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Eric Stover

To look forward, you have to look back

COMMENTARY | April 22, 2009

Eric Stover, a professor who investigates human rights abuses, wants to focus on what our national security response should be to terrorism going forward -- but in doing so, he poses some disturbing questions about what we did. Third in a series of articles calling attention to the things we still need to know about torture and other abuses committed by the Bush administration after 9/11.

Eric Stover is Faculty Director of the Human Rights Center at the University of California, Berkeley, and co-author of "Guantánamo and Its Aftermath: U.S. Detention and Interrogation Practices and Their Impact on Detainees," a November 2009 report based on a two-year study of the cumulative effect of Bush Administration policies on the lives of 62 released detainees.

The report found “serious flaws in the system created by the Bush Administration for the apprehension, detention, interrogation, and release of suspected members of the Taliban and Al Qaeda,” and concluded that some interrogation techniques “appear to have violated international and domestic prohibitions on torture or other cruel, inhuman, or degrading treatment.”

The report calls for the creation of an independent commission to investigate and publicly report on the detention and treatment of detainees held in U.S. custody in Afghanistan, Iraq, Guantánamo Bay, and elsewhere since 9/11.

Stover sees the overarching goal of such a commission as being “to find out what should be our national security response to a dangerous enemy that fights in unconventional ways.” But what that requires, he says, is a meticulous examination of what we’ve done so far, the rationales, and the results.

For instance, Stover says, the profound problems with how we prosecuted the “war on terror” started at the very beginning, with the decision to adopt a bounty system that paid Afghans and Pakistanis to turn over alleged terrorists. The predictable (in retrospect) result was a huge number of people being falsely detained, just “so that someone could make a little money.” One example of a policy question that needs to be addressed, therefore is: Next time, are we going to use bounties again?

Denying detainees the protections of the Third Geneva Convention in Afghanistan and elsewhere had terrible consequences and brought out the worst in interrogators and guards.. “That’s why you have the Geneva Conventions: To protect not only detainees but also their jailers,” Stover says.

The HRC report recommends that the mandate of an investigative commission should include, but not be limited to, the following areas of inquiry. It’s as good a starting point as there is:

 • Apprehension and Screening. What were the procedures used in the screening of suspected “unlawful enemy combatants” and were they lawful, appropriate, and effective? If not, what should be the proper screening procedures for suspected enemy fighters? Did the U.S. military detain and transfer individuals to Guantánamo who had no connection to Al Qaeda or the Taliban or otherwise posed no threat to U.S. security? Did the use of monetary bounties contribute to the detention and interrogation of individuals who should never have been taken into U.S. custody? How did the decision not to apply the Geneva Conventions affect the apprehension and screening of detainees?

 • Conditions and Treatment of Detention. Did the conditions in U.S. detention facilities in Afghanistan and Guantánamo meet humane standards of treatment? Did the decision not to apply the Geneva Conventions affect the conditions and treatment of detainees? How did the U.S. deviate from the “golden rule” standard articulated in the Army Field Manual which states that no interrogator should use a technique that the interrogator would not want used on a U.S. soldier? What role did medical and psychological personnel play in the treatment of detainees? Did they contravene professional codes of conduct or violate any laws?

• Interrogations. Did U.S. interrogation practices subject detainees to abusive treatment including torture and cruel, inhuman, or degrading treatment? How did interrogation policies and practices evolve since President Bush’s declaration of a “war on terror” on September 20, 2001? And what was the role of civilian and military officials in designing and implementing these polices?

• Reintegration and Rehabilitation. What has been the cumulative effect of indefinite detention on those released from Guantánamo? What was the process to determine whether it was safe to transfer a detainee to the custody of a foreign government? What protections were used, and were they sufficient? Have any former detainees been subjected to cruel and inhuman treatment since their transfer to the custody of other governments? How successful are former detainees in reintegrating and resettling in their countries of origin or third countries? What impediments do they face? If any returnees pose a security threat, what steps and agreements with receiving governments have been taken to minimize such a threat?

Stover, who assisted the Commission on the Disappeared in Argentina and has studied commissions and war-crime trials across the world says that calling such an inquiry a “truth commission” would be a misnomer. “Truth commissions tend to be set up after a period of political upheaval or mass violence which affects an entire society,” he says. Typically, everybody in the society played a role of one kind or another.

“It’s not necessary for the American public to go through some purgation here,” he says. “But they do need to understand what was done in their name, and how we can correct it.”

-- Dan Froomkin froomkin@niemanwatchdog.org

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