Sunday, March 15, 2009

No One is Above the Law

Statement of the Washington State Religious Campaign Against Torture, March 10, 2009

The Washington State Religious Campaign against Torture strongly endorses an "impartial, non-partisan and independent Commission of Inquiry," as advocated by the National Religious Campaign against Torture and several other anti-torture organizations. American citizens need to know the full story of the grave transgressions of law and morality that have taken place under the past administration, how earlier practices may have set precedents, and how continuing practices may endanger President Obama’s commitment to end torture. We need to know the truth about how the U.S. government came to adopt torture (called by anything but its true name) as its official policy. We must resist the temptation to sweep the past under the rug in the name of "looking forward" or attending to "more urgent tasks."

Arguably, for the vitality of our democratic republic, for the task of restoring our battered reputation in the world, for restoring our own moral vision, and for understanding what safeguards are required to prevent a recurrence, there is no more urgent task. Looking forward with clarity requires that we look backward. Collectively, we need to "have a comprehensive understanding of what happened–who was tortured, why they were tortured, and who ordered the torture" (NRCAT web site). The American public should know the magnitude of harm done to the victims of U.S. torture and the victims should be able to know all the facts as well. Achieving these objectives will require obtaining information held back from the American public to this day. We need to know how these policies were kept secret and then, when they became public, how they were justified. Without such knowledge and the hopefully careful discussion that would follow upon its release, we will not be able to arm ourselves against further violations of our core humanity and national and international law. In the words of the NRCAT statement, a commission of inquiry is crucial if we are to "confront U.S.-sponsored torture and completely renounce ... its use." Amnesia will not/can not serve the purposes of moral renewal, vigilance, and political commitment necessary to end torture and restore the rule of law.

A Commission of Inquiry, however, is not enough. Believing that already-existing evidence strongly suggests that crimes have been committed, WSRCAT calls for a criminal investigation; and, if the evidence derived from this investigation warrants, we call for prosecution of those who have broken the law. Such an investigation should aim all the way up the chain of command. No one is above the law; and those who order unlawful acts should be held accountable. As Michael Ratner of the Center for Constitutional Rights has stated, "Unless government officials know that consequences follow from such abuses, they will break the law again." What kind of law and what kind of democracy would we have if by our inaction we endorsed a double standard? Assessing ethical responsibility is a complex matter that requires discernment and an unflinching eye willing to gaze into the mirror. Responsibility under the law is more clear-cut.

Without the rule of law, liberal democracy becomes a sham and human rights a mere chimera. Without accountability, the rule of law cannot endure. Executive lawbreaking has not been confined to the Bush administration. Nonetheless, motivated by a radical doctrine of presidential powers in wartime, the Bush administration swept aside the "American legal tradition . . . with its long-established precedents for dealing with adversaries in wartime–even those accused of heinous crimes" (Scott Horton, July, 2007). Moreover, if the United States wants to be counted among the nations as a defender and promoter of human rights, it is obliged to fulfill its treaty obligations. The United Nations Convention Against Torture, which the United States has signed, requires that if evidence indicates that crimes under the treaty have been committed, signatory nations must prosecute. Last summer, General Antonio Taguba said that "there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account." In the year 2009, knowing what we already know about the torture of the last seven years, how can we not do what the law requires? We are not certain whether prosecutions are in order, but that is the purpose of a criminal investigation. The Commission of Inquiry may also reveal information that would lead to prosecution.

Is it possible to support both a Commission of Inquiry and a criminal investigation? The question has arisen because of the problem of immunity. In his proposal for a "truth commission, Senator Patrick Leahy (D-VT) has made clear his intention of exchanging immunity for testimony. If this occurs, prosecutions will become extremely difficult. How, then, can we support both the Commission of Inquiry and a criminal investigation? Following the lead of NYU’s Center for Human Rights and Global Justice (CHRGJ), which has taken this position, WSRCAT proposes that support the Commission of Inquiry with the proviso that selective immunity be provided rather than blanket immunity. Limited or targeted immunity for testimony provided to the commission keeps one eye on future criminal investigations.

Although our faith traditions call for reconciliation, they equally urge that we stand up for justice. Protecting our fellow human beings from the degradation of torture is what brought us to this work. Our commitment to protection requires both that we seek the truth and that we advocate for the enforcement of just law. Our religious voice should be clear; and we cannot afford to weaken our voice in the name of political expediency. It is possible to respond thoughtfully to legitimate concerns about aggravating partisanship, the appearance of seeking revenge, and diverting the country from more urgent matters. We are convinced that each of these reasons for not seeking criminal investigation and possible prosecution is misplaced. Accountability is not the same as revenge. Upholding the rule of law is beyond party. And as a country, we are capable of attending to more than one urgent matter at a time. Moreover, we must reject the absurd notion that holding lawbreakers accountable will prevent U.S. intelligence agents from doing their job of protecting the country. Such arguments are often opportunistic, designed to suppress the growing call for investigations.

If America is once again to become a nation of laws, we must do everything in our capacity to uphold the law. To do otherwise is to set a dangerous precedent for future government officials who can confidently assume that they can get away with violating their sacred duty to uphold the laws of the land. We will not participate in fostering a "culture of impunity." In the words of Margaret Satterthwaite of the CHRGJ, "If the United State wants to have a successful transition from an era of impunity to respect for the rule of law, it needs to embrace both truth and justice."