By Laurel E. Fletcher and Eric Stover, San Francisco Chronicle
In his State of the Union Address, President Obama said he would close the detention center at Guantanamo because it is inconsistent with our commitment to justice. That’s a good decision but it doesn’t fix the root of problem. Justice requires more than shutting down Guantanamo. It means accepting responsibility for the torture and illegal acts that we, as a nation, committed against detainees held there and in secret CIA “black sites” around the world.
Guantanamo is part of a system created by U.S. anti-terrorism policies that included illegal kidnappings, secret torture centers and indefinite detention. In response to the Senate Torture Report, critics have renewed calls for accountability for these illegal acts. But the president hopes closing Guantanamo will quiet demands for legal justice.
Let’s hope not.
The United States carried out a state policy of torture and is responsible for this illegal conduct. We all have a stake in repairing the harm we caused and restoring the United States to its place as a nation that respects human rights. Closing Guantanamo as a goodwill gesture isn’t the same as closing Guantanamo because the United States is legally obligated to do so.
There’s a strong case for taking a new look at whether those responsible for the CIA’s secret rendition program, including the Department of Justice lawyers who provided it legal cover, committed crimes prohibited by federal law and the UN Convention Against Torture. If individuals violated our laws, they should be held accountable. But more is required.
While the president has made progress in transferring detainees to third countries, the detention camp still holds 122 men, three dozen of whom the United States has designated to be held without trial indefinitely. Obama did not mention what would happen to these men. But U.N. experts say holding the men under these circumstances violates the anti-torture convention.
What does state responsibility require?
First, we need to end evasive definitions of what is torture. The United States has ratified the international anti-torture convention, but applies its own definition. This has enabled the United States to claim that waterboarding isn’t torture because the intent of the interrogator is to extract information, not inflict pain. It also introduces ineffective protections against psychological torture by requiring that such acts must cause “prolonged mental suffering,” a standard the United Nations notes is impossible to apply. Interrogators cannot know what degree of psychological harm a detainee may suffer from interrogation techniques like isolation and sleep deprivation. The Obama administration should close these legal loopholes. Torture is torture.
Second, the United States should provide redress to those who it has tortured. We found in our 2008 study that many former Guantanamo detainees suffered from psychological, physical and social harms they attribute to their treatment in U.S. custody. They want to resume their lives as taxi drivers, shopkeepers, doctors and fathers. They deserve compensation and rehabilitation. International law requires it.
Finally, the UN committee that monitors the convention calls on the United States to comply with Obama’s executive order to close Guantanamo. Those detainees who committed crimes should be transferred to U.S. soil and tried in civilian courts under international due process standards. Everyone else should be released.
If we are serious about not repeating this shameful chapter in our nation’s history, the United States needs to take its international obligations seriously.