Obama rejects probe on Bush-era torture: “Need to look forward not backwards”

The Obama White House is still to take a position on his own party’s veteran lawmaker Senator Patrick Leahy’s proposal to appoint a truth and reconciliation commission to launch an investigation into alleged torture of hundreds of ‘enemy combatants’ in U.S. custody.

He discouraged the domestic efforts to probe such illegalities declaring four months after his inauguration in January 2009 that he prefers to look forward, not backward.

Asked to respond to the likelihood that Spanish prosecutors will target officials in the Bush administration for sanctioning torture at Guantanamo Bay Facility, President Obama told the CNN in April 2009 “I’m a strong believer that it’s important to look forward and not backward, and to remind ourselves that we do have very real security threats out there.”

An investigation implicating US officials in torture is under way in Spain. Documents made public by the whistleblower Wikileaks revealed that US pressure on Spanish authorities to drop the case has continued under the Obama administration.

Human Rights Watch said that the US government's failure to investigate US officials for the torture and ill-treatment of detainees undermines US efforts to press for accountability for human rights violations abroad.

An overwhelming amount of evidence now publicly available indicates that senior US officials were involved in planning and authorizing abusive detention and interrogation practices amounting to torture following the September 11, 2001 attacks. Despite its obligation under both US and international law to prevent, investigate, and prosecute torture and other ill-treatment, the US government has still not properly investigated these allegations.

Failure to investigate the potential criminal liability of these US officials has undermined US credibility internationally when it comes to promoting human rights and the rule of law, Human Rights Watch in its July 12 (2011) report “Getting Away with Torture” said.

Kenneth Roth, Executive Director of Human Rights Watch in an earlier letter addressed to U.S. Attorney General Eric Holder somewhere in June 2009 said "by opening an investigation into the grave abuses carried out since September 11, you would begin the process of bringing the United States into line with its international obligations, and remedying the harm done to the US reputation abroad by its use of torture."

The most recent July 2011 ‘Getting Away with Torture’ report HRW described the type of torture authorized by Bush officials since 9/11 and carried out as:

(Quote) The Bush administration authorized coercive interrogation practices by the CIA and the military that amounted to torture, and instituted an illegal secret CIA detention program in which detainees were held in undisclosed locations without notifying their families, allowing access to the International Committee of the Red Cross, or providing for oversight of their treatment.

Detainees were also unlawfully rendered (transferred) to countries such as Syria, Egypt, and Jordan, where they were likely to be tortured.

As a direct result of Bush administration decisions, detainees in US custody were beaten, thrown into walls, forced into small boxes, and waterboarded—subjected to mock executions in which they endured the sensation of drowning. Two alleged senior al Qaeda prisoners, Khalid Sheikh Mohammed and Abu Zubaydah, were waterboarded 183 and 83 times respectively.

Detainees in US-run facilities in Afghanistan, Iraq, and Guantanamo Bay endured prolonged mistreatment, sometimes for weeks and even months. This included painful “stress” positions; prolonged nudity; sleep, food, and water deprivation; exposure to extreme cold or heat; and total darkness with loud music blaring for weeks at a time. Other abuses in Iraq included beatings, near suffocation, sexual abuse, and mock executions. At Guantanamo Bay, some detainees were forced to sit in their own excrement, and some were sexually humiliated by female interrogators. In Afghanistan, prisoners were chained to walls and shackled in a manner that made it impossible to lie down or sleep, with restraints that caused their hands and wrists to swell up or bruise. (Unquote)

In its refusal to investigate the Bush-era torture practices, President Obama himself declaring that he prefers to look forward, not backward, the Obama administration announced June 30 that it would shut down 99 investigations into deaths of prisoners in US custody during the “war on terror,” leaving only two investigations with the potential to develop into criminal prosecutions.

The American media has already reported that the Obama administration continues with some of the undemocratic practices of the Bush administration, including the use of presidential assassination orders, indefinite detention without trial or charges, blocking court cases that threaten to reveal torture, domestic spying, prosecution of whistle-blowers, “rendition” of alleged terrorists to countries that practice torture.

On the issue of ‘accountability’ in Sri Lanka the Obama administration has taken a contradictory stance.

At a press conference in the premises of the American Embassy in Colombo, Sri Lanka on May 4 this year winding up his three-day visit, the assistant secretary for South and Central Asian Affairs of the State Department Robert Blake said “The United States has continually expressed to the Government of Sri Lanka the importance of implementing a credible and independent process to ensure accountability. Domestic authorities have responsibility to ensure that those responsible for violations of international humanitarian law are held accountable.

International mechanisms can become appropriate in cases where states are either unable or unwilling to meet their obligations.”

