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Armed Services Committee States Obvious: Detention Abuses Started at the Top

By Jack M. Balkin

No one who has read the pages of this blog, or, perhaps more importantly, read Jane Mayer's exhaustive account, The Dark Side, will be surprised at the report of the Senate Armed Services Committee which blamed Donald Rumsfeld and other high Administration officials for the abuses committed by American troops in detention and interrogation practices at Abu Ghraib, Guantanamo Bay, and elsewhere. Moreover, the report stated, these abuses did not keep Americans safe, as the Bush Administration claimed, but actually undermined our national security because they ?damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.?

This report is the beginning of a necessary process of bringing to light repeated abuses condoned or encouraged at the very highest levels of government. I doubt that any of the top officials who encouraged or approved these practices will ever be criminally prosecuted, in part because of the immunity granted by the infamous Military Commissions Act of 2006 and in part because the Office of Legal Counsel was repeatedly employed to justify the Administration's detention and interrogation practices in the equally infamous Torture Memos. People relying on OLC advice will likely have strong defenses under the criminal law, even though the OLC's advice giving capacities were corrupted during the Bush Administration precisely to allow the Administration to do whatever it wanted in this area.

Nevertheless, this does not mean that America doesn't need to know the truth about what happened. Quite the contrary. We need a full accounting of what top officials did to abuse their powers and bring shame on our country. It is necessary to ensure that these abuses never happen again, especially in a country that prides itself on the promotion of human rights around the world.

Full post as published by Balkinization on December 12, 2008 (boomark / email).