Disregard for human rights post 9/11

New revelations about the use of torture that have captured headlines in recent days are symptomatic of a broader issue. One of the casualties of international responses to Al Qaida and global terrorism has been human rights and international law.

Authoritarian governments have exploited the threat to silence dissent and to control, limit and repress legitimate opposition and reform movements from Egypt to Uzbekistan. Western governments that have long championed human rights and sought to distinguish themselves from other countries, whose police and security forces routinely and indiscriminately use torture, have lost the moral high ground. In less than a decade that high ground has been compromised and eroded, in particular by the George W. Bush administration, whose laws and policies circumvented or directly violated international law. During the Bush years, rule of law and civil liberties were subordinated to the will of the president. In the mirror image of extremists, policies of preventive or pre-emptive action became the excuse for actions that would normally be seen as illegal and/or immoral.

The recent release of CIA memos regarding the use of torture, in particular waterboarding, have been a grim reminder of the legacy of the Bush era, a legacy that, as President Barack Obama noted in his inaugural address, compromised America's principles and values in the name of security: "our power alone cannot protect us, nor does it entitle us to do as we please".

Abu Ghraib prison, Guantanamo Bay Detention Camp, 'extraordinary rendition' of detainees to countries that torture and the use of waterboarding have become symbols of America's use of torture. They also exemplify the dangers of using national or global security as an excuse for measures and actions that violate American and international law and the civil liberties of many innocent victims. International human rights organisations have addressed these issues repeatedly and David Cole of Georgetown University Law School, in an incisive critique of Bush policy, has documented and discussed the failed policies of the administration - which, as the title of his book indicates, made America, Less Safe, Less Free.

While Obama has a track record as an advocate of civil liberties and has been clear in his denunciation of torture and desire to restore America's image and relations abroad, his policies have vacillated. Obama criticised the Bush legacy, the use of torture and announced that the US would not use torture. Obama and his Attorney General Eric Holder denounced waterboarding as torture. As a presidential candidate, Obama had said that he would move quickly to close Guantanamo and criticised the military commissions there as "an enormous failure". He also stated that as president he would "reject the Military Commissions Act". Only two trials have been completed in the nearly eight years since the Bush administration announced that it would use military tribunals.

Although Obama announced the closure of the Guantanamo Bay Detention Camp shortly after taking office, he subsequently altered that plan, stating that the complexity of the task would require a much slower timetable for closing the facility. This week it is expected that the military commissions and trials will be revived to prosecute some Guantanamo detainees. The move has already drawn sharp criticisms from human rights organisations as well as some of Obama's political allies. Human rights groups have noted that any form of military commission would permit shortcuts that would not be available in the American court system. The executive director of the American Civil Liberties Union, Anthony D. Romero, has already commented that Obama had pledged to return the country to the rule of law and that "continuing with the military commission system would be a retreat from that promise".

To underscore America's recommitment to the rule of law, the Obama administration should prosecute those responsible for the violations and abuses of international law. Many in the intelligence services and the military had feared criminal prosecution for their actions. Rather than making scapegoats of lower-level officials, the senior officials who designed, approved, or implemented the policy of torture and rendition should be held accountable. The restoration of America's moral stature and leadership require that, in contrast to the Bush era, the US not be seen as exempted from upholding the standards we supported in Nuremberg, the International Military Tribunal for the Far East (generally called the Tokyo War Crimes Trials, in which Japanese prison officials and guards were convicted of waterboarding), The Hague, and after the Bosnian conflict.

Dr John L. Esposito is director of the Centre for Muslim-Christian Understanding and co-author of Who Speaks for Islam? What a Billion Muslims Really Think.