How should terrorists and suspected terrorists be treated once they fall into our hands?

Should Congress have oversight over top secret CIA detention practices?

For those of us on the right who strongly support President Bush and the War on Terror, it has become too easy to dismiss such questions or worse, shove them to the back of our minds and try not to think about the psychic consequences of Americans mistreating, torturing, and even murdering prisoners. In fact, it seems to get easier to ignore the problem the more that September 11, 2001 fades into memory.

And that is what worries me.

The number of prisoners killed while in US custody can only be guessed at. Using data gleaned from a Freedom of Information Act request, the ACLU has released a report that shows that the deaths of 21 inmates held by the US military since the start of the War on Terror could be classified as “homicides” with at least 8 of those deaths attributed directly to violence done to prisoners during or after interrogations:

At least 21 detainees who died while being held in U.S. custody in Iraq and Afghanistan were killed, many during or after interrogations, according to an analysis of Defense Department data by the American Civil Liberties Union (search).

The analysis, released Monday, looked at 44 deaths described in records obtained by the ACLU. Of those, the group characterized 21 as homicides, and said at least eight resulted from abusive techniques by military or intelligence officers, such as strangulation or “blunt force injuries,” as noted in the autopsy reports.

The 44 deaths represent a partial group of the total number of prisoners who have died in U.S. custody overseas; more than 100 have died of natural and violent causes.

The good news is that the military itself is investigating and uncovering these abuses. To date, they have investigated more than 400 cases of abuse resulting in punishment ranging from reprimands to court martials for 230 military personnel.

The bad news is that not all of those responsible are being punished and worse, there has been little done to address the command problems that resulted in lax discipline which led to the abuses in the first place.

In fact, the ACLU points a finger at the system itself as a primary reason for the torture:

“There is no question that U.S. interrogations have resulted in deaths,” said Anthony D. Romero, ACLU’s executive director. “High-ranking officials who knew about the torture and sat on their hands and those who created and endorsed these policies must be held accountable.”

Romero is referring to the ongoing debate in the executive branch over both the status and the treatment of detainees. It is an argument that started literally hours after the attacks on 9/11 and continues to this day. It has involved the best legal minds in the Pentagon, the Department of Justice, the CIA, and the White House. And the parameters of the debate go to the very heart of what kind of country the United States is and how we see ourselves.

At the start of the War on Terror, the White House was at a loss as to how to treat detainees in the Afghan War and other terrorists who were connected to the 9/11 plot who were picked up in other countries like Pakistan. A series of memos since leaked to the press showed the White House groping for a policy that was both humane and legal under international law while at the same time not tying the hands of interrogators whose jobs were to head off what was believed at the time was another, imminent attack on the United States.

The White House eventually decided that the prisoners were not eligible for protection under the Geneva Convention since they were stateless terrorists but at the same time finding that they could be designated “enemy combatants” and subject to indefinite detention as well as certain “enhanced” interrogation techniques. Also, since this was a war without precedent, the President alone should determine what rights these enemy combatants were entitled to.

When you think about it a little, you can see the enormous power we have ceded to the executive branch in this matter. The Supreme Court agreed with many of the Administration’s claims last July although they also ruled that detainees had a right to have their case heard in US courts.

And now, the Administration is seeking to redefine its detention policies:

The Bush administration is embroiled in a sharp internal debate over whether a new set of Defense Department standards for handling terror suspects should adopt language from the Geneva Conventions prohibiting “cruel,” “humiliating” and “degrading” treatment, administration officials say.

Advocates of that approach, who include some Defense and State Department officials and senior military lawyers, contend that moving the military’s detention policies closer to international law would prevent further abuses and build support overseas for the fight against Islamic extremists, officials said.

Their opponents, who include aides to Vice President Dick Cheney and some senior Pentagon officials, have argued strongly that the proposed language is vague, would tie the government’s hands in combating terrorists and still would not satisfy America’s critics, officials said.

Part of the impetus for this change has come about as a result of pressure from Congress to clearly define the legal status of prisoners in US custody. The legal limbo of detainees has been cited as part of the problem with prisoner abuse as well as undisciplined and inexperienced interrogators going beyond the guidelines for questioning prisoners:

Mr. Whitman confirmed that the Pentagon officials were revising four major documents – including the two high-level directives on detention operations and interrogations and the Army interrogations manual – as part of its response to the 12 major investigations and policy reviews that followed the Abu Ghraib abuse scandal.

