Last week’s controversy was about President Obama saying Supreme Court nominees should possess empathy. This week’s controversy is about Obama’s decision to fight to keep additional photographs of torture secret. What’s the connection?

Over the last few months, Obama has made it clear that he is willing to empathise with one class of people, but not with another class of people. He is quite able to empathise with the people who just followed orders to torture, and he doesn’t want these people to be prosecuted. And he seems to be equally capable of empathising with the people who devised a policy of torture, in contravention of US and international law – they were scared out of their wits, operating in a high-pressure situation, and should not be prosecuted.

But what about the detainees, or terrorist suspects, or simply the “terrorists”? That’s where Obama’s empathy seems to stop. He insists that torture is wrong, and is not now the policy of the United States, while simultaneously blocking attempts by torture victims to obtain justice, and blocking attempts by detainees to challenge the grounds of their detentions. 

His administration has sought to block a lawsuit by detainees who had been tortured before being released. (In the Mohamed et al. v. Jeppesen Dataplan case, the Obama administration has invoked the “state secrets privilege”, to prevent any attempt at redress by victims of the Bush/Cheney torture policy.) In April, the Obama administration appealed a district court ruling that would give detainees at the Bagram prison the right to file lawsuits seeking their release. Apparently Obama covets the Bushian power to hold prisoners indefinitely, without charges, and without the prisoners being given any chance to answer the alleged evidence against them.

And now Obama says he will fight to keep a stack of photos showing detainee abuse secret, on the grounds that the release would create dangerous anti-American feelings. (Can he sincerely believe that acknowledging the existence of crimes of abuse, while simultaneously covering up the evidence, will somehow make foreigners think better of the US?)

Together, these decisions form a fairly coherent pattern: release information of the recent torture policy when that is unavoidable, but work hard to squelch any prosecutions or other efforts at accountability for those responsible for torture, while also blocking attempts at justice for the victims of the torture policy.

With this very selective empathy, is Obama just swimming along with the worst tendencies in a terrorised nation?

In online discussions of justice for detainees, it’s typical that someone will lash out with statements like “We shouldn’t be coddling those terrorists! No punishment is too severe for people who are trying to blow up Americans! Let them rot in jail till the end of time!” Or, from the hallowed halls of Congress, we have the proposed “Keep Terrorists Out of America Act,” which could prevent Guantanamo detainees from being tried or held in the US.

Common to these reactions is a frightened, and frightening, leap of logic: anyone who fights against the US in any way is a terrorist; anyone who is captured and accused of being a terrorist is a terrorist; terrorists are infinitely dangerous, so they can’t be held in any domestic prison or tried in any standard judicial procedures; and accused (guilty!) terrorists have no human rights to redress for ill treatment.

While campaigning, Obama voiced some different, and admirable, positions on human rights. But now that he is president, there is a difference between his words and his deeds, and so far the difference does not flatter him.