Wednesday, February 17, 2010

What To Do About American Torturers?

U.S. Attorney General, Eric Holder, on January 16th, 2009:

Former U.S. Vice-President Dick Cheney, on February 16th, 2010:

Article 4 of the UN Convention Against Torture, which has been signed and ratified by the United States:
Article 4
  1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
  2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Theoretically, Dick Cheney is no more and no less than an American citizen, entitled to the same rights and subject to the same laws as any other American citizen. Practically, though, it turns out that - unlike pretty much all other American citizens - Dick Cheney can confess to breaking the law on national television without fearing any repercussions.

After all, if "waterboarding is torture", if "all acts of torture are [criminal] offences" as is "complicity or participation in torture", and if Dick Cheney in his capacity as vice president was "a big supporter of waterboarding", then the case against him is obvious. It is equally obvious, however, that this case will never be prosecuted. Even though the attorney general is supposed to implement the law apolitically, Eric Holder is an Obama appointee, and he knows that putting a Republican former vice president on trial would derail Obama's presidency.

Jonathon Bernstein goes further to argue that, even if we accept the necessity of sacrificing Obama's presidential agenda for the moral imperative of opposing torture, prosecutions would not achieve the desired goal of preventing torture by future American administrations (emphasis added):
If Obama and Holder decide to prosecute, there's little question of the results: Republicans of all stripes would rally around their now-persecuted friends from the Bush administration. Republicans of all stripes would feel the need to justify the actions that the torturers took, and to do so they would double down on tales of how effective torture was at supposedly stopping all sorts of nasty terror attacks. Republicans, I tend to think close to unanimously, would refuse to have any part in any Truth Commission. They wouldn't serve on it, and they wouldn't accept its results; they would brand it a partisan witch hunt. Torturers and those who worked with torturers wouldn't testify. How could they? They'd be incriminating themselves and their coworkers. So the commission might demonstrate some of the truth, but would achieve no reconciliation at all. The deterrent factor for the future would rest on one thing alone, the ability of the Justice Department to obtain convictions and serious sentences, although such sentences would be gone, at least for policy makers once the next Republican president was sworn into office. And yet even then, the more Republicans solidify into the torture party, the more they would be likely to change the law and treaty obligations once they win the White House. In my view, a not at all unlikely result of prosecutions is withdrawal from Geneva during the next Republican administration.


OK, what happens with pardon plus commission? Hard core supporters of torture, including Dick Cheney, will certainly continue to press their case. But there's a real chance that they can be marginalized within their own party. Once his son is no longer in legal jeopardy, and assuming that his personal views are anti-torture (which I think is likely), then George Herbert Walker Bush might well be persuaded to speak out publicly and privately on the issue. Other Republicans respected by Washingtonians -- Lugar, James Baker, Dole, former CIA, FBI, and other government leaders, perhaps McCain -- might follow. As I've said before, I think it's realistic to hope that some of the Bush folks might join that chorus, perhaps even the former president himself. As Andrew Sullivan has done, Republicans could invoke Ronald Reagan (not to mention George Washington and other American heroes) in making their case against the acts that took place -- as long as they do not also have to condemn the people who performed those acts. With them on board, and with the threat of prosecution no bar to testifying, a real Truth Commission could function. Such a commission (and all commissioners, Democrats, Republicans, and others) would take it as a given that the United States should abide by Geneva, and therefore could consider evidence of any possible gains from torture in the proper context.

Basically, I think criminal sanctions on past war criminals are far less likely to prevent future war crimes than would a restoration of the American consensus against torture. I can't guarantee that pardon plus commission would achieve that, but every bit of political instinct that I have says that prosecutions would prevent it. If one is really against torture, it seems to me that preventing future torture is far more important than punishment of the torturers -- the latter should only happen if it is a means to an end, not for revenge, and not even for justice. The current best path toward that end is a generous pardon, as hard as that might be to swallow for opponents of torture. Separate the acts from the actors, and the chances of preventing future acts are much, much, better.
Bernstein's analysis is as strong a case as I've seen made against prosecuting war crimes. To address just one point, though, I think he overestimates the ability of future administrations to come out in full support of torture, or at least their ability to get away with such a thing. "[W]ithdrawal from Geneva during the next Republican administration" might seem feasible in a purely domestic American political calculus, if we take the pessimistic view that Americans either don't care or can be easily fooled into fully rejecting international law, but such an act would spell disaster for American foreign policy.

As powerful as America is on its own, it cannot project its power in places like Iraq, Afghanistan, Serbia, Iran, or North Korea (to mention just a few examples), without the support of the international community, and most importantly the rest of the "Western world" (i.e.: NATO). America's ability to lead alliances is determined by (1) its position as the leading military and economic power in the world, and (2) its status as a member in-good-standing of the law-abiding international community.

Because America is, as Madeleine Albright famously put it, the "indispensable nation", it can maintain its "law-abiding" status despite a number of violations of international law. But it is unlikely that even America could summon the military and intelligence cooperation of countries like Germany, Britain, France, or Canada if it formally removes itself from the international legal framework. After all, those governments would then be answerable to their own citizenry and to institutions like the International Criminal Court (America is the only Western country that does not recognize the ICC), who would hold them complicit for co-operating with a regime that openly rejects international law. The Bush administration eroded many of America's strongest alliances over the Iraq war, but I doubt any administration would be willing to risk those alliances entirely over torture.

The question of formal withdrawal from Geneva and/or the UN Convention against Torture notwithstanding, Bernstein's broader point is well worth considering. What is the most reliable way to prevent future U.S. administrations from re-imposing the Bush administration's system of torture: deterrence through prosecution or consensus-building through pardon? It's hard to say. What is clear, however, from watching Dick Cheney boasting of his criminal behaviour and promoting its adoption by his successors, is that the Obama administration's suspend-torture-while-pretending-it-never-happened approach is as ineffective in the long term as it is morally reprehensible today.

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