WASHINGTON (CN) – Legal experts of all stripes convened in the Capitol building last week to debate how the Obama administration should handle national security, with a focus on torture, Guantanamo and the FBI. “They can investigate you for anything” said Mike German, Policy Counsel of the American Civil Liberties Union.
Right up until its leaders left office, he said, “The Bush administration was working to remove any requirement for the FBI to begin an investigation.”
The meeting was organized by the Federalist Society and the Heritage Foundation, both considered conservative groups.
In heated debates, Kate Martin, Director of the Center for National Security Studies, criticized the national security policy of the George W. Bush administration for justifying the invasion of Iraq as a move against terrorist threats to the United States.
Over the course of the day, panel members disputed largely along party lines in discussing how the nation’s security is affected by FBI investigations, torture and the closing of the Guantanamo Bay Prison.
Nathan Sales, a former Deputy Assistant Secretary of the U.S. Department of Homeland Security, said that concerns over abuse of power are exaggerated, asserting that the that the government can only listen to a certain number of phone calls and read a limited number of emails. The government is naturally forced to focus on the most suspicious people, he argued, because, “Government has limited and scarce investigative resources.”
German with the ACLU countered that authority has indeed been misused.
When an agent requests documents for an investigation, he has to submit the request to headquarters and wait more than 200 days on average for a reply, said German.
But the agent can immediately issue a National Security Letter, a demand for records that requires no judicial oversight. “The secrecy allows the misuse of these different authorities,” German argued.
George Terwilliger III, a former Deputy U.S. Attorney General said that the collection of data “is something we have to accept.” People have to be able to search the haystack, he added, “if we want people to find the needle in the haystack.”
Most of the conference participants agreed that when it comes to investigations, national security policy would be best protected by narrowly identifying and investigating people who are of real concern.
Another group of experts hotly debated the closure of Guantanamo with little result.
David Rivkin Jr. a partner with Baker & Hostetler, worried that detainees would be allowed to roam inside the country. “Even the worst defense lawyer can get this person off,” he argued. “Not because they’re innocent, but because there is no evidence.”
But Jonathan Hafetz, representing the American Civil Liberties Union countered that “Federal judges are not in the business of releasing people who are dangerous.”
“It’s a question of what works,” said Elisa Massimino, the Executive Director of Human Rights First, a human rights organization. She maintained that the criminal justice system is tried and true, and that it can handle the detainees.
But this point brought concern to Andrew McCarthy, a Senior Fellow of the National Review Institute, a conservative think thank. In a detainee decides to be his own lawyer, he chronicled, then he would be able to demand the evidence against him and have access to all the U.S. intelligence that brought him there.
Participants debated whether Guantanamo is a recruiting tool for terrorists, but again, there was little common ground. “It’s a fact that Al Qaeda used our detention facilities and our policies of abuse to recruit,” said Massimino.
But Rivkin disagreed, claiming that it’s really the success of jihad that recruits terrorists.
A third panel seemed to have the most consensus, when it largely denounced the practice of torture on detainees as harmful to national security.
The only debate was whether the methods give reliable information. Edwin Williamson, the former legal adviser of the U.S. Department of State between 1990 and 1993 said that there should be an investigation into the matter.
Gabor Rona, the legal director of Human Rights First, said the process only gets information that the detainee thinks his interrogators want to hear and that “the United States spent years chasing false leads around the world.”
He quoted the experienced FBI interrogator Ali Soufan asserting that so-called “enhanced interrogation techniques” don’t work.
“Even if it’s possible to get information out of an individual through waterboarding, why would you even consider it,” Rona asked, when investigators can “successfully get information through tried and true techniques.”
Senior Fellow Benjamin Wittes of the Brookings Institute, a think tank, argued, “There are things we just don’t do because they’re wrong.”
While in American custody, eight detainees died from torture, said Deborah Pearlstein, a scholar at Princeton University. She gave the example of one that was suffocated when he was wrapped into a sleeping bag.
“There is no doubt that the United States has lost moral authority in using the enhanced interrogation techniques,” Rona said. “The United States has paid an unacceptably high price.”