Go to: Background | Policy Work | Resources

Background

It is widely acknowledged that after September 11, 2001, under the expansive banner of a "global war on terror," the U.S. government authorized and carried out counter-terrorism policies involving the systematic use of torture, cruel, inhuman and degrading treatment and secret and arbitrary detention.

In his first days in office in January 2009, President Barack Obama ordered an end to torture and committed to closing the U.S. detention center at Guantánamo Bay. These were important first steps in closing a shameful chapter in the history of U.S. security policy in which laws, both domestic and international, were blatantly flouted and administration policy operated behind a veil of secrecy, disregarding basic democratic checks and balances. But much remains to be done to ensure there is adequate disclosure and acknowledgment of what occurred, that justice is effective and that confidence in the rule of law is restored.

In 2008 ICTJ launched its U.S. Accountability Project. After assessing reports of serious violations of international human rights and humanitarian law standards as well as significant failures of accountability, we concluded that, as the United States entered into a period of political change we could contribute to closing that "accountability gap," based on our experience in the field of transitional justice. The Center's U.S. Accountability Project has since conducted in-depth research and made available pragmatic policy advice on accountability, grounded in practical experience and international standards, and attuned to the political realities of the United States.

ICTJ's first priority is to share information and institutional expertise with colleague organizations working on these issues. Research and advice is also aimed at equipping policy-makers with information and comparative insights into policy choices and giving specific, relevant and realistic content to the principle of accountability. The Project shares information with the public through this website, publications, and media work, and provides technical assistance on accountability mechanisms.

Lisa Magarrell, director of U.S. programs, and
Carolyn Patty Blum, senior project consultant, lead the U.S. Accountability Project.

Back to top

Policy work- Accountability Issues

Accountability Generally

ICTJ's U.S. Accountability Project emphasizes the importance of an array of means to ensure that one avenue of accountability does not serve to undermine others and that all serve justice. These avenues include a commission of inquiry, criminal investigation followed by appropriate prosecutions, reparations for victims, and needed reforms to ensure abuses do not recur and, if they do, that accountability going forward will operate swiftly to bring wrongs to light and ensure justice.

The U.S. has staked out a contradictory position, avoiding accountability for its own agents while championing post-conflict justice for serious human rights abuses around the world, as we point out in a June 2009 essay. In ICTJ's first fact sheet on accountability, the project focused on early steps that should occur to bring U.S. policy in line with its rhetoric. As the Obama administration reached the 100 days' mark in 2009, we addressed the importance of both prosecutions and truth-seeking strategies in order to move forward clearly and with credibility in a second brief statement on accountability.

Independent Investigation

The Project began investigation of this issue by reviewing the importance of the "right to truth," compiling relevant lessons from truth commissions around the world and analogous precedents in the United States. We also pulled together a partial list of inquiries already undertaken by executive agencies, to consider what these contributed and what they failed to address.

Reports from congressional inquiries, reports of the International Committee of the Red Cross, and releases of additional information under the Freedom of Information Act, along with investigative reporting and the work of a number of NGOs, have produced a significant amount of information pointing to serious and systematic abuses of human rights in conjunction with counter-terror policy. An independent investigation would connect information and findings from existing reports, and indicate where information is lacking and might be obtained. It would paint the bigger picture of what happened, how the policies and practices affected victims, and how a system that is supposed to stand for the rule of law allowed such abuses to occur without real accountability. ICTJ explored the value of commissioning an independent, overarching inquiry into abuses in a policy brief on that topic.

In related work, ICTJ has supported initiatives for greater transparency. For accountability to flourish, transparency in government is crucial. After campaign claims promising greater transparency, President Obama issued two Presidential memoranda indicating a change in direction in interpreting FOIA, with a presumption in favor of FOIA requests, and ordering recommendations on improving government transparency. However, the administration has not fully supported transparency in specific instances. For example, the Obama administration opposed the release of additional photographs of mistreatment of detainees, as ordered by a federal court.

When the government appealed the case to the Supreme Court, ICTJ joined with other organizations in an amicus brief, unsuccessfully urging the Court to allow the well-reasoned appellate decision to stand and so allow government misdeeds documented in the photographs to come to light. However, the final Supreme Court ruling in November 2009 sent the case back to the 2nd Circuit Court of Appeals to reconsider its order that the photos be released. In the interim, Congressional legislation allowed the Secretary of Defense to exempt the photos from disclosure under FOIA, and this is in fact what he has done.

Promoting Justice

In August 2009, Attorney General Eric Holder announced the appointment of a Special Prosecutor to conduct a preliminary investigation to determine whether federal crimes may have been committed in the context of detainee interrogations. Although ICTJ welcomed this preliminary investigation as a positive step, it appeared to be a limited one, reported to focus only on a very few specific instances of detainee abuse. Our research indicates that detainee abuse consisted of a wide array of apparent crimes against detainees, including policies which sanctioned and fostered abusive acts. ICTJ produced an in-depth policy paper on the topic which analyzes the available evidence of detainee abuse under a theory of system crimes – crimes stemming from high level policy which became pervasive throughout the detention system – and suggests that investigations and prosecutions must encompass those most responsible for wrongdoing. The paper’s executive summary is also available as a briefing note.

Before the installation of the Obama administration, there was some speculation that President George W. Bush might grant preemptive pardons to administration officials and members of the military who might otherwise risk prosecution for illegal acts committed in relation to the US "war on terror." ICTJ produced a policy brief on the topic, explaining the legal framework for the presidential pardon power in the United States and describing its use in the past. ICTJ’s compilation of information on amnesties and pardons in international jurisprudence and country case studies remain relevant to the discussion of impunity today.

Reparations

ICTJ has been careful to point out that accountability also requires reparations for harms caused to victims of serious human rights abuses and violations of international humanitarian law. The UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law assert that victims of such abuses have a right to prompt, adequate and effective reparation.

Reparations are held to include, in some combination and as appropriate, restitution, compensation for harm, and rehabilitation in mind, body and status. Measures to satisfy victims, such as apology, revealing the truth, holding perpetrators accountable, and ceasing ongoing violations are also steps that can have a reparative effect. Likewise, steps to prevent non-recurrence should accompany reparations, as this offers reassurance to victims and the larger public alike that reparation signifies a real commitment to upholding the ban on torture and other cruel, inhuman and degrading treatment.

A policy paper on this issue is forthcoming early in 2010. 

Back to top