Goldsmith Gets It Wrong: The Facts Aren’t Too Much to Ask For

In a Washington Post column today, Jack Goldsmith argues against any further investigation into the Bush Administration’s interrogation policies and practices. He argues that the relevant facts are well known inside the government, and that existing investigations have done the job adequately. But the crux of his argument is that “second guessing lawyers’ wartime decisions” will cause lawyers to become excessively cautious in offering advice “and will substitute predictions of political palatability for careful legal judgment.”

But isn’t that danger he warns about exactly what got us into trouble in those heady days after 9/11? Except that, in those days, harsh and abusive interrogation policies were more politically attractive to some Administration lawyers than support for human rights, the rule of law, and compliance with U.S. and international laws.

Goldsmith, who worked at the Justice Department from 2003 to 2004 on issues that probably would be subject to new investigations, also claims that “the ordeal of answering subpoenas, consulting lawyers, digging up and explaining old documents, and racking one's memory to avoid inadvertent perjury is draining, not to mention distracting, for those we ask to keep the country safe.”

But accountability isn’t too much to ask.

Goldsmith claims that little will be gained by further investigation: “The people in government who made mistakes or who acted in ways that seemed reasonable at the time but now seem inappropriate have been held publicly accountable by severe criticism, suffering enormous reputational and, in some instances, financial losses.”

In our Blueprint for the Next Administration on Ending Torture, Human Rights First has recommended the establishment of a nonpartisan commission, modeled on the 9/11 Commission, to investigate the facts behind U.S. government detention and interrogation policies since 9/11, in order to assess the strategic impact of these programs, to identify lessons learned, to make recommendations to avoid future abuse, and to let the public know what really happened.

Despite the multiple investigations cited by Goldsmith in his column, the information currently available to Congress and the public is fragmented and incomplete. In order to learn from the mistakes of the past and prevent future abuse, the president should establish a commission to produce a complete public report of U.S. detention and interrogation practices and policies since 9/11. The establishment of such a commission would signal U.S. commitment to the rule of law and accountability, and is an important part of moving forward preventing further abuse and protecting our national security.

Pardons?

The Wall Street Journal reported yesterday that the White House is debating whether or not to issue pardons for administration officials who were responsible for several controversial national security policies, the most notable being the inhumane and degrading treatment of detainees.

“Some Republicans have been pushing for President George W. Bush to grant
pre-emptive clemency to officials who fear being investigated by Democratic
critics. White House officials have countered that such pardons are unnecessary,
these people say. The officials point to Justice Department legal opinions that
supported the administration's methods of detaining and interrogating terror
suspects.”

On the campaign trail, President-Elect Obama stated repeatedly that he would pursue policies that end the use of torture and degrading treatment. Michael Isikoff at Newsweek offers more insight into the discussions going on behind the scenes in the transition about how to change policy and deal with those responsible for the policies that led the United States to engage in torture and other forms of degrading treatment.

“But one idea that has currency among some top Obama advisers is setting up a
9/11-style commission that would investigate counterterrorism policies and make
public as many details as possible. "At a minimum, the American people have to
be able to see and judge what happened," said one senior adviser, who asked not
to be identified talking about policy matters. The commission would be empowered
to order the U.S. intelligence agencies to open their files for review and
question senior officials who approved "waterboarding" and other controversial
practices.”

Human Rights First has called for the new administration of President-Elect Obama in his first six months in office to establish a non-partisan commission to establish the truth about the origin and impact of these policies on U.S. national security. (Read more about HRF’s plan for How to End Torture and Cruel Treatment).

The Bush Admin Denials Continue: 'We Did Not Torture' ... 'We Followed' the Law

“Seven Years… Is More Than Enough”

Big news yesterday: U.S. District Judge Richard J. Leon has ordered the release of five detainees who have been held at Guantanamo without charges since January 2002. Judge Leon ruled that the Justice Department had not proved that five of the six Algerian detainees at Guantanamo were enemy combatants under the government's own definition, and ordered them released “forthwith.”

"Seven years of waiting for a legal system to give them an answer . . . in my judgment is more than enough," he said. In an unusual statement, he urged the government not to appeal his decision and "to end this process."

