A non-partisan task force led by two former members of Congress has concluded that the United States government engaged in torture in the years after 9/11, and that "senior officials . . . bear ultimate responsibility" for the implementation and spread of those policies. The report, produced by a panel in association with the Constitution Project, comes a day after the deadly bombing at the Boston marathon – an event that is likely to re-open the public debate over how to respond to acts of terrorism. The members of the panel conducted their investigation through interviews and without access to classified information.
Though to some the conclusion that the United States committed torture after 9/11 may seem obvious, the report is significant for its massive scope. At 577 pages, it addresses abuses of detainees in U.S. prisons in Iraq, Afghanistan, Guantanamo Bay and CIA black site prisons, as well as the role of Congress in facilitating those abuses. The authors also criticize the Obama administration for excessive secrecy, writing, "one potential reason for the lack of prosecutions is the ongoing level of secrecy that surrounds the CIA program."
The authors state that "U.S. forces, in many instances, used interrogation techniques on detainees that constitute torture"; that there were even more examples of "interrogations that involved 'cruel, inhuman, or degrading' treatment"; and that "both categories of actions violate U.S. laws and international treaties."
On one page alone, the report describes a detainee in Iraq whose "back was almost broken" and had a "probably broken nose," and another who was burned so badly his thumb had to be partially amputated and he had to undergo "multiple surgeries." The New York Times reports that "the C.I.A. not only waterboarded prisoners, but slammed them into walls, chained them in uncomfortable positions for hours, stripped them of clothing and kept them awake for days on end."
The authors call for leaders in both major political parties to "acknowledge that the authorization and practice of torture and cruelty after September 11 was a grave error, and take the steps necessary to ensure that it cannot be repeated," including but not limited to strengthening laws related to the abuses they found. Later in the report, in a section called, "Can It Happen Again?" they also suggest that prosecutions and public disclosure of past abuse – as well as fear of future disclosure – could limit the likelihood of authorization of torture in the future.
But despite their recommendations, the report answers the question, "Can it happen again?" grimly. Legal prohibitions on torture now are "much the same as they were under the latter part of the Bush administration," and although Obama has issued executive orders banning torture, the authors note that those orders could be quietly rescinded under a new administration. Beyond all of that, torture was already illegal in 2001 under any common understanding of U.S. and international law.
Bush's Office of Legal Council (OLC) – the part of the Justice Department that provides legal advice to the president and says what they can or can't do – drafted a series of since-disgraced memos that determined various torture techniques were legal. Those have been withdrawn, but the report concludes that "there is no institutional barrier to future OLC attorneys adopting [the Bush team's] legal reasoning."
The report also found "no firm or persuasive evidence" that brutal interrogations "produced significant information of value," including in the search for Osama bin Laden. Without access to classified information, however, the panel is largely basing that conclusion on the assessment of some members of the Senate Intelligence Committee, which has its own 6,000 page report on CIA abuse that was written with access to classified information. The authors recommend that the Senate report be made public, with limited but necessary redactions.
Another recommendation made by a majority of the panel (though not every member) is to close Guantanamo Bay in conjunction with the drawdown of U.S. forces from Afghanistan in late 2014, under the reasoning that at that time the law of war will no longer apply. Detainees should be released if deemed they are not a threat, or tried under Article III – which is to say regular, civilian – rules. Those who can't be transferred or tried would be brought to the U.S. mainland and have opportunities to review their status. There are currently 166 people held at Guantanamo, 86 of whom have been cleared for release.
The authors undertook this project after Congress failed to create an independent commission to investigate these abuses, and Obama pledged early in his first term to "look forward, not backward." The secrecy that the Obama administration operates under only further insulates lawbreakers from accountability and ensures that lawlessness will continue. After Monday's tragic events in Boston, some will surely argue once again that authorities need whatever powers they request in order to keep us safe. This report is a valuable reminder that power used in secret will be abused, and that only transparency, and legal and professional accountability can limit the kinds of abuses that have plagued the country since 9/11.