The Constitution Project's bipartisan Task Force on Detainee Treatment has found that the United States government engaged in the widespread use of torture against suspects detained during the "War on Terror." Its 577-page report documents widespread abuses against detainees, including prolonged, arbitrary detention; physical and sexual abuse; enforced disappearance by way of secret transfer to undisclosed locations ("extraordinary rendition"); and other cruel, inhuman, and degrading treatment or torture.
The independent panel of distinguished legal and security experts, former members of Congress, academics, and diplomats concluded that there had never before been "the kind of considered and detailed discussions that occurred after September 11, directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody." And yet, "despite this extraordinary aspect, the Obama administration declined, as a matter of policy, to undertake or commission an official study of what happened, saying it was unproductive to 'look backwards' rather than forward."
This posture, if maintained, runs contrary to the US government's repeated assertions of its commitment to human rights as well as its obligations under law, including as a signatory of the United Nations Convention against Torture. To regain its creditability in the eyes of the world, the government must take steps to acknowledge and address past violations and provide redress to victims of US-sanctioned abuses. This is the minimum that international law demands. Decades of American discourse in support of human rights ring hollow in the silence of US inaction on these abuses.
The International Center for Transitional justice, through its Accountability Project, and other human rights groups have consistently advocated for an official inquiry into allegations of US-sanctioned torture. Senator Patrick J. Leahy, of Vermont, proposed the establishment of a truth commission to examine allegations of detainee abuse following the September 11 attacks as far back as February 2009; but Congress, shamefully, has failed to act.
Moreover, no senior figure has been brought to the bar of justice for acts in violation of international and national law. While the commendable Constitution Project's report has shone a light on serious and credible evidence of abuses, it is no substitute for government action to get to the truth, hold perpetrators accountable, and provide redress to victims.
ICTJ's global experience, including in the United States, points to the necessity of addressing legacies of serious human rights abuses. A society that prides itself on respecting the rule of law cannot look the other way when abuses are sanctioned in its midst. The rule of law cannot be applied a la carte, with governments picking and choosing when the law should or should not be applied, and to whom. "Closing the door" on serious crimes such as torture and arbitrary detention is an illusion. Americans have learned this the hard way; one need only think of Japanese internment during World War II, and the long delayed apology and compensation. It is a lesson not to be forgotten.
Many other countries have actively addressed their history of government use of torture and other serious crimes, while solidifying, rather than sacrificing, a commitment to democratic and human rights values. These countries initially faced arguments against accountability similar to those now made in the United States: that the facts were known, that actions were justified, that looking into abuses would be politically divisive, and that the focus should be on moving forward. Yet, transformative leaders in places as diverse as Latin America, South Africa, and Eastern Europe realized that change would not be possible without first looking back and taking steps toward accountability. In many instances, these countries did so with the encouragement and support of the United States.
The U.S. Department of Justice now has sufficient information to warrant a criminal investigation of those who commissioned and approved policies that resulted in torture and illegal treatment of detainees. There is indeed a moral imperative to get to the bottom of this dark chapter in American history, both for the government and the American people.
The U.S. government has a duty to take a fresh look at creating a truth commission that could provide a comprehensive view of the policies and practices behind abuses and the connections across institutions, as well as the human and political consequences of policies and actions. This is all the more important in view of the fact that the Constitution Project's Task Force did not have access to classified records and that the Senate Intelligence Committee's separate report on the CIA remains classified.
In addition to investigating and determining the facts and holding the architects of these abuses to account, international law, including the Torture Convention and the International Covenant on Civil and Political Rights, requires its adherents, including the United States, to provide redress to victims of such serious rights violations. The United States has publicly lauded the rule of law as it applies to other countries and offered significant financial and political support to torture victims of foreign regimes; yet it has failed to acknowledge or address its obligation to victims of its own detention policies, particularly those who have never had charges brought against them and who have been thus detained for lengthy periods of time. So far, claims for redress and reparations have largely run into a variety of procedural and legal roadblocks. This is neither consistent with US law nor US obligations under international law.
The Constitution Project's Task Force Panel asserts that a thorough understanding of what happened and the willingness to acknowledge wrongdoings "strengthens the nation, and equips us to better cope with the next crisis and ones after that. Moving on without such a reckoning weakens our ability to claim our place as an exemplary practitioner of the rule of law." The ICTJ and the entire human rights community can do little more than to echo this message. If the US wants to be able to support human rights in other countries, it must first clean in its own backyard.
We have waited too long to learn the unvarnished truth of this unsavory period of American history. It is past time for the US government to make good on its obligation to establish the truth, provide accountability, and redress victims. The good work of the Constitution Project's Task Force, which calls for "public acknowledgement of this grave error," provides just such an opening, and it is an opportunity that must not be missed.