 I want to welcome you to CSIS this evening. My name's Sarah Mendelssohn, and I direct the Human Rights and Security Initiative here at CSIS. Most of you I know, and I think a lot of you know one another. As part of our work at CSIS, we have a large project in my program that's looking at how various countries reconcile with periods of abuse in their past. This has quite a large geographic range. Countries and societies have numerous ways in which they do this, sometimes through commissions, sometimes through trials, sometimes through illustration, tourism, movies, books. What works best to learn lessons, and what leads to these efforts, and some of this work we're also looking at, what leads to tipping points? How is it that in some cases now there's shy people sitting around the table? No, no, no, we urge you to come to around the table so that you can, when you speak, because we know you will speak, that you use the microphones. And we'll call you by name at some point. Now there is a general tendency to want to ignore and not want to look back at various episodes. And it does seem that in many policy centers around the world, that policy makers in particular are very uncomfortable looking back. Policy makers like to deal with what's right now, and they have a very short shadow of the future. And yet what has happened in the past shapes and effects contemporary political development in so many places. So part of what we want to do is also explore why it is that it seems policy unfriendly and how to make it more policy friendly given the fact that the past does have such an enormous impact. When we engage in this work in other contexts looking at lessons, for example, from Northern Ireland, from the Southern Cone, Argentina, and Chile, we thought it would also be interesting to open up a conversation about what's going on in the United States here at CSIS about the pros and the cons of looking back at the recent set of policies on counter-terrorism post 9-11. And we're doing this in two ways. We want to see how this conversation goes tonight, and if it goes well, we'll explore having a few others. And we're going to do a piece of research where I'm going to be doing some interviews with policy makers, eminent Americans, about their views on this. I want to understand why the idea of commissions or just looking back in general is in some ways threatening to people who care so much about how the United States conducts itself in the world. What does accountability mean to them? In Washington, this is a really sensitive issue. For some, it's actually very toxic. Others view it as essential. So we want to, at CSIS, begin what is, we hope, a very thoughtful conversation. So before I introduce our speakers, I want to lay out a few rules of engagement. This is an emotional issue for some people. And we ask that comments and interventions be crisp, but also respectful. I don't think we have anybody who's going to stand up and launch into speeches. You'd be surprised. I'm at a lot of meetings where that does happen. And there are no really right or wrong answers. I think that we need to keep, in the spirit of a think tank, we need to be free to explore a variety of opinions. And if you want to be recognized, use one finger. Suzanne is going to moderate. If you have something that's absolutely time urgent, please use a two finger intervention. We will stop at seven o'clock, if not before. We're going to begin with some brief comments from Ambassador Tom Pickering and then Admiral Lee Gunn, who both testified in March of this year before the Senate judiciary on the issue of convening a commission to assess the role of detention among other issues. I've asked Suzanne to moderate for a number of reasons, including her vast experience on the Hill, as well as a lot of experience with commissions. But also because she bridges several different communities, the legal and human rights community as well as national security. So our speakers are, in addition to Suzanne's vast experience specifically, she served as the Minority Staff Director for the US House of Representatives. Permanent Select Committee on Intelligence, as well as General Counsel for the Senate Select Committee on Intelligence, and a Legislative Director and Senior Counsel for Senator Specter. And she also worked with Representative Jane Harmon. There can be various elements that I've pulled out of her bio that she may want to stress when she speaks. Ambassador Tom Pickering, for those of us who are Russia specialists, know him as the Ambassador from Moscow. But he's served in numerous embassies as ambassador, including India, Israel, El Salvador, and Nigeria. The Hashmite Kingdom of Jordan, he has been since December 2006, Vice Chairman of Hills & Company, international consultants. Previous to that, he was at the Boeing Company. We also, of course, know him as the US Under Secretary of State for Political Affairs in the Clinton administration. And then to my far left is Admiral Lee Gunn, who is President of the American Security Project, a national security think tank. So we welcome a fellow think tanker. But he also was the Inspector General of the Department of the Navy. Immediately after concluding his active duty career, he was asked by, this is what I think is particularly relevant, but perhaps you can also pull out other aspects. He was asked by the Chief of Naval Operations to lead the executive review of Navy training. I've asked Admiral Gunn particularly to focus on the kind of after-action reports and the way in which the military thinks about what's happened in the past. Because I think for a lot of us, certainly in the civilian world, we don't know enough about how the military looks back. And there's a particular way in which they seem to do this that might be very useful and helpful for the civilian policy makers in thinking about lessons learned. So with that further ado, why don't we start with you, Ambassador Pickering, and then we'll move to Admiral Gunn, and then we'll open it up for Q&A. Thank you, Sarah, very much. And it's a pleasure to join the panel with the other distinguished panelists. I want to talk a little bit about the commission idea, and I'll be very, very close to testimony I gave now, seems not too long ago, but back in the early part of the year. I think that it's important that we as Americans should come to grips with the question of our handling detainees. And that what happened over recent years isn't critically important to look back at for our country. I think it's essential to have a full understanding of what happened and why, and the consequences of those actions, particularly to chart the course for the future. This idea obviously gets confused with a lot of other aspects of the question. And I'll try in my discussion with you tonight to distinguish. President Obama said in early March to the Congress with regard to a different question, the economic situation that we have to assess the policies that led us to our current place in order to learn how to move forward. That, of course, is important in this issue as well. And quoting him directly, he said, I say this not to lay blame or look backwards, but because it is only by understanding how we arrived at this moment that we'll be able to lift ourselves out of this predicament. Words that are apt in this context as much as they are in the question of our economic crisis. I wanted to obviously support the establishment of a commission with you tonight to examine the detention treatment and transfer of post-911 detainees. In the call that I joined with others on the President to create the commission, a number of people joined me, including Admiral Gunn and others. A former FBI director, a church president in this country, and a former general in the U.S. Army as well. I'm pleased that many organizations, which have been very much committed to human rights in this country and the rule of law, have also endorsed this concept. And my support of the commission stems from over 45-year service in the military and in diplomacy overseas and as a senior official of the State Department. As someone who believes in this commission, I believe that it is vital to our country's future, to its security, to its standing in the world, and to our collective commitment as a people to honor, respect, and remain committed to the ideals in which the country was founded. I wanted to be clear that, first of all, I'm not a lawyer. And as a result, totally