Rule of Law: Taking the least bad option

Former US House Intelligence Committee member Jane Harman supports the High Court on balancing priorities when it comes to administrative detention and enhanced interrogation in ticking-bomb cases.

The exterior of Camp Delta is seen at the U.S. Naval Base at Guantanamo Bay, March 6, 2013. The facility is operated by the Joint Task Force Guantanamo and holds prisoners who have been captured in the war in Afghanistan and elsewhere since the September 11, 2001 attacks.  (photo credit: REUTERS)
The exterior of Camp Delta is seen at the U.S. Naval Base at Guantanamo Bay, March 6, 2013. The facility is operated by the Joint Task Force Guantanamo and holds prisoners who have been captured in the war in Afghanistan and elsewhere since the September 11, 2001 attacks.
(photo credit: REUTERS)
It may be under attack domestically, but the High Court of Justice has had a good couple of months, with top foreign officials showing respect for its decisions, even where it jumps into controversial waters.
On December 10, former International Criminal Court prosecutor Luis Moreno-Ocampo told The Jerusalem Post that the High Court’s decisions on settlements’ legality needed to be taken seriously.
In an interview with the Post on Tuesday on the sidelines of this week’s INSS Conference at the Eretz Israel Museum in Tel Aviv, former US congresswoman and leading House Intelligence Committee member Jane Harman said she supports the High Court even on hard issues like administrative detention and using enhanced interrogation in ticking-bomb cases.
At the same time, Harman was very careful to avoid formally criticizing or endorsing Israeli government policy on administrative detention or enhanced interrogation.
The issues were raised in the context of Harman’s views on, and unique exposure to, the US introduction of administrative detention in Guantanamo Bay and use of torture in interrogations in 2002, when these were closely held secrets.
Harman was part of a “gang of four” key members of Congress on intelligence who were given limited oversight of the two controversial programs in real-time – though she was careful to stress that she was not consulted before the programs were initiated.
Though she moved from Congress to head the Woodrow Wilson International Center for Scholars in Washington, DC, she is still one of the most prominent Democrats in the US to have recently endorsed permanent administrative detention of the 60 most dangerous Guantanamo detainees, even if only as a “least bad option.”
There are currently 93 detainees out of an original total of over 700, but around 30 are approved for release, once third countries can be found in which to resettle them. The Obama administration considers the other 60 too dangerous to release.
Crediting US President Barack Obama with releasing many detainees, including 10 to Oman last week, she explained to the Post that for some of the rest, “you can’t try them, so reduce their numbers to the smallest number possible, close Guantanamo and move them into the US, where their cases would get a yearly review.
“This is the best idea people could come up with to remove what I have said for years and years was a black eye for the US and a recruiting tool for the bad guys,” she said.
Harman described having “been to Gitmo three to four times, also at the start when there were prisoners in wired cages.”
Slamming the Bush administration for creating Guantanamo the way it did, she said its actions allowed “the prisoner culture to develop into what it has become, hunger strikes; other problems are a product of the hasty, ill-considered way in which these people were placed there.”
Harman recounted an early visit to Guantanamo when she asked the military official debriefing her group why Guantanamo had been selected as the site for holding the detainees. “He responded, ‘Because it’s beyond the reach of US law.’ I still kick myself for not pushing back then on what has been a very ill-conceived and unconstitutional idea,” she said.
Explaining her own dilemma at the time, she said, “I didn’t push back because it was soon after 9/11 and the mind-set I had and so many others had was that we would be attacked again, so it seemed justifiable at the time. Looking back, we got some things rights, some things wrong; this was one thing we got wrong.”
Next, she elaborated on why she supports permanent administrative detention of some of the detainees, despite her feeling that establishing Guantanamo was unconstitutional.
“The application of law is always right. But thinking ahead, if for some detainees there is no evidence admissible in court; if a trial is impossible – can we release this hard-core group? It’s politically impossible and it’s wrong – we don’t let those who perpetrated 9/11 go free,” noted Harman, returning to her moniker that this was the “least bad idea.”
