America's Much Abused Moral Authority

As former chief prosecutor at Guantánamo, I know that until the US rights the record on torture, its human rights calls ring hollow

Once upon a time, Americans across the political spectrum were united behind efforts to prevent torture and punish torturers. The United States signed the UN Convention Against Torture (CAT) in 1988 when Republican Ronald Reagan was president. A Democrat-controlled Congress ratified it in 1994. The CAT says, "No exceptional circumstance whatsoever ... may be invoked as justification of torture," a principle the US endorsed without reservation. The CAT requires nations to enact domestic laws criminalising torture, and in 1994, a torture statute was added to the US criminal code.

A Republican member of Congress sponsored the War Crimes Act in 1996, which made "grave breaches" of the Geneva Conventions - like torture - federal crimes. He wanted Americans abused by former adversaries to get the justice they deserved but had been denied. The measure passed a Republican-controlled Congress by unanimous consent and President Bill Clinton, a Democrat, signed it into law.

Americans were solidly against torture when they believed they were beneficiaries of anti-torture laws. But then, the 11 September 2001 attacks occurred - and created an exceptional circumstance used by some as justification to draw new lines between right and wrong.

Susan Crawford had held key posts in Republican administrations dating back to Reagan; then, in 2007, Secretary of Defence Robert Gates appointed her head of the military commissions at Guantanamo Bay, Cuba. In an interview with Washington Post reporter Bob Woodward published a few days before President George Bush left office in 2009, Crawford explained why she dismissed charges against Mohammed al-Qahtani, the so-called 20th hijacker. "We tortured Qahtani," she said; "His treatment met the legal definition of torture."

US government officials in other detainee cases reached similar conclusions:

* Judge James Robertson, in the case of Mohammedou Salahi, found "ample evidence" that "Salahi was subjected to extensive and severe mistreatment at Guantanamo."

* Military commission judge Colonel Stephen Henley concluded that Mohammed Jawad endured "abusive conduct and cruel and inhuman treatment" and that his abuse "was not simple negligence but flagrant misbehaviour". Judge Henley suggested those responsible "face appropriate disciplinary action." None has.

* In the trial of East Africa embassy bomber Ahmed Ghailani, federal Judge Lewis Kaplan granted a motion to block the testimony of the only witness connecting Ghailani to the explosives used in the bombings. Ghailani said he revealed the identity of the witness while being tortured at a secret CIA site, an allegation US government prosecutors did not dispute. In his opinion granting the defence motion, Judge Kaplan said:

"The court has not reached this conclusion lightly. It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand."

In a memo in early 2003, Jack Rives, the US Air Force judge advocate general at the time and now executive director of the American Bar Association, warned senior government officials that "several of the exceptional (interrogation) techniques, on their face, amount to violations of domestic criminal law and the (military criminal code)" and put "the interrogators and the chain of command at risk of criminal accusation". Bush administration officials ignored the warning.

Philip Zelikow, a state department attorney in the Bush administration, told Congress:

"The US government adopted an unprecedented programme of coolly calculated dehumanising abuse and physical torment to extract information. This was a mistake, perhaps a disastrous one. It was a collective failure, in which a number of officials and members of Congress of both parties played a part, endorsing a CIA programme of physical coercion."

In a speech in May 2009, President Barack Obama said that in the wake of 9/11, the US government made some decisions "based upon fear rather than foresight" and the nation "went off course". He rejected the notion that "brutal methods like waterboarding" were necessary to keep America safe and added that such tactics "undermine the rule of law" and "alienate us in the world".

President Obama recently warned Libyan President Muammar Gaddafi that the brutality inflicted on his own citizens was "outrageous and it is unacceptable", saying it violates "international norms and every standard of common decency". He said those responsible "must be held accountable". President Obama ended his remarks by saying "the United States will continue to stand up for freedom, stand up for justice, and stand up for the dignity of all people."

The United States cannot stand up for justice and the rule of law when it sits idly on its own record of torture. It diminishes the weight of its moral authority to influence others around the world when it treats its binding legal obligations as options it can choose to exercise or ignore. If President Obama is sincere about standing up for fundamental values, then America's actions must live up to its rhetoric.

© 2023 The Guardian