As outlined in President Obama's May 2009 address, the administration plans to detain some Guantà ¡namo prisoners indefinitely, without charge or trial. This measure would apply to those against whom insufficient evidence exists for prosecution or from whom "evidence" was extracted through torture. The administration thus proposes a system of the preemptive incarceration based on the alleged probability of future crime, and not verifiable past conduct. This is as a frightful plan, which grants the U.S. executive near-tyrannical powers. Such a scheme must be rejected out of hand given its blatant inconsistency with the constitutional requirement of due process.
Accountability
Despite its promise of a new era of accountability and respect for the rule of law, the Obama administration has repeatedly acted to ensure immunity for nearly all those under the Bush administration who committed and authorized torture. In simplest terms, the administration has failed to enforce the law.
The President has declared that waterboarding is torture, and has suggested that other "enhanced interrogation" techniques are as well. We are bound by the Convention Against Torture to investigate and prosecute those who ordered or committed such acts. The DoJ, however, has declined any comprehensive criminal inquiry, limiting its investigation to those who allegedly committed acts beyond what "enhanced interrogation" protocols authorized. In this decision, it has endorsed the Bush administration claim that the law is whatever the administration says it is.
Even if one accepts the limited culpability of those who acted in accordance with what they thought was lawful, one might expect meaningful sanction for those who distorted the law. We therefore applauded the judgment of the Office of Professional Responsibility that John Yoo and Jay Bybee not only adopted tenuous legal opinions but also engaged in lawyering that fell well outside established professional norms. Its findings were to trigger potentially severe professional sanctions. Yet DoJ's David Margolis, on spurious grounds, over-rode OPRs findings, issuing a tame reprimand of Yoo and Bybee that largely vindicates them. We thus find ourselves in the shameful circumstance in which torture was committed but no one is held accountable.
Some have suggested that to conduct a comprehensive inquiry into torture would be to politicize already sensitive issues. We disagree. The rule of law should be blind to politics. To decline mandatory prosecution is itself to politicize the law. President Obama has defended the grant of immunity as an effort to have the country "move forward" rather than "look back." But the best -- and perhaps only -- way to prevent future torture is to hold accountable those guilty of torture in the past.
Recommended Steps
The above reflections all speak to our core demands: that Guantà ¡namo be closed immediately, with its inmates released or charged and tried in civilian courts; that there be no system of indefinite detention anywhere; that habeas rights be granted to all detainees held by the US; and that the Justice Department conduct a comprehensive investigation of alleged torture under the Bush administration. Short of these broad measures, we have articulated smaller steps the Justice Department, in combination with other offices, should take.
Grant family visits: The United States should immediately grant the families of all detainees the right to visit them. Family visits are commonly granted to prisoners of all kinds, and those at Guantà ¡namo and Bagram should be no exception.
Human rights assessment: The history of abuses at US detention facilities has been extensive. The United States should therefore consent to a comprehensive, public assessment by a credible human rights organization to verify that conditions at the prison are consistent with the Geneva Conventions. Such an inquiry should feature access to the detainees and look seriously at such controversial measures as extended solitary confinement and the force-feeding of those refusing food. We likewise propose such an assessment of Bagram prison.
Expand investigation and prosecution: The Justice Department should expand the investigative mandate of prosecutor John Durham to include former senior officials possibly complicit in authorizing torture policies.
Investigate obstruction of justice: Colonel Lawrence B. Wilkerson, Chief of Staff to U.S. Secretary of State Colin Powell, recently signed a declaration for a court case indicating firsthand knowledge that in August 2002 Vice-President Cheney and other senior administration officials knew that many of those at Guantà ¡namo were detained in error. However, according to Col. Wilkerson, the Bush administration did not want to "look bad" and so suppressed knowledge of this fact. Wilkerson's statement should be the basis for a DoJ obstruction of justice inquiry focusing on the possible suppression of evidence of the innocence of captives at Guantà ¡namo.
Investigate human experimentation: The Justice Department, especially in light of the newly released report by Physicians for Human Rights, should investigate the authorization and commission of potentially illegal human experimentation in the application and monitoring of "enhanced interrogations."
Address "recidivism" claims: DoJ and other relevant agencies should issue a credible report assessing the frequency of men released from Guantà ¡namo who then engage in criminal activities against the United States. Such a report should be based in sound, transparent methods, not based on flawed or self-interest reports, reviewed by extra-governmental bodies, and include a detailed work-up of all known or suspected cases of former detainees' involvement in terrorism.
We thank you for your time and consideration, and look forward to a productive meeting.
Sincerely,
Witness Against Torture
Bill of Rights Defense Committee
Center for Constitutional Rights
Defending Dissent Foundation
No More Guantanà ¡mos
Torture Abolition and Survivors Support Coalition International
Voices for Creative Non-Violence
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