Cheating Justice (28 page)

Canada also settled with one of its citizens, Maher Arar, who was detained by the United States in 2002 and “rendered” to Syria, where he was tortured. After release, he was exonerated of any wrongdoing. The Canadian government apologized and agreed to pay Arar $9.8 million, although the U.S. courts have refused even to hear his case.
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In 2003 Arar told
Democracy Now!
: “Since my release I have been suffering from anxiety, constant fear, and depression. . . . But I promise myself one thing—that I will continue my quest for justice.”
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Civil lawsuits brought in other nations are valuable tools for providing redress to victims of torture, and some have managed to bring out information and details about the U.S. use of torture and the collaboration of other countries. But the extreme resistance of the U.S. government and its willingness to protect CIA and top Bush administration officials make the cases unlikely to result in the justice that Maher Arar and other torture victims seek, or the accountability that Americans deserve.

When every effort to get justice for Khaled El-Masri in the United States, Germany, and Macedonia came to nothing, he sought help from the European Court of Human Rights and the Inter-American Commission on Human Rights.
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Regional international courts may adjudicate complaints that arise in their geographic area. The European Court of Human Rights serves the forty-seven members of the European Union and may act to protect the civil and political rights of citizens.
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The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights serve the twenty-one members of the Organization of American States in Central, Latin, and South America that have ratified the commission and court. (The United States is not among the ratifying nations.) The commission investigates complaints of human rights violations and appropriate cases may be referred to the court for further action.
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In October 2010, the European Court of Human Rights required Macedonia to explain its involvement in the extraordinary rendition of El-Masri in a case brought by the Open Society Justice Initiative, reported Richard Norton-Taylor in the
Guardian.
“The European court of human rights has for the first time told a state it has a case to answer over the CIA's practice of seizing terror suspects and subjecting them to mistreatment in secret jails,” wrote Norton-Taylor.
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On April 9, 2008, a case was filed before the Inter-American Commission seeking an apology and a declaration that the U.S. rendition program violated El-Masri's rights, according to the ACLU, which is handling the matter.
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In 2005, the Inter-American Commission on Human Rights condemned the actions at Guantánamo and called for an end to rendition, according to author Michael Haas. And, in 2008, a detainee in Guantánamo, Djamel Ameziane, filed a complaint with the Inter-American Commission over the conditions of imprisonment, including solitary confinement for six years, torture, and denial of medical care, notes Haas.
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Decisions from the European Court or the Inter-American Commission on Human Rights that support accountability could draw attention to disgraceful U.S. torture practices and have a ripple effect on engaging the United States to take steps toward accountability.

Disturbing events resulting from the actions of the Bush administration have made their way into investigations and inquiries in other nations and by international bodies. While the legal cases have clustered around the torture of detainees, certain commissions and inquiries are also seeking to uncover the truth about how their nations became involved in the Iraq war. Although the commissions have no power to prosecute or punish, their findings can have political ramifications in their own countries, reverberating in the United States as well.

Two countries—Great Britain and the Netherlands—began inquiries into the beginnings of the Iraq War. The Dutch undertook an extensive inquiry into the decision of its government to enter war in Iraq, according to Afua Hirsch in the
Guardian
.
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In 2009, after years of pressure, the Dutch prime minister convened a committee chaired by Willibrord Davids, a retired president of the Dutch Supreme Court, to investigate intelligence,
international law, and decision making leading up to the country's war participation. The seven-member special committee of inquiry included two legal academics and a former member of the Court of European Justice.

In January 2010, the Davids committee issued a report of more than five hundred pages. In the short seventeen-page English-language version, the committee uses measured, diplomatic language, but rips into the Dutch government's actions. Six of its findings condemn the Dutch government's efforts to justify the legality of the invasion. The committee found that the invasion had “had no sound basis in international law,” and it criticized the government for viewing the legality of the war as a “subsidiary” issue.

The Dutch group determined that the UN Security Council Resolution from the first Gulf War “cannot reasonably be interpreted as authorizing . . . military force” to invade Iraq in 2003, which was the position taken by the Dutch government. The committee found that references to claims about weapons of mass destruction in Iraq were used to distract attention when the real goal was regime change—which would be a prohibited basis for war under international law, and which the government could reasonably foresee would be the result of the invasion. The committee said that “the Dutch government lent its political support to a war whose purpose was not consistent with Dutch government policy . . . ; the Dutch stance was to some extent disingenuous.”

The Davids committee found that full disclosure to parliament had not been made, nuances in intelligence reports were not communicated to parliament, and statements made by the minister of defense about the intelligence reports were not accurate. The Netherlands was included in the “coalition of the willing” improperly, the committee said. The government's failure to examine the decision making about the Iraq invasion, it said, was “obstinate” and “it would have been better if an inquiry took place at an earlier stage.”
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At first, the Dutch prime minister, Jan Peter Balkenende, criticized the report and disagreed with its conclusion about the illegality of the war. His response prompted a huge outcry and, within a day, “brought the government to the brink of crisis,” reported the Dutch paper
NRC Handelsblad
on January 13, 2010. To avoid his government's collapse, Balkenende changed his position, essentially accepted the report's conclusions, and admitted that the cabinet should have established a “more adequate legal pretext under international law,” said the Dutch paper. The extraordinary findings
of the Davids committee—that the Iraq War justifications were inadequate and the war, therefore, illegal—were the first ever from a governmental body and are enormously relevant to U.S. accountability. But the report received scant attention in the States.
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Great Britain also began looking into the Iraq War in 2009 “to establish a reliable account of the UK's involvement,” according a statement by Sir John Chilcot, chair of the Iraq Inquiry, on July 30, 2010.
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Generally known as the “Chilcot Inquiry” after the long-standing civil servant and establishment figure, a five-person panel was empowered to take live testimony and to obtain government documents. Several hearings were streamed over the Internet; others have been private. Its proceedings, which are supposed to be independent of the government, are followed regularly in the British press, sometimes on a minute-by-minute basis. Top officials, including former prime minister Tony Blair, have testified to the Chilcot Inquiry.

