Susan J. Crawford was general counsel for the U.S. Army in the Reagan administration and the Pentagon inspector general under Dick Cheney in the first Bush administration. She went on to be chief judge of the United States Court of Appeals for the Armed Forces.
Crawford now has the title "convening authority of military commissions." She is the top government official charged with deciding whether to bring Guantanamo Bay prisoners to trial. She told Bob Woodward in a story published in The Washington Post this week that she will not bring charges against Mohammed al-Qahtani, a Saudi accused of planning to participate in the Sept. 11 attacks, because Qahtani was tortured at Guantanamo. "We tortured Qahtani," said Crawford. "His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution.
Qahtani was denied entry into the United States on Aug. 4, 2001, by a suspicious immigration officer. He was to be met at the Orlando airport by Sept. 11 hijacker Mohamed Atta. Later, Qahtani was captured in Afghanistan.
"There's no doubt in my mind [Qahtani] would've been on one of those planes had he gained access to the country in August 2001," Crawford told Woodward. "He's a muscle hijacker. ... He's a very dangerous man. What do you do with him now if you don't charge him and try him?"
That is a question President Obama will have to decide.
Obama will also have to decide if he is going discourage or encourage aggressive investigation into the Bush administration's policies and practices on torture, rendition and domestic surveillance. It will be a high-profile, highly symbolic and highly difficult decision to make.
Obama's ardent anti-war, anti-Bush supporters don't see it that way; nor do human rights groups and influential Democrats in Congress. To them it would be unconscionable not to investigate, not to write a factual history and, potentially, not to prosecute; and it would be unconscionable for Obama not to insist on that accountability.
The other perspective is that the very last thing a recession-addled country still facing dire security issues needs is distracting self-flagellation and theatrical tribunals. It is easy to see the civic attention span shifting from Medicaid, TARP and global warming to grilling Cheney aide David Addington and former Defense Secretary Donald Rumsfeld.
In the name of reconciliation and pragmatism, Obama this week expressed strong reluctance to push for an investigation. "My instinct is for us to focus on how do we make sure that moving forward we are doing the right thing," he said.
That is my instinct as well, but not my analysis. The conundrum Obama faces ought to be understood from several perspectives.
Political. The question here is whether investigations of the Bush regime would make it more difficult for the new administration to pursue and achieve its policy goals by adding to partisanship and diverting bandwidth, resources and goodwill. Regardless of whether the central investigating body is an independent panel, congressional or in the Justice Department, at some point it would be likely to take center political stage. It will not help to create jobs, cut deficits or insure children.
Advocates of investigating say they aren't interested in witch hunts and floggings. For some that is disingenuous; regardless, modern investigations take on a life of their own as they gain notoriety, momentum and passion.
Politically, Obama's instinct is smart — no surprise.
Moral. The moral issues related to torture are not a slam-dunk. Ponder the familiar hypothetical case: One individual has knowledge of an imminent event that will kill many. And the event could be prevented if the individual talked. Would torturing one to save many be moral or immoral? Is torture never justified?
However, I cannot think of any conceivable moral justification for a constitutional government to deliberately avoid discovering and accounting for its actions on issues of such fundamental human rights. Obama has said clearly that if there is credible, specific information of criminal or illegal activity related to torture or domestic surveillance, his Justice Department will investigate and prosecute.
That seems an inadequate response to a situation where a systematic, sustained bureaucratic and legal process sanctioned torture and rendition, some of which we know about, some of which we surely don't. The government cannot selectively apply the rule of law: It cannot exempt powerful people or people who are under duress in the pursuit of important and admirable goals such as national security. The country can certainly not use moral rhetoric against other countries on human rights issues if it is unwilling to shine light on itself on this incredibly high-profile case.
Circumstances will constantly arise where it may appear the expedient way to prevent crime or terrorism is to ignore laws and treaties. Thwarting full investigation of the past is a certain way to set the wrong precedent for the future, no matter how often the new president says we won't do bad things again.
Legal. Again, I know of no legal reason why the Obama administration should not let investigations proceed, though I see no clear obligation for the president to appoint a commission. But if congressional committees choose to probe, the new administration should comply and cooperate; if Congress votes to appoint an independent commission, the administration should go along with it.
National Security. This is a difficult area to assess. Clearly, many soldiers in the so-called war on terror in the military and in the intelligence world would find investigations demoralizing and threatening. I doubt this is universal. Some, like John McCain, argue that clear renunciation of torture makes the country more secure and more respected — and investigations would be a form of renunciation with teeth, backed by action and not just words.
In the end, I am not convinced it is the president's place to be "the decider" on this one.
I do think it would be unproductive for the new president to take point in the post-mortem process aggressively and use political capital on it. But I also think it is proper for Congress to exert its will and for the president to cooperate fully with whatever comes of that. There is a difference between reconciliation and avoidance.