The Foreign Service Journal, September 2007

tion facilities, or to offer any other details related to that agency’s secret detention program. What appears clear is that the president and his subordinates have arrogated to themselves the power to define what constitutes tor- ture, torture-light and abusive or humiliating treatment at these facilities. The infamous Bybee “torture memo” took the position that short of causing organ failure, U.S. gov- ernment agents should, in effect, use their imagination in extracting information from detainees. (Jay Bybee, then assistant attorney general for the Justice Department Office of Legal Counsel, was subsequently promoted to a permanent position on the federal bench.) Moreover, the 2006 Military Commissions Act, which inter alia suspends habeas corpus, prohibits invocation of Geneva Convention rights, and permits use of evidence extracted under cruel, inhuman or degrading treatment, also absolves U.S. intelligence agents and their superiors for torture or abuse they have already committed or authorized. The U.S. government has consistently impeded access to detainees by the U.N., the Inter- national Committee of the Red Cross and, in Afghani- stan, by the official governmental human rights body. Human Rights Watch has identified nearly 40 individu- als who have disappeared into what amounts to an American version of a gulag. Further, the administration has yet to abjure and, indeed, appears to have continued to resort to extraor- dinary rendition, in many instances transferring de- tained suspects to the authority of governments the State Department has identified as employing torture. Administration claims to seek prior assurances from those governments that they will not torture rendered suspects are specious. Such assurances are on their face unenforceable, and in no case has Washington fol- lowed up with these governments despite evidence that they have violated their assurances. In light of this his- tory, Pres. Bush’s adamant and repeated assertions that the U.S. government does not use or endorse the use of torture are simply not credible. In his 2003 State of the Union address, Bush said the following regarding U.S. conduct toward terrorist sus- pects: “All told, more than 3,000 suspected terrorists have been arrested in many countries. And many others have met a different fate. Let’s put it this way. They are no longer a problem to the United States and our friends and allies.” There is perhaps no statement by the Bush administration that more flagrantly reveals its violation of human rights standards or betrayal of core American values than this crude reference to the dispatch of “sus- pects.” The dire implications for those who might be per- ceived by the United States as its enemies could not be clearer. But the implications extend beyond that ever- growing group. The actions and policies toward sus- pected enemies has lowered the bar for other govern- ments to deal with opponents without regard to interna- tional human rights standards. The “pushback” factor is already evident in treatment of political dissidents in many countries, as documented in the 2007 State Department Human Rights Reports. The failure of command responsibility. In war — even conflicts that can arguably be described as “just wars” — extraordinary crimes against civilians take place. In such circumstances, responsible authorities have two fundamental duties: to review policies and pro- cedures so as to preclude recurrences, and to hold accountable perpetrators and their civilian and military commanders in a transparent judicial process. The Bush administration’s conduct of the “war on ter- ror” and the wars in Iraq and Afghanistan has been replete with abuses and excesses that have shocked the international community and shamed the American peo- ple. The brutality associated with operations at Abu F O C U S S E P T E M B E R 2 0 0 7 / F O R E I G N S E R V I C E J O U R N A L 23 From the Universal Declaration of Human Rights (1948) Article 6. Everyone has the right to recognition every- where as a person before the law. Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this declaration and against any incitement to such discrimination. Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fun- damental rights granted him by the constitution or by law. Article 9. No one shall be subjected to arbitrary arrest, detention or exile. Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any crim- inal charge against him.