Published in Roll Call (sub. req).
What will it take to convince those who oppose establishing an independent commission to inquire into America’s recent counterterrorism policies that a much closer study of those policies is needed?
The fact that the government attempted to create a legal black hole at Guantánamo Bay in which it could detain suspected terrorists and their supporters indefinitely, without any review or oversight, is not sufficient. Nor is it enough that our government captured people and delivered them to countries willing to engage in interrogation tactics even more strongly “enhanced” than the ones utilized by U.S. intelligence agencies.
The fact that the executive branch engaged in a years-long domestic warrantless surveillance program does not sway them. They are unmoved by the government’s own admissions that American interrogators have used waterboarding and other tactics such as exposing detainees to extreme temperatures, prolonged sensory deprivation and sleep deprivation. And they seem unperturbed by the role of the government lawyers who provided legal cover for these actions with opinions that are now widely acknowledged to be results-driven and shoddily reasoned at best.
The chairmen of both the Senate and the House Judiciary committees have called for a commission of inquiry to examine these and other counterterrorism policies in which abuses clearly took place. The Brennan Center of Justice at NYU School of Law has been advocating such a course since last summer. Groups and individuals from across the political spectrum have added their voices to the call, and even President Barack Obama recently expressed some support for the idea. Still, opponents of a commission of inquiry continue to insist that any considered review of these policies would be nothing more than a partisan witch hunt — a criminalization of reasonable policy differences.
The Office of Legal Counsel memorandums that were released last week and the recently leaked report by the International Committee of the Red Cross put the lie to this argument. The OLC memoranda confirm that the United States approved and used techniques such as waterboarding (including 266 instances for just three detainees), slamming detainees against walls, confining them in small boxes, shackling them in stress positions and depriving them of sleep for up to a week. It is impossible to read the memos and escape the conclusion that the U.S. engaged in torture when interrogating detainees.
The ICRC report, based on in-person interviews with the 14 high-value detainees that were transferred to Guantánamo Bay from the CIA’s network of secret “black site” prisons, reveals that the ill treatment of detainees went even further than what the OLC memos allowed. Most of the detainees were forced to stand, naked, with their arms held above their head and chained to a pole, for days on end. Several of them had their heads repeatedly slammed into their walls — not just their shoulder blades, as the OLC memos stated. Three were confined in plastic wraps filled with frigid water (the memos approved only dousing with a hose). Most were beaten on a daily basis, with the beatings lasting up to a half-hour and repeated throughout the day.
The ICRC concludes unequivocally that “the allegations of ill treatment of the detainees indicate that, in many cases, the ill treatment to which they were subjected while held in the C.I.A. program, either singly or in combination, constituted torture. In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.”
The stories on which this chilling conclusion is based are almost certainly accurate. The detainees were told that — in accordance with the ICRC’s practice — the report would remain confidential and would be transmitted in the strictest secrecy only to the U.S. government. There was no incentive for the detainees to lie. Even if such an incentive existed, the accuracy of their accounts is strongly supported (as the ICRC noted) by the remarkable consistency of the details provided by the 14 men — each of whom was kept in total isolation, with no opportunity to collude with the others in order to match stories.
It is hard to imagine a more persuasive case for a commission of inquiry than this substantial record of credible evidence that high-level government officials ordered, engaged in or condoned actions that involved a violation of multiple domestic and international laws. Quite simply, it is now beyond any serious doubt that the government’s conduct went beyond “reasonable policy differences.” It departed from the rule of law and, in doing so, jeopardized our values, our moral standing in the world and perhaps even our security.
Turning a blind eye under such circumstances is not an option. The framework of our government is designed to prevent exactly the sorts of abuses that we now know occurred. The fact that these abuses occurred — for years, in secret, and with no effective legislative or judicial oversight — means that something went badly wrong with the system. Surely, it is our civic and moral obligation as participants in a democracy to find out what went wrong and try to fix it.
A commission of inquiry would do just that. It would finish the job that ICRC and other fact-finders have begun, filling in the many gaping holes that still exist and creating a comprehensive account of the policies and practices at issue. Where the policies clearly went off course — as in the case of the treatment chronicled by the ICRC — the commission would ask why existing institutional safeguards were insufficient to prevent that outcome. It would identify root causes and propose solutions. And in cases where a cost-benefit analysis might be appropriate, it would conduct that analysis — In what ways did the policy in question make us safer or less safe? — in order to pave the way for stronger and more effective national security policies in the future.
In the short run, this process may force us, as a nation, to confront unpleasant realities. We will not be able to take pride, and may even feel some shame, in some of the conduct undertaken in our names. But in the long run, the endeavor itself will prove to be a proud moment in our nation’s history — a moment in which the people reaffirmed their commitment to the rule of law and the basic values that unite us. It will enable us to repair injured relationships with allies, overseas intelligence services and international organizations on which we rely for help in our fight against al-Qaida and other terrorist groups. And it will allow us to make decisions regarding the course ahead with full knowledge of the pitfalls that derailed our past efforts from their proper course.
With each passing day, with each new revelation, the need for an investigative commission becomes clearer. The case has been made, and it is a powerful one. It is time for action.