VIII. Account for Past Abuses

When photos of detainee abuse at Abu Ghraib first hit the news in 2004, the Bush administration tried to limit the damage by claiming that they showed the illegal actions of a few "bad apples." But over the past several years, the Bush administration's narrative about why abuses occurred has been shown to be false. We now know that abusive practices such as waterboarding were discussed and approved at the highest levels of government, even though torture is illegal and waterboarding has been prosecuted as a crime by US courts for over 100 years.

The American public deserves a full and public accounting of the scale of post-9/11 abuses, why and how they occurred, and who was responsible for authorizing and facilitating them. Although several congressional inquiries, military reports, and Department of Justice investigations have looked into particular aspects of these questions, there has never been a comprehensive public inquiry into post-9/11 abuses, and investigations to date have either lacked independence from the executive branch or access to necessary documentary and testimonial evidence.  

During the first six months of his term, President Obama should work with Congress to set up a commission of inquiry to investigate, document, and publicly report on post-9/11 counterterrorism-related abuses. The commission should specifically address the question of who should be held accountable for these abuses and how such accountability can be achieved. It should also make recommendations regarding what steps should be taken to ensure that these abuses are never repeated.

In order to carry out its mandate fairly and effectively, the commission should meet the following criteria:

(1)The commission should be non-partisan.

To ensure that the commission operates fairly and impartially-and that it is not perceived as a partisan effort to punish those in the prior administration, nor stymied by partisan wrangling-its membership should be non-partisan. Commission members should be distinguished figures known for their intelligence, expertise, and achievements, rather than for their political affiliations, and they should be fully vetted for possible conflicts of interest.

(2)The commission should have subpoena power.

In order to ensure that the commission is equipped to make a full and accurate assessment of the activities and decision-making post 9/11, it will be essential that the commission be vested with subpoena power to compel the testimony of those involved. This will require legislative authorization, which President Obama should request immediately upon announcing the commission.

(3)The commission should make recommendations for prosecution should it find that current or former government officials were responsible for serious crimes. 

Some will likely push for blanket immunity from criminal prosecution for all those compelled to testify before the commission. But this would only reinforce the impunity that has allowed abuse to go unpunished and so tarnished America's reputation. While in some circumstances it may be useful for the commission to offer immunity in exchange for critical testimony, the commission should reject any call for blanket immunity and should conduct its work with the aim of making specific recommendations for prosecution.

A commission should still be created even in the event that President Bush in his last days in offices issues a blanket pardon for some or all government officials involved in counterterrorism-related crimes. A presidential pardon that blocks prosecutions should not be permitted to block an essential inquiry into the historical record.

(4)The commission should have full access to classified materials.

Commission members must have full access to classified materials related to the detention, treatment, and transfer of terrorist suspects post-9/11, as well as materials concerning interrogation techniques. Once a commission is established, the administration should dedicate resources to a rapid security clearance process for commission members, and direct all relevant government agencies to facilitate the sharing of information.