Responding to Terror

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The Nation

Responding to Terror

The April 15 bombing of the finish line at the Boston Marathon has triggered—and will continue to trigger—a series of state responses. The “first responders” were seen bravely running towards the scene of the devastation even as thousands of runners and spectators were quite naturally running away, in search of security. The second response, ongoing as I write this, is the search for the perpetrator or perpetrators, to bring them, as President Obama said, to justice. But the third response may be the most enduring—the legislative and executive initiatives sparked by the tragedy in hopes of preventing similar acts in the future. We all want to prevent such acts, of course, but we must be careful about the lengths to which we are willing to go toward that end.

A vivid reminder of the dangers of the third type of response came, coincidentally, the day after the Boston Marathon bombing, when a nonpartisan, blue-ribbon task force sponsored by the Washington-based Constitution Project issued its final report on the United States’ treatment of detainees in the wake of the September 11 terrorist attacks. The task force conducted a two-year investigation—interviewing detainees, lawyers and former government officials—and has written a more than 500-page report. It unanimously concluded that “it is undisputable that the United States engaged in the practice of torture,” and that “the nation’s most senior officials…bear ultimate responsibility for allowing and contributing to the spread of illegal and improper interrogation techniques.” The task force also found that the United States had “violated its international legal obligations in its practice of the enforced disappearances and arbitrary detention of terror suspects in secret prisons abroad.”

The task force further found that there was “no firm or persuasive evidence” that the use of harsh interrogation tactics “produced significant information of value,” that the Office of Legal Counsel lawyers gave “erroneous legal sanction” to the practice and that doctors, psychologists and other medical professionals violated their ethical obligations in participating in the design and administration of pain as an interrogation technique.

These conclusions are unlikely to come as a surprise to readers of The Nation. But what is most significant about the task force’s report is that it was not written by readers of, or writers for, The Nation. The task force, much like the 9/11 Commission, comprises well-respected senior former government officials, professors and doctors from both sides of the political aisle. It was chaired by Asa Hutchinson, a Republican who served in the Bush administration and who has most recently acted for the National Rifle Association in its opposition to gun control and James P. Jones, a Democratic former representative and ambassador to Mexico. Its members included a former ABA President, two retired Army generals, a former director of the FBI and a former Ambassador to the United Nations, along with several distinguished professors and doctors from all sides of the political spectrum. It included Republicans and Democrats, liberals and conservatives.

These days, it is difficult to find common ground on almost anything among Democrats and Republicans, as President Obama has seen time and time again. Partisan wrangling is especially intense around issues of national security. Indeed, President Obama famously (and I believe, erroneously) opposed any official effort to examine the abuses of detainees after 9/11 out of concern that it would devolve into partisan bickering that would derail other items on his agenda. Yet on this task force, Republicans and Democrats agreed—unanimously—that the United States’s most senior officials are responsible for war crimes and abuses of fundamental human rights—torture, enforced disappearances and cruel, inhuman and degrading treatment.

The task force report comes at a propitious time. Since 9/11, many have asked how the United States would respond to “the next attack,” with most predicting a devolving spiral of human rights violations and overreactions. But such a response is far from inevitable. If we can learn from the mistakes of the past, we may be able to avoid repeating them in the future. The United Kingdom, much like the United States, initially responded to IRA terrorism much as we did after 9/11, rounding up lots of suspects, detaining them without charges and abusively interrogating them. But in 1971, the UK swiftly appointed a commission of inquiry, chaired by Lord Parker, the Lord Chief Justice of England, to look into that response. The following year, the Parker Committee issued a report finding that the UK had responded illegally. While human rights abuses continued in other forms, officially sanctioned coercive interrogations largely ended. And today, despite the fact that the UK suffered thirty years of terrorist bombings, there is much more widespread support in the UK than here that torture is unacceptable, even as a response to terrorism.

President Obama has famously said that we should not look backward, but only forward, in responding to terrorism. But we must be willing to look back if we are to avoid repeating the mistakes of the past. The risk of such repetition is highest when we have suffered another brutal and heinous terrorist attack. By having the courage to look back and to render judgment, the Constitution Project’s task force may help us navigate the future with more resilience and commitment to our values than we were capable of after 9/11.

But the task force report is not sufficient. Because it was not an official commission, the task force lacked the power to subpoena witnesses and to examine classified information. The Senate Select Committee on Intelligence has, however, conducted just such an official investigation—and has apparently written a 6,000-page report coming to conclusions that accord largely with those of the task force. The Committee has delivered the report to the executive branch for its comments, and will undoubtedly be guided by the executive branch on what, if anything, of the report can be released to the public. If we are to learn collectively from the terrible mistakes of the past, President Obama should declassify as much of that report as possible. To his credit, Obama declassified the once-secret “torture memos” written by Justice Department lawyers, saying that because he had barred such tactics in the future, the legal rationales underlying them could be made public. The same thinking should compel disclosure of the Senate Select Committee on Intelligence report. Accountability is essential to ensuring respect for the rule of law, and true accountability cannot be secret.

David Cole

David Cole, The Nation's legal affairs correspondent, is the author, most recently, of The Torture Memos: Rationalizing the Unthinkable (New Press).

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