The four documents “are nearing completion or are either undergoing final editing or are in some stage of final coordination,” Mr. Whitman said. But he would not comment on their contents or on the internal discussions, beyond saying it was important “to allow and encourage a wide variety of views to come to the surface.”

The administration’s policies for the detention, interrogation and prosecution of terrorism suspects have long been a source of friction within the government.

The fact that these issues have not been resolved is, I believe, a national disgrace. I don’t care if the person being interrogated is murdering terrorist, there are just some things that define America and make us different than other countries. And one of those things is a reverence for and an adherence to the rule of law. By not giving these detainees a clearly defined, internationally recognized legal status, we are doing enormous harm to the war effort as well as betraying some of the most fundamental principals that Americans have cherished since our founding.

It is not a question of “rights” for terrorists. It is a question of simple, human decency. And this related story in the Washington Post brings to the fore the most troubling and, to my mind, the most dangerous of all our detention policies; giving the CIA carte blanche to hold, move, and question detainees with absolutely no oversight by Congress and very little direction even from the Administration:

The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement.

The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantanamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents.

The hidden global internment network is a central element in the CIA’s unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA’s covert actions.

The existence and locations of the facilities—referred to as “black sites” in classified White House, CIA, Justice Department and congressional documents—are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country.

I will be the first to grant the CIA some latitude in their clandestine efforts to protect this country from another terrorist attack. But this kind of activity would seem to demand oversight by at least the full Intelligence Committees in Congress. The Administration has decided otherwise:

The CIA and the White House, citing national security concerns and the value of the program, have dissuaded Congress from demanding that the agency answer questions in open testimony about the conditions under which captives are held. Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long.

While the Defense Department has produced volumes of public reports and testimony about its detention practices and rules after the abuse scandals at Iraq’s Abu Ghraib prison and at Guantanamo Bay, the CIA has not even acknowledged the existence of its black sites. To do so, say officials familiar with the program, could open the U.S. government to legal challenges, particularly in foreign courts, and increase the risk of political condemnation at home and abroad.

But the revelations of widespread prisoner abuse in Afghanistan and Iraq by the U.S. military—which operates under published rules and transparent oversight of Congress—have increased concern among lawmakers, foreign governments and human rights groups about the opaque CIA system. Those concerns escalated last month, when Vice President Cheney and CIA Director Porter J. Goss asked Congress to exempt CIA employees from legislation already endorsed by 90 senators that would bar cruel and degrading treatment of any prisoner in U.S. custody.

I have no doubt that what goes on at those “black sites” would not stand up well under the light of Congressional oversight. Do you think that torture goes on at those sites? I would say that would be a very good guess considering that both the Vice President and the DCIA have asked that CIA employees be exempt from the law barring the practice.

What is going on here? Since when should a law that bars the deliberate infliction of pain on another human being – again, I don’t care if he is a murdering terrorist – exempt people who are beyond the oversight of Congress in the first place? By adhering to policies like this, aren’t we in danger of becoming the very thing we are fighting against? At what cost to our souls are we trying to save our lives? Does it matter? Does anyone care?

The simple pap and bromides being tossed about by many of my friends on the right regarding the detention policies and torture of prisoners just isn’t cutting it. You can no longer simply say that the thugs deserve whatever they get, or the abuse and torture is isolated and not policy driven, or even blame the press for reporting the incidents in the first place. We simply must face up to what our policies have wrought and try our best to immediately correct them. This does not mean opening the doors and Guantanamo and letting the terrorists run wild. Nor should we simply send them back to their home countries where all too often it has been shown that they receive a slap on the wrist and cut loose, freeing them to plan and execute more terrorist attacks.

But it may involve a more permanent solution that would bring the US courts and the justice system into play. This does not mean they should be granted the constitutional rights of American citizens. But something must be done to legitimize their detention in the eyes of the rest of the world as well as in the minds of those of us who are enormously troubled by the legal limbo we have created for these prisoners. “Let them rot” is not a policy – it is an invitation to disaster both for the soul of America and our efforts in the War on Terror.

UPDATE

John Cole weighs in on the CIA “black sites:”

The only reasons for these facilities are to subvert domestic and foreign law. And no one gives a sh*t.

And it does not makes us safer to have a clandestine service indiscriminately detaining, abusing, and torturing people around the world in secret prisons.

Um…what he said. And if you don’t think this kind of thing threatens civil liberties at home please remember that there is no stricture against the CIA taking someone from the US and “disappearing” them into one of these hell holes.