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What US Judiciary could learn from Naroda Patiya verdict

Washington: Last week India and America came to two very different judicial decisions.

In India, the people’s faith in the judiciary was restored as a court in Gujarat sentenced a former minister to 28 years in prison for instigating and participating in anti-Muslim riots in 2002 in which more than 1,000 people were killed. Thirty-one others got sentences ranging from 14 years to life imprisonment. The verdict capped one of the most painful and shameful chapters in contemporary India.

Meanwhile, in America, the Department of Justice announced last Thursday it was shutting down the two cases under investigation related to the use of torture by the CIA, which had ended in the deaths of two prisoners. The decision dashed all hope that anyone might be held accountable for the brutal techniques used in the War on Terror under the Bush Administration. The two cases were the only ones to reach even this far because the evidence of torture and subsequent deaths of an Afghan detainee and an Iraqi prisoner was so strong, the CIA’s own inspector general had recommended an investigation.

In this undated photo Gul Rahman is shown. Rahman died after being shackled to a cold concrete wall in a secret CIA prison in northern Kabul known as the Salt Pit. AP

The details are horrific. Gul Rahman died in 2002 in a CIA prison in Afghanistan after being severely beaten and left naked and shackled to a cement wall in severely cold weather. He froze to death. The prison was called the “Salt Pit.” Manadel al-Jamadi died in 2003 in Abu Ghraib after similar treatment. A US army officer was photographed standing over his body. More than 100 prisoners died in various prisons in US custody but only these two cases were allowed to proceed.

But no longer. The decision to close the cases elicited howls of protest from the human rights community, which has painstakingly tried to document the dark secrets of Abu Ghraib and tens of “black site” prisons run by the CIA. But the howls may go unheard. The Justice Department cleverly announced the decision before a long holiday weekend and in the middle of the Republican Convention, to be followed by the Democratic Convention this week. The noise and political theater will bury the news deep.

And that will suit President Obama just fine. Who wants a reminder that as a candidate of “hope” and “change,” he had promised to hold torturers accountable? But then as president he went on to shield Bush Administration officials from any accountability. In fact, over the past four years his Justice Department has thrown one protective ring after another around those who might be guilty. Obama constantly talked of looking “forward” not back – just as Narendra Modi supporters talked of the need to “move on.”

But you can’t fix the present if the past overshadows it. No matter how long it takes, those responsible for crimes must be held accountable to restore the public’s faith in the rule of law. There was much political interference and deliberate obfuscation in Gujarat but the cases were handed to a special team of investigators who ultimately nailed the evidence.

That “ultimately” will never come for those who used torture or as Dick Cheney would have it — enhanced interrogation techniques — because the last avenue has been firmly blocked. A Democratic administration has actively helped shield the excesses of a Republican government. And how.

The Obama Administration steadily narrowed the scope and the number of investigations — it started in 2009 with a review of100 cases of deaths in custody but by June 2011, it said only two cases warranted investigation. During the time Obama’s team indulged in extraordinary legal gymnastics – just as the Bush Administration had done — to give cover. It restricted its attention only to those cases in which the interrogators might have exceeded the “limits” set so carefully by the Bush-Cheney’s legal experts — waterboarding which replicates the feeling of drowning could be used only once in 24 hours!

This is certainly a sorry chapter and the Obama Administration has done nothing but brush the entire mess under the carpet and locked the room. In the process, it has ignored the truth of the government’s own internal inquiry. Maj. Gen. Antonio Taguba, a retired US army officer, completed an internal report in 2004 where he said in no uncertain terms that the Bush Administration had “committed war crimes.” The report was leaked and widely disseminated. His investigation revealed a litany of abuses at Abu Ghraib. “The commander in chief and those under him authorised a systemic regime of torture,” he said.

Not really, the Obama lawyers have determined. The reason for abandoning the cases was helpfully provided: “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.” Lawyers from Human Rights First have studied the cases and they insist there is compelling evidence to prosecute. What’s missing is the political commitment to hold the designers and executors of torture accountable. Rules are different for different people, it would seem.