The Constitution Project, a non-partisan Washington-based think-tank, is the author of this review of the Bush administration’s modus operandi in holding and interrogating detainees, following the attacks on the World Trade Center’s Twin Towers and the Pentagon by a small group of al-Qaeda-aligned zealots. These attacks had led to the deaths of some 3,000 people on the planes and in the buildings. And those events, in turn, precipitated the American intervention in Afghanistan (and then, more troublingly still, the invasion of Iraq).

The report is devastating in its conclusions that while brutality has quite obviously occurred in American warfare before, “there is no evidence there had ever before been the kind of considered and detailed discussions that occurred after September 11, directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.”

Not surprisingly, Bush-era figures like John Bolton – Bush’s one-time UN ambassador – said the report was “completely divorced from reality” and he insisted the tactics and techniques used on those who had been interrogated had been “lawyered, and lawyered again, and lawyered again. The whole point of the Bush administration’s review of the techniques was so that no one would be tortured. The intention was precisely the opposite.” Right about now, it would be just too easy to wheel in Shakespeare’s Henry VI, part 2 advice: “The first thing we do, let’s kill all the lawyers.”

The Constitution Project looked closely at the circumstances of how the prisoners were held and interrogated at Guantanamo Bay, in Afghanistan and Iraq, as well as at a number of secret CIA “black prisons”. This hefty doorstop of a report, weighing in at 577 pages, is the culmination of a two-year study based on evidence already in the public record. A bipartisan task force of 11 experts, representing a broad range of ideological perspectives and professions, carried out this effort. In setting up the task force, The Constitution Project had included former Republican and Democratic policymakers and members of Congress, retired generals, judges, lawyers and academics. It was not exactly a group of radical human rights activists – or libertarians. Asa Hutchinson, who had been George W Bush’s undersecretary for border and transportation security in the Department of Homeland Security – and a former Republican congressman – was one co-chairman and his co-chair was former Democratic congressman James R Jones.

In large part, the question of torture – the key to report – was that wobbly legal justification for what its proponents called “enhanced interrogation” but was simply termed torture by the Constitution Project team. John Yoo in the Bush administration’s Department of Justice Office of Legal Counsel had been the creator of this justification. However, the report cites Alberto Mora, the Navy’s general counsel, as a senior official troubled by these interrogation techniques. The report quotes him asking Yoo as to whether or not the president could lawfully order a detainee to be tortured. According to Mora’s comments, contained in the report, Yoo’s response to him had been, “Yes, the president could authorise torture. Yoo said that whether the techniques should be used wasn’t a legal question, but rather it was a policy question.” Not surprisingly, Yoo, now teaching law at the University of California at Berkeley, did not participate in the Constitution Project study.

The report pulls few punches. It says, for example, “US forces, in many instances, used interrogation techniques on detainees that constitute torture. American personnel conducted an even larger number of interrogations that involved ‘cruel, inhuman, or degrading’ treatment. Both categories of actions violate US laws and international treaties. Such conduct was directly counter to values of the Constitution and our nation.”

Two years ago, the former vice president, Dick Cheney, one of the key enthusiasts for this kind of interrogation had stated publicly he had “no regrets” about the harsh interrogation policies that had been used in the years following the 9/11 attacks. And two years before that, Cheney, when queried by NBC TV News as to whether he still supported the use of waterboarding had said, “I would strongly support using it again if circumstances arose where we had a high-value detainee and that was the only way we could get him to talk.”

In contrast to Cheney’s belief in the power of fingernail plucking as a path to truth, Donna McKay, executive director of Physicians for Human Rights, said her group “has long contended that interrogation techniques such as waterboarding, sleep deprivation, and stress positions did in fact constitute torture. We are gratified that a highly respected bipartisan panel led by two former members of Congress uniformly concurs. Their report should put to rest any lingering doubt about the severity of the abuse that took place at Guantánamo Bay and other US detention facilities.”

But the report went further. It has also made its views known on the efficacy of such methods – apart from their legality or morality. It said on this:

“There is no firm or persuasive evidence that the widespread use of harsh interrogation techniques by US forces produced significant information of value. There is substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable.

“There are, nonetheless, strong assertions by some former senior government officials that the use of those techniques did, in fact, yield valuable intelligence that resulted in operational and strategic successes. But those officials say that the evidence of such success may not be disclosed for reasons of national security.”

The report continues, however, that “History shows that the American people have a right to be sceptical of such claims, and to decline to accept any resolution of this issue based largely on the exhortations of former officials who say, in essence, ‘Trust us’ or ‘If you knew what we know but cannot tell you’.”

It went on to assert that “The Task Force believes there was no justification for the responsible government and military leaders to have allowed those lines to be crossed. Doing so damaged the standing of our nation, reduced our capacity to convey moral censure when necessary and potentially increased the danger to US military personnel taken captive. Democracy and torture cannot peacefully coexist in the same body politic. The Task Force also believes and hopes that publicly acknowledging this grave error, however belatedly, may mitigate some of those consequences and help undo some of the damage to our reputation at home and abroad.” And wraps up the case, saying, “it is indisputable that the United States engaged in the practice of torture” and that “the nation’s highest officials bear some responsibility for allowing and contributing to the spread of torture.”