unqualified to address technical legal questions involving the advice of trained counsel, but hopefully we will find much of that here. First, the purposes of the commission and what it would serve, and then some of its principal features. A commission of the kind that has come out of the group that I worked with is needed, in our view, in order to arrive at an in-depth, unbiased and impartial understanding of what happened, how it happened, and the consequences of the action. The focus would be carefully gathering all of the facts. A commission can tell the whole story, not just of each individual agency that studied in isolation, but of how all the parts of the U.S. government interacted in the question of handling detainees, or perhaps even more significantly, how they didn't but should have interacted in the question. Indeed, the interagency aspect is critical, as is how the various agencies related to senior officials in the government. On the basis of such a full and comprehensive review, the commission could then make recommendations that would help guide us for the future, which is where the President's focus has rested on this particular question. This process is fundamentally about understanding where we have been in order to determine the best way forward. Some will argue that such commission is not needed, and indeed they have. After all, President Obama has, of course, signed executive orders that chart a new course on detention and interrogation policy, and indeed raised some other questions that now are, from our perspective, as troubling perhaps as things that he hasn't done. As important as those orders and other practices and ideas are, I think something more is needed. It's not enough to say that America is discontinuing the policies and practices of the recent past. We as a country have to take stock of where we've been and determine what was acceptable and what was not acceptable, what should not have been done and what we will never do again. And it's my sincere hope that the commission will confront and reject the notion, still very powerful in our midst, that these policies were a proper choice and that they could be implemented again in the future in dealing with this problem. The commission, I think, will strengthen our credibility in promoting and defending our values and advancing a better and safer world. As the record of the 9-11 Commission found, the United States has to engage in a struggle of ideas around the world in order to combat extremism and ultimately to prevail against those who would attack us. To do that effectively, the commission found in the case of 9-11 that the United States government should offer an example of moral leadership in the world committed to treat people humanely, abide by the rule of law, and be generous in caring to our neighbors. It's far better for American foreign policy if we acknowledge willingly what went right and what went wrong than to address bits and pieces of the story as they kind of emerge from the boiling cauldron from time to time. It's also, I think, far better for our country and our standing in the world if we examine critically our own record and take into account what happened. To the extent that Juan Tanamo detention camp and Abu Ghraib secret detention sites and torture and abuse enhanced the efforts of our adversaries to recruit others to join their ranks and to make the case against us, we simply can't ignore that, turn our back on it, or try to turn the page on to something new without a Dressel. We have to engage in a general effort to take stock of these policies and actions, and we have to acknowledge mistakes that were made and commit not to repeat them. It's a critical step in neutralizing our adversaries' narrative about the U.S. abuse of detainees. Only in doing so can we say to ourselves in the world that we've not just turned the page on the past, but we have confronted it, learned from it, and strengthened our resolve to continue to be true to the principles of the country in the future. Only great countries confident in themselves are prepared to look at the most serious mistakes, learn from them, and lead on forward. The United States has been and I think is still today that kind of a country. We should also be concerned too that the standards we have set or the standards we have appeared to set will in many ways be taken by others as an international criteria for their actions in the future and perhaps even more importantly because we are all concerned about this as standards for treating Americans within their control or jurisdiction in the future and we want to be very careful about that. As someone who's spent a large part of his life overseas, this is something that I'm acutely conscious of and I had many friends and colleagues who spent 444 days as guests of the molest under difficult conditions and clearly had we set these kinds of standards the conditions might well have been worse for them. Now what would a commission look like and how could it be put together and how could it stand above politics? We believe it should report an answer to the American people that to achieve its vital purpose it has to be comprised of people whose duty is to the truth and to our nation's founding principles. We have asked the president in our request for the commission to appoint people of irreproachable integrity, credibility, and independence to serve on the commission. Commission members might well include leading academics, retired judges, military officers, intelligence and government officials, human rights experts, and people from both the executive and the congress. While the president should welcome the input from the congress regarding potential appointees, we think that he should be guided by the need to ensure that the commission will stand above partisan politics not in fact be created as a creature of partisan politics and unfortunately our friends from the congress are perhaps irrevocably inclined in that direction as they put commissions together. Second, the commission should operate in public to the maximum extent possible. Public proceedings and reports should be the norm. Close sessions, redactions, and classified annexes should be used only when absolutely necessary and should be a rare exception and not the general rule. It's necessary for the commission to do its work openly and transparently because the people of the United States must be allowed to see the facts and understand what happened. While this process may well complement other examinations of these events that may occur within the government and in secret sessions or classified reports, the public accounting aspect is essential both for the American people first and foremost and also for people around the world who consistently and regularly look at the United States both as a leader and as a potential and indeed in some cases serious opponent. We must make our commitment not just as a government but as a people to upholding the values as we advance our security. Third, the commission should be a separate and distinct process from any investigation or prosecution of unlawful conduct. This is of course the biggest bugbear and the most challenging question that we face in recommending a commission. The establishment of a commission would not in our view in any way preclude the possibility of criminal investigation or prosecution but the purpose of the commission cannot and should not be prosecution. That's the job of the criminal justice system where it rightly belongs. The commission should operate fully separate from the criminal justice system and outside of it or beyond it. It is for prosecutors operating independently to determine whether criminal enforcement is warranted against particular individuals based on the facts and the law. The commission would play an entirely different role and serve a different purpose that I've described other than criminal prosecution. The purpose of assuring that U.S. policy and home and abroad in this critical area remains in full compatibility with our principles and values and with our history. Fourth, the commission should have a subpoena power in order to gather and tell the full story of what transpired. I would hope that the president would ensure that all government documents are made readily available to such a commission. Still, subpoena power is important in maximizing the value of the testimony and information as it's received and reviewed by the commission. This