THAT PESKY TORTURE THING -- STILL

By William Fisher

On the heels of a bipartisan Congressional report blaming high-level officials of the Bush Administration for employing harsh interrogation techniques on detainees captured in the “global war on terror,” many of the world’s most respected civil libertarians called for the establishment of an independent commission to investigate the alleged abuses, and one of them, Amnesty International, released a detailed plan to close the U.S. prison at Guantanamo Bay, Cuba.

Amnesty’s four-part plan sets out recommendations for actions the incoming administration of President-elect Barack Obama should take during the current transition period, others immediately upon taking office, and still others to be taken during the first 100 days and in the first eighteen months of the new government.

Among the most problematic questions surrounding the issue is which U.S. courts will have jurisdiction to try alleged terrorists. The military tribunals set up by the Bush Administration are widely considered to be unfair and ineffective. Another thorny issue is where to send prisoners the U.S. government admits were mistakenly taken into custody and those it no longer considers to be national security threats.

Among the latter is a group of Chinese Muslims who have been held at Guantanamo for seven years. A Federal judge recently ordered them immediately released into the U.S. after the government said it could not return them to China for fear they would be tortured and could find no other country willing to accept them. The government is currently appealing that court decision.

Amnesty’s recommendations came as it was revealed that Bush Administration Defense Secretary Robert M. Gates – who has been nominated by President-elect Obama to remain in office – has also ordered the Pentagon to begin drawing up a plan to close the notorious Caribbean prison. During his presidential campaign, Obama said repeatedly that closing Guantanamo Bay would be a top priority of his administration.

In an interview with the television program “60 Minutes” last month, Obama declared “that America doesn’t torture and I’m going to make sure we don’t torture. Those are part and parcel an effort to regain America’s moral stature in the world.”

The Congressional report, issued last week by the Senate Armed Services Committee, concluded that former Defense Secretary Donald Rumsfeld and other high-ranking Bush administration officials were responsible for the harsh interrogations against captured terrorist suspects that took place at Guantanamo Bay and at Abu Ghraib prison in Iraq.

Rumsfeld had attributed such abuses to “a few bad apples” -- lower-level members of the military acting on their own. But the Senate report charged that Rumsfeld bears principal
responsibility for the prisoner abuses. Most civil libertarians regard these abuses as torture.

“Attempts by senior officials to pass the buck to low ranking soldiers while avoiding any responsibility for abuses are unconscionable,” committee chairman Sen. Carl Levin, Democrat of Michigan, said in a statement. The committee’s most senior Republican member is this year’s candidate for the presidency, Sen. John McCain of Arizona, who concurred in the committee’s findings.

The committee concluded that the prisoner abuses at Abu Ghraib were “not simply the result of a few soldiers acting on their own.” Most of those low-ranking soldiers were found guilty by military courts and are currently serving prison sentences.

Rumsfeld’s “authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody," the report said. "What followed was an erosion in standards dictating that detainees be treated humanely.”

“The message from top officials was clear; it was acceptable to use degrading and abusive techniques against detainees,” Levin said.

The report added that Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there.”

Following release of the Senate report, Amnesty International joined many other human rights advocates in recommending a thorough investigation of prisoner abuses by a 9/11-type independent commission. Sentiment for such a body appeared to be growing, partly because many in Congress fear that an investigation by Congress could become mired in partisan politics and because some members appear reluctant to risk their political careers by becoming involved in such a divisive and controversial issue.

Amnesty’s recommendations provide a timeline and conditions necessary to best attain truth and accountability.

“Closing Guantanamo, as President-elect Obama has pledged, is just the first step. For real change, the incoming administration and Congress must work together to fully expose the Bush administration policies as a step toward ensuring that the same abuses committed in the name of national security are not repeated,” said Larry Cox, executive director of Amnesty International USA. “Ending these shameful practices is not enough. To demonstrate that the United States is genuinely committed to human rights and to the rule of law, the new administration and Congress must end the secrecy that has obscured human rights abuses from public scrutiny and shielded those responsible from accountability. It is beyond time to finally shut down Guantanamo Bay and push the door open to truth.”

The Amnesty plan urged that, in the transition period and before taking the oath of office, President-elect Obama and his team should examine the options for establishing a comprehensive, independent commission to investigate U.S. detention policies and practices in the war on terror and. consider either establishing a task force in the Attorney General’s office or appointing an independent prosecutor to take action on pressing individual cases. These tasks should be completed during Obama’s first 100 days in office, Amnesty says.

