Prosecute Detainee Abuse After 9/11

It's reasonable to believe that the torture and abuse of detainees have "made us less safe," says Elizabeth Goitein, director of the Liberty and National Security Project at the Brennan Center for Justice at the NYU law school. The center has been calling for an independent commission of inquiry to examine recent counter-terrorism policies that may have violated the rule of law.

Here's an excerpt of an interview with Goitein. (She was interviewed on the Wednesday Eight O'clock Buzz, a show I co-produce on WORT-FM.)

Q: Just a couple of weeks ago the CIA re-released a 2004 report on detainee treatment. Can you talk about that?

Goitein: What it showed was that the abuses that happened under the
interrogation program went far beyond what people believed and outside
of practices the Justice Department had authorized, such as water
boarding. Specifically, what the report showed, was there were mock
executions, detainees were threatened with power drills and loaded
firearms. Their families were threatened. Some really shocking things
like that.

Q: And for the purpose of what?

Goitein: That is an excellent question. There is a default
assumption that the purpose was to prevent another 9/11 by getting very
valuable intelligence from the detainees. There is still, after all of
this debate, no evidence that any valuable information was gained from
these detainees relating to an imminent terrorist attack. And there's
certainly no evidence that any of the information that was gained could
not have been gained through legal techniques.

Beyond that, there is some evidence from a Senate Armed Services Committee report
that was released back in 2007 that one of the main purposes of this
interrogation program was to try to get detainees to say there was a
connection between Saddam Hussein and Al Qaeda in order to justify the
war in Iraq. To the extent that there's some evidence of that is really
quite shameful.

Part of the problem with practices like torture and some of the
unlawful conduct that happened after 9/11 is that there is really a lot
of reason to believe that it has made us less safe. It's provided a
recruiting tool for terrorists. It's alienated our allies. There are
instances when allies have refused to cooperate with us because of our
practices. And I think to some degree it's put our own troops at
greater risk. Because when the United States plays fast and loose with
the Geneva Conventions, it takes away our ability to insist on other
countries respecting those Conventions. So that when American soldiers
are captured I think they are at greater risk today.

There is no evidence that these practices have made us more safe.
But there is evidence that they have made us less safe. It's not just
about civil liberties; it's about our national security and the best
way to preserve that security going forward.

It's time for us as a nation to take a serious look at what went
wrong and what went right so we can have the systems in place to ensure
that our policies are smart, effective, and respectful of basic human
rights and civil liberties.

Unfortunately, when you had a history of the kind of widespread
government-sanctioned abuses that we saw, that's an indicator that
something has gone wrong at a systemic level. It's not as simple as
some rogue actors disobeying the law. It's more a case of institutional
safeguards that are supposed to prevent that sort of thing from
happening having failed. So in order to make sure that we don't find
ourselves in that situation again, it's very important to figure out
what went wrong and how we need to reform our system to put those
safeguards back in place.

Q: What about Attorney General Holder's naming a prosecutor to investigate alleged CIA interrogation abuses?

Goitein: One important point to be made is that the Attorney
General has said he's asking the prosecutor to only focus on conduct
that went beyond what the Justice Department authorized. I think
that's a real mistake. It doesn't really serve anyone well to focus on
the so-called bad apples and to ignore the fact that government policy
itself crossed the line. So to make sure that going forward we have
respect for the rule of law, it's important to look at the
government-sanctioned abuses that happened. It's my view that the most
comprehensive way to do that is through an independent commission of
inquiry.

Q: What about the Obama Administration's assertion of state's secrets privilege?

Goitein: That's been a real disappointment. One of the most
troubling abuses of the Bush Administration was its misuse of the
state's secrets privilege, which is a privilege that enables the
government to shield certain evidence that could harm national security
of released. But instead of using that in a narrow way, the Bush
Administration would use it as a way to shut down cases at the very
outset before the evidence had even been identified. They would say
this case is so sensitive that we can't even find out what the evidence
is, not even behind closed doors, with the highest security
precautions. And not coincidentally, these were all cases where very
serious government misconduct had been alleged.

There was real hope that the Obama Administration would take a
different position and a more narrow view of the privilege. So far in
every case, the Obama Administration has taken exactly the same
position as the Bush Administration in terms of the state's secrets
privilege and asserting that it can't allow cases to go forward.

In one particular case, the plaintiff's attorneys had already seen a
document and the Obama Administration argued that if the court allowed
the plaintiff's attorneys to see the document again, the government
would actually come to the court and take the document away from the
judge essentially rather than allow that to happen. So it's a very
extreme form of the privilege. It's unfortunate that the [Obama]
Administration has continued it.

The President has this mantra about wanting to look forward and not
back. It's unfortunate that he takes that view because it's a false
choice, much like the false choice between our safety and our values
that he talked about in his Inaugural address. You can't responsibly
look forward without understanding what happened in the past.