Military Experts and Scholars Call for Presidential Commission on Post 9/11 Detention Policy

A day
before the Senate Judiciary Committee will hold hearings on whether to
investigate post-9/11 detention policies, a group of leading scholars, human
rights specialists, and retired military officers has issued a statement
calling on President Obama to create a commission of inquiry to investigate
those matters.

"At
this moment of national renewal, it is important to face the future armed with
a thorough understanding of the past," said Almerindo Ojeda, the group's
co-founder and principal investigator for the Guantanamo Testimonials Project
of the University of California-Davis Center for the Study of Human Rights in
the Americas.

Calling
itself the Davis Group, the 13-member organization includes scholars, retired
military officers, human rights specialists, practicing attorneys who have
represented detainees held at Guantanamo Bay, Bagram and other locations,
individuals with experience in conducting previous government commissions,
intelligence specialists, and constitutional rights experts. Members include
retired U.S. Army Reserves Lt. Col. Stephen Abraham; Salomon Lerner Febres,
president of the Truth and Reconciliation Commission, Republic of Peru;
retired U.S. Marine Corps Lt. Col. Colby Vokey; and Eugene R. Fidell, president
of National Institute of Military Justice. (Full roster below.)

The
group's statement, submitted to the Senate Judiciary Committee and included
below, calls for the creation of an independent, nonpartisan commission
comprised of respected experts and charged with issuing a final report within
two years. The commission would possess subpoena powers, be granted appropriate
security clearances, possess the ability to receive testimony of foreign
witnesses, and have the power to grant limited testimonial immunity. However,
its actions should not impede other avenues of accountability or related
efforts to effect reforms, prosecutions or reparations, the statement
emphasizes.

"An
independent and nonpartisan commission of inquiry is the essential first step
to achieving President Obama's goals of reforming U.S. detention policy and
safeguarding against future abuses. The American people deserve a full
accounting of the facts and policies relating to the capture, detention,
transfer, interrogation, and treatment of persons who have been detained by, or
transferred for detention by others at the direction of, the United States
since September 11, 2001," said Hope Metcalf, director of the National
Litigation Project of the Allard K. Lowenstein International Human Rights
Clinic at Yale Law School.

Former
Army Reserves Lt. Col. Abraham, an attorney, said that U.S. detention policies have eroded
the moral foundations upon which the nation is built.

"When
this nation faltered from its moral footing, we damaged our intelligence
efforts, our national security, and our international standing,which
cannot easily be measured but will assuredly be felt for years if not
generations to come," Abraham said.

While
some maintain that expanded executive powers and the use of torture have been
necessary and appropriate to protect our national security, Vokey, a former
Marine Corps lawyer, counters that the measures have made the nation less safe.

"The
abuse of detainees continues to threaten the security of our own military
forces, undermining both our moral authority and our ability to protect U.S. forces in
the future," Vokey said. "Only through an independent, nonpartisan,
transparent and thorough investigation into the facts, circumstances and
policies employed in response to the Sept. 11 attacks can we begin to
objectively assess what has been done in the name of the American people and
restore our nation's great history," said Vokey.

Ojeda,
whose Guantanamo Testimonials Project has gathered accounts of Guantanamo experiences
from hundreds of detainees, FBI agents, interrogators, military physicians and
lawyers, said that an effective commission must be able to gather overseas
evidence.

"We
need to listen to the individuals who have been the most affected by these
practices and policies-the detainees themselves," Ojeda said. "The
technical and political costs involved will pale in comparison to the gains it
will yield. Not just to establish the facts, but also to strengthen U.S. relations
with key allies in the fight against terrorism."

The
Davis Group first met Jan. 16-18 at UC Davis. It continues to work toward the
goal of establishing a U.S. Commission of Inquiry into U.S. detention
policies and practices.

1. Commission and
Mandate. The President of the United
States should appoint an Independent Commission of Inquiry into U.S. Detention
Policies and Practices Since 9/11 ("the Commission on Detentions") to provide a
full accounting of the facts, circumstances and policies relating to the
capture, detention, transfer, interrogation, and treatment of persons who have
been detained by, or transferred for detention by others at the direction of,
the United States since September 11, 2001. The mandate of the Commission on
Detentions should also include, but not be limited to, assessing the legality
of such policies and practices, making recommendations it deems appropriate,
and identifying any lessons learned.

2. The Need for
the Commission on Detentions. Like
President Obama, many Americans have expressed concerns that the detention,
transfer, and treatment of detainees in U.S. custody carried out under expanded
powers of the government have eroded the moral foundations upon which our
country was built and undermined our national security and military objectives.
Others maintain, however, that such expanded powers have been necessary and
appropriate to protect our national security. It is only through an
independent, nonpartisan, transparent, and thorough investigation into the
facts, circumstances, and policies employed in response to the September 11
attacks, that we can begin to objectively assess what has been done in the name
of the American people.

3. Composition. The Commission on Detentions should be nonpartisan rather
than bipartisan in its composition. Its members should be men and women with a
demonstrated commitment to truth and to our nation's founding principles.
Commissioners should be individuals of irreproachable integrity, credibility,
and independence. Retired military officers, judges, government officials,
attorneys, intelligence officials, leading academics and human rights experts
are examples of the types of members that should be sought. The Commission
should be supported by adequate staff with appropriate expertise to carry out
the mandate of the Commission.