feature will help to ensure that the commission achieves its objective of a comprehensive examination of the handling of detainees. Fifth, the issue of whether the commission should have the power to grant immunity has also led to a great deal of discussion and debate around this town. Again, I'm not an expert on this technical legal issue, but I would hope that policymakers would consider it very carefully if they are prepared, as I hope they are, to consider a commission. Persons who are called upon to testify certainly can invoke their Fifth Amendment rights against self-incrimination. In my view, the commission should not have the power to grant blanket immunity, meaning immunity to all who testify or full immunity, in effect immunity for what may have been done rather than for just what is being said in the testimony as it is being given. Rather, the commission should grant immunity to witnesses only in very limited circumstances, and I hope that the question of immunity will also be given very careful consideration as we recognize that there are many ways that the commission can gather information, ways that do not require a grant of immunity, such as the disclosure of documents and testimony that does not implicate Fifth Amendment rights. This is pretty much what those of us who have considered a commission believe that the commission would both be able to carry out and perform how it should operate and the context or the construct in which it should go forward. I have lots of other thoughts, ideas and suggestions, but I wasn't asked to come and monopolize the conversation. So let me end here in hopes that the discussion around the table can focus on this and other related questions, and I certainly hope to participate in that discussion. Thank you very much. Over to me. I was a line officer while I was in the Navy for 35 years. I commanded a frigate of destroyer squadron, the amphibious forces in the Pacific, and as my last tour, as Sarah said, I was the Inspector General of the Department of the Navy for the Navy and the Marine Corps. Before I launch into my prepared remarks, I wanted to make sure that everyone understands that my motivation for participating in this effort is to ensure that the outcome of the events that we've just been through are as favorable for future service members as possible. I'm here to protect soldier sailors, airmen, marines, Coast Guardsmen who are not born yet who will go and represent this country in future conflicts. So with that, let me start. For the past several years, I've been an active member of a coalition of retired generals and admirals who speak out against torture. Our group now numbering about 50 joined together in 2004 with the assistance of Human Rights First, Devin, I, to implore the United States government to put a stop to abusive interrogation techniques. Though we are members of both major parties and independence and we represent a wide variety of military backgrounds, I can safely say that we are unanimous in our view that the Bush administration's decisions to sanction the use of torture and other cruel techniques came at an enormous cost to our nation, to our values, our laws, and our security. Our view is that is also that the then Commander-in-Chief risks the lives of our men and women in uniform unnecessarily by circumventing international norms, treaties, and agreements on the treatment of detainees. During the 2008 presidential campaign, my colleagues and I made it our mission to talk to presidential candidates and the public about our views on torture, secret prisons, and extraordinary renditions. We traveled to New Hampshire and Iowa for the presidential primaries, where we had the privilege of meeting individually with eight presidential candidates from both parties, including then-Senator Barack Obama. We attended receptions hosted by Human Rights First at both the Democratic and Republican National Conventions, where we talked with members of Congress and others about our views on detainee treatment. And we stood behind the new president on January 22, 2009, an historic day when he issued a series of executive orders, closing CIA prisons, directing the closure of Guantanamo, and prohibiting the use of torture in pursuit of intelligence. The Senate Judiciary Committee asked me earlier this year to testify with Ambassador Pickering, as he has said, and to focus on the idea of establishing a nonpartisan commission to examine U.S. counterterrorism efforts since September 11, 2001. I believe that such a commission is critical, both to restoring the moral authority of the United States as a leader for human rights, and to devising a more effective counterterrorism strategy for the future, one that adheres to United States and international law. President Obama's executive orders on interrogation represent an enormous victory in the struggle to enforce a single standard of humane treatment while defending our country. But those orders are just a first step. Ending abusive detention and interrogation policies requires dismantling the legal framework that sanctions torture and cruel treatment. It also requires building a more sustainable national security policy going forward. We cannot improve our national security policy unless we understand and learn from our past mistakes. In the future, we will again send our soldiers, sailors, airmen, and Marines into battle, exposing them to mortal dangers and calling on them to make difficult, complex, and urgent choices. The Commander-in-Chief owes men and women in uniform the clearest possible guidance on detainee treatment. From the point of capture through the entire process of detainee care, movement, confinement, and interrogation, dealing with detainees is stressful and demanding for our military men and women. The orders of the Commander-in-Chief must be unambiguous and serve as the solid foundation for the behavior of Americans wherever they serve on behalf of their country when their duties involve the treatment and interrogation of detainees. It is the responsibility of the Commander-in-Chief and of those in Congress, in my view, to ensure and demand that the behavior of Americans toward those who are in our custody comply with the Geneva Conventions and with the highest standards dictated by international agreements on detainee treatment. Preparing to protect our service members in the future demands a thorough, comprehensive, and sober examination of the policies and practices that led us astray in the first place. Such an examination will help inoculate our country and its future leaders against committing abuses. The examination also would go a long way toward enabling us to demonstrate to the world that the United States is committed again to the humane treatment of prisoners in its care. My colleagues in the Military Leaders Coalition are not of one mind when it comes to criminal accountability for the last administration's actions. I think some support criminal prosecutions, I know others do not. We all believe, though, that we cannot move forward without looking back and examining, to some degree, how our country got so far off track. I believe this look-back can be accomplished through the establishment of a nonpartisan commission of inquiry. A number of different models for such a commission have been proposed. But whatever model is ultimately employed, I believe a commission should have three principal areas of focus. First, an in-depth study of the CIA's detention and interrogation program. Second, a thorough examination of the legal justification used to rationalize policies and procedures of abuse. And third, most importantly, a cost-benefit analysis of the abusive techniques. The commission should be instructed to conduct its proceedings as publicly as possible, as the ambassador said, consistent with legitimate national security interests. Ultimately, it should be tasked with compiling a public report that conveys lessons learned and makes recommendations for avoiding future abuse. Through extensive revelations of documents and multiple hearings, Congress has already shed some light on the extent of abuses of detainees in U.S. custody. But there is much the American people still do not know about the parameters of the CIA's detention and interrogation program and how torture and abuse came to be approved at the highest levels of government. A commission of inquiry should undertake an in-depth study of the CIA's program, how it was