The actual independence of the group came into question with the WikiLeaks release of U.S. State Department cables in November 2010. One cable revealed that Ellen Tauscher, the U.S. undersecretary for arms control and international security under President Obama, secured a promise from the British defense department in September 2009 that “the UK had ‘put measures in place to protect your [the United States'] interests.'” The
Telegraph
recounted on December 1, 2010, that shortly after receipt of the cable, protocols were established in Britain to permit the government to censor the Chilcot Inquiry's report based on commercial and economic interests, including possible damage to international relations. The sequence of events led the Stop the War Coalition in Britain to call the cable “the beginning of the cover-up,” according to the
Telegraph.
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Other aspects of the Inquiry have been criticized. No lawyers are on the panel, so some worry that international law will be shortchanged, and the testimony is not under oath.

Despite the criticisms, the Chilcot Inquiry took, in a methodical way, the public testimony of over 125 people by May 2011, uncovering new information about the war-making process and the legality of the war. Eliza Manningham-Buller, former head of MI5, the domestic security branch of the British government, told the panel that the direct threat from Iraq in March 2002 was determined to be “low.” She said that there was an overreliance on “fragmentary” intelligence after that—in short, the intelligence did not support the claimed reasons for the attacks. Manningham-Buller
also described ramifications for England—the invasion “radicalized hundreds of British Muslims,” she said, requiring a substantial budgetary increase to deal with the large threat increase within the country.
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The attorney general during that time period, Lord Goldsmith, testified that he delivered a memo to Prime Minister Blair on January 30, 2003, stating that UN Resolution 1441 did not authorize the use of military force. But the next day, Prime Minister Blair told President Bush at the White House that he was “solidly” with him.
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At the same time, Blair told Parliament and the media that a second UN resolution was not legally needed for an invasion, although he had in hand the contrary advice from the attorney general. Curiously, Lord Goldsmith, after arguing for months that the UN resolution did not justify an invasion, abruptly changed his mind days before the invasion following a personal meeting with Blair, the details of which he could not recall. “Honour and duty should have compelled [Goldsmith's] resignation,” wrote Stephen Glover in the
Daily Mail
on January 19, 2011. Had he done so, “at the very least, the lawfulness of the invasion would have been much more openly and robustly debated in Parliament and the country,” Glover wrote.
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The British panel was so disturbed by some testimony that, after calling former prime minister Tony Blair in January 2010, it decided to call him again in 2011. In particular, the panel wanted Blair to address reports that he had given President Bush his word to support an invasion of Iraq no matter what.
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The panel expressed “grave doubts” about the veracity of statements by Blair in his first appearance; of particular concern was “shattering testimony” by Lord Goldsmith that Blair had misled the country about the legality of the war.
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On January 21, 2011, the five Chilcot panel members confronted Blair with contradictory and conflicting versions of events, posting the public testimony on the Iraq Inquiry website.
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This time, Blair told the Chilcot Inquiry that he disregarded the advice from Lord Goldsmith because it was not based on a formal request and because Blair “was continuing to hold” to another position, specifically, that a second resolution from the UN was not necessary to go to war in Iraq. Blair had difficulty explaining why he failed to keep his cabinet informed of war plans, why he gave the cabinet only the second opinion of the attorney general without mentioning the prior contrary views, what promises he had made to President Bush in the summer of 2002—well before the country had agreed to go to war—and
how he could say that Iraq was not cooperating with UN inspectors when the UN inspectors said otherwise. For example, Blair claimed that even though Saddam Hussein was cooperating with weapons inspectors he “had not had ‘a genuine change of heart' and still wanted WMD,” wrote Chris Ames in the
Guardian
. Ames concluded that the specifics and the evidence made it “clear that he was seeking regime change from an early stage” and that Blair “put his foot in his mouth.”
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The Chilcot Inquiry has revealed how much of the British war-making decision relied upon deceptions, manipulation of legal opinions, and avoidance of standard checks and balances. Whatever findings are made in the final Chilcot report, the process offers a possible model for inquiry, and one that the United States should seriously consider.

Other investigations across the globe have disclosed critical information as well. Two important reports from the International Committee of the Red Cross provided independent assessments of the U.S. treatment of detainees, as noted earlier. A February 2004 report on Iraqi prisoners held by the United States found mistreatment,
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and a February 2007 report on fourteen “high value” detainees described “ill-treatment” that “constituted torture.”
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In July 2010, British prime minister David Cameron, a conservative, announced an independent investigation into Britain's role in mistreatment of detainees “to restore Britain's moral leadership in the world.”
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Cameron told parliamentarians that a judge-led inquiry panel “will have access to all relevant government papers—including those held by the intelligence services.” But the inquiry, he said, would not include public hearings, leading a Tory MP, Andrew Tyrie, to call for independence and transparency. “It is in the national interest that we get to the bottom of this, get to the truth and move on,” Tyrie said.
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