Unstated Findings of the Detainee Treatment Report: Bush/Cheney & Co. Are War Criminals

On April 16, 2013, The Constitution Project released its report on “Detainee Treatment.” It is an important, not to mention devastating, document.  It’s important because of the group who gathered the information, along with their recommendations, and it’s devastating because of the revelations provided.

This bipartisan, fact-finding, rule-of-law-recommending report seeks to shed the pitiless light of publicity on the actions taken by the Bush/Cheney Administration in the aftermath of the 9/11 attacks on the United States.  It is factually intense, with carefully considered recommendations.

For me, the heart of this report is its twenty-four findings and recommendations.  But for this reader—and I suspect many others—the unstated finding to be drawn from this report is that Vice President Dick Cheney and his cohorts blatantly engaged in war crimes.  This report, while not expressly drawing that conclusion, certainly left this reader with that assumption.

The Constitution Project’s Task Force on Detainee Treatment

The Constitution Project (TCP) is a politically independent, Washington, DC-based think tank, which assembles views from across the partisan spectrum, while pushing aside labels and ideology, to undertake fact-based analysis and make recommendations relating to (I) The Rule of Law (such as checks & balances, counterterrorism policies & practices, data collection & privacy, government surveillance & searches, immigration reform, and transparency & accountability) and (II) Criminal Justice (specifically, criminal-discovery reform, the death penalty, the right to counsel, and sentencing reform).

TCP’s driving force is its founder and president, attorney Virginia Sloan, along with her staff, board of directors, and board of advisers, plus the various committees and a wide array of supporters .  (In the interest of full disclosure, I serve on the TCP Committee on Liberty & Security.)

Over two years ago, TCP assembled a bi-partisan, blue-ribbon Task Force on Detainee Treatment to examine “the federal government’s policies and actions related to the capture, detention and prosecution of suspected terrorists in U.S. custody during the Clinton, Bush and Obama administrations.”  This study was undertaken after, based on a policy decision, the Obama Administration rejected Congressional proposals to undertake such an inquiry.

While there was agreement on every finding, there was no unanimous recommendation regarding what should be done with detainees still being held at Guantanamo. Below, I have greatly condensed these findings. While all are noteworthy, I have passed more slowly over those I found most notable.

The TCP Task Force’s Findings

The Task Force report sets forth twenty-four findings, with accompanying recommendations (which I have not summarized).  Finding #1 concluded—notwithstanding the spin of former members of the Bush/Cheney administration and their apologists, but rather based on honest analysis that leaves no question—that during our post-9/11 response to terrorist attacks United States forces engaged in torture, as well as “cruel, inhuman, or degrading” treatment, when conducting interrogations of detainees. Such interrogation techniques violate American and international law, not to mention our country’s long-held values.

Finding #2 says that unnamed senior officials of the Bush/Cheney administration, because of their actions or inactions, must bear ultimate responsibility for allowing, and contributing to, the spread of illegal and improper interrogation techniques.  The report, however, does not find that these unnamed persons had legal responsibility.  Finding #3 states that there is “no firm or persuasive evidence” that these harsh interrogation techniques “produced significant information of value,” while there is “substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable.”

While the Task Force agreed in Finding #4 that the “continued indefinite detention of many prisoners at Guantánamo should be addressed,” in a rare division, they could not agree on how this problem should be resolved.  Finding #5 notes the government’s failure to engage with other countries on issues of the detention and treatment of such prisoners.

Finding #6 addresses the failures of the Office of Legal Counsel (OLC) at the U.S. Department of Justice when providing legal cover for the unlawful treatment of detainees, #7 deals with OLC’s failure to work with other departments and agencies with knowledge about such matters, and #8 raises the need for transparency versus secrecy for a president when he or she is receiving legal advice from OLC during “his or her presidency.”

Findings #9 through #11 deal with extraordinary rendition, and findings #12 through #16 discuss the activities of medical professionals in the treatment of detainees, calling for the recognition of basic ethical standards by doctors, psychologists and psychiatrists involved in these procedures. Finding #17 relates to the release of detainees; Finding  #18 the problem with lack of accurate information about detainee recidivism; Finding #19 the evils of excessive secrecy; while Findings #20 and #21 spotlight failures of the United States regarding the Convention Against Torture.  Finding  #22 is critical of loopholes added to the Army Field Manual; Finding #23 reports that torture has occurred when transferring U.S. detainees to Afghanistan authorities; and Finding  #24 found improved disclosure by the Obama administration of detainee information to the Red Cross.

While the scope of the findings and recommendations of The Constitution Project are much wider and deeper than this summary suggests, as I read the report I had the recurring thought that the Task Force had made a conscious decision not to take its factual findings to the next step and draw anything other than broad moral conclusions; no legal conclusions were made.  But, for me, the unstated findings of the Task Force are strongly implicit, if not inescapable.

The Task Force’s Unstated Findings

This eminently qualified bipartisan panel of men and women, with appropriate backgrounds and experience, working with an able professional staff, has assembled well-documented findings and offered sound recommendations for dealing with a serious national security issue. But the panel did not want to draw the wrath of anyone for stating the obvious, lest their good work be set aside over conclusions about individuals.

The report notes that several former members of the Bush/Cheney Administration, people in a position to know, acknowledge that they engaged in torture when interrogating detainees.  Yet the report notes: “Many more Bush administration officials, including President George W. Bush, Vice President Cheney, Rumsfeld, and CIA Directors George Tenet, Michael Hayden, and Porter Goss, have denied that the approved CIA techniques constitute torture or that detainees were tortured as a result of administration policy.”  This 577-page report shows that these people are either stonewalling, or in such a state of denial that one wonders how they function.

In fact, for me, the conspicuous unstated finding of this report is that Bush, Cheney, Rumsfeld, and others were clearly and knowingly engaged in war crimes.  While the Obama Administration has given them a pass, it will be difficult for history to do so, given the information that has been uncovered by this task force, which is also calling on President Obama to release additional information relating to the treatment of detainees that remains unnecessarily classified, indefinitely.