One of the biggest disappointments for many supporters of Pres. Obama has been his failure to prosecute, or even investigate, war crimes committed by officials of the United States in the lead up to the invasion of Iraq and in the so-called war on terror.
In addition to investigating war crimes, the U.S. government has an obligation under international law to prosecute torture and provide redress to victims. But, as Human Rights Watch notes, it has done neither. "No one with real responsibility for these crimes has been held accountable and the government has actively thwarted attempts on the part of victims to obtain redress and compensation in U.S. courts."
Among the officials Human Rights Watch recommends be investigated include John Yoo, George Tenet, Alberto Gonzales, Condoleeza Rice, Dick Cheney, John Ashcroft and George W. Bush. Other human rights organizations have also suggested Donald Rumsfeld, Paul Wolfowitz, Bill Krystol and David Frum.
"Holding government officials accountable for serious abuses is never easy; when high-level officials are involved, it can be politically divisive. But Human Rights Watch research over the past 25 years in dozens of countries has shown that forgoing criminal accountability carries a high price."
Even before he was elected president, Barack Obama indicated he would not prosecute anyone for the lies that led up to the Iraq War (and the ongoing chaos as a result) and torture of detainees following Sept. 11, 2001. Obama based his decision on "a belief that we need to look forward as opposed to looking backwards".
Shortly after he took office, Pres. Obama said "This is a time for reflection, not retribution. Nothing will be gained by spending our time and energy laying blame for the past ... we must resist the forces that divide us, and instead come together on behalf of our common future."
As The Guardian notes, "Obama administration aggressively shielded Bush officials even from being held accountable in civil cases brought by torture victims, by invoking radical secrecy powers and immunity doctrines to prevent courts even from hearing those claims."
The more cynical among us are not surprised that the current administration has failed to hold anyone accountable for the misery and mayhem of those dark years after the World Trade Center was destroyed by terrorists in hijacked jet liners. Those people point to Obama's questionable use of drone warfare to eliminate America's enemies from on high and the resulting deaths of innocent men, women and children caught in the shrapnel blasts.
But for those of us who are disappointed there have been no prosecutions by the government, a recent ruling by the Second Circuit Court of Appeals provides some hope that someday, someone might be held accountable.
For years, Turkmen vs. Ashcroft has floundered in legal limbo, since it was filed in 2002 on behalf of a class of Muslim, South Asian, and Arab non-citizens swept up by the INS and FBI in connection with the Sept. 11 investigation. "Based solely on their race, religion, ethnicity, and immigration status, hundreds of men were detained as 'terrorism suspects' and held in brutal detention conditions for the many months it took the FBI and CIA to clear them of any connection to terrorism," notes the Center for Constitutional Rights, which has been representing the plaintiffs. "They were then deported."
In 2006, a federal judge in the Eastern District of New York dismissed the claims filed by CCR but allowed the conditions of confinement and racial and religious discrimination claims to proceed. However, in 2009, the Second Circuit Court vacated much of the District Court's decision, remanding it for further review. While the District Court judge allowed the suit to proceed against certain supervisors and staff members, he dismissed the claims against the high-level officials, including former Attorney General John Ashcroft. In June of this year, the Appeals Court overturned that portion of the District Court's ruling. On Dec. 11, after hearing arguments from both sides, the Appeals Court left the decision standing.
"We simply cannot conclude at this stage that concern for the safety of our nation justified the violation of the constitutional rights on which this nation was built," wrote the six-member majority. "The question at this stage of the litigation is whether the (eight arrested foreigners) have plausibly pleaded that (the government) exceeded the bounds of the Constitution in the wake of 9/11. We believe they have."
What does all this mean?
"Recently, The Second Circuit Court of Appeals finally rejected the appeal and ruled that people can, in fact, sue members of the government for enacting policies that result in trauma or injury," wrote John Vibes for True Activist. "It is likely that this ruling sets a precedent for all members of the government and not just the Bush administration."
Thom Hartman, writing for TruthOut, pointed out "Like any self-proclaimed democracy, the United States can and should be a moral force for good in the world. But it can't be one when it lets the biggest war criminals in its history get off scot-free. The decision by the Second Circuit Court of Appeals allowing lawsuits against people like former Attorney General John Ashcroft is a step in the right direction. It opens up a new path for our country, a path that offers us the chance for a national redemption of sorts."
If the United States government is not going to hold its agents and leaders accountable for war crimes and policies that OK's torture, then it is up to those who directly suffered from such actions and policies to forge ahead in a court of law. While Turkmen vs. Ashcroft will most likely end up before the Supreme Court, it's uncertain how a majority might rule, given its current makeup. But it's gratifying that the Second Circuit is forcing Americans to reconsider the heinous behaviors committed in their names. As a nation that holds itself up as a beacon to the world, it's only appropriate that we do so.