A 13-member organization of scholars, human rights specialists, retired military and practicing attorneys by the name of the “Davis Group“ has called on President Barack Obama for a review of our nation‘s detention policies.
The group charges that since September 11, 2001 the United States has become increasingly unconcerned with detainee‘s rights.
“It‘s something that needs to be reviewed and revised – there are too many practices out there that are clearly illegal, and we have to come up with a standard set of detention policies and stick to them,“ said Colby Vokey, a former Marine Corps lawyer.
The group had the ear of Congress last week, when the Senate Judiciary Committee held hearing on whether to investigate post-9/11 detention policies. The Davis Group had a member present, and has continued communication through teleconferencing ever since.
“The spread of the committee was predictably pretty much partisan,“ said Almerindo Ojeda, the group’s co-founder and professor of Linguistics at UC Davis. “Democrats were in favor of investigation and Republicans were opposed, on the grounds that it would get in the way of prosecutions.“
Ojeda is the lead investigator of the Guantánamo Testimonials Project at the University of California, Davis, Center for the Study of Human Rights in the Americas. In founding the Davis Group, he probed his social network – contacting fellow human rights workers and the International Justice Network, made up of lawyers who‘ve represented detainees from Guantanamo and Bagram.
The first of the Davis Group‘s recommendations is that the President be the one to appoint this committee. Second is that the committee should be non-partisan.
“I think it‘s the only way to get the truth in a fair and dispassionate way – with a bi-partisan commission I‘m afraid we‘ll get the most extreme nominees from both sides and end up with a majority and minority report,“ he said.
The group also suggests that members of the committee should have security clearances in case sensitive information is revealed, and that the established committee of inquiry should have subpoena powers for testimonial, or limited use immunity. This wouldn‘t erase any crimes, and only ensures that nothing detainees or American officials say in their testimony for this particular investigation could be used against them.
“Otherwise, people will plead the fifth and we‘ll get nothing from them,“ Ojeda said. “This may impede prosecutions down the line, but I don‘t think we have any choice – without an offer of immunity we won‘t get anything.“
Opponents of a commission of inquiry say that holding a commission will interfere with prosecution, but any kind of immunity that would be issued for testimony would be limited to this specific testimony – and not everyone would even get it. Vokey said without the possibility of immunity, nobody of consequence would even be tried.
“I don‘t think it‘s realistic that we‘d ever be able to prosecute any of the big policy holders, and the only guys that would end up facing any kind of trial are the guys on the ground who were simply following orders,“ Vokey said.
The Davis Group‘s idea for an inquiry commission should not be instead of any other remedial effort, Ojeda said, before emphasizing that their recommendation for testimony from foreign individuals should be heeded.
“Without foreign testimony, it‘s just an inquiry into intelligence officers and retired military,“ Ojeda said. “The people who have borne the brunt of our detention policies are basically all foreigners, and it would be working with a very limited number of cases if we left out their experiences.“
The final recommendation is that the hearing be as transparent as possible – that a final report on the findings should be open to the public.
“The commission should offer one report in two versions,“ Ojeda said. “One should be a full, unadulterated version, and another the same report designed for the public, containing as much information as issues of privacy will allow.“
One of the Group‘s reasons for this call upon the government is their belief that what the United States has done endangers its own troops. Using immoral or overly intense methods only adds fuel to the fire for enemies already willing to do the same to us, Vokey said.
“The purpose isn‘t to keep the U.S. from interrogating people they capture on the battlefield – that‘s something that needs to be done and has been by every force and war ever,“ Vokey said. “But we‘ve lost our moral compass over the last several years with what we‘re doing, and the other side doesn‘t need additional motivation.“
Retired U.S. Army Reserve Lieutenant Colonel Stephen Abraham emphasized the danger of demonstrating to an enemy that your nation is willing to ignore human rights.
“Say you‘re in a battle against an overtly hostile nation and the Geneva Convention is in play, and your actions declare that you are not going to abide by the Geneva Convention,“ said Abraham, who is currently a practicing lawyer. “Your opponent will look at you and say ‘great, why should I?‘”
Abraham said that a nation doesn‘t even have to come out and say it – if an opponent can view your policies as incompatible with an international standard, they will feel they have equal license to disobey.
“There are a lot of enemy forces that our nation has faced that have not in any way close, honored the terms or spirit of the Geneva Convention,“ he said. “But it‘s never been our way of proceeding to give them an excuse to reinforce whatever is their rationalization for justifying it – we‘ve always attempted to take the moral high ground.“
One objective of a commission would be to find out what practices and policies are in place, and put limits on what methods can be used. But some are more trivial than others and harder to regulate – heavy metal music, for example, makes it a complex question.
“One of the ways they deal with detainees is to play loud heavy metal music, which doesn‘t sound like that big of a deal by itself,“ Vokey said. “But when you use it for an extended period of time day after day and in addition to other things, then it can become illegal treatment or even torture.“
Vokey cautioned that because the issue is so controversial, determining exactly how to re-vamp and define detention policies will require extensive deliberation.
“In order to do this right you have to review everything that was done in the context of the way it was done to find out if anything violated the law, so it‘s not something to be taken lightly or quickly,“ he said.
MIKE DORSEY can be reached at email@example.com.