Judge Leon’s ruling is the first on whether the government's evidence is sufficient to justify the confinement of a detainee. The order springs from the landmark Supreme Court Boumediene decision in June that Guantanamo detainees have the right to challenge their confinements in federal court under the legal doctrine of habeas corpus. HRF welcomed that decision as a step toward restoring the credibility of the United States as a nation committed to due process and the rule of law. Judge Leon’s ruling is a forceful indictment of the administration's detention policies.

Closing Guantánamo Will Require More Than the Stroke of a Pen

Amid the current debate about how the next U.S.  president should handle prisoners being held at Guantanamo Bay, Human Rights First Executive Director/CEO Elisa Massimino argues that:

Closing Guantánamo will require more than the stroke of a pen. It will take comprehensive policy changes and a major investment of domestic and international political capital. But it can be done, and it can be done in the new administration's first year.

Read her op-ed in the International Herald Tribune (11/18/08).

Obama on 60 Minutes: Regaining America's Moral Stature

President-elect Obama spoke about ending torture and closing Guantanamo on 60 Minutes last night:

"I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn't torture, and I’m going to make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world."

HRF in the News

In his long piece “After the Imperial Presidency” in the New York Times Sunday Magazine, Jonathan Mahler discusses the assertion and expansion of presidential power under George W. Bush, the role that partisan politics has played in the complacency of the Congress, and the difficulty faced by the legislative branch when trying to push back against strong and determined president. In the article, he highlights the role played (and, more importantly, not played) by Congress with respect to U.S. interrogation and detainee treatment policies and quotes HRF Executive Director Elisa Massimino:

McCain first got involved in the torture fight in early 2005, when it was by no means a popular cause, particularly inside his own party. “At a time when there was not a single person in the United States who had any influence who was willing to take this issue on, he took it on,” says the executive director of Human Rights First, Elisa Massimino, who worked with McCain on the torture bill.

Yesterday, in Slate, he jumped on the “Dismantling Guantanamo” bandwagon, and wrote about the difficulties facing the Obama Administration in dealing with the approximately 250 detainees still imprisoned at Guantanamo. He writes, “It seems safe to say that Obama's preferred venue for trial will be the federal courts. This is the approach many on the left have been agitating for since 9/11. Last May, Human Rights First issued a 183-page report, "In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts," aimed at supporting this argument.” Yes we did.

Don’t Bring Guantanamo to the United States

Although we noted yesterday that Obama’s team has denied any intention to establish some form of preventive detention, my colleague Sharon Kelly has further strong arguments against such a move in The Hill’s Congress Blog, writing, based on her observations at Guantanamo, that “how terrorists are tried is as important as where they are tried”:

By announcing his intention to close the prison at Guantanamo Bay and bring to justice suspected terrorists held there, President-elect Obama would send an important message that the United States will again be a global leader on human rights. But closing Guantanamo only to bring it home to the United States would be taking one step forward followed by two steps back. Among the many lessons learned from the misguided Guantanamo episode is that new, ad hoc justice systems are prone to fail.

Terrorist Cases Should Be Tried in U.S. Federal Courts

The good news is in the headline of this Washington Post story, Guantanamo Closure Called Obama Priority. According to Obama advisers speaking anonymously, the Obama Administration will launch an immediate review of the classified files of those detained - some 250 people - at Guantanamo Bay upon taking office. Closing Guantanamo would send a potent message to the rest of the world, and would “create a global wave of diplomatic and popular goodwill that could accelerate the transfer of some detainees to other countries.”

But there has been talk – denied by Obama’s transition team – about contemplating some form of preventive detention backed by a new civilian national security court. Proponents of preventive detention often cite national security concerns and the need to protect operational secrets as grounds for keeping some of the cases out of U.S. federal courts. They also note that some cases against detainees in custody have been compromised by torture and coercive interrogations.

Fair enough, but hiding the use of torture, and allowing the use of evidence gathered by torture is anathema to U.S. standards of justice. Some Obama advisers acknowledge that the degradation of the image of the U.S. because of the Bush Administration’s policies is too severe to countenance any form of preventive detention. At any rate, Human Rights First believes that the federal courts are up to the task of trying those detainees who can be put on trial:

"The federal criminal courts are capable of handling serious terrorist cases and capable of handling people and evidence seized overseas, without sacrificing the government's need to protect sensitive material, while protecting defendants' rights," said Deborah Colson, a senior associate at Human Rights First.

