Recently, the mass Guantanamo hunger strikes have intensified pressure on the Obama Administration to fulfill the president"s long-delayed 2009 promise to shut down the detention center there. That certainly needs to be done. But it is just one aspect of so much more unfinished business related to our nation's misbegotten counterterrorism policies.
I was one of 11 members who recently completed service on the Constitution Project's Task Force on Detainee Treatment. We released our 577-page report the day after the Boston Marathon terror attack, which obviously blunted attention to our findings. It is worth revisiting what this bipartisan panel concluded. I will summarize what is most important from my own perspective as one who has worked on these issues since 2005, and on the panel since 2010.
Our panel considered the entire era of terror attacks and U.S. government responses that began with the first World Trade Center bombing in 1993. Our primary finding in relation to the Clinton presidency was that the "extraordinary rendition" program sent prisoners to be interrogated in nations where the U.S. government knew they were "more likely than not" to be tortured. This violated our legal obligations under the Convention Against Torture. This practice continued under George W. Bush.
After 9/11, we found, U.S. forces in many cases treated detainees in a manner that constituted torture; in many more cases, the U.S. treated detainees in a manner that could be described as cruel, inhuman or degrading (often abbreviated CID). The primary context in which such illegal mistreatment of detainees occurred was interrogation or supposed interrogation. Both torture and CID violate U.S. law and international treaties that the U.S. has signed.
Our explorations as to how the U.S. came to violate its own laws and traditions in developing a torture regimen for detainees discovered that the nation's most senior governmental officials bear ultimate responsibility. Lower-level government officials and certain military leaders also bear responsibility. The paper trail leads to the White House, in particular through the acts authorized under color of law by lawyers in the Justice Department's Office of Legal Counsel.
We found no available evidence that the widespread use of brutal interrogation and detention techniques procured for the United States significant information, and found some evidence that the brutal interrogations actually produced unhelpful and unreliable information. I was among the panelists most uncomfortable with even delving into this debate, because under U.S. and international law such questions of efficacy are not relevant. Torture is absolutely banned, full stop. But given the degraded nature of U.S. public ethical debate, the efficacy question does have to be engaged.
We found considerable new evidence related to the so-called black sites, discovering that black sites existed in multiple locations in Europe and elsewhere. We found that U.S. officials in these black sites committed both torture and CID. Multiple investigations of local black sites are being undertaken in former host countries, and we called on the U.S. government to cooperate.
The anomalous U.S. military base at Guantanamo receives considerable attention in the report. We found that it became a "major testing ground" for abusive interrogation techniques and other abuses of prisoners. It housed numerous persons who turned out to be entirely innocent of any wrongdoing, some of whom our forces abused during interrogations. It today houses 166 prisoners, most of whom have been imprisoned for 10 years or more without charge and without trial. Their desperation appears to have triggered the mass hunger strikes, to which in some cases Gitmo authorities have responded with force-feeding, which our panel concludes must be viewed as itself an abusive practice. The majority of our task force agreed on a proposal for handling the remaining cases and closing Gitmo by the end of 2014.
A most disturbing set of findings had to do with the role of medical professionals in developing and implementing abusive interrogations. We discovered that medical ethical standards had been compromised in profound ways by these involvements, in part because after 9/11 military psychologists and physicians were simply instructed that they were relieved of their nonmilitary ethical obligations. This facilitated their involvement in abuses and has been rejected by a number of medical professional associations since 2006.
The Obama Administration, we found, has ended "enhanced interrogation," shut down the black sites, and in many ways moved to reform the counterterrorism policies it inherited. However it has retained a very high level of official secrecy related to prior rendition, torture and CID; has invoked the state-secrets privilege to block lawsuits filed by torture victims; and has refused to authorize an investigation of U.S.-government sponsored torture. Our panel agreed that this violates both our values and our treaty and legal obligations.
Looking back, what I see is a country that panicked after the terrible attacks of 9/11. From the very top, we lost confidence that we could defend ourselves while remaining faithful to reasonable, widely shared interpretations of our laws and existing investigative and interrogation methods. Having been attacked from "the dark side" we concluded that we had to join our adversaries there.
The CIA was essentially cut loose to improvise a new global detention and interrogation program, while the military's existing detention and interrogation rules (in the Army Field Manual) were explicitly weakened. An improvised detention system, interrogation system and prosecution system all failed, certainly in legal terms, in national reputation terms, and arguably in national security terms. Twelve years after 9/11 we are having great difficulty cleaning up the mess.
There is a great tradition in most of the world's religions that is quite applicable here. It's called repentance. Repentance means facing the truth and changing your ways. It includes telling the truth about what you did wrong, making restitution to those you have wronged, making credible promises to do better next time and instituting practices that help you keep such promises.
We have not repented of the torture that we facilitated after 1993 and implemented after 2001. Because we have not repented, we are all the more at risk of doing the exact same thing under new conditions or a new president.
It is time to repent.