Photograph from NBC News
Donald Trump’s surprising electoral victory last week gives us Americans a lot to think about. One takeaway is particularly relevant for Sri Lanka. Over the last eight years, President Obama did not prosecute Bush Administration officials implicated in post-9/11 violations of international law. His failure to adequately address Bush-era torture means that now, under President-elect Trump, the U.S. could soon revisit its darkest chapter in recent history. This lesson has implications for Sri Lanka. Trump’s win teaches us that the Sri Lankan government must deliver on accountability now, while it can, to foreclose a return to Sri Lanka’s darkest past.
After 9/11, the Bush Administration launched a counterterrorism program that flagrantly violated U.S. human rights commitments, diminished our standing in the world, and did not make us safer. In 2014, the Senate Select Committee on Intelligence produced a damning report that concluded the CIA’s interrogation and detention practices were far harsher than disclosed. One detainee died of hypothermia after he was held partially nude and chained to a concrete floor. After repeated waterboarding, another became “completely unresponsive, with bubbles rising through his open, full mouth.” Detainees were kept awake in stress positions for up to 180 hours and subjected to “rough takedowns,” where they were hooded and dragged naked up and down corridors while being punched and slapped. Contrary to proponents’ claims, the torture report found these methods were “not an effective means of acquiring intelligence.” The CIA never audited its techniques for effectiveness, and it destroyed interrogation videotapes to shield the program from review.
President Obama admitted the U.S. “tortured some folks” but dodged calls for accountability, saying, “we need to look forward as opposed to looking backwards.” He did not create a public truth commission to expose the horrors of extraordinary rendition, black sites, enhanced interrogation techniques (torture by another name), Abu Ghraib, or Guantanamo. His administration did not prosecute Bush Administration officials who perpetrated, approved, or provided legal cover for torture. The White House redacted names and blocked most of the Senate torture report from public release. The Justice Department repeatedly invoked state secrets privilege to block civil litigation by torture victims.
Upon entering office, President Obama signed an executive order closing black sites and requiring interrogations to comply with the Army Field Manual (AFM), which prohibits degrading methods like waterboarding, hypothermia, mock executions, forced nudity and sexual humiliation. A 2016 military spending bill (the NDAA) codifies that executive order, but gaps remain. Researchers worry the AFM could be interpreted to permit cruel methods like prolonged solitary confinement and sleep and sensory deprivation. The AFM does not regulate extraordinary rendition, wherein persons could be sent abroad to face torture by foreign governments. Further, nothing stops a future secretary of defense from modifying the AFM; the NDAA in fact requires a complete review every three years.
With no prosecutions in eight years, there is little in the public consciousness to repudiate past horrors. To this day, all that most Americans know comes from Hollywood’s depictions, from Kiefer Sutherland in 24 to Jessica Chastain in Zero Dark Thirty. These shows glamorize CIA agents and suggest, contrary to fact, that torture worked and saved lives. It is thus no surprise Trump supporters listened when he said, “Torture works, OK folks?”
President-elect Trump has vowed to “bring back a hell of a lot worse than waterboarding,” claiming that even if it does not produce reliable intelligence, “they deserve it anyway, for what they’re doing.” He proposed fighting ISIS by “taking out” family members of suspected terrorists. While Trump backtracked on those claims after intense criticism, he quickly doubled down. Time will tell what he will do once in office, but Republican control of the House of Representatives and Senate may clear hurdles to reinstating aspects of the torture program.
President Obama sidestepped accountability to strike a conciliatory tone with supporters of the previous administration. He claimed “nothing will be gained by spending our time and energy laying blame for the past” and stressed America would “right its course in concert with our core values” going forward. Eight years later, the U.S. may be on track to resume torture under President-elect Trump. By failing to prosecute those that “waged war against the law itself,” the Obama Administration did not do enough to deter future officials from resurrecting that approach. Nor was there a benefit to allowing false narratives to stand. Proponents of the Bush-era programs remain ready to reassert their discredited theories that torture works. Sacrificing accountability for short-term unity did not soften such views.
What does this mean for Sri Lanka? The Sri Lankan government must resist temptation to postpone justice for another day. It must prosecute those most responsible for war crimes and crimes against humanity in the prior administration, even if doing so seems politically fraught in the short term.
Soon after taking office in January 2015, Foreign Minister Mangala Samaraweera told a Washington audience: “Unlike the previous government we are not in a state of denial, saying that such violations have not happened. We believe such violations have happened, and the extent to which it has happened has to be finally decided by the mechanism we set up. We are ready to ensure that those who have violated human rights in Sri Lanka will be brought to justice through such a mechanism.” He further stated, “without accountability, without reconciliation, Sri Lanka cannot move forward.”
The current government committed to a “comprehensive approach” to deal with the past when it co-sponsored UNHRC resolution A/HRC/30/L.29 last year. Yet, since then, it has made little headway in setting up the special court it promised. It has not introduced legislation to create the court or codify international crimes under domestic law. Both the President and the Prime Minister have backtracked on Sri Lanka’s promise to staff the court with international judges, defense lawyers, prosecutors, and investigators. The President appointed suspected war criminals Jagath Dias and Sarath Fonseka to senior posts and criticized corruption investigations of Gotabhaya Rajapaksa. Administration officials unilaterally announced a fifth transitional justice mechanism, a forensic tracing unit, that will further delay the court the government wants sequenced last. With no mandated U.N. oversight beyond March 2017, it is reasonable to ask if the government is delaying action on accountability to dodge that commitment entirely.
The question for Sri Lanka is this: what will this administration do to ensure the darkest period of its recent past cannot reoccur? Recent killings of two Jaffna University students by police, the abduction and torture of a Tamil man in Mannar by the CID, and continued Army surveillance and harassment of women activists in the north and east suggest it has not done enough.
By failing to prosecute, the United States now risks a return to torture. Taking our story as a cautionary tale, Trump’s win teaches the current Sri Lankan government that it must deliver on accountability now, while it can, to prevent a return to Sri Lanka’s darkest chapter. Following its own maxim that Sri Lanka cannot move forward without accountability, the government must resist the urge to shortchange justice to temporarily appease those across the political aisle.