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.

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:

Facing the Music: CIA and British Agents May Face Prosecution for Allegations of Torture

Remember Binyam Mohamed? Senior CIA officers could be put on trial in Britain, after it emerged this week that the British Attorney General is investigating allegations of his torture.

To refresh you, Mohamed’s case was documented in HRF’s report Tortured Justice (pp.23-24). An Ethiopian-born former British resident, he was reportedly arrested in Pakistan in April 2002 and transferred to Guantánamo in September 2004, where he remains.

Mohamed maintains that after his arrest in 2002 he was rendered to Morocco, and then transferred to CIA custody in Afghanistan. His attorneys argue that the government's allegations linking him to a “dirty bomb” plot in the United States are based on confessions their client made after his detention and torture in Morocco, where, they say, he was slashed with a razor and beaten. In response to the torture, Mohamed says he attempted to tell his interrogators what he thought they wanted to hear, falsely confessing to some of their accusations.

But now, U.S. District Judge Emmet G. Sullivan has ordered the Justice Department to turn over documents to Mohamed’s attorneys detailing their client’s treatment while in detention overseas. These documents may help prove or disprove Mohamed’s claims that he falsely confessed only after being tortured at the direction of U.S. officials.

On October 21, 2008, shortly before the Justice Department was required to turn over exculpatory evidence to the defense, the Pentagon withdrew charges linking Mr. Mohamed to the “dirty bomb” plot. "That raises serious questions in this court's mind about whether those allegations were ever true," said Judge Sullivan. The government said it stood by the allegations but chose to withdraw them in order to expedite the proceedings. "That doesn't ring true; it rings hollow," Sullivan responded. "The government has never been concerned with acting expeditiously here." Read the Washington Post article here.

Earlier this week, the United States turned over potentially exculpatory intelligence documents related to Mohamed that have been the subject of judgments by the British High Court. The U.S. government initially resisted handing them over, releasing only seven documents, but on Wednesday it turned over the 35 remaining ones. British officials also told the High Court this week that the "question of possible criminal wrongdoing" in Mohamed's case has been referred to the country's attorney general for investigation into the actions of British agents, and potentially, senior CIA officers.

Last night, Mr. Mohamed’s lawyer, Clive Stafford Smith, said: "This is a welcome recognition that the CIA cannot just go rendering British residents to secret torture chambers without consequences, and British agents cannot take part in U.S. crimes without facing the music. Reprieve will be making submissions to the Attorney General to ensure those involved, from the U.S., Pakistan, Morocco, Britain, are held responsible." Reprieve is an organization, founded by Smith, that represents prisoners facing execution at the hands of the state in the conventional criminal justice system, or those subject to imprisonment outside the reach of the law in the ‘war on terror.’

Election Season is an Opportunity to Reflect on Human Rights

On the occasions of U.S. and Canadian election campaigns, Romeo Dallaire writes today in an opinion piece in the Toronto Star about Omar Khadr. “Both the United States and Canada are in the midst of election campaigns,” Mr. Dallaire writes, “so what better time for a principled discussion about human rights and international legal obligations?” He goes on to praise both John McCain and Barack Obama, who have each pledged to shut down Guantanamo if elected.

Mr. Khadr is a Canadian citizen and former child soldier accused of throwing a grenade that killed a U.S. soldier in 2002 in Afghanistan. He was 15 at the time, and has been held at Guantanamo Bay since he was 16. He is scheduled to be tried for war crimes on November 10, 2008 under the U.S. military commission system. Preparations for his trial have been characterized by legal shortcomings; read about our colleagues’ observations of Khadr’s case at military commission hearings at Gitmo here. Click here for more background on the case of Omar Khadr.

Missing at Guantanamo: Signs of a Fair Trial

This week marked the beginning of the trial of Salim Ahmed Hamdan, the first Guantánamo Bay prisoner to face trial by military commission. These first few days have highlighted the deficiencies in the process afforded these men.

High amongst these is Judge Allred’s decision that the Fifth Amendment right against self-incrimination does not apply to Hamdan and that some statements obtained through coercion may be admitted as evidence. By allowing the prosecution to rely on self-incriminating statements obtained far from the battlefield without Miranda warnings and through coercion, Judge Allred has violated domestic and international fair trial standards. In the federal criminal justice system, a defendant must be warned that statements may be used against him before his interrogation begins, and corroborating evidence is required at trial to support such statements. Contrary to this norm, the LA Times reported today that much of the government’s case against Hamdan is based on self-incriminating statements alone.

The lack of crucial safeguards typically afforded defendants in the criminal justice system is only the latest proof that the military commission process is deeply flawed and that it cannot result in any just outcome.