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Joanne Mariner

A Public Accounting for Post-9/11 Abuses


Monday, Dec. 01, 2008

"We do not torture," President Bush has stated emphatically, time and again, whenever information about the abuse of detainees has roused the public.

"We did not torture," said White House Press Secretary Dana Perino last month, in response to a journalist's question about the possibility of future criminal prosecutions of Bush administration officials.

But torture most certainly did occur. Notwithstanding the many official denials, the severe mistreatment of people in US custody has been a hallmark of this presidency.

In some instances, as when photos of naked, humiliated, and terrified detainees at Abu Ghraib were leaked to the public in 2004, the Bush Administration tried to limit the damage by claiming that the photos showed the illegal actions of a few "bad apples." In other instances, as when the administration admitted that the CIA had waterboarded at least three terrorist suspects, government officials refused to acknowledge that the techniques that had been used constitute torture (even though waterboarding has been prosecuted as a crime by US courts for over 100 years).

While much is now known about post-9/11 abuses, the full story -- without official obfuscation -- still needs to be told.

A Commission of Inquiry

With the new administration entering office, it is time for a full, public, and objective accounting of the scale of post-9/11 abuses, why and how they occurred, and who was responsible for authorizing and facilitating them. Although several congressional inquiries, military reports, and Department of Justice investigations have looked into particular aspects of these questions, there has never been a comprehensive public inquiry into post-9/11 abuses.

Investigations to date have been incomplete and imperfect. Most crucially, they have either lacked independence from the executive branch or have not been granted access to necessary documentary and testimonial evidence.

During the first six months of his term, President Obama should work with Congress to set up a commission of inquiry to investigate, document, and publicly report on post-9/11 counterterrorism-related abuses. The commission should specifically address the question of who should be held accountable for these abuses and how accountability can be achieved.

Necessary Attributes of an Effective Commission

In order to carry out its mandate fairly and effectively, the investigatory commission should meet the following criteria:

  • It should be non-partisan.
    To ensure that the commission operates fairly and impartially -- and that it is not perceived as a partisan effort to punish those in the prior administration, nor stymied by partisan wrangling -- its membership should be non-partisan. Commission members should be distinguished figures known for their intelligence, expertise, and achievements, rather than for their political affiliations, and they should be fully vetted for possible conflicts of interest.

  • It should have subpoena power.
    To ensure that the commission is equipped to make a full and accurate assessment of the activities and decision-making post-9/11, it will be essential that the commission be vested with subpoena power to compel the testimony of those involved. This will require legislative authorization, which President Obama should request immediately upon announcing the establishment of the commission.

  • It should make recommendations for prosecution should it find that current or former government officials were responsible for serious crimes.
    Some will likely push for blanket immunity from criminal prosecution for all those compelled to testify before the commission. But this would only reinforce the impunity that has so tarnished America's reputation. While in some circumstances it may be useful for the commission to offer immunity in exchange for critical testimony, the commission should reject any call for blanket immunity and should conduct its work with the aim of making specific recommendations for prosecution. A commission should be created even in the event that President Bush in his last days in office issues a blanket preemptive pardon for some or all government officials implicated in counterterrorism-related crimes. A presidential pardon that blocks prosecutions should not be permitted to frustrate an essential inquiry into the historical record.

  • It should have full access to classified materials.
    Commission members must have full access to classified materials relating to the detention, treatment, and transfer of terrorist suspects post-9/11, as well as materials concerning interrogation techniques. Once a commission is established, the administration should ensure that commission members quickly obtain security clearances, and should direct all relevant government agencies to share information with the commission.

"We Do Not Torture"

A key function of the commission should be to make informed recommendations about how to ensure that the abuses of the past seven years are not repeated. It is time to make the promise of "we do not torture" a reality.

Joanne Mariner is an attorney with Human Rights Watch's terrorism and counterterrorism program. Her previous columns on the detainee cases and the "war on terrorism" are available in FindLaw's archive.

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