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Truth With Consequences

Why both political parties should support a truth commission on the human rights abuses of the war on terror

Quite a while back, a friend of mine who teaches a college course in international human rights sent me a draft of the final exam he planned to give. The test asked students to imagine they'd been hired by a presidential candidate to write a position paper supporting the creation of a U.S. Human Rights Truth and Reconciliation Commission. The commission was to look into "violations of U.S. laws, U.S. constitutional rights, international human rights and international laws" by the U.S. government and its allies around the world during the so-called war on terror.

Back then, I thought the test a mildly amusing example of my friend's natural tendencies toward subversion and left politics, but events have outrun his thought-experiment. In recent months, major news organizations have added significantly to a long string of authoritative reports on secret prisons, incommunicado incarceration, coercive interrogations that may have included torture, extraordinary renditions, targeted killings and more. There have been commission inquiries and congressional hearings, one upon another.

Many Americans think they know what their government has done, rightly or wrongly, in regard to terror suppression the last eight years and think well or badly of it mostly on the basis of ideology. But from the news reports and hearings themselves, it is clear the whole story has not been told, and two possibilities hang in the air: Additional detail could show the story to be approximately as bad as we already know, or it could be worse. Until we know the entire story of the conduct of the war on terror, a new story — with America reassuming a believable role as a guarantor of human rights — can't really begin. And neither can an effective next presidency, whether Democratic or Republican.

I was struck just below the ribcage the other day by an emotion similar to nostalgia, though not so pleasant. It had a wistfulness to it and a sense of history, the sweeping, Dr. Zhivago-in-the-snow feeling that goes with having lived through momentous events. The feeling was prompted by an article from the front page of The Washington Post, dated Oct. 21, 2001, and written by Bob Woodward. It had a headline so breathless, prophetic and ironic, all at once, that I almost wept:

CIA Told to Do "Whatever
Necessary" to Kill Bin Laden;
Agency and Military Collaborating at
"Unprecedented" Level;
Cheney Says War Against Terror
"May Never End"

The story came from a different world, a world where Americans were united in their stance against the terrorists who had killed thousands in New York and Washington — so united that when Vice President Dick Cheney was driven through Manhattan, "people stopped their cars, got out and applauded." The article focused primarily on a presidential finding that authorized the CIA and other intelligence and military organizations to destroy al-Qaeda and kill Osama bin Laden. "The gloves are off," Woodward quoted one senior official as saying. "The president has given the agency the green light to do whatever is necessary. Lethal operations that were unthinkable pre-September 11 are now underway."

Since then, the general run of press coverage suggests that the U.S. government has yet to kill bin Laden but has to some degree degraded al-Qaeda as a terror group, sometimes by capturing its leaders and sometimes by killing them. Americans have been told that a relatively small number of known terrorists have been assassinated, mostly along the Afghanistan-Pakistan border, some killed by missiles fired by drone aircraft.

But there is no way for anyone without the highest security clearance to know, actually, how many people have been killed in Afghanistan, Pakistan or anywhere else in the world by the CIA, other intelligence agencies and special operations forces, under authorization of the Bush "finding" that allowed lethal, previously unthinkable operations.

And this is not to mention Iraq.

But leave assassination to the side for the time being, as a special case. Think, instead, about the laundry list of other questionable U.S. anti-terror activities that has been written into the public conversation over the last several years, unaccompanied by anything like a comprehensive explanation. Just a few of the extant questions: Since Sept. 11, 2001, how many secret prisons has the U.S. used for terrorism suspects? Where were the prisons located? How many terror suspects have been held incommunicado at these secret prisons — as well as the known ones in Afghanistan, Iraq and Cuba — and for how long? How many suspects have been subjected to coercive interrogation techniques? What techniques were used? How many suspects died or suffered permanent physical or psychological harm as a result? How many suspects have been the subject of kidnapping or, in the lexicon of anti-terrorism, "extraordinary rendition"? After they were kidnapped, to which countries were they rendered for questioning? Were U.S. agents present during questioning conducted by the authorities of these other countries? Has anyone died during interrogation by those authorities?

