U.S. Will Provide OAS Body with Obama Administration’s Position on Truth Commission

It was an odd but refreshing spectacle, to see U.S.-based human rights lawyers arguing to the Inter-American Commission on Human Rights that the United States has effectively insulated itself from accountability for torture and war crimes, and ought to be pushed by an international body to do better.

The Inter-American Commission, an arm of the Organization of American States — of which the United States is a member — normally sits in judgment of countries like Argentina and Chile, whose histories of torturing and “disappearing” political opponents and committing war crimes are notorious. But there were the commissioners, from various Latin American countries, listening to the arguments of Center for Constitutional Rights President Michael Ratner and ACLU human rights program director Jamil Dakwar, that the Bush administration had enacted laws and taken steps in litigation to shield itself from accountability for such crimes — and so far, the Obama administration had not changed those policies.

In particular, Ratner was talking about provisions of the Military Commissions Act of 2006 that provides immunity for Bush administration officials who authorized torture of military combatants, violated the Geneva Conventions or otherwise broke the law on the advice of government lawyers. He also cited the positions that the Bush and Obama Justice Departments have taken in seeking to dismiss cases on the grounds that they would expose “state secrets” or otherwise interfere with executive powers.

Dakwar recounted the story of German citizen Khaled el-Masri, an ACLU client who claims he was tortured at a CIA “black site” but whose case was dismissed because of that “state secrets” privilege.

And both lawyers argued that a truth commission, along the lines of one proposed by Senator Patrick Leahy (D-Vt), if it provided immunity and foreclosed prosecutions would never be an adequate substitute for criminal prosecutions, which they argued are critical to holding the United States accountable for violations of international law.

“That’s the way to demonstrate that those violations will not be tolerated and wil not be repeated,” said Ratner. “Otherwise what you’re faced with is impunity … A commission can’t be used as a substitute for criminal liability.”

Lewis Amselem, the U.S. representative to the commission, for his part, respectfully listened to the list of charges and nodded. He responded with his own list of all the pronouncements the Obama administration has made about closing Guantanamo, ensuring the prison meets Geneva Conventions standards, and reviewing the cases of every detainee to facilitate their eventual transfer. He didn’t defend any of the particular provisions of the Military Commissions Act or the legal positions of the Justice Department as described, but promised to bring the concerns back to the State Department. He promised to report back to the commission with the administration’s policy on a truth commissions, as well as to answer questions from the commissioners about how many Americans have been prosecuted for torture in military and civilian courts.

Ratner, however, was ready with the answer:  “None.”

Although there have been cases brought through the military system charging assault of prisoners, only lower level military people at Abu Ghraib were charged, “under the theory of the Bush Administration that this was not a policy or practice of the United States, it was just a few bad apples.”  Prosecutors “only had authority to look down the chain of command, not up the chain of command,” said Ratner.

While the commission’s rulings are not binding, it has authority to make recommendations to the U.S. government. Lawyers involved said they expected those to be issued within the next few weeks.

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