Torture, Accountability and President Obama

Dear Friends,

The second topic addressed in the American Civil Liberties Union report entitled "Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration" (here) is torture and accountability.

This section of the ACLU report begins by praising President Obama for his immediate and unambiguous rejection of torture and the torture policies of the Bush Administration and for his subsequent release of the torture memos.  As the report says, "The decision to dismantle the Bush administration’s torture program was a crucial one, not just for the United States but for the world. President Obama deserves credit for the decision, and for his vigorous defense of it."

The problem is that President Obama refuses to hold anybody accountable for the well known and well documented abuses that were authorized by the Bush Administration.  President Obama talks about the need to look forward and not backward.  This section of the ACLU report concludes with the following paragraph:

In fact the choice between “looking forward” and “looking back” is a false one. While it’s crucial that the Obama administration adopt new policies for the future, we cannot ignore the abuses of the past. And while President Obama has disavowed torture, a strong democracy rests not on the goodwill of its leaders but on the impartial enforcement of the laws. Sanctioning impunity for government officials who authorized torture sends a problematic message to the world, invites abuses by future administrations, and further undermines the rule of law that is the basis of any democracy.

As John Cheng says in his article entitled "A Few Not-So-Good Men" in the most recent issue of the Wilder Voice (here):

The U.S. has not, to date, embarked on any path of self-examination and soul-searching commensurate with the crimes of the Bush administration. Any process of legal—and moral—accountability must be painful; it must have casualties, so to speak. The United States, the counterargument from bipartisan quarters goes, ought to be spared gut-wrenching flashbacks to Bush-era abuses. This is a path of false comfort that cannot mask deviations from the rule of law, which are ongoing realities rather than unpleasant memories to be wished away.

While President Obama is not guilty of authorizing torture, by refusing to hold those who did authorize torture accountable, he is in fact guilty of concealing crimes.  As Mr. Cheng states in his article

Since taking office, the Obama administration has operated on a pretense of innocence: It assumes no responsibility for its predecessor’s actions and seeks never to repeat them. While this claim is technically true and uncontroversial in and of itself, it is extremely problematic. By continuing to employ torturers in America’s military-intelligence complex, and by its access to a wealth of information documenting torture, the Obama administration is intimately linked with the legacy of the Bush years, even as it chooses to repudiate their worst elements. Does the Obama administration now have a perverse incentive to do everything in its power to prevent independent investigations of human rights violations? After all, isn’t the current Justice Department now complicit in concealing details about those violations—especially in specific cases such as the so-called Guantanamo “suicides” in which the level of abuse possibly extends to homicide?

The Guantanamo "suicides" that Mr. Cheng refers to are the deaths of Salah Ahmed Al-Salami, Mani Shaman Al-Utaybi and Yasser Talal Al-Zahrani while being detained at Guantanamo.  The Navy's report of their deaths that determined them to be suicides is full of absurd statements and more intelligent reporting indicates that the men were undoubtedly tortured to death while in United States custody.  If you want more details, you can read Mr. Cheng's article as well as Scott Horton's article in Harper's Magazine (here).

It is bad enough when a murder is not solved and no one is held accountable.  It is unforgivable for the government of the United States to cover up murders of people while they were in United States custody.  It is not only the people who actually killed these people that should be held accountable, the people who authorized the torture that lead to these killings need also to be held accountable.
 
Unfortunately, just as President Obama has become more secretive during his short term in office, he has also adopted many of the Bush Administration techniques for ensuring that those responsible for the torture and abuse that was carried out in our names are not held accountable by others.  As the ACLU report says:

The truth is that the Obama administration has gradually become an obstacle to accountability for torture. It is not simply that, as discussed above, the administration has fought to keep secret some of the documents that would allow the public to better understand how the torture program was conceived, developed, and implemented.  It has also sought to extinguish lawsuits brought by torture survivors—denying them recognition as victims, compensation for their injuries, and even the opportunity to present their cases.

The ACLU report cites the case of Mohamed v. Jeppesen Dataplan, Inc., a suit brought by five survivors of the CIA's rendition program.  The Obama Administration adopted the Bush Administration position that the case cannot be litigated because state secrets would be disclosed.  When a three-judge panel of the Ninth Circuit ruled in favor of the plaintiffs, the Obama Administration asked for a rehearing by the full court. 

In addition to its use of the state secrets doctrine, the ACLU report cites examples of other extreme positions that the Obama Administration has taken to keep litigation from proceeding:

the Obama administration argued, remarkably, that the government defendants were immune from suit because, at the time that the abuse occurred, established law did not clearly prohibit torture and religious discrimination at Guantánamo.

the administration argued that the Constitution provided no cause of action to an innocent man who had been identified by the United States as a terrorist, rendered to Syria for torture, and not released until ten months later when it was determined that he was not a terrorist after all. 

the administration also argued to the courts that affording Arar a judicial remedy “would offend the separation of powers and inhibit this country’s foreign policy,” and impermissibly involve the courts in assessing “the motives and sincerity” of the officials who authorized Arar’s rendition. 

What happened to the candidate that was to bring hope and change to Washington when he got be President?  While we cannot hold the criminals in the Bush Administration accountable, we can hold President Obama accountable.  Demand that he break from these Bush era policies.  Let your voice be heard.  Write President Obama here.

Thanks for reading and please comment,
The Unabashed Liberal