As initially disclosed by The New York Times, the National Security Agency has been involved in a program of warrantless wiretapping and electronic eavesdropping that raises its own laundry list of questions. How many American citizens were subject to electronic surveillance? Who had access to the intercepts produced by the program? Did the intercepts or information from them go to anyone outside the intelligence services of the U.S. government? What searches were done on the intercept database(s), and by whom? Were prominent American politicians or businesspeople the subjects of intercepts or database searches?

And, of course, all of these questions seem to lead inevitably to one first made famous during Watergate: What did the president know, and when did he know it?

The answer to which could present problems for a next president.

Tom Malinowski is speaking single words with pauses between them, apparently wanting to make sure he doesn't say something that might sound incompletely considered. "I've tried not to push this too hard," he says. "I think it's something the next president has to come to himself."

Malinowski is talking around the edges of the possibility that the next president might empanel a truth commission on terror detention and interrogation practices. That proposal comes in a few sentences at the bottom of an article, "Restoring Moral Authority: Ending Torture, Secret Detention, and the Prison at Guantanamo Bay," in the July issue of The ANNALS of the American Academy of Political and Social Science, which is devoted to advising the next American president on the state of terrorism and ways to combat it.

At this point, there is little doubt that U.S. officials have authorized and engaged in interrogation techniques — from waterboarding to beatings to sleep deprivation to stress positions and on to other tactics taken straight from the playbook of the worst of 20th-century totalitarianism — that can at least arguably be characterized as torture. Although some neoconservative stalwarts still defend those practices, there is a real consensus in military and intelligence circles that they have been profoundly counterproductive. They have produced very little usable information — many times, in fact, creating disinformation — and greatly harmed the country's reputation. In effect, these interrogation techniques have done the near impossible, convincing large swaths of humanity that al-Qaeda's mass murderers are morally superior to the United States government.

Malinowski, Washington advocacy director for Human Rights Watch, was a foreign-policy speechwriter for the Clinton administration, and his skill with understatement shows when his article explains the problem this litany of apparent abuse presents a new president. "It would be unfair for the next administration to punish CIA interrogators for torture if it does not also prosecute the senior officials, including the president, who authorized its use," Malinowski writes. "However, it is hard to imagine that the next president will want to bring his predecessor to trial. Such a proceeding could divide the country and make it harder to forge a bipartisan consensus that what was done to prisoners was wrong."

In Malinowski's eyes, the answer to this dilemma is a truth commission composed of people who have spent their careers in at least ostensibly nonpartisan professions, including, perhaps, retired military and intelligence officers, retired judges and religious leaders. "I think a group like that can come out with a product that everyone believes," Malinowski says.

If the product is largely just a fleshing out of the misdeeds already made public, Malinowski thinks public opinion will militate against prosecution of Bush and other high officials in his administration. And actually, the chief aim of a truth commission wouldn't be prosecutorial but narrative. As Malinowski sees it, the whole story of the initial U.S. response to 9/11 will come out, eventually. The choice facing a next president involves form and control: Will the story come out in dribs and drabs over a period of years, preventing a clean break with the past, or all at once, as an authoritative report that is viewed as credible in America and around the world?

I can't improve on Malinowski's description of the potential restorative power of a terrorism truth commission, so I'll just quote it: "The story such a commission would tell is not one of which most Americans will be proud. But a more hopeful narrative can still emerge: America was hit hard on September 11, 2001. It tried to react in ways that were honorable and smart, but it also made mistakes out of fear. Yet in a relatively short period of time, its democratic institutions corrected those mistakes, just as they were designed to do. If the next administration chooses wisely, this is how the story will end."

I respect the position that a commission on surveillance, detention and interrogation abuses would be a mega-spectacle, miring the country in recrimination at the very moment it needs to move forward on a host of foreign and domestic fronts. No one should underestimate the international attention and news coverage — much of it highly negative — a commission would draw.

