Govt Running Out the Clock on Torture

April 24, 2009

(As originally posted on Daily Kos)

Let’s be clear, calls to allow the Senate Select Committee on Intelligence to conduct its own investigation into the abuses committed in secret CIA detention centers are little more than an attempt to play out the clock by freezing judicial investigations in until the 8 year statute of limitations on Anti-Torture Act crimes starts to render them moot from the spring of 2010 onwards.

The Select Committee has had plenty of time to complete its own investigations. Indeed, senior members of the committee, including House Speaker Nancy Pelosi, were briefed on the adoption of new harsh interrogations as early as September 2002. Unlike their colleagues on the Senate Armed Services Committee they chose to look the other way. They have missed their chance, and in this arena it’s play or pass.

So where does that leave those who care about accountability? The White House continues to fail to show leadership on this issue. After equivocating all week the President seems to have returned to his earlier line that we need to turn the page on the past.

Even without the President’s leadership, pressure for accountability is growing day by day. The first step is to develop enabling legislation for a genuinely independent inquiry along the lines of the 9-11 Commission. This commission must possess three fundamental qualities: it must be bi-partisan and comprised of eminent Americans of unimpeachable integrity; it must be well funded and well staffed; and it must be possessed of the necessary legal powers to effectively discharge its functions. However, it should not grant immunity from prosecution in return for testimony.

Furthermore, as the majority staff of the House Committee on the Judiciary recommended in January, Congress should consider extending the statute of limitations for offenses under the torture statute and war crimes statute. This would give the Commission the time to complete its work without prejudicing the prosecution of those found responsible for commissioning and perpetrating acts of torture.

What are the other key takeaways from the past week’s revelations? First, the 2002 Bybee memo represents the very best case scenario for the regime of abuse inflicted on detainees in U.S. custody. Amnesty International knows well that abuse escalates in a permissive environment and, within days of the memo’s release, confirmation emerged that waterboarding had been used greatly in excess of even what the DoJ’s Office of Legal Counsel considered permissible limits.

Second, the Bush administration did not seek advice from the best-qualified experts on how to effectively gain intelligence from captured members of Al Qaeda, it chose to get tough rather than smart. To this end, the General Counsel’s Office in the DoD sought advice not from experienced criminal investigators or military intelligence officers but from the Joint Personnel Recovery Agency (JPRA), which runs the military’s Survival, Evasion, Resistance, Escape (SERE) program.

Even the JPRA’s Commander noted, in newly declassified memos published this week by the Senate Armed Services Committee, that his organization was “not in the business of strategic debriefing (interrogation).” Inevitably, it wasn’t long before SERE instructors were warning their superiors: “this is getting out of control.”

Finally, claims that vital intelligence was gained using such techniques have been roundly discredited. Former FBI Special Agent Ali Soufan who led the law enforcement interrogation of Abu Zubayda broke seven years of silence to go on the record in The New York Times to refute the “false claims magnifying the effectiveness of the so-called enhanced interrogation techniques.”

His words were echoed by CIA Director Admiral Dennis Blair who said publicly:

“The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security.”

A CIA officer who spoke to President Obama’s transition team on intelligence matters also admitted that some foreign intelligence agencies were now refusing to share intelligence about the location of terrorism suspects for concern at being implicated any resulting abuses or other internationally wrongful acts. Surely, the canard that these techniques were a vital tool in our counterterrorism arsenal can now be laid to rest.

It has been a momentous week for human rights campaigners. After long years in the wilderness, there is now a sense that the balance is reasserting itself. Human rights and the rule of law are finally edging back to where they belong – at the very heart of American democracy.