Prosecute Detainee Abuse After 9/11
On the anniversary of 9/11, Attorney General Eric Holder should scrutinize our counter-terrorism policies. The seemingly endless revelations of detainee abuse, which began shortly after 9/11, demand no less.
It’s reasonable to believe that the torture and abuse of detainees have “made us less safe,” says Elizabeth Goitein, director of the Liberty and National Security Project at the Brennan Center for Justice at the NYU law school. The center has been calling for an independent commission of inquiry to examine recent counter-terrorism policies that may have violated the rule of law.
Here’s an excerpt of an interview with Goitein. (She was interviewed on the Wednesday Eight O’clock Buzz, a show I co-produce on WORT-FM.)
Q: Just a couple of weeks ago the CIA re-released a 2004 report on detainee treatment. Can you talk about that?
Goitein: What it showed was that the abuses that happened under the interrogation program went far beyond what people believed and outside of practices the Justice Department had authorized, such as water boarding. Specifically, what the report showed, was there were mock executions, detainees were threatened with power drills and loaded firearms. Their families were threatened. Some really shocking things like that.
Q: And for the purpose of what?
Goitein: That is an excellent question. There is a default assumption that the purpose was to prevent another 9/11 by getting very valuable intelligence from the detainees. There is still, after all of this debate, no evidence that any valuable information was gained from these detainees relating to an imminent terrorist attack. And there’s certainly no evidence that any of the information that was gained could not have been gained through legal techniques.
Beyond that, there is some evidence from a Senate Armed Services Committee report that was released back in 2007 that one of the main purposes of this interrogation program was to try to get detainees to say there was a connection between Saddam Hussein and Al Qaeda in order to justify the war in Iraq. To the extent that there’s some evidence of that is really quite shameful.
Part of the problem with practices like torture and some of the unlawful conduct that happened after 9/11 is that there is really a lot of reason to believe that it has made us less safe. It’s provided a recruiting tool for terrorists. It’s alienated our allies. There are instances when allies have refused to cooperate with us because of our practices. And I think to some degree it’s put our own troops at greater risk. Because when the United States plays fast and loose with the Geneva Conventions, it takes away our ability to insist on other countries respecting those Conventions. So that when American soldiers are captured I think they are at greater risk today.
There is no evidence that these practices have made us more safe. But there is evidence that they have made us less safe. It’s not just about civil liberties; it’s about our national security and the best way to preserve that security going forward.
It’s time for us as a nation to take a serious look at what went wrong and what went right so we can have the systems in place to ensure that our policies are smart, effective, and respectful of basic human rights and civil liberties.
Unfortunately, when you had a history of the kind of widespread government-sanctioned abuses that we saw, that’s an indicator that something has gone wrong at a systemic level. It’s not as simple as some rogue actors disobeying the law. It’s more a case of institutional safeguards that are supposed to prevent that sort of thing from happening having failed. So in order to make sure that we don’t find ourselves in that situation again, it’s very important to figure out what went wrong and how we need to reform our system to put those safeguards back in place.
Q: What about Attorney General Holder’s naming a prosecutor to investigate alleged CIA interrogation abuses?
Goitein: One important point to be made is that the Attorney General has said he’s asking the prosecutor to only focus on conduct that went beyond what the Justice Department authorized. I think that’s a real mistake. It doesn’t really serve anyone well to focus on the so-called bad apples and to ignore the fact that government policy itself crossed the line. So to make sure that going forward we have respect for the rule of law, it’s important to look at the government-sanctioned abuses that happened. It’s my view that the most comprehensive way to do that is through an independent commission of inquiry.
Q: What about the Obama Administration’s assertion of state’s secrets privilege?
Goitein: That’s been a real disappointment. One of the most troubling abuses of the Bush Administration was its misuse of the state’s secrets privilege, which is a privilege that enables the government to shield certain evidence that could harm national security of released. But instead of using that in a narrow way, the Bush Administration would use it as a way to shut down cases at the very outset before the evidence had even been identified. They would say this case is so sensitive that we can’t even find out what the evidence is, not even behind closed doors, with the highest security precautions. And not coincidentally, these were all cases where very serious government misconduct had been alleged.
There was real hope that the Obama Administration would take a different position and a more narrow view of the privilege. So far in every case, the Obama Administration has taken exactly the same position as the Bush Administration in terms of the state’s secrets privilege and asserting that it can’t allow cases to go forward.
In one particular case, the plaintiff’s attorneys had already seen a document and the Obama Administration argued that if the court allowed the plaintiff’s attorneys to see the document again, the government would actually come to the court and take the document away from the judge essentially rather than allow that to happen. So it’s a very extreme form of the privilege. It’s unfortunate that the [Obama] Administration has continued it.
The President has this mantra about wanting to look forward and not back. It’s unfortunate that he takes that view because it’s a false choice, much like the false choice between our safety and our values that he talked about in his Inaugural address. You can’t responsibly look forward without understanding what happened in the past.
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