The Economist

Torture, long a moral stain, is now hindering intelligence services’ attempts to fight terrorism

SPEND time with spies on either side of the Atlantic—and you will discover that they are worried. That is partly because their profession, already sullied in recent years, may be hit by more bad news. In Europe the ordeal has already begun: an officer in Britain’s MI5 is under police investigation, and prosecutors in Italy, Germany and Spain are looking at cases linked to the CIA’s actions. In America, the centre of the problem, the spooks are preparing themselves for an onslaught that could be as bad as anything since the Church commission in the 1970s. There are hints of criminal investigations against CIA officials and a battery of lawsuits—to extract information and to claim compensation. But for the leading spymasters, there is an even bigger worry: they are finding it increasingly hard to do their jobs properly (see article).

 The reason for all this? Torture. In the aftermath of the attacks on September 11th 2001, it became widely fashionable—in allegedly liberal parts of American academia as well as Dick Cheney’s office—to argue that torture was a necessary part of democracy’s defence. In fact, those who fought against that pernicious argument, including this newspaper, possibly underestimated our case. For all its short-term uses (both claimed and, alas, real), torture has always been illegal and immoral, and ultimately counter-productive too. Long before Abu Ghraib, it was obvious that it would create terrorists as well as help capture them. But the extent to which torture would corrode the West’s security networks that are supposed to fight terrorism is only now becoming clearer.

Torture throws sand into the gears of intelligence. At first harsh interrogation may well yield information, both valuable and valueless. But over time it chokes the defences of democratic societies, because their courts and political systems cannot digest it. The work of Western intelligence is becoming gummed up with legal protocol. More information has to be vetted by lawyers before being passed on. America has warned Britain that intelligence-sharing will be curtailed if its secrets are divulged in court. Equally, many worry about what will emerge in American proceedings. The first lesson of the September 11th attacks was that intelligence agencies have to work more closely; “need to know” had to yield to “need to share”. These days, alas, it has become “need to get a lawyer”.

Would you tip off Pakistan?

Fighting a global network like al-Qaeda requires a global network of intelligence agencies. The information they swap should remain confidential, so as to protect sources and (legitimate) methods. But if judges, elected politicians and voters do not have confidence in their spooks, the system unravels.

The task is to restore trust. But how? In America Barack Obama moved quickly to ban the most abusive methods of interrogation and promised to shut the detention centre at Guantánamo Bay. He released four Bush-era memos which had twisted legal doctrine until it proved that CIA interrogators could simulate drowning, among other techniques, without turning themselves into torturers.

Mr Obama’s stand against torture is a start. But the president and senior Republicans should reconsider their resistance to a “truth commission”, which could offer some immunity from prosecution to those who speak openly. An investigation would disrupt the intelligence services—but less than lengthy court battles, which would fail to stop revelations yet still leave a suspicion that wrongdoing remains hidden.

The third step is to be readier to prosecute terrorists for their crimes. The struggle against terrorism will be long; in a democracy methods have to be sustainable. Legal process is not a luxury for good times, but a tool to rob terrorists of legitimacy and show that locking them up is justified. That way those who share the terrorists’ religion or race are less likely to be silent accomplices. More could act as sources themselves.

Fighting terrorism will always be messy. Sometimes you have intelligence about an attack, but not enough evidence confidently to make an arrest; yet you don’t have the luxury of being able to wait. Western spies inevitably have to work with the secret police of Pakistan, Egypt and others who often abuse prisoners, but also have more access to jihadists than the West ever could. Here, co-operation is a matter of wary judgment, not absolutes. For the West to refuse to deal with such countries would be as wrong as for it to put its agents in rooms where electrodes touch flesh. In between, lies the murky territory in which the West must not only trade intelligence, but must also seek assurances that people are not being abused. Ultimately, if those assurances are broken, the West will have to limit its co-operation with abusive intelligence agencies—even if that might make information harder to get. Do not forget, though, that al-Qaeda has been unable to attack America since 2001 and Europe since 2005. That is in large part thanks to legitimate intelligence co-operation, not torture.

New York Times

William Glaberson

WASHINGTON — The Obama administration released six Guantánamo detainees to other countries on Thursday, including four Chinese Muslims whose cases drew wide attention as the president has struggled to meet his goal of closing the prison by January.

The day’s events were the biggest steps the administration has taken toward that goal. But the moves did not address central questions, including whether political pressure had made the administration back away from meeting the demand of some countries that the United States accept some prisoners for resettlement to gain their cooperation in accepting others.

The Chinese prisoners, from the largely Muslim Uighur region of western China, arrived in Bermuda early in the day and expressed relief at their first taste of freedom in more than seven years.

“Today you have let freedom ring,” one of the Uighur men, Abdul Nasser, said in a statement thanking the Bermudans. In a long legal fight, a federal appeals court had ridiculed as inadequate the government’s evidence against one of the men and the Bush administration had conceded that none of the 17 Uighurs held at Guantánamo were enemy combatants.

Two other detainees, an Iraqi and a Chadian, were released Thursday to their countries. There were indications that the United States was close to releasing a few other detainees as well.

On top of Thursday’s departures there were numerous other signs of the aggressive diplomacy on Guantánamo that has taken place largely out of public view since President Obama was inaugurated.

European countries moved Thursday toward cooperating with one another to work with the Obama administration in evaluating other detainees for possible resettlement there. There have also been recent signs that the administration is increasingly hopeful of persuading Saudi Arabia to accept some of the 96 Yemeni detainees who remain at the prison camp.

Earlier this week the Pacific nation of Palau said it, too, would accept some of the Uighur prisoners, though it was not clear if it would take all of the 13 remaining men.

The developments amounted to more movement than there had been in a long time on closing the prison in Guantánamo Bay, Cuba, a seemingly intractable issue for two administrations, said Ken Gude, a specialist on detention issues at the Center for American Progress in Washington.

“This is ‘closing Guantánamo.’ This is what it looks like,” Mr. Gude said.

President George W. Bush long said he wanted to close the prison but could not overcome the considerable difficulties of where to send the men and how to assure American security.

On his second day in office, Mr. Obama committed to closing the prison within a year. After the releases on Thursday, there were 232 detainees.

But the recent events also underscored the challenges that remain.

After the departures from Guantánamo became public on Thursday, American critics of the administration accused the president of releasing terrorists.

In addition, a spokesman for the Foreign Ministry of China, which has long demanded the return of the Uighurs, called the four men in Bermuda terrorist suspects and asserted that the United States was ignoring international law by failing to turn them over to China. American officials have said for years that they could not return the Uighurs to China for fear of persecution or execution.

