By Dan Froomkin
1:30 PM ET, 05/ 1/2009
It's become common for the investigation into torture and other abuses sought by Senator Patrick Leahy and others to be referred to as a "truth commission." But Leahy actually says what he wants is a "commission of inquiry."
As human right expert Eric Stover explains in an article on NiemanWatchdog.org (where I am deputy editor), there's an important distinction: "Truth commissions tend to be set up after a period of political upheaval or mass violence which affects an entire society," he says. Typically, everybody in the society played a role of one kind or another.
"It’s not necessary for the American public to go through some purgation here," he says. "But they do need to understand what was done in their name, and how we can correct it."
I'm not entirely sure, but Michael Kinsley, in a Washington Post opinion column today, seems to be arguing in favor of purgation or nothing.
"If you're going to punish people for condoning torture, you'd better include the American citizenry itself," he writes.
"Sixty-two million of us voted to reelect George W. Bush in 2004....If you're looking to punish the ultimate decision makers, you can't stop at the Justice Department or even the White House. You've got to go all the way to the top. You have to ask the famous Howard Baker question about the voters themselves: What did we know, and when did we know it?...
"Prosecuting a few former government officials for their role in putting our country into the torture business would not serve justice or historical memory. It would just let the real culprits off the hook."
But Gary Kamiya writes for Salon: "An investigation of the Bush years would not assign the ultimate blame to the citizenry: In a vast representative democracy like the U.S., the people cannot be held directly responsible for the illegal or immoral actions planned, authorized and carried out by government officials, even if they elected those officials. Those Americans who signed off on war and tacitly approved torture because they were afraid of terrorism must bear some responsibility for their hot-blooded reactions, but such reactions are to be expected. The reason we have laws and representatives and accountability is that they act as a check on mere impulse, on vigilante justice, the untrammeled thirst for vengeance. Because it would recognize this, the investigation would be psychologically tolerable to the American people. But at the same time, it would force citizens to examine their own conscience, their own attitudes, their own emotions and where those emotions led. And by calling for appropriate justice for those officials who, in cold blood, lied about war, created secret prisons, trashed the Constitution, and tortured, an investigation would make clear to every American that some lines can never be crossed."
And senator Robert Byrd writes on Huffingtonpost.com: "As the facts continue to come to light about exactly what happened at Abu Ghraib, Guantanamo Bay, Bagram, and other U.S.-run secret prisons around the world, it is increasingly impossible to ignore that the U.S. government violated the basic human rights of prisoners. Not only did these insidious tactics sacrifice our national integrity, but they may also have compromised our security as well...
"The rule of law is not just a lofty concept to which we should aspire only when convenient. It is a fundamental principal upon which our Republic was founded, and it is the foundation of our free society. I understand the desire to look forward and to forge a new path on high ground instead of on the low road of the past eight years. But to use the need to move on as a reason not to investigate basic human rights violations is unacceptable. Excusing individuals at the highest levels of government from adhering to the rule of law, whether in wartime or not, is a dangerous precedent, for it undercuts the principle of accountability which permeates representative democracy....
"Whether it is through an independent investigation, a 'Truth Commission,' a Congressional investigation, or a criminal investigation by the Department of Justice, action must be taken. As long as those who condoned and approved these despicable acts are permitted to escape the consequences, we allow our moral standing in the world to be severely compromised."
In a Los Angeles Times op-ed, Joseph Margulies, a lawyer representing detainee Abu Zubaydah, reminds us "that there was a human being strapped to that board. His name is Zayn al Abidin Mohamed Hussein, known to the world as Abu Zubaydah....
"They tormented a clerk....[and] Abu Zubaydah paid with his mind....
"Today, he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures.
"But physical pain is a passing thing. The enduring torment is the taunting reminder that darkness encroaches. Already, he cannot picture his mother's face or recall his father's name. Gradually, his past, like his future, eludes him."
Karen J. Greenberg writes for TomDispatch: "The policies of the Bush administration were not just horrific in themselves or to others, they may also have brought to an end the human rights movement as we know it....
"Through perverse language, a twisting of the law, and an immersion in the precise details of implementing torture techniques, the United States renounced its position as the leader of the global human rights movement. Abandoned by the country it long considered its greatest ally, that movement now teeters at the edge of its grave. That's what the torture memos and the present media uproar over torture really mean."
