The airport police came and chained my wrists and ankles. They took me in a van to a place where many people were being held . . . I kept asking but they would not tell me what was happening. At 1 a.m. they put me in a room with metal benches in it . . . there was no bed and the lights were on all night. I was very, very scared . . .

– Testimony of Maher Arar to U.S. Congress hearings on rendition to torture, October 2007





It's all over but the shouting. The Iraq occupation is winding down. The countdown for American withdrawal from Afghanistan has begun. The trumpets of war are playing Taps. And George W. Bush and his nest of hawks have flown the coop.

Or have they?

As the second decade of a broken century limps into view, some in the United States and abroad are doing the math and demanding an accounting. They reject the argument that the horrific 9/11 attacks on New York and Washington excuse the shredding of the rule of law that came with the "war on terror."

They say the legitimization of torture, the trampling of civil liberties, the violation of international law, and a dubious declaration of war that claimed more than 4,000 American and 100,000 Iraqi lives are not just miscalculations but crimes.

War crimes, in fact. "This administration did more than commit crimes," argues Scott Horton, an expert on international law and contributing editor of Harper's magazine. "It waged war against the law itself."

Those who believe decision-makers in the Bush administration should be investigated, and potentially brought to trial, were heartened by the victory in 2008 of Barack Obama, a candidate who campaigned on renewal and change.

But with the U.S. weathering an economic earthquake, and the political landscape jaggedly polarized, Obama has shown little appetite for pursuing former administration members. Bush-era strategists such as former vice-president Dick Cheney spend more time on the podium – pulling vast sums as celebrity guests – than on the witness stand. Some legal advisors and intelligence officials may fear a reckoning, but not those who held command responsibility.

So the dilemma remains: can a country that has allowed the rule of law to be flouted continue as a credible democracy, setting an example to ordinary citizens and claiming the moral high ground in the international community?

"The fact that a huge slough of people were engaged in torture and conspiracy to torture, with impunity, says something about the rule of law in this country," laments Michael Ratner of the Center for Constitutional Rights. "If we think we need to torture someone for any reason we'll do that. What does that say to any police precinct?"

Or to America: "I'm very pessimistic on what I considered an emerging sense of fundamental rights," he says. "In some ways civilization has been set back at least 100 years."





"In Syria . . .the cell was like a grave. It was three feet wide, six feet deep and seven feet high. There was a small opening in the ceiling, about one foot by two feet with iron bars . . . there were cats and rats up there and from time to time the cats urinated through the opening into the cell."

– Testimony of Arar to U.S. Congress hearings





THE ARGUMENT IS that the Bush Administration's "war on terror" prompted skewing of intelligence that led to war in Iraq, an operation that cost not only blood but treasure, draining an estimated $3 trillion in U.S. taxpayer dollars; that it also created homeland surveillance programs not seen since the witch-hunts of the anti-communist McCarthy era; and that the administration enabled "rendition" flights of terrorism suspects like Canadian Maher Arar to countries where they could be tortured, and that it created secret "black sites" where suspects were held and interrogated. Those suspected of terrorist links could be seized and brought before military tribunals, their constitutional rights suspended.

Of these excesses, torture has had the most traction in legal circles, and seems most likely to bring scrutiny, if not justice, to some members of the Bush administration.

British international lawyer Philippe Sands, author of Torture Team: Uncovering War Crimes in the Land of the Free, spent months interviewing those he says created a regime of abusive interrogation.

He concluded the lawyers who advised Bush, Cheney, Defense Secretary Donald Rumsfeld and others, were guilty of giving the unsound advice that terrorism suspects had no right to protection under international law, a view that the U.S. Supreme Court overruled in 2006.

By that time, Sands contends, a "torture team" had made abuses systematic, eliminating the constraints of the Geneva Conventions, the 1984 treaties prohibiting torture, and even the army's own Field Manual.

The administration lawyers have made outraged denials of Sands' claims, calling them "misrepresentations" and even deliberate lies, although they were drawn from taped encounters.

Sands' investigation did not reach the top echelons of power, nor did it launch prosecutions in the U.S. But other countries have been quicker off the mark.

Last spring, a Spanish court began a criminal investigation of six former Bush officials on suspicion of aiding and abetting torture. Italy has convicted 23 Americans, mainly CIA operatives, in absentia, for kidnapping a Muslim cleric from Milan in 2003 and sending him to allegedly be torture in Egypt.





"They beat me with a shredded electrical cable about 2 inches in diameter. One of the men beating me said that he could not believe the United States would send someone innocent here. Then . . . I was taken to a waiting room from where I could hear other prisoners being tortured and screaming. The women's screams haunt me most."

