An Enduring Double Standard

October 1, 2009

Earlier this month a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that Attorney General John Ashcroft had violated the rights of U.S. citizens in the wake of the 9/11 attacks by using material witness warrants to detain suspects without charge.

Speaking for the majority Judge Milan D. Smith Jr., a Republican appointee, fulminated:

“Some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end… merely because the government wishes to investigate them for possible wrongdoing… We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.”

The Court also found that Attorney General Ashcroft could be held personally liable for prosecutorial abuses committed under his direction. If upheld by the Supreme Court this ruling could ultimately shed much needed light on an almost forgotten chapter in America’s response to the tragedy of 9/11.

Incredibly, we still do not know how many U.S. citizens were held on material witness warrants in the aftermath of the New York and Washington attacks. Further proof, if further proof be needed, of the need for a 9/11-style Commission to lay bear the facts.

There is also another troubling issue here and that is double standard applied to American victims of the abuse of governmental power and that applied to foreign victims. The International Covenant of Civil and Political Rights, of which the United States is a signatory, guarantees equality for all before the law.

However, to date only one individual has received any compensation from the United States for being falsely imprisoned as a consequence of the ‘War on Terror’: Brandon Mayfield, an Oregon attorney erroneously connected to the 2004 Madrid train bombings by flawed fingerprint analysis.

Mayfield was arrested as a material witness and held for two weeks by the Justice Department. He was never charged and has received an official apology and a payment of $2million in compensation.

If $2m is the going price for two weeks imprisonment in the federal judicial system on the basis of flawed intelligence – what price seven years wrongful incarceration with a side order of sustained physical abuse and mental torture?

At present the Obama administration has made no provision for compensating those released without charge from Guantanamo nor made any attempt to aid their rehabilitation despite the well-documented social and mental health challenges former detainees face on release.

Furthermore, the Obama administration continues to use the State Secrets Privilege to prevent Maher Arar, the Canadian national rendered to Syria, and Khalid al Masri, the German national kidnapped in Macedonia and tortured in a CIA black site, both victims of faulty intelligence, from suing the United States government for compensation.

The Policies and Procedures Governing the Invocation of the State Secrets Privilege published by the Department of Justice on September 23 state that this privilege should be invoked only

“to protect against the risk of significant harm to national security.”

The guidelines also state that the Department will not invoke this privilege to conceal violations of the law or prevent embarrassment to a government agency.

Yet, the Obama administration, like the Bush administration before it, continues to do precisely this to evade its responsibilities to those abused in the spurious name of national security.

We have a moral and legal obligation to pay compensation to those abused in our name. We have a moral and legal obligation to extend the same remedies to foreign nationals and American citizens alike.

The time has surely come for the Obama administration to do the right thing. That is the ‘change’ the American people voted for on November 4, 2008.