(updated below - Update II)
One of the problems for the U.S. Government in releasing Guantanamo detainees has been that, upon release, they are free to talk to the world about the treatment to which they were subjected. When the Bush administration agreed to release Australian David Hicks after almost 6 years in captivity, they did so only on the condition that he first sign a documenting stating that he was not abused and that he also agree -- as The Australian put it -- to an "extraordinary 12-month gag order that prevent[ed] Hicks from speaking publicly about the actions to which he has pleaded guilty or the circumstances surrounding his capture, interrogation and detention," a gag order which "also silence[d] family members and any third party."
Last month, in response to increasing pressure in Britain over reports of British resident Binyam Mohamed's deterioration in Guantanamo, the Obama administration released him back to Britain. Ever since, he has been detailing the often brutal torture to which he was subjected over several years, torture in which British intelligence officials appear to have been, at the very least, complicit. As a result, despite the efforts of both the British Government and the Obama administration to keep concealed what was done to Mohamed, the facts about his treatment have emerged and a major political controversy has been ignited.
That's because torture is illegal in Britain, as it is in the United States. But unlike the United States: Britain hasn't completely abandoned the idea that even political officials must be accountable when they commit crimes; their political discourse isn't dominated and infected by the subservient government-defending likes of David Ignatius, Ruth Marcus, David Broder and Stuart Taylor demanding that government officials be free to commit even serious war crimes with total impunity; and they don't have "opposition leaders" who are so afraid of their own shadows and/or so supportive of torture that they remain mute in the face of such allegations. To the contrary, demands for criminal investigations into these episodes of torture (including demands for war crimes investigations from conservatives) span the political spectrum in Britain:
The Conservative leader, David Cameron, called for a "targeted and clear review . . . to get to the bottom of whether Britain was knowingly or unknowingly complicit in torture".
The Liberal Democrat leader, Nick Clegg, said: "It is not enough for Gordon Brown to say the government does not endorse torture. There remain serious questions concerning how far senior political figures were implicated in these alleged practices."
Because of those facts, the British Government has now been forced to commence a criminal investigation into whether British government agents colluded in Mohamed's torture:
The attorney general, Lady Scotland, announced the unprecedented move in light of damning evidence that Britain's security and intelligence agencies colluded with the CIA in Mohamed's inhuman treatment and secret rendition.
She said the police inquiry would look into "possible criminal wrongdoing" in what the high court described as Mohamed's unlawful questioning.
As The Guardian reported, the British Government was, in essence, forced into the criminal investigation once government lawyers "referred evidence of possible criminal conduct by MI5 officers to home secretary Jacqui Smith, and she passed it on to the attorney general." In a country that lives under what is called the "rule of law," credible evidence of serious criminality makes such an investigation, as The Guardian put it, "inevitable." British Prime Minister Gordon Brown has clearly tried desperately to avoid any such investigation, yet as The Washington Post reported this morning, even he was forced to say in response: "I have always made clear that when serious allegations are made they have got to be investigated."
Wouldn't it be nice if our government leaders could make a similar, extremely uncontroversial statement -- credible allegations of lawbreaking by our highest political leaders must be investigated and, if warranted, prosecuted? In a country with a minimally healthy political culture, that ought to be about as uncontroversial as it gets. Instead, what we have are political leaders and media stars virtually across the board spouting lawless Orwellian phrases about being "more interested in looking forward than in looking backwards" and not wanting to "criminalize public service." These apologist manuevers continue despite the fact that, as even conservative Washington Post columnist Anne Applebaum recently acknowledged in light of newly disclosed detailed ICRC Reports, "that crimes were committed is no longer in doubt."
Even in the U.S., each new disclosure of just how pervasive and brutal was our Government's criminality prompts new calls for investigations from previously government-defending precincts, and -- thanks largely to the ACLU and other groups -- some of the most potent new disclosures are imminent. As a result, it's becoming increasingly difficult for David Ignatius and friends to dismiss advocates of investigations as "liberal score-settlers" when people like Bush 41 U.N. Ambassador Thomas Pickering, Reagan FBI Director William Sessions, Gen. Antonio Taguba, and Anne Applebaum are now demanding investigations into these crimes of torture.
As more detainees are released and are thus able to speak publicly about what was done to them, and as more documents are leaked and are formally disclosed, the extent of our Government's depraved criminality will be increasingly difficult to ignore, no matter how eager our current Government might be to do so. Indeed, even investigations in places like Britian -- which centrally involve receipt of CIA telegrams detailing Mohamed's torture -- are highly likely to lead to the disclosure of even more graphic and incriminating evidence proving that American leaders committed war crimes. The profoundly incriminating evidence is piling up, and will continue to, on its own.
Still, just look at what is happening in Britain to see how far off course we are from even a pretense to living under the rule of law. The British have hardly been paragons of human rights and transparency. They've worked as closely with the Bush administration in most of these abuses as any other country in the world (with the possible exceptions of Egypt and Morocco). And their government has been almost as desperate as ours to keep secret what was done.
Nonetheless, despite allegations of criminality far less extensive than those that have been made against the U.S., their political system is compelling serious investigations into these crimes. That's because for countries that aren't completely corrupted to their core, political leaders aren't free to commit serious crimes and then simply be shielded from investigation and accountability. Credible allegations of high-level criminality -- and only the hardest-core Bush followers deny that we have that -- compel criminal investigations. As the British controversy demonstrates, that isn't remotely a controversial proposition for anyone who believes in the most basic precepts of the rule of law.
* * * * *
Just as a reminder of two upcoming events:
(1) On the evening of March 31, I'll be at Ithaca College to receive the first annual Izzy Award for independent journalism -- named after the great I.F. Stone -- along with my co-recipient Amy Goodman. Both Amy and I will be speaking at the event on independent media and related issues, and more than 1,000 people are expected. The event is free and open to the public and event details are here.
(2) On April 3, beginning at noon, I'll be at the Cato Institute in Washington to present my drug policy report, entitled Drug Decrimialization in Portugal, which details that country's successes with its 2001 decision to decriminalize all drug possession and usage. Event details and RSVP are on Cato's site (here), where it can also be watched live. I wrote about the background of the report here.
UPDATE: Just to underscore one point: Britain also has a financial crisis to deal with. They also have a "future," not just a past, to address. They also have faced, and still face, terrorist threats. Criminal investigations and prosecution would also be controversial for them and create partisan divisions.
But they're still proceeding to investigate credible allegations of serious crimes on the part of their government officials. That's what the "rule of law" means.
UPDATE II: Knowing that exposure of its actions would prove its severe criminality, it was just recently revealed the Bush administration also tried to induce Mohamed to accept a gag order similar to the one Hicks accepted, whereby Mohamed would have been freed from Guantanamo last year if he agreed (a) not to talk publicly about the treatment he received and (b) cease all efforts to prove in court that he was tortured and/or to obtain documents proving that he was mistreated (h/t Jim White). He refused.
So: we put people into cages for years with no charges and tortured them, and then told them that we would release them only if they agreed to keep silent about what we did to them and renounce all claims for judicial accountability and disclosure. If they refused the vow of silence -- as Mohamed did -- they would stay in their cage.