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Good Questions From a Senator and an Activist

By Dan Froomkin
11:02 AM ET, 06/11/2009

Over in the U.S. Senate on Tuesday, a senator and an activist raised a series of important questions that deserve to be aggressively pursued.

Sheldon Whitehouse (D-R.I.) took to the Senate floor to talk about torture, the campaign of falsehood that has been pursued by its defenders, and the many things the public still doesn't know.

Meanwhile, at a Senate Judiciary subcommittee hearing, Tom Malinowski, the Washington advocacy director for Human Rights Watch, suggested questions that the Obama administration needs to answer before it embarks upon a regime of prolonged detention.

Whitehouse, in his floor speech, started with some questions about the torture itself:

What did Americans do? In what conditions of humanity and hygiene were the techniques applied? With what intensity and duration? Are our preconceptions about what was done based on the sanitized descriptions of techniques justified? Or was the actuality far worse? Were the carefully described predicates for the torture techniques and the limitations on their use followed in practice? Or did the torture exceed the predicates and bounds of the Office of Legal Counsel opinions?....

What was the role of private contractors? Why did they need to be involved? And did their peculiar motivations influence what was done? Ultimately, was it successful? Did it generate the immediately actionable intelligence protecting America from immediate threats that it had been sold as producing? How did the torture techniques stack up against professional interrogation?...

There is another set of questions around how this was allowed to happen. When one knows that America has over and over prosecuted waterboarding, both as crime and as war crime; when one knows that the Reagan Department of Justice convicted and imprisoned a Texas sheriff for waterboarding prisoners; when one sees no mention of this history in the lengthy opinions of the Office of Legal Counsel at DOJ that cleared the waterboarding--no mention whatsoever; when assertions of fact made in those OLC opinions prove to be not only false but provably false from open source information available at the time; when one reads Chairman Levin's excellent Armed Services Committee reports on what happened at the Department of Defense, it is hard not to wonder what went wrong. Was a fix put in? And, if so, how?...

There has been no accounting of the wild goose chases our national security personnel may have been sent on by false statements made by torture victims seeking to end their agony; no accounting of intelligence lost if other sources held back from dealing with us after our dissent into what Vice President Cheney refers to as the "dark side"; no accounting of the harm to our national standing or our international good will from this program; no accounting of the benefit to our enemies' standing--particularly as measured in militant recruitment or fundraising; and no accounting of the impact this program had on information sharing with foreign governments whose laws prohibit such mistreatment.

And Whitehouse urged the Obama administration to declassify information that would expose the lies:

[T]here has been a campaign of falsehood about this whole sorry episode. It has disserved the American public.... [F]acing up to the questions of our use of torture is hard enough. It is worse when people are misled and don't know the whole truth and so can't form an informed opinion and instead quarrel over irrelevancies and false premises. Much debunking of falsehood remains to be done but cannot be done now because the accurate and complete information is classified...

It is intensely frustrating to have access to classified information that proves a lie and not be able to prove that lie. It does not serve America well for Senators to be in that position.

While congressional and executive branch investigations continue, he said,

I want my colleagues and the American public to know that measured against the information I have been able to gain access to, the story line we have been led to believe--the story line about waterboarding we have been sold--is false in every one of its dimensions.

Over at that Senate hearing, Malinowski, in his prepared remarks, suggested questions the committee should ask if Obama actually proposes some sort of system of preventive detention:

First, can Guantanamo detainees be moved to a new system of detention without trial in the United States without making it seem like Guantanamo was being transplanted to U.S. soil? Would such a new system repair the damage Guantanamo has done to America's reputation, or perpetuate it?...

A second question is whether one can create a new form of preventive detention without enduring more years of frustration and delay?...

A third question I hope you'll ask is whether the risk of releasing truly dangerous people would be lower with a preventive detention system, or higher?...

A fourth question is whether a preventive detention system would effectively delegitimize terrorists in the way that the criminal justice system does?...

That leads me to a final question: Would a preventive detention system actually prevent terrorism?

Malinowski made no secret of his views on the matter:

We should stop experimenting. We should not build yet another untested structure on a foundation of failure. We should finally, at long last, bring to justice the men who killed thousands of people on September 11, and others who have committed or planned or aided the murder of Americans. And we should do it in a system that works.

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