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Investigating Violations of the Rule of Law in Counter-Terrorism Policy

Proposal for an independent commission to investigate any violations.

Published: December 30, 2008


During the last eight years, the United States has followed a course that has made us both less free and less safe. The threat to our freedom is self-evident; the threat to our safety, less obvious, is equally grave. Our government has used torture, extraordinary rendition, and unlimited and arbitrary detention in pursuit of the “war on terror.” But these tactics have exposed our own personnel to great peril. They have given fodder to our enemies to criticize the United States and to recruit converts to the cause of Al-Qaeda and like-minded groups. At the same time, these tactics have driven away the very allies who would otherwise cooperate with us in battling terrorism around the world.

pull quote 2Our President has asserted that he is above our laws and has simply flouted those with which he disagreed. For example, he has subjected American citizens to warrantless wiretapping in violation of our law and Constitution and has cast aside the Geneva Conventions. This pattern of ignoring the law must end with the next President—but for this to occur, we must first understand how it came about.

On the eve of a new Administration, many voices are calling for an accounting of the abuses that have been documented in the course of the “war on terror,” while others suggest that the election of a new President ushers in a new era in which we do not need to look back. A critical issue of our time is how the rule of law and the requirements of our Constitution should inform our response to the terrorist threat we face at home and abroad. To answer this question, we must understand what our response has been thus far, and the successes and failures of our policies to date.

The Brennan Center for Justice urges creation of an independent non-partisan commission to investigate national counter-terrorism policies. Such a commission is the best way to achieve both accountability and an understanding of how to design an effective counter-terrorism policy that also comports with our fundamental values. The Commission proposed by the Brennan Center (and presented to the Congress in testimony this summer by Brennan Center Senior Counsel Frederick A. O. Schwarz, Jr., former Chief Counsel to the Church Committee) would focus on the aspects of counter-terrorism policy that pose the greatest threat to our fundamental values. These include:

  • Detention policy, i.e., who the United States has detained, how detainees were treated, and conditions under which detainees were transferred to other countries;
  • Warrantless domestic surveillance;
  • The Executive’s assertion of authority to ignore laws duly passed by Congress; and
  • Reliance on blanket secrecy to cloak the contours of the government’s counter-terrorism efforts.

The Commission would scrutinize the policies in these areas and the means by which they were formulated. It would be charged with evaluating the consequences of such policies for freedom and safety in our country. For example, the Commission would examine how “enhanced interrogation techniques” came to be official policy, whether the use of such techniques violated our domestic laws and international obligations, and whether such techniques effectively advanced the goals for which they were instituted. It would answer the question whether the sacrifices in reputation and moral leadership that these types of practices entailed actually resulted in a tangible increase to our safety.

The Commission would also identify the individuals responsible for improper or illegal actions. This would serve as a warning for future officials that they should take no action for which they would not be prepared to take public responsibility.

pull quoteIn documenting violations of its domestic and international commitments, our nation would demonstrate its renewed commitment to the rule of law. This would help restore our nation’s damaged reputation around the world.

Perhaps most importantly, a Commission would establish a factual basis to inform ongoing public debate about the proper scope of governmental activities in a free society responding to an extended crisis. James Madison famously observed that “a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” An independent non-partisan commission will allow the democratic process to judge the success or failure of our counter-terrorism policy in terms of both freedom and safety.

The issues to be examined by the Commission transcend partisanship—its most fundamental goal will be to reestablish the American commitment to the rule of law. In keeping with this mandate, and to secure the widest support possible, members of the Commission must be selected for their independence and must be highly qualified. This would also allow the Commission to be neutral in its consideration of the relationship between the Executive and Legislative branches of government. In conducting its investigation, the Commission would build upon on the discrete reviews already undertaken by Senate Armed Services Committee, the Inspector Generals of various agencies, and other governmental bodies.

The Commission (as contrasted with the Congress, which will have a myriad of policy issues on its plate) will be able to concentrate its time and resources on a thorough investigation of the recent history and future of counter-terrorism policy. This review would then serve as the basis for corrective action, as required, by Congress and the Executive.

The 9/11 Commission provides a model of efficacy for such an investigation. The new Commission’s mandate should reflect that model. The Commission’s objective will be to identify, review and evaluate counter-terrorism policies that implicate fundamental freedoms, focusing on the underlying structure, coordination, and procedures of the Federal Government.

The new Commission should have the power to conduct hearings, take testimony, receive evidence, and administer oaths. It should have the power to subpoena witnesses and non-testimonial evidence. Federal agencies (including the executive offices and the intelligence agencies) should be obliged to provide the Commission with such information as it requires, as should private firms. Commission members should be provided with expedited security clearance in order to facilitate the investigation (with necessary safeguards to ensure that classified information is protected). Finally, it should be provided with adequate financial resources and staff to carry out its mandate.

The Commission will provide the United States with the opportunity to restore its leadership and moral authority—both at home and abroad—in countering terror. Our enemies are waging a war of violence and a war of ideas. Neither can be won unless our counter-terrorism strategy is calibrated to protect both our safety and our values.