structured, who was held in secret CIA custody overseas, the reasons behind each detention and the dates and circumstances of all releases, transfers, and deaths. The secondary area of focus should be the secret legal opinions used to justify abuse. The Bush administration apparently employed an array of supposedly constitutional and legal justifications to rationalize its policies of official cruelty renditions to torture and secret detentions. These justifications also masked the extent to which those policies violated fundamental human rights norms the rule of law and treaties with which the United States has obliged itself to comply. A full accounting of past abuses will require that relevant legal opinions be made public. Some have been. If there are more, we need to see them. Additionally, the public and Congress must understand the reasoning used to circumvent humane treatment standards so that these standards can be fortified in the future. Arriving at such an understanding will require a comprehensive study of the legal opinions, memoranda, and documents which authorized or provided legal clearance for secret detention, torture, and other abusive techniques. Thirdly, the Commission should assess the strategic gains and losses of employing abusive detention and interrogation techniques. Senior Bush administration officials including former Vice President Dick Cheney continue to insist that the use of enhanced interrogation techniques such as waterboarding saved American lives. But those assertions are never accompanied by hard evidence or actual facts. By contrast, many experienced interrogators have testified that abusive interrogation practices actually impede efforts to elicit actionable intelligence and that non-coercive rapport building techniques have yielded the most accurate and complete information. Importantly, information obtained through non-coercive techniques is admissible in U.S. courts of law where cases could be proven and detainees who were killers and thugs brought to justice. An independent commission could undertake the task of examining the facts and in so doing weigh the true effectiveness of the Bush administration's torture techniques. Did torture actually uncover actionable intelligence? Did it interrupt plans? Did it actually save lives? If so, what were the countervailing costs to our national security? Did the use of torture spark terrorist recruitment increase danger to our troops and damage U.S. leadership and prestige? And did these costs outweigh the benefits? Might actionable intelligence also have been obtained by non-coercive methods that experienced intelligence interrogators recommend and employ? What strategic security gains will be reaped from shifting to a policy of complete, consistent, and transparent compliance with human rights norms? Should our Congress or the Attorney General decide to undertake the inquiry we're discussing, I'm sure that substantial time will be spent considering the form it will take. My sense is that decisions on format, immunity, and subpoenas and other matters will be driven to a degree by where the framers of the inquiry think that it will lead and what inquiry supporters want to do with the information it develops. Among the many options available, let me offer two approaches used by the military for you to consider. As examples of how factual inquiries distinct from criminal investigations can work to bring about important changes and prevent the repetition of serious mistakes. One approach to consider is what the armed services variously call after-action reviews or hot worships. These intense reviews of military operations and exercises are intended solely to answer the question, what happened? Commanders in the field and at sea use such reviews to understand the outcomes of operations and exercises. They examine the facts to see what worked well and what didn't and how reinforcing things that and people who worked well and improving those that didn't can make the fighting force better. Obviously, AARs are not intended to uncover malfeasance or criminal behavior. The focus is on understanding and improvement only. My personal recommendation is that understanding and improvement be the main themes in any inquiry we do, whether or not criminal investigations for truly bad behavior result. The second model I want to offer is that of the aviation safety inquiries that each of our services conducts on the occasion of a major aviation accident or incident. As you may be aware, the services do conduct, of course, investigations under the Uniform Code of Military Justice that are for the purposes of assessing blame and determining culpability. I directed some of those at the Department of the Navy and Spectre General. The aviation safety inquiries are different. They are perhaps the purest form of proceedings intended only to answer the what happened question. Briefly, here's how they work. A board is established to examine evidence and take testimony. The board can compel testimony and demand access to all the evidence. The proceedings are firewalled off from whatever UCMJ investigations also may be conducted. Everyone involved in the investigation, including witnesses, is expected and required to do everything possible to help. It's well understood that lives depend on it. The overriding concern of the safety board is to understand what happened, where training or personnel performance or leadership or procedures or support equipment or maintenance or aircraft design or performance broke down and get corrective measures underway in the fleet quickly. I believe that these investigations get at the facts. I've seen it for myself. Decades of candor, critical self-examination and substantive rapid changes by the services aviation communities have created the finest and safest record of complex military aviation operations the world has ever seen. The effectiveness of such inquiries demonstrates how an objective and comprehensive independent examination of the facts can serve to inform and improve policies and training going forward. It is my opinion that a similar inquiry into the authorization of torture and other cruelty over the past seven years will help fortify our nation's new commitment to a single standard of humane treatment for all prisoners in U.S. custody. The Bush administration's misguided embrace of torture, secret prisons and renditions to torture came at an enormous cost to American values, our laws, and our counter-terrorism efforts. It risked the lives of service men and women on the front lines around the world. In my opinion, repairing a reputation as a nation committed to human rights and building a more sustainable framework for national security policy for the future requires a comprehensive examination of the policies and practices that sanction torture and abuse. We need to take a hard look at ourselves. The Congress and the administration have a window of opportunity to conduct an examination that signals to the American people and to the world that the policies of the last seven years were an aberration. We can show that the United States is invested in creating an effective, long-term strategy for counter-terrorism and intelligence gathering that adheres to American principles and values and to United States and international law. The stakes are incredibly high. In the balance hangs the ability of the United States to maintain the integrity of our counter-terrorism policy, improve intelligence cooperation with allies, support the human intelligence community and employing proven effective methods for gathering actionable intelligence information, and reestablish the moral authority necessary to restore the United States to its rightful position as a world leader in upholding human rights. Thank you. Sarah asked me to make a few remarks before opening it up to her questions and answers. And I think part of the reason that Sarah asked me to sit in the middle here and moderate this is that I'm like these incredibly compelling, very persuasive, and authoritative statements that you've just heard. I'm still very much struggling with this issue. And I have lots of questions. And so I'm really hopeful that we'll have a good discussion and that I'm not the only person in the room who's maybe skeptical, is a little strong, but at least still sort of struggling with this a bit. I do believe very strongly that we need to develop a consensus among the American people about what happened in the