New revelations about the use of torture that have captured headlines in recent days are symptomatic of a broader issue. One of the casualties of international responses to al-Qaeda and global terrorism has been human rights and international law. Authoritarian Arab and Muslim governments and Israel have exploited the threat to silence dissent, to control, limit and repress legitimate position and reform movements from Egypt to Uzbekistan. Western governments that have long championed human rights and liked to distinguish themselves from other countries, including some in the Arab and Muslim worlds whose police and security forces routinely and indiscriminately use torture, have lost their reputed moral high ground. In less than a decade that high ground has been compromised and eroded, in particular by the George W. Bush administration, whose laws and policies circumvented or directly violated international law. During the Bush years, rule of law and civil liberties were subordinated to the will of the president. In the mirror image of Muslim extremists, policies of preventive or pre-emptive action became the excuse for actions that would normally be seen as illegal and/or immoral.
The recent release of CIA memos regarding the use of torture, in particular water boarding, have been a grim reminder of the legacy of the Bush era, a legacy that, as President Barack Obama noted in his inaugural address, compromised America's principles and values in the name of security: "our power alone cannot protect us, nor does it entitle us to do as we please."
Abu Gharib, Guantanamo, state-sanctioned torture in the "extraordinary rendition" of detainees to countries that torture (some in Europe and others in the Arab and Muslim world) and the use of water-boarding have become emblems/symbols of America's use of torture. They also exemplify the dangers of using national or global security as an excuse for measures and actions that violate American and international law and the civil liberties of many innocent victims. International human rights organizations have addressed these issues repeatedly and David Cole of Georgetown University Law School, in an incisive critique of Bush policy, has documented and discussed the failed policies of the administration which as the title of his book indicates made America, Less Safe, Less Free.
While Barack Obama has a track record as an advocate of civil liberties and been clear in his denunciation of torture and desire to restore America's image and relations abroad, his policies have vacillated. Obama criticized the Bush legacy, the use of torture and announced that the U.S. would not use torture. Obama and his Attorney General, Eric Holder, denounced water boarding as torture. Candidate Obama had said that he would move quickly to close Guantanamo and criticized the Guantanamo military commissions as "an enormous failure" and stated that as president he would "reject the Military Commissions Act." Only two trials have been completed in the nearly eight years since the Bush administration announced that it would use military tribunals.
Although Obama, shortly after taking office, announced the closing of Guantanamo, he subsequently altered that plan, stating that the complexity of the task would require a much slower timetable for closing Guantanamo. This week it is expected that the military commissions and trials will be revived though reformed to prosecute some Guantanamo detainees. The move has already drawn sharp criticisms from human rights organizations as well as some of Mr. Obama's political allies. Human rights groups have noted that any form of military commission would permit shortcuts that would not be available in the American court system. The executive director of the American Civil Liberties Union, Anthony D. Romero, has already commented that Barack Obama had pledged to return the country to the rule of law and that "continuing with the military commission system would be a retreat from that promise."
To underscore America's recommitment to the rule of law, the Obama administration should prosecute those responsible for the violations and abuses of international law. Many in the intelligence services and the military had feared criminal prosecution for their actions. Rather than scapegoating lower level officials, senior officials who designed, approved, or implemented the policy of torture and rendition should be held accountable. Restoration of America's moral stature and leadership require that, in contrast to the Bush era, America not be seen as exempted from the course of action we supported in Nuremberg, the International Military Tribunal for the Far East (generally called the Tokyo War Crimes Trials where Japanese prison officials and guards were convicted of water boarding), The Hague, and after the Bosnian conflict.