It has been more than four months since the Senate Intelligence Committee (SSCI) published the summary of its report on the secret detention program operated by the CIA after the 9/11 attacks. Yet today, the official record of what happened in the CIA’s “black sites” is still under wraps. The Committee’s full report sits gathering dust in secure facilities, with even the Justice Department failing apparently to read it, let alone act upon it.
Meanwhile, the SSCI’s work has been met with silence from the Obama administration in terms of any commitment to ensuring accountability and remedies for these crimes. The White House hasn’t even responded to Sen. Dianne Feinstein’s December 2014 recommendations to the Executive Branch for increasing oversight and accountability of the CIA.
This silence becomes particularly acute as the US government prepares for its second Universal Periodic Review at the UN Human Rights Council on May 11. In a report issued this week, Amnesty International finds that the Obama administration is engaging in what amounts to an unlawful de facto amnesty for crimes under international law and an executive encroachment on judicial power in contravention of basic principles guaranteeing independence of the judiciary.
On the day the Senate Committee issued its summary, President Obama expressed “hope” that this limited disclosure would “help us leave these techniques where they belong — in the past.” This echoed what he wrote to CIA employees in April 2009, saying they could rest assured that anyone who followed Justice Department advice in using “enhanced” interrogation techniques would not face prosecution. “Nothing will be gained,” he wrote, “by spending our time and energy laying blame for the past.” Attorney General Eric Holder subsequently added that he shared “the President’s conviction that as a nation, we must, to the extent possible, look forward and not backward when it comes to issues such as these.”
This arrogation of judicial function by the Obama administration can be seen as a continuation of the Bush administration’s deliberate and calculated removal of the judiciary from any oversight of secret detentions where multiple crimes under international law were committed. The Obama administration is insulating CIA torture from judicial determination of individual criminal responsibility. The US is squarely on the wrong side of its international obligations and will remain so for as long as it maintains this position.
We are being asked by the US government to trust that these crimes will never happen again. And while the UN Human Rights Committee has pointed out that “the problem of impunity” for such violations can “be an important contributing element” to their recurrence, the Obama administration effectively asks us to accept that it is a special case, that its guarantee of non-recurrence does not require accountability — no charges, no prosecutions, no trials, no punishment, and no redress.
Just hoping for non-recurrence of human rights violations is not enough. What happens the next time a president decides that torture and enforced disappearances are necessary in the name of national security?
If nothing else, the lack of accountability and remedy for US crimes under international law is a case of double standards. When Secretary of State John Kerry launched the State Department’s critique of the human rights records of other countries last year with the words, “Accountability for security force abuses is essential to the realization of the promise of the Universal Declaration of Human Rights,” it was as if he had his fingers crossed behind his back. The US government continues to reserve the right to be the exception that proves that particular rule.
A familiar note of US exceptionalism was in the air when the SSCI report summary was published. President Obama greeted the document by saying that “one of the strengths that makes America exceptional is our willingness to openly confront our past, face our imperfections … .” Senior administration officials added that “as Americans, we are committed to sending a clear message to the world that we support transparency.”
Yet, the vast bulk of what the SSCI found about how detainees were treated remains buried in the 6,700 still-classified documents (documents, not pages) from the Committee relating to the CIA’s detention program.
When President Obama admitted last year that “we tortured some folks” in the CIA program, he at the same time appealed for understanding, suggesting that what had happened could be explained by reference to the fear generated by the 9/11 attacks and the pressure on “patriots” working hard to prevent further attacks. And of course, understanding why human rights violations happen is important in ensuring they do not recur.
But this understanding is part of an official narrative that is interwoven with impunity. As such, it effectively becomes justification. Coupled with a reluctance to apply international law to its own conduct, this impunity is part of the Obama administration’s refusal to slam the door on torture and enforced disappearances and bolt it shut.