aftermath of 9-11 that we never want to have happen again. At the top of that list is torture or harsh interrogations or detainee abuse and I think the terminology is really important here. But there are all, I also have grave concerns about other broad assertions of presidential prerogative. And I think the scope of any effort, any sort of look back, any inquiry is really an important issue. I don't think necessarily that one size fits all. I'm not, I have real concerns about calls for a broad commission that would look at all the abuses of the past administration or all of our policies since 9-11. I think that that risks getting very political, very fast. So I think scope is one of the issues that I hope we'll talk a bit about. As I think about the issue of accountability, I think most of our discussion certainly the two statements so far has been about detainee treatment and so I'll sort of frame it for now in that context. And I do believe it's very important that we own the mistakes of the past before we can disown them. And this is what I mean by accountability and I think it's clear from the statement so far that that's really what we're talking about. It's not just holding certain individuals accountable but understanding how the system failed and the role that each of us played in that as citizens, as members of Congress, as members of the bar, as physicians, as journalists, etc. The question is how to achieve that objective and there are lots of options out there. We've, you know, we've heard some compelling discussion about how we might establish independent commissions to accomplish that objective and that's certainly one compelling option. But even if you agree on an independent commission there are lots of issues. Should it be appointed by Congress? Should it be appointed by President? Should it be appointed by both? You could have a congressional investigation, a joint congressional investigation, a bicameral investigation and independent task force of members appointed by leadership. There are lots of ways you can go and there are models for all of these. There's traditional congressional oversight. You know, I have the number of the committees including armed services and intelligence committees have done inquiries or have inquiries underway. We've seen the problems with those but certainly traditional congressional oversight is one of the ways to get out what happened and look at that. There's obviously criminal prosecutions and we'll we'll have an extended discussion about that I expect, I hope. Prosecutions are typically about individual accountability. I mean, they're not typically, they are about individual accountability and they often fall on the lowest level. What we call the pointy end of the spear and I should add, I meant to say this at the outset to my bio that Sarah gave you in the interest of full disclosure, I should disclose that I also spent six years working at CIA and I will readily admit that that affects my thinking about this and I hope informs my thinking about this but I've seen how that happens in the context of prosecutions. IG investigations are another way in which we can look to hope to get at what happened and IG investigations can be self-initiated, presidentially requested, congressionally directed problems with the IG investigations include that they are rarely made public and they're not comprehensive. Ambassador Pickering talked about the value of not having just an agency by agency look but look at how all these pieces work together and that's important. Another avenue obviously is journalists and other writers we've seen some really good work done both in newspapers and magazines and books a book by Jane Mayer for example. The problem is those are not widely read and they are a limited way in which you're to try to achieve a national consensus which I think is so important. And then there are these after action review models. So at least those and you probably maybe some of you have additional suggestions for approaches. I'll talk a couple just a minute about the pros and cons of commissions and some of my concerns. Sarah talked about truth commissions that have taken place in other countries for example. There's a lot of talk about this being a kind of truth commission and one of the concerns I have about that model is that I think it typically takes place and Sarah you can address this in an environment in which there's at least a consensus that something really bad has happened and that now we have to figure out who we need who we should hold accountable and how do we bring about justice for the victims of that. And one of my big concerns here is that we don't yet have a consensus that something really bad happened here which I think for a number of us is pretty startling but both our speakers made reference to it and if you look at the polls there's a Fox news poll 66% support using harsh interrogation techniques to learn more about plans and executions and it's not just Fox news the economist had a recent poll 63% found that waterboarding and other aggressive interrogation techniques are sometimes justified. So I have concerns about how you undertake this kind of analysis when you don't have a strong public consensus what are the kinds of models that we should use when we're trying to still build a consensus about what happened and how we ought to feel about it. Timing I think is an issue is it too soon to do a commission or is it too late to do a commission? Do people feel as though we've turned the page on this and we've moved on and we don't need to do it and clearly we've heard that. And then on a re-examination of the prosecutions that Eric Holder has undertaken I fair to I am deeply troubled by the unfairness of reopening cases where career prosecutors have examined it and decided that there's no basis no grounds for whatever reason they're not going to pursue prosecution. On the other hand sadly this Department of Justice was so lacking in credibility lost so much credibility in the last administration that I fear that this is an unnecessary step. It puts a tremendous burden on the folks who who are now going to be re-examined potentially but I think it's important to note what Holder has said he's going to do which is simply to look at whether an investigation is warranted. It's my understanding that the group he had look at the initial examination found some irregularities or problems at a minimum with the process that was used and sadly my sense is that's that what he's doing is absolutely essential. You've got an apartment in which even the Attorney General said significant departures from the legal guidance were okay and were lawyers who disagreed with David Addington were eased out. So that's and credibility is really important for any number of reasons. I have argued for example against the broad use of universal jurisdiction but in other countries to charge our soldiers or policy officials with war crimes in large part because we have a system set up to prosecute people for war crimes and we have demonstrated our willingness to use that system and therefore there is no need for other countries to step in and take that over and our lack of credibility on that front will really I think come back to haunt us. And there is a sense that the use of the criminal process is somewhat less political politicized and again I look at the polls the polls on whether Eric Holder whether there ought to be some look back at this are actually fairly evenly divided the public is fairly evenly divided which I think is actually not a bad sign today. So I'm going to start with the discussion by asking what I think is a difficult but perhaps telling question a big discussion now about the release of the detainee abuse photos and the Homeland Security Conference Report that was just enacted by Congress includes an exemption from FOIA that allows the government to withhold the release of those documents. Others in Congress have actually pursued legislation to prohibit the release of these photos and documents and photographs and the arguments I think are actually fairly compelling frankly on both sides and you know rather than lay them out I will ask first our speakers and then I'll open it up for discussion about your views on that issue. Thanks Suzanne very much and I think you've raised a series of good questions I'm not sure in fact that they're all without answer and I'm a little more convinced in my own mind that the course