As a nation, we’ve repeatedly trampled on individual rights during moments of national fear — the Palmer raids after World War I, the internment of Japanese-Americans, the McCarthy hearings at the dawn of the cold war. We may well do so again after the next major terror attack, particularly if it turns out to have been planned by people who were released from Guantánamo.
We’ll be better off if we come to some consensus on these issues. The Kerner commission on race and the 9/11 commission are both examples of how we as a nation used such panels to gain a better understanding of our shortcomings. Such a commission would also help heal the divisions with the rest of the world and help renew America’s reputation.
That is the justification Nicholas Kristof offers in his column today for the first of his two proposals for Putting Torture Behind Us in which he recommends a Republican-dominated commission. I will explore that as well as his suggestions for what to do about Guantanamo. I agree with his final suggestion on Gitmo, but find his suggestion on the panel a mixed bag at best.
Kristof notes Obama's seeming reluctance to investigate the Bush record on torture and other abuses, meaning that
the chance to learn from our mistakes is slipping away.
He quotes Santayana about how those who do not learn history are bound to repeat it as the setup to his suggestion for a high-level commission, co-chaired, say, by John McCain and Brent Scowcroft, that commission being tasked
to investigate torture, secret detention and wiretapping during the Bush years, as well as to look ahead and offer recommendations for balancing national security and individual rights in the future.
I will return to what I consider the inadequate scope of that mandate. But first I want to dispense with his argument for a Republican-dominated commission, which besides the two names he offers to head it, would include Philip Zelikow to write its conclusions.
Stop right there, Mr. Kristof. I do not believe an intellectually honest person would view Zelikow's role on the 9/11 commission as salutary. He was after all someone who had worked closely with Condoleeza Rice. And the panel did not fully examine, nor did he write in its report, about ALL the information relevant to how 9/11 came about. If the intent is a commission to help us know the truth, the example of the 9/11 commission does not support your case. Far from it.
As to your two co-chairs, there are problems with both. First, Brent Scowcroft, who to his credit at least opposed our attacking Iraq this time. It is far from clear that he has any expertise on matters of torture, Second, given his closeness to the first President Bush should such a commission clear the 2nd Bush of responsibility or knowledge such conclusions would probably not be believable. Further, he was National Security Adviser when Dick Cheney was Secretary of Defense - I view his participation as one fraught with the challenges of conflict of interest.
As to John McCain, I have further problems. First, he did not stand up to his own anti-torture provision when George W. Bush waived it vi a signing statement. That itself should disqualify him. Second, I am not convinced - and on this I know I am not alone - that he has ever been forthcoming about his own actions while in custody in Vietnam. That lack of clarity might undercut any remarks he has to make, particularly if there are those who are unhappy with his conclusions. Further, neither he nor Scowcroft seemed at all troubled at the issue of wiretapping. In McCain's case he supported the administrations efforts at domestic wiretapping, and that should be sufficient reason for him not to chair such a commission, even if you decided to include him as a member.
Kristof argues that
If the three most prominent members were all Republicans, no one on the right could denounce it as a witch hunt — and its criticisms would have far more credibility.
He suggest that such a panel would be better than no investigation, which is where we are heading. Here I strongly disagree. A panel without credibility, whose mandate is insufficiently broad, but which is shaped to have the prior approval of right-wing Republicans runs the risk of validating the paranoia upon which the past administration attempted to sell its policies.
And the narrowness of the mandate - unless an investigation has the clear authority to recommend prosecutions all the way up and down the chain of command, it is too narrow. Absent prosecutions there is no accountability. Absent accountability the lesson will be how to get away with such abuses in the future. And absent accountability, the rest of the world - no matter how much they may want to believe in and trust an Obama administration - will not fully trust that the U.S. is willing to apply the same standards to itself that it has demanded of others.
let's focus on that point. First, command responsibility. Let's for sake of argument posit that abuses were done only by low level minions, as the Bush officials have tried to argue with respect to Abu Ghraib. In the 1940's we executed a Japanese General named Tomoyuki Yamashita not because he ordered atrocities but because troops under his command committed them: under the doctrine of command responsibility he was responsible. We have never been willing to apply that standard to ourselves: think now of My Lai, where the highest level official ever jailed was Lt. William Calley, and then only briefly. His immediate commander Captain Ernest Medina was not jailed. No one further up the chain of command of the Americal Division was punished. And thus the idea of command responsibility under which we executed Yamashita was somehow made inapplicable to our forces. One has to wonder if it would have been so easy to limit the consequences of Abu Ghraib to such low levels as the guardsmen and a few officers had we been more honest in our handling of My Lai.
