Double Standards: How Our Lawlessness Strengthens Our Enemies

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We have failed to even investigate torturers, yet we have prosecuted and imprisoned millions for lesser offenses. And we allow mass murderers the benefit of constitutional rights that we deny detainees at Guantanamo Bay and elsewhere. Until policymakers examine and fix these double standards, they will continue to undermine our foreign policy, as well as our domestic criminal justice system.

We now know that the Bush administration’s torture policies proved horrendously counterproductive, in more ways than one: they eroded our allies’ trust, undermined the ability of our non-state supporters to credibly defend our goodwill, generated bad intelligence in the form of forced – and predictably false – confessions, and undermined the morale of the professional interrogators who resisted their illegal (and idiotic) orders.

Worse yet, torture drove recruits into the arms of our enemies. According to veteran interrogators from multiple armed services, as well as the FBI, the number one reason militants flocked to Iraq was US torture of detainees at Guantanamo Bay, Abu Ghraib, Bagram Air Force Base, CIA black sites and the various foreign countries to which we continue to outsource torture through the extraordinary rendition program.

It was galling enough when, last year, all three branches of the federal government colluded to sweep evidence of torture under the rug. Confronted by thousands of abusive acts depicted in photos – some as severe as outright rape – Washington united to protect its own. Acting at the behest of the CIA’s discredited leadership, the administration lobbied Congress to amend a federal statute to grant the Defense Department an extraordinary authority to hide specific evidence of its own criminal trail, and the Supreme Court signed off on the deal.
Now, the double standard has come full circle … twice.

The first has plagued the Obama administration throughout its first year in office, and undermined the legitimacy of both its foreign policy and our criminal justice system. On the one hand, people whose criminality stands hidden in plain sight – the former officials who unapologetically authorized torture, such as Dick Cheney, David Addington, Jay Bybee and John Yoo – remain free of even investigation, let alone prosecution. On the other hand, people of color face relentless prosecution and vicious penalties for nonviolent offenses like drug possession, gambling or even moving traffic violations.

The second double standard is more recent, equally troubling and potentially more problematic going forward. On the one hand, charges facing mercenaries apparently guilty of senselessly murdering nearly 20 Iraqis (in a bloody incident that touched off one of the most violent episodes of our six-year occupation) were dismissed by a federal district court on Thursday because the prosecution relied on statements given under promises of immunity, and thereby violated the Fifth Amendment right against self-incrimination.

On the other hand, the kangaroo courts at Guantanamo Bay we call “military commissions” don’t even pretend to honor such rights or others that are far more fundamental. Mercenaries who commit mass murder with profound international consequences were afforded robust constitutional protections barring the use of statements made under promises of immunity. Meanwhile, detainees held by the US – who have included humanitarian workers and tourists swept up with “the worst of the worst” in the race to find scapegoats – held no right to exclude statements coerced by outright torture until last fall. Nor have they (for the most part) enjoyed the opportunity to assert any rights in impartial courts.

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