Previously on March 14 Mr. Blake addressing the Asia Society in New York that discussed the developments in Sri Lanka warned "Accountability is an essential part of any reconciliation process. Without it an enduring peace will remain elusive as unhealed wounds fester. Primary responsibility for implementing a credible and independent process through which individuals who may have violated human rights and international humanitarian law are held accountable for their actions lies with Sri Lanka itself. Our strong preference is that the Sri Lankan government establish its own transparent process that meets international standards. However, in the absence of such a mechanism, there will be mounting pressure for an international mechanism."

‘Look Forward and not Backwards’ and ‘Accountability’ are the terms the American administration in general and the State Department in particular use when it comes to the ‘accountability’ of torture of prisoners/enemy combatants the United States is responsible and bringing pressure and forcing Sri Lanka to undertake accountability for what occurred during the final stages (Jan-May 2009) of the battle between the Tiger cadres and Sri Lankan military.

The Obama administration ignored US Senator Patrick Leahy’s call to appoint a truth and reconciliation commission to investigate the Bush-era torture; Rajapaksa administration in Sri Lanka appointed the Lessons Learnt & Reconciliation Commission to go deep into the issue of race relations, ethnic issues, grievances of all ethnic communities, atrocities committed during the conflict between Sri Lankan administrations and the Tamil Tiger movement in the three-decade of unrest.

Overwhelming evidence of torture by the Bush administration obliges President Barack Obama to order a criminal investigation into allegations of detainee abuse authorized by former President George W. Bush and other senior officials, Human Rights Watch said in a report released July 12. The Obama administration has failed to meet US obligations under the Convention against Torture to investigate acts of torture and other ill-treatment of detainees, Human Rights Watch noted.

The 107-page report, "Getting Away with Torture: The Bush Administration and Mistreatment of Detainees," presents substantial information warranting criminal investigations of Bush and senior administration officials, including former Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, and CIA Director George Tenet, for ordering practices such as "waterboarding," the use of secret CIA prisons, and the transfer of detainees to countries where they were tortured.

"There are solid grounds to investigate Bush, Cheney, Rumsfeld, and Tenet for authorizing torture and war crimes," said Kenneth Roth, executive director of Human Rights Watch. "President Obama has treated torture as an unfortunate policy choice rather than a crime. His decision to end abusive interrogation practices will remain easily reversible unless the legal prohibition against torture is clearly reestablished."

If the US government does not pursue credible criminal investigations, other countries should prosecute US officials involved in crimes against detainees in accordance with international law, Human Rights Watch said.

Human Rights Watch further said in its July 12 report that the criminal investigation should include an examination of the preparation of the Justice Department memos that were used to justify the unlawful treatment of detainees.

Human Rights Watch also said that victims of torture should receive fair and adequate compensation as required by the Convention against Torture. Both the Bush and Obama administrations have successfully kept courts from considering the merits of torture allegations in civil lawsuits by making broad use of legal doctrines such as state secrets and official immunity.

An independent, nonpartisan commission, along the lines of the 9-11 Commission, should be established to examine the actions of the executive branch, the CIA, the military, and Congress, with regard to Bush administration policies and practices that led to detainee abuse, Human Rights Watch said. Such a commission should make recommendations to ensure that the systematic abuses of the Bush administration are not repeated.

An independent/non-partisan commission on the lines of truth and reconciliation commission is the one Senator Patrick Leahy proposed in 2009 to which the Obama administration has so far totally ignored but has a record of advocating the establishment of commissions in other countries using the broad term ‘accountability’.

The US record on criminal accountability for detainee abuse has been abysmal. In 2007, Human Rights Watch collected information on some 350 cases of alleged abuse involving more than 600 US personnel. Despite numerous and systematic abuses, few military personnel had been punished and not a single CIA official held accountable. The highest ranking officer prosecuted for the abuse of prisoners was a lieutenant colonel, Steven Jordan, court-martialed in 2006 for his role in the Abu Ghraib scandal, but acquitted in 2007.

When Barack Obama, untainted by the detainee abuse scandal, became president in January 2009, the outlook for accountability appeared to improve. As a presidential candidate, Obama spoke of the need for a “thorough investigation” of detainee mistreatment. After his election, he said there should be prosecutions if “somebody has blatantly broken the law,” but subsequently suggested otherwise when he expressed his “belief that we need to look forward as opposed to looking backwards.”

Forms of Liability

Senior US officials did not physically commit acts of abuse. However, civilian superiors and military commanders can be held criminally liable as principals if they order, induce, instigate, aid, or abet in the commission of a crime. This is a principle recognized both in US and international law.

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted June 8, 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978, which is recognized as customary laws of war is one form of international law.

ICRC, Customary International Humanitarian Law, rule 152 is another.
The Rome Statute of the International Criminal Court, states:

A person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.

