Elizabeth Goitein

Abuse revelations demand an inquiry

By Elizabeth Goitein
August 5, 2009

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EARLIER this year, there were widespread calls for an independent commission to examine the Bush administration’s counterterrorism abuses. Although Senator Patrick Leahy of Vermont courageously took up the cause, President Obama resisted, citing a desire to “look forward, not back,’’ and for a short period it seemed he would get his wish.

But the past refuses to stay buried. What’s more, the present is beginning to carry disturbing echoes of the past, creating a powerful new argument for a commission.

The abuses underlying the original calls for a commission are well-known. The Bush administration instituted interrogation techniques widely seen as torture. It asserted the right to detain suspected terrorists indefinitely without judicial review. It implemented an illegal warrantless surveillance program. And it abused various privileges to conceal its wrongdoing from Congress, the courts, and the public.

President Obama hoped we could put all that behind us - but the revelations keep coming. The release of Bush-era Justice Department memoranda revealed additional “enhanced’’ interrogation techniques. New photos of detainee abuse surfaced. A report by five inspectors general referenced still-secret “intelligence activities’’ that even some Bush officials considered illegal. And Central Intelligence Agency Director Leon Panetta revealed that Dick Cheney ordered the CIA not to inform Congress, as required by law, about its secret plans to assassinate Al Qaeda leaders.

With each revelation, it becomes clearer that the previous administration’s abuses were part of an overall breakdown in good government. The institutional safeguards designed to ensure fidelity to the rule of law - indeed, the entire system of checks and balances - failed dramatically. Unless we determine exactly what went wrong and what institutional reforms are necessary to fix the problem, the past could well become prologue.

Indeed, in some areas, that is already the case. Most notably, Obama has continued the Bush administration’s pattern of withholding important information from Congress and the courts. Even as the news broke that Cheney had told the CIA to withhold information from Congress, Obama threatened to veto legislation requiring the CIA to inform the full intelligence committees about covert operations. He issued a signing statement effectively claiming the right to ignore legislation designed to protect government whistleblowers, and his administration continues to misuse the state-secrets privilege to stop lawsuits alleging government misconduct.

As for the treatment of suspected terrorists, Obama has put an end to torture for the time being. But he continues to apply overly broad criteria for who may be detained under the law of war. And he claims that US-held detainees in Afghanistan have no right to judicial review - the same argument President Bush made regarding Guantánamo detainees, only to be rebuffed by the Supreme Court.

These developments underscore the need for a thorough examination of post-9/11 counterterrorism operations. Currently, there is a patchwork of investigations by congressional committees, agency inspectors general, and (perhaps) criminal prosecutors. But this fragmented approach leaves some issues untouched, and may not capture broader systemic problems. Furthermore, each of these investigations is limited. Congress is understandably preoccupied with other matters. Inspectors general lack sufficient subpoena authority. And prosecuting low-level CIA agents who used unauthorized interrogation techniques would miss the bigger issue, which is that the authorized techniques themselves crossed the line.

Any inquiry into abuses initiated under Bush will provoke claims of “partisanship,’’ however unwarranted. Nonetheless, an independent commission would be less vulnerable to such charges than existing inquiries by the Democratically controlled political branches. It could even take some of the pressure off Obama, who currently must expend time and political capital - detracting from healthcare reform and other priorities - responding to each new revelation of misconduct.

Of course, the president may prefer the headache of dealing with Bush-era abuses to an inquiry that might call into question some of his administration’s own actions. But that’s exactly why a commission is necessary. We must acknowledge that some problems don’t solve themselves. The time has come for an independent commission.

Elizabeth Goitein is the director of the Liberty and National Security Project at the Brennan Center for Justice at New York University School of Law.

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