Bermuda’s acceptance of the men even brought unusual turbulence between it, a British territory, and Britain itself. The British government, which has control over Bermuda’s foreign policy, issued a terse statement indicating that Bermuda’s premier, Ewart F. Brown, did not advise it that Bermuda was planning to take the detainees.

The British statement said it would “carry out a security assessment of the men.” The statement added, “We have underlined to the Bermuda government that it should have consulted the U.K.”

Lawyers for the Iraqi who was released, Jawad Jabbar Sadkhan al-Sahlani, said he was an innocent man caught in the net of Guantánamo, an assertion that focused attention on disputes over the isolated prison that the Obama administration is trying to push into the past.

The criticism from at home and the intensity of the reactions abroad illustrate the challenges the Obama administration faces in closing Guantánamo, detention policy experts said.

They said the recent moves raised new questions about the administration’s strategy for closing the prison. Indications that the administration had negotiated with other countries to accept perhaps all of the 17 Uighurs made it appear that it had backed down in the face of intense political pressure in Congress and around the country from what had seemed to be its plan to resettle some of the Uighurs in the United States, the experts said.

Sarah E. Mendelson, at the Center for Strategic and International Studies in Washington, said that there had been an understanding across the political spectrum that the Uighurs, enemies of China whose terrorism ties were sharply disputed, were the least controversial detainees to bring into the United States for potential release.

If the Obama administration has no plans to accept any detainees, Ms. Mendelson said, other countries are likely to ask, “Why are you asking us to do this if you are not willing to?”

Andrew Jacobs contributed reporting from Beijing, Judy Dempsey from Berlin and Sharon Otterman from New York.

New York Times

William Glaberson

A Pentagon report requested by President Obama on the conditions at the Guantánamo Bay detention center concluded that the prison complies with the humane-treatment requirements of the Geneva Conventions. But it makes recommendations for improvements including increasing human contact for the prisoners, according to two government officials who have read parts of it.

The review, requested by Mr. Obama on his second day in office, is to be delivered to the White House next week.

The president’s request, made as part of a plan to close the prison within a year, was widely seen as an effort to defuse accusations that there were widespread abuses at Guantánamo, and that many detainees were suffering severe psychological effects after years of isolation.

The report, by Adm. Patrick M. Walsh, the vice chief of naval operations, describes steps that could be taken to allow detainees to speak to one another more often and to engage in group activities, the government officials said. For years, critics have said that many detainees spend as many as 23 hours a day within the confines of cement cells and often were allowed to exercise alone in fenced-off outdoor pens.

The report is being presented to a White House that some government officials have described as caught off-guard by the extreme emotions and political crosscurrents provoked by its plan to close the Guantánamo prison. Some critics said the report’s conclusions could intensify the debate about the prison, and put the Obama White House for the first time in the position of defending it.

The report came as officials separately said on Friday that the Obama administration had decided on the transfer of the first Guantánamo detainee since the president took office, a former British resident, Binyam Mohamed. Lawyers for Mr. Mohamed had drawn wide attention with accusations that he was tortured in Morocco on instructions from American intelligence agencies.

Mr. Mohamed, who is to be returned to Britain, was originally charged with plotting to detonate a radioactive “dirty bomb” inside the United States. But the Pentagon official in charge of the Bush administration’s military commission system for conducting war-crimes trials dismissed those charges in October.

Also on Friday, Attorney General Eric H. Holder Jr. announced the creation of a task force to begin reviewing the cases of the remaining 245 detainees. The group, which is to include representatives of military, intelligence and other agencies, is to be led by a career federal prosecutor, Matthew G. Olsen, who has been a senior Justice Department lawyer dealing with national security issues.

The administration’s plan to close Guantánamo includes a new effort to decide whether detainees can be released, transferred to the custody of other countries or prosecuted. In the report on the conditions at Guantánamo, Admiral Walsh reviewed many accusations of abuse that critics have made about the prison, said one Pentagon official who has seen the report.

The report concluded that the Pentagon was in compliance with the requirements of the Geneva Conventions. The review included some of the most contentious issues, including the forced feeding of hunger-striking detainees and claims that many prisoners were suffering from psychosis as a result of conditions in the detention center.

According to one official, the report noted that some detainees had difficulty communicating from cell to cell, a contention that many detainees’ lawyers have also made. The Pentagon has long insisted that no detainees are held in solitary confinement. Military officials have said instead that the prisoners are held in “single-occupancy cells.”

Some Pentagon officials have continued to press the case that the Bush administration’s approach to detainee issues — and the Guantánamo Bay prison itself — should not be abandoned. The report is likely to accelerate that behind-the-scenes struggle.

The White House had no comment Friday.

One Pentagon official, speaking on the condition of anonymity because of the sensitivities involved in challenging the White House plan to close the prison, argued that the report showed that the Bush administration had created a humane detention camp. Speaking of the remaining detainees, this official said the report showed that if the men were moved, they might “go from a humane environment to a less humane environment.”

Critics of the Guantánamo Bay detention center, which is on the grounds of the American naval base at the eastern end of Cuba, have been preparing for Admiral Walsh’s report. They said they were concerned that the new administration would use it to avoid major alterations to the Guantánamo detention camp during its final year.

Gitanjali Gutierrez, a lawyer for Guantánamo detainees at the Center for Constitutional Rights, said that she and other lawyers found that conditions have remained bleak since the start of the new administration.

Ms. Gutierrez said that a report by the rights center, to be released next week, asserts that two major Guantánamo prison buildings, known as Camp 5 and Camp 6, should be closed immediately. She said prisoners there continue to be held in isolation for as long as 24 hours a day, that psychological difficulties are treated as disciplinary infractions, and that many cells are windowless.

Ms. Gutierrez said detention camp officials have recently increased detainees’ opportunities for recreation and social interaction. She said detainees’ lawyers have been concerned that some of those moves were in anticipation of visits now being made by senior members of the new administration. The attorney general is to visit Monday.

“This is really running the risk that the review is just a big whitewash,” Ms. Gutierrez added, “and we expect more of the new administration.”

New York Times

Noah Feldman

Cambridge, Mass.

Has the Obama administration changed the legal rules for detaining suspects in the war on terrorism, or is it continuing in the footsteps of the Bush administration?

We got a clue last week when the Justice Department filed an important document “refining” the government’s position in lawsuits over those held at Guantánamo Bay. Hailed by supporters as a leap forward, yet criticized by human rights groups as being little different from what came before, the filing reveals a distinctive approach to constitutional law. Cautious and modest where George W. Bush was ambitious and brash, Mr. Obama still claims the authority necessary to sustain almost everything his predecessor did.

