Redoing the Human Rights First Report Card I
So here are the first two elements of the Human Rights First report card, how I would recast them, and the grades I would assign. HRF's initial element reads:
Grade: A-Standing Firm Against Use of Torture and Detainee Abuse. The Obama Administration clearly denounced policies of torture and detainee abuse and reinforced the primacy of the Geneva Conventions in the treatment of prisoners.
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So here are the first two elements of the Human Rights First report card, how I would recast them, and the grades I would assign. HRF's initial element reads:
Grade: A-Standing Firm Against Use of Torture and Detainee Abuse. The Obama Administration clearly denounced policies of torture and detainee abuse and reinforced the primacy of the Geneva Conventions in the treatment of prisoners. The administration established a High Value Interrogation Group to ensure effective interrogation of detainees using lawful interrogation methods. Thereremain legitimate concerns about various interrogation techniques that are permitted by Appendix M of the Army Field Manual that are inconsistent with the Geneva Conventions requirement of humane treatment.
I understand why HRF puts a primacy on standing firm against coercive interrogation, but the category seems too simple to me. For one thing, I'm not a foe of all coercive interrogation so grading people on how scrupulously they avoid something I think should be almost--but not entirely--eschewed would be hypocritical. I would describe this category as something more like "optimizing U.S. interrogation policy"--and I would not give the administration especially high marks on it. The administration, to be sure, ended the CIA's interrogation program, but it's not at all clear how the High Value Interrogation Group it set up to replace it will function in practice, and the administration is skirting some pretty fundamental--if highly uncomfortable--questions, at least in public. For example, is our highly restrictive interrogation environment contributing now to an environment in which U.S. forces have less incentive to take risks to capture high-value targets and more incentive to incinerate them with drones? And how often are we leaving detainees of the sort over whom we used to assume custody safely in the hands of foreign proxy intelligence services which are not limited by the Army Field Manual?
Most fundamentally, the capture of high-value targets is simply not among the Obama administration's many counter-terrorism successes (and there have been many successes), so its interrogation policies are almost entirely untested in high-stakes cases. What would be the net intelligence loss or gain of these policies if confronted by the need to deal with a major Al Qaeda leader with actionable intelligence and very limited time--and how would the administration respond if the net were a big loss? Until we see the answer to this question, no more than the most tentative grade is possible. As for that tentative grade, I would give the administration no higher than a B-.
On HRF's second point, I am more sympathetic. It reads,
Grade: A-Standing Firm Against Secret Detention Sites. President Obama banned CIA secret detention by executive order his second day in office. We are aware of no allegations that the U.S. government holds any detainees in secret. Concern has been raised that the Joint Special Operations Command detention facility in Parwan, Afghanistan operates outside the authority of the Joint Task Force established to oversee detention, but further investigation is necessary to determine whether this is cause for concern about the treatment of detainees there.
I have no basic argument with this category or grade. Holding detainees in secret for any length of time was a huge mistake of the last administration. Detention is not shameful, and the U.S. should conduct whatever detention operations it needs to conduct in the open and without hiding them and needing to make detainees disappear. I could quibble over details, but I basically agree with this assessment.
More to come.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
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