The Case for an Independent Commission

Human Rights First has welcomed the investigations both completed and still underway into the circumstances surrounding the abuses that occurred during U.S. detention and interrogation. Even so, more than one year after the Abu Ghraib photos were published — and nearly three years after the first abuse-related deaths in U.S. custody in the “war on terror” — we are still not in a position to say that we know how to ensure that such abuses never happen again. As evidence of the scope of the problem has increased, so has the need for a comprehensive, independent investigation into U.S. detention and interrogation operations in the “war on terror”—an investigation neither organized nor conducted by an agency that itself is the focus of the abuse allegations.

Each one of the major investigations to date, has suffered from both structural and particular failings that have prevented either full identification of the widespread abuses, or meaningful recommendations to address them. For example, the scope of the investigative reports by Lt. Gen. Anthony Jones, and Maj. Gens. Antonio Taguba and George Fay, were circumscribed narrowly. Maj. Gen. Taguba.s report looked only at the role of U.S. military police at Abu Ghraib. Maj. Gen. Fay’s report looked only at the role of military intelligence forces at that facility. And Lt. Gen. Jones was tasked only with looking at “organizations or personnel” involved in events at Abu Ghraib “higher than the 205th Military Intelligence Brigade chain of command.”

These investigators also have been limited by their respective places in the chain of command, by the nature of the inquiry (Army investigations like those of Taguba and Fay generally do not require sworn statements or provide subpoena power), and by their institutional inability to inquire beyond the four walls of the military itself. Yet each of their accounts has suggested that a critical part of what went wrong at Abu Ghraib and elsewhere was the relationship — and failures in command structure — between military intelligence and police operations, and between military personnel and personnel from other agencies outside the Department of Defense.

The two broader military investigations conducted to date — one by a panel led by former Secretary of Defense James R. Schlesinger and one by Vice-Adm. Albert T. Church (the full copy remains classified) suffer from structural constraints of their own. They also were limited to the role of military forces in detention and interrogation; indeed, both reports expressed frustration with their inability to inquire into the role, and relationship with the Army, of other U.S. actors, including the Central Intelligence Agency (CIA). The Schlesinger panel’s report, written without the benefit of subpoena power and lacking a single internal citation or footnote, suffers badly from an absence of real independence — the panel having been handpicked by the current Secretary of Defense. Vice-Adm. Church never interviewed a single detainee, nor did he interview key individuals connected to detainee interrogations, including Secretary of Defense Donald Rumsfeld, Ambassador Paul Bremer, who oversaw Iraq during the time of some of the worst abuses were committed in Iraq, Brig. Gen. Janice Karpinski and FBI officials who witnessed abuses at Guantanamo Bay.

In addition to flaws inherent in their design, some or all of the investigations suffer from particular flaws. These include failures to investigate all relevant agencies and personnel; cumulative reporting (increasing the risk that errors and omissions may be perpetuated in successive reports); contradictory conclusions; questionable use of security classification to withhold information; failures to address senior military and civilian command responsibility; and, perhaps above all, the absence of any clear plan for corrective action.

The time has come to do better. Establishment of an independent body with broad investigative authority, like the 9/11 Commission, has become a standard way for the U.S. government to try to get at the truth underlying an event of great public significance and concern. This is in part recognition of the practical reality that conducting a far-reaching investigation into a complex series of events requires considerable time and attention. With dedicated time and resources, a commission with a strong full-time staff can be empowered to study not just what happened, but why it happened. It can recommend corrective action. And it can help secure the accountability of those responsible.

Equally important, an independent commission is independent. As a group of distinguished, retired military officers wrote in a letter to President Bush in September 2004 urging the creation of such a commission: “Americans have never thought it wise or fair for one branch of government to police itself.” Such a commission need not be constrained by hierarchies internal to the organization it is reviewing, or the limits of departmental or institutional divisions of labor. It is able to operate with a level of objectivity that those closer to events and institutions cannot achieve. Critically, it can be designed to avoid either the reality or appearance of partiality or institutional protection.

For these reasons, we urge the creation of a comprehensive, independent commission to investigate and report on U.S. detention and interrogation practices in the “war on terror.” The commission should be charged with investigating the full range of actors involved. It should describe what happened and why. And it should chart a course for speedy correction and certain accountability — so that the American people, and our friends and allies around the world, can truly be assured that these abuses will never happen again.