Perhaps what’s most important here is what Mr. Obama’s lawyers do not say. The Bush White House long insisted that the president had inherent power as commander in chief to do whatever it took to defend the country — including overriding American and international law. The Obama filing, however, is silent on the topic of inherent executive power. Indeed, the magic words “commander in chief” never even appear.

Technically, the Obama lawyers have not abandoned the argument for broad presidential power, just implied that such authority is unnecessary to get them what they want.

Yet omitting the claim to unfettered executive authority shows respect for Congress and international standards. In effect, the Obama administration is saying to the courts that if the detainees cannot be held as a matter of federal or international law, judges should release them. This approach is brave — so brave it might even prove foolhardy if the courts, sick of nearly a decade of detention, decide to clear the decks.

The filing argues that the authorization for the use of military force passed by Congress after 9/11 — the contemporary equivalent of a declaration of war — gives the president the powers any sovereign would have under the general principles of the international law of war. Relying on international law to make sense of Congress’s grant of power has deep roots in our constitutional tradition.

In the context of America’s present global military posture, however, the rediscovery of this notion is little short of astonishing. The laws of war, mostly designed for old-fashioned struggles between sovereign states, often do not fit today’s circumstances. The Bush administration saw this mismatch as an occasion to treat the Geneva conventions as “quaint” (in the words of Alberto Gonzales, the former White House counsel).

The Obama lawyers, however, seem to believe that the international law of war is flexible enough to serve their interests — and even to expand the president’s power to detain suspects beyond the strict language used by Congress when it gave President Bush authority to carry out his war on terrorism.

Here is where the law gets complicated: In 2001, Congress told the president he could make war on anyone who had “planned, authorized, committed or aided” the Sept. 11 attacks. The Bush administration, though, went further; it claimed the power to detain any “enemy combatant,” defined to include “anyone who is part of or supporting Taliban or Al Qaeda forces or associated forces.” In an unfortunate legal overreach, one administration lawyer said the government could detain a “little old lady in Switzerland” whose donation to an Afghan orphanage ended up in the hands of Al Qaeda.

In place of the “enemy combatant” definition, the Obama administration now claims the right to detain anyone who “substantially supported” terrorists. Thankfully, the Obama standard would free the little old Swiss lady. But the words “substantial support” do not come from international law any more than Bush’s “enemy combatant” did.

The administration lawyers suggest in their brief that “substantial support” of terrorists could be defined by some unspecified analogy to the laws of detention in traditional armed conflict. Yet the details are left to the imagination; and when push comes to shove, this language might well include all the Guantánamo detainees, including those who never belonged to a terrorist group.

The upshot is that the Obama approach is potentially broad enough to continue detaining everyone whom the Bush administration put in Guantánamo in the first place. The legal theories are subtler, and the reliance on international law may prove more attractive to our allies. But President Obama is stuck with the detainees Mr. Bush left him, and some may pose a real danger. Faced with this conundrum, and pressed for answers by judges who are rightfully impatient, the administration is hurrying to reframe existing powers in new legal doctrines.

The true test of whether Mr. Obama has improved on the Bush era lies in how his administration justifies its decisions on the 241 remaining Guantánamo detainees, whose cases will now be evaluated internally and reviewed by the courts. If the new legal arguments actually affect who goes free and who stays in custody, then they will amount to meaningful change. Without real-world effects, though, even the most elegant new legal arguments are nothing but words.

Noah Feldman is a law professor at Harvard, a fellow at the Council on Foreign Relations and a contributing writer to The Times Magazine.

New York Times

Mark Mazzetti and William Glaberson

WASHINGTON — President Obama signed executive orders Thursday directing the Central Intelligence Agency to shut what remains of its network of secret prisons and ordering the closing of the Guantánamo detention camp within a year, government officials said.

The orders, which are the first steps in undoing detention policies of former President George W. Bush, rewrite American rules for the detention of terrorism suspects. They require an immediate review of the 245 detainees still held at the naval base in Guantánamo Bay, Cuba, to determine if they should be transferred, released or prosecuted.

And the orders bring to an end a Central Intelligence Agency program that kept terrorism suspects in secret custody for months or years, a practice that has brought fierce criticism from foreign governments and human rights activists. They will also prohibit the C.I.A. from using coercive interrogation methods, requiring the agency to follow the same rules used by the military in interrogating terrorism suspects, government officials said.

But the orders leave unresolved complex questions surrounding the closing of the Guantánamo prison, including whether, where and how many of the detainees are to be prosecuted. They could also allow Mr. Obama to reinstate the C.I.A.’s detention and interrogation operations in the future, by presidential order, as some have argued would be appropriate if Osama bin Laden or another top-level leader of Al Qaeda were captured.

The new White House counsel, Gregory B. Craig, briefed lawmakers about some elements of the orders on Wednesday evening. A Congressional official who attended the session said Mr. Craig acknowledged concerns from intelligence officials that new restrictions on C.I.A. methods might be unwise and indicated that the White House might be open to allowing the use of methods other than the 19 techniques allowed for the military.

Details of the directive involving the C.I.A. were described by government officials who insisted on anonymity so they could not be blamed for pre-empting a White House announcement. Copies of the draft order on Guantánamo were provided by people who have consulted with Mr. Obama’s transition team and requested anonymity for the same reason.

In remarks prepared for delivery at his confirmation hearings to become director of national intelligence in the Obama administration, Dennis C. Blair, a retired admiral with a long background in intelligence, endorsed the new approach and promised to enforce it rigorously. “It is not enough to set a standard and announce it,” he said.

“I believe strongly that torture is not moral, legal or effective,” he told the Senate Select Committee on Intelligence. “Any program of detention and interrogation must comply with the Geneva Conventions, the Conventions on Torture, and the Constitution. There must be clear standards for humane treatment that apply to all agencies of U.S. Government, including the Intelligence Community,” his written statement said.

As for closing Guantanamo, he said that would take time but must be done because it has become “a damaging symbol to the world.”

“It is a rallying cry for terrorist recruitment and harmful to our national security, so closing it is important for our national security,” Admiral Blair’s statement said.

“The guiding principles for closing the center should beprotecting our national security, respecting the Geneva Conventions and the rule of law, and respecting the existing institutions of justice in this country. I also believe we should revitalize efforts to transfer detainees to their countries of origin or other countries whenever that would be consistent with these principles. Closing this center and satisfying these principles will take time, and is the work of many departments and agencies.”

The executive order on interrogations is certain to be received with some skepticism at the C.I.A., which for years has maintained that the military’s interrogation rules are insufficient to get information from senior Qaeda figures like Khalid Sheikh Mohammed. The Bush administration asserted that the harsh interrogation methods were instrumental in gaining valuable intelligence on Qaeda operations.

The intelligence agency built a network of secret prisons in 2002 to house and interrogate senior Qaeda figures captured overseas. The exact number of suspects to have moved through the prisons is unknown, although Michael V. Hayden, the departing director of the agency, has in the past put the number at “fewer than 100.”

The secret detentions brought international condemnation, and in September 2006, President Bush ordered that the remaining 14 detainees in C.I.A. custody be transferred to Guantánamo Bay and tried by military tribunals.

But Mr. Bush made clear then that he was not shutting down the C.I.A. detention system, and in the last two years, two Qaeda operatives are believed to have been detained in agency prisons for several months each before being sent to Guantánamo.

A government official said Mr. Obama’s order on the C.I.A. would still allow its officers abroad to temporarily detain terrorism suspects and transfer them to other agencies, but would no longer allow the agency to carry out long-term detentions.

Since the early days after the 2001 attacks, the intelligence agency’s role in detaining terrorism suspects has been significantly scaled back, as has the severity of interrogation methods the agency is permitted to use. The most controversial practice, the simulated drowning technique known as water-boarding, was used on three suspects but has not been used since 2003, C.I.A. officials said.

But at the urging of the Bush administration, Congress in 2006 authorized the agency to continue using harsher interrogation methods than those permitted for use by other agencies, including the military. Those exact methods remain classified. The order on Guantánamo says that the camp, which received its first hooded and chained detainees seven years ago this month, “shall be closed as soon as practicable, and no later than one year from the date of this order.”

The order calls for a cabinet-level panel to grapple with issues including where in the United States prisoners might be moved and what courts they could be tried in. It also provides for a new diplomatic effort to transfer some of the remaining men, including more than 60 that the Bush administration had cleared for release.

The order also directs an immediate assessment of the prison itself to ensure that the men are held in conditions that meet the humanitarian requirements of the Geneva Convention. That provision appeared to be a pointed embrace of the international treaties that the Bush administration often argued did not apply to detainees captured in the war against terrorism.

The seven years of the detention camp have included four suicides, hunger strikes by scores of detainees, and accusations of extensive use of solitary confinement and abusive interrogations, which the Department of Defense has long denied. Last week a senior Pentagon official said she had concluded that interrogators at Guantánamo had tortured one detainee, who officials have said was a would-be “20th hijacker” in the attacks of Sept. 11, 2001.

The report of Thursday’s announcement came after the new administration late Tuesday night ordered an immediate halt to the military commission proceedings for prosecuting detainees at Guantánamo and filed a request in Federal District Court in Washington to stay habeas corpus proceedings there. Government lawyers described both delays as necessary for the administration to make a broad assessment of detention policy.

The cases immediately affected include those of five detainees charged as the coordinators of the 2001 attacks, including the case against Mr. Mohammed, the self-described mastermind.

The decision to stop the commissions was described by the military prosecutors as a pause in the war-crimes system “to permit the newly inaugurated president and his administration time to review the military commission process generally and the cases currently pending before the military commissions, specifically.”

More than 200 detainees’ habeas corpus cases have been filed in federal court, and lawyers said they expected that all of the cases would be stayed.

Mr. Obama had suggested in the campaign that, in place of military commissions, he would prefer prosecutions in federal courts or, perhaps, in the existing military justice system, which provides legal guarantees similar to those of American civilian courts.

Some human rights groups and lawyers for detainees said they were concerned about the one-year timetable. “It only took days to put these men in Guantánamo; it shouldn’t take a year to get them out,” said Vincent Warren, the executive director of the Center for Constitutional Rights in New York, which has coordinated detainees’ lawyers.

But several groups that had criticized the Bush administration’s policies applauded the rapid moves by the new administration. Mr. Obama’s actions “reaffirmed American values and are a ray of light after eight long, dark years,” said Anthony D. Romero, executive director of the American Civil Liberties Union.

Mark Mazzetti reported from Washington, and William Glaberson from New York. Carl Hulse contributed reporting from Washington.

TRANSCRIPT

Following is the transcript of President Barack Obama’s Inaugural Address, as transcribed by CQ Transcriptions:

PRESIDENT BARACK OBAMA: Thank you. Thank you.

CROWD: Obama! Obama! Obama! Obama!

My fellow citizens: I stand here today humbled by the task before us, grateful for the trust you have bestowed, mindful of the sacrifices borne by our ancestors.

I thank President Bush for his service to our nation…

(APPLAUSE)

… as well as the generosity and cooperation he has shown throughout this transition.

Forty-four Americans have now taken the presidential oath.

The words have been spoken during rising tides of prosperity and the still waters of peace. Yet, every so often the oath is taken amidst gathering clouds and raging storms. At these moments, America has carried on not simply because of the skill or vision of those in high office, but because We the People have remained faithful to the ideals of our forebears, and true to our founding documents.

So it has been. So it must be with this generation of Americans.

That we are in the midst of crisis is now well understood. Our nation is at war against a far-reaching network of violence and hatred. Our economy is badly weakened, a consequence of greed and irresponsibility on the part of some but also our collective failure to make hard choices and prepare the nation for a new age.

Homes have been lost, jobs shed, businesses shuttered. Our health care is too costly, our schools fail too many, and each day brings further evidence that the ways we use energy strengthen our adversaries and threaten our planet.

These are the indicators of crisis, subject to data and statistics. Less measurable, but no less profound, is a sapping of confidence across our land; a nagging fear that America’s decline is inevitable, that the next generation must lower its sights.

Today I say to you that the challenges we face are real, they are serious and they are many. They will not be met easily or in a short span of time. But know this America: They will be met.

(APPLAUSE)

On this day, we gather because we have chosen hope over fear, unity of purpose over conflict and discord.

On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn-out dogmas that for far too long have strangled our politics.

We remain a young nation, but in the words of Scripture, the time has come to set aside childish things. The time has come to reaffirm our enduring spirit; to choose our better history; to carry forward that precious gift, that noble idea, passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness.

(APPLAUSE)

In reaffirming the greatness of our nation, we understand that greatness is never a given. It must be earned. Our journey has never been one of shortcuts or settling for less.

It has not been the path for the faint-hearted, for those who prefer leisure over work, or seek only the pleasures of riches and fame.

Rather, it has been the risk-takers, the doers, the makers of things — some celebrated, but more often men and women obscure in their labor — who have carried us up the long, rugged path towards prosperity and freedom.

For us, they packed up their few worldly possessions and traveled across oceans in search of a new life. For us, they toiled in sweatshops and settled the West, endured the lash of the whip and plowed the hard earth.

For us, they fought and died in places Concord and Gettysburg; Normandy and Khe Sanh.

Time and again these men and women struggled and sacrificed and worked till their hands were raw so that we might live a better life. They saw America as bigger than the sum of our individual ambitions; greater than all the differences of birth or wealth or faction.

This is the journey we continue today. We remain the most prosperous, powerful nation on Earth. Our workers are no less productive than when this crisis began. Our minds are no less inventive, our goods and services no less needed than they were last week or last month or last year. Our capacity remains undiminished. But our time of standing pat, of protecting narrow interests and putting off unpleasant decisions — that time has surely passed.

Starting today, we must pick ourselves up, dust ourselves off, and begin again the work of remaking America.

(APPLAUSE)

For everywhere we look, there is work to be done.

The state of our economy calls for action: bold and swift. And we will act not only to create new jobs but to lay a new foundation for growth.

We will build the roads and bridges, the electric grids and digital lines that feed our commerce and bind us together.

We will restore science to its rightful place and wield technology’s wonders to raise health care’s quality…

(APPLAUSE)

… and lower its costs.

We will harness the sun and the winds and the soil to fuel our cars and run our factories. And we will transform our schools and colleges and universities to meet the demands of a new age.

All this we can do. All this we will do.

Now, there are some who question the scale of our ambitions, who suggest that our system cannot tolerate too many big plans. Their memories are short, for they have forgotten what this country has already done, what free men and women can achieve when imagination is joined to common purpose and necessity to courage.

What the cynics fail to understand is that the ground has shifted beneath them, that the stale political arguments that have consumed us for so long, no longer apply.

MR. The question we ask today is not whether our government is too big or too small, but whether it works, whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified.

Where the answer is yes, we intend to move forward. Where the answer is no, programs will end.

And those of us who manage the public’s dollars will be held to account, to spend wisely, reform bad habits, and do our business in the light of day, because only then can we restore the vital trust between a people and their government.

Nor is the question before us whether the market is a force for good or ill. Its power to generate wealth and expand freedom is unmatched.

But this crisis has reminded us that without a watchful eye, the market can spin out of control. The nation cannot prosper long when it favors only the prosperous.

The success of our economy has always depended not just on the size of our gross domestic product, but on the reach of our prosperity; on the ability to extend opportunity to every willing heart — not out of charity, but because it is the surest route to our common good.

(APPLAUSE)

As for our common defense, we reject as false the choice between our safety and our ideals.

Our founding fathers faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations.

Those ideals still light the world, and we will not give them up for expedience’s sake.

And so, to all other peoples and governments who are watching today, from the grandest capitals to the small village where my father was born: know that America is a friend of each nation and every man, woman and child who seeks a future of peace and dignity, and we are ready to lead once more.

(APPLAUSE)

Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with the sturdy alliances and enduring convictions.

They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use. Our security emanates from the justness of our cause; the force of our example; the tempering qualities of humility and restraint.

We are the keepers of this legacy, guided by these principles once more, we can meet those new threats that demand even greater effort, even greater cooperation and understanding between nations. We’ll begin to responsibly leave Iraq to its people and forge a hard- earned peace in Afghanistan.

With old friends and former foes, we’ll work tirelessly to lessen the nuclear threat and roll back the specter of a warming planet.

We will not apologize for our way of life nor will we waver in its defense.

And for those who seek to advance their aims by inducing terror and slaughtering innocents, we say to you now that, “Our spirit is stronger and cannot be broken. You cannot outlast us, and we will defeat you.”

(APPLAUSE)

For we know that our patchwork heritage is a strength, not a weakness.

We are a nation of Christians and Muslims, Jews and Hindus, and nonbelievers. We are shaped by every language and culture, drawn from every end of this Earth.

And because we have tasted the bitter swill of civil war and segregation and emerged from that dark chapter stronger and more united, we cannot help but believe that the old hatreds shall someday pass; that the lines of tribe shall soon dissolve; that as the world grows smaller, our common humanity shall reveal itself; and that America must play its role in ushering in a new era of peace.

To the Muslim world, we seek a new way forward, based on mutual interest and mutual respect.

To those leaders around the globe who seek to sow conflict or blame their society’s ills on the West, know that your people will judge you on what you can build, not what you destroy.

To those…

(APPLAUSE)

To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history, but that we will extend a hand if you are willing to unclench your fist.

(APPLAUSE)

To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds.

And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to the suffering outside our borders, nor can we consume the world’s resources without regard to effect. For the world has changed, and we must change with it.

As we consider the road that unfolds before us, we remember with humble gratitude those brave Americans who, at this very hour, patrol far-off deserts and distant mountains. They have something to tell us, just as the fallen heroes who lie in Arlington whisper through the ages.

We honor them not only because they are guardians of our liberty, but because they embody the spirit of service: a willingness to find meaning in something greater than themselves.

And yet, at this moment, a moment that will define a generation, it is precisely this spirit that must inhabit us all.

For as much as government can do and must do, it is ultimately the faith and determination of the American people upon which this nation relies.

It is the kindness to take in a stranger when the levees break; the selflessness of workers who would rather cut their hours than see a friend lose their job which sees us through our darkest hours.

It is the firefighter’s courage to storm a stairway filled with smoke, but also a parent’s willingness to nurture a child, that finally decides our fate.

Our challenges may be new, the instruments with which we meet them may be new, but those values upon which our success depends, honesty and hard work, courage and fair play, tolerance and curiosity, loyalty and patriotism — these things are old.

These things are true. They have been the quiet force of progress throughout our history.

What is demanded then is a return to these truths. What is required of us now is a new era of responsibility — a recognition, on the part of every American, that we have duties to ourselves, our nation and the world, duties that we do not grudgingly accept but rather seize gladly, firm in the knowledge that there is nothing so satisfying to the spirit, so defining of our character than giving our all to a difficult task.

This is the price and the promise of citizenship.

This is the source of our confidence: the knowledge that God calls on us to shape an uncertain destiny.

This is the meaning of our liberty and our creed, why men and women and children of every race and every faith can join in celebration across this magnificent mall. And why a man whose father less than 60 years ago might not have been served at a local restaurant can now stand before you to take a most sacred oath.

(APPLAUSE)

So let us mark this day in remembrance of who we are and how far we have traveled.

In the year of America’s birth, in the coldest of months, a small band of patriots huddled by dying campfires on the shores of an icy river.

The capital was abandoned. The enemy was advancing. The snow was stained with blood.

At a moment when the outcome of our revolution was most in doubt, the father of our nation ordered these words be read to the people:

“Let it be told to the future world that in the depth of winter, when nothing but hope and virtue could survive, that the city and the country, alarmed at one common danger, came forth to meet it.”

America, in the face of our common dangers, in this winter of our hardship, let us remember these timeless words; with hope and virtue, let us brave once more the icy currents, and endure what storms may come; let it be said by our children’s children that when we were tested we refused to let this journey end, that we did not turn back nor did we falter; and with eyes fixed on the horizon and God’s grace upon us, we carried forth that great gift of freedom and delivered it safely to future generations.

Thank you. God bless you.

(APPLAUSE)

And God bless the United States of America.

(APPLAUSE)

June 11th, 2009

Revelations of barbarism performed in the name of the War on Terror by those working for the United States government has breached new boundaries of selfhood in our liberal democracy. Of course, tortures have been a staple of humanity, whether performed within the public sphere of the state or the private intimacies of a domestic domain. But the media proliferation of these acts haunts our consciousness in a distinctive 2009 way. Five years since the Abu Ghraib photographs came to light, there is another battle with a different President to release similar images that could be called Abu Ghraib Two. Although the sources for these techniques are varied, the abuses that continue in United States prisons must certainly be one such “inspiration.” Just this past year, New York State has finally passed legislation to reduce–but not to completely eliminate–the common punishment of placing severely mentally ill prisoners in solitary confinement in six by nine foot “boxes,” with the possibility of an enhanced penalty of reducing all nourishment to only a food called “the loaf,” flour mixed with vegetables such as cabbage or potatoes. Such practices may be allowed to continue until this law takes full effect in July 2011 [1].

As the options for abuse of those deemed our possible enemies has become ever more visible in the United States, we learned in mid-May that a majority of citizens no longer support a women’s right to terminate a pregnancy. Or so it seemed during the several day minor media blitz featuring one Gallup Poll. Whether this is a true indicator of public opinion on the sovereignty of the self for women is suspect, given that this was one poll (with a pool of some 1,000 participants) and its prominence was no doubt linked to pro-choice President Obama’s commencement speech at Catholic Notre Dame that same week [2]. A more disturbing assault of women’s bodies was the 2007 Supreme Court decision, Gonzalez v. Carhart, that deemed criminal the use of the late term abortion procedure “Dilation and Extraction,” even if it was diagnosed as necessary for the women’s health or to save her life [3]. Although D&X total only .17% of all abortions in the U.S, this decision marks an alarming precedent in that the Supreme Court places the health and life of the woman as a secondary consideration. As I prepare this essay to go to press, I have just learned that George Tiller—one of the few doctors in the U.S. who provided third term abortions for women whose life or health was at risk—has just been shot dead while serving as an usher at his Lutheran church [4].

These selective and disparate examples of assaults on the limits of our bodies and sense of self may push the boundaries of definitions of “intimacy” and “normalization of body intrusion in public space” that are the themes of this inaugural issue. But they are just several of so many such indicators that comprise what could be described as a generalized consciousness of our selves as physical, physic and emotional beings during what until recently was called the age of the War on Terror.

Given these dramatic, on-going and highly visible incursions into our intimate, personal “space,” a visit to the Museum of Modern Art offers a dramatically different experience of our bodies and our selves, one that is perhaps best described as delusional.

In 2004 the Museum opened its redesigned building, which was directed by architect Yoshio Taniguchi [5]. As a counter to what was seen by some as Frank Gehry’s hyperbolic Bilbao and a trend for “intrusive” museum buildings, Taniguchi reportedly summarized his vision with this line:

“If you raise a lot of money, I will give you great, great architecture. But if you raise really a lot of money, I will make the architecture disappear” [6].

And for most reviewers of the New MoMA, the architecture did seem to disappear, as the title of John Updike’s much read New Yorker article, “Invisible Cathedral,” attests. But despite of the glass façade facing the garden, and the glimpses of the city seen through apertures and windows, the most overpowering vista—seen in enhanced scale—throughout the building were brilliantly white walls. The dominance of this feature secured the sense of separation of the museum interior from anything exterior to it. These massive white walls also provided a seemingly neutral decontextualized terrain for everything installed within them. This was exemplified by the predicament of Monet’s Water Lillies. Previously installed in a domestic scale, semi-circular interior, this installation was one of the treasures of the “Old MoMA.” For the inaugural show, Monet’s masterwork was hung in MoMA’s massive atrium, and was singled out by even those who wrote glowingly about the new museum design as an aesthetic disaster–one of the more oft-quoted descriptions was that the majestic mural looked like a “big, soiled Band-Aid” [7]

What was made to disappear was not the museum building with its aggressive walls of whiteness, but all that would counter such a sanitized realm, which was matched by the museum programming. It is a generalization, but nonetheless true: the works exhibited were dominated by preference for abstraction and neutral tones. This was particularly the case with the painting and sculpture galleries, with those devoted to design offering one of the few oases of color, emotion and diversity within this desert of the monochrome. Despite the fact the United States had been obsessed by what was being called the War on Terror, there was no reference to the existence of such conflicts, except for one José Clemente Orozco’s 1940 mural, Dive Bomber and Tank installed in a hall. The New MoMA’s inaugural installation was representative of major Manhattan museums inability to present almost any programming dealing with war for most of the past six years that we have been fighting in Iraq and Afghanistan [8]. At MoMA, programming has been dominated by exhibitions with innocuous themes, and one-person shows, which until recently were almost all only given to artists who are men. The lack of diversity that marked the New MoMA’s canon was seen in the seven works squeezed into the multimedia galleries, which were to represent all the video, digital, film, and media works of the past half century. But this lack was even more disturbing in terms of gender. Too many of the galleries had no, or few, works by women. The famous sculpture garden included not one entry by a woman artist.