Rome Statute of the International Criminal Court (Rome Statute), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002.

Those captured or otherwise taken into custody during the international armed conflict in Iraq and Afghanistan should have been presumptively classified as POWs, and afforded the protections due to POWs under the Third Geneva Convention.145 In any case, the coercive interrogation methods used were in violation of the protections afforded to all detainees under article 3 common to the four Geneva Conventions of 1949 (Common Article 3) and other prohibitions on inhuman treatment found in customary international law.146 And individuals responsible for carrying out or ordering torture or other inhuman treatment of detainees, whether or not they have POW status, may be prosecuted for war crimes.

This is what the HRW report of July 12 (2011) says about accountability, a term the Obama administration uses very broadly when discussing human rights issues of other nations: “Most crucially, the US commitment to human rights in combating terrorism will remain suspect unless and until the current administration confronts the past. Only by fully and forthrightly dealing with those responsible for systematic violations of human rights after September 11 will the US government be seen to have surmounted them.

“Without real accountability for these crimes, those who commit abuses in the name of counterterrorism will point to the US mistreatment of detainees to deflect criticism of their own conduct. Indeed, when a government as dominant and influential as that of the United States openly defies laws prohibiting torture, a bedrock principle of human rights, it virtually invites others to do the same. The US government’s much-needed credibility as a proponent of human rights was damaged by the torture revelations and continues to be damaged by the complete impunity for the policymakers implicated in criminal offenses.”

CIA Secret Detention Program Constituted Enforced Disappearances and Ill-
Treatment

The CIA’s secret detention program, entailing prolonged incommunicado detention without trial, violated international legal prohibitions against enforced disappearances.

Disappearances violate or threaten to violate a range of rules of international human rights and humanitarian law, including arbitrary deprivation of liberty, torture, and the right to life.

US foreign relations law has long recognized that “prolonged detention without charges and trial,” and “causing the disappearance of persons by the abduction and clandestine detention of those persons” constitute “gross violations of internationally recognized human rights.”

The prolonged, unacknowledged, incommunicado detention of persons in secret CIA facilities constitutes enforced disappearances under international law. The International Convention for the Protection of All Persons from Enforced Disappearance (“Convention against Enforced Disappearance”) defines an enforced disappearance as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” (International Convention for the Protection of All Persons from Enforced Disappearance, adopted December 20, 2006)

The Convention against Enforced Disappearance states that “No one shall be held in secret detention” The UN Declaration on the Protection of All Persons from Enforced

Disappearances, which was adopted by the UN General Assembly in 1992, provides that all detainees shall be held in an officially recognized place of detention, and that accurate information on detainees and their place of detention shall be made promptly available to family members, counsel, and any others having a legitimate interest in the information.

The Human Rights Watch July 12 report Getting Away with Torture states the obligation and duty of the Obama administration to investigate and provide redress.

(Begin Quote) Under international law, states are obligated to investigate credible allegations of war crimes and serious violations of human rights committed by their nationals and members of their armed forces, or over which they have jurisdiction, and appropriately prosecute those responsible.

War crimes are serious violations of international humanitarian law committed willfully—that is, deliberately or recklessly—and give rise to individual criminal responsibility.

Individuals may be held criminally responsible for directly committing war crimes or for war crimes committed pursuant to their orders. They may also be held criminally liable for attempting to commit war crimes, as well as planning, instigating, assisting, facilitating, and aiding or abetting them.

The US also has a duty to investigate serious violations of international human rights law and punish the perpetrators. As a state party to the International Covenant on Civil and

Political Rights (ICCPR), the US has an obligation to ensure that any person whose rights are violated “shall have an effective remedy” when the violation has been committed by government officials or agents. Those seeking a remedy shall have this right determined by competent judicial, administrative, or legislative authorities. And when granted, these remedies shall be enforced by competent authorities. (End Quote)

This Human Rights Watch 117-page report of July 12 was released in an atmosphere, in which the United States president Barack Obama, refusing to investigate the Bush-era abuses, declaring that “it is important to look forward and not backward” but reiterating the importance of ‘transparency and accountability’ when discussing and taking up human rights issues of other nations.

This is why the HRW report reminds the current Obama administration:

“Most crucially, the US commitment to human rights in combating terrorism will remain suspect unless and until the current administration confronts the past. Only by fully and forthrightly dealing with those responsible for systematic violations of human rights after September 11 will the US government be seen to have surmounted them.

“Any failure to carry out an investigation into torture will be understood globally as purposeful toleration of illegal activity, and as a way to leave the door open to future abuses. The US cannot convincingly claim to have rejected these egregious human rights violations until they are treated as crimes rather than as “policy options.”

- Asian Tribune -