Read our report, where HRF noted that since the Sept. 11, 2001, attacks, there have been 107 successful prosecutions of international terrorism cases in the federal courts, compared with three convictions in military commissions at Guantanamo Bay, including one plea bargain. (See also our Blueprint to Close Guantanamo detailing the steps necessary to close Guantanamo.)

During the campaign, Obama seemed to favor federal prosecution of terrorism suspects: "It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice," Obama said in August, after the completion of the first trial at Guantanamo Bay, which resulted in a relatively mild sentence for Osama bin Laden's driver.

CIA Lawyer Suddenly Finds Urgency on Detainee Treatment

What a difference a few days makes! The CIA lawyer whose defense of the illegal CIA interrogation program cost a promotion all of a sudden reverses course and says addressing detainee treatment must be an urgent priority for President-elect Obama. For once, we happen to agree with Johan Rizzo!

from ThinkProgress:

At the American Bar Association’s conference on national security yesterday, CIA senior deputy general counsel John Rizzo recommended that President-elect Barack Obama “address immediately detainee issues at Guantanamo Bay and in the CIA’s interrogation program.” Rizzo said that the agency’s interrogation and detainee program needs “urgent” attention:

The CIA detention and interrogation program, he said, is just as urgent. “That’s going to have to be dealt with immediately,” Rizzo said. “We do not have the luxury to wait and muddle through.” He knows how tough the issue is–his involvement in helping the CIA construct the program earned him opposition in Congress that killed his nomination to be the CIA’s general counsel.

The Wall Street Journal’s Siobhan Gorman did not report whether Rizzo said anything specific about how the program needs to be “dealt” with. This information would be important since, as Gorman notes, Rizzo controversially helped construct the program that pushed the boundaries of torture.

In 2002, while serving as an acting general counsel, Rizzo approved of a memo drafted by then-Assistant Attorney General Jay Bybee that stretched the definition of torture in order to make it permissible for use in the course of an interrogation. Asked at a June 2007 confirmation hearing if he “should have objected at the time” to Bybee’s definition of torture, Rizzo replied, “I can’t say I should have objected at the time.”

Looking Forward: Ending Torture Under President Obama

With the celebratory cheers brought on by the decisive election of Barack Obama on Tuesday night fading, we are turning our sights on the transition to his inauguration, and the steps necessary to implement some of the promises made on the campaign trail. Although President-elect Obama faces a variety of challenges starting January 20, overhauling the Bush Administration’s most aggressive detention and interrogation policies, including the secret prison network run by the CIA, is among the most urgent.

HRF has called on the President-elect to address these issues right away:

"The erosion of human rights protections in the United States in the aftermath of September 11th has had a profound impact on human rights standards around the world," said Elisa Massimino, Executive Director and Chief Executive Officer of Human Rights First. "We urge President-elect Obama promptly to turn the page on the policies of torture and other abuse that have deprived the United States of its ability to lead on human rights for the past seven years."

Although some advisers acknowledge that the economic crisis may siphon his attention away from foreign policy efforts, these are issues on which Obama placed heavy emphasis during his campaign, and the President-elect's team told the LA Times that they expect his early moves to be "appreciated overseas, and create a more favorable environment for the new administration right at the start."

Addressing detainee treatment and interrogation policies and closing Guantanamo would provide a needed break from the past. The world has so soured on the Bush Administration that foreign leaders are suspicious of American proposals, "even when they're good ones," an advisor added.

Obama has declared that the Guantanamo Bay prison in Cuba should be closed and that detainees should be handled through the U.S. military justice system, and also supported increased oversight of the secret CIA detention program and efforts to promote a single standard of humane interrogation techniques that would restrict the CIA to interrogation techniques used by the military. But there’s a lot of difficult work ahead – and this is where organizations like HRF come in, to keep the pressure on, and to help sort out the details. In the new environment of an Obama Administration, we expect our views to be taken seriously.

'Today We Have More Hope ... '

Human Rights First Executive Director and CEO Elisa Massimino speaks about the election of Barack Obama and what it means for restoring our nation's commitment to human rights and the rule of law. Watch the video in which President-Elect Obama cites his meetings, organized by HRF, with our group of retired Generals and Admirals: