Unhappy Anniversary: Eight Years of Continuing Lawlessness

Last week marked the eighth anniversary of memos written by Justice Department lawyers to authorize cruel, inhumane, and degrading treatment of detainees. The Bush administration's abuses were the beginning of a dismal chapter in American history. This unhappy anniversary offers a sad reminder that this chapter remains open.

To restore executive accountability, the Obama administration must direct the Defense Department to disclose its evidence of torture, and allow the Attorney General to enforce the law equally by prosecuting up the chain of command.

To its credit, the Obama administration has repudiated "coercive interrogation" methods, taking a step forward from the abject illegality of its predecessor. This improvement, however, belies an enduring commitment to many of Bush and Cheney's abuses, including pervasive surveillance, arbitrary detention, and executive secrecy.

Despite the torture memos' renunciation, the crimes they encouraged remain secret. Defense Department officials hold reams of photos, videos, and documents confirming widespread abuse as severe as rape by US authorities. Moreover, Physicians for Human Rights recently revealed that detainees were also subjected to involuntary medical experimentation. Yet no one has faced justice for the rampant criminal violations this evidence depicts.

Multiple courts in 2009 ordered the government to disclose evidence of torture, and Obama initially seemed poised to abide the rule of law. However, after an October letter from the CIA's leadership--which rank and file interrogators from several agencies have criticized--the administration lobbied Congress to insulate the Defense Department and CIA by amending the Freedom of Information Act. The Defense Department now obstructs justice by suppressing evidence of its own criminal actions. This sordid history indicates the perverse depths to which our nation has unfortunately fallen.

Over two million Americans languish in jails and prisons, many of them marginalized people imprisoned for trivial offenses. Meanwhile, senior officials complicit in severe human rights abuses--documented by evidence already in the government's hands--remain above the law. Some continue to draw quarter-million dollar paychecks drawn from our taxes, while most Americans find ourselves grappling with the recession.

Ninth Circuit judge Jay Bybee was rewarded for breaking the law with the monumental power to apply it to others for the rest of his life. Bybee recently complained to the House Judiciary Committee that he has endured unwelcome attention, reflecting what Glenn Greenwald called a "sociopathic self-absorption", while remaining blind to human rights abuses he facilitated. Bybee degrades our courts and undermines their legitimacy every time he dons the judge's robe.

The casualties of impunity for torture extend beyond faith in our justice system, the detainees (including US citizens) whose bodies bear the scars of abuse in US custody, and even the many more whose shattered psyches may never heal.

Consider the terrible cost paid by US service members for Bybee's crimes. Every day, our troops confront death on behalf of principles including "freedom"--but the freedom they defend has included the freedom of John Yoo, Jay Bybee, Dick Cheney, David Addington, and other officials who belong behind bars or at least in a witness chair.

Only when torturers finally face justice will the US regain the international credibility we squandered under Bush. Without being able to cite American lawlessness, violent extremists would face a harder time recruiting suicide bombers. Put simply, if we revoked the free pass for torture and instead held officials accountable for abuses, fewer of our sons and daughters would return home in boxes.

Impunity also invites more torture in the future. Despots around the world who torture their political opposition will predictably cite the Bush-Obama precedent when repeating their claim that perceptions of "necessity" can justify human rights abuses.

Our nation fought a World War, sacrificing the lives of millions, in part to establish human rights norms that we have eroded in the past decade: from Nuremberg's principle that "just following orders" offers no defense to prosecution, we have fallen to conferring prestige, wealth, and power on those who "just write orders" that violate human rights. Impunity negates the tremendous sacrifices of WWII veterans and those who gave their lives to enshrine the human rights we now disregard.

America's leaders need not kneel before our intelligence agencies, nor must politics impede justice. Our continuing disregard for the law undermines international law, invites further torture in the future, risks the lives of military service members who pay in sweat and blood for our nation's continuing lawlessness, resigns the legacy of WWII, and erodes the legitimacy of our criminal justice system. Americans of conscience--and public officials at every level of government--should celebrate this unhappy anniversary by demanding transparency and accountability in Washington.