Although there have been a few shows devoted to women artists since the museum’s re-opening, and there have been some interesting departures from MoMA’s monochromatic/monographic standard by the design and architecture department [9], a visit to the museum in mid-May affirmed that little has changed since 2004. The thematic exhibitions included such pressing concerns as: Paper: Pressed, Stained, Slashed, Folded; The Printed Picture; Compass in Hand [10]; and Into the Sunset: Photographs of the American West. Certainly, exhibitions with formalist, vague, lacking-a-great-idea themes, such as Staged Pictures: Drawings for Performance can have a fantastic single image, as did this show, which also included several fascinating videos of original theater performances to illuminate the drawings. But the featured—literally “top tier”—temporary exhibitions in the large scale sixth floor galleries were devoted to a Martin Kippenberger’s show (that had just closed) and one called Tangled Alphabets, an exhibition of the work of Leon Ferrari and Mira Shendel. Given the Museum’s history and the pairing of these two artists’ work, I and another critic, who had just seen the show, could not help but wonder that if Schendel had not been a woman, and if these were not Latin American artists, perhaps they would have been assigned a one person retrospective. Finally, there was a change in the sculpture garden installation. They added another artists work, Franz West. So there continues to be no works by women in the MoMA sculpture garden.

Despite the fact that artists have always addressed key issues of their time, with some exceptions, the Museum continues to fail to present a range of programming that is more than one person shows and innocuous thematic exhibitions. This failure to represent a diversity of art and culture is manifest in the entire gesamptkunstwerk that is MoMA. Mirroring the bland programming and ahistorical themes that constitute the selections and exhibitions, the installations and architecture present an exaggerated version of the standard “white box” interior. The new building and installations perpetuate the modern art museum’s convention of installing artworks isolated on neutral-toned walls. But what is particularly important to this discussion is that such spaces create a de-contextualized environment not only for the works of art, but for the viewers. These displays enhance viewers’ sense of ahistorical autonomy, and metaphorically foster an experience of independence, and even “free will.” As is the case with Taneguchi’s design, since the development of these types of installations earlier in the twentieth century, what were originally beige neutral colors have become bright white, and the scale of the walls have increased in sized. In keeping with these developments, the New MoMA, with its immense, self-referential, ultra white interiors, and matching neutral, apolitical, non-diverse, decontextualized programming offers an isolationist, escapist, and delusionally empowering experience for viewers.

Endnotes

[1] The enactment of this law will not take effect until a special facility is built, with the latest date for enactment is July 1, 2011. For an explanation of these details see: see DOCS Today: New York State Department of Correctional Services, vol. 1, no. 3, Spring 2008, http://www.docs.state.ny.us/PressRel/DOCSToday/ Spring2008edition.pdfA (June 1, 2009). A compilation of fact sheets and articles related to what is called the SHU Bill can be found at the Mental Health Alternatives to Solitary Confinement (MHASC) website, http://www.boottheshu.org/ (June 1, 2009).

[2] The exact figure was 1,015, see Linda Saad, “More Americans Pro-life Than Pro-choice,” for First Time,” GALLUP, http://www.gallup.com/poll/118399/more-americans-pro-life-than-pro-choice-first-time.aspx (May 27, 2009).

What was important here was the prominence of this information within the mainstream media, and the fact that related information, like the fact that one third of women in the United States have had an abortion by the age of 45 is rarely mentioned in such discussions in the mainstream press, see “Overview of Abortion in the U.S.,” Guttmacher Institute, http://www.guttmacher.org/media/presskits/2005/06/28/abortionoverview.html (June 1, 2009).

[3] Judge Ruth Bader Ginzburg wrote the dissenting opinion, which she read from the bench. This is unusual for Supreme Court justices to do so and emphasizes the strength of her dissent. As is well known, Ginzburg is the only woman on the Supreme Court. For a discussion that references the unusualness of Ginzburg’s reading out loud, see “After Gonzales v. Carhart: The Future of Abortion Jurisprudence” (event transcript) The Pew Forum on Religion and Public Life, June 14, 2007, http://supreme.justia.com/us/550/05-380/ (May 31, 2009).

For case see, Gonzalez v. Carhart 550 U.S. 124 (2007), Findlaw,

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=05-380

[4] To cite just one example, see “Monica Davey and Joe Stumpe, “Doctor Who Performed Abortions Is Shot Dead, The New York Times, May 31, 2009, http://www.nytimes.com/2009/06/01/us/01tiller.html?ref=global-home (May 31, 2009).

[5] I have written more extensive analyses of MoMA’s new design and the history of museum practices. Several texts that related especially to this essay are: “What’s so new about MoMA?” Sunday Opinion Section: Newsday, January 23, 2005, A. 41; “Grand Illusions: The “New” Museum of Modern Art,” Curating Subjects, editor, Paul O’Neil, Amsterdam and London: de Appel and Open Editions, 2007; and “Preface”, The Power of Display: A History of Exhibition Installations at the Museum of Modern Art, designLocus of Seoul, Korea, Spring 2007, originally published by the MIT Press in English in 1998.

[6] This was a often quoted line in the press, MoMA curator Paola Antonelli repeated it in a New York Magazine article, Alexandra Lange, “This New House,” October 11, 2004, http://nymag.com/nymetro/arts/features/10057/index4.html (May 26, 2009).

[7] Peter Schjeldahl, “Easy to Look At,” The New Yorker, December 6, 2004, http://www.newyorker.com/archive/2004/12/06/041206craw_artworld (May 26, 2009).

[8] Exceptions were the Whitney Museum’s 2003 The American Effect (which looked at international attitudes toward the U.S.) and a small 2004 permanent collection show Memorials of War. More recently in 2009, MoMA held an exhibition in the mezzaine reading room, The Museum and the War Effort: Artistic Freedom and Reporting for “The Cause,” presenting archival materials (correspondence, press clippings, and photographs) related to MoMA’s WW II exhibitions.

[9] One such exception was Senior Curator of Architecture and Design, Paola Antonelli, with Curatorial Assistant, Patricia Juncosa Vecchierini 2005 exhibition

Safe: Design Takes On Risk.

[10] The full title is for Compass in Hand: Selections from the Judith Rothschild Foundation Contemporary Drawings Collection.

Mary Anne Staniszewski

Mary Anne Staniszewski, Ph.D. is Acting Head of the Department of the Arts at Rensselaer. Her books include, Believing Is Seeing: Creating the Culture of Art (Penguin USA) and The Power of Display: A History of Exhibition Installations at the Museum of Modern Art (The MIT Press) Staniszewski is currently writing a multi-volume “portrait” of the U.S., featuring the themes of race; sex (gender); and life and death.

Original context

EDITORIAL

New York Times

 In a long series of valedictory speeches and interviews, President Bush and Vice President Dick Cheney have been crowing about Guantánamo Bay, secret prisons and abusive interrogations, claiming they met the highest legal standards and that no prisoner had been tortured. Fortunately, the truth broke through the noise, in the words of some of the very people ordered to carry out the policies.

