I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn't torture, and I'm going to make sure that we don't torture. Those are part and parcel of an effort to regain America's moral stature in the world.

"Moreover, the Obama transition team are now looking closely at the accountability issue. What should be done about a long track record of torture and other often criminal abuses committed against prisoners under the authority of President Bush? There are no easy answers to that problem, but I venture an approach in my essay "Justice After Bush" in the December issue of Harper's. The answer must ultimately focus just on the point that Obama identified: America's moral stature in the world and its commitment to live to the standards it advocates for others.

"Here's a new document that helps put that moral and legal issue in proper perspective. The Human Rights Center of the University of California has issued a compelling new report entitled "Guantanamo and Its Aftermath." The report focuses on an important but largely neglected issue: what effect did the extraordinary detention arrangements at Guantanamo have on those who have been released? While the Bush Administration is fond of painting the Gitmo detainees in terms of pure villainy, it tends to obscure the fact that it has released roughly two-thirds of the total number of detainees. Most of them have returned to their homelands and tried to resume normal lives. The Human Rights Center report has been meticulously researched and is a "just the facts, ma'am" recounting of what happened to these former detainees. The five hundred "alumni" of Gitmo are now scattered in thirty different countries. One of the American guards at Gitmo was quoted telling a British detainee "if you didn't hate America when you came here, you sure will after what we've done to you." That is borne out by the study, which shows that a majority of the detainees harbor bitter thoughts about the United States over their treatment.

"The most remarkable part of the report is certainly the forward written by Patricia Wald, one of the nation's most respected retired federal appellate judges. Judge Wald has a credential that few of her colleagues share: she left the court of appeals to serve as a war crimes tribunal judge for Yugoslavia and she also served as a member of the Commission President Bush constituted to look at the false allegations of WMDs in Iraq. Judge Wald compared the current allegations surfacing about detainee abuse authorized by President Bush with the cases she examined coming out of the war in Yugoslavia ”that resulted in the indictment and conviction of a number of political leaders in the Balkans. Here's what she has to say:

There are bound to be casualties when any nation veers from its domestic and international obligations to uphold human rights and international humanitarian law. Those casualties are etched on the minds and bodies of many of the 62 former detainees interviewed for this report, many of whom suffered infinite variations on physical and mental abuse, including intimidation, stress positions, enforced nudity, sexual humiliation, and interference with religious practices.

Indeed, I was struck by the similarity between the abuse they suffered and the abuse we found inflicted upon Bosnian Muslim prisoners in Serbian camps when I sat as a judge on the International Criminal Tribunal for the former Yugoslavia in The Hague, a U.N. court fully supported by the United States. The officials and guards in charge of those prison camps and the civilian leaders who sanctioned their establishment were prosecuted” often by former U.S. government and military lawyers serving with the tribunal” for war crimes, crimes against humanity and, in extreme cases, genocide.

"There should be no confusion about what is being said here. One of America's most prominent judges “and one of our few judicial experts on war crime“is saying that the factual basis exists to charge officials of the Bush Administration. The test is fairly simple: is the United States now prepared to apply to itself the same legal standards that the United States applied to political leaders in the former Yugoslavia? It is in the end a simple question of justice. And a question of whether the United States is prepared itself to live by the standards it imposes on others."

Daphen Eviatar at The Washington Independent weighs in:  "...I think Horton, who's a master of the law and history on this subject, may have the best answer: a commission created by the president that would investigate what happened and recommend prosecution if the facts warrant it. The commission should be nonpartisan “- made up of career prosecutors, lawyers and assistants, rather than political officials and operatives like the 9-11 commission, which lost credibility when its conclusions were watered down and subsequently attacked from all sides.

"Last week, human-rights advocates from UC-Berkeley and the Center for Constitutional Rights made a similar recommendation in a new report about the impact of Bush administration interrogation tactics on Guantanamo detainees.

"If the new president authorized and supported it, the commission's recommendations would be far harder to ignore than were, say, those of the 9-11 commission. If prosecution is ultimately warranted, the president would be under considerable pressure to follow through.

"What's more, it would look like an impartial administration of justice. Not like a new administration launching a retributive, divisive and partisan attack.

"As I wrote last week, closing Guantanamo Bay is a good first step, but it doesn't go far enough. The new Obama administration is going to have to take more affirmative steps to end U.S.-sponsored abusive detentions and interrogations around the world, and to send a clear message that the United States, including the president, can be trusted to follow the rule of law.

"Creating a commission to investigate whether the Bush administration abused that trust would go a long way toward making that message credible."

Our country's moral, ehtical and consitutional principles demand it.  If these principles are not upheld, this nation has lost any claim to the following:  "We the people of the United States in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constiution of the United State of America."