So far at least, President Barack Obama and his administration, have chosen not to investigate the interrogation methods used during his predecessor’s administration. Still, criticism of this stance is already pouring in. On this point, the counterterrorism advisor at Human Rights Watch, Laura Pitter, said, “The finding of torture by a diverse, bipartisan task force, without subpoena power and looking solely at the public record, shows the need for an official US investigation into detainee abuse. The indisputable evidence of torture clearly raises the question: what will the US government do about it?”

As longtime senior diplomat Thomas Pickering wrote after the Constitution Project report was made public, “It’s never easy in this volatile world to advance America’s strategic aims. For more than four decades, in the service of Democratic and Republican presidents, it was often my job to persuade foreign governments to adhere to international law and observe the highest standards of conduct in human rights — including the strict prohibition of torture. A report released Tuesday by an independent task force on detainee treatment (to which I contributed) makes it clear that US officials could have used the same advice.”

He went on to say, “Unfortunately, the US government’s use of torture against suspected terrorists, and its failure to fully acknowledge and condemn it, has made the exercise of diplomacy far more daunting. By authorising and permitting torture in response to a global terrorist threat, US leaders committed a grave error that has undermined our values, principles and moral stature; eroded our global influence; and placed our soldiers, diplomats and intelligence officers in even greater jeopardy.”

Pickering went on to insist real steps must be done to deal with the resulting damage of these actions and set out a better, more moral course for the future. Pickering wrote, “First and foremost, Americans need to confront the truth. Let’s stop resorting to euphemisms and call ‘enhanced interrogation techniques’ — including but not limited to waterboarding — what they actually are: torture. Torturing detainees flies in the face of principles and practices established in the founding of our republic, and it violates US law and international treaties to which we are a party. Subjecting detainees to torture, no matter how despicable their alleged crimes, runs counter to the values embodied in the US Constitution.”

Pickering also called for Obama to declassify related documents as quickly as possible — beginning with the millions of pages of classified documents that were the basis for the Senate intelligence committee’s recent report on the CIA’s interrogation programme, and the still-secret report itself — so Americans can discover what was done in their name. Further, Congress needs to pass legislation that decisively seals any loopholes that allowed torture to be carried out under the guise of a fig leaf of legality. And the federal government’s Anti-Torture Statute needs to be amended to make it clear the deliberate infliction of severe pain and suffering is torture. Period. No wiggle room.

Additionally, Pickering says that the War Crimes Act needs to be amended to make it crystal clear that “cruel, inhuman or degrading treatment of detainees is a federal crime even when it falls short of torture. Instead of being told to rely on secret legal memos or doctors’ unethical monitoring of brutal interrogation sessions, interrogators should be given unambiguous orders that all detainees are to be treated in strict compliance with Common Article 3 of the Geneva Conventions, which is the basic provision of international law outlawing torture. And there should be clear, public rules ensuring prompt access to detainees by the International Committee of the Red Cross.” Pickering also argued it is just as wrong to carry out those renditions to other nations to allow their bullyboys to carry out interrogations on behalf of the US.

Moreover, the United States must not transfer detainees to torture in other countries. Such transfers, now infamously known as “renditions,” have occurred under Bill Clinton, George W Bush and Obama’s administrations — despite the fact that they violate the Convention Against Torture.

Beyond any official investigation of this activity and the changes in law and practice being advocated by Pickering, there is, however, the awkward issue of what must be done as a consequence of what has already happened. If these actions violated US law and international agreements, then what of the legal circumstances (and reputations) of those officials who earlier authorised and carried out those efforts? That would be one real legal catfight.

There is, however, an unexpected, inconvenient wrinkle coming in with this Constitution Project report later this week. The US government has announced release of its annual international human rights report on 19 April. This compendium provides embassy evaluations of how every other nation in the world adheres to – or fails to comply with – basic civil freedoms and human rights, the rule of law, the integrity of the respective legal systems, and the use of torture in their prisons and during interrogation over possible criminal charges.

In recent years, the US government has described the importance and impact of these annual reports, saying, “We see it as fundamental to our own interests to support a just peace around the world—one in which individuals, and not just nations, are granted the fundamental rights that they deserve.” Given that credo and the contents of the Constitution Project report, there may be some very late nights this week as State Department officials prep for the release of the department’s highly public document. DM

Read more: 

• Nonpartisan commission: US sanctioned torture from the top after Sept. 11 terror attacks in the Washington Post
• America must atone for the torture it inflicted, a commentary by Thomas R Pickering in the Washington Post
• The Constitution Project Report on Enhanced Interrogation Concludes US Engaged in Torture, at the Lawfare Blog
• The Constitution Project’s report
• Indisputable Torture, an editorial by the New York Times
• U.S. Engaged in Torture After 9/11, Review Concludes at the New York Times
• Human Rights Reports homepage at the State Department
• Announcing the 2012 Human Rights Reports at the State Department (2012 report comes out in 2013)

Photo: U.S. President George W. Bush speaks to reporters upon his departure from Washington en route to Europe June 9, 2008. REUTERS/Kevin Lamarque