By Morris Davis
Less than three months after taking office, in April 2009, President Barack Obama ordered the Department of Justice to release four of the Bush-era "torture memos" that purported to give legal sanction to enhanced interrogation techniques. The approved techniques included waterboarding, which the once classified memos acknowledged created "a threat of imminent death" in the mind of the detainee. He said keeping the documents hidden behind a wall of secrecy "would only serve to deny facts that have been in the public domain for some time" and "contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States."
That was then. This is now.
There is currently a confluence of events that will focus attention on America's post-9/11 record of torture: a trial, a congressional report and a movie. Will they end up contributing to a more accurate accounting of what happened over the past decade? Or will they just fuel erroneous assumptions and lingering misperceptions? Time will tell.
On Dec. 6, 2012, Colonel James Pohl, the judge in the military commission trial of Khalid Sheikh Mohammad (KSM) and four others charged along with him, ruled that anything an accused says in court about his treatment while in US detention is classified information that must be shielded from public disclosure. He upheld the continued use of a 40-second audio delay so such information does not get into the public domain. So much for the transparency part of the Office of Military Commissions motto: "Fairness -- Transparency -- Justice."
Posing a Threat?
Colonel Pohl concluded that public access to testimony about detainee treatment would reveal sources and methods the United States uses to defend against terrorism and would be detrimental to national security. His reasoning is wrong on two counts. First, the methods used to enhance the prospects of KSM and other detainees talking are described in the "torture memos" made public in April 2009. To the extent there ever was a compelling interest in not disclosing what the enhanced interrogation techniques entailed, that ship sailed long ago.
Second, President Obama issued an Executive Order on his second full day in office banning interrogation techniques that do not comply with the Geneva Conventions and other US treaty obligations and laws. How would a discussion about interrogation techniques the US banned almost four years ago give away anything about how we defend against terrorism now? How would such a discussion pose a legitimate threat to the security of the nation in the future?
President Obama signed an Executive Order in December 2009 entitled "Classified National Security Information." In it, he said that information may not be classified in order to conceal violations of the law or prevent embarrassment to any person or agency. KSM and the other high-value detainees were removed from the CIA interrogation program and turned over to the Department of Defense over six years ago. What happened to them more than six years ago using interrogation techniques that have been banned for four years does not threaten the national security of the United States. It could, however, expose violations of the law and create embarrassment for the country, one that claims to be the light of the world and an example for others to follow.
Last Thursday, the US Senate Intelligence Committee approved a report critical of the secret detention and enhanced interrogation program the CIA ran during the Bush administration. The report followed a three-year investigation, is reported to be 6,000 pages long, and provides an individualized account of each detainee's treatment. It is also classified.
'Once and For All'
Senator John McCain, who was tortured during years of captivity as a prisoner of war in North Vietnam, said the report "confirms for me what I have always believed and insisted to be true -- that the cruel, inhuman and degrading treatment of prisoners is not only wrong in principle and a stain on our country's conscience, but also an ineffective and unreliable means of gathering intelligence." Senator McCain wants the report declassified and made available to the public saying it has the potential to "set the record straight once and for all."
The new Kathryn Bigelow movie "Zero Dark Thirty" opens in select theaters on Wednesday in the US. It purports to trace the steps that led to finding and killing Osama bin Laden, including a lengthy segment where detainees are tortured and give up information the film implies led to bin Laden. The fictionalized portrayal of torture in the movie is a disservice to what should be a genuine public debate on a critical issue. It falsely depicts members of the CIA engaging in gratuitous acts of violence and it falsely shows torture being a fast and effective way to get valuable intelligence. Despite the argument that "Zero Dark Thirty" is just a movie, for many of the millions of viewers it will become their perception of reality about the efficacy of torture.
Both President Obama and Senator McCain have spoken about the need to make information about the treatment of detainees available to the public to avoid an "inaccurate accounting" and to "set the record straight." As it stands now, the only information guaranteed to reach the public is the false account of torture in a Hollywood movie.
That makes it vitally important to make the Guantanamo military commissions open and transparent, and to declassify the Senate Intelligence Committee report.
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