Despite our Founders' vision of independent powers exercising checks & balances to prevent a "tyranny of the majority," every branch of the federal government acted last month to cast its lot with torturers. But even though President Obama, Congress and the Court have united to hide evidence of high-level crime, Americans of conscience continue to resist, arguing that sweeping human rights abuses under the rug is a greater threat to national security than dealing with them openly and bringing the perpetrators to justice.
This Monday, the Supreme Court ruled in Department of Defense v. ACLU that the Defense Department could maintain secrecy over photos documenting pervasive torture. While disappointing, the decision was more or less inevitable in the wake of the Obama administration's latest reversal.
After deciding to release evidence of torture in wake of court orders requiring disclosure, the administration later caved to pressure from the intelligence community, and even went so far as to force out the official whose decision antagonized the CIA leadership. Lobbying Congress to secure an amendment to FOIA, the administration bent over backward to protect torturers and keep them from facing justice.
Executive secrecy is appalling enough in the abstract, and even worse in the context of a cover up hiding evidence of apparent war crimes and torture. Authorized by an act of a complacent Congress bowing to a disingenuous administration, the Defense Department acted last week to withhold evidence of its own misconduct, based on an illusory justification citing the safety of U.S. troops abroad. And, as it must under Justice Jackson's analysis in the seminal Steel Seizure cases, the Supreme Court acquiesced.
Every branch of the U.S. government--the Executive, the Congress, and now the Supreme Court--has shockingly acted to sweep evidence of war crimes under the rug. Their collusion is a profound betrayal of our nation's historical legacy, a setback for international human rights, and a devastating defeat for democratic transparency in the face of official misconduct.
But in a democracy, even collusion among every branch of our federal government does not end the story. Last week, the Bill of Rights Defense Committee released a forceful coalition letter I wrote on behalf of nearly 30 interfaith, civil rights, and peace and justice organizations around the country to "explain why transparency and robust accountability are a strategic national security imperative, and to expose the self-interest of voices counseling against accountability."
The letter criticized the "self-serving and internally inconsistent diatribe" of the CIA leadership, reiterating that "any incident of torture or kidnapping violated international law," and also that "detainee abuse...undermined several important national security interests."
First, by forcing detainees to make unreliable statements, coercive interrogation proved to be a poor vehicle for intelligence gathering. Second, torture played into the hands of our nation's enemies by facilitating their recruitment efforts. Finally, torture sapped the morale of junior intelligence agents, as well as the experienced interrogators who complained about torture policies. (citations omitted)
Our coalition went on to examine the impact of torture with impunity on several important groups of stakeholders: (a) the men & women of our armed forces and intelligence services, whose morale has been sapped by the protection of criminals among them; (b) our nation's international allies, "many of which have voiced concerns about detainee mistreatment"; (c) civil society voices supportive of U.S. military deployments in areas where our legitimacy is contested; (d) and the "millions of Americans from all walks of life, demographics, professions, backgrounds, and communities who are appropriately appalled by the CIA's abuses."
Beyond noting the interests of these groups, our letter also reframed a number of misconceptions pervading the issue of accountability for torture, which grows only more pressing with the revelation over the weekend of continuing torture under the Obama administration despite the repudiation of enhanced interrogation techniques.
First, responding to "the self-serving ruse that releasing the photos would undermine the safety of U.S. troops deployed abroad," our coalition argues that "any potential harm to our troops inheres in the criminal conduct depicted in the photos, not their potential disclosure." Moreover, "[t]he extent to which that conduct has undermined our broader national security only reinforces the imperative of prosecution."
Second, the letter reframes the procedural posture, noting that "failing to investigate those who conceived, planned, and orchestrated violations of international law does not reflect political neutrality. In fact, the current investigation, limited to some junior agents, reflects pre-judgment in favor of alleged torturers." (emphasis in original)
Ultimately, "the Department of Defense retains--and we request[ed] that [the President] exercise--the authority to declassify and release the photos." As we argued last week, "Our safety as a nation, as well as the legitimacy of our system of justice, the integrity of our intelligence services, and the strength of our international alliances all depend on [President Obama's] willingness to restore the rule of law by ensuring its equal application to all."
This is the latest among many tests - most of which he has, so far, unfortunately failed - that will demonstrate who the President is in fact. Will he serve as the beacon of hope in government that he pretended to be throughout last year's campaign, or like other politicians, did he merely pander to the public in order to pursue his personal ambitions?
Shahid Buttar: Secrecy Sacrificing National Security
Our nation's most notorious criminals violate our most fundamental laws and remain not only free, but actively engaged in influencing our national security policies.
Naomi Wolf: Busted, Pentagon: Why The Photos Probably Do Show Detainees Sodomized and Raped
Is systemic sex crime practiced by the US in a consequence of the lawlessness of "the war on terror" surprising to those of us who work on issues of sexual abuse and war? It is totally predictable.
Carla Seaquist: Good Wars, Bad Wars, And Afghanistan
Given the blood, swear, tears, and, crucially, the purpose of the killing, a war is deemed worth it -- or not. Final verdict of a war's worthiness is rendered in the hearts of the people.
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In that respect, I humbly submit that it's not accurate to state that the Supreme Court's decision -- or even the three branches allegedly acting in unison -- was violative of Federalist No. 10, since it was not a failure of Madison's view that the people could check each other.
To be sure, Madison in this essay did discuss how these factions would moderate the candidates for public office, but again this has little to do with the separation of powers scheme in our constituti
My point about the violation of No. 10 apparent in the recent collusion among the branches speaks to arena #2 above. And you're right that Madison's vision could remain inviolate -- if the popular checks on federal malfeasanc
Thanks for your thoughtful comment!
In the end, People everywhere will assume the very worst of these pieces of evidence denied to the world and the American People. If there is anything the trials in Nuremburg proved to the world, it was that the clear and uncensored presentati
Somehow this shortsight
Er, what is higher than being POTUS? Ruler of the world maybe? What are you trying to imply by that statement, Mr. Buttar?
President Obama's actions, and total lack of leadership
More likely, from my perspectiv
If there's a place to fault the President, it's for caving to the self-servi
Beyond substantiv
Having said that, I think it's a bit unfair to lay this decision at the Court's feet, since it's really the fault of the Administra
Under Justice Jackson's concurring opinion in the Steel Seizure cases -- which is among the most influentia
Really, so what do you think about Boumediene