4. Security
Clearances. In a manner consistent with
existing procedures and requirements, members and appropriate staff of the
Commission on Detentions should be granted such security clearances as are
necessary to perform the functions of the Commission.

5. Subpoena
Powers. Congress should grant the
Commission on Detentions the authority of compulsory process, including
subpoena power, in furtherance of its mandate.

6. Testimonial
Immunity. In order to secure full and
truthful disclosures to the Commission on Detentions, and in recognition of the
Constitutional right of witnesses against self-incrimination, the Commission
should have the authority, at its discretion, to grant limited testimonial
immunity to witnesses.

7. Other Remedial
Efforts. The Commission on Detentions
should not impede other avenues of accountability or related efforts to effect
reforms, prosecutions, or reparations.

8. Foreign
Testimony. In order to thoroughly
investigate and evaluate U.S.
detention practices, the Commission on Detentions should solicit testimony and
reports from foreign nationals, including former detainees, other nations, and
non-governmental and international organizations. Robust efforts to include
overseas evidence will also buttress the credibility of the Commission's
findings, thereby strengthening foreign relations with our allies and our
national security. The Commissions on Detentions may hear such evidence in
person, when practical, or through alternative means such as remote testimony
or reports of investigative efforts.

9. Transparency. The Commission on Detentions should carry out its mandate
as openly and transparently as considerations of privacy and national security
will allow.

10. Reporting. The Commission on Detentions should convey its findings by
issuing one report in two versions-one public, the other classified. This
report should provide the full accounting of the facts, circumstances and
policies called for in the Commission's mandate, as well as make
recommendations, and identify lessons learned. The public version should
contain as much information as may be publicly disclosed. The second version
should be classified but only to the extent strictly necessary to protect any
classified information contained therein. Both versions should be released
simultaneously.

11. Duration. The Commission on Detentions should issue its report no
later than two years after it is convened.

12. Funding. The
Commission on Detentions should be funded at levels that will enable it to
carry out its mandate. These should be comparable to the levels of funding of
the 9/11 Commission. The funds are to remain available until expended or until
the Commission issues its reports.

The points of contact for The
Davis Group are:

• The Constitution Project, Daniel Schuman, Director of Communications and
  Counsel at (202) 580-6922 or dschuman@constitutionproject.org
• Colby Vokey at (214) 237-0900, (214) 697-0274 or cvokey@fhsulaw.com
• Stephen Abraham at
  (949) 706-5903, (949) 878-8608 or sabraham@falawyers.com
• Almerindo Ojeda at humanrights@ucdavis.edu

In witness whereof, the
undersigned signatures of members of The Davis Group have been affixed this
third day of March, 2009.

/s/
Stephen E. Abraham

Stephen E. Abraham

Lieutenant Colonel, U.S. Army Reserve (Ret.)

Law Offices of Stephen Abraham

Newport Beach,
California

/s/
Mark Denbeaux

Mark Denbeaux*

Professor of Law

Director, Seton Hall Law School Center for Policy and Research

Seton Hall Law School

/s/
Buz Eisenberg

Buz Eisenberg

Weinberg & Garber, P.C.

Northhampton,
Massachusetts

Chairman, International Justice Network Board of Directors

/s/
Eugene R. Fidell

Florence Rogatz Visiting Lecturer in Law

Assistant Professor of Human
Rights Law

Yale Law School

President, National Institute of
Military Justice

/s/ Tina Monshipour Foster

Tina Monshipour Foster

Executive Director

International Justice
Network

/s/ Kathleen Kelly

Kathleen Kelly

Clinical Teaching Fellow

International
Human Rights Clinic

Stanford
Law School

/s/
Ramzi Kassem

Ramzi Kassem

Lecturer in Law

Yale Law School

/s/
Salomon Lerner Febres

Salomon Lerner Febres

President, Truth and Reconciliation
Commission

Republic
of Peru

President Emeritus, Pontificia
Universidad Catolica del Peru

/s/
Michael Meltsner

Michael Meltsner*

Matthews Distinguished University
Professor of Law

Northeastern University School
of Law

Boston, Massachusetts

/s/
Hope Metcalf

Hope Metcalf

Director, National Litigation
Project of the

Allard K. Lowenstein International
Human Rights Clinic

Clinic Lecturer in Law

Yale Law School

/s/Becky
L. Monroe

The Constitution Project

Washington D.C.

Contact: Becky L. Monroe, Policy
Counsel

/s/
Almerindo E. Ojeda

Almerido E. Ojeda

Director, Center for the Study of
Human Rights in the Americas

University of California at Davis

/s/
Barbara Olshansky

Barbara Olshansky

Leah Kaplan Visiting Professor in
Human Rights

Stanford
Law School

/s/
Colby Vokey

Colby Vokey

Lieutenant Colonel, U.S. Marine Corps (Ret.)

Attorney at Law

Fitzpatrick Hagood Smith & Uhl
LLP

Dallas, Texas

/s/
Elizabeth A. Wilson

Elizabeth A. Wilson

Whitehead
School of Diplomacy and International Relations

Seton Hall University