Justice Delayed is Justice Denied: Accountability, Torture, and the Obama Administration

by Frida Berrigan & Jeremy Varon

Witness Against Torture’s 100 Days Campaign to Close Guantanamo and End Torture began in the heady days following President Obama’s Executive Orders, signed on day one, promising the closure of the detention camp at Guantanamo within a year and ending the CIA’s “enhanced interrogation” program. Years of protest-- including a 2005 demonstration at the detention camp itself, arrest actions in Washington, D.C., and a resulting trial in which we condemned Guantanamo in the name of the detainees-- had paid off. The nightmare appeared close to over.

As we vigiled at the White House every day since inauguration to support Obama in his plans, countless people we met celebrated President Obama’s promises and questioned our being there. “Guantanamo is shut down,” we heard again and again. Yet the accumulated outrages of the last seven years and the tenacious defense of torture policies by some sectors of government and the media, cautioned against a premature sense of victory. Sadly, the cynicism of politics, the ignorance and paranoia of the right, and the Obama administration’s own failure of both conviction and nerve have kept the nightmare of indefinite detention, torture, and immunity for war crimes alive. So we’re coming to the White House, on day 101 of the Obama administration, to demand again that Guantanamo be closed, torture decisively ended, and torturers held to account.

Despite early, encouraging signs, the Obama presidency has been a disappointment with respect to detainee issues and torture. While releasing so called “torture memos” drafted under Bush administration, the Obama administration has been reluctant to investigate possible, past crimes by those who may have committed or provided pseudo-legal cover for torture. Without such an investigation (and prosecutions, if warranted) Obama’s pledge to bring accountability to government will ring hollow. Neither can Obama fulfill his pledge to restore the rule of law if he won’t enforce the law. Domestic and international law indeed require that the U.S. legal system investigate possible breaches of bans on torture.

Less acknowledged, but equally disturbing, the Obama administration has left untouched — and even actively affirmed — some of the worst of the Bush-era detention policies. The pledge to shut down Guantanamo has done nothing to relieve the ordeal of the men still held there, many of whom are innocent of allegations of terrorism and have been cleared for release. This is true of the 17 Uighur Muslims whom Judge Ricardo Urbina ordered last October to be released immediately into the United States. Yet the Obama Justice Department pursued a challenge to the ruling by the Bush administration, and the Uighurs remain at Guantanamo. The administration’s recent pledge to release seven Uighurs into the United States leaves the status of the other Uighurs-- and dozens of prisoners wrongfully detained-- unresolved.

The denial of the rule of law and the abuse of detainees continues at Bagram Air Base in Afghanistan. The Department of Justice recently indicated it will challenge the April 3 ruling by conservative U.S. District Judge John Bates that habeas corpus rights, affirmed for Guantanamo inmates by the Supreme Court (Boumediene v. Bush), extend to Bagram inmates not captured on the Afghani battlefield. Bagram is fast becoming Obama's Guantanamo, where the same violations of American law and values take place.

Finally, in line with the Bush administration before it, the Obama administration has twice invoked the “state secrets” defense in efforts to dismiss lawsuits seeking redress for those rendered and tortured and damages against private companies participating in rendition (Arar v. Ashcroft et al; Mohamed et. al. v. Jeppesen Dataplan, Inc). This craven defense — which seeks to bar discussion of these tragic cases even from courts of law well-equipped to handle sensitive national security matters — adds insult to the ex-detainees’ enormous injuries. It not only puts the United States above the law and public reproach, but denies the defendants’ right to have their victimization acknowledged and their humanity recognized.

Witness Against Torture, like other human rights groups, is well aware of the awful dilemmas the Obama administration faces. Obama inherited a legal, political, and moral mess not of his own making. For his administration to pursue a criminal inquiry into alleged torture under Bush would be to invite further partisan backlash and possibly jeopardize many of his worthy policy goals. The CIA, by warning that that prosecutions of its officers would “weaken morale,” all but says to Obama that his administration risks losing CIA cooperation in ongoing anti-terrorist operations. And the political right, led by Dick Cheney, continues to mangle the debate, defending torture with garish zeal, and fraudulently claiming that closing Guantanamo and trying its “high-value” detainees in real courts means letting terrorists loose in the streets of America.

Whatever these pressures, the Obama administration faces a clear choice to fulfill the rhetoric of true change by upholding the law, leading the country in reckoning with sordid policies, and putting institutional mechanisms in place to assure that the United States never again commits torture. To grant immunity to those who may have carried out torture upholds the Bush administration doctrine that the Executive, operating in secret, has the power to determine what is and is not lawful regardless of what U.S. and international law state. Any Department of Justice inquiry must also extend to the architects of the torture policies, as well as the widespread use of “enhanced interrogations” beyond the CIA's notorious program. And Obama must urgently address the cases of remaining detainees; bring those against whom evidence of wrongdoing exists into a real system of law and releasing the others without needless delay.

President Obama himself insists that the true measure of America’s greatness lies how its people respond to daunting challenges, hard times, and tough choices. It is to time to be great, by simply doing what is good and right. Otherwise, America’s intricate compact with the evil of torture and disregard for its laws and best traditions will continue.

What is Happening on April 30? Witness Against Torture On Thursday, April 30th, hundreds of human rights activists will gather near the White House to call on the Obama administration to support a criminal inquiry into torture under the Bush administration and to fully break with past detention policies.

At a rally at Lafayette Park at 11:15 am, members of Witness Against Torture, Amnesty International, the American Civil Liberties Union, and the Torture Abolition Survivors Support Coalition will speak out about the need for accountability and an end to Bush-era policies. At noon, sixty activists from Witness Against Torture — each representing one of the Guantanamo inmates cleared for release but still imprisoned – will risk arrest.

Why Are We Protesting? Witness Against Torture

We seek to demonstrate, in a forceful way, that there is an informed and active public constituency for justice, the rule of law, and accountability in this country that is demanding a criminal inquiry into possible torture by the CIA and other US military personnel, as well as how torture policies were crafted, who crafted them, and what culpability they bear. We seek to pressure the Obama administration to stop its equivocation and move toward some process aimed at genuine justice and which will safeguard the country against the future use of torture.

We are not now content to wait, years into torture policies, for the slow wheels of the opinion machinery, bureaucracy, and partisan grinding to produce some watered-down version of what should be an investigation into lawbreaking, extending to the highest reaches of the Bush administration.

We are also marching to dramatize the ongoing plight — at some cost to ourselves by virtue of our arrest (during which we'll wear orange jumpsuits with detainee names on our backs) of the are men at Guantanamo who have been cleared to release, pose no threat to the United States, and could be freed by the Obama administration much sooner than one year he has given himself to close the detention camp.

Please join us in Washington, DC on Thursday, April 30th. We gather at 10am at the Capitol Reflecting Pool, and then march in silent procession wearing orange jumpsuits and black hoods to Lafayette Park for a brief rally. Then 60 friends will cross onto the White House sidewalk to bring the names and identities of the 55 Guantanamo men cleared for release who remain in the prison, and those of the 5 men who died at Guantanamo, to the attention of President Barack Obama.

To learn more, and support this effort, please visit www.100dayscampaign.org