Secretary of State Hillary Clinton (photo: marcn)

Former Vice President Dick Cheney, who should be investigated and tried for war crimes that include but are not limited to torture and abuse of detainees, has mounted a tour to publicize his memoir In My Time. Waterboarding has historically been considered torture and a war crime yet he is able to go on Dateline on NBC News and tell Jamie Gangel that he would strongly support using it again. He is also able to go on and express support for wiretapping and secret prisons, which seem to be mechanisms an authoritarian and not a democratic society would use.

The Justice Department under Attorney General Eric Holder and the Obama administration have awarded those culpable for war crimes and crimes against humanity impunity and, in effect, immunity. They have given culpable individuals like Cheney the space to do media tours and promote memoirs that offer “their side” of the story—a story that celebrates actions and conduct that, in a society that respected the rule of law and actually took seriously the idea of equal protection under the law, would be subject to a criminal investigation.

As a response to UN special rapporteurs sent by Secretary of State Hillary Clinton and published by WikiLeaks indicates, the Obama administration has taken up a policy of concealing war crimes and crimes against humanity. The cable notes a study on the “practice or permission of secret detentions to operate on the territories of States from various geographical regions” had been initiated. UN special rapporteurs had sent a letter April 16, 2009, asking for information for the study.

In the official response, Clinton outlines measures the Obama administration had take to “reaffirm the importance of compliance with the rule of law in US detention practices.” Clinton claimed actions were being taken to “ensure international legal obligations” were adhered to and even suggested “accountability and transparency” on national security policy had been promoted.

Clinton then illustrated the administration’s approach to counterterrorism, presumably aiming to show how it was better than under Bush:

One illustration of the approach the Obama Administration has taken to counterterrorism efforts is the case of Ali Saleh Kahlah Al-Marri.  Mr. Al-Marri entered the United States on September 10, 2001.  He was detained as a material witness in the investigation of the September 11, 2001 attacks and subsequently was indicted on criminal charges.  However, on June 23, 2003, al-Marri was designated by President Bush as an enemy combatant and transported to the Naval Consolidated Brig in Charleston, South Carolina, where he was detained until 2009.  After taking office, President Obama ordered a review of al-Marri’s case, and the Department of Justice brought charges against Mr. al-Marri in federal court on two counts of providing and conspiring to provide material support to al-Qaeda.  Mr. al-Marri pled guilty in April and was later sentenced.

A number of detainee cases were available for Clinton to choose to make the argument the Obama administration had turned a corner and was taking steps to uphold the rule of law. So, it is deplorable that the Secretary of State of the United States would sign off on a response to UN special rapporteurs that used a case that involved torture in order to argue Obama is taking a new and better approach to terrorism.

There’s only one problem: Al-Marri was tortured.

The Brennan Center for Justice defended Al-Marri and argued he had been tortured and treated inhumanely in the Navy Brig in South Carolina. From a legal brief filed by the Brennan Center:

For the first sixteen months of his military confinement, the government held al-Marri incommunicado.  His attorneys (who had been allowed to meet with him until his arraignment in Peoria), his wife and five children, and the International Committee for the Red Cross (“ICRC”) were all denied access.  The government ignored al Marri’s counsel’s many requests to communicate with him.  During that time, al-Marri was repeatedly interrogated in ways that bordered on, and sometimes amounted to, torture: sleep deprivation, painful stress positions, extreme sensory deprivation, and threats of violence and death. Those interrogations continued even after this Court stated that indefinite detention for purposes of interrogation is unlawful [Hamdi v. Rumsfeld]

According to the Brennan Center, Former Attorney General John Ashcroft contended al-Marri had to be designated an “enemy combatant” because he was a “hard case,” who had “reject[ed] numerous offers to improve his lot by…providing information.” But, the Brennan Center notes Judge Motz concluded “detention for the purpose of interrogation cannot be a ‘necessary’ or “appropriate” use of military force.”

What Clinton’s response to the special rapporteurs essentially codifies and legitimizes the practice of executive detention that was used against al-Marri. More significantly, it legitimizes the use of torture and abuse to obtain information from a detainee.

In July 2008, the New York Times published an editorial on the “disturbing victory” the Bush administration had won when a federal appeals court ruled the administration could “continue to detain Ali Al-Marri,” who had “been held for more than five years as an enemy combatant.” They noted the “sweeping power” could deprive citizens as well as noncitizens of freedom. Al-Marri, a Qatar citizen, was legally residing in the US. He was arrested in Peoria, Illinois, on “ordinary criminal charges” and seized and imprisoned by the military. The evidence in support of his secret detention was based on “thin hearsay evidence” and also based on the fact that he had been in an army and carried arms on a battlefield, which makes it even more difficult to celebrate al-Marri as a case that is an example of the Obama administration’s efforts to renew respect for the rule of law.

What the letter plainly shows is the contempt the State Department and Obama administration has for addressing the lawlessness of the Bush administration. With Cheney’s book tour to defend torture underway, the letter takes on even more significance. He is someone, who is culpable for war crimes and crimes against humanity. Yet, it is next to impossible to mount a prosecution when the Obama administration has decriminalized the Bush administration torture regime by arguing steps have been taken to leave behind that unsavory past.

How many other cases where individuals were finally granted due process but had been tortured and abused has the State Department or Obama administration used to argue it is rekindling its dedication and commitment to human rights and the law? For how many cases has the Obama administration sought conviction so it didn’t have to give credence to further allegations of torture and abuse?

Cheney is not the only culpable individual, who has been allowed to go on tour. Former president George W. Bush had his Decision Points tour. Former Defense Secretary Donald Rumsfeld (who actually faces a civil lawsuit right now for his role in authorizing torture of a whistleblower) had his Known and Unknown tour. And, Bush torture memo author John Yoo had his Crisis & Command tour.

US State Embassy cables, the Iraq and Afghanistan war logs, the Guantanamo Files and other document releases published by WikiLeaks provide the true history of the Bush administration. But this is a history the power elite in America cannot accept, for it would force them to question military actions and the regime of national security procedures taken and implemented since the September 11th attacks. So, the Obama administration maintains that history should continue to be treated as “classified” and they allow suspected war criminals to normalize what they did when they were in power.

The absence of condemnation and criticism from the Washington establishment as they defend torture on television just shows how Bush, Rumsfeld, Yoo and Cheney are on the cutting edge of a disturbing development in American society that has bipartisan political support. And, though there may be people who work in Washington, who are opposed to torture and support full investigations, those individuals are mute because they have been made powerless.

Ten years after 9/11, the United States is a country that accepts torture and lawlessness as necessary for security. At any moment, if the government found it necessary, it could turn the tools, which the government claims the so-called war on terrorism justify, against US citizens. The government has all the legal justification and programs it needs to do so in place.

Platitudes on support for human rights are increasingly vacuous. It is hard to believe that any UN special rapporteur tasked with putting together a study would not be skeptical of any argument the State Department or Obama administration made on detentions or torture.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."