Testimony before the U.S. Senate on July 24, 2013: Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications

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Testimony before the U.S. Senate on July 24, 2013: Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications

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But the “war on terror” – whether in name or notion – has already come to define the USA’s approach to national security, and this slate cannot be wiped clean so easily. For the USA to redefine itself – to begin to live up to its own ideal of a global human rights champion – will require more than just redefining the nature and scope of the struggle against terrorism. There must also be truth, accountability and remedy in relation to the human rights violations, including crimes under international law, that have been committed by US forces in the name of this “global war.” Failure to account for the past will leave the USA not only stained by this part of its history, but more susceptible to repeating it.

President Obama referred to “the rule of law” several times in his 2009 and 2013 speeches. In the latter, for example, he reiterated that under his predecessor, “we compromised our basic values – by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law.” He repeated that his administration, in contrast, had “unequivocally banned torture” and had “worked to align our policies with the rule of law.” What the world has learned since 2009 (as it had learned once before during the Bush administration) is that a promise by the USA to abide by the rule of law should not yet be taken as a commitment that it will meet its international human rights obligations in the counter-terrorism context. For here, it seems, the rule of law is a flexible domestic concept, the parameters of which depend on who is in the White House and how much cooperation Congress feels inclined to provide.

In May 2009, President Obama explained that he had ordered an end to the use of “brutal methods like waterboarding” for interrogating detainees because “they undermine the rule of law.” From a human rights perspective, his decision to ban the use of what the previous administration had called “enhanced interrogation techniques” – employed by the Central Intelligence Agency (CIA) against detainees subjected to enforced disappearance in a secret detention program operated under presidential authority – was a welcome step. It would have been even better if the President had made clear that torture and enforced disappearance had been crimes under international law long before September 2001 and that anyone responsible for their use would be brought to justice. His failure to use a human rights framework was not just a rhetorical failure, but the reflection of a broader policy failure and ongoing violations of international law.

In the 2009 speech, President Obama had opposed an independent commission of inquiry into the abuses against detainees committed under the Bush administration on the grounds that “our existing democratic institutions are strong enough to deliver accountability.” The intervening years have proved him wrong, but he did not revisit this matter in his recent address. Instead he altogether ignored the question of accountability for these violations. Today, the absence of accountability for crimes under international law committed by US forces during the Bush administration, and the blocking of remedy for the victims of these and other human rights violations, has left the USA in breach of its international legal obligations. This is not the rule of law. This is injustice.