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Torture: Time for accountability
NewsNotes, January-February 2009

Questions concerning the Bush administration’s endorsement of “enhanced” interrogation techniques and treatment of detainees have shifted recently from a focus on whether torture happened, and is it wrong, to a question of our response. Reports on possible instances of torture from the Departments of Justice and Defense, along with Congressional committee reports and accounts gathered by investigative reporters have brought some important information to light, but remain incomplete.

Several human rights organizations, faith-based advocacy groups, Congressional leaders, retired military personnel, prosecutors and legal scholars have joined together to call for a formal commission of inquiry. Gen. Antonio Taguba, who first investigated the interrogation practices at Abu Ghraib, said, “There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

A failure to pursue accountability could limit U.S. ability to redress damage already done and bear consequences still unseen. A willing disregard of international human rights and humanitarian law has diminished U.S. ability to assume moral authority in international disputes. Unchecked transgressions can easily lead to greater offenses, and set the precedent for future administrations to assume power beyond the limits of the law. Attorney Scott Horton suggests, “Open criminality is a cancer on democracy. It implicates all who know of the conduct and fail to act.” An unwillingness to take responsibility for criminal behavior not only sanctions the use of torture, but also sanctions the people’s failure to hold their government to account and causes us to forego our full participation in a democratic system.

A commission of inquiry can expose the truth and provide a full record, but it is not authorized to minister justice. It can function to educate the public, build political will for resolute change, and secure evidence for further steps toward accountability. Giving voice to the victims can change the emphasis of our historical memory, supporting a moral consensus that such activity will never be tolerated again. The commission would not only produce an in-depth report, but would also provide recommendations, such as what new policies and procedures need to be assumed. This commission could then lead to the formal recommendation to either offer pardons or pursue prosecution. These recommendations would not be mandatory, but would support further action only if the commissioners successfully made a case for them. Arguably, the only way this would be publicly acceptable is if the commission’s fact-finding process was comprehensive, transparent and non-partisan.

Perspectives vary on how this commission might be structured, the selection process and who might supply the mandate. The National Religious Campaign Against Torture has called for a Select Committee, while others, such as the Torture Abolition and Survivors Support Coalition and Human Rights USA are calling for an investigatory commission or “truth commission.” President-elect Obama could easily mandate such a commission, or an act of Congress could enable an executive-legislative commission (the most recent example being the 9/11 Commission). In order for the commissioners to command broad respect, they must be tenacious and prioritize the exposure of truth over the politics of those who appointed them. This should bar those with a history of partisan political engagement from appointment. Scott Horton points to the effectiveness of the two-tiered selection process of South Africa’s Truth and Reconciliation Commission. He suggests that we should follow their example and create a “qualifications commission” that would create a list of pre-approved candidates, from which the commissioners are chosen. “The experience pool should include prosecutors, intelligence professionals, retired military leaders, religious leaders and ethicists, human-rights advocates, healthcare professionals, and diplomats.” It is important that the commission have a clearly defined mandate. The commission must have subpoena power, be able to access classified material in a timely fashion, and even demand declassification of documents. The investigation should be conducted in the public arena as much as possible, and the records and documents scrutinized by the commission must also be made available to journalists, lawyers and scholars.

A thorough investigation would take a considerable amount of time, and the commission should be given the time it needs to uncover the truth and recommend appropriate action.

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