Yesterday, President Obama signaled his willingness to consider an independent, non-partisan commission of inquiry like the one proposed last year by the Brennan Center and more recently by Senate Judiciary Committee Chairman Patrick Leahy. While stopping short of endorsing a commission, Obama's comments are a marked departure from his previous lukewarm response to the proposal. This is a welcome change, and one that heralds a potential victory for truth and accountability.
Obama's statements follow the release of Office of Legal Counsel (OLC) memos that erase any question about whether the U.S. adopted and implemented a program of torturing detainees. To be sure, the OLC attorneys did their best to make the techniques they were approving sound reasonable. Their efforts in that regard are more chilling than comforting, however. It is hard not to be disturbed by the detached, professional tone of the memoranda; the casual (and no doubt strategic) interspersing of more innocuous techniques, like grabbing a detainee's collar, with heinous acts like waterboarding; the emphasis on arbitrary limitations, such as an eleven-day limit on sleep deprivation; and the unnerving references to the presence of medical and psychological professionals at interrogation sessions.
But the most offensive aspect of the memos is their cavalier assessment of whether certain acts cause "severe pain or suffering" (defined as pain or suffering that is "difficult to endure"). Incredibly, OLC attorneys concluded that waterboarding does not cause any physical suffering at all. The reasoning? The procedure does not produce "physical harm"; hence, it produces no pain. It doesn't take a lawyer to see the flaw in that logic. Nor does one need any specialized training to appreciate that it is more than just moderately uncomfortable to be shackled in stress positions until one's muscles literally give out, doused in frigid water for 20 minutes at a time, or kept awake for a week.
The OLC memos rely heavily on the fact that some U.S. military trainees undergo these techniques to help them withstand interrogation at the hands of the enemy. But that only supports the conclusion that these techniques are torture. Why would the military bother subjecting trainees to techniques that cause only mild or moderate discomfort? Would that really help steel them against what they might face in a North Korean prison? For that matter, in interrogating our own detainees, what would be the purpose of inducing physical discomfort that falls short of being "difficult to endure"?
The question is no longer whether the U.S. engaged in torture -- we're beyond that now -- but what to do about it. Last week, President Obama announced that the Justice Department won't prosecute CIA agents who relied on OLC memos. Reasonable minds can disagree on whether that approach is sensible or whether it treads too close to a "Nuremberg defense." But regardless of one's views on that subject, sweeping the government's misconduct under the rug isn't the only alternative to prosecuting agents who broke the law with OLC's blessing.
For one thing, Obama's promise not to prosecute extends only to those who "relie[d] in good faith upon legal advice from the Department of Justice." Top-level officials who colluded with Justice Department lawyers to implement a program of torture would not fall within this category. Nor would agents who went beyond what the memos authorized -- as many of them clearly did, according to a recently leaked report by the International Committee of the Red Cross.
But one of the most important steps we can take has nothing to do with criminal prosecutions. We must establish an independent, non-partisan commission to examine torture and other counter-terrorism abuses. We now know beyond any doubt that the U.S. government embraced policies that violated the law and our most fundamental shared values. For that to happen, a massive system failure must have occurred within every branch of government. Criminal prosecutions will not delve into these failures. They will uncover only the facts of specific cases -- not the full facts about what the policies were, how they were developed, why Congress and the courts were unable to conduct effective oversight, and what institutional reforms may be necessary to ensure that our future counter-terrorism policies adhere to the rule of law. These are questions that must be asked and answered.
Such an inquiry will make us safer in the long run. As one the 2005 OLC memos stated, "[I]t is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks." On the other hand, it is easy to see the ways in which our torture policy has made us less safe. It has alienated our allies, assisted Al Qaeda and similar groups in recruiting new members, and undermined our ability to insist on humane treatment of our own troops. By affirming our commitment to the rule of law, a commission would mitigate these harmful effects. And by taking a close look at where our counter-terrorism policies went right and where they went wrong, the commission would lead to a more effective national security policy going forward.
President Obama said today that an independent commission would be the preferable way to proceed "[i]f and when there needs to be a fuller accounting of what took place during this period." The OLC memos provide many of the facts we previously lacked. But they do not provide all the facts, and they certainly do not provide a "full accounting." If President Obama is serious about his stated pledge "to ensure that the actions described within [the memos] never happen again," he will support the creation of an independent commission of inquiry to provide the full accounting we so badly need.
Elizabeth Goitein is the Director of the Liberty and National Security Project at the Brennan Center for Justice at NYU School of Law.