Accountability worries

Lady Justice at Olomouc in the Czech Republic

I'm still remaining optimistic about what Obama is likely to do about the torture policy, shutting down the Bush Gulag and even prosecuting senior officials who were perpetrators of torture. Although I can't help noticing that some of my favorite hardline-accountability bloggers, like Glenn Greenwald, Helena Cobban, Digby and Jane Hamsher, are all really concerned about Obama's statement on ABC's This Week on Sunday about the fact that it could be difficult to get conviction of those imprisoned under the Cheney lynch-law system because the evidence is tainted. They worry that he's telegraphing a hope that some alternative procedure can be set up to allow evidence obtained by torture to be used.

I worry, too. But it's also obvious to me that it's an argument any fair or justifiable legal proceeding against the accused terrorists will have to address. The Cheney-Bush lynch-law system has even more problems that the established legal procedures.

And from what's in the public record, I have to wonder how many cases would be tainted by evidence obtained by torture. The torture techniques in the Cheney menu were reversed-engineered from Soviet torture techniques that were designed to induce compliance of the prisoner with their jailers. I doubt seriously that they got much evidence that way that would be usable in a trial even it weren't "tainted".

But if some accused terrorists get acquitted because torture tainted usable evidence obtained, as might happen in a so-called "fruit of the poisoned tree" situation, then the blame should go to the Bush administration that tossed out the laws and procedures that have been successful in getting convictions in terrorism cases and instead decided to set up their own alternative system. Which inevitably came up with problems that had been resolved over centuries of Anglo-Saxon legal development in the regular legal system.

It's grim that we're having to discuss such a thing as an American pro-torture policy. And it's depressing that it's so widely discussed on such a sophomoric level, as though we in the 21st century United States were the first to discover the appeal of and major problems of torture.

And I'm at least as worried about what all those trained torturers are going to do once they move back home to try to lead a normal life. Or once they sign up to use their talents for Blackwater or some other mercenary firm.

A couple of other points it's important to keep in mind on the torture policy. Despite the claims of the torturers and the officials who authorize it, torture is not an investigative technique. As Jimmy Carter emphasizes, it's a technique of terror, state terror. That's its only real purpose. (Aside from satisfying psychiatric pathologies.) In a real sense, the argument about using it to get information is a propaganda sideshow.

The other is that in any decent legal procedure, some of the prisoners in the Gulag will likely be declared legally prisoners of war. That means they have to be returned home at the end of the conflict. Unless they can be legitimately charged with war crimes, they can't be prosecuted for ordinary acts of war, such as shooting at American soldiers, no matter how destructive the acts may have been. It was rightly considered a scandal in the Western democracies when the Soviet Union illegally held many thousands of German POWs for up to nine years after the Second World War to perform slave labor in the USSR. That aspect of Geneva requirements for POWs will also have the useful side-effect of forcing the issue of when a particular conflict in the "war on terror" is considered ended for this purpose.

History didn't start yesterday, or on 9/11. The soundest thing for Obama to do about the detainees is to use the laws that were on the books on 9/11 that the Bush administration should have used. And just wash his hands of the whole Cheney lynch-law system. When the Republicans inevitably criticize him for it - despite this being a "post-partisan" age and all - he should just shove the criticism back into their torture-supporting faces.

Which would be even more effective if there are thorough prosecutions of the torture perpetrators.

Tags: obama administration, torture