Scott Horton looks at the real reason that the Obama administration denied torture victims their day in court:
The Holder Justice Department would have us believe that it is protecting state secrets essential to our security. That posture is risible, and half of the court saw through it. The dilemma faced by the Justice Department was rather that evidence presented in the suit would likely be used in the future (not in the United States, obviously) to prosecute those who participated in the extraordinary renditions process. Twenty-three U.S. agents have already been convicted for their role in a rendition in Milan. Prosecutors in Spain have issued arrest warrants for a further 13 U.S. agents involved in a botched rendition case that touched on Spanish soil. Prosecutors in Germany have opened a criminal investigation into the use of Ramstein AFB in connection with torture and illegal kidnappings. Prosecutors in Poland are pursuing a similar matter. And Prime Minister David Cameron was recently forced to brief President Obama on his decision to direct a formal inquiry which could lead to prosecutions tied directly to the subject matter of the Mohamed case. This is the remarkable background to the case decided by the Ninth Circuit, and remarkably not a single word about this appears anywhere in the opinion—or even in most of the press accounts about it.The scandal here is that this was done to hinder other nations who are seeking to bring prosecutions against clearly illegal behaviour.
Other nations will continue with prosecutions. International law won't go away no matter how much Obama and his administration will it to do so.The decision to short-circuit the trial process is more than a misreading of the law; it’s an egregious miscarriage of justice. That’s obvious from a perusal of the plaintiffs’ complaint. One said that while he was imprisoned in Egypt, electrodes were attached to his earlobes, nipples and genitals. A second, held in Morocco, said he was beaten, denied food and threatened with sexual torture and castration. A third claimed that his Moroccan captors broke his bones and cut him with a scalpel all over his body, and poured hot, stinging liquid into his open wounds.
From New York:The state secrets doctrine is so blinding and powerful that it should be invoked only when the most grave national security matters are at stake — nuclear weapons details, for example, or the identity of covert agents. It should not be used to defend against allegations that if true, as the dissenting judges wrote, would be “gross violations of the norms of international law.” All too often in the past, the judges pointed out, secrecy privileges have been used to avoid embarrassing the government, not to protect real secrets. In this case, the embarrassment and the shame to America’s reputation are already too well known.
The Bush administration committed crimes. All Obama is doing is trying to make it more difficult for other nations to have access to the information they need to secure convictions.
But, three of Britain's most senior judges have already rejected the argument Obama relied upon and ordered the British government to reveal evidence of MI5 complicity in the torture of British resident Binyam Mohamed – unanimously dismissing objections by David Miliband, the foreign secretary. Miliband's argument was very similar to the one Obama used in the United States. And the British court rejected outright the argument which the Ninth Circuit Court of Appeals have accepted by a single vote.
So, this information will come out, even if it has to come from governments which are allied to the United States. David Cameron had this to say when he announced his inquiry into torture:
"The longer these questions remain unanswered, the bigger the stain on our reputation as a country that believes in freedom, fairness and human rights grows," the prime minister told the Commons.It's a real source of shame that Obama isn't prepared to go as far as Cameron to answer the same questions which plague America's reputation.
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