Some argue for a doctrine that says people acting with a legal opinion by a competent legal authority should not be prosecuted. I believe even Eric Holder has said words to that affect. As Keith Olbermann has noted, that completely undercuts the principles we established at Nuremberg, that following orders is not an acceptable defense for the commission of crimes against humanity. Torture is always a crime against humanity. Further, if we let the idea of an opinion from a competent legal authority (which does not necessarily mean the person is legally competent, merely that the person holds a position with the authority to provide legal guidance however poorly thought out) we will establish as a precedent that if you can get an opinion from a lawyer you have a free get out of jail and pay no fine card: that is a perversion of the principle that no man is above the law, and it gives motive to get lawyers to commit to such blanket clearances before placing them in the position where they can, a la John Yoo or Alberto Gonzales, issue such nonsense.
There are problems with any high level investigation. Those under investigation, those whose cooperation we may need to ascertain what really happened, will strongly resist giving any self-incriminating information, and will bargain for immunity. It is exceedingly difficult to get to the truth absent giving some actors immunity, and as we discovered during the Iran Contra hearings having a Congressional or other special panel able to give immunity runs a serious risk of jeopardizing any future criminal prosecutions.
And yet - criminal prosecutions must remain a possible outcome. Immunity should only be offered as it is in criminal investigations - for those willing to plea bargain, to accept some lesser penalty in return for admitting their own culpability and giving credible evidence against others. A special commission is not legally authorized to make such deals, which is a problem. Thus I am torn, because I believe that prosecution should be on the table, for all up to and including the former President. From my standpoint any high level commission or panel should include not only those with experience in military and intelligence matters, but also former high ranking members of the JAG corps. Obviously someone like Alberto Mora who spoke opposed some of the actions of the Bush administration should not be on the panel, and would be far more valuable as a witness to demonstrate that the administration was advised of the illegitimacy and inappropriateness of its actions. But there may be other former high ranking JAGs who could serve. The panel should also include at least one person who has prosecuted high level wrong doing, perhaps even in cases involving matters of national security.
I understand the point Kristof is making of our need to do what we can in order to learn and understand so that we do not have a situation where people will be tempted to again walk down the paths trod by high-ranking officials in the Bush administration. I applaud him for trying to find a successful way of achieving the goal of knowledge even as I cannot accept his proposal.
So let me turn to where I can fully praise him. He argues that we should totally shut down Guantanamo. He'd like to see us turn it back to the Cubans, because Guantanamo - like Abu Ghraib already is - may well serve as s rallying and recruitment cry for those who seek to do us damage. Kristof writes
Why spend tens of millions each year for a naval base that has very little military utility? We can project power in the region from Florida, and the main effect of the base has been to bolster Cuba’s Communist regime by creating a nationalist backlash and a scapegoat for the Castros’ repression and incompetence.
. Recognizing that it might not be politically realistic to turn Gitmo back (after all, there is still a Castro in power, and the Right will argue that he is close to Chavez), Kristof picks up a suggestion that appeared in a medical journal:
So here’s a fallback alternative: turn the base into a research center for tropical diseases.
. To support this proposal Kristof offers statistics on the impact of such diseases in the parts of our hemisphere to our South:
.. over a half million cases of dengue fever each year
.. 50,000 cases of Hansen's disease (leprosy)
.. 700,000 or more cases of elephantiasis
.. 50 million with hookworms inside them
Kristof concludes with a simple statement:
Imagine if people around the world came to think of Guantánamo as a place where America led a battle against hookworms and leprosy. That would help us fight terrorism far more effectively than the prison at Guantánamo ever did.
Here I find myself in agreement. Still, I see no reason why he could not combine both of his ideas for Guantanamo. Why not explore sharing control with the Cubans, and making the research institute international, with the cooperation of other nations in our hemisphere? Might that not show even greater concern for the well-being of others by including them in the process of healing? And should not the issue of health transcend political differences, even between nations with radically different political systems?
I always look forward to reading Nicholas Kristof. I usually agree more than I disagree with what I encounter in his column. Today's column presents me with a more complicated situation. I cannot support his suggestion for how to address the issue of torture, even though it might SEEM better than simply going forward and doing nothing. For me there is too great a danger of an illegitimate report that might somehow validate the actions that were taken. I want to see some mechanism with a greater degree of accountability for all involved. In my Marine Corps days we were strongly instructed in the Nuremberg principles. If current military and intelligence officials are not so instructed, we are already at risk of further abuses. And if they were so instructed, they should not be hiding behind legal opinions from competent authorities or the idea of following orders. At some point each individual is responsible for her actions and must be prepared to answer for them.
The idea of turning Guantanamo into a positive symbol is, however, an idea which I can support enthusiastically. I might disagree about some of the details, as I have noted, but commend Kristof for making the idea of a center on tropical diseases something we could consider. It might be even more salutary for all than merely shutting down the prison and the base, because the memories of what happened will not simply disappear, any more than the imperialism the base represents can simply be eradicated by surrendering control. Turning it into something positive for the region and the world is a far better solution.
I write about the thoughts others provoke in me. I invite you to do the same, both with Kristof's column, and with this diary.
Peace.