The issue of the Weekly Standard out this morning carries “Liberty and justice for almost all,” a scrupulous critique of the Department of Justice Inspector General report on the September 11 detainees. The article, by University of Minnesota-Duluth Professor Thomas Powers (not to be confused with the journalist of the same name who writes frequently on intelligence issues for the New York Review of Books), is unfortunately not available online to nonsubscribers.
Professor Powers notes that newspaper accounts of the report were based on the six-page press release that accompanied the 198-page report. Consistent with the gist of my reading of the report, Professor Powers states: “While critical of specific aspects of government policy, the report, carefully read, supports no general condemnation of government policy. Instead, it shows an understaffed and overtaxed FBI that put preventing further terrorist attacks ahead of everything else.” He immediately adds (concerning a part of the report I didn’t discuss): “It also makes clear the undeniable and very serious abuse of some detainees (84 out of 762) by prison officials in one institution, the Metropolitan Detention Center (MDC) in Brooklyn, New York.”
While acknowledging the obvious thoroughness and care evident in the report, Professor Powers acutely criticizes the judgment underlying it: “[The] report is good enough that it may, in the long run, be used to reject…false and irresponsible charges [by civil liberties groups]. For one thing, it is, at 198 pages, exhaustive and meticulously researched. But where the report ultimately fails is in a lack of moral courage. The inspector general took the easy way out. While insisting that the FBI should have given higher priority to the clearing of detainees, he made no effort to show whether it could have, given the massive demands placed on the agency in the months following the attacks. More narrowly (but just as important in the short run), the inspector general’s office is to be faulted for the broad condemnatory ‘spin’ present in its own six-page press release. It is not surprising that an overly simple and critical morality tale has already become the prevailing interpretation of the (largely unread) document.”
In my brief piece on the report I focused on the continued holding of detainees pending FBI clearance investigations even after the detainees had received final removal orders or voluntary departure orders. I read the report as condemning this action in what I thought was the most serious charge of wrongdoing made in it. Professor Powers does not read the report as criticizing the government’s “hold until cleared” policy:
“The ‘hold until cleared’ policy was a natural consequence of the government’s broader security concerns in the months following the 9/11 attacks. David Laufman, chief of staff to the deputy attorney general, states the issue with useful simplicity: ‘If we turn one person loose we shouldn’t have, there could be catastrophic consequences.’ In the wake of September 11, the attorney general had publicly stated that law enforcement would be reoriented to put the prevention of terrorist activity above all other concerns.
“Given this broad background of (seemingly uncontroversial) governmental purposes, something like a ‘hold until cleared’ policy is unobjectionable. Indeed, the inspector general’s report never directly calls this formative decision into question and on several occasions explicitly agrees with the attorney general’s ‘understandable abundance of caution.’ But this is a crucial dividing line. If the broad policy of better-safe-than-sorry was sensible, then so was the ‘hold until cleared’ policy. And if this was sensible, then at least some additional delay in the release of detainees was unavoidable.”
The report asserts that the legality of the government’s “hold until cleared” policy had been raised as an issue since soon after 9/11 and that the Department of Justice should have formally considered its legality sooner than it did. Professor Powers does not note that the policy was in fact changed because of concerns about its legality in January 2002. The report states: “We believe the Department’s officials with day-to-day responsibility for detention issues should not have missed the fact that continuend detention of aliens who had final orders presented an important legal issue. Further, we believe that the Department should have squarely addressed this issue, well before the end of January 2002 when the policy was changed.”
The report notes that the Department of Justice’s Office of Legal Counsel rendered a formal legal opinion (upholding the validity of the policy) in February 2003 and that a pending lawsuit addresses the issue. The report does not itself expressly take a position on the legality of the policy; it can be read as limiting itself to criticizing the Department of Justice for not having considered the issue sooner than it did.
I read the report, in light of the Department’s subsequent change in policy, as making a significant criticism of the Department. If the report is merely criticizing the Department’s failure to consider sooner the legality of a policy that is in fact legal, the criticism is remarkable only for its triviality.
Professor Powers focuses on the report’s criticism of the average length — 80 days — of the FBI’s clearance investigations. On this point, Professor Powers criticizes the report for failing to come to grips with delays caused by the FBI’s manpower shortages in light of the enormous increase in its workload in the immediate aftermath of 9/11: “Was the 80-day delay avoidable? Strictly speaking the answer is of course yes. If the FBI had assigned more agents to clearing detainees they would have been cleared faster. But the inspector general’s report has not done the kind of full analysis needed to justify the broad criticisms it makes of the FBI’s performance. For example, it makes no attempt to analyze authoritatively the FBI manpower situation.”
Professor Powers also briefly considers the treatment of the detainees. Without going into the details considered by Professor Powers, it should be noted that his conclusion is that “the vast majority of detainees were well treated.”
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