prosecution for torture

Some thoughts on the Prosecution of Torturers

“Our government is the potent, the omnipresent teacher. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for the law...”
---- Justice Louis Brandeis

There has been some controversy recently about the advisability of prosecuting various figures ( George Bush, Dick Cheney, Donald Rumsfeld, Judge Bybee, John Yoo, Richard Addington, Alberto Gonzales, & others) from the previous administration for advocating and employing the use of torture of “enemy combatants” to obtain information. The controversy is not over whether they did or did not authorize torture. They did. They admit it. And they defend it.

Our current president, Barack Obama, has said that he prefers not to prosecute because he wants his administration to look forward rather than backwards. Here is what the president said:

“But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values and to move forward with confidence. That is why we must resist the forces that divide us and, instead, come together on behalf of our common future.”

Is the prosecution of people for crimes against our “core values” likely to endanger those values? Isn’t it the opposite? Would Obama have given the same advice to the Nuremburg tribunal? Would he have given the same advice to courts who wanted to prosecute the KKK for lynching black men? Justice Louis Brandeis, if he is observing all this, is surely wondering what they teach at Harvard Law these days about how to respect the law. A somewhat cynical observer of American history might note that one of our core values seems to have been to pull the rug over episodes in our history that don’t conform to our myth of ourselves.

Obama praised the rule of law for requiring him to release the secret CIA memos that detailed the means of abuse and torture that they employed. But then he said let’s forget the rule of law when it comes to prosecution.

Both Obama and the national news media often frame the issue around the wisdom of seeking “retribution” against the torturers. “Retribution” is a curious choice of words, designed to prejudice the issue before it can be talked about, because it suggests revenge and we all know that revenge is an unworthy sentiment. Of course, the laws that forbid torture are not written to seek retribution. They are written to seek justice. And, every law, to create justice, must, in fact, look backwards in order to judge fairly a completed deed. And it should be obvious to anyone that unless we look backward to secure justice by our own highest standards, there is really no point in looking forward.

What standards are you going to live by then? Aren’t these the standards that give humanity its hint of nobility? Courage, decency, mercy, conscience, law. What’s the point of going forward having shrugged off the few qualities that make life worth living. We might say then that for the sake of pragmatism we are going to struggle into the future together, but we’re going to leave our hearts behind. If fear and a desperate search for security are one’s highest values, then really our lives have become meaningless unless subsisting in spiritual squalor is all the meaning one needs.

And what then are we to say about what regard we hold for the victims of torture? If we don’t prosecute the torturers, we dismiss the suffering of the victims as inconsequential. We show that we have contempt both for the law and also the victims. We show that law is important except when it is necessary.

Imagine a kingdom of birds that are under some stress --- economic downturn, habitat destruction, polluted food --- and the big eagles tell all the sparrows & chickadees that in order to focus on the critical issues, they need to give up singing and flying.

Or, imagine a powerful oak telling all the other trees that there are some tricky climate times ahead and increased mobility will be a great asset for the trees. So, let’s cut ourselves free from our roots.

Our best laws are our best roots. To cut ourselves free from those roots is to cut ourselves free from the values that define us.

Dick Cheney who conspired to create a climate of fear and lies to enable the pre-emptive attack on Iraq, bases his defense of the advocacy for torture simply on its utility. The ends justify the means. Such a defense works no better for him than it might for a wife beater who can prove that a few well placed punches and kicks solved the problem of his wife’s complaining. Implicit in Cheney’s defense must be that laws forbidding torture are bad laws. Torture works; it gives us the information we need to save lives. So, following that logic, we should change the law to legalize torture.

I would suggest then that Cheney have the courage to attempt to change the bad torture laws in the same way that bad law has been challenged in the past: civil disobedience. He should water board, and sleep deprive, and sexually taunt, and freeze, and threaten with dogs some hapless soul in public. On, say, the Washington mall. The person being tortured might, or might not, be someone who knows something that Mr. Cheney thinks is important hidden information. Cheney would willingly submit to arrest and then have his chance to plead for his cause in court. Civil disobedience worked for civil rights, women’s rights, worker’s rights, environmental rights. Why not for torturer’s rights?

Every time serious public law goes unpunished we do damage to the integrity of our democratic, Constitutional republic. What then are we to teach our children? Unacknowledged crime festers, breeds cynicism. Will we only be able to tell our children that in a time of great crises we managed to bailout corrupt bankers, but not enforce the sacred laws that lay the foundation for who we are? We know ourselves through the stories we tell about our history. People who tell a story to hide the truth, to glorify hypocrisy, to muffle the cries of victims, to trumpet the rule of law while ignoring justice, have only one thing to teach with their story --- that they have no respect for themselves.

The great civil rights activist Fannie Lou Hamer often said, “I’m sick and tired of being sick and tired.” Well, I’m sick and tired of having to translate every presidential utterance to its opposite in order to find the truth. We just did that for eight years. It’s probably safe to surmise that Obama knows the fatuousness of his statements about core values and the rule of law. Whose interests, then, is he serving?