As the Supreme Court said in its landmark Boumediene v. Bush ruling in June 2008 restoring to the Guantánamo detainees habeas corpus rights that the OLC advised in late 2001 should be unavailable to them, "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law." Among the principles that the USA's own National Security Strategy describes as "non-negotiable" is the rule of law, and the USA maintains that the rule of law is a core value of US constitutional democracy.12 US politicians frequently assert that the USA is "a nation of laws". President-elect Barack Obama has said it.13President Bush has said it, including when responding to public concern that US administration lawyers had found ways for officials to bypass the prohibition against torture.14
The administration of President Bush, in developing its interpretations of US and international law, and the Congress in enacting certain changes to US laws sought by the administration, have pursued policy preferences in the "war on terror" with little or no regard or respect for the USA's international legal obligations. This has led to failure to comply with some of the most fundamental, absolute, and non-derogable rules of international law, such as, the rule that anyone deprived of his or her liberty must be treated with humanity and with respect for the inherent dignity of the human person, the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, the prohibition of enforced disappearance, and the prohibition of arbitrary detention.15Any development of detention policies must recognise and respect the overarching international legal frameworks, not seek to bypass them. This international legal framework equally requires that violations must be investigated and perpetrators brought to account. Without meeting these obligations, the USA cannot claim to be a state ruled by law.
Amnesty International believes that the new US administration and Congress must make accountability for the USA's conduct in the "war on terror" a high priority from their early days in office. Prioritizing this issue must be part of a new relationship on the part of the USA to its international obligations, and part of a new commitment that human rights will never again be sacrificed in the name of national security.
2. Rejection of impunity
Rejecting impunity is crucial not only for dealing with past human rights violations, but also for preventing recurrences. The new US administration must ensure that investigations and prosecutions in individual cases are initiated while simultaneously working to remove legal or practical obstacles to criminal responsibility.
The obligation to take such steps derives in part from the USA's obligations under international law. The USA has been party to the International Covenant on Civil and Political Rights (ICCPR) since 1992 and to the UNCAT since 1994. Under these treaties:
All suspected violations must be promptly, thoroughly and effectively investigated through independent and impartial bodies.16