August brought some good news, finally, to those who have been fighting over much of the past decade for accountability for torture. Two federal courts—a district court in Washington and a court of appeals in Chicago—ruled that former Defense Secretary Donald Rumsfeld can be sued by people who say US military personnel tortured them at Camp Cropper in Iraq. Both lawsuits allege that the victims were beaten, deprived of sleep, subjected to constant bright lights, extreme temperatures and loud music, and then released without ever having been charged—in short, the kind of charges that have become all too familiar since the Bush administration authorized torture and cruelty as a strategy of interrogation in August 2002.
Every other case seeking accountability for torture has been thrown out at the threshold. Courts have regularly declared them too sensitive to litigate because they touch upon national security, foreign relations, military affairs and classified information. Why were the most recent cases decided differently? Because, the courts said, these plaintiffs are US citizens, whereas other cases were brought by foreign nationals (or “aliens,” as the law so tellingly labels them).
The decisions to allow the cases to go forward should be applauded. But the notion that we owe accountability only to torture victims who hold US passports is deeply disturbing. It recalls the Bush administration’s secret opinion that the international human rights treaty prohibition on cruel, inhuman and degrading treatment did not protect foreign nationals held outside US borders. Congress, once it learned of this untenable discrimination, enacted language, in the Detainee Treatment Act of 2005, reaffirming that “no individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.”
But while Congress eliminated the double standard with respect to the prohibition—all are now protected from torture and cruel, inhuman and degrading treatment—we seem to have a new double standard when it comes to remedies. If US officials torture a foreigner, the matter is too sensitive to address. But if US officials torture a citizen, the courts can and will hear the case.
The right response is that anyone credibly alleging that he was tortured should have his day in court. The fact that US officials chose to have a Canadian sent to Syria to be tortured, in the case of Maher Arar, should not absolve them of the responsibility they would face if they chose to have a US citizen tortured. The right not to be tortured is perhaps the most fundamental of human rights; that right, and its remedies, should extend equally to all.
The unfortunate reality, however, is that until now, all efforts at accountability have been uniformly stymied. The Bush administration showed no interest, for obvious reasons—Bush has admitted that he personally authorized waterboarding, a practice we prosecuted as torture when it was used by the Japanese against our soldiers. The Obama administration, to its credit, issued orders forbidding torture and rescinded and released the secret memos that authorized it. But by insisting that we not look back, Obama has violated a legal and moral obligation to investigate and account for the wrongs done by his predecessors. The fact that some of those people are the former president, vice president, defense secretary and attorney general does not relieve us of our burden.
Obama, like Bush before him, has blocked civil suits by torture victims. Indeed, his administration urged the dismissal of the very two suits against Rumsfeld that are now going forward, and is likely to appeal those decisions. His Justice Department vetoed a recommendation by its Office of Professional Responsibility that John Yoo and Jay Bybee, the lawyers who wrote the first “torture memos,” be referred to their state bars for disciplinary action. His attorney general, Eric Holder, expressly limited a criminal investigation of CIA interrogation tactics to those who had exceeded the brutality authorized by Yoo and Bybee, thereby giving a pass to Yoo and Bybee as well as the cabinet officers who signed off on the bottom line. The Obama administration has sought to derail a formal judicial investigation in Spain into US lawyers’ authorization of torture against Spaniards held at Guantánamo Bay. It has opposed the appointment of an independent commission, probably the most appropriate way to bring official accountability to bear in this instance. And it has not apologized to even a single torture victim.
Perhaps most disturbing, there is all too little outcry about this. Groups like the Center for Constitutional Rights, the ACLU, Human Rights Watch, Amnesty International and the National Religious Campaign Against Torture have done what they can to keep the matter in the public eye. But Americans in general have shown little interest in reflecting critically on the moral and legal wrongs done in their name—especially where the victims were foreigners. The recent court decisions suggest that because US citizens have suffered similar fates, things might get turned around. But accountability should not turn on where a victim was born; it is owed, like the right itself, to all.