Naomi Wolf on collective guilt

Naomi Wolf: wants most torturers to go unpunished

Naomi Wolf writes a lot of good things. This column is not one of them: We are all torturers in America The Guardian 04/28/09. Now her bottom line, coming in her last paragraph, is:

... the only people who should be prosecuted are, as at Nuremberg, those who directed otherwise honorable men and women to commit crimes – the lawyers, and those who are on record as having given the orders: Rice, Cheney, Rumsfeld, and Bush himself.

I try to keep focused on what I know about the laws here. And my understanding is that, under the 1984 Torture Convention treaty, the government does not have the option to decline to prosecute people for whom there is good evidence they committed torture. The Detainee Treatment Act of 2005, which John McCain brags so often about voting for, immunized people prior to that time for acts of hands-on torture, with some conditions. But torture didn't stop in 2005. And in my lay person's understanding of the law, that legislated immunity is invalid under the Torture Convention. That treaty was designed to provide an overriding legal protection against that very kind of attempt to shield torturers from prosecution.

Her history is a bit selective. She says that only high-level perpetrators were put on trial at the Nuremberg War Crimes Trials, and that is more-or-less true. But others were tried in the courts of individual nations, notably including concentration camp guards. And I believe a few very elderly people still have charges pending against them from the Second World War.

And I find it downright creepy that she refers to the torturers as "otherwise honorable men and women". Great: except for the fact they inflicted sadistic tortures on prisoners, they're "honorable men and women"! What the hell is that about? What is she thinking?

She does explain why she wants the hands-on torturers, the doctors and psychologists who participated in torture, the mid-level bureaucrats military and civilian that knowingly participated to go free of any legal consequences. She also noticeably excludes senior military officers from her list of those who should be prosecuted. As well as Colin Powell. Her reason for not wanting to prosecute most people involved in the torture program despite the law, including the Torture Convention? She says all we Americans are guilty of torture:

As citizens' outrage over the torture memos heats up, and the US Congress is barraged with calls to appoint a special prosecutor, Americans may be about to commit an egregious miscarriage of justice. Republicans have now accused Democrats in Congress of having "blood on your hands too" in relation to the escalating calls to investigate. I would go further: not only do Congressional Democrats have blood on their hands – but so do we, the American people. And CIA agents may be about to be sacrificed to assuage their – and our – actual and associative guilt.

The suddenly urgent calls by our Congressional Democratic leaders, and even by many of the American people, to prosecute CIA operatives, military men and women and contractors who were certainly involved with, colluded in or turned a blind eye to torture are not only the height of hypocrisy, they are a form of unconscionable scapegoating. The scapegoating is political on the part of Congressional leaders, and psychological on the part of many Americans who are now "shocked" at what was done in their name. [my emphasis]

This is nonsense. It's a familiar argument: everyone is guilty so no one is guilty. Except Bush, Cheney, Rice, Rummy and the torture lawyers. The exceptions would seem to be inconsistent, as torture supporters would be quick to point out, though they probably wouldn't try to engage the issue of collective guilt because they don't think torture is a guilty act.

This is where the notion that there is no such thing as collective guilt but there is collective responsibility, is so important. Her blanket indictment is fairly mindless, I'm afraid. There were lots of citizens - a majority, according to the polls taken during the Cheney-Bush years - who opposed torture. There were lots of us who said publicly that the torture program was wrong. There were human rights and civil-liberties groups that went to court to stop the torture program, and people who contributed money to those organizations for that purpose. There were journalists who exposed the program and the occasional publisher who printed the stories. There were Members of Congress that conscientiously opposed the torture program all along.

And while I'm not especially inclined to be generous about voters who supported the torture program outright, I also try to be realistic about it. The Cheney-Bush administration tried mightily to hide the program behind a wall of secrecy, and individually refused to address any particular method of torture being used. So there were people who either discounted the reports of torture, or believed the continued administration assurances that no one was being tortured. Or they looked at things like the phony exercise of Congress in 2005 outlawing torture again when it was already illegal and the administration was already violating the laws in place, saw the indifference of the respectable Beltway Villagers toward torture, and assumed the problem was over. And, of course, some people who didn't care one way or another.

I would argue that Americans who didn't oppose torture outright weren't being responsible citizens on that issue. Media figures from Republican Party chief Rush Limbaugh who praised the torture to our Big Pundits who excused it or let it slide for years also failed in their responsibilities as journalists and public figures. And are still failing. To see how, just check out last Sunday's column by the man who is known as the "Dean" of the Washington press corps: Stop Scapegoating by David Broder Washington Post 04/26/09. Or this one by columnist Richard Cohen of the same paper in On Higher Ground, but Not Safer 04/28/09, in which you have to get to the very last paragraph to get any inkling that he realizes that there might be laws against torture.

But all those are levels of civic or moral responsibility. There are not areas of legal guilt. It is not against the law to say you think torture is a great idea. Despicable, but not against the law. It is against the law to torture someone, order someone else to torture someone or give legal advice designed to facilitate the crime of torture.

I know that "blood on your hands" is metaphorical, although I don't know of any Republicans expressing it that way in trying to implicate the Democrats. But failing to do what was adequate, as both the Republicans and Democrats in Congress failed on the torture program, is also not a crime. Morally reprehensible, but not a crime.

For those Members of Congress of either Party who knew more specifics about the torture program, they conceivably have a heavier burden of moral responsibility, and possibly even legal culpability. But until the minutes of those meetings are declassified and made public, we really don't know how much Members of Congress of either Party knew about the "enhanced interrogation" program. We need to know. And if some Members of Congress because of their participation in special briefings took on some kind of legal responsibility for the torture crimes, then they should be prosecuted as well, of course. But we should at least acknowledge that the Democrats involved in the secret briefings related to the torture program are saying that the briefings did not include details about torture actually being used on prisoners.

Wolf's collective guilt argument is basically frivolous. And ugly, in that she uses it as an argument for letting most of the torturers go free with no prosecution. And, worst of all, she treats prosecution of torture crimes as a policy or even purely political option instead of what it is: a serious obligation under law and international treaties.

Tags: accountability for torture, naomi wolf, torture