The commission’s investigation should include activities conducted by the Central Intelligence Agency (CIA) and other agencies, as well as the secret transfer of detainees – known as rendition -- between the United States and other countries. It should have access to classified material, subpoena power to compel the appearance of witnesses, and a mandate to make recommendations as to criminal investigations.

The Amnesty plan calls on the president to present a progress report to the nation within 18 months of taking office, and to provide a full report of the commission’s findings and recommendations by 2010.

In introducing its plan, Amnesty president Larry Cox said, “As the nation moves in a new direction, we must not forget the shameful actions of the past. Instead to fully learn from them we must know the extent of the illegality and vow to never repeat mistakes. President-elect Obama has a mandate from the American people for change and that begins with restoring the United States’ reputation as a country guided by the rule of law and human rights.”

The first installment of the Armed Services Committee report was issued last June, but the then-Republican majority on the committee effectively blocked release of the report’s concluding section. But even the first part of the report described a pattern of humiliation, abuse and even torture inflicted on detainees, and charged that these practices were a deliberate policy of the Bush administration – debated by mid-level lawyers at the CIA and the Pentagon, given legal cover at the Justice Department and approved at the highest levels of government.

“The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees," the Senate report said.

Secretary of State Condoleezza Rice admitted for the first time in September that she led high-level discussions beginning in 2002 with other senior Bush administration officials about subjecting suspected al-Qaeda terrorists detained at military prisons to the harsh interrogation technique known as waterboarding, according to documents released by Levin.

"Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority,” the Senate report said.

The panel’s investigation also suggested that the harsh interrogations methods used against detainees preceded a Department of Justice legal memorandum issued on Aug. 1, 2002 authorizing the CIA to use long outlawed tactics, such as the simulated drowning technique known as waterboarding, against prisoners in apparent violation of the Geneva Conventions.

The committee’s report said an action memorandum signed by President George W. Bush on Feb. 7, 2002 opened the door to “considering aggressive techniques” by signing a memorandum stating that the Third Geneva Convention did not apply to the conflict with al Qaeda and concluding that Taliban detainees were not entitled to prisoner of war status or the legal protections afforded by the Third Geneva Convention,” the report said.

Last April, President George W. Bush told an ABC News reporter that he had approved of meetings of a National Security Council's Principals Committee, whose advisers included Vice President Dick Cheney, then National Security Adviser Rice, Defense Secretary Rumsfeld and then-Secretary of State Colin Powell, former CIA Director George Tenet and former Attorney General John Ashcroft, where these officials discussed specific interrogation techniques the CIA could use against detainees.

Civil libertarians are pressing President-elect Obama to make good on his pledge to close Guantanamo Bay and investigate the prisoner abuses that occurred there, at Abu Ghraib and at other locations, including the CIA’s “black sites” – secret prisons believed to have been located in Eastern Europe and elsewhere.

One such advocacy organization, Human Rights First (HRF), prepared a plan to close Guantanamo some months ago. Many other groups, such as the American Civil Liberties Union (ACLU) and Human Rights Watch have long advocated the closing of Guantanamo.

Along with Amnesty, these organizations have urged President-elect Obama to implement “an unqualified return to America’s established system of justice for detaining and prosecuting suspects” when he fulfills his pledge to shut down the Guantánamo Bay prison camp and military commissions.”

In a letter delivered to the presidential transition team, the organizations state that they “categorically oppose the creation of any other ad-hoc illegal detention system or ‘third way’ that permits the executive branch to suspend due process and hold suspected terrorists without charge or trial, essentially moving Guantánamo on-shore.”

Prominent Constitutional scholars have voiced similar views. An example is Peter Shane, a law professor at Ohio State University law school. He told IPS, “I think it is critical to the health of American democracy that the historical record of 2001-2009 be set forth accurately and comprehensively with regard to the use and abuse of executive power by the Bush Administration. A congressionally authorized investigation, whether conducted within Congress or by an independent commission with subpoena power and adequate investigative resources is essential.”

Retired military leaders have been among those leading efforts to close controversial prisons and conduct detailed investigations of prisoner abuses. Among them is Maj. Gen. Antonio Taguba, who led the first investigation of abuses at Abu Ghraib. Taguba said “there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”