that my group has laid out meets most if not all of your concerns but that's up to you to answer. One your question on the photos again my sense of these is the following if there is a general consensus that the photos are really too ghastly to release and the standard of ghastliness has been extended in this day and age to an extreme which is pretty hard to combat but if they are then my view is that it makes a commission even more imperative in a sense that we feel we can delegate to people of high credibility and impeccable honesty and strong records the ability to deal with this particular part of the issue since the photos are indubitably part of the evidence that has to be looked at and I have no wish obviously to personally be involved in the perusal of ghastly photography but I have a very strong interest in a very strong feeling on the basis of my experience that this country needs to be at a position where if it is not going to release the photos it has a very credible way of responding to the photos to what gave rise to the photos and even more importantly what the implications of the photos the acts that were committed and photographed to deal with the future because in effect once we take what is a censorship position on the photos then we become involved in the notion that we are the fox watching the hen house and if we can't overcome that that adds further to the difficulties we have let me just say one word too about your concern which I share on the new potential for universal jurisdiction becoming for all of us who had public service a huge impediment to moving outside the boundaries of the United States to some extent this takes us right to the heart of the international criminal court and right to the heart of the issue and having been involved in some of the supervision of the negotiations from the perspective of our delegation I have to tell you that in all honesty I think the international criminal court can be made consistent with your view that indeed it is a protection in that regard against the assertion of universal jurisdiction because of the fact that the court is founded on the thesis that countries who are willing to take domestic jurisdiction have the right to take domestic jurisdiction and to some extent and while this is not so chiseled in stone that everybody sleeps every night confident that it will always work that the court cannot intervene and deal with this problem over the head of what is bonafide domestic jurisdiction this is a very difficult problem because while I have absolutely no hesitancy in the United States taking domestic jurisdiction I was not totally happy with the notion that President Milosevic in Serbia might well take domestic jurisdiction for the purpose complete and apparent purpose of totally clearing his name I have a feeling that if we did three things we could get over this hump one of those things is to make it an assertive policy of the United States that we will always take domestic jurisdiction in any case related to Americans officials or not who in any way at all come into our consciousness of being involved or alleged to be involved or having any kind of iota of involvement with the crimes covered by the ICC that it is in my view imperative that we reinforce that by nominating special investigators who can be part of our justice system but who would serve a dual and primary duty of carrying out those investigations I would think that we should as a matter of assertive jurisdiction invite the ICC prosecutor to participate with us in the investigations because transparency is the first rule of assurance that in fact we're not cooking the books that we have high standards and that we're dealing with them and that I think the third piece is to qualify one of our Article 3 courts as a court of special jurisdiction to deal with these cases and indeed where that court sits if the case involves a member of the armed services then judges of the court of military appeals which is the intervening appeal court in UCMJ cases should be invited to sit with the court as part of the bench to deal with those cases so we have an assurance that individuals qualified in dealing with military cases and with the special military rules that apply to members of the armed services are there and that we should be able to obtain in places where we do not have custody as a result of this particular process hopefully custody in these cases and that we should enlist in fact a deal with the ICC that it would should it come into custody of these individuals provide a basis for our assuming jurisdiction and custody as a matter of absolute priority this in my view would go far maybe not perfectly but it would go far enough in my view to satisfy the deep concerns that we've experienced in terms of credibility of the ICC and credibility of the ICC process I didn't mean to bring it up but it's a hobby horse that I've been concerned about because I think for the country in the the country that it's perhaps the most effective and fairest judicial system in terms of large states the fact that we're outside of that regime and indeed in many ways combating it puts us in a very very bad position to take very very strong positions on questions of genocide and war crimes which is I think central to where we should be going in our leadership and so I believe that we have to find an answer to this problem and the thoughts that I have may or may not be the answer but I think they tend in the direction of being able to find a way to deal with both the ICC our problems with it reconciliation and indeed membership but down the road Admiral, does your first and foremost concern for the safety and well-being of our troops overseas at the end of the day is your sense that for example the release of these photos you know is our moral standing and their well-being hurt more by releasing the photos or by refusing to disclose them I'm really of two minds in this regard and frankly I won't be happy with either decision I'm willing to accept the argument that their release puts our people at additional risk to some degree and that's without having seen them myself on the other hand I'm also open to the argument that failure to release them says bad things about our system and about our transparency at the end of the day whatever decision is made I want made by a group a body that has enormous credibility and great independence and so like Ambassador Pickering I think that argues for the existence of a commission so carefully chosen that as unhappy as this or that segment of Americans will be with whatever comes of it that there'll be an inclination on the part of people to believe that the outcome was reached fairly Yes My name is Richard Gurling I'm from the Dutch Embassy so I should take a very modest position here just a few observations very briefly while I'm completely sympathetic with the motives of our distinguished speakers I still wonder what the function of such a commission would be a commission in Holland we have also had many many commissions like this and always responded to a broadly felt need within the general public to find out what truly happened that was for one thing and for the other thing that people were very anxious or interested to hear recommendations of the commission and to put it into action I think these two conditions are not fulfilled here for one there's no general feeling within the public that we need such or the American public needs such a commission unlike for example what happened after 9-11 and 9-11 commission because it happened far away outside the US that's for one thing and the other thing what recommendations would the commission have it would recommend that torture should be ended but that has already been ordered by the president so what is then the need for a commission and then the last remark suppose suppose that Dick Cheney is right and that torture has really saved American lives how would you deal with it thank you thank you very much I think that you're much too narrow in your focus on this commission that there's certainly total agreement between us on the question of what happened and it's still not completely clear and indeed as long as a question mark remains over what happened there is in my view a crying need for a commission rather than piecemeal revelations over a period of time through declassification desuitude, age, and other devices none of which are focused on the question secondly I think the degree to