 In an interview in The Washington Post, Susan Crawford, the retired judge who runs the military tribunals at Guantánamo, said that harsh interrogation methods had endangered the life of Mohammed al-Qahtani, a Saudi national accused of planning to take part in the 9/11 attacks. Authorized by then-Defense Secretary Donald Rumsfeld, they included sustained isolation, nudity and prolonged exposure to the cold.

 “We tortured Qahtani,” Judge Crawford said, adding that she was therefore unable to prosecute a man who seemed to pose a real threat to the United States.

Judge Crawford was not the only one speaking out. Major David Frakt of the Air Force Reserve, who was assigned to defend another Guantánamo prisoner, told MSNBC’s Rachel Maddow that he and all the other defense lawyers in the system consider the tribunals “unfair, rigged” and unconstitutional. He noted that his client’s prosecutor resigned to protest the lack of evidence in the case.

That is the real nature of Mr. Bush’s grotesque legacy: abuse and torture at an outlaw prison where hundreds of men — many of whom did nothing — have been held for years without real evidence or charges. And truly dangerous men were treated so badly that it may be impossible to bring them to justice.

It will be hard enough to close down Guantánamo as Barack Obama has vowed to do, but the legal burdens Mr. Bush is dumping on his successor are much greater.

The appalling Military Commissions Act of 2006, railroaded through Congress, must be repealed. Interrogation rules that respect American values and laws and the Geneva Conventions must be set for all government agencies, including the intelligence agencies.

And there is the profound question of whether the new administration should prosecute those who tortured and abused prisoners — and those who ordered them to do it. Judge Crawford’s legal finding that torture occurred adds a new complication, since a treaty obliges the United States to investigate such allegations.

We have heard a lot of talk about how the country needs to look forward and not backward. We certainly would like to forget the horrors of the last eight years. But you cannot fix something before you know exactly how it is broken. The clandestine system Mr. Bush and Mr. Cheney have built will not give up its secrets easily.

To ensure that the abuses stop, Mr. Obama and his administration will have to work hard to find out all that has happened. They will have to locate and override all of the policy memos, directives and executive orders that have redefined and condoned torture and other abuses. Guantánamo is the place to begin.

 The timetable: Mr. Obama is expected to announce as early as Wednesday that he is beginning the process of shutting Guantánamo. We hope he sets a target date. That may make it easier to persuade other governments to agree to accept some prisoners — one of the difficult challenges ahead. But we do not agree with critics who insist that date must fall within his first 100 days.

This page called early and often for closing Guantánamo. But we recognize that this is going to be very hard work.

 Sorting out the inmates: Mr. Obama’s lawyers will have to review every file, most of which the Bush administration has refused to turn over to any authority, including Congress. We know from bitter experience that the Bush administration’s judgment is worthless when it comes to what these prisoners may have done, how they have been treated and what justice they should face.

Just last week, Mr. Cheney claimed that the interrogation of prisoners like Khalid Shaikh Mohammed, believed to be the planner of 9/11, who was tortured by waterboarding, allowed the United States to capture a “very impressive” list of Al Qaeda leaders in 2003. If that is true, Mr. Obama needs to know who they are, where they are, and what was done to them in the last five years.

A blueprint: Senator Dianne Feinstein, the new head of the Intelligence Committee, has a bill for closing Guantánamo that Mr. Obama should embrace. It sets a one-year deadline and requires that every prisoner either be charged and tried in United States federal court; transferred for trial by an international tribunal under United Nations authority; returned to the custody of the government of their homeland, if that government does not abuse and torture prisoners; held as a prisoner of war; or, simply, released.

The separate system of tribunals created by the military commissions act must be abolished. They are a mockery of American justice, and utterly unnecessary.

It was extremely encouraging to hear Eric Holder, Mr. Obama’s choice for attorney general, say at his confirmation hearing on Thursday that the new administration is open to trying prisoners in the United States. It is appalling that an attorney general nominee has to say he respects the law, but such is the Bush legacy.

The real bad guys: After the prisoners are sorted out, Mr. Bush’s egregiously bad judgment leaves all Americans with a huge problem. The abuses authorized by top Bush officials, and so gleefully defended by Mr. Cheney in particular in the last few weeks, create the possibility that men like Mohammed al-Qahtani and Khalid Shaikh Mohammed will never be able to face justice in a real courtroom.

Mr. Obama’s team will have to come up with a solution that does not set such men free. We are not sure what it should be, but there is one unacceptable choice: creating a new detentions law that would allow them held without trial. That would merely compound Mr. Bush’s catastrophically bad choices.

Interrogations: The 2006 military tribunals law bound military interrogators to the Army field manual’s rules, which conform with the Geneva Conventions — unlike Mr. Bush’s policies. But, at Mr. Bush’s insistence, the bill carved out an exemption that allowed intelligence agencies to go on hiring civilian interrogators and to engage in practices that are clearly immoral and illegal. Ms. Feinstein’s bill would eliminate the loophole on how prisoners are treated and ban the use of civilian interrogators.

We were glad to hear Mr. Holder state that the Obama administration considers the Geneva Conventions binding. But we wish he had been more clear on a solution, beyond calling the Army field manual a “good start” for interrogation rules in C.I.A. prisons. We also were unclear from his answers whether Mr. Obama has decided, as he should, to ban civilian interrogators.

Mr. Holder unequivocally declared waterboarding to be torture, which his predecessors would not do. But this is not just about waterboarding. Other practices, like forced nudity, prolonged isolation, and extremes of heat and cold, are abuses under the same laws and treaties that prohibit torture. And Judge Crawford reminded us that torture is not necessarily just one terrible act. In the Qahtani case, she said: “This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive.”

C.I.A. prisons: We have never heard a convincing explanation for why the Central Intelligence Agency needs its own network of prisons beyond the reach of law, in undisclosed locations. If there is a good reason, we hope this administration will explain it. We are skeptical, and we urge Mr. Obama to support Ms. Feinstein’s bill, which would require the C.I.A. to report all detainees to the International Committee of the Red Cross.

We recognize that this is a daunting agenda, and that to succeed, Mr. Obama’s White House, Justice Department and Pentagon will also have to rebuild demoralized legal divisions where professionals were replaced with apparatchiks whose mission was to twist the law to justify their masters’ decisions.

This work is essential to restoring the rule of law. It is essential to restoring this country’s reputation around the world. And it is essential to restoring Americans’ faith in themselves and in their government. That is the only way to move forward.