As part of his pledge to close Guantánamo, President-elect Obama has committed to reviewing the individual files of the remaining prisoners to determine whether to release them or to charge them with criminal conduct. This process will take months to complete. In the meantime, the new President could take immediate steps that would reverse some of the most troubling aspects of Bush Administration detention policies and send a swift and reassuring message that President Obama is serious about regaining America’s moral stature in the world.
First, President Obama should close immediately all secret prisons and transfer remaining prisoners in U.S. custody to the brig at Fort Leavenworth. The establishment and maintenance of “black site” facilities by the Bush Administration is a national embarrassment. Despite the shroud of secrecy, what has become known about the abuse and, in some cases, torture of detainees in these camps violates international and domestic law. Closing these facilities will signal that the United States will no longer “disappear” terrorism suspects—a familiar practice of authoritarian dictators.Second, reinstate the Third Geneva Convention for Guantánamo detainees. President Bush ordered detainees to be treated “consistent” with the “principles” of this widely-accepted international treaty governing treatment of prisoners of war. In practice, conditions of confinement at the camp are unduly harsh and do not adhere to the Geneva mandates. Many detainees are held in conditions of virtual solitary confinement. We know from psychological studies that isolation—even after only a few weeks—can cause psychological damage including hallucinations, confusion, and psychosis.The Third Geneva Convention prescribes humane standards of treatment that balances the need for security with humane treatment of prisoners. Detainees should benefit immediately from legal, humane, conditions of confinement while they wait for the new Administration to review their cases.
Third, establish a single interrogation policy applicable to all U.S. personnel. In our recent study of former Guantánamo detainees, we found that detainees were interviewed by interrogators from multiple agencies under varying guidelines. The FBI directed its agents not to participate in interrogations that did not comply with agency practice. While the Bush Administration rescinded some of the harshest interrogation techniques authorized for use by U.S. military interrogators, the CIA interrogators are not similarly constrained. It is time to put an unequivocal end to waterboarding and other interrogation tactics that constitute torture.
Fourth, direct that this single standard of interrogation adhere to the “golden rule” enshrined in the Army Field Manual (the military’s guidebook for troops to follow applicable law and policy). This would prohibit interrogators from using any technique on a prisoner that the interrogator would not want used on a U.S. soldier. This simple guideline is readily understood and applied in the field. Proclaiming this as new policy will end confusion over acceptable practices and help restore American moral leadership in the fight against terrorism.
Fifth, establish an independent nonpartisan commission to investigate and publicly report on the detention and treatment of detainees held in US custody in Afghanistan, Iraq, Guantánamo Bay, and other locations since the attacks of September 11, 2001. The commission should have subpoena power to compel witnesses and gain access to all classified materials concerning apprehension, detention, interrogation, and release of detainees taken into U.S. custody. The commission should have authority to recommend criminal investigations at all levels of the civilian and military command of those allegedly responsible for abuse or having allowed such abuses to take place.
President-elect Obama recognizes the real harms done under Bush, both to the people the US detained and interrogated and to America’s image in the eyes of the world. Restoring America’s image will take time and require thoughtful and thorough review of our detention and interrogation practices. However, we need not, indeed cannot afford to wait until this process is complete to begin to reverse course. President Obama should exercise his authority to bring U.S. detention policies in line with humane, widely-accepted standards of treatment.
Laurel E. Fletcher is Director of the International Human Rights Law Clinic and Clinical Professor of Law, University of California, Berkeley,School of Law; co-author, Guantanamo and Its Aftermath.
Eric Stover is Faculty Director of the Human Rights Center and Adjunct Professor of Law and Public Health at the University of California,Berkeley; co-author, Guantanamo and Its Aftermath.Guantanamo and Its Aftermath can be found at www.humanrightclinic.org
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