which this issue is important for us in the future it argues for us taking a very careful look at the limits of executive power and indeed how and in what way they should be dealt with we have judicial review in this country but judicial review of secret decisions that affect people's welfare, health and indeed their freedom is something that this whole process was set up to evade and so while torture is the most horrendous of the results of this and the one and perhaps murder the ones that we're most concerned about we have other essential questions having to do with the whole constitutional system of the United States and so at least the Congress in my view would certainly not find totally reprehensible the idea just as they refuse many intelligence activities which involve actions that there will be an absolute requirement that a small but significant number of congressional leaders review proposals or indeed changes in the fundamental norms the Justice Department memos whatever it is that's there so that it is not entirely the work of a small closed cabal in the executive branch and I think that's only one thing that I think might come out of a review that would help us square the circle there isn't any reason why and the Congress has kept secrets despite their well-known propensity to avoid that responsibility and I think it could be a further check on where we're going to have that kind of limited but very very much important transparency and that these would constitute obviously impeachable offenses if they are in fact violated by the executive branch we need to strengthen that synergy that set of check and balances which is inherent and indeed explicit in our Constitution up and down the line but where it is in fact now not applied in a way that I think could defend the public interest so those are just a few thoughts about the question and how we might affect improvements not all of which I think have leapt quickly to mind and have been rapidly implemented in the aftermath of where we've been one of the reasons many people believe that torture works is because it works every week on 24 and unfortunately the shock value the advertisers dollar follows that kind of a story my personal belief based on discussions with lots of interrogators who have used methods that fall well within the rules as the U.S. has initiated determining them internationally will attest to the fact that the most reliable information is gained from using techniques that are completely in accord with our values you know I'm willing I'm willing to start an inquiry into this on the assumption that we are looking at the actions under enormous pressure of very good Americans who had the interest of the American people at heart and that in the course of making choices under this intense pressure they got it certainly by my estimation wrong and if that turns out to be true then what were the forces that they they were subject to I want to know that because in 2018 or 2025 the choices made by this administration the orders issued by this administration can be null void and Americans future service men and women can be subjected to the same sorts of errors in judgment that were made by this administration and I think it's possible to conduct that kind of inquiry I I agree that the whole thing would be would be certainly more intellectually satisfying to me if the American people were rising up and saying this is not us we don't do this kind of junk anymore but they're not and one of the reasons is that there is this widely held belief that if you bear down hard enough on somebody they will eventually tell you the truth it was that belief that got us confirmation that there were weapons of mass destruction in in Iraq when we rendered a detainee to Egypt for torture because the interrogator in Egypt believed there was and this the victim would tell him whatever he wanted to hear he also by the way in the truncated version of the of the interrogation transcript the piece they released didn't say that he went on to admit to several major positions that he held in world economics which were important to the to the eventual preeminence of of Islam as the world's religion so we cut it off where we wanted to when it was appropriate to satisfy our preconceived notions one more thing on torture the most hardened the people who know the most about what about the situation the circumstance you're trying to understand can come and often do come with a story that they will divulge after undergoing enough pain that the interrogator will come to believe that the next thing they say is the truth and that will send you down a rat hole and that's one of the the fallacies of the ticking time bone scenario but I do think it's a huge challenge to create a commission when you don't have that strong public consensus as we've talked about and I would be curious if Sarah or anyone else around the room can point to examples of these sorts of efforts that have been successful that start from a place similar to where we are today where there isn't just that kind of strong consensus and I think one of the things to think about for example if what you're really looking for is support for an effort to look at what happened and make determinations about what was wrong and what was right to not put it under the rubric of accountability accountability starts with the assumption that we know things were wrong and we're going to find out who to hang for it and if we don't have a consensus on that we may never get a commission that falls under that rubric but if instead it is there's a lot of discussion and debate about these issues in the American public certainly in the media if it really is let's put a bunch of wise heads together and talk about it in that context and come up with something for the consideration of the American people in Congress maybe it has a better chance The point I don't think any of us at the table have suggested accountability be in the commission maybe people outside have and I can understand because I argue against it I think that that's a question of criminal justice I also think that if you go back and look at the circumstances of the Iraq study commission you certainly don't find unanimity or maybe even consensus around that and certainly the executive branch cannot have been happy with the notion that that be undertaken particularly at the time it was undertaken so I'm not sure that it's necessary to have people marching in the streets commanding the commission as the sole criterion for putting it forward I also think that those who are prepared to argue for and decide on a commission and I can understand that the president is lukewarm on this issue and we haven't been able to kindle his interest in it but were he to in fact say after all this time I've looked at it I've been very skeptical I've resolved my skepticism and I have configured the commission in a way that deals with it I don't think that there would be huge blowback but I think once charged responsible people even with a flaccid public would certainly be impelled to try to do the job as well as they could and of course the choice of the people is really quite critical to see Just a matter of housekeeping we have scheduled five minutes more I know Ambassador Pickering has to leave I think it would be great to get some questions I will answer your question before we end and we might go two or three minutes over but we will formally stop as close to seven as possible I invite people to stay we have lots of food and drink this is obviously a long conversation that will go well beyond our meeting today Yes Yeah, just one quick comment I understand that I'm Manuel Lafond I'm a visiting fellow here at CSS a consensus based commission would obviously be the preferred option but this is not the case and I cannot come offering examples of situation where there were non-concentral commission on these kind of very divisive issues but I can come with examples of situation where because of the lack of consensus there was no effort to try to deal with these issues and years later you're actually still dealing with them and then the question is if your first best is not available isn't the second best available option then to make these kind of commission to try to build the consensus and I'm drilling into your photograph question basically the dilemma that we are all facing when trying to answer the question about the photographs is how to hide the picture itself