Torture and the law

I really do think it's a sign of serious decay in our national political culture when even writers and pundits who actually seem to be trying to take the torture crimes seriously can't really grasp the fact that we're dealing with crimes. That there are laws and treaties that the federal government is obligated to enforce by investigating and prosecuting the perpetrators.

Philip Gourevitch has a piece in the New Yorker dated 05/11/09 (accessed 05/05/09) called Interrogating Torture. In the first part of the article, he makes a decent case against the use of torture. Yes, in American politics opposing torture is an argument that has to be made now. But then he sounds fairly clueless - literate but clueless - about the laws at stake:

America is now embroiled in a debate about how, or whether, to hold the true masterminds - the former President, the former Vice-President, the former Defense Secretary, and their top lawyers - to account for their criminal policies. Here, we are on uncharted ground.

No, it's not "uncharted ground". Senior federal officials have been investigated for crimes, and some prosecuted and sent to jail. And the United States is not the first country and surely not the last to have the most senior officials commit serious crimes, including torture. Argentina is still prosecuting government and military officials who committed crimes during the 1976-83 military dictatorship known as "El Proceso". Peru just sentenced a former President to jail for substantive criminal acts.

Here in the United States, we have impeached two Presidents, arguably in both cases on charges far less serious than the acts to which former Vice President Cheney and former Secretary of State Condoleeza Rice have publicly admitted. Andrew Johnson's efforts to sabotage Reconstruction were pretty bad, and like the Cheney-Bush torture policy affected democracy and the rule of law in basic ways. Anyone who thinks the acts for which Bill Clinton was impeached were remotely as serious as the torture crimes has a train-wreck version of values.

As a rule, the war-crimes prosecutions of the past century were conducted by a group of states, acting collectively, against the (usually defeated) leaders of another state.

Except for the ones that weren't. Like the prosecution and conviction of mass murdered William Calley over the My Lai massacre. Like the numerous prosecutions of American soldiers that the US has conducted in recent years over acts of torture and murder in Iraq and Vietnam. Like the very politically significant Auschwitz Trial by the West German government against former concentration camps guards and administrators in the 1960s.

When states hold their own leaders to account, it tends to happen not after an election but after a revolution, when the very premise of the ancien régime is treated as criminal.

Part of the whole point of the rule of law is that it shouldn't take a revolution to hold public officials accountable for breaking the law. If former officials can be prosecuted for bribery, embezzlement or corruption, don't tell me they can't be prosecuted for torture.

Furthermore, prosecution and punishment are not necessarily the best means to eradicate the rot from a political system, because in adjudicating systemic crimes political compromise is inevitable.

Which has what to do with the enforcement of these very serious laws and treaties? Prosecuting the torture perpetrators doesn't preclude other kinds of investigations or new legislation. And is it really true that in prosecuting crimes "political compromise is inevitable"? In the case of the 1984 Torture Convention, the treaty was designed specifically to override considerations of political compromise in prosecuting torture. It seems to me that the treaty would even remove the President's power to pardon such crimes prior to prosecution and conviction.

It is practically impossible, and politically intolerable, to contemplate holding to account every corrupted officer in the chains of command that ran between the White House and the guardhouse at Abu Ghraib or at Bagram Airbase.

Why? People who committed torture crimes should be prosecuted and removed from military command and military service. Gourevitch's argument makes no sense, other than as a plea not to prosecute torturers.

A full and public reckoning of the historical record might be less cathartic but would ultimately be more valuable than a few sensational trials.

Whatever catharsis or sensation may be involved, enforcing the laws against torture have take precedence under the torture laws and treaties. And, again, prosecuting the criminals doesn't prevent Congress or citizens groups from providing other forms of "full and public reckoning of the historical record".

In any event, President Obama, who has taken a courageous lead in bringing the issue of torture to light, and in insisting on recriminalizing it, appears to have no interest in taking any of the policymakers to court — though he has not precluded doing so. Still, to date the only Americans who have been prosecuted and sentenced to imprisonment for the criminal policies that emanated from the highest levels are ten low-ranking servicemen and women—those who took and appeared in the Abu Ghraib photographs, and embarrassed the nation by showing us what we were doing there. Charles Graner is the only one remaining in prison, serving ten years. His superior officers enjoy their freedom, and C.I.A. interrogators, who spent years committing far worse acts against prisoners than Graner did even in the darkest days at Abu Ghraib, have been assured immunity.

But, if full justice remains impossible, surely some injustices can be corrected. Whenever crimes of state are adjudicated — at Nuremberg or The Hague, Phnom Penh or Kigali — the principle of command responsibility, whereby the leaders who give the orders are held to a higher standard of accountability than the foot soldiers who follow, pertains. There can be no restoration of the national honor if we continue to scapegoat those who took the fall for an Administration — and for us all. [my emphasis]

This pseudo-liberal argument that everybody is guilty so nobody is guilty is poisonous. It's a "liberal" excuse for ignoring the laws against torture. Gourevitch stops just short of saying that we should drop all charges against everybody involved in the torture program. But given his insistence that it's not possible to prosecute everyone involved and that prosecuting high-level perpetrators would be wrong, it's hard to read his closing pitch any other way.

This notion that the whole country is guilty of torture and that by prosecuting torturers we're unfairly making the actual perpetrators scapegoats is really an argument against the rule of law. Anyone who can't separate the collective responsibility of citizens from the legal guilt of actually committing crimes is really not grasping the whole concept of the rule of law.

Tags: accountability for torture, torture