under U.S. immigration laws, which automatically deem foreign nationals who have received “weapons training” abroad to be dangerous. (At least some of the Uighurs allegedly received some training in the use of firearms in Afghanistan after they fled there from China.)

This matter is currently pending before the U.S. Court of Appeals for the D.C. Circuit. The rest of the world is watching to see what the U.S. does about the Uighurs, whose plight Amnesty International has called a “monstrous absurdity.” As U.S. District Court Judge Ricardo Urbina found in October, the U.S. government has never produced a shred of credible evidence that the Uighurs in any way pose a danger to the U.S. As long as the U.S. continues to stubbornly insist on its internally contradictory argument, reluctance by other governments to follow Portugal’s example is likely to persist.

What Do O.J. Simpson and Attorney General Michael Mukasey Have in Common?

(c) Getty Images

(c) Getty Images

Consider the following two statements:

1.“I didn’t want to hurt anyone. I didn’t know I was doing anything wrong.”

2. [There is no evidence those involved. . . did what they did] “for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful. In those circumstances, there is no occasion to consider prosecution. . .”

The first statement was made by O.J. Simpson in pleading for leniency as he was being sentenced for charges that included armed robbery and kidnapping in the course of attempting to recover sports memorabilia that he believed was rightfully his.  The second statement was made by Attorney General Michael Mukasey in response to a question about whether pardons were being considered for Bush administration officials who were involved in developing counterterrorism policies.

Comparing these two statements may, at first glance, seem like a stretch. After all, the underlying actions they were referring to – attempting to recover allegedly stolen personal property at gunpoint and defending the national security of the United States – are vastly different in character.  However, the two statements offer remarkably similar justifications for criminal, or potentially criminal, actions.

In Simpson’s case, he was chastised by Judge Jackie Glass of Clark County District Court for arguing, in essence, that because he believed he was not doing anything wrong, therefore no crime took place.  Yet that is exactly the reasoning advanced by Attorney General Mukasey regarding potentially criminal acts in the “war on terror.” No pardons need be considered, he argues, because there were no violations of law.  This is because those who developed policies on the treatment of terror suspects believed they were not doing anything wrong, but rather were acting out of the purest of motives.

What extraordinary reasoning this is from the chief law enforcement officer of the United States! Mr. Mukasey’s argument, like his refusal to condemn waterboarding, is a disgraceful attempt to shield from further investigation and prosecution those who justified and authorized illegal acts.  It is particularly outrageous because the Attorney General is more responsible than any other single person for upholding the rule of law in the United States.  As Amnesty International noted in commenting on Mr. Mukasey’s statement, ignorance of the law and defense of national security are no excuse for criminal behavior.  How very sad that our Attorney General has yet to understand that.