When President-elect Joe Biden takes office in January, he will confront a national economic crisis and a still out-of-control pandemic. He will also face questions about how to handle the lawbreaking and abuses of power undertaken by President Donald Trump and his administration.
Already, people are calling on Biden and his administration to do nothing. Writing in Reason, law professor Josh Blackman suggests that the next attorney general should pledge not to criminally prosecute Trump or members of his administration so as to avoid “years of bitter division.” Blackman suggests that “a blue ribbon panel to investigate alleged wrongdoing would be far more satisfactory.” But historian and writer Jill LePore says any kind of truth commission is also “a terrible idea,” and that, in a democracy, the “loser concedes without violence, and the winner accepts without vengeance.”
It would be a historic mistake for the Biden administration to listen to this advice. Impunity for the powerful—from the corporations and executives responsible for the financial crisis, to wealthy tax evaders, to prosecutors and police officers who grievously violate people’s rights—is part of what brought us to this point.
Almost 12 years ago, a new Democratic president elected during a national crisis faced the question of how to respond to extreme violations of human rights and criminal law by his predecessor and the prior administration. The United States had indisputably tortured prisoners, in some cases fatally, in a program that was authorized by President George W. Bush and approved by the Department of Justice through the Office of Legal Counsel’s (OLC) deeply flawed “torture memos.” President Barack Obama ended the CIA’s torture program and ordered the closure of the prison at Guantanamo Bay and the suspension of the Guantanamo military commissions on one of his first days in office, but he opposed criminal investigation or prosecution of those responsible for conspiring to torture. “We need to look forward as opposed to looking backwards,” Obama said, and he didn’t want CIA agents to have to “look over their shoulders.” And, he opposed a congressional proposal for a truth commission for the same reason.
But Obama’s opposition to looking backward made it impossible to look forward. By the end of his presidency, Guantanamo was still open (and remains open to this day). The military commissions started up again, and were mired in endless, dysfunctional pretrial litigation in the 9/11 case, driven in large part by the CIA’s and prosecution’s unwillingness to acknowledge the defendants’ torture. CIA officers and lawyers who played a central role in the torture program not only kept their jobs, but got promoted. All these trends continued through the Trump administration. Gina Haspel, who reportedly ran a “black site” prison in Thailand in 2002, and helped destroy video evidence of torture sessions in 2005, is now the director of the CIA.
There was one bright spot, though, in terms of deep reform: in 2015, Congress passed a law codifying Obama’s first-day executive order that ended the CIA torture program. As far as we know, Haspel has obeyed that law. It passed only because the Senate Select Committee on Intelligence “looked backward” and published an extensive, damning account of the torture program over the CIA’s and Obama White House’s strenuous objections. The public accounting of that history mobilized meaningful legislative action.
If we want to recover from the Trump years, the Biden administration needs to emulate the Senate committee’s unflinching willingness to examine our government’s worst abuses and take action to prevent us from repeating them. Criminal investigations are but one of several tools that can be used to forge this path.
Criminal prosecution and professional accountability
Despite Obama’s strong preference for “looking forward,” he did allow the Justice Department to expand an ongoing criminal investigation, led by U.S. Attorney John Durham, into the destruction of videotapes of CIA torture. In August 2009, then-Attorney General Eric Holder announced that he had asked Durham to begin a “preliminary review” of whether the CIA had committed crimes in its interrogations of detainees. But Holder reassured CIA officers that “the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”
There was a great deal of evidence that the CIA, in fact, acted outside of the scope of the torture memos—including two cases where detainees were tortured to death. Nonetheless, Durham eventually closed all his investigations without bringing charges or publicly explaining why he declined prosecution.
In some ways, the question of prosecution is simpler now. Trump is potentially implicated in a far greater number of federal crimes, and it is highly unlikely that the Justice Department provided legal cover for all of them, as it did in the case of torture through the OLC memos. Many of Trump’s potential crimes also do not concern matters involving highly classified information (example: Mueller Report Volume II). There is more than ample evidence to warrant investigations, and the Justice Department should follow that evidence wherever it leads. Biden should not get involved, other than to make clear to his attorney general that the decision should be governed solely by the law and the evidence.
So far, Biden has appropriately recognized the need for the Justice Department to independently evaluate the evidence, but his advisers have told the press that he is “wary” of federal investigations of Trump’s taxes and pardons of associates, and generally wants to “move on.” These signals are a mistake. The Justice Department itself is already much too wary of prosecuting powerful, wealthy people and corporations, and has an explicit policy against indicting a sitting president. The incoming administration should not reinforce those tendencies and instead make clear that no one is above the law.
The Justice Department also needs to look inward, at its own role in facilitating some of Trump’s worst abuses. Former Attorney General Jeff Sessions, former Deputy Attorney General Rod Rosenstein, and U.S. Attorney’s offices played a central role in the family separation policy that took children away from parents seeking asylum and opportunity in the United States. The Justice Department even continued to withhold, until this year, information that would help reunite families. Attorney General Bill Barr has enabled the president’s interference in criminal investigations to protect Trump’s allies and go after his perceived enemies, played a role in the episode that led to tear-gassing peaceful protesters in Washington, D.C., and in the deployment of federal agents who seized protesters in unmarked vans in Portland, Oregon.
