Double Standards: How Our Lawlessness Strengthens Our Enemies

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.

Rather than federal courts defending the rights of the accused against potentially arbitrary imprisonment, detainees plead their cases before biased military commissions seeking pre-ordained outcomes. Rather than excluding “compelled statements” like those of the exonerated Blackwater contractors, the military commissions operating in Guantanamo Bay (and those proposed by some policy analysts as a model for an even broader scheme to operate within the US after the facility in Cuba has closed) invite unreliable evidence routinely rejected by federal courts.

The US military commander in Iraq attempted to explain Thursday’s decision with the lame and inaccurate assertion that it offered “a lesson in the rule of law.” What the dismissal of the Blackwater contractors’ charges actually demonstrates is quite the opposite: law requires consistency, whereas our approach to accountability for war crimes smacks of opportunism.

The imperatives to defend our nation’s historical legacy, or the universal moral principles condemning torture, or the international legal system and its bedrock prohibition on torture have apparently proven too quiet for the deaf ear of Washington institutions. No one seems to care that although torture is an international crime, officials complicit in it remain highly rewarded and occupy prestigious positions in government and the private sector.

But these double standards carry a price, well beyond the reputation and moral standing our nation has already lost.

We wage, in the war on terror, a battle for hearts and minds. And there is no surer way to lose that battle than to violate the rights of detainees, while vindicating those of mercenaries – or to prosecute politically powerless people for innocuous behavior, while praising officials who violate our species’ most fundamental shared commitments. Such blatant inconsistency is lost neither on our enemies nor the billions of individuals targeted by their recruitment efforts.

Officials increasingly wring their heads over a supposed threat of domestic radicalization. It is ephemeral in the first instance, but the concern points to a generally legitimate fear: people of any kind who grow alienated could eventually turn violent.

Some Muslims in America may indeed be growing increasingly alienated – which may seem understandable in the face of policies like “special registration” round-ups, guilt by association, pervasive surveillance, infiltration of religious institutions and entrapment by ex-convicts paid handsomely by taxpayers, intrusive interrogations and searches, private sector employment and housing discrimination, hate crimes, bullying and racial and religious profiling by law enforcement authorities. But as a group, we have not renounced the social compact by taking up arms, to any greater extent than former servicemembers could be said to have been categorically radicalized by virtue of some supporting right-wing militia groups like the Aryan Nation.

But while Muslim Americans remain loyal to the US, people in other countries have no compact with us to renounce. And they have no reason to accept our military presence except the principles we purport to uphold … at the same time that we overtly violate them without apology.

The strategy that could most effectively hamstring violent extremism abroad is the same one that would most effectively stop disaffected youth in America from turning to violence: applying our principles equally and with consistency. Honestly investigating our nation’s record and prosecuting those individuals responsible for international crimes would go a long way to reassure observers that we take justice seriously. And allowing the rights and laws in which we have long taken pride to also govern the trials of those we militarily detain would relieve concerns about US human rights abuses, among international critics and also domestic observers targeted by militant propagandists.

At the moment, we continue to fail on each front. Despite the president’s pretty words in Cairo last fall, we Americans committed to rule of law and the Constitution remain waiting for that “change [we] can believe in.” And it’s not just us: the world – and the people over whose hearts and minds we struggle – are watching, too.