– Testimony of Arar to U.S. Congress hearings





BACK IN THE U.S., the pace of enquiry lags. "It's clear the Obama administration would prefer to move on and not have to deal with accountability issues at all," says Horton. "But not every door is closed."

Obama, who campaigned on a ticket of reconciliation, has shied away from pointing fingers at his predecessor's office, even on matters as grave as torture. And, he hints, ending practices that "ran counter to American values" is more important than digging up dirt.

"I'm a strong believer that it's important to look forward and not backwards, and to remind ourselves that we do have very real security threats out there," he told CNN. But the possibility of investigation, if not prosecution, still exists, even if it goes only a small way up the ladder of responsibility.

Attorney-General Eric Holder appointed a special prosecutor, John Durham, also investigating the CIA's destruction of interrogation videotapes, to probe whether CIA officials or contractors should be criminally investigated for alleged torture of terrorism detainees.

Since Durham's appointment last August, little has emerged. The backlash has been fierce, with rights groups angered that only low-level operatives would be scrutinized, and conservatives insisting it could chill the security establishment's efforts to protect the U.S.

The furor is a small hint of the bitterness that would follow an attempt to target those in command.

"In a perfect world there would be significant trials of people at the top," says John Graham, an outspoken former American diplomat and head of the Giraffe Heroes Project for promoting community change, who found himself on a no-fly list during Bush's presidency.

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"But if that happened all hell would break loose, and in my view it just isn't worth it."

Graham's view isn't unique. Many who defend the rule of law shudder at the thought of a new round of bare-knuckle political battles, at a time when the country's economy is battered, and its place in the world shaky. The tribulations, they worry, may be worse than the trials.

"Public life in America has never been gracious or rational," said The New Republic's Leon Wieseltier in The New York Times. "But sometime around 2003 we entered a new era of volatility and virulence."

It was fuelled, she says, by leadership that put itself above the law, and divided the world into those "with us or with the terrorists."

"To those who scare peace-loving people with phantoms of lost liberty, my message is this," then Attorney-General John Ashcroft told Congress. "Your tactics only aid terrorists – for they erode our national unity and diminish our resolve. They give ammunition to America's enemies."

But there are other reasons why the Obama administration may want to limit investigation of Bush officials. "The Democratic Party has never acknowledged the mistakes (President Bill) Clinton made that led to 9/11," says Roy Gutman, foreign editor of McClatchy newspapers, and author of How We Missed the Story. "They have never come to terms with that, and Obama hasn't forced them to."

Nor, he adds, did the party stand up to Bush on the invasion of Iraq or the mishandling of Guantanamo Bay: "we've had a feckless opposition, and it's now in government.''

Some say high crimes go back much farther in history, raising questions that few have the nerve, strength or means to tackle.

"My fundamental view is that this country went very wrong many years ago," says Lawrence Velvel, dean of Massachusetts School of Law, and a founder of a steering committee for prosecution of high level Bush officials. "There are some who would carry it back to the Indian removal."

In the 21st century, however, punishing war crimes is the exception rather than the rule, in spite of high profile international prosecutions and growing recognition that perpetrators can be called to account.

"Exposure is the next best thing," says Gutman. "We in the media have a much greater role than is generally assumed. If we do it properly, we can spotlight violations as they are occurring, with maximum documentation, in the hope that eventually governments will take up the case."

Since Bush left office, shelves of books have been published, with damning accounts of acts that could lay the foundation for prosecution, however distant.

Ratner and the Center for Constitutional Rights presents its case in The Trial of Donald Rumsfeld: A Prosecution by Book, published before Obama's election. If no action is taken against alleged war criminals who have advocated torture, it suggests, readers – and history – must be the judge.

But the overarching principle remains: "we must hold those responsible for torture accountable. We cannot put the genie back in the bottle. Perhaps we can deter future conduct if we send a message to the world that torturers, like the pirates of old, are enemies of all humankind and will be brought to justice no matter what their power or high office."

Sands is convinced that could happen in the U.S. Eventually. And he points out, Chilean dictator Augusto Pinochet was indicted a decade after leaving office.

"At some point the dam will break, the wall of impunity will be breached, and someone will be investigated," he argues. "Whether it's the lawyers or the ultimate decision-makers I don't know. But history teaches that these things don't go away."

For those at the sharp end of torture, that is a given.





"These past few years have been a nightmare for me. I have lived in constant psychological pain. I now understand how fragile our human rights and freedoms are, and how easily they can be taken away from us by the very same governments and institutions that have sworn to protect us."

I also know that the only way I will ever be able to move on in my life and have a future is if I can find out why this happened to me, and prevent it from happening to others.

– Testimony of Arar to U.S. Congress hearings

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