Former U.S. Sen. George Mitchell — precisely the sort of person often approached to head such inquiries — was wary of a commission when I spoke with him in June. He noted that there have been many formal investigations of anti-terror policies and programs already, that no commission satisfies everyone and that the country is already yearning for a change in policy. He wondered what, precisely, a new commission would study that is not already essentially known. "I guess that my reaction is that with the election of a new president, I would prefer to wait and see what the preferences of the new president would be," Mitchell said.

I understand Senator Mitchell's caution but think it places fear of clamor ahead of the need for a fresh start. I also understand the inclination many Republicans might have to consider a truth commission nothing but Democratic mischief-making, masked in moralism. So let's leave morality out of the equation for a few paragraphs. Let's talk practical politics, as they will exist in January 2009.

Unless a truth commission is empanelled, a President McCain will likely face a Democratic Congress and four years of Democratically led congressional investigations into anything that smells of law-breaking or abuse of power by anyone in the Bush administration, along with all the attendant press leaks and coverage. He will have almost no chance of enacting anything like a program. If McCain loses in November, the Republican Party has an even clearer interest in short-circuiting endless congressional investigation into the Bush years and in reinventing itself quickly. The political benefit to Republicans of a reasonably nonpartisan truth commission with a due date for issuing a report over congressional hearings that might go on indefinitely seems, to me, starkly obvious.

If Barack Obama becomes president, his notion of an America without red or blue states would be greatly — and perhaps fatally — undermined by drawn-out congressional investigation of his predecessor's administration. Absent a commission, Congress will continue to investigate the Bush years. President Obama will lose control of the agenda for his administration to a set of partisan, quixotic and sometimes not particularly intelligent congressional committee chairmen.

So much for the kind of change America can believe in.

In mid-June, the McClatchy newspapers' Washington bureau published a multipart series that was the result of eight months of investigation of the terror detention system. That series found "the U.S. imprisoned innocent men, subjected them to abuse, stripped them of their legal rights and allowed Islamic militants to turn the prison camp at Guantanamo Bay, Cuba into a school for jihad."

It is difficult to summarize the breadth of shameful activity the McClatchy reporters discovered. One story in the series focused on brutality at Bagram Air Base in Afghanistan, which "peaked in December 2002, when U.S. soldiers beat two Afghan detainees ... to death as they hung by their wrists." One of the detainees was beaten on one leg "so many times that the tissue was ‘falling apart' and had ‘basically been pulpified,'" according to the Air Force medical examiner who performed an autopsy. Extreme abuse was not isolated but "routine" and "systematic." It didn't affect a few but most detainees. And the Americans who authorized and meted out the abuse have received very little in the way of punishment.

As it reveals some of what happened during the prosecution of the war on terror, McClatchy's eight-month investigation points up how much we don't know. One of its chief findings is that the legal framework "under which detainees were imprisoned for years without charges at Guantanamo and in many cases abused in Afghanistan" was created by five government lawyers, following orders from President Bush and Vice President Cheney. Those lawyers, known as the War Council, "drafted legal opinions that circumvented the military's code of justice, the federal court system and America's international treaties in order to prevent anyone — from soldiers on the ground to the president — from being held accountable for activities that at other times have been considered war crimes."

There is a lot we don't know about the War Council. According to McClatchy, none of its members has publicly described the group's activities in detail, "and only some of their opinions and memorandums have been made public." All five lawyers refused to answer McClatchy's questions. And more generally, the series notes, "[t]he Bush administration refuses to release full records of detainee treatment in the war on terrorism, and no senior Bush administration official would agree to an on-the-record interview to discuss McClatchy's findings."

Over the past quarter-century, more than 20 countries of diverse background have used the truth commission format to create a formal, credible record of governmental abuse and the institutional weaknesses that allowed the abuse to occur. In some cases — South Africa comes particularly to mind — commissions have resulted in reconciliation that was previously thought impossible. I am certainly not proposing the U.S. adopt the controversial model used in South Africa, where full, truthful confession could lead to amnesty. I am just asking the next president to give truth and reconciliation — and his administration — a chance.