Many of these actions are probably not crimes, but prosecutors in the civil rights division should seriously evaluate whether any officials should be charged with violating individuals’ rights under color of law, or conspiracy to violate civil rights – as well as criminal liability under the Hatch Act. The Justice Department should also investigate whether they violated professional ethics rules and regulations. Unfortunately, the department’s Office of Professional Responsibility, which is responsible for investigating professional misconduct by Justice Department attorneys, has a very poor track record of holding anyone accountable. The DOJ inspector general could do a better job, but giving it jurisdiction to investigate misconduct by federal attorneys requires new legislation. In any case, it is crucial that some office within the Justice Department investigate and disclose the facts so that state bars can take disciplinary action if necessary.
Civil litigation and restitution
Debates on accountability often center on the possibility of criminal prosecution, but the government’s position in civil litigation is equally critical. Under the Obama administration, the Justice Department continued to take the same positions and make the same arguments as it had under Bush in favor of the executive branch’s power to hold Guantanamo detainees indefinitely and dismiss suits for damages on national security grounds.
In 2009, Holder announced new guidelines that were supposed to limit the use of the “state secrets privilege” to throw out lawsuits on secrecy grounds, but they made little difference in practice. At the Justice Department’s urging, courts repeatedly dismissed lawsuits by torture victims on grounds of state secrets privilege, qualified immunity, or a lack of a cause of action to sue federal officials.
The Supreme Court had ruled, in 2008, that Guantanamo detainees had the constitutional right to file writs of habeas corpus seeking release from detention. Federal district court judges granted 38 of the 53 Guantanamo habeas petitions they heard from 2008 to the middle of 2010, but the Department of Justice routinely appealed those cases to the D.C. Circuit Court of Appeals. In response, as Jonathan Hafetz explained, the appeals court “upheld detention in nearly every case it has heard and cautioned district judges against examining the government’s allegations too closely.” These decisions, when combined with new congressional restrictions on transferring detainees out of Guantanamo, brought Obama’s efforts to close the prison to a virtual standstill by the end of his first term. (After a detainee hunger strike in 2013, the Obama administration did resume transfers out of Guantanamo, but 40 detainees remain there to this day).
It was extremely harmful for Obama’s Justice Department to adopt the Bush administration’s litigation positions in counterterrorism cases. It would be nothing short of disastrous for Biden’s Justice Department to let the Trump administration’s violations of individual rights escape accountability—particularly in the area of immigration, where violations have been most severe.
The Trump administration has rewritten immigration law through over 400 executive actions. They have separated families; eliminated legal protections for asylum seekers and unaccompanied children through a series of overlapping policy changes; dramatically expanded expedited removal, in which non-citizens can be deported without any form of due process; authorized intrusive DNA surveillance of immigrants and their families, and drastically cut legal immigration. Some of the attacks have been highly visible—above all, the deliberate use of family separation to deter migration. Others, like the Migrant Protection Protocols and the use of the COVID-19 pandemic to justify the expulsion of asylum seekers and unaccompanied children, have been equally devastating but the harm has occurred largely out of view of the U.S. press and public. Still others are equal parts harmful and absurd, like the U.S. Citizenship and Immigration Services policy of rejecting immigrants’ applications if any spaces were left blank—even obviously irrelevant ones, like the addresses of deceased family members.
Unlike when Obama took office, it is up to Biden to dismantle this cruel system Trump has created. By the time Obama came in 2009, the CIA’s black site prisons were largely empty, and the number of men detained at Guantanamo had declined from a peak of 684 detainees to 242. In contrast, almost all of the Trump administration’s immigration policy changes remain in effect. The United States’ system of protection for refugees, asylum seekers, and unaccompanied children has been effectively eliminated. In the words of one expert, “It’s like a tornado passed through, just wreckage everywhere.” Tens of thousands of asylum seekers are stranded south of the U.S.-Mexico border, often in horrible conditions, while they wait indefinitely for court hearings. Another 13,000 unaccompanied children and even more asylum seekers and other migrants have been expelled at the border since the start of the COVID-19 pandemic.
Twenty-one people died in ICE custody in fiscal year 2020—more than double the previous year and the largest total since 2005—and COVID cases in detention are rising again. Even before the pandemic, the medical care provided to immigration detainees was abysmal, unethical, and sometimes fatal. The immigration courts are less independent and more hostile to noncitizens’ requests for protection than ever before. They also face a record backlog of 1.2 million cases.
Lawsuits challenging most of these policy changes are making their way through the courts. So far, immigrants’ advocates have repeatedly convinced federal district and appellate judges to order an end to the Trump administration’s policy changes—only to see those orders stayed by the Supreme Court, usually without explanation. Even before Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg, the Supreme Court upheld the Trump administration’s anti-Muslim travel ban, denied any form of justice to the family of a Mexican teenager killed by the border patrol, and dramatically narrowed immigrants’ rights to habeas corpus and due process at the U.S.-Mexico border.