Meanwhile, in the news,
Josh White writes in The Washington Post: "When the photos of detainee abuse at the Abu Ghraib prison in Iraq surfaced in 2004, U.S. officials portrayed Army Pvt. Charles A. Graner Jr. as the ringleader of a few low-ranking 'bad apples' who illegally put naked Iraqi detainees in painful positions, shackled them to cell doors with women's underwear on their heads and menaced them with military dogs.
"Now, the recent release of Justice Department memos authorizing the use of harsh interrogation techniques has given Graner and other soldiers new reason to argue that they were made scapegoats for policies approved at high levels. They also contend that the government's refusal to acknowledge those polices when Graner and others were tried undermined their legal defenses.
"Graner remains locked up at Fort Leavenworth, Kan., about halfway through a 10-year prison sentence for detainee abuse, assault and dereliction of duty. His lawyer said this week that he is drafting appeals arguments centered largely on the revelations in the memos and a newly released congressional investigation into the interrogation practices...
"Graner and other defendants -- including Lynndie R. England, who was photographed holding a naked detainee by a leash -- were blocked by military judges from calling senior U.S. officials to the stand at their trials in 2004 and 2005. The government would not acknowledge any policy or procedure that could have led to what the world saw in the photographs."
Annie Lowrey finds and transcribes video of former secretary of state Condoleezza Rice seemingly restating President Nixon's view that if the president does it, it's not illegal.
Says Rice, being questioned by students at Stanford University : "The president instructed us that nothing we would do would be outside of our obligations, legal obligations, under the Convention Against torture. So that's -- and by the way, I didn't authorize anything. I conveyed the authorization of the administration to the agency. That they had policy authorization subject to the Justice Department's clearance. That's what I did."
Q. "Okay. Is waterboarding torture?"
Rice: "I just said -- the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so, by definition, if it was authorized by the president, it did not violate our obligations under the Conventions Against Torture."
Spencer Ackerman writes for the Washington Independent that Rice's comments are also notable for her portrayal of herself as merely a conduit for approving interrogation techniques. Ackerman notes: "There are only two more-senior officials than Rice in this context, and that’s Bush and then-Vice President Dick Cheney."
John Schwartz writes in the New York Times that Ali Saleh Kahlah al-Marri, who spent nearly six years in isolation in a Navy brig as the last enemy combatant held on United States soil, yesterday "reached a deal with the government to
plead guilty to conspiracy to provide material support to Al Qaeda....
"In a statement issued after the plea, Attorney General Eric H. Holder Jr. said, 'Without a doubt, this case is a grim reminder of the seriousness of the threat we as a nation still face.'
"Mr. Holder also took the opportunity, however, to distinguish the criminal proceeding from the indefinite detention under which Mr. Marri, 43, had been held without charges as an 'enemy combatant' during the Bush administration, when he was kept in solitary confinement in a Navy brig in Charleston, S.C., for nearly six years. That detention had been challenged by the American Civil Liberties Union.
"The switch to criminal court and the agreement, Mr. Holder said, 'reflects what we can achieve when we have faith in our criminal justice system and are unwavering in our commitment to the values upon which the nation was founded and the rule of law.'"
Carrie Johnson writes in The Washington Post that Marri "faces as many as 15 years in prison when he is sentenced this summer. But he could serve far less time if a judge gives him credit for time served" though "prosecutors will argue against Marri getting credit for his brig time at the sentencing hearing in July."
Elisabeth Bumiller and William Glaberson write in the New York Times: "As many as 100 detainees at the prison at Guantánamo Bay, Cuba, could end up held without trial on American soil, Defense Secretary Robert M. Gates suggested Thursday, a situation that he acknowledged would create widespread if not unanimous opposition in Congress...
"On Wednesday in Berlin, Attorney General Eric H. Holder Jr. said the legal basis for holding any detainees was still under review.
"'We have to determine what would be our basis for holding that person that would to the world appear to be fair and that would in fact be fair,' he said. 'How could you ensure that due process was being served by the detention of such a person?'"
Brian Ross, Matthew Cole and Joseph Ree report for ABC News: "According to current and former government officials, the CIA's secret waterboarding program was designed and assured to be safe by two well-paid psychologists now working out of an unmarked office building in Spokane, Washington.
"Bruce Jessen and Jim Mitchell, former military officers, together founded Mitchell Jessen and Associates.
"Both men declined to speak to ABC News citing non-disclosure agreements with the CIA."
"More than half of people who attend services at least once a week -- 54 percent -- said the use of torture against suspected terrorists is 'often' or 'sometimes' justified. Only 42 percent of people who 'seldom or never' go to services agreed, according to the analysis released Wednesday by the Pew Forum on Religion & Public Life."