Supreme Court Revives Chance for Justice in Torture Case

The Supreme Court’s decision to revive a lawsuit brought by four British men who claim they were tortured at Guantanamo provides the plaintiffs with a chance for justice and the public with an opportunity to learn how policies that undermined American interests and tarnished our reputation came to be embraced.

The four men -- Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal al-Harith -- were captured in late 2001 in Afghanistan and were transferred to Guantanamo in early 2002. In March 2004, they were returned to Britain. Their lawsuit named then-Defense Secretary Donald Rumsfeld and 10 military commanders. They claimed they were subjected to torture, harassed as they practiced their religion, and forced to shave their religious beards.

“This case presents the question of whether senior officials of the United States government can be held accountable ... for ordering the religious humiliation and torture of Guantanamo detainees," their lawyers said in the appeal to the Supreme Court. "This case presents the opportunity to recognize and enforce rights that are at least as basic and essential to human autonomy -- the right to worship and the right not to be tortured."

As the publicly released portions of the Senate Armed Services Committee report showed last week, the responsibility for the United States’ authorization of torture and abuse extends far beyond the low-ranking individuals who have faced punishment for their actions. “This case presents an opportunity to get to the bottom of the torture scandal so that we can put this sorry chapter behind us,” said Sharon Kelly, Campaign Manager for We Can End Torture Now.

Detainee Abuse Cannot Be Attributed to “a few bad apples”; Top Bush Admin Officials Are to Blame

A report released yesterday by the Senate Armed Services Committee said that top Bush Administration officials bore major responsibility for the abuses committed by American troops in interrogations at Abu Ghraib in Iraq, Guantánamo Bay, Cuba, and other military detention centers: "The fact is that senior officials in the United States government solicited information on how to use aggressive (interrogation) techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees."

The report, which represents the most thorough review by Congress to date of the origins of the abuse of prisoners in American military custody, rejects the contention by the Bush Administration that tough interrogation methods have helped keep the country and its troops safe. The report also rejects previous claims that Defense Department policies played no role in the harsh treatment of prisoners at Abu Ghraib in late 2003 and in other episodes of abuse. The abuse of prisoners at Abu Ghraib, the report says, “was not simply the result of a few soldiers acting on their own” but grew out of interrogation policies approved by Mr. Rumsfeld and other top officials, who “conveyed the message that physical pressures and degradation were appropriate treatment for detainees.” The portions made public today also include information about the use of Survival Evasion Resistance and Escape (SERE) techniques--designed to simulate abusive tactics used by our enemies to elicit false confession--against detainees in U.S. custody.

The report, as Mark Benjamin at Salon.com writes, “is all about naming names, and the summary is stunningly frank in its conclusions, particularly in comparison to the passive language employed by most government investigations into abuse.”

Although most of the report remains classified, the release of the unclassified portions underscores the need for a complete and open investigation into U.S. government detention and interrogation practices since September 11, 2001, and for accountability for those who authorized or engaged in prisoner abuse. "The United States must openly confront its role in sanctioning cruel treatment so that the American public and Congress can learn from past mistakes and prevent future abuse," said Deborah Colson, Interim Director of Human Rights First's Law and Security Program.

HRF is also urging President-elect Obama to establish a nonpartisan commission to investigate the facts and circumstances relating to U.S. government detention and interrogation operations since September 11.

"The next president must restore America's commitment to humane treatment and prevent future sanctioning of cruel treatment by directing the new attorney general to investigate potential criminal conduct related to detainee abuse," said Colson. "Prosecution is a strong deterrent against abuse and would send a signal that no one is above the law," added Colson.

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.