Early next year, the Supreme Court is due to hear cases on the Migrant Protection Protocols and the Trump administration’s use of military funds to construct sections of a border wall without congressional approval. Other cases challenging the Trump administration’s asylum policies will eventually make their way to the high court as well—and Immigration and Customs Enforcement and Customs and Border Protection officials will likely argue for the Justice Department to defend them.
It is crucial that Biden disregard these calls to defend the Trump administration’s anti-immigrant policies. Instead, he should direct the Justice Department to negotiate fair settlements to restore protections for non-citizens, acknowledge violations of the law by the Trump administration, and provide individuals whose rights were violated some form of redress.
Fact-finding, acknowledgment, and reform
Accountability does not only occur in courtrooms. Some wrongs are too big to fit in a single case, or are not illegal, but still deeply immoral or unethical. There is also a need for official acknowledgment and investigation in order to establish the facts, to name the people who were responsible and recognize those they harmed, and to take action to make sure it cannot happen again.
In 2009, Obama rejected proposals for a truth commission on the war on terror, but he did consent to the public release of the Office of Legal Counsel’s “torture memos” in April 2009 over the objections of the CIA. Obama argued that given he had ended the CIA’s interrogation program, “withholding these memos would only serve to deny facts that have been in the public domain for some time.”
Unfortunately, in the words of a report by the Constitution Project’s Task Force on Detainee Treatment, “the release of the OLC memos with minimal redaction was a high-water mark for the disclosure of evidence [of detainee abuse] that the CIA or military wanted to remain secret.” From 2009 to 2014, the CIA took the position that despite the release of the memos, all of the details about how individual detainees were treated in its custody should remain classified—including detainees’ memories of their own torture.
That finally ended with the release of the Senate Select Committee on Intelligence’s report on the CIA program in 2014. But a longer version of that report remains classified, as do many details about the torture program that have been in the public domain for over a decade. This includes the names of the countries that hosted CIA black sites and the names of CIA personnel who were responsible for torture—including Haspel, whose precise role in the program remains an official secret. This continuing secrecy is one of the main sources of dysfunction in the Guantanamo military commissions, which are still years away from going to trial as we approach the 20th anniversary of Sept.11, 2001.
The Senate report did not lead to prosecutions of torturers, or even professional consequences for them. It didn’t even prevent Haspel’s promotion to CIA director. Former officials continued to defend the CIA’s use of torture. Among the most prominent, former Vice President Dick Cheney, said the report was “full of crap,” and “I’d do it again in a minute.” Public opinion about the use of torture remained divided.
Nonetheless, the report made a difference. The following year, the Senate voted 78-21 in support of an amendment to strengthen the legal prohibition against torture. When victims of CIA torture sued the contractors who designed the program, the case settled before going to trial instead of being dismissed on grounds of state secrets privilege.
Just as importantly, the Senate’s investigation seemed to convince the CIA that violating the laws against torture was not worth it. After the 2008 election, but before Obama took office, then-CIA Director Michael Hayden had demonstrated sanitized versions of several “enhanced interrogation techniques” on a subordinate to try to convince the president-elect to continue authorizing them. By the time Trump announced his support for waterboarding in 2016, Hayden said the CIA would refuse an order to restart the program. Given its experience with “congressional star chambers,” Hayden predicted, the CIA would reply: “if you want somebody waterboarded, bring your own damn bucket.”
Rights abuses by the Trump administration deserve investigations as thorough as the Senate torture report. The Biden administration has announced plans to create a task force to reunite the hundreds of families still broken by family separation (which is considered torture under international law by some experts). Rep. Joaquin Castro (D-Texas) has called for an investigation of family separations by a human rights commission or a congressional select committee. Those are good steps, but family separation is only one of a series of devastating attacks on immigrants overseen by Trump adviser Stephen Miller, who converted an already inhumane and arbitrary system into something much worse. We need to understand the broader picture.
There also should be a thorough investigation of the U.S. government’s woefully inadequate response to the coronavirus pandemic—which has already caused orders of magnitude more deaths than 9/11. An investigation should focus not only on poor decision-making by Trump and his advisers, and missteps by federal agencies and state and local governments, but also on the broader errors and injustices that COVID-19 has laid bare. These include a lack of resources for public health; inequalities that have led to wildly disparate death rates by race and income; the inability to prioritize children’s welfare that has led to a lost year for many vulnerable schoolchildren; and a criminal justice system that has failed to protect incarcerated people’s rights to life or to due process.
There are many different forms factual investigations could take, all with their advantages and disadvantages. One possibility is a special committee authorized by statute. Another is a congressional investigation by a standing or select committee. A third is investigation by entities that already exist within the executive branch, such as inspectors general or civil rights offices. Whatever form investigations take, they need adequate staff and resources, broad access to witnesses and documents guaranteed by the executive branch, and a mandate to publish their findings and recommend all necessary reforms.
The truth may not be enough to free us from a repetition of all the terrible things that have happened in the past four years. But exposing it, and learning from it, is the only hope we have of doing better.