The British government's settlement agreement to pay compensation to former Guantánamo detainees over claims that they were unlawfully captured and abused while in custody is a meaningful, though not complete, government statement on its complicity in extraordinary rendition and torture. Coming so soon after George W Bush's boast that he enthusiastically authorised torture, the British move highlights the absurdity of the American political and legal processes that so easily prevents any accountability for such blatant misconduct and lawlessness.

Tuesday's announcement of a financial settlement with former Guantánamo detainees is an important step for the UK government in admitting its role in the Bush administration's unlawful detention and interrogation practices. Prime Minister David Cameron has been explicit in his condemnation of torture and unlawful detention, as has President Barack Obama, as not only immoral and illegal, but ineffective and counterproductive. He should be commended for his strong stand against torture.

But let's not get too carried away with praise for the new government. The politics work strongly in favour of Cameron's position on this issue, with a united British public opposing torture, especially among the supporters of Cameron's political opponents. Importantly, the government preferred to fight these claims in court and keep information about its role in extraordinary rendition secret, but the courts rejected its attempt to hide behind official secrecy, and forced it to decide whether to pursue expensive and uncertain litigation or reach a settlement. It chose the later.

Neither of those conditions exist in the United States, enabling the former president to confess to a crime in his memoir and then brag about it on national television without any fear of accountability. When he was asked whether he approved the use of waterboarding on detainees, Bush said "damn right".

The United States government believes waterboarding is a crime and has prosecuted US soldiers for its use in wartime and police officers for its use inside the United States. The State Department believes it is a crime when it is done by other governments. The president and the attorney general have unequivocally stated that waterboarding is a crime. This is not a gray area: waterboarding is a crime, period.

But nobody in the United States has any expectation that George W Bush will ever suffer any consequences for this crime.

President Obama does not enjoy a similar political environment that so favours Cameron on torture. This still shocks me, but the use of torture is a hotly-contested political issue in the United States, meaning that any effort to hold those accountable would be deeply divisive and corrosive. That is not an excuse for doing nothing, however, and I believe the Obama administration made a serious mistake in rejecting all means of assessing the policies of the previous administration.

But for the Obama administration, even setting up something similar to the Gibson inquiry would be fraught with political peril, rather than the cost-free bonus it is for Cameron.

Then, there are the courts, which have steadfastly refused to do anything equivalent to their British counterparts and force the government to choose between secrecy and accountability. The Obama administration has adopted far too much of its predecessor's abuse of the state secrets privilege and has so far been very successful at stopping any litigation against the government alleging extraordinary rendition or torture.

Of course, there must be a mechanism for governments to protect sensitive national security information from unwarranted disclosure in court proceedings. And no, it is not appropriate for courts always to force the government to choose between protecting legitimate secrets and settling claims. But the right solution to those challenges is certainly not to allow the government to exempt entire categories of activity from any judicial scrutiny, as is the case with the current application of the state secrets privilege adopted by the Obama administration.

As an advocate for responsible national security policies, I am pleased that the British government has decided to reach a settlement in these cases and admit, with legal force, the British government's complicity in the Bush administration's policies of extraordinary rendition and torture. As an American, I am disappointed that no such admission has come from my government and that our political and legal systems do not give me hope that one will be forthcoming.

Nov. 17, 2010

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