One of the great mysteries in the “war on terror” is why so few people have been held responsible for torture and cruel, inhuman and degrading treatment inflicted on prisoners since 9/11. So much detail about so much abuse in so many places has now emerged that one cannot help concluding that the problem is systemic. There have been reports of burning cigarettes being placed in suspects’ ears, waterboarding, men being shackled naked to cold floors so long that they urinate and defecate on themselves, mock burials and actual homicides. These abuses have reportedly taken place at Guantánamo, Abu Ghraib, Bagram Air Force Base in Afghanistan, undisclosed CIA detention centers and, with US concurrence, in foreign prisons to which we have “rendered” suspects on a CIA plane. Memos have been leaked linking these practices to policies developed at the highest levels of the Justice Department and the Pentagon. Yet there has been no accountability.
The Bush Administration and Congress have steadfastly refused to appoint any sort of independent commission or counsel to investigate the issue. The only official investigations are being handled by the Justice Department, the CIA and the Pentagon, the three entities most implicated in the practices. We spent $73 million investigating President Clinton’s affair with a White House intern and Whitewater, but we are unwilling even to empower an unbiased investigator to look into widespread allegations of torture and cruel, inhuman and degrading treatment of hundreds of prisoners.
It is a federal crime to inflict torture and cruel, inhuman and degrading treatment on detainees during wartime. But the prosecutor would have to be a US Attorney, and they are all ultimately answerable to Attorney General Alberto Gonzales, the man who dismissed the Geneva Conventions as “quaint” and called for the now-infamous August 2002 Justice Department memo that effectively sought to legalize torture.
Civil suits are another option. A torture victim could sue to challenge his treatment in court. Such suits cannot be squelched by political control of prosecutors’ offices. Several such suits have recently been filed by the Center for Constitutional Rights, the ACLU and Human Rights First. But two new cases have shown that the government has developed a strategy to deal with these cases, too. It’s called secrecy.
The first is that of Maher Arar, a Canadian citizen born in Syria who has sued the United States for interdicting him at JFK Airport on his way home to Canada and placing him on a chartered jet to Syria, where he was locked up without charges for twelve months and reportedly tortured. The question at the core of the case is, Why would the United States forcibly redirect this man’s travels to send him against his will to Syria?
If the Justice Department has its way, that question will never be answered. It has invoked a “state secrets privilege” in the case, claiming that all information relating to why it sent Arar to Syria rather than his home country of Canada is highly classified and cannot be disclosed without endangering the nation’s security. Accordingly, the Justice Department argues, Arar’s claims challenging the US government’s decision to send him to Syria, and its complicity in his torture there, must be dismissed.
If the government prevails on this argument, extraordinary rendition–the practice of transferring suspects to foreign nations for coercive interrogations–will be literally beyond the law. Anytime a terror suspect is sent to a third country to be interrogated, the Administration will be able to dispose of any legal challenge by contending that its reasons for doing so and the communications relating to the transfer are secret.
The government took a similar tack in the case of Ahmed Abu Ali, a US citizen who spent the past twenty months locked up in Saudi Arabia without charges, where he too claims that he was tortured. Abu Ali’s family filed suit in the United States claiming that the Saudis were holding him at US behest and seeking an order for his return. The government first argued that because Abu Ali was held in Saudi Arabia, the court had no jurisdiction. But when the court rejected that argument and ordered the government to disclose the nature of its arrangements with the Saudis regarding Abu Ali’s detention, the government shifted to a strategy of secrecy.
It began filing papers under seal with the judge and declining to disclose them to Abu Ali’s family or legal team. In essence, the government began conducting a kind of parallel litigation behind closed doors, to which only the government and the court were privy. In February, this culminated in the government’s filing an entirely secret motion to dismiss the case.
When the court expressed skepticism at the government’s attempt to rely on secret evidence and secret argument, the government brought Abu Ali back to the United States–and promptly indicted him for conspiring to provide material support to Al Qaeda. It included in the indictment allegations that Abu Ali had discussed plans to assassinate George W. Bush, but disclosed the following day–after garnering headlines about interdicting a plot to kill the President–that the man with whom Abu Ali allegedly had these conversations is dead.
If Abu Ali can show that the United States was behind either his Saudi detention without charges or his torture, the criminal case against him would in all likelihood have to be dismissed. To prepare his defense, Abu Ali should be entitled to full disclosure of the US government’s role in his Saudi detention. A criminal trial demands no less.
But disclosure in Abu Ali’s case is not enough. We need a full airing of US complicity in torture and extraordinary renditions. Our standing in the world depends on it. The reluctant and partial disclosures thus far–largely through unauthorized leaks–have only confirmed the world’s worst fears about the United States. Unless we are willing to admit our wrongs, hold the wrongdoers accountable and make a clean break from these practices, we have no hope of regaining our credibility. “Democracies die behind closed doors,” wrote a federal court in one of the earliest post-9/11 court decisions. We need to open the doors before it’s too late.