US government lawyers have concluded that some detainees cannot be tried, as their confessions were obtained through illegal torture, on the battlefield under duress, or through intelligence resources that must remain classified.
Asked if ratifying the permanent administrative detention of dozens of Guantanamo detainees could create a danger that administrative detention as a practice will spread in the US, she rejected the notion.
She said that if Congress had been fully consulted before the decision to set up Guantanamo, it all could have turned out differently, and that the Obama administration has avoided making the same mistake.
“Now the people like this who we capture, they are putting them on ships; their interrogations have elaborate procedures to ensure the evidence will pass muster,” Harman added.
Moving from her views on US administrative detention to Israel’s balance of national security versus civil liberties, including administrative detention, she said, “I give Israel credit for being innovative and following the unpopular decisions of its own impressive High Court. Israel, like the US, is a democracy which follows the rule of law; it’s a hugely central part, a central value of how we both function. We make mistakes, but we make course corrections.”
Pressed more specifically about Israeli administrative detention policy, she clarified, “I do not speak for Israel and I am not a fan of administrative detention, but I do get the security issues here, that it is far more vulnerable than the US, being such a tiny place.”
Regarding criticism of Israel’s administrative detention, she stated, “I am not commenting on criticism of Israel. It has its own existential imperative and a very vigorous court system. What Israel does is what Israel does.”
Giving a key example of where she thought the High Court had taken a courageous stand for the rule of law despite harsh criticism and the interplay of national security, Harman credited the court with ordering the IDF to change the route of the security barrier to accommodate Palestinian humanitarian needs in many instances.
Harman was less familiar with the High Court’s disagreement with the International Court of Justice, which declared the entire security barrier illegal in 2004, while Israel has said its route must be judged on a case by case basis, but she also seemed ready to continue to support Israel’s High Court.
Moving on to her views of the US’s torture practices shortly after 9/11 – Harman was among the first to learn of them – she cited a classified letter she wrote early on to the CIA general counsel “questioning what was the policy guidance” for the new interrogation tactics. “I never got a substantive response,” she notes.
Since then, Harman has taken public positions against the Bush-era interrogation tactics. “I spoke out and have commended John McCain for opposing waterboarding as torture. I voted for the congressional law to codify the Army Field Manual” as a clear line against using torture tactics.
Regarding US Sen. Diane Feinstein’s major 2014 report which slammed the Bush-era interrogation tactics as illegal torture which was also ineffective, she said “there is some dispute about that, but I supported the right to release the report, and I generally supported the conclusions.”
Criticizing “enhanced interrogation” tactics, she said “building trust works far better. As McCain has said, prisoners will say anything if there is enough duress, but it is not reliable,” while acknowledging that the “ticking-bomb case is the hardest, but if most experts think it [enhanced interrogation] doesn’t work, then it does not work even in ticking-bomb cases.”
A famous tactic that the US has occasionally used for building trust has been bringing in foreign family members.
The 2009 “underwear bomber,” Umar Farouk Abdulmutallab, after halting cooperation with US investigators, ultimately fully cooperated with them when the US brought his family from Nigeria to convince him to cooperate.
While both the US and Israel currently ban torture in interrogations, the Israeli High Court essentially permits “moderate physical pressure” in ticking-bomb cases.
Pressed that Israel can rarely use the tactic that was used with Abdulmutallab, since most terrorists against Israel are Palestinian, often members of Hamas, and most of their family members either actively or passively support their actions, Harman asked, “Even if their house would be destroyed?” With the Post clarifying that Israel’s house demolition policy is used only for deterrence, after terrorists have perpetrated their attack, and not for interrogation pressure, Harman reverted to her support for the High Court.
“Whatever the rules are, are the rules; if a court here has validated them, they are the rules. What I’m not for is freelancing.
“The Shin Bet is an impressive agency, impressive; they are following the law, they protect this country.
I am not second-guessing what they are doing if they are following the law,” Harman concluded.