Obama’s Torture Dilemma

Anthony Romero, executive director of the American Civil Liberties Union, said that Crawford's statements appeared to have elements of "CYA [cover you're ass]." Even so, Romero believes that Obama cannot simply look past her assessment. "When you have an admission of violation of law, you have to look backward. You're going to have to appoint a prosecutor. You can't just say that was then, this is now."

In her Post interview, Crawford said that her finding that Qahtani was tortured prompted her to block a request by Pentagon prosecutors to bring charges against him for being part of the 9/11 plot. (Qahtani had unsuccessfully tried to enter the country at the Orlando airport in August 2001; the 9/11 commission—and other investigators—later concluded that he was seeking to become the 20th hijacker.) Her statements to Woodward about how the treatment of Qahtani in 2002 had forced him to be hospitalized with bradycardia, a heart condition that is potentially fatal, also seems to raise questions about the accuracy of the earlier Pentagon report on the detainee. That report had stated that a January 2003 medical examination of the detainee (who was not publicly named at the time, but has since been acknowledged to be Qahtani) "found no medical conditions of note."

In a statement, Pentagon press secretary Geoff Morrell continued to maintain that Qahtani's treatment was legal and repeated the Obama team's mantra that the new administration—which will retain Bush's current Defense Secretary, Robert Gates—intends to look forward, not backward. "We have conducted more than a dozen investigations and reviews of our detention operations, including specifically the interrogation of Mohammed al-Qahtani, the alleged 20th hijacker. They concluded the interrogation methods used at GTMO [Guantánamo], including the special techniques used on Qahtani in 2002, were lawful. However, subsequent to those reviews, the Department adopted new and more restrictive policies and procedures for interrogation and detention operations." But, Morrell added: "Some of the aggressive questioning techniques used on al-Qahtani, although permissible at the time, are no longer allowed in the updated Army field manual."

Qahtani was never subjected to waterboarding, the most extreme of U.S. government interrogation methods that involves pouring water into the nose and mouth of a subject until the he gasps for air, forcing water into his lungs. That technique was used against three other high-value detainees who were in CIA custody—Abu Zubaydah, Khalid Sheikh Mohammed and Abd al-Rahm al-Nashiri. Crawford said in her interview that "I assume torture" took place in the interrogations of Khalid Sheikh Mohammed—a comment that defense lawyers took to mean that she was never actually provided access to the files on him and the other detainees in CIA custody. In approving charges against some of them (Abu Zubaydah has never been charged), she apparently relied on FBI reports on interviews with detainees that took place after they were transferred from CIA "black" prisons overseas to Guantánamo in September 2006. In those cases, Crawford indicated that there was evidence in statements gleaned from the noncoercive FBI interviews that supported the charges while Qahtani had recanted the statements he made to his interrogators. Still, on Wednesday a military lawyer for Nashiri formally filed a request that she withdraw the charges against their client as well on the grounds that he too was tortured. "By itself, waterboarding amounts to torture," Lt. Cmdr. Stephen Reyes wrote in a memo to Crawford. He added that defense lawyers believed that information about Nashiri's treatment, including his waterboarding, was not made available to Crawford before she recently referred capital charges against him to a military commission for a trial accusing him of responsibility for the bombing of the USS Cole in October 2000. "In light of your recent comments [to The Washington Post,] it seems that such evidence would have been crucial to your referral decision."

In Congress, the House Judiciary Committee, led by Michigan Rep John Conyers, earlier this week issued a lengthy report cataloging alleged abuses by what he termed Bush's "imperial presidency," including alleged detainee detention and interrogation abuses and warrantless wiretapping of U.S. citizens. Conyers and a handful of other House Democrats have introduced legislation to set up a tribunal, modeled after the 9/11 Commission, to investigate alleged Bush administration abuses of power.

However, neither Obama nor Democratic congressional leaders have so far indicated any enthusiasm for creating such a tribunal. Two sources familiar with the incoming administration's views indicated that, until now, Obama's team has been reluctant to launch broad investigations of the intelligence agencies that could damage morale and slow down intelligence gathering. But one of the sources, who spoke on condition of anonymity about sensitive matters, said that the incoming administration certainly would not turn away from examining any evidence of wrongdoing that it might run across.

Crawford's new public statements would certainly seem to meet that standard.

© 2009