without giving the feeling that we're trying to hide what happened and one precisely the picture is just a derivative question from the real problem which is how to make sure that what really happened is known and that there's accountability for this thank you Don't worry like Ambassador Pickering I spent most of my life overseas and I happen to be overseas during 9-11 and for several years after it and I saw what happened internationally to people's attitude toward the United States in a very dramatic fashion I endorse almost completely Ambassador Pickering's idea about a conference commission et cetera with a couple of reservations sir and I'm a great admirer of your career by the way even though I'm not a diplomat I'm an intelligence officer unless the American people can begin with the understanding that there is no such thing as perfect security and that this commission is not going to come out with the result that is going to 100% fix their problem but we'll at least address the moral and ethical considerations upon which future policy should be built then I think it is a proper thing to do the unfortunate thing that the admiral referred to a TV program which I must admit I have never seen but I've heard of it many times because it is so totally unlike the reality of either diplomacy military action or intelligence there is never X never marks the spot there is never a suitcase bomb in the trunk there is never a single answer to any question and I just spent several years in an administration where the bar for intelligence that supported their preconceived ideas was non-existent and the bar for intelligence that did not support their preconceived ideas was so high that nothing could get over it and that was the reality WMD there was never ever an intelligence consensus that there were stockpiles of WMD there was belief that he was working on systems and said I don't want to win all of that but I would ask how can we make sure that this commission is a truly a political above the political race or above the political battles and be that the people understand that the purpose of this commission is to engage them in a dialogue and come out with something that will be useful I guess I guess Bill we get you to write the preamble Kate um I'm Kate Martin Kate has set a a dangerous precedent by speaking not into the microphone and since we are trying to podcast this we do want to capture people's thoughts and they were great comments too can you want to move up to the table the head of the foreign affairs defense and trade division at congressional research service I need to caveat this by saying these are my personal views not the views of CRS but I was the chief prosecutor at Guantanamo Bay for over two years I resigned in October of 2007 because I disagreed with David Addington and others about what constitutes torture I think a commission or whatever the process is is important I think Churchill was right if we don't examine our history then we're doomed to repeat it I think sir I think you were exactly right about future soldier sailors airmen coast guardsmen if you look back to the first Gulf War the Iraqis surrendered by the tens of thousands because they knew who we were that we would treat them properly we would give them medical care and food and we were the Americans we were the good guys I think if the mindset in the Middle East as it is today was present back then they would have dug in and fought and the world would have last longer more of us would have died it would have cost more so it's not in our national interest to be portrayed around the world as the bad guy and not the good guy and we need to regain the high ground and I think the question of torture Susan Crawford who you know she and I did not exchange Christmas cards we have divergent opinions on a lot of things but even she and when she came forward in January of this year talking about Al Katani which was a case I was personally prosecuting said quote we tortured Katani his treatment met the legal definition of torture and that's why I did not refer the case to trial she went on to say that if we talk and this is a quote if we tolerate this and allow it then how can we object when other service men and women or others in foreign service are captured and subjected to the same techniques how can we complain where is our moral authority to complain well we may have lost it and she ended by saying when the question was who should be held accountable Crawford said quote I think the buck stops in the Oval Office so I agree I mean I know I met the people personally who performed the waterboarding they were nothing like Jack Bauer on 24 I went in with the perception that's what they would look like and they look like you know your uncle your grandfather the guy down the street and I believe they are well intended but with bad advice I agree that in the wake of 9-11 people with good intentions made bad decisions what I don't forgive is with the benefit of reflection being adamant about the unitary executive authority and riding it into the ground and leaving us where we are today Sarah is that a good note on which to consider? It's an excellent note these are very compelling statements that people have made and it's very helpful I think for a lot of us to hear from people who've had such terrific service to the country it's particularly powerful I think there is though a conversation that happens in Washington as if this has never happened anywhere else and the reality is that the process of transitional justice and I would argue that we're in a moment of transitional justice unfolds over many many years the fact that there's not a consensus at this moment or that there's not evidence of overwhelming support does not mean that there couldn't be at some point but it also is the case that in many countries there's terrific ambivalence about looking back people want to forget when you think about in your own personal life if there are episodes of of embarrassment or shame you don't necessarily want to sit down and I mean unless you like going to an analyst and you know figure out what happened we have done a fair bit of survey work at CSIS on how Russians think about torture and think about the past and in a situation where we're looking at enormous millions of people who disappeared I mean not you know sort of and citizens that disappeared relatives grandparents great grandparents and even in that case you find tremendous amount of ambivalence so I think that it is a productive conversation to think about how would you generate more consensus what is it that Americans want to know frankly I think the survey work or the polling that's been done on these issues here is not tremendous I think we need to have a much better sense of what's happened in other countries and how this unfolds and where the tipping points are I think the real concern is that we don't know what kind of resilience we have and when and if something happens again the degree to which there have been lessons that have been incorporated into institutions and I worry about that your comments about universal jurisdiction are extremely interesting in the sense that there are many countries around the world who feel that if justice happens elsewhere rather than domestically it closes ranks and I think in Washington DC were this to occur overseas that there would be a huge closing rank so I hope that our friends overseas have some patience with us as we work through this process and that we will work through this process perhaps more patience than we have sometimes granted others and then finally this issue of risk management and moving from a world where we pretend that one policy solution provides zero risk I think is something that we need to address much more and it is something that we could learn a lot of lessons from friends and allies around the world particularly I would say from the UK that's dealt with terrorist threats well over 30 years and who very much are driven by a risk management approach with that we're going to formally close this I do invite you to stay and let us know I think we'll put the podcast up we might even put a little section for bloggers we expect that people who might visit CSIS the website but who haven't talked about this or thought about this might be invited to comment so with this I thank you very much especially the impassioned